Zapata et al v. Burkes et al

Filing 2

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Brenda Meehan, Kimberley Zapata. It is RECOMMENDED that the state law claims asserted inthe Complaint be dismissed without prejudice unless and until the Ohio Court of Claims determines that the defendants are not entitled to civil immunity under O.R.C. § 9.86. Objections to R&R due by 12/31/2015. Signed by Magistrate Judge Norah McCann King on 12/14/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KIMBERLEY ZAPATA, et al.,
Plaintiffs,
Case No. 2:15-cv-3076
Judge Sargus
Magistrate Judge King

v.
RONETTE BURKES, et al.,
Defendants.

REPORT AND RECOMMENDATON
Plaintiffs, state prisoners currently incarcerated in the Ohio
Reformatory for Women (“ORW”), bring this action under 42 U.S.C. §
1983, in connection with alleged denial of medical care. This matter
is now before the Court for the initial screen of the Complaint
required by 28 U.S.C. § 1915A.

Because plaintiffs, prisoners, seek redress from
governmental officers or employees of a governmental entity,
this Court must conduct an initial screen of the Complaint. 28
U.S.C. § 1915A(a). The Court must dismiss the Complaint, “or any
portion of the complaint,” if it determines that the Complaint
or claim is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. §
1915A(b).
The Complaint asserts not only claims under the Eighth and

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Fourteenth Amendments to the United States Constitution (Counts I
through III), but also state law claims of gross negligence (Count
IV), negligence (Count V), and unauthorized disclosure of non-public
medical information in contravention of “ORW policy and Zapata’s
confidentiality.” Id. ¶ 87 (Count VI).
The supplemental state law claim cannot proceed in this Court
unless and until the Ohio Court of Claims has determined that the
defendant state officers are not entitled to civil immunity under
O.R.C. § 9.86.

See O.R.C. § 2743.02(F); Haynes v. Marshall, 887 F.2d

700, 704 (6th Cir. 1989)(state employees enjoy immunity from suit in a
claim under Ohio law); Johns v. University of Cincinnati Med. Assocs.,
804 N.E.2d 19, 24 (Ohio 2004).
It is therefore RECOMMENDED that the state law claims asserted in
the Complaint be dismissed without prejudice unless and until the Ohio
Court of Claims determines that the defendants are not entitled to
civil immunity under O.R.C. § 9.86.

If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

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The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
December 14, 2015

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to