Logan v. Emam et al
REPORT AND RECOMMENDATION AND ORDER - It is RECOMMENDED that 24 MOTION for Summary Judgment and 30 MOTION for Default Judgment against Defendants be DENIED. Objections to R&R due by 4/25/2017. For the reasons outlined in this Order, 21 M OTION for Leave to File is granted; and 19 MOTION for Order, 23 MOTION to Amend/Correct, and 28 MOTION for Release of Radiology Reports (X-Ray)are denied. Signed by Magistrate Judge Terence P. Kemp on 4/11/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Jerry E. Logan,
Hany A. Emam, et al.,
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
This is a prisoner civil rights case involving a claim for
Eighth Amendment violations. This matter is now before the Court
on a number of motions filed by plaintiff Jerry E. Logan: Motion
for Preliminary Pretrial Scheduling Order (Doc. 19); Motion for
Leave to Supplement (Doc. 21); Motion to Correct the Records
(Doc. 23); Motion for Summary Judgment (Doc. 24); Motion for
Release of Radiology Reports (Doc. 28); and Motion for Default
Judgment (Doc. 30).
The Court will divide them into non-
dispositive motions and dispositive motions, and, with one
exception, will either deny or recommend denial of all of them.
Motion for Preliminary Pretrial Scheduling Order
Mr. Logan has moved for a scheduling order pursuant to
Fed.R.Civ.P. 16(b). Because the Court issued a Scheduling Order
on August 31, 2016, this motion will be denied as moot.
Motion for Leave to Supplement Exhibit
Mr. Logan has moved to supplement the record with a letter
from the Ohio State Dental Board (“OSDB”) relating to his
complaint against Dr. Claire Towning, one of the defendants in
It appears he wishes to add it as a supplement to the
Defendants have not opposed the motion.
it will be granted.
Motion to Correct the Records
Without providing specific examples or details, Mr. Logan
has moved to challenge the accuracy of some of the medical
records that have been produced in relation to his case, and
states that he was “under duress” when required to sign certain
on lack of clarity.
The defendants oppose the motion based
Mr. Logan’s reply is also quite vague, and
appears to refer to certain contents of the medical records which
Essentially, it appears that Mr. Logan’s motion
seeks the Court to resolve factual issues about these documents.
That is a potential issue for trial and is therefore not
appropriate at this point in the case.
Mr. Logan will have the
opportunity in the course of the litigation to provide evidence
and advance his arguments with respect to any factual disputes.
For this reason, the motion will be denied.
Motion for Release of Radiology Reports
Mr. Logan has also moved for “authorization for the release
of radiology reports” from an x-ray taken on January 30, 2017 at
Chillicothe Correctional Institution.
To the extent that he
seeks the document through discovery, as provided under
Fed.R.Civ.P. 34, Mr. Logan must serve a written request on the
Defendants asking for the document.
If it is not produced, Mr.
Logan may file a motion asking the Court to become involved, but
it does not appear that the matter has progressed to that point.
Because his motion is premature and not supported by any evidence
that he has asked Defendants for the x-ray and that they have
refused to produce it, this motion will be denied.
Motion for Summary Judgment
Mr. Logan has moved for summary judgment, asserting in a
six-line typed statement that the facts are not in dispute and
reasonable minds can come to only one conclusion, which is to
find in his favor.
Defendants have opposed the motion.
motion fails to meet the requirements for a motion for summary
judgment because it is not supported by any evidentiary materials
as required by Fed.R.Civ.P. 56(c).
There are currently no facts
in the record from which the Court could conclude that any party
is entitled to judgment as a matter of law.
The motion for
summary judgment will therefore be denied.
Motion for Default Judgment
Mr. Logan has moved for default judgment because, according
to his motion, the defendants did not respond to his motion to
correct the record.
to that motion.
As mentioned above, Defendants did respond
Moreover the failure to respond to this type of
motion is not an event of default under Fed.R.Civ.P. 55(a), and a
default must be entered under that rule before a default judgment
can be awarded.
Because that has not happened here, the motion
for default judgment will be denied.
Order and Recommendation
For the foregoing reasons, the Motion for Leave to
Supplement(Doc. 21) is granted.
The Motion for Preliminary
Pretrial Scheduling Order (Doc. 19), Motion to Correct the
Records (Doc. 23) and Motion for Release of Radiology Reports
(Doc. 28) are denied.
Further, it is recommended that the Motion
for Summary Judgment (Doc. 24) and Motion for Default Judgment
(Doc. 30) be denied.
MOTION FOR RECONSIDERATION
As to the order on Docs. 19, 21, 23, and 28, any party may,
within fourteen days after this Order is filed, file and serve on
the opposing party a motion for reconsideration by a District
28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.;
Eastern Division Order No. 14-01, pt. IV(C)(3)(a).
must specifically designate the order or part in question and the
basis for any objection.
Responses to objections are due
fourteen days after objections are filed and replies by the
objecting party are due seven days thereafter.
Judge, upon consideration of the motion, shall set aside any part
of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.3.
PROCEDURE ON OBJECTIONS TO
REPORT AND RECOMMENDATION
As to the recommendation as to Docs. 24 and 30, if party
objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all
parties written objections to those specific proposed findings or
recommendations to which objection is made, together with
supporting authority for the objection(s).
A judge of this Court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.
Upon proper objections, a judge of this Court
may accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence or
may recommit this matter to the magistrate judge with
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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