Gales v. Charles et al

Filing 8

ORDER adopting and affirming 3 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/5/16. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Timothy Gales,
Plaintiff,
v.

Case No. 2:16-cv-123

Thomas P. Charles, et a/.,

Judge Michael H. Watson

Defendants.
ORDER

This matter is before the Court for consideration of the Magistrate Judge's

February 16, 2016 Order and Report and Recommendation, ECF No. 3, and

Plaintiffs objection, ECF No. 5. In her Order and Report and Recommendation,
the Magistrate Judge conducted an initial screen of Plaintiffs complaint and
recommended that the Court dismiss the claims against Defendants the Ohio

State Highway Patrol and the Ohio Department of Public Safety for lack of
subject matter jurisdiction and because Plaintiff has failed to state a claim upon
which this Court can grant relief. The Magistrate Judge also recommended that
the Court dismiss all state law claims against all individual defendants, because

(1) the official capacity claims seeking monetary damages constitute claims
against the state, which are barred by absolute immunity by virtue of the
Eleventh Amendment to the United States Constitution, and (2) the Court lacks

jurisdiction to consider the individual capacity claims because the Ohio Court of

Claims has not ruled on whether the individual defendants are conferred

immunity under Ohio Revised Code § 9.86.
In his objections, Plaintiff concedes that the Court should dismiss the

claims against the Ohio State Highway Patrol and the Ohio Department of Public

Safety. Plaintiff also concedes that he must proceed in the Ohio Court of Claims
in regard to his claims against the individual defendants in their individual capcity.

Plaintiff indicates that he is objecting to any dismissal with prejudice of the claims
against the individual defendants. Plaintiff also asks to amend his complaint.
Briefing on the objection has closed, and the Order and Report and
Recommendation and the objection are ripe for disposition.
When a party objects within the allotted time to a report and
recommendation, the Court "shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to

which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the Court "may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge." 28 U.S.C.
§ 636(b)(1).

Plaintiff's objection is without merit. The Magistrate Judge did not

recommend a dismissal with prejudice of the individual capacity claims against

the state employee defendants. Indeed, the dismissal will be without prejudice.
Plaintiff's request to file an amended complaint appears to be premised on

filing such a complaint after proceeding in the Ohio Court of Claims. Plaintiff has
Case No. 2:16-cv-123

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neither proffered an amended complaint nor indicated with any specificity what
an amended pleading would contain. A dismissal without prejudice would mean
that Plaintiff could simply file a new complaint rather than holding this case open

pending an Ohio Court of Claims decision on the immunity issue. The Court
therefore DENIES the request to file an amended complaint.
This Court OVERRULES Plaintiff's objection, ECF No. 5, and ADOPTS

and AFFIRMS the Order and Report and Recommendation, ECF No. 3. The
Court therefore DISMISSES WITH PREJUDICE the claims against the defendant

state agencies and the claims for monetary damages against the state

employees in their official capacities. The Court DISMISSES WITHOUT
PREJUDICE the claims against the state employees in their individual capacities.
The Clerk shall enter judgment accordingly and terminate this case.
IT IS SO ORDERED.

MlfCHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:16-cv-123

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