Harris v. Sowers et al

Filing 99

REPORT AND RECOMMENDATION: It is RECOMMENDED that 78 MOTION to Dismiss Raising Qualified Immunity as an Affirmative Defense filed by Melanie Fultz, Cynthia Ricker, Hayes, Aaron Sowers, Chamberlain be DENIED. Objections to R&R due by 7/16/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on July 2, 2018. (jlk) (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
LIONEL HARRIS,
Plaintiff,
Civil Action 2:16-cv-888
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

AARON SOWERS, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Lionel Harris, an Ohio inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants, employees of
Madison Correctional Institution. This matter is before the United States Magistrate Judge for
consideration of Defendants’ Motion Raising Qualified Immunity as an Affirmative Defense
(ECF No. 78), Plaintiff’s Response (ECF No. 90), and Defendants’ Reply Memorandum (ECF
No. 92).
On November 2, 2016, Plaintiff filed the original Complaint. (ECF No. 7.) Thereafter,
due to misidentified Defendants (ECF No. 52), Plaintiff filed an Amended Complaint on
December 8, 2017. (ECF No. 57.) Notwithstanding that the Amended Complaint is now the
operative complaint, Defendants cite to the substance of both the original Complaint (ECF No. 7)
and the Amended Complaint throughout their Motion. (See generally ECF No. 78.) Defendants
also rely on matters outside of the pleadings when asking the Court to dismiss the claims against
Defendants Sowers. (Id. at 8–10 (citing attached answers to interrogatories).) Based on this
record, the Court cannot decipher which arguments may be appropriate to consider on a motion
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to dismiss and which may be meritorious in light of the above citations. The Undersigned also
notes that Defendants represent that they only filed “the present Motion to comply with the
Court’s Scheduling Order [Doc. #:32].” (Id. at 1 n.1; see also ECF No. 32 at 2 (setting the
deadline for filing motions for summary judgment and “any motion raising the defense of
qualified immunity” as February 18, 2018).)1 In light of the foregoing, Defendants’ reliance on
evidence outside of the pleadings is appropriate at the summary judgment stage. Therefore,
under these circumstances, and as a matter of case management, it is RECOMMENDED that
Defendants’ Motion Raising Qualified Immunity as an Affirmative Defense (ECF No. 78) be
DENIED and that Defendants remain free to raise the issue of qualified immunity at the
summary judgment stage.
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
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 object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
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The deadline for filing motions for summary judgment has been extended to August 31, 2018.
(ECF No. 91.)
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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 of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when 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 to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: July 2, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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