Gilmore v. Hitchens et al

Filing 54

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 46 in that Defendants' Motion to Dismiss is GRANTED. Signed by Judge George C. Smith on 1/24/18. (sem)(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
EASTERN DIVISION
SEAN GILMORE,
Plaintiff,
vs.

Case No.: 2:17-cv-052
JUDGE GEORGE C. SMITH
Magistrate Judge Jolson

SHANDAN HITCHENS, et al.,
Defendants.
ORDER
On December 6, 2017, the United States Magistrate Judge issued a Report and
Recommendation on numerous pending motions. The Magistrate Judge recommended that
Defendants’ Motion to Dismiss be granted and that Plaintiff’s Motions be denied. (See Doc. 46).
The parties were advised of their right to object to the Report and Recommendation and of the
consequences of their failure to do so. This matter is now before the Court on Plaintiff’s
objections to the Magistrate Judge’s Report and Recommendation. (Doc. 51). Defendants have
filed a Response in Opposition. (Doc. 53).
The objections present the same issues considered by the Magistrate Judge in her Order.
Plaintiff has not provided any argument or contrary legal authority as to how Magistrate Judge
Jolson’s analysis was incorrect, but continues to request appointment of counsel, an expert
witness, and discovery, as well as another opportunity to file a comprehensive complaint. The

Magistrate Judge’s analysis and conclusion that Plaintiff’s claim must be dismissed based on the
doctrine of res judicata is well-reasoned and correct. A previous lawsuit on this same issue was
decided on the merits by a court of competent jurisdiction, this action involves two of the same

parties as the prior action, this action involves matters litigated in the prior action, and the
Plaintiff brought identical causes of action.
Next, the Magistrate correctly concluded that Plaintiff’s deliberate indifference claim
fails because he did received medical care for his concussion, fractured nose, eye injury, rib
fractures, and upper and lower back injuries. A prisoner does not state a valid Eighth
Amendment claim when “his claim amounts to a difference of opinion between him and the
prison health care providers and a dispute over the adequacy of his treatment.” Apanovitch v.
Wilkinson, 32 F. App’x 704, 707 (6th Cir. 1976). Following the dismissal of the deliberate
indifference claim, the Magistrate Judge then correctly concluded that Plaintiff’s remaining
claims arose under state law and should therefore be dismissed. When all federal claims are
dismissed before trial, state-law claims “generally should be dismissed as well.” Brooks v.
Rothe, 577 F.3d 701, 709 (6th Cir. 2009); see also Mathis v. Doctor’s Hosp. (West), No. 2:12–
cv–358, 2012 U.S. Dist. LEXIS 80190, at *9–10 (S.D. Ohio June 11, 2012) (adopting
recommendation not to exercise supplemental jurisdiction where federal claims failed).
Finally, the Magistrate Judge correctly dismissed the remaining unserved Defendants.
Plaintiff failed to comply with Federal Rule of Civil Procedure 4(m) requiring him to perfect
service on those Defendants within the requisite time. “Although in forma pauperis plaintiff[s]
should not be penalized for marshal’s failure to obtain proper service, it [is the plaintiff’s]
responsibility to provide [the marshal with] proper addresses for service.” Lee v. Armontrout,
3991 F2d 487, 489 (8th Cir. 1993), cert. denied, 510 U.S. 875 (1993).
Additionally, Plaintiff argues that the March 10, 2017 incident did not occur at the Lucas
County Jail, but rather occurred at the Correction Reception Center. (Doc. 51, Pl.’s Objs. at 3).

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These facts are noted, but do not impact the analysis and decision rendered by the Magistrate
Judge on the pending motions.
Therefore, for the reasons stated in the Magistrate Judge’s Report and Recommendation,
this Court finds that Plaintiff’s objections are without merit and are hereby OVERRULED. The
Report and Recommendation, Document 46, is hereby ADOPTED and AFFIRMED.
Defendants’ Motion to Dismiss is hereby GRANTED and all of Plaintiff’s pending Motions are
DENIED.
The Clerk shall remove Documents 20, 26, 27, 28, 29, 30, 31, 33, 34, 35, and 46 from the
Court’s pending motions list and enter final judgment in this case.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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