Hertel v. Krueger et al
Filing
11
OPINION AND ORDER finding as moot 1 Motion for Leave to Proceed in forma pauperis ( Show Cause Response due by 10/22/2018.); denying 9 Motion to Amend/Correct; adopting Report and Recommendations re 10 Report and Recommendations.. Signed by Judge James L. Graham on 9/20/2018. (ds)(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
Frank K.C. Hertel, Sr.,
Plaintiff,
v.
Case No. 2:18-cv-179
Judge Everett H. Krueger,
et al.,
Defendants.
OPINION AND ORDER
This is an action filed by plaintiff pursuant to 42 U.S.C.
§1983 against Delaware County, Ohio, and various state officials
and
judges
who
where
involved
in
plaintiff’s
state
criminal
prosecution and subsequent related proceedings. In a July 5, 2018,
report and recommendation on an initial screen under 28 U.S.C.
§1915(e), the magistrate judge recommended that plaintiff’s claims
be dismissed on several grounds, including Eleventh Amendment
immunity, judicial and prosecutorial immunity, the statute of
limitations bar, the unavailability under §1983 of the relief
sought, and waiver.
By order dated August 16, 2018, this court
adopted the report and recommendation and dismissed this action
pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a
claim for which relief may be granted.
On August 28, 2018, plaintiff filed a “MOTION TO AMEND OPINION
AND ORDER” which cited Fed. R. Civ. P. 52(b).
On August 29, 2018,
the magistrate judge issued a report and recommendation concerning
that motion.
The magistrate judge concluded that plaintiff failed
to state grounds for relief under Rule 52(b). The magistrate judge
also analyzed plaintiff’s motion as a motion to alter or amend
judgment under Fed. R. Civ. P. 59(e) and a motion for relief from
judgment under Rule 60(b), and concluded that no basis for relief
had been shown under those rules.
The magistrate judge found no
reason to reconsider this court’s earlier decision and recommended
that the motion be denied.
The report and recommendation specifically advised the parties
that objections to the report and recommendation were due within
fourteen days, and that the failure to object to the report and
recommendation would result in a waiver of the right to de novo
review by the district judge and a waiver of the right to appeal
the judgment of the district court.
Doc. 10, p. 5.
The time
period for filing objections to the report and recommendation has
expired, and no objections to the report and recommendation have
been filed.
The court agrees with the report and recommendation (Doc. 10),
and it is hereby adopted.
Plaintiff’s motion (Doc. 9) to amend
this court’s opinion and order of August 16, 2018, is denied.
Plaintiff’s motion (Doc. 1) for leave to proceed in forma pauperis
is denied as moot.
Date: September 20, 2018
s/James L. Graham
James L. Graham
United States District Judge
2
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