Shine-Johnson et al v. Mike Dewine et al

Filing 141

ORDER ADOPTING the Magistrate Judge's 137 REPORT AND RECOMMENDATIONS for 135 Motion to Dismiss for Failure to State a Claim filed by State of Ohio. Signed by Chief District Judge Sarah D. Morrison on 1/29/2025. (merc)(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
RICHARD WHITMAN,
:

Plaintiff,

Case No. 2:23-cv-3233
Chief Judge Sarah D. Morrison
Magistrate Judge Elizabeth A.
Preston Deavers

v.
MIKE DEWINE, et al.,

:

Defendants.
ORDER
Richard Whitman, an Ohio inmate proceeding pro se, alleges that the
Belmont Correctional Institution Warden violated Mr. Whitman’s Eighth
Amendment rights when he disregarded the health risk posed by COVID-19. (See
ECF Nos. 69, 98; see also Shine-Johnson v. DeWine, No. 2:20-cv-5919 (S.D. Ohio,
ECF No. 1 filed Nov. 16, 2020).) Mr. Whitman’s case has a long and complicated
procedural history. It is now before the Court for a decision on whether Mr.
Whitman should be allowed to proceed. But because he has failed to comply with
the Federal Rules of Civil Procedure, this Court’s Local Rules, and this Court’s
orders, his case must be DISMISSED.
Mr. Whitman’s claim was severed from the original multi-plaintiff case on
October 2, 2023. (ECF No. 133.) Though service should have been effectuated in
early-2024, see Fed. R. Civ. P. 4(m), it appeared by May 9, that Mr. Whitman still
had not served the defendants. Seeing this, the Magistrate Judge directed Mr.

Whitman to file a service copy of the Amendment Complaint, a summons forms, and
a USM-285 form by June 8. (ECF No. 134.) Mr. Whitman did not.
On June 11, 2024, the State of Ohio filed a Motion to Dismiss Mr. Whitman’s
claim as factually frivolous. (ECF No. 135.) Three more months passed with no word
from Mr. Whitman. So, on September 12, 2024, the Magistrate Judge ordered Mr.
Whitman to show cause why he should be permitted to file a late response in
opposition to the State’s motion. (ECF No. 136.) Mr. Whitman was warned that
failure to comply could result in his claims being dismissed. (Id.)
Finally, on October 10, 2024, the Magistrate Judge issued a Report and
Recommendation recommending that Mr. Whitman’s claims be dismissed because
he “failed to effectuate service on the remaining Defendants, respond to Interested
Party State of Ohio’s Motion to Dismiss, and comply with the Court’s Show Cause
Order[.]” (ECF No. 137.) Mr. Whitman objected, attaching a response in opposition
to the State’s Motion to Dismiss. (ECF Nos. 138, 139.)
If a party objects 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).
In a Declaration attached to his objections, Mr. Whitman states that he did
respond to the Motion to Dismiss but does not know why the response was not
received by the Court. (ECF No. 138.) He does not explain why he took no action in
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the months between June and October 2024, when his filing failed to appear on the
docket. Mr. Whitman also states that he never received the Court’s show cause
order.1 (Id.) And in his response to the State’s Motion to Dismiss, Mr. Whitman asks
to be excused from the Federal Rules’ service requirements.2 (ECF No. 139.) He
cites no authority that would support or even allow the Court to exempt him from
the Rules’ obligations. Indeed, even pro se litigants must “adher[e] to the
requirements of the Federal Rules of Civil Procedure [and] the Local Rules for this
District.” Benzaoual v. OhioHealth Corp., No. 2:19-CV-3366, 2021 WL 2712174, at
*3 (S.D. Ohio July 1, 2021) (Marbley, J.) (internal citation omitted).
Accordingly, Mr. Whitman’s Objection is OVERRULED. The Court
ADOPTS the analysis in the Report and Recommendation, but MODIFIES its
conclusion to provide that dismissal is warranted under Rule 41(b) and that the
State’s Motion to Dismiss (ECF No. 135) is DENIED as moot.3 Mr. Whitman’s
claims are DISMISSED. The Clerk is DIRECTED to TERMINATE this case.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

1 The Order was never returned to the Court as undeliverable or otherwise.
2 Mr. Whitman asks instead that the service effectuated by his former co-

plaintiff, Joseph Shine-Johnson, “be considered as served on the defendants in this
case as well[.]” (Id., PAGEID # 1458.) Mr. Shine-Johnson’s case was recently
dismissed for failure to effectuate service, among other reasons. (See Shine-Johnson
v. DeWine, No. 2:20-cv-5919 (S.D. Ohio, ECF No. 164 filed on Jan. 14, 2025).) The
request is ineffective for this reason, if for no other.
3 This modification is consistent with the analysis within the Report and
Recommendation, which discusses Rule 41(b) and Mr. Whitman’s failure to comply
with applicable rules and orders.
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