Finnell v. DeWine et al
Filing
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ORDER DENYING 12 Request for a Temporary Restraining Order and Preliminary Injunction; and 20 DENYING Motion for Leave to File for Leave to Cure Deficiency; and OVERRULLING Plaintiff's Objection 24 to the Report and Recommendation. The Cou rt ADOPTS and AFFIRMS both 14 and 22 Report and Recommendations. This case is dismissed. The Clerk is directed to terminate the case. Signed by Chief District Judge Sarah D. Morrison on 10/23/2024. (tb)(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
KYLE FINNELL,
Plaintiff,
:
Case No. 2:24-cv-55
Chief Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
Vascura
v.
GOVERNOR MIKE DEWINE,
et al.,
:
Defendants.
ORDER
This matter is before the Court on the Magistrate Judge’s Order and Report
and Recommendation issued on April 12, 2024 (April R&R, ECF No. 14) and Order
and Report and Recommendation issued on June 3, 2024 (June R&R, ECF No. 22).
Therein, the Magistrate Judge granted Plaintiff Kyle Finnell’s request to proceed in
forma pauperis (ECF No. 12-1) and recommended that the Court (1) dismiss Mr.
Finnell’s Amended Complaint (ECF No. 11) for failure to state a claim upon which
relief may be granted; (2) deny his request for a temporary restraining order and
preliminary injunction (ECF Nos. 1, 11, 12, 13); and (3) deny his Petition for Leave
to Cure Deficiency (ECF No. 20) as futile. Mr. Finnell timely filed an Objection to
the April R&R (ECF No. 24), but he did not submit objections to the June R&R.
For the reasons set forth below, the Court ADOPTS and AFFIRMS the April
R&R (ECF No. 14) and the June R&R (ECF No. 22). Mr. Finnell’s request for a
temporary restraining order and preliminary injunction (ECF Nos. 1, 11, 12, 13)
and Petition for Leave to Cure Deficiency (ECF No. 20) are DENIED, and this case
is DISMISSED. 1
I.
BACKGROUND
Mr. Finnell is an Ohio inmate proceeding without the assistance of counsel.
(ECF Nos. 1, 12-1.) He brings this action under 42 U.S.C. § 1983 against Governor
Mike DeWine, Lieutenant Governor Jon Husted, Annette Chambers-Smith
(Director of the Ohio Department of Rehabilitation and Correction (“ODRC”)), and
several officers at the London Correctional Institution. (ECF Nos. 1, 11.)
In his original Complaint, Mr. Finnell asserted numerous unrelated claims
arising from Defendants’ alleged (1) use of excessive force and deliberate
indifference to his resulting injuries; (2) deliberate indifference to the risk to his
health arising from forcing him to clean an area with excessive bird droppings; and
(3) confiscation of his “JPay” tablet. (ECF No. 1.) Though far from a model of clarity,
the Complaint appears to allege that corrections officers excessively sprayed Mr.
Finnell with a chemical agent in December 2021 and January 2022 and did not
provide him with medical treatment. (Id., PAGEID # 25–30, 44–48.) Additionally,
after experiencing chest pains while cleaning a room with bird droppings in
December 2021, Mr. Finnell was admitted to the hospital and diagnosed with lung
scarring. (Id., PAGEID # 23–24, 37–40.) Finally, beginning in September 2023, the
ODRC phased-out the use of JPay tablets, which Mr. Finnell used “to type and
structure Legal Litigation, an[d] only then transfer to word processor,” and he
The Motion for Leave for Introduction of Public Record filed by Mr. Finnell
on June 3, 2024 (ECF No. 21) is accordingly DENIED as moot.
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claims that he lost information as a result of the ODRC’s policy change. (Id.,
PAGEID # 64, 66.)
In conjunction with his Complaint, Mr. Finnell also moved for a preliminary
injunction and a temporary restraining order enjoining Defendants from forcing
inmates to clean animal waste without proper protective equipment and preventing
Defendants from destroying his JPay tablet. (ECF No. 1, PAGEID # 53–54.)
On April 1, 2024, Mr. Finnell sought leave to amend his Complaint (ECF No.
11), which the Magistrate Judge construed as his request to remove the excessive
force and deliberate indifference claims. (April R&R, PAGEID # 532.) The
Magistrate Judge granted leave to amend and performed an initial screen of his
Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2), resulting in her
recommendation that the Court dismiss his remaining allegations related to the
confiscation of his JPay tablet and deny his renewed request for a preliminary
injunction and temporary restraining order (ECF Nos. 11, 12, 13). (Id., PAGEID
# 539.)
Shortly after the Magistrate Judge issued the April R&R, Mr. Finnell filed a
Petition for Leave to Cure Deficiency (ECF No. 20), arguing that, contrary to the
Magistrate Judge’s construction, he did not intend to abandon the excessive force
and deliberate indifference claims in his original Complaint but rather meant his
Amended Complaint to supplement his initial allegations. (ECF No. 20, PAGEID
# 553, 555.) He also asserted further factual matter intended to bolster his JPay
claim. (Id., PAGEID # 560.) The Magistrate Judge construed Mr. Finnell’s Petition
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as a motion for leave to file a second amended complaint and denied the motion as
futile. (June R&R, PAGEID # 603, 607.)
Mr. Finnell timely objected to the April R&R. (ECF No. 24.) Although he was
allowed more time to object to the June R&R (ECF Nos. 25, 27), he did not file any
objections, despite being advised of his right to do so.
II.
STANDARD OF REVIEW
If 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).
III.
ANALYSIS
The Magistrate Judge construed the allegations in Mr. Finnell’s Amended
Complaint as asserting three claims related to his JPay tablet: (1) issuance of a
false conduct report; (2) deprivation of property without due process of law in
violation of the Fourteenth Amendment; and (3) violation of his First Amendment
right to access the courts. (April R&R, PAGEID # 534.) The Magistrate Judge
determined that none of these claims had merit. (Id.)
Mr. Finnell objects to the April R&R, arguing that he was not raising a false
conduct report claim but merely a due process claim. (ECF No. 24, PAGEID # 610.)
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He also contests the Magistrate Judge’s finding that he failed to state a due process
claim. 2 (Id., PAGEID # 614.) As to that claim, the Magistrate Judge concluded:
In this case, Plaintiff has failed to sufficiently plead that the postdeprivation tort remedies available to him under Ohio law are
inadequate to adjudicate his property-deprivation claim as required
under Parratt and Vicory. See Fox v. Van Oosterum, 176 F.3d 342, 349
(6th Cir. 1999) (citing Hudson, 468 U.S. at 534–36) (“State tort
remedies generally satisfy the post-deprivation process requirement of
the Due Process Clauses.”). Because Plaintiff’s Amended Complaint
provides insufficient factual content or context from which the Court
could reasonably infer that Ohio’s post-deprivation tort remedies are
inadequate to adjudicate his property-deprivation claim, it is
RECOMMENDED that the Court DISMISS this claim.
(April R&R, PAGEID # 536.)
The Court finds no error in the Magistrate Judge’s conclusions or reasoning.
As the Magistrate Judge correctly observed, in a § 1983 case involving allegations of
the deprivation of a property interest without procedural due process of law, the
plaintiff must plead and prove that state remedies for redressing the wrong are
inadequate. (April R&R, PAGEID # 536 (citing Vicory v. Walton, 721 F.2d 1062,
1065–66 (6th Cir. 1983)). If a plaintiff fails to do so, dismissal is appropriate. (Id.) In
this case, both Mr. Finnell’s Amended Complaint and Objection are silent as to the
issue of remedies under Ohio law. His attempt to use his Objection to relitigate his
claim is not well taken.
Mr. Finnell’s Objection does not address the Magistrate Judge’s findings
regarding his access-to-courts claim or his request for a preliminary injunction and
temporary restraining order. The Court makes a de novo determination only 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).
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Looking to the June R&R, Mr. Finnell was advised of his right to file
objections and of the consequences of failing to do so. (June R&R, PAGEID # 608.)
Although he sought two extensions of time to file objections (ECF Nos. 25, 27), he
failed to do so, and the deadline has passed.
IV.
CONCLUSION
Mr. Finnell’s Objection to the April R&R (ECF No. 24) is OVERRULLED.
The Court ADOPTS and AFFIRMS the April R&R (ECF No. 14) and the June
R&R (ECF No. 22). Mr. Finnell’s request for a temporary restraining order and
preliminary injunction (ECF Nos. 1, 11, 12, 13) and Petition for Leave to Cure
Deficiency (ECF No. 20) are DENIED, and this case is DISMISSED. The Clerk is
DIRECTED to TERMINATE this case from the docket of the United States
District Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
CHIEF UNITED STATES DISTRICT JUDGE
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