Fisk v. Dayton Police Department et al

Filing 7

DECISION AND ENTRY VACATING ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, 4 , ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATESCHIEF MAGISTRATE JUDGE OVINGTON 3 , AND OVERRULING PETITIONER'S OBJECTIONS TO THE CHIEF MAGISTRATE'S REPORT AND RECOMMENDATIONS, 5 . Signed by Judge Thomas M. Rose on 8-24-2016. (de)(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
WESTERN DIVISION AT DAYTON

Robert Fisk,
Plaintiff,
Case No. 3:16–cv–118
Judge Thomas M. Rose

v.

Dayton Police Department, et al.,
Defendant.

DECISION AND ENTRY VACATING ORDER ADOPTING THE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, (DOC. 4),
ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATES
CHIEF MAGISTRATE JUDGE OVINGTON (DOC. 3), AND
OVERRULING PETITIONER=S OBJECTIONS TO THE CHIEF
MAGISTRATE=S REPORT AND RECOMMENDATIONS, (DOC. 5).

This is a pro se action seeking to bring claims of constitutional violations under 42 U.S.C.
§ 1983. (Doc. 3). The matter was referred to Chief Magistrate Judge Sharon L. Ovington, who
issued a Report and Recommendation on June 24, 2016 recommending that this Court dismiss
several of the claims and order service on others. (Doc. 3). Under 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's
report and recommendation. The objections must be made “[w]ithin 14 days after being served
with a copy of the recommended disposition,” id.; see also 28 U.S.C. § 636(b)(1), plus an
additional three days when service is made pursuant to Federal Rule of Civil Procedure
5(b)(2)(C)–(F), see Fed. R. Civ. P. 6(d), for a total of 17 days. Service is complete upon mailing
to a party. Fed. R. Civ. P. 5(b)(2)(C). Objections were thus due July 11, 2016.

On July 13, 2016, having received no objections, this Court adopted the Magistrate Judge's
Report and Recommendation (Doc. 4). Later the same day, Petitioner filed his objections to the
Report and Recommendation (Doc. 5). The Sixth Circuit holds that a district court retains the
authority to consider objections to a magistrate's report, even if filed late. Vogel v. U.S. Office
Prods. Co., 258 F.3d 509, 515 (6th Cir. 2001); see also Hunger v. Leininger, 15 F.3d 664, 668 (7th
Cir.1994) (permitting a district court judge to decline review of late-filed objections only if the
filing is “egregiously late” and causes “prejudice” to the parties). See also Mabry v. Ameriquest
Mortgage Co., 2010 WL 3488678, at *1 (E.D. Mich. Aug. 31, 2010)
This Court therefore VACATES its order adopting the Magistrate Judge's Report and
Recommendation (Doc. 4) and will consider the merits of Plaintiff's objections to the Report and
Recommendation.
Pending before the Court are Plaintiff Robert Fisk=s Objections to the Chief Magistrate=s
Report and Recommendations. (Doc. 5). The Report and Recommendations of United States
Chief Magistrate Judge Sharon L. Ovington, (Doc. 3), recommends that the Court dismiss
Plaintiff’s claims against the Dayton Police Department, the Dayton Municipal Court, and
Magistrate Moorman with prejudice pursuant to 28 U.S.C. §1915(e)(2), but order that process be
effected on Plaintiff’s excessive force claim under the Fourth Amendment against Defendants
Officers Wombold and Cartte.
As required by 28 U.S.C. ' 636(b) and Federal Rule of Civil Procedure 72(b), the Court has
made a de novo review of the record in this case. Upon said review, the Court finds that Plaintiff=s
objections, (Doc. 5), to the Chief Magistrate Judge=s Report and Recommendations, (Doc. 3), are
not well taken and they are hereby OVERRULED. Wherefore, the Court ADOPTS IN FULL
the Chief Magistrate Judge=s Report and Recommendations. (Doc. 3). The order for the United

States Marshal’s Office to effect service upon Defendants Wombold and Cartte under Fed. R. Civ.
P. 4(c)(3) remains in effect.
DONE and ORDERED this Wednesday, August 24, 2016.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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