Opinion
2:23-cv-194
06-16-2023
JOHN MICHAEL CRUZ, Plaintiff, v. JAY FORSHEY, et al., Defendants.
KIMBERLY A. JOLSON, MAGISTRATE JUDGE
ORDER
SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE
Plaintiff John Cruz is an individual currently incarcerated at Noble Correction Institution (“NCI”) within the Ohio Department of Rehabilitation and Correction. Proceeding without assistance of counsel, Mr. Cruz filed the instant suit against NCI warden, Defendant Jay Forshey, and an unnamed defendant identified as the “Head of Medical Unit as NCI.” (Compl., ECF No. 1.) After performing an initial screen of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, the Magistrate Judge issued a Report and Recommendation construing the Complaint as bringing an official and individual capacity § 1983 claim of deliberate indifference to medical needs in violation of the Eighth Amendment to the United States Constitution. (ECF No. 6.) The Magistrate Judge recommended that the Court dismiss the § 1983 claim while granting leave to file an amended complaint so that Mr. Cruz can correct the deficiencies with his claim against Defendants in their individual capacities. (Id.) The Magistrate Judge further recommended that the Court certify that an appeal from this Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). (Id.)
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).
No objections have been filed and the time for doing so has passed. The Court thus ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation (ECF No. 6). For the reasons stated therein and because § 1983 does not provide a cause of action against states or state officials in their official capacities, Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989), Mr. Cruz's § 1983 claim is DISMISSED for failure to state a claim upon which relief can be granted. However, Mr. Cruz is granted leave to file an amended complaint within THIRTY DAYS of this Order so that he may address deficiencies identified by the Magistrate Judge and proceed with his claim against Defendants in their individual capacities.
If Mr. Cruz does not timely amend his complaint or seek an extension of time to amend, the Clerk is DIRECTED to TERMINATE this case on the docket.
Finally, the Court CERTIFIES to the Sixth Circuit that an appeal of this Order would not be taken in good faith and should not be permitted to proceed in forma pauperis.
In addition, Mr. Cruz has waived the right to appeal by failing to file objections. See, e.g., Pfahler v. Nat'l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that failure to object to the magistrate judge's recommendations constituted a waiver of ability to appeal the district court's ruling).
IT IS SO ORDERED.