DePew v. Krisher

Full title: Rhett G. DePew, Plaintiff v. Dr. Gary Krisher, Defendant

Court: UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: Jan 9, 2013

Civil Action 2:12-cv-00250 (S.D. Ohio Jan. 9, 2013)

Opinion

Civil Action 2:12-cv-00250

01-09-2013

Rhett G. DePew, Plaintiff v. Dr. Gary Krisher, Defendant

Algenon L. Marbley

Judge Marbley

Magistrate Judge Abel

Plaintiff Rhett G. DePew, a state prisoner, brings this action alleging that defendant Dr. Gary Krisher was deliberately indifferent to his safety when he refused to give plaintiff a bottom bunk restriction. This matter is before the Court on plaintiff DePew's December 13, 2012 objections (doc. 32) to Magistrate Judge Abel's December 3, 2012 Report and Recommendation (doc. 30) that defendant Krisher's October 10, 2012 motion for judgment on the pleadings (doc. 25) be granted.

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B), the Court ADOPTS the Report and Recommendation and GRANTS defendant Krisher's October 10, 2012 motion for judgment on the pleadings (doc. 25).

Plaintiff's objections set out his medical treatment and argue that he has been denied medical treatment for serious medical needs and subjected to cruel and unusual punishment by Dr. Krisher. However, the objections do not contest the Magistrate Judge's finding that because he has been transferred to a new facility and is no longer under the care of defendant Dr. Krisher, his claim for injunctive relief is MOOT. See, e.g., Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). Nor does he contest the Magistrate Judge's finding that a prisoner has no liberty interest in remaining at a particular prison, Olim v. Wakinekona, 461 U.S. 238, 245 (1983), and that his transfer to a lesser security prison appeared to be a reasonable one that is consistent with ODRC's classifications of prisoners and its designation of the prisons where prisoners of similar security levels are held. Since the complaint seeks only injunctive relief and not money damages, (March 22, 2012 Complaint, p. 6, Doc. 2, PageID 7), plaintiff's claims against defendant Krisher are MOOT.

For the reasons set out above, defendant Krisher's October 10, 2012 motion for judgment on the pleadings (doc. 25) is GRANTED. Defendant Dr. Gary Krisher is hereby DISMISSED from this lawsuit. All other defendants named in the complaint were earlier dismissed by the Court's July 16, 2012 Order (doc. 17). Accordingly, the Clerk of Court is DIRECTED to enter JUDGMENT for defendants. This action is hereby DISMISSED.

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Algenon L. Marbley

United States District Judge