Opinion
Case No. 2:15-cv-1257
04-16-2015
DARRELL WHITE, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant.
Judge Smith
REPORT AND RECOMMENDATION
Plaintiff, a state inmate, seeks to bring a civil action against the defendant state agency without prepayment of fees or costs. This matter is now before the Court for the initial screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A. For the reasons that follow, it is recommended that the action be dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.
The Complaint seeks monetary damages. The only defendant named in the Complaint is a state agency. The defendant is absolutely immune from suit in this Court by virtue of the Eleventh Amendment to the United States Constitution. See Beil v. Lake Erie Correction Records Dept., 282 Fed. Appx. 363, 2008 WL 2434738 (6th Cir. June 13, 2008). See also Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997) (Eleventh Amendment sovereign immunity applies not only to the states themselves but also to "state agents and instrumentalities"). Moreover, a state agency is not a "person" subject to suit under 42 U.S.C. §1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989).
It is therefore RECOMMENDED that the action be dismissed. It is FURTHER RECOMMENDED that any appeal from the judgment entered in this action would not be taken in good faith. See 28 U.S.C. § 1915(a).
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. 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 [the defendant's] ability to appeal the district court's ruling"); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that defendant waived appeal of district court's denial of pretrial motion by failing to timely object to magistrate judge's report and recommendation). Even when timely objections are filed, appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) ("[A] general objection to a magistrate judge's report, which fails to specify the issues of contention, does not suffice to preserve an issue for appeal . . . .") (citation omitted)).
April 16, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge