Opinion
Case No. 1:20-cv-595
03-23-2021
ANTONIO COLSON, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Defendant.
Magistrate Judge Bowman ORDER
This cause comes before the Court on the Magistrate Judge's September 30, 2020, Report and Recommendation ("R&R") (Doc. 5). The Magistrate Judge recommends that the Court DISMISS with prejudice the Plaintiff's 42 U.S.C. § 1983 claim because the sole named defendant, the Ohio Department of Rehabilitation and Corrections ("ODRC"), is not a "person" acting under color of state law. Moreover, as a state agency, it is immune from suit under the Eleventh Amendment.
The R&R advised both parties that a failure to object within the 14 days specified by the R&R may result in forfeiture of rights on appeal, which includes the right to District Court review. (R&R at #52). See also Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting § 636(b)(1)(C), intended to require a district judge to review a magistrate's report to which no objections are filed."); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (noting "fail[ure] to file an objection to the magistrate judge's R & R ... is forfeiture"); 28 U.S.C. § 636(b)(1)(C). The time for filing objections has long since passed, and none have been filed.
Therefore, the Court ADOPTS the Report and Recommendation (Doc. 5) and DISMISSES the Plaintiff's Complaint WITH PREJUDICE. In doing so, however, the Court notes that, while this determination precludes Colson from suing ODRC on these facts, Colson remains free to file a new case against an appropriate defendant if he can identify one. See Sullivan v. Chappius, 711 F. Supp. 2d 279, 283-84 (W.D.N.Y. 2010) (noting that employees of state agencies are typically not in privity with their agency employer for res judicata purposes). The Court further ADOPTS the recommendation that Colson's motion for appointment of counsel (Doc. 2) be DENIED as moot. As reasonable jurists could not disagree with these conclusions, Colson is denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous. The Court DIRECTS the Clerk to enter judgment accordingly.
SO ORDERED. March 23, 2021
DATE
/s/ _________
DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE