Opinion
Civil Action 2:15-cv-815
03-26-2015
KEITH A. KELLY, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, BUREAU OF RECORDS, OPERATION SUPPORT CENTER, Defendant.
Judge Smith
REPORT AND RECOMMENDATION
Plaintiff, a former Ohio inmate who is currently detained in the Cook County Jail, brings this civil rights action under 42 U.S.C. § 1983, alleging that Ohio officials lost or mishandled plaintiff's paperwork under the Interstate Agreement on Detainers, resulting in his improper transfer to Illinois. The Complaint names only the Ohio Department of Rehabilitation and Correction as a defendant and seeks only monetary damages. This matter is now before the Court for the initial screen of the Complaint required by 28 U.S.C. § 1915(e), 1915A.
The Ohio Department of Rehabilitation and Correction is a state agency and, as such, is absolutely immune from claims such as this 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 (6 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). Plaintiff's claim cannot proceed against this defendant.
It is therefore RECOMMENDED that this action be dismissed for lack of subject jurisdiction and for failure to state a claim upon which relief can be granted.
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)).
s/Norah McCann King
Norah MCann King
United States Magistrate Judge
March 26, 2015