Opinion
Case No. 1:16-cv-793
11-01-2018
JONATHAN T. THOMAS, Plaintiff, v. RON ERDOS, et al., Defendants.
Black, J.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), brings this pro se action under 42 U.S.C. § 1983 for violations of his civil rights against defendants J. Cool, Christopher Combs, Richard Dawsen II, Garth Fri, Stephen Hale, Ryan Hutchinson, Linnea Mahlman, Merlin Miller, Jeremy Oppy, Brian Noland, Officer Irvin and Officer Scott. On March 30, 2018, the undersigned issued a Report and Recommendation recommending that defendants' motion to dismiss plaintiff's claims against defendants Irvin and Scott for lack of service and defendants' motion for summary judgment (Doc. 72) be granted. (Doc. 84). The undersigned recommended that plaintiff's claims against defendants Hale, Fri and Hutchinson related to the alleged April 2016 incidents be dismissed with prejudice and that the remaining claims against defendants Hale, Fri and Hutchinson and all claims against defendants Cool, Miller, Dawson, Mahlman and Oppy be dismissed without prejudice for failure to exhaust administrative remedies.
Defendant Noland's name is correctly spelled "Nolan" and defendant Dawsen's name is correctly spelled "Dawson." --------
This supplemental Report and Recommendation is issued to clarify that in accordance with the law and for the reasons set forth in the prior Report and Recommendation (Doc. 84), plaintiff's claims against defendants Combs and Nolan should also be dismissed without prejudice for failure to exhaust administrative remedies. Plaintiff did not file a grievance against Nolan during the relevant time period. See Doc. 72-4, Mahlman Decl., ¶¶ 20, 21. Nor did plaintiff exhaust any grievance against either defendant Combs or Nolan related to this lawsuit. Id., ¶ 22.A. Plaintiff filed a single grievance against Combs on July 26, 2018, which also named several other defendants (SOCF 7-16-000334), but plaintiff did not pursue the next step of the grievance process or exhaust his administrative remedies for the grievance before instituting this lawsuit two days later on July 28, 2018. See Id., ¶ 20, p. 6.
Accordingly, the Report and Recommendation (Doc. 84) is hereby SUPPLEMENTED as follows:
It is RECOMMENDED that summary judgment be GRANTED in favor of defendants Combs and Nolan and that plaintiff's claims against defendants Combs and Nolan be DISMISSED without prejudice for failure to exhaust administrative remedies.
Further, it is RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons any appeal of an Order of the Court adopting the Report and Recommendation as supplemented would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Date: 11/1/18
/s/_________
Karen L. Litkovitz
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).