Picklesimer v. Ohio Department of Corrections and Rehabilitation et al
Filing
13
ORDER ADOPTING the REPORT AND RECOMMENDATION 8 in that this case is DISMISSED without prejudice. Signed by Judge Gregory L Frost on 10/7/13. (sem1)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JIMMIE PICKLESIMER
Plaintiff,
Case No. 2:13-cv-728
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers
v.
OHIO DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,
Defendants.
ORDER
This matter is before the Court for consideration of the Magistrate Judge’s August 30,
2013 Initial Screen Report and Recommendation. (ECF No. 8.) In that filing, the Magistrate
Judge conducted an initial screen of Plaintiff’s Complaint as required by 28 U.S.C. §§
1915(e)(2) and 1915A and recommended that the Court dismiss this action for failure to assert
any claim with an arguable basis in law over which this Court has subject matter jurisdiction.
The Magistrate Judge explained that “Plaintiff has failed to sufficiently plead a claim arising
under the federal laws or the Constitution. Further, the Court lacks diversity jurisdiction to
adjudicate any of his state-law claims.” (ECF No. 8, at Page ID # 65.)
The Initial Screen Report and Recommendation also advised Plaintiff that a failure to
object within fourteen days would “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.” (Id. at Page
ID # 65-66.) Plaintiff never filed objections, but Plaintiff has filed an amended complaint. (ECF
No. 11.) The filing of the amended complaint fails to preclude the dismissal of this action.
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Moniz v. Hines, 92 F. App’x 208, 211-12 (6th Cir. 2004).
The Court has reviewed the Initial Screen Report and Recommendation. Noting that no
objections have been filed and that the time for filing such objections has expired, the Court
ADOPTS the Initial Report and Recommendation and DISMISSES Plaintiff’s case pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(h)(3) WITHOUT
PREJUDICE to filing the state-law tort claims in state court. The Clerk shall enter judgment
accordingly and terminate this case on the docket records of the United States District Court for
the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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