Riley v. Picciano et al
Filing
6
ORDER and REPORT AND RECOMMENDATION re 2 Complaint: The Court concludes that Plaintiff may proceed with this action against Defendants Picciano, Brooks & McAfee. The Court again RECOMMENDS that Plaintiff's claims be DISMISSED as to Defendants' Gillison and Oldham. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/11/2013. (er1)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL K. RILEY,
Plaintiff,
Civil Action 2:13-CV-00911
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
v.
CYNTHIA PICCIANO, et al.,
Defendants.
ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Plaintiff’s Objections to the Report
and Recommendation of the Magistrate Judge. (ECF No. 5.) Plaintiff’s objections clarify the
allegations he purports to make in his Complaint. Specifically, it appears from his objections
that he alleges in his Complaint a failure to make reasonable accommodation and retaliation
under the Americans with Disabilities Act, 42 U.S.C. §§ 1210 et seq. Although the Court makes
no determination as to the merits of Plaintiff’s allegations, or as to whether his Complaint may
withstand a Motion to Dismiss, in light of this clarification the September 23, 2013 Report and
Recommendation of the Magistrate Judge is RECOMMITTED for further screening of
Plaintiff’s Complaint pursuant to 28 U.S.C. § 636(b)(1)(c). (ECF No. 3.) Upon reconsideration,
the Clerk is DIRECTED to remove the Report and Recommendation from the Court’s pending
motions list.
Having conducted another initial screen of the Complaint together with Plaintiff’s
objections, pursuant to 42 U.S.C. §§ 1915(e)(2), the Court concludes that Plaintiff may proceed
with this action at this time against Defendants Cynthia Picciano, Kevin Brooks, and Jerry
McAfee. The United States Marshal is DIRECTED to serve by certified mail upon these
Defendants a summons, a copy of the Complaint, a copy of Plaintiff’s Objection, and a copy of
this Order.
As to Defendants Alesia Gillison and Maurice Oldham, the Court again
RECOMMENDS that Plaintiff’s claims be dismissed under 42 U.S.C. § 1915(e). Plaintiff has
failed to state a claim for relief against these Defendants, alleging only that they attended a
hearing at which Plaintiff received a three day suspension. (ECF No. 5 at 2.) This single factual
statement does not suffice to state any cognizable claim over which this Court would have
jurisdiction. Accordingly, it is RECOMMENDED that Plaintiff’s claims against Defendants
Alesia Gillison and Maurice Oldham be DISMISSED under 42 U.S.C. § 1915(e).
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 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.
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
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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)).
IT IS SO ORDERED.
Date: October 11, 2013
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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