John D. Garland, Plaintiff-appellant, v. Mason County Fiscal Court; Roger Case, Mason County Jailer,defendants-appellees, 955 F.2d 44 (6th Cir. 1992)

Before MILBURN and RYAN, Circuit Judges, and ZATKOFF, District Judge.^* 

ORDER

John D. Garland, a Kentucky state prisoner, requests the appointment of counsel on appeal from the district court order dismissing without prejudice his complaint filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Garland brought suit against the Mason County Fiscal Court and the county jailer, seeking monetary and injunctive relief. He alleged that when he was held in the county jail on February 3, 1991, he was denied requested medical treatment for a fever, which resulted in permanent health problems. The magistrate judge recommended that the complaint be dismissed, as no claim was stated against the county fiscal court in the absence of a showing of a policy of denying medical care to pretrial detainees, and no claim was stated against the jailer on the grounds of respondeat superior. Garland filed objections, seeking to dismiss the jailer as a defendant and substitute the assistant deputy jailer, whom he alleged actually denied the requested medical care. The district court, after first noting that the objections were not timely filed, conducted a de novo review of the case, and adopted the magistrate judge's recommendation to dismiss, but without prejudice. On appeal, Garland continues to argue that he should have been permitted to amend his complaint to substitute the deputy jailer as a defendant.

Upon consideration, it is concluded that appeal in this case is not barred by the untimely filing of objections to the magistrate judge's report, because the objections were considered by the district court on the merits. See Patterson v. Mintzes, 717 F.2d 284, 286-88 (6th Cir. 1983). The district court should not have dismissed the complaint on the grounds that the wrong party had been sued where it was apparent from the record who the correct defendant was, see Berndt v. Tennessee, 796 F.2d 879, 882-83 (6th Cir. 1986). Because the dismissal was without prejudice, however, Garland retains the right to refile his complaint against the correct party. Accordingly, the request for counsel is denied and the dismissal without prejudice is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.