Borders v. Lappin et al, No. 4:2011cv01514 - Document 52 (N.D. Ohio 2013)
Court Description: Memorandum of Opinion and Order For the reasons set forth herein, the Court adopts the Report and Recommendation (ECF No. 51 ). Plaintiff's individual capacity Bivens claims are dismissed without prejudice, and his official capacity Bivens claims are dismissed with prejudice. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 11/27/2013. (JLG)
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Borders v. Lappin et al Doc. 52 PEARSON, J. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION JOSEPH MATTEW BORDERS, Plaintiff, v. HARLEY J. LAPPIN, et al., Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 4:11cv1514 JUDGE BENITA Y. PEARSON MEMORANDUM OF OPINION AND ORDER [Regarding ECF No. 51] On November 6, 2013, Magistrate Judge George J. Limbert issued a Report (“R&R”) recommending that the motion to dismiss filed by Defendant Gary Bullock (ECF No. 47) be granted, thereby dismissing pro se Plaintiff’s individual capacity Bivens claims without prejudice for failure to exhaust administrative remedies and dismissing the official capacity Bivens claims with prejudice based upon sovereign immunity. The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of a report and recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1)(C). Parties must file any objections to a report and recommendation within 14 days of service. Id.; Fed. R. Civ. Pro. 72(b)(2). Failure to object within this time waives a party’s right to appeal the district court’s judgment. Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Absent objection, a district court may adopt a magistrate judge’s report without review. See Thomas, 474 U.S. at 149. In the instant case, objections to the R&R were due by November 23, 2013. Plaintiff has Dockets.Justia.com (4:11cv1514) not filed an objection. The Court finds that the R&R is supported by the record, and agrees with the magistrate judge’s recommendation. Accordingly, the Court adopts the R&R (ECF No. 51). Plaintiff’s individual capacity Bivens claims are dismissed without prejudice, and his official capacity Bivens claims are dismissed with prejudice. Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED. November 27, 2013 Date /s/ Benita Y. Pearson Benita Y. Pearson United States District Judge 2
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