Sweeting v. Erdos, No. 1:2020cv00251 - Document 35 (S.D. Ohio 2021)

Court Description: DECISION AND ENTRY adopting the Report and Recommendation of the United States Magistrate Judge (Doc. 20 ). Signed by Judge Timothy S. Black on 9/3/2021. (rrs)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Sweeting v. Erdos Doc. 35 Case: 1:20-cv-00251-TSB-KLL Doc #: 35 Filed: 09/03/21 Page: 1 of 2 PAGEID #: 169 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DERRICK SWEETING, Plaintiff, vs. WARDEN ERDOS, Defendant. : : : : : : : : : Case No. 1:20-cv-251 Judge Timothy S. Black Magistrate Judge Karen L. Litkovitz DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 20) This case is before the Court pursuant to the Order of General Reference to United States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court and, on October 8, 2020, submitted a Report and Recommendations. (Doc. 20). Plaintiff submitted objections. 1 (Doc. 30). As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court finds that the Report and Recommendations should be and is hereby adopted in its entirety. 2 1 Plaintiff’s objections (and his other filings subsequent to his objections) do not demonstrate that any portion of the Magistrate Judge’s Report was in error. The objections are overruled. Plaintiff’s filings after his objections (Docs. 32, 33, 34) are denied as moot. 2 Some of the facts underlying Plaintiff’s complaint also appear to be at issue in Sweeting v. Erdos, et al., Case No. 1:20-cv-290 (S.D. Ohio) (Dlott, J.; Litkovitz, M.J.). On July 14, 2020, Defendant Erdos was dismissed from that action, after sua sponte review of the complaint. (Doc. 20.) On August 31, 2021, the Court granted the remaining Defendants’ motion for summary judgment and terminated that action. (Doc. 77). Dockets.Justia.com Case: 1:20-cv-00251-TSB-KLL Doc #: 35 Filed: 09/03/21 Page: 2 of 2 PAGEID #: 170 Accordingly, for the reasons stated above: 1. The Report and Recommendation (Doc. 20) is ADOPTED; 2. Plaintiff’s objections are OVERRULED; 3. Plaintiff’s motions filed after his objections (Doc. 32, 33, 34) are DENIED as moot; 4. To the extent the success of Plaintiff’s Fourteenth Amendment due process claim could affect his release date from prison, that claim is DISMISSED as Heck-barred WITHOUT PREJUDICE to refiling should Plaintiff show that his disciplinary conviction has been overturned. 5. To the extent Plaintiff’s Fourteenth Amendment due process claim is not Heck-barred, that claim, as well as Plaintiff’s other federal claims, are DISMISSED pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1). 6. To the extent Plaintiff claims the actions of Warden Erdos violate state law, the Court DECLINES TO EXERCISE PENDENT JURISDICTION over such claims because Plaintiff fails to state a viable federal law claim. See 28 U.S.C. § 1367(c)(3). 7. The Court CERTIFIES that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of this Order would not be taken in good faith, and Plaintiff is DENIED leave to appeal in forma pauperis. 8. The Clerk shall enter judgment accordingly, whereupon this case is TERMINATED from the docket of this Court. IT IS SO ORDERED. Date: 9/3/2021 s/Timothy S. Black Timothy S. Black United States District Judge 2

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