Gallagher v. Evans et al, No. 2:2015cv03081 - Document 17 (S.D. Ohio 2016)

Court Description: OPINION and ORDER adopting 15 the Report and Recommendation; denying 10 and 12 Plaintiff's Motions to Dismiss; granting 9 Defendants' Motion to Dismiss. Signed by Judge Michael H. Watson on 8/17/16. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Download PDF
Gallagher v. Evans et al Doc. 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Robert A. Gallagher, Plaintiff, Case No. 2:15-cv-3081 V. Judge Michael H. Watson Dr. D. Evans, et al., Magistrate Judge Kemp Defendants. OPINION AND ORDER Plaintiff, a current inmate, brings the instant action attempting to assert what the Magistrate Judge has construed as a 42 U.S.C. § 1983 claim for violation of PlaintifTs Eighth Amendment rights. Defendants moved to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6), EOF No. 9. Plaintiff, proceeding pro se, filed a motion requesting default judgment against Defendants, EOF No. 10, and moved to dismiss Defendants' motion to dismiss. EOF No. 12. The Magistrate Judge issued a Report and Recommendation ("R&R") recommending the Court grant Defendants' motion to dismiss and deny Plaintiffs motions. ECF No. 15. Thereafter, Plaintiff filed a motion in which he appeared to again request default judgment against Defendant Edd Kassofs. ECF No. 16. The Court construes this motion as an objection to the R&R. Dockets.Justia.com Upon objection by a party, the district court must modify or set aside any portion of a Magistrate Judge's non-dispositive pretrial order that is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). A finding of fact is clearly erroneous where it is against the clear weight of the evidence or where the court is of the definite and firm conviction that a mistake has been made. Graff v. Havernill N. Coke Co., No. 1:09-cv-670, 2011 WL 1598760, at *2 (S.D. Ohio Apr. 28, 2011). A conclusion of law is contrary to law if the magistrate has misinterpreted or misapplied applicable law. Id. Here, Plaintiff objects only to the Magistrate Judge's recommendation regarding Plaintiffs request for default judgment. Plaintiff had moved for default judgment against Defendants based on their alleged failure to timely answer Plaintiffs complaint. The Magistrate Judge recommended denying Plaintiffs motion with respect to all Defendants. As to Mr. Kassofs specifically, the Magistrate Judge noted that Plaintiff never perfected service on Mr. Kassofs. In his objection. Plaintiff states that he attached to his motion for default judgment proof of service on Mr. Kassoffs. He asks the Court to "check" that proof and enter default judgment against Mr. Kassofs for failure to timely answer the complaint. The attachments to Plaintiffs motion for default judgment show that the United States Marshals Service sent, and The Ohio State University Medical Center received. Plaintiffs service documents. ECF No. 10 at PAGEID ## 52- 53. As the Magistrate Judge noted, however, service was ultimately refused Case No. 2:15-cv-3081 Page 2 of 3 because there is no record of an individual by the name of Edd Kassofs who works or worked for The Ohio State University Medical Center. R&R 2, EOF No. 15; Summons Returned Unexecuted, EOF No. 6. The Magistrate Judge therefore did not err in denying Plaintiffs motion for default judgment against Mr. Kassofs on the ground that Plaintiff failed to perfect service. Accordingly, the Court OVERRULES Plaintiffs objection, and the R&R is ADOPTED. Plaintiffs motions, ECF Nos. 10 & 12, are DENIED, and Defendants' motion to dismiss is GRANTED. The clerk shall terminate the case. IT IS SO ORDERED. IICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:15-cv-3081 Page 3 of 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.