Pough v. DeWine et al, No. 2:2021cv00880 - Document 29 (S.D. Ohio 2021)

Court Description: OPINION and ORDER granting in part and denying in part 11 Motion to Amend/Correct; adopting 19 the Report and Recommendation; denying as moot 28 Motion to Clarify. Signed by Judge Michael H. Watson on 9/14/2021. (jk) (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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Pough v. DeWine et al Doc. 29 Case: 2:21-cv-00880-MHW-EPD Doc #: 29 Filed: 09/14/21 Page: 1 of 3 PAGEID #: 327 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION Lance Rough, Plaintiff, Case No.2:21-cv-880 V. Judge Michael H. Watson Mike DeWlne, et ai. Magistrate Judge Jolson Defendants. OPINION AND ORDER This is a prisoner civil rights case in which Plaintiff proceeds pro se and in forma pauperis. Plaintiff moved for leave to file a third amended complaint, Mot., EOF No. 11, which Magistrate Judge Deavers properly construed as one for leave to file a second amended complaint. Order and R&R, EOF No. 19. Magistrate Judge Deavers issued an Order and Report and Recommendation("R&R")regarding PiaintifFs motion. Order and R&R, EOF No. 19. She granted Plaintiff leave to file his Second Amended Complaint, but, upon initial screen under 28 U.S.C.§ 1915(e), she recommended the Court dismiss in part some of the claims therein. R&R, ECF No. 19. Specifically, the R&R recommended the Court dismiss PiaintifFs claims against the Ohio Parole Authority because that entity is immune from suit as an arm of the State of Ohio. Id. at 4. Moreover, the R&R recommended dismissing PiaintifFs claims against Governor Mike DeWine("Governor DeWine") because the Second Amended Dockets.Justia.com Case: 2:21-cv-00880-MHW-EPD Doc #: 29 Filed: 09/14/21 Page: 2 of 3 PAGEID #: 328 Complaint falls to allege any personal involvement by Governor DeWine. Id. at 5-6. Similarly, the R&R recommended dismissing PlaintifTs claims against JoEllen Smith because the allegations in the Second Amended Complaint fail to allege any personal involvement and therefore do not state a claim against her. Id. at 6-7. On the other hand, the R&R recommended permitting Plaintiffs additional Equal Protection and Substantive Due Process claims against the individual Parole Board members to proceed. Id. at 7. Magistrate Judge Deavers thereafter advised the parties of their right to object to the Order and R&R and of the consequences of failing to do so. Order, EOF No. 22. The parties were specifically advised that the failure to object to the R&R would result in a waiver of the right to de novo review by the Undersigned as well as a right to appeal the decision of the Undersigned adopting the R&R. Id. Furthermore, the notice advised the parties that appellate review of issues addressed in the R&R but not specifically addressed in any objection thereto is waived. Id. Plaintiff timely objected. Obj., EOF No. 25. The R&R was issued pursuant to Federal Rule of Civil Procedure 72(b). Under that rule, the Undersigned must determine de novo any part of the Magistrate Judge's disposition that has been properly objected to. Fed. R. Civ. P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id. Case: 2:21-cv-00880-MHW-EPD Doc #: 29 Filed: 09/14/21 Page: 3 of 3 PAGEID #: 329 Plaintiff objects only that the R&R references the incorrect date of filing of this case. Obj. 2, ECF No. 25. Plaintiff contends that he signed and dated the original Complaint and placed it in the prison mailbox on approximately January 20, 2021, not on March 1, 2021, which is the date referenced in the R&R. Obj. 2, ECF No. 25. This objection is overruled as irrelevant. The R&R's reference to this action being commenced on March 1, 2021, which is the date reflected on the docket, has no bearing on whether the Court should dismiss in part the claims contained within the Second Amended Complaint. Plaintiff's motion to clarify, ECF No. 28, is DENIED AS MOOT. Magistrate Judge Deavers will issue another Order concerning service of process for Plaintiff's Second Amended Complaint. Accordingly, Plaintiff's objection is OVERRULED,and the R&R is ADOPTED. Plaintiffs claims against the Ohio Parole Board. Governor DeWine, and JoEllen Smith are DISMISSED. Plaintiff is permitted to proceed with the remaining claims in the Second Amended Complaint. The Clerk shall terminate ECF Nos. 11,19, and 28 as pending motions. IT IS SO ORDERED. MICHAEL H. WATSON,JUDGE UNITED STATES DISTRICT COURT

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