1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFERY A. JOHNSON, 

 

 Plaintiff, 

 v. Civil Action 2:13-cv-0025 

 Judge Watson 

 Magistrate Judge King 

MUSKINGUM CO. SHERIFF’S 

DEPARTMENT, et al., 

 Defendants. 

OPINION AND ORDER 

 This matter is before the Court on plaintiff’s request for leave 

to amend the complaint, ECF 82, and the motion to strike plaintiff’s 

objection to the Report and Recommendation, ECF 76, and memorandum in 

opposition to plaintiff’s request for leave to amend the complaint 

filed on behalf of defendants Anthony Koury, D.O., and Shane Love, 

L.P.N. ECF 83. Plaintiff has not responded to the motion to strike 

nor has he filed a reply in support of his request for leave to amend 

the complaint. 

 On May 5, 2014, the undersigned issued a Report and 

Recommendation recommending that the motion for summary judgment filed 

by defendants Khoury and Love (collectively, “the Medical Defendants”) 

be granted. ECF 76. The Report and Recommendation specifically 

advised the parties of their right to file an objection within 

fourteen (14) days of the recommended decision. Id. at 14. In light 

of Rule 6(d) of the Federal Rules of Civil Procedure, objections to 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 1 of 6 PAGEID #: <pageID>
2 

that Report and Recommendation were therefore due no later than May 

22, 2014. 

 On May 13, 2014, the undersigned issued a second Report and 

Recommendation, recommending that the Muskingum County Defendants’ 

motion for summary judgment be granted. ECF 78. Again, the parties 

were specifically advised of their right to object to the recommended 

decision within fourteen (14) days. Id. at 14-15. 

 On May 28, 2014, plaintiff moved for an extension of time - until 

June 15, 2014 - to respond to “the Report and Recommendation of 

5/13/14.” ECF 80. The Court granted that motion and gave plaintiff 

until June 15, 2014, “in which to file objections to the Report and 

Recommendation (Doc. No. 78)[.]” Order, ECF 81. 

 On June 3, 2014, plaintiff filed a document entitled “Objection 

to the Report and Recommendation of 5/13/14.” ECF 82.1

 However, that 

document addressed not only the May 13, 2014 Report and 

Recommendation, ECF 78, and the Muskingum County Defendants’ motion 

for summary judgment, but also the May 5, 2014 Report and 

Recommendation, ECF 76, and the Medical Defendants’ motion for summary 

judgment. ECF 82, p. 2. Plaintiff also argues that the Court should 

permit him to amend his complaint in order to transform this action 

into one brought under “[Section] 1985” because the Court is “without 

lawful jurisdiction of this 1983 action” and because Fed. R. Civ. P. 

56 “is of no meaning without state or federal substantive law first 

being invoked by a citizen, [United States v.] Patterson, [150 U.S. 

65, 68 (1893).]” Id. at 1-2 (citing Fed. R. Civ. P. 17). 

 

1 Plaintiff signed that document on “May 29, 2014.” ECF 82, p. 2. 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 2 of 6 PAGEID #: <pageID>
3 

The Medical Defendants have moved to strike plaintiff’s 

objection, ECF 82, to the extent that it includes objections to the 

May 5, 2014 Report and Recommendation, ECF 76. ECF 83. The Medical 

Defendants contend that plaintiff’s objections in this regard are 

untimely. Id. at 2-3. Plaintiff has not responded to the motion to 

strike. 

The Medical Defendants’ arguments are well-taken. As noted, 

objections to the May 5, 2014 Report and Recommendation, ECF 76, were 

due by May 22, 2014. Plaintiff was “specifically advised that the 

failure to object to the Report and Recommendation will result in 

waiver of the right to de novo review by the District Judge and of the 

right to appeal the decision of the District Court adopting the Report 

and Recommendation.” ECF 76, p. 14 (citing Thomas v. Arn, 474 U.S. 

140 (1985); Smith v. Detroit Fed’n of Teachers, Local 231 etc., 829 

F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th 

Cir. 1981)). Accordingly, to the extent that the Medical Defendants 

ask that the Court disregard plaintiff’s objection, ECF 82, as to the 

May 5, 2014 Report and Recommendation, ECF 76, that request is welltaken. 

The Medical Defendants also ask that the Court deny plaintiff’s 

request for leave to amend his complaint to assert claims under 42 

U.S.C. § 1985, arguing that plaintiff’s request was not filed as a 

separate motion stating with particularity the grounds for amending 

pursuant to Fed. R. Civ. P. 15(a);in any event, these defendants 

argue, plaintiff’s request for leave to amend is futile. ECF 83, pp. 

3-4. 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 3 of 6 PAGEID #: <pageID>
4 

This Court agrees that plaintiff’s request for leave to amend the 

complaint is without merit. First, plaintiff’s request for leave to 

amend is untimely. On March 1, 2013, the Court established a deadline 

of June 1, 2013, in which to amend the pleadings. Order, ECF 16, p. 

1. “A schedule may be modified only for good cause and with the 

judge’s consent.” Fed. R. Civ. P. 16(b)(4). “‘The primary measure of 

Rule 16’s ‘good cause’ standard is the moving party’s diligence in 

attempting to meet the case management order’s requirements.’” Inge 

v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting 

Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)). “A 

district court should also consider possible prejudice to the party 

opposing the modification.” Andretti v. Borla Performance Indus., 

Inc., 426 F.3d 824, 830 (6th Cir. 2005) (citing Inge, 281 F.3d at 

625). The focus is, however, “primarily upon the diligence of the 

movant; the absence of prejudice to the opposing party is not 

equivalent to a showing of good cause.” Ortiz v. Karnes, 2:06-cv-562, 

2010 U.S. Dist. LEXIS 75287, 2010 WL 2991501, at *1 (S.D. Ohio July 

26, 2010) (citing Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 

1995)). Whether to grant leave under Rule 16(b) falls within the 

district court’s discretion. Leary v. Daeschner, 349 F.3d 888, 909 

(6th Cir. 2003). In the case presently before the Court, plaintiff 

was previously granted leave to amend the complaint. Order, ECF 31. 

Plaintiff has not explained why he was unable to include claims under 

42 U.S.C. § 1985 in the Amended Complaint, ECF 32. In waiting more 

than a year after the deadline to seek leave to further amend in order 

to add claims under Section 1985, and after the undersigned 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 4 of 6 PAGEID #: <pageID>
5 

recommended that summary judgment in favor of defendants be granted, 

plaintiff has not demonstrated the necessary diligence for modifying 

the case schedule. See, e.g., Inge, 281 F.3d at 625. 

Moreover, although Rule 15(a) of the Federal Rules of Civil 

Procedure provides that a “court should freely grant leave [to amend] 

when justice so requires[,]” see Fed. R. Civ. P. 15(a)(2), the grant 

or denial of a request to amend a complaint is left to the broad 

discretion of the trial court. Gen. Elec. Co. v. Sargent & Lundy, 916 

F.2d 1119, 1130 (6th Cir. 1990). A plaintiff’s proposed claim 

“requires more than labels and conclusions, and a formulaic recitation 

of the elements of a cause of action will not do.” Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must 

be enough to raise a right to relief above the speculative level . . . 

.” Id. A court must therefore dismiss a complaint – and deny leave 

to amend a complaint as futile - if the complaint does not plead 

“enough facts to state a claim to relief that is plausible on its 

face.” Id. at 570. 

Here, plaintiff has not filed a proposed amended complaint, and 

the Court has no basis upon which to even guess as to the facts and 

authority supporting plaintiff’s proposed amendment. See ECF 82. 

Plaintiff’s request for leave to further amend the complaint, 

unsupported by any facts, is without merit. See Twombly, 550 U.S. at 

555, 570. 

WHEREUPON, plaintiff’s request for leave to amend his complaint, 

ECF 82, is DENIED. Defendants Shane Love, L.P.N. and Anthony Khoury, 

D.O.’s Combined Motion to Strike Plaintiff’s Objection to Report and 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 5 of 6 PAGEID #: <pageID>
6 

Recommendation and Memorandum in Opposition to Plaintiff’s Request for 

Leave to Amend Complaint, ECF 83, is GRANTED to the extent that 

plaintiff’s objection, ECF 82, relates to the May 5, 2014 Report and 

Recommendation, ECF 76. Stated differently, the record reflects no 

objection to the May 5, 2014 Report and Recommendation, ECF 76. 

However, as it relates to the May 13, 2014 Report and Recommendation, 

ECF 78, plaintiff’s objection, ECF 82, remains for the District 

Judge’s consideration. 

July 30, 2014 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:13-cv-00025-MHW-NMK Doc #: 84 Filed: 07/30/14 Page: 6 of 6 PAGEID #: <pageID>