UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HOWARD BODDIE, JR.,

Plaintiff,

 Civil Action 2:18-cv-505

v. Judge James L. Graham

 Magistrate Judge Chelsey M. Vascura

CHARLOTTE JENKINS, et al.,

Defendants.

ORDER 

This matter is before the Court for consideration of Plaintiff’s Notice of Appeal (ECF No. 

9) and his request to appeal in forma pauperis. (ECF No. 10.) The Court permitted Plaintiff to 

proceed in forma pauperis in the instant action. (See ECF No. 4.) By this Motion, Plaintiff 

seeks to proceed in forma pauperis on appeal. Federal Rule of Appellate Procedure 24(a)(3)(A) 

provides in relevant part that: 

A party who was permitted to proceed in forma pauperis in the district-court action 

. . . may proceed on appeal in forma pauperis without further authorization unless: 

(A) the district court--before or after the notice of appeal is filed--

certifies that the appeal is not taken in good faith or finds that the 

party is not otherwise entitled to proceed in forma pauperis and 

states in writing its reasons for the certification or finding. 

Fed. R. App. P. 24(a)(3)(A). 

Although Plaintiff qualifies for in forma pauperis status from a financial standpoint, the 

Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal of this action would not 

be taken in good faith. The Court makes such certification because Plaintiff’s Complaint fails to 
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state a claim upon which relief could be granted. Specifically, Plaintiff’s claims are barred by 

the doctrine of res judicata and the statute of limitations. 

On June 4, 2018, Magistrate Judge Vascura issued a Report and Recommendation

recommending that the Court dismiss Plaintiff’s claims. (ECF No. 4.) In her Report and 

Recommendation, the Magistrate Judge concluded that many of Plaintiff’s claims were barred by 

the doctrine of res judicata, explaining as follows:

Plaintiff filed a nearly identical action in December 2014. See Boddie v. 

Higginbotham, 2:14-cv-2395 (the “2395 Case”). As in this case, in the 2395 Case, 

Plaintiff brought medical indifference claims under § 1983 against many of the 

same Defendants named in this action, including Defendants Ault, Higginbotham, 

Eddy, and Robinson, alleging that these individuals and others were failing to 

adequately treat his injuries and pain.

* * *

The Undersigned concludes that the doctrine of res judicata or claim 

preclusion operates to bar some of Plaintiff’s claims against Defendants. Under the 

doctrine of res judicata or claim preclusion, “a final judgment on the merits bars 

further claims by parties or their privies based on the same cause of action.” 

Montana v. U.S., 440 U.S. 147, 153 (1979). The United States Court of Appeals 

for the Sixth Circuit has instructed that res judicata requires proof of the following 

four elements: “(1) a final decision on the merits by a court of competent 

jurisdiction; (2) a subsequent action between the same parties or their privies; (3) 

an issue in the subsequent action which was litigated or which should have been 

litigated in the prior action; and (4) an identity of the causes of action.” Kane v. 

Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). “The purpose of res judicata 

is to promote the finality of judgments, and thereby increase certainty, discourage 

multiple litigation, and conserve judicial resources.” Westwood Chemical Co. v. 

Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981).

In the instant action, Plaintiff appears to reassert the same claims, causes of 

action, and injuries arising out of the same facts that he alleged in the 2395 case. 

More specifically, in this case, as in the 2395 Case, Plaintiff alleges that CCI prison 

employees ignored his complaints of pain and failed to adequately provide medical 

treatment and cites incidents occurring in 2011. To the extent Plaintiff is attempting 

to bring those claims that were dismissed in the 2395 Case, it is RECOMMEDED 

that the Court dismiss those claims as barred by the doctrine of res judicata.
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(Id. at 4-5, 7-8.)

With respect to Plaintiff’s claims that were not barred by the doctrine of res judicata, the 

Magistrate Judge found that the statute of limitations governing 42 U.S.C. § 1983 actions had 

lapsed, explaining as follows: 

. . . Ohio Revised Code § 2305.10 sets forth a two-year statute of limitations for 42 

U.S.C. § 1983 claims. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989). 

That statute of limitations begins to run on 42 U.S.C. § 1983 claims when the 

plaintiff knows or has reason to know of the injury that is the basis of the action. 

Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005).

Plaintiff filed the instant action on May 22, 2018. Thus, claims premised 

upon events occurring prior to May 22, 2016, would generally be time-barred.

According to his Complaint, Plaintiff was released on May 26, 2016, just four days 

after the expiration of the statute of limitations. His Complaint sets forth no 

allegations identifying incidents that occurred during this four-day window. To the 

contrary, the incidents upon which Plaintiff seeks to rely to assert his medical 

indifference claims appear to have taken place in 2011. Moreover, Plaintiff’s own 

allegations that he utilized the prison’s grievance procedure, spoke with the warden, 

and wrote a letter to Dr. Eddy demonstrate that he knew of the injuries that form 

the basis this action well in advance of May 22, 2016.

That after his release Plaintiff was diagnosed with conditions different than 

or in addition to the diagnoses he received from doctors while he was in prison does 

not salvage his untimely medical indifference claims because a difference of 

opinion over the appropriate treatment or diagnosis is insufficient to state a claim 

of deliberate indifference under the Eighth Amendment. See, e.g., Hix v. Tenn. 

Dep’t of Corrs., 196 F. App’x 350, 357 (6th Cir. 2006); Apanovitch v. Wilkinson, 

32 F. App’x 704, 707 (6th Cir. 2002); Durham v. Nu’Man, 97 F.3d 862, 868-69 

(6th Cir. 1996).

Moreover, the Magistrate Judge found that Plaintiff’s arguments that the statute of 

limitations had been tolled, or did not apply due to the doctrine of continuing violations, were 

without merit. As the Magistrate Judge explained:

[T]he continuing violations doctrine likewise fails to save Plaintiff’s 

otherwise untimely claims. . . . Plaintiff’s allegation that he did not obtain adequate 

medical care until he left prison is insufficient to invoke the continuing violation 

doctrine’s narrow exception to the general rule that a statute of limitations begins 
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to run at the time the alleged misconduct occurred. (See The 2395 Case, Sept. 17, 

2015 Report & Rec. 7-9, ECF No. 26 (citing Sharpe, 319 F.3d at 266-67).)

Finally, none of the Ohio statutes Plaintiff cites in support of his assertion 

that his claims are not time barred apply to this case. See Ohio Rev. Code § 

2305.09(B) (relating to the recovery of personal property); Ohio Rev. Code § 

2305.10(B) (relating to exposure to hazardous or toxic chemicals, ethical drugs, or 

ethical medical devices); Ohio Rev. Code § 2305.11(B) (relating to a civil action 

for unlawful abortion); Ohio Rev. Code § 2305.113(B) (extending the one-year 

limitations period set forth in prior subsection by 180 days when certain notice 

requirements are satisfied); and Ohio Rev. Code § 2305.14(B) (providing a 10-year 

statute of limitations for actions not provided for in §§ 2305.04 through 2305.131 

and § 1304.35).

(Id. at 8-9.)

On June 19, 2018, Plaintiff objected to the Magistrate Judge’s Report and 

Recommendation. (Objs., ECF No. 6.) The Court overruled Plaintiff’s objections and adopted 

the Report and Recommendation, explaining that “[t]he [C]ourt agrees with the analysis of the 

magistrate judge.” (June 15 Order at 4, ECF No. 7.) In addition, the Court declined to consider 

new exhibits submitted with Plaintiff’s objections, explaining as follows:

With his objection, plaintiff submitted new exhibits consisting of medical 

records relating to his treatment following his release from incarceration and the 

grievances he filed in March and April of 2016. Plaintiff may not offer, for the first 

time in an objection, evidence which was never presented to or considered by the 

magistrate judge. Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000).

Even if the court were to consider these documents, the grievances and the 

institution’s responses to those grievances show that the medical staff at CCI were 

not indifferent to plaintiff’s complaints; rather, plaintiff disagreed with the nature 

of the treatment he received. The grievances also establish that plaintiff had 

knowledge of his claims prior to the start of the limitations period. Likewise, the 

recent medical records document plaintiff’s post-release treatment for his pre-2014 

orbital and wrist fractures and right heel spurs, and his 2011 treatment for chest 

pains. These records show, at most, a difference of opinion over the appropriate 

treatment or diagnosis of plaintiff’s conditions, and are insufficient to support a 

claim under the Eighth Amendment.

(Id. at 5-6.)
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Accordingly, the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3) and Appellate 

Rule 24(a)(3)(A), that Plaintiff’s appeal of this action is not taken in good faith. 

The Clerk is DIRECTED to transmit a copy of this Order to the Clerk of the United 

States Court of Appeals for the Sixth Circuit.

IT IS SO ORDERED. 

 S/ James L. Graham 

JAMES L. GRAHAM

United States District Judge 

Date: July 30, 2018