UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Tyrone Jerod Cole, Jr.,

Plaintiff,

vs. Case No. 1:18-cv-00342

David McCroskey, et al., Judge Michael R. Barrett

Defendants.

ORDER

This matter is before the Court on the Magistrate Judge’s August 1, 2019 Report 

and Recommendation (“R&R”). (Doc. 29). 

Proper notice was given to the parties under 28 U.S.C. § 636(b)(1)(C), including 

notice that the parties would waive further appeal if they failed to file timely objections to 

the R&R. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Plaintiff filed timely 

objections (Doc. 30) and Defendant Broughton responded to those objections (Doc. 31). 

The Magistrate Judge completed a comprehensive review of the record and the same will 

not be repeated here except to the extent necessary to address Plaintiff’s objections.

I. STANDARD OF REVIEW

When a court receives objections to a magistrate judge’s R&R on a dispositive 

matter, the assigned “district judge 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 

district judge may accept, reject, or modify the recommended disposition; receive further 

evidence; or return the matter to the magistrate judge with instructions.” Id.
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II. ANALYSIS

Plaintiff objects to the August 1, 2019 R&R “because it favors the Defense,” it 

“unfairly dismissed the Plaintiff’s claim,” and the Magistrate Judge ignored “critical 

evidence” that he introduced to prove that Defendant “submit[t]ed altered and invalid 

documents to the Court.” (Doc. 30). In particular, he contends that, the fact that he has 

produced informal complaints not found in Defendant’s exhibit containing Plaintiff’s 

grievance history—submitted with Defendant’s Motion for Summary Judgment—proves 

that Defendant’s exhibit is inaccurate and the Magistrate Judge erred in relying on that 

exhibit. Compare (Doc. 30) and (Doc. 28, Attachment 1), with (Doc. 28, Attachment 2).

The Magistrate Judge acknowledged “the grievance documents attached to 

plaintiff’s response in opposition to defendant’s motion for summary judgment” and the 

additional grievance documents Plaintiff had previously filed. (Doc. 29 at PageID). She 

found (1) that all of his submitted grievance documents pre-dated the February 9, 2018 

alleged excessive force incident and (2) he failed to provide any evidence demonstrating 

that he submitted an informal complaint, grievance, or appeal in relation to the February 

9, 2018 alleged incident. (Doc. 29 at PageID 269). Nothing in Plaintiff’s objections 

establishes that he submitted a timely informal complaint, grievance, or appeal regarding 

the alleged February 9, 2018 incident and, thus, could overcome the Magistrate Judge’s 

finding that he failed to properly exhaust his administrative remedies for his excessive 

force claim against Defendant. Indeed, Plaintiff’s assertion that “I did exhaust all my 

remedies” and he “proved it,” without more, does not convince the Court that the 

Magistrate Judge erred when she found that that “Plaintiff’s argument that the grievance 
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history log is ‘inaccurate’ and was ‘altered’ is insufficient to rebut defendant Broughton’s 

evidence of plaintiff’s non-exhaustion.” (Doc. 29 at PageID 269).

In sum, and based on the Court’s de novo review of the filings in this matter, the 

Court finds Plaintiff’s objections unpersuasive and agrees with the findings and 

recommendation in the R&R.

III. CONCLUSION

Based on the foregoing, the Court hereby OVERRULES Plaintiff’s objections (Doc. 

30) and ADOPTS the Magistrate Judge’s August 1, 2019 R&R in its entirety. (Doc. 29). 

Accordingly, Defendant’s Motion for Summary Judgment (Doc. 28) is GRANTED and 

Plaintiff’s Response thereto and Motion to Amend (Doc. 28) is DENIED. This case is 

DISMISSED with prejudice and the matter shall be CLOSED and TERMINATED from 

the Court’s docket.

IT IS SO ORDERED.

_s/ Michael R. Barrett_________

Michael R. Barrett, Judge

United States District Court