UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RA KARRIE WYNN, 

Plaintiff, 

 Civil Action 2:18-cv-619 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

 

WARDEN, SOUTHERN OHIO 

CORRECTIONAL FACILITY, et al., 

Defendants. 

 

OPINION AND ORDER 

Plaintiff, Ra Karrie Wynn, a state inmate who is proceeding without the assistance of 

counsel, has filed correspondence directed to the Magistrate Judge (ECF Nos. 11 and 12), in 

which he sets forth the “obstacles” and “challenges” he alleges he encountered that he asserts 

caused him to miss the July 20, 2018 deadline for filing his objections to the July 6, 2018 Report 

and Recommendation (ECF No. 5) and requests that he be granted “a moderate amount of time 

to overcome these challenges,” (ECF No. 12 at p. 3). Because the Court adopted the Report and 

Recommendation on July 23, 2018 (ECF No. 8), finding that Plaintiff’s failure to object resulted 

in a waiver of a right to a de novo review, and entered judgment (ECF No. 9), the Court 

construes Plaintiff’s correspondence (ECF Nos. 11 and 12) as a Motion for Relief from 

Judgment pursuant to Federal Rule of Civil Procedure 60(b). For the reasons set forth herein, the 

Court GRANTS Plaintiff’s 60(b) motions (ECF Nos. 11 and 12). Upon de novo review of 

Plaintiff’s Objection (ECF No. 10), the Court OVERRULES Plaintiff’s Objection and again 
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ADOPTS the Report and Recommendation and DISMISSES this action pursuant to 28 U.S.C. § 

1915(e)(2). 

I. Plaintiff’s Request for Relief from Judgment (ECF Nos. 10 and 11) 

In Plaintiff’s filings, he represents that he did not receive the July 6, 2018 Report and 

Recommendation (ECF No. 5) until Friday, July 13, 2018. He correctly points out that per the 

ECF Notice of Electronic Filing, the Clerk sent the Report and Recommendation to the wrong 

post-office box. (See Notice of Electronic Filing Receipt, ECF No. 5 (reflecting R&R sent to 

P.O. Box 45699 rather than P.O. Box 740).) Plaintiff explains that because he did not receive the 

Report and Recommendation until Friday, July 13, 2018, the earliest he could have filed his 

objections would have been Wednesday, July 18, because that was the first date he was able to 

access postage stamps from the prison commissary. (See ECF No. 11 at p. 4 (prison mail office 

acknowledging that Plaintiff received legal mail on July 13, 2018).) 

It appears that rather than seeking an extension of time, Plaintiff drafted his objections, 

which he captioned “Supporting Statement,” and he deposited these objections and attachments 

in the prison mail system in a postage prepaid envelope prior to the July 20, 2018 deadline for 

filing objections. See Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) (construing pro 

se inmate’s improperly titled document as objections, recognizing that “pro se pleadings are held 

to a less stringent standard” (citation omitted)). His objections, which totaled 14 pages, were 

returned to him with a notice stating that additional postage was due. Plaintiff paid additional 

postage and re-deposited the envelope in the prison mail on July 23, 2018. (See ECF No. 10-2; 

ECF No. 11 at p. 3; ECF No. 12 at p. 7.) Plaintiff’s re-mailed objection arrived and was 

docketed on July 27, 2018 (ECF No. 10), after this Court had already adopted the Report and 

Recommendation and entered judgment. (ECF Nos. 8 and 9.) Thus, the Court adopted the 
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Report and Recommendation and entered judgment without having received or considered 

Plaintiff’s objections. 

Rule 60(b) permits this Court to grant a motion for relief from a final judgment for the 

following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, could not have 

been discovered in time to move for a new trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released or discharged; it is based on an 

earlier judgment that has been reversed or vacated; or applying it 

prospectively is no longer equitable; or 

(6) any other reason that justifies relief. 

Fed. R. Civ. P. 60(b). 

 Rule 60(b)(6) applies here. Rule 60(b)(6) “is a catchall provision, which provides for 

relief from a final judgment for any reason justifying relief not captured in the other provisions 

of Rule 60(b).” Henness v. Bagley, 766 F.3d 550 at 553 (6th Cir. 2014), cert. denied, 135 S.Ct. 

1708 (2015). “A movant seeking relief under Rule 60(b)(6) must show ‘extraordinary 

circumstances’ justifying the reopening of a final judgment.” Abdur’Rahman v. Carpenter, 805 

F.3d 710, 713 (6th Cir. 2015) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)), cert. 

denied, 137 S.Ct. 1201 (2017). 

In Thomas v. Arn, the United States Supreme Court held that “a court of appeals may 

exercise its supervisory powers to establish that a rule that the failure to file objections to [a 

magistrate judge’s report and recommendation] waives the right to appeal the district court’s 
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judgment.” 474 U.S. 140, 142 (1985). The United State Court of Appeals for the Sixth Circuit 

exercises this supervisory power, but has made clear that waiver for failure to timely file 

objections is “plainly not a jurisdictional rule.” Kent v. Johnson, 821 F.2d 1220, 1222–23 (6th 

Cir. 1987). 

 Here, the Court finds that circumstances beyond Plaintiff’s control resulted in his 

significantly delayed receipt of the July 6, 2018 Report and Recommendation and also in his 

having to re-mail his timely-mailed objections on July 23, 2018, just three days after the deadline 

for filing objections had expired. The Court therefore GRANTS Plaintiff’s motions for 

reconsideration (ECF Nos. 11 and 12) and will consider Plaintiff’s Objection (ECF No. 10). 

II. Plaintiff’s Objection (ECF No. 10) 

A. Standard of Review 

If a party objects within the allotted time to a report and recommendation, the Court 

“shall make a de novo determination of those portions of the report or specified proposed 

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed 

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 

In addition, the Court holds pleadings by a pro se litigant “to less stringent standards than 

formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), and may not 

uphold the dismissal of such a pleading “simply because the court finds the plaintiff’s allegations 

unlikely.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). A pro se litigant’s pleadings must be, 

and in this instance are, construed liberally. Haines, 404 U.S. at 520–21. 

B. Analysis 
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Having conducted a de novo review, the Court finds Plaintiff’s objections to the Report 

and Recommendation to be unpersuasive. The Magistrate Judge found that Plaintiff’s Complaint 

failed to plead plausible claims for relief against the only two named Defendants, SOCF Warden 

Erdos and SOCF Medical Supervisor Dr. McCafferty. The Court agrees. 

In his objections, Plaintiff insists that he remains sick and reasons that the fact that prison 

medical staff continue to medicate his symptoms confirms that he is sick, proving that his claim 

is not frivolous or malicious. (See ECF No. 10 at p. 2.) He also alleges that Dr. McCafferty 

prescribed propranolol to treat high blood pressure, a drug Plaintiff says also treats stress. 

According to Plaintiff, that Dr. McCafferty prescribed this medication when he does not have 

high blood pressure and when he is not competent to treat mental health impairments shows the 

“type of competence [that] further underlines the levels of reckless indifference [he] has been 

subjected to over the years.” Plaintiff also states that Dr. McCafferty was also the head 

physician at Lebanon Correctional Institution when he was there in 2012, and that during that 

time, he also received deficient healthcare. 

Plaintiff’s objections lack merit. Even if Plaintiff were to amend his Complaint to set 

forth the new allegations he sets forth in his objections, it would not be sufficient to overcome 

the deficiencies the Magistrate Judge outlined in the Report and Recommendation. As the 

Magistrate Judge explained, Plaintiff’s allegations fail to state a claim for medical indifference 

under the Eighth Amendment, and Plaintiff’s disagreement over the proper course of treatment 

alleges no more than a medical malpractice claim. 

The Court therefore ADOPTS the Report and Recommendation in its entirety, 

OVERRULES Plaintiff’s Objections, and DISMISSES this action pursuant to § 1915(e)(2) for 

failure to plausibly allege medical indifference claims. 
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III. Disposition 

For the reasons set forth above, the Court GRANTS Plaintiff’s 60(b) motions (ECF Nos. 

11 and 12). Upon de novo review of Plaintiff’s Objection (ECF No. 10), the Court 

OVERRULES Plaintiff’s Objection and again ADOPTS the Report and Recommendation (ECF 

No. 5) and DISMISSES this action pursuant to 28 U.S.C. § 1915(e)(2) WITHOUT 

PREJUDICE to Plaintiff filing a state-law malpractice claim in state court. 

IT IS SO ORDERED. 

 /s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT COURT 

DATED: August 14, 2018