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Eversole v. Ballard

United States District Court, E.D. Kentucky, Central Division, Lexington

September 6, 2017

MICHAEL EVERSOLE, Plaintiff,
v.
RODNEY BALLARD, Jailer, et al., Defendants.

          MEMORANDUM ORDER

          DANNY C. REEVES UNITED STATES DISTRICT JUDGE

         Plaintiff Michael Eversole is currently an inmate at the Roederer Correctional Complex in LaGrange, Kentucky. Prior to his transfer to state prison, Eversole was held at the Fayette County Detention Center (“FCDC”) in Lexington, Kentucky. Eversole claims that, while housed at the FCDC in April 2016, he fell from a top bunk and injured his back. He later sued Rodney Ballard, [1] corrections officer Chase Jourdan, and nurse Jennifer Privett, asserting various claims under 42 U.S.C. § 1983.

         I.

         Eversole file this action in the Fayette Circuit Court on February 27, 2017. However, on March 29, 2017, the two defendants who had been served with process removed the case to this Court. The matter was later referred to a United States Magistrate Judge to manage pre-trial matters and submit proposed findings of fact and recommendations regarding any dispositive motions.

         On May 30, 2017, Defendant Ballard moved the Court for judgment on the pleadings with respect to all claims asserted against him. Eversole did not respond to the motion. Thereafter, on August 7, 2017, United States Magistrate Judge Candace J. Smith issued a Report and Recommendation addressing the claims asserted against Defendants Ballard and Jourdan. With respect to Ballard, Magistrate Judge Smith recommended that the claims asserted against him in his individual and official capacity be dismissed, with prejudice. In making this recommendation, Magistrate Judge Smith fully evaluated Eversole's allegations but found them lacking in several respects.

         Next, Magistrate Smith recommended that Eversole's claims against officer Jourdan be dismissed, without prejudice, because the plaintiff failed to serve or provide an address for service of process. In making this recommendation, the Magistrate Judge was cognizant that dismissal without prejudice would likely prevent the plaintiff's claims from being reasserted in a subsequent action against Jourdan.

         II.

         While this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which an objection is made, 28 U.S.C. § 636(b)(1)(C), “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file objections to a magistrate judge's proposed findings of fact and recommendation waives the right to appeal. See United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008).

         As outlined above, Plaintiff Eversole failed to respond to Defendant Ballard's motion for judgment on the pleadings and failed to object to the Magistrate Judge's Report and Recommendation. Notwithstanding this failure, Magistrate Judge Smith fully evaluated his claims. The undersigned has proceeded in like fashion. And after fully reviewing the matter, the undersigned agrees with Magistrate Judge Smith in all respects.

         III.

         The relevant facts are fully outlined in Magistrate Smith's Report and Recommendation at pages 2-4. Plaintiff Eversole contends that he was housed at the FCDC during a period from October 2015, through at least the end of April 2016. Around April 25, 2016, Eversole alleges that fell from a top bunk while sleeping, injuring his back. He contends that for some period of time prior to the alleged injury, he told Defendant Jourdan that he had been restricted to a bottom bunk. However, Eversole claims that Jourdan ignored his complaints, advising him that “there was nothing he could do about it.” [Record No. 1 at pp. 18-19]

         Eversole received medical attention following his fall from the top bunk. However, he contends that the attention and treatment was inadequate, causing his injuries to worsen. The plaintiff claims that he asked to be sent for an MRI after the pain he was experiencing from the fall worsened. However, he asserts that Defendant Privett advised that he would not be sent to an outside doctor for an MRI.[2]

         A. Rodney Ballard

         In recommending that all claims against Ballard be dismissed, with prejudice, Magistrate Judge Smith did not rely on the facts outlined in Ballard's affidavit which indicates that he resigned as the Director of the Division of Community Corrections approximately six weeks before Eversole's alleged fall. Likewise, the Magistrate Judge did not consider the impact of the one year statute of limitations applicable to Eversole's claims which would preclude any actions of Defendant Ballard occurring prior to March 2, ...


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