Bowen v. Sidney Police Department

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

RANDY JOE BOWEN,

Plaintiff, Case No. 3:23-cv-375

vs.

SIDNEY POLICE DEPARTMENT, et al., District Judge Michael J. Newman Magistrate Judge Karen L. Litkovitz Defendants. ______________________________________________________________________________

ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE (Doc. No. 5); AND (2) DISMISSING WITH PREJUDICE ALL OF PLAINTIFF’S CLAIMS WITH THE EXCEPTION OF HIS CLAIM THAT DEFENDANT SYDNEY POLICE OFFICERS HAYDEN BRONNE, JOSEPH KENNEDY, AND JORDAN FOX, IN THEIR INDIVIDUAL CAPACITIES, USED EXCESSIVE FORCE DURING HIS ARREST IN VIOLATION OF PLAINTIFF’S RIGHTS UNDER THE FOURTH AMENDMENT OF THE CONSTITUTION ______________________________________________________________________________

The Court has reviewed the Report and Recommendation of United States Magistrate Judge Karen L. Litkovitz (Doc. No. 5) to whom this case was referred pursuant to 28 U.S.C. § 636(b), and notes that no objections were filed thereto and the time for filing such objections under Fed. R. Civ. P. 72(b) has expired. Upon careful consideration and review, the Court finds that the Report and Recommendation sets forth the applicable law, cogently applies it to Plaintiff’s pro se complaint, and reaches correct conclusions. Doc. No. 5 at PageID Nos. 85-96. Therefore, the Court hereby (1) ADOPTS the Report and Recommendation; (2) DISMISSES WITH PREJUDICE all of Plaintiff’s claims with the exception of his claim that Defendant Sydney Police Officers Hayden Bronne, Joseph Kennedy, and Jordan Fox, in their individual capacities, used excessive force during Plaintiff’s arrest in violation of his rights under the Fourth Amendment of the Constitution. No appeal is presently available in this case because this Order is not a final appealable order and some of Plaintiff’s claims remain pending. See 28 U.S.C. § 1291, cf. Sultaana v. Jerman, No. 1:15-cv-382, 2020 WL 13889761, at *5 (N.D. Ohio Jan. 7, 2020) (quoting Cleaver v. Elias, 852 F.2d 266, 267 (7th Cir. 1988) (“An appeal is possible in the absence of [a Rule 58 final

judgment] only if the district court has clearly disposed of all pending matters”)). Because of this and for the reasons set forth herein, the Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this Order would not be taken in good faith, and consequently, DENIES Plaintiff leave to appeal this Order in forma pauperis. IT IS SO ORDERED. May 22, 2024 s/Michael J. Newman Hon. Michael J. Newman United States District Judge