Newberry v. McFadden et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK ANTHONY NEWBERRY,
Plaintiff, 	Case No. 3:25-cv-175
vs.
MONTGOMERY COUNTY, 	District Judge Michael J. Newman
CHILDREN SERVICES, et al., 	Magistrate Judge Caroline H. Gentry
Defendants.
______________________________________________________________________________
ORDER: (1) OVERRULING PLAINTIFF’S OBJECTIONS (Doc. No. 30); (2)
OVERRULING DEFENDANT MONTGOMERY COUNTY CHILDREN SERVICES’
OBJECTIONS (Doc. No. 34); (3) ADOPTING THE MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION (Doc. No. 29); (4) DISMISSING WITH PREJUDICE ALL
OF PLAINTIFF’S CLAIMS AGAINST DEFENDANTS MCFADDEN, DAVID, BURTON,
WILHELM, AND MONTGOMERY COUNTY JOB AND FAMILY SERVICES, AS
WELL AS THE MCCS CONTACT CLAIMS AGAINST MONTGOMERY COUNTY
CHILDREN SERVICES; (5) DENYING AS MOOT PLAINTIFF’S REMAINING
MOTIONS (Doc. Nos. 15, 16, 17); (6) CLARIFYING THAT PLAINTIFF’S FOSTER
HOME CLAIMS AGAINST DEFENDANTS MONTGOMERY COUNTY CHILDREN
SERVICES AND THE CITY OF DAYTON REMAIN PENDING; AND (7) DENYING
PLAINTIFF A CERTIFICATE OF APPEALABILITY
______________________________________________________________________________
Plaintiff Mark Newberry brings this case pro se against Defendants Montgomery County
Children Services (“MCCS”), MCCS caseworker Kiley McFadden, MCCS supervisor Amanda
Davis, MCCS supervisor Monica Burton, and Montgomery County Job and Family Services
(“MCJFS”). 	Doc. Nos. 3, 5. 	He claims, pursuant to 42 U.S.C. § 1983, violations of his rights
under the United States Constitution. See id. He alleges that Defendant MCCS recklessly placed
a foster home next to his residence, causing “severe disruption, fear and retaliation.” Doc. 5 at
PageID 40. These are referred to as Plaintiff’s “foster home claims.” See Doc. No. 29 at PageID
156. 	Further, Plaintiff alleges that Defendants MCCS, McFadden, Davis, and Burton have
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subjected him “to retaliatory visits, vague accusations, and psychological pressure.” Doc. No. 5
at PageID 41. These are referred to as “MCCS contact claims.” Id. at PageID 157. Plaintiff seeks
an Order prohibiting MCCS or its employees from contacting him, his grandchildren, and all
members of his family. Id. at PageID 42. He also seeks as well multi-million-dollar penalties for
each time MCCS visits him. Id. at PageID 41-42.
On December 10, 2025, Magistrate Judge Caroline H. Gentry issued a Report and
Recommendation (“R&R”) in which she recommended dismissing with prejudice all claims
against Defendants McFadden; Davis; Burton; Guardian Ad Litem, Jennifer Wilhelm;1 MCJFC;
and the MCCS contact claims for lack of subject-matter jurisdiction. Doc. No. 29. Judge Gentry
further recommended denying as moot Plaintiff’s remaining motions. Id.
Both Plaintiff and Defendant MCCS filed timely objections to the R&R. Doc. Nos. 30, 34.
Thus, their objections to the R&R are now ripe for review.
The Court has reviewed de novo, as required by 28 U.S.C. § 636(b) and Fed. R. Civ. P.
72(a), Plaintiff’s objections and all filings in this matter. Liberally construing Plaintiff’s pro se
filings in his favor and accepting his factual allegations as true, see Brent, 901 F.3d at 676, the
Court finds no merit in Plaintiff’s objections. Judge Gentry’s R&R is not “clearly erroneous or …
contrary to law.” 28 U.S.C. § 636(b)(1)(A); see Fed. R. Civ. P. 72(a).
Additionally, the Court has reviewed de novo Defendant MCCS’s objections and all filings
in this matter. The Court finds no merit in these objections, as Judge Gentry’s R&R is not “clearly
erroneous or … contrary to law.” 28 U.S.C. § 636(b)(1)(A); see Fed. R. Civ. P. 72(a).
1 Judge Gentry liberally construed Plaintiff’s pleadings to include Wilhelm as a Defendant. Doc. No. 29 at
PageID 157, n. 3. This was correct. See Brent v. Wayne Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 676
(6th Cir. 2018) (“We liberally construe pro se filings”).
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Accordingly, Plaintiff’s objections are OVERRULED, and Defendant Montogomery
County Children Services’ objections are OVERRULED. The R&R is hereby ADOPTED. As
such, the Court DISMISSES WITH PREJUDICE all claims against Defendants McFadden,
Davis, Burton, Wilhelm, and MCJFS, as well as the MCCS contact claims, for lack of subject-
matter jurisdiction. Further, the Court DENIES AS MOOT Plaintiff’s remaining motions. Doc.
Nos. 15, 16, 17. Plaintiff’s foster home claims against Defendants MCCS and the City of Dayton
remain pending.
Finally, 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.
January 30, 2026 	s/ Michael J. Newman
Hon. Michael J. Newman
United States District Judge
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