Oberloh v. Mishawaka Indiana City of et al

Filing 124

ORDER ADOPTING REPORT AND RECOMMENDATIONS 118 and overuling plaintiffs objection 119 ; ORDER striking 122 MOTION That The United States Distric Court, Northern District of Indiana, South Bend Division, Make The Federal Court House Compliant W ith The Architectural Barriers Act, In As Far As All Accessability Barriers Of An Architectural Nature filed by Donald Terry Oberloh, denying 120 Motion to strike and striking 122 Motion. All other pending motions are denied as moot and final judgment is entred in favor of defendants. Signed by Senior Judge James T Moody on 2/21/2014. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DONALD TERRY OBERLOH,
Plaintiff
v.
CITY OF MISHAWAKA,
INDIANA, et al.,
Defendants.

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3:12 CV 174

ORDER
Pursuant to 28 U.S.C. § 636(b)(1)(B) & (C), FED. R. CIV. P. 72(b) and LOCAL RULE
72-1(b), Magistrate Judge Christopher A. Nuechterlein has entered a written report (DE
# 118) containing proposed findings of fact and a recommendation that this action be
dismissed with prejudice as a sanction because of plaintiff Donald Terry Oberloh’s
misconduct. As explained by Magistrate Judge Nuechterlein, although dismissal with
prejudice is a sanction of last resort:
Through his contumacious conduct, . . . Oberloh has made a mockery of
the judicial process and trivialized any claims he may have raised through
this lawsuit. Therefore, for the reasons that follow and because all lesser
sanctions have proven ineffectual in correcting Oberloh’s misconduct, the
undersigned recommends that all of Oberloh's claims be dismissed with
prejudice pursuant to Fed. R. Civ. P. 37(b)(2)(A)(v) and 72(b)(1).
(DE # 118 at 2.) As assigned district judge, the undersigned has a responsibility to
determine de novo any part of the recommended findings and disposition which is
“properly objected to.” FED. R. CIV. P. 72(b)(3). “Proper” objections are “specific written
objections.” FED. R. CIV. P. 72(b)(2).

Magistrate Judge Nuechterlein’s report and recommendation was entered and
served on January 14, 2014. Plaintiff Oberloh had 14 days after service to file any
written objections. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b)(2). With the additional
three days allowed for service by mail, FED. R. CIV. P. 6(d), that made the deadline for
filing objections fall on Friday, January 31, 2014. Plaintiff Oberloh filed his objections a
(business) day late, on February 3, 2014. Defendants have moved to strike the objections
as untimely. (DE # 120). In response, combined with his reply in support of his
objections (which, it should be noted, violates the page limits imposed by this court’s
Local Rules) Oberloh argues that his objections were timely because he received
Magistrate Judge Nuechterlein’s report and recommendation on January 15, 2014. That
date is irrelevant, it is the date of service that matters, January 14, and plaintiff has been
repeatedly warned that although he is pro se, he must comply with the applicable
statutes and rules of procedure. Nevertheless, because no prejudice resulted from the
late objections, the court will consider them for what they are worth, and the motion to
strike will be denied. See Kruger v. Apfel, 214 F.3d 784, 786-87 (7th Cir. 2000).
Considered for what they are worth, the objections are not worth much. Rather
than making specific objections to Magistrate Judge Nuechterlein’s proposed findings,
plaintiff Oberloh’s filing is a rambling narrative that consists almost entirely of an attack
on the integrity of the court and the personal integrity of Magistrate Judge Nuechterlein

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and opposing counsel. To the extent that Oberloh does object to specific matters, the
objections are not supported by citations to the record1 and/or are legally baseless.
To provide only a few examples that are illustrative, Oberloh takes Magistrate
Judge Nuechterlein to task for committing “judicial misconduct” by failing to address2
Oberloh’s demand (DE # 108) for a three-judge panel to investigate Oberloh’s (baseless)
allegations of fraud and misconduct in this case. (DE # 119 at 6; DE #121 at 13.) To date,
however, Oberloh has not identified any legal authority supporting his request for a
three-judge panel, other than stating that his request was made in accordance with
Local Rule 9-2. (DE # 121 at 14.) Local Rule 9-2 references 28 U.S.C. § 2284, which
provides: “A district court of three judges shall be convened when otherwise required
by Act of Congress, or when an action is filed challenging the constitutionality of the
1

Oberloh appears to blame his lack of specificity on the court, e.g., “To date
Judge Nuechterlein has refused to make the records [transcripts of in-court
proceedings] available to the Plaintiff,” (DE # 119 at 4); “Court records will show that
the Judge [Nuechterlein] refused to supply the plaintiff with said records,” (DE # 121 at
13); and the “court record, refused to be supplied by Judge Nuechterlein, will show . . .“
and “would have shed light.” (Id. at 17.) The court’s record is a public document that
can be accessed using terminals available in the Clerk’s office, and any proceeding
which has been transcribed could have been viewed by Oberloh by that method. In
addition, as the objecting party, it is Oberloh’s responsibility to arrange for transcribing
any parts of the record which are necessary and not yet transcribed. FED. R. CIV. P.
72(b)(2).
2

According to Oberloh, the only way in which Magistrate Judge Nuechterlein
addressed the demand is by remarking “I have no idea what he’s [Oberloh] talking
about” and not allowing Oberloh to address the matter during the hearing held on
November 26, 2013. (DE # 119 at 6; DE #121 at 13.) The transcript of that hearing reveals
that while Magistrate Judge Nuechterlein indeed did say that he had no idea what
Oberloh was talking about, that was because he had conducted his own research and could
find nothing to support Oberloh’s request. (DE # 114 at 9-10.)
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apportionment of congressional districts or the apportionment of any statewide
legislative body.” 28 U.S.C. § 2284(a). Oberloh has not explained how this statute
applies, or how there is any other basis for a three-judge panel.
A second example: plaintiff Oberloh states that Magistrate Judge Nuechterlein
violated Canon 1 of the Code of Judicial Ethics by failing to conduct himself in a manner
upholding the integrity of the judiciary, by holding his head in his hands and shaking it
left to right while Oberloh attempted to argue during a hearing on November 26, 2013,
that specific Federal Rules of Civil Procedure prohibit the dismissal of this action. (DE
# 119 at 6-7.) Plaintiff Oberloh has not identified the specific pages of the transcript
where he made that argument, but it appears to the court it happened near the end of a
somewhat lengthy and contentious hearing. (DE # 114 at 68-69.) Plaintiff Oberloh stated
that he had already made those arguments in an earlier response filed with the court
(Id. at 68:21-23), and it does not appear that he was prevented from addressing the
matter further, even though, as Magistrate Judge Nuechterlein had noted a bit earlier
during the hearing, this was an issue on which the “ship has sailed.” (Id. at 65:24-5.)
Thus, it is not surprising that Magistrate Judge Nuechterlein might show some signs of
frustration: by taking the bench judges are not “divest[ed] . . . of human reaction.”
United States v. Griffin, 84 F.3d 820, 830-31 (7th Cir. 1996). Having said that, the court
believes the transcript shows that Magistrate Judge Nuechterlein handled the matter
with admirable patience and restraint, and did not commit any misconduct.

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As a third and last example, Oberloh maintains that the “most egregious act of
judicial misconduct, the one that lead to the issuance of sanctions” was an incident of ex
parte communication which occurred when counsel for defendants handed Magistrate
Judge Nuechterlein a “stack of documents” because the Magistrate had not brought his
own copies with him into the courtroom, did so without providing copies to plaintiff,
and those documents were not plaintiff’s most current answers to interrogatories but
were relied on by Judge Nuechterlein to assess a sanction. (DE # 119 at 10-11.)
Oberloh raised this same issue with Judge Nuechterlein in the hearing on
November 26, 2013, and Judge Nuechterlein explained—correctly–why this was not an
ex parte communication because it occurred at a court session where Oberloh was
present. (DE # 114 at 67-68.) More importantly, it appears that Oberloh is confused as to
what actually occurred. At the prior hearing where the supposed ex parte
communication occurred, there is no indication that defense counsel provided
Magistrate Judge Nuechterlein with an improper copy of interrogatory answers.3
Instead, it appears that Oberloh is recalling a part of the prior hearing in which defense
counsel approached the bench to show Magistrate Judge Nuechterlein handwritten
notes Oberloh had provided in response to a request for production. (DE # 71 at 28:11-

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To the contrary, it appears that Judge Nuechterlein was reading from a “second
generation” copy of interrogatory answers he had brought with him into the courtroom,
and defense counsel pointed out that Oberloh had attempted to clarify those answers in
a third response. (DE # 71 at 13:6-12.)
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29:1; 31:6-14.)4 Thus, Oberloh’s argument that Magistrate Judge Neuchterlein relied on
wrong interrogatory answers provided by defense in deciding to impose discovery
sanctions is without foundation. Even if Oberloh were correct, those discovery sanctions
are not the issue: the issue is whether the present suit should be dismissed for a host of
reasons in addition to Oberloh’s answers (or lack thereof) to interrogatories.
In sum, Magistrate Judge Nuechterlein’s proposed findings are detailed,
comprehensive, and persuasive, after reviewing the record de novo taking into account
plaintiff Oberloh’s objections, such as they are. Because Oberloh’s objections lack
specificity and are unsupported, the court does not find it necessary to address them in
any further detail. It suffices to say that reviewing the Magistrate Judge Nuechterlein’s
proposed findings and conclusions in light of the record allows the court to conclude, de
novo, that those findings and conclusions are appropriate, and the recommendation
based thereon is warranted. The court agrees with Judge Nuechterlein that “clear and
convincing evidence [shows] that Oberloh has willfully engaged in bad faith, deception
and misconduct.” (DE # 118 at 16.)
Furthermore, Magistrate Judge Nuechterlein observed that it is particularly
frustrating that “Oberloh’s misconduct has escalated, not diminished, despite efforts by
the undersigned, through multiple written orders and three in-court hearings, to ensure
4

This document was attached as exhibit G (DE # 54-7) to defendants’ brief in
support of motion to compel discovery (DE # 54), which was served on plaintiff, and
defense counsel referenced the exhibit when he showed the document to Judge
Nuechterlein. (DE # 71 at 28:25.) Therefore, while plaintiff may not have been shown
the document in the courtroom, he had been provided with a copy of it.
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that his claims were not prematurely discarded,” (Id. at 2), and that Oberloh’s
“misconduct is an abuse of the judicial system itself by requiring the Court to address
frivolous issues such as his “vampires and zombies” answer to a legitimate
discovery request. His misconduct and the numerous motions that ensued
disproportionately and unnecessarily consumed this Court’s time and limited
resources.” (Id. at 18.) In this vein the court notes that Oberloh has continued to make a
mockery of the proceedings even following Magistrate Judge Nuechterlein’s Report and
Recommendation. His most recent frivolous salvo, filed February 14, 2014, is a “Motion
That The United States District Court . . . Make The Federal Court House Compliant
With The Architectural Barriers Act, In As Far As All Accessability Barriers Of An
Architectural Nature.” (DE # 122.) This is frivolous because it has nothing to do with
Oberloh’s claim against the defendants, and obviously is not a matter for which
Oberloh can obtain relief via motion in the present case. The motion will be struck as
impertinent.
CONCLUSION ADOPTING REPORT AND RECOMMENDATION
For the foregoing reasons, the court OVERRULES plaintiff Oberloh’s objection
(DE # 119) and adopts Magistrate Judge Nuechterlein’s Report and Recommendation
(DE # 118), including the proposed findings and recommendation therein, as its own
order explaining its disposition of this case. Accordingly, this case is DISMISSED
WITH PREJUDICE pursuant to FED. R. CIV. P. 37(b)(2)(A)(v). The clerk shall indicate on
the docket that defendant’s motion to strike (DE # 120) is DENIED; that plaintiff’s
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motion concerning architectural barriers (DE # 122) is STRUCK; that all other pending
motions are DENIED as moot; and ENTER FINAL JUDGMENT in favor of
defendants.
SO ORDERED.

Date: February 21, 2014

s/ James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT