Sultaana v. Corrigan et al

Filing 236

Order: Plaintiff's "motion to request CD" (ECF Doc. 193 ) is DENIED. The defendants' "motion to strike all over-the-counter filings by Amirah Sultaana" (ECF Doc. 198 ) is DENIED. Plaintinff's motion to a ppoint standby counsel (ECF Doc. 206 ) is DENIED. The defendants' motion to strike Plaintiff Sultaana's motion for summary judgment (ECF Doc. 201 ) is GRANTED. The court orders that Plaintiff Sultaana's motion for summary judgment (ECF Doc. 199 ) be STRICKEN FROM THE RECORD. Magistrate Judge Thomas M. Parker on 10/31/2019.(D,JJ)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
HAKEEM SULTAANA,
Plaintiff,
v.
JOHN JERMAN, et al.,
Defendant.

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Case No. 1:15-cv-382
JUDGE DONALD C. NUGENT
MAGISTRATE JUDGE
THOMAS M. PARKER

ORDER

Adding to the already extensive motions-warfare in this case, the parties have filed
numerous motions throughout September and October. Now pending are: (1) plaintiff Hakeem
Sultaana’s “motion to request CD from case 16cv02884” (ECF Doc. 193); (2) the defendants’
“motion to strike all over-the-counter filings by Amirah Sultaana” (ECF Doc. 198);
(3) Sultaana’s motion for summary judgment (ECF Doc. 199); (4) the defendants’ motion to
strike Sultaana’s motion for summary judgment 1 (ECF Doc. 201); and (5) Sultaana’s motion to
appoint standby counsel (ECF Doc. 206).
For the reasons discussed below, Sultaana’s “motion to request CD” (ECF Doc. 193) is
DENIED. The defendants’ “motion to strike all over-the-counter filings by Amirah Sultaana”
(ECF Doc. 198) is DENIED. Sultaana’s motion to appoint standby counsel (ECF Doc. 206) is
DENIED. The defendants’ motion to strike Sultaana’s motion for summary judgment (ECF

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Along with their motion to strike Sultaana’s motion for summary judgment, the defendants also moved
for the court to revoke Sultaana’s in forma pauperis status and declare him a vexatious litigator. See ECF
Doc. 201 at 4-7. The court will address that motion in a separate order.

Doc. 201) is GRANTED. The court orders that Sultaana’s motion for summary judgment (ECF
Doc. 199) be STRICKEN FROM THE RECORD.
I.

Motion to Request CD
In his “motion to request CD,” Sultaana asks that the court transfer to the docket in this

case a CD recording of controlled calls that he had filed in his now-closed habeas case. ECF
Doc. 193; see also CM/ECF for N.D. Ohio Case No. 1:16-cv-2884, Doc. 151 (“3/6/14 CD
Evidentiary Documentation of Controlled Calls Placement to Sultaana via Cuyahoga County
Sheriff Department by Hakeem Sultaana”). The defendants respond that Sultaana’s motion
should be denied because he cited no authority or recognized procedure for having evidence filed
in one case be transferred to another case. ECF Doc. 205 at 1.
Not only has Sultaana not cited any authority supporting his request, the court’s
independent research has not revealed the existence of any such authority. 2 If Sultaana wishes to
make his CD a part of this case’s record, he must file it in this case. If he no longer has his own
copy of his CD, he may request a copy from the Clerk’s office and pay the applicable copying
fee. See N.D. Ohio, District Court Miscellaneous Fee Schedule, No. 4(b) (“For reproducing and
transmitting in any manner a copy of an electronic record . . . including . . . audio recordings . . .
$31 per record provided.”); see also Smith v. Yarrow, 78 F. App’x 529, 544 (6th Cir. 2003)
(indicating that the court may require a prisoner proceeding in forma pauperis to pay his own

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Moreover, the Court notes that discovery is closed, and Sultaana has not shown good cause to reopen
discovery because has not explained why he could not have earlier obtained his CD or how it would be
relevant to the narrow issue in this case. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only
for good cause and with the judge’s consent.”); Newman v. Fed. Express Corp., 266 F.3d 401, 403-06
(6th Cir. 2001) (affirming a district court’s order denying a plaintiff’s motion to reopen discovery when
the plaintiff “had not shown good cause for his failure to obtain discovery through the exercise of due
diligence”); see generally ECF Doc. 193.

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copying fees in conducting discovery). Sultaana’s motion (ECF Doc. 193) to transfer into the
record for this case the CD he filed in Case No. 1:16-cv-2884 is DENIED.
II.

Motion to Strike All Over-the-Counter Filings by Amirah Sultaana
In their “motion to strike all over-the-counter filings by Amirah Sultaana,” the defendants

request that the court strike Sultaana’s “notice of taking of deposition with notices written
deposition was served on James Gutierrez” (ECF Doc. 179) and “motion to compel written
deposition from James Gutierrez” (ECF Doc. 178). ECF Doc. 198 at 1. The defendants assert
that those documents should be stricken because Sultaana did not comply with Fed. R. Civ. P.
31(a)(3)’s requirement to properly serve Gutierrez with a notice that states, among other things,
the name, descriptive title, and address of the officer before whom the deposition will be taken.
ECF Doc. 198 at 1-3. They assert that the Court has authority to strike these pleadings under
Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”). ECF Doc. 198 at 1. Finally, the
defendants ask that the court strike from the record every filing by Sultaana not accompanied by
an envelope originating from prison, because they believe that each of those documents was
filed by Sultaana’s mother, Amirah Sultaana. ECF Doc. 198 at 4. The defendants contend that,
by filing documents for Sultaana, Amirah Sultaana has engaged in the unlicensed practice of law.
ECF Doc. 198 at 4.
Sultaana disagrees. See generally ECF Doc. 211. Sultaana asserts, inter alia, that the
defendants waived any opposition to ECF Doc. 178 by failing to move for reconsideration or file
an objection to this court’s September 19, 2019, order (ECF Doc. 194). ECF Doc. 211 at 2-4.
Further, Sultaana contends that, although he has used Amirah Sultaana’s e-mail account for his
own personal communications, “Amirah Sultaana has not drafted or filed any motions . . . in a

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representation of Sultaana[’s] legal interest in an unauthorized practice of law setting.” ECF
Doc. 211 at 5-6.
As a preliminary matter, the court construed Sultaana’s “motion to compel written
deposition from James Gutierrez” as a “motion to reopen discovery for the limited purpose of
deposing Gutierrez.” ECF Doc. 194 at 19. The court found that Sultaana had shown good cause
for failing to earlier depose Gutierrez and granted the motion as construed. ECF Doc. 194 at 5-6.
The defendants did not object within 14 days of that order. In light of the order granting
Sultaana’s motion, as construed, the defendants’ motion to strike (ECF Doc. 198) is DENIED
AS MOOT, with respect to Sultaana’s “motion to compel written deposition from James
Gutierrez.”
With respect to Sultaana’s “notice of taking of deposition with notices written deposition
was served on James Gutierrez” (ECF Doc. 179), the court agrees that Sultaana failed to comply
with Rule 31(a)(3)’s requirement to disclose the name, descriptive title, and address of the officer
before whom the deposition would be taken. As discussed in the court’s October 23, 2019,
order, Sultaana’s notice not only failed to comply with Fed. R. Civ. P. 31(a)(3), but also failed to
comply with Fed. R. Civ. P. 26(b). See ECF Doc. 228 at 7-8 (finding that many of Sultaana’s
proposed questions were irrelevant to this case and that compelling the deposition, without notice
about the officer before whom it would be taken, would impose an undue burden and
inconvenience upon Gutierrez). Nevertheless, Rule 12(f) authorizes the court only to strike
pleadings, not discovery. See Grajales v. P.R. Ports Auth., 897 F. Supp. 2d 7, 10 (D.P.R., Jan.
23, 2013); Riser v. Wash. State Univ., No. 2:18-cv-119, 2019 U.S. Dist. LEXIS 182651, at *2 n.1
(E.D. Wash., Jun. 19, 2019). Courts within this circuit have stuck deposition notices under Fed.
R. Civ. P. 26(c), which permits a “party or person from whom discovery is sought [to] move for
a protective order” if the discovery would unduly annoy, embarrass, oppress, or burden that
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party. See, e.g., Culver v. Wilson, No. 3:14-cv-660, 2015 U.S. Dist. LEXIS 50095, at *4-8
(W.D. Ken., Apr. 16, 2015). But the defendants here are not the targets of Sultaana’s notice of
deposition of Gutierrez, and therefore have no standing to challenge the deposition notice under
Rule 26(c). See Fed. R. Civ. P. 26(c). Because the defendant have not pointed to any authority
indicating supporting their motion to strike Sultaana’s notice of deposition, their motion to strike
(ECF Doc. 198) is DENIED. The court does clarify, however, that Sultaana’s deposition notice
(ECF Doc. 179) is invalid under the Federal Rules of Civil Procedure. See, e.g., Riser, 2019
U.S. Dist. LEXIS 182651, at *2 n.1 (“The Court is not striking the notices so much as clarifying
the deposition notices are invalid under the Federal Rules of Civil Procedure.”)
Finally, the defendant’s request that the court strike every filing every filing by Sultaana
not accompanied by an envelope originating from prison, is without merit. It is true that a nonattorney may not pursue a legal action on behalf of another in federal court. See 28 U.S.C.
§ 1654 (“In all courts of the United States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts, respectively, are permitted to manage
and conduct causes therein.”). The Federal Rules of Civil Procedure clarify the requirement that
a person proceed on their own behalf or through an attorney admitted to practice before the court
by providing that “[e]very pleading, written motion, and other pay per must be signed by at least
one attorney of record in that attorney’s name – or by a party personally if the party is
unrepresented.” Fed. R. Civ. P. 11(a). Thus, when an unrepresented party’s filings are not
signed by the party, or are signed by a non-attorney proceeding on the unrepresented party’s
behalf, the court must strike those filings. See, e.g., Mathis v. State of Ohio Probate Court,
No. 2:12-cv-84, 2012 U.S. Dist. LEXIS 14950, at *2-4 (S.D. Ohio, Feb. 6, 2012), adopted by
2012 U.S. Dist. LEXIS 26420 (S.D. Ohio, Feb. 29, 2012). Each of Sultaana’s filings bear his
signature or the signature of standby counsel. See ECF Docs. 1-5, 9-11, 15-16, 21, 29-31, 34-35,
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39-42, 44, 46-47, 49, 53-55, 57-68, 70-71, 74-80, 82, 84, 86-88, 91, 93-95, 97, 99-102, 104-107,
109, 112-13, 115, 117, 119-22, 126-28, 131, 134-35, 137-38, 140-41, 143, 145-46, 148-54, 15665, 169, 171, 173, 175, 177-83, 186-93, 195, 197, 199, 202-04, 206-11, 215-16, 218, 220-22,
224. The sole exception is Sultaana’s July 18, 2019, “supplement to motion for joinder,” which
is not signed by anyone but is accompanied by an envelope stamped “inmate correspondence.”
ECF Doc. 155. But that document is not subject to defendants’ motion to strike, because it was
filed more than 21 days before the defendants’ motion. See ECF Doc. 198 (filed on September
23, 2019); Fed. R. Civ. P. 12(f)(2) (providing 21 days for an opposing party to move to strike a
filing). Further, the defendants have not argued, much less produced any evidence such as a
handwriting analysis, that any of Sultaana’s signatures were forged. See generally ECF Doc.
198. Even assuming that Amirah Sultaana did physically deliver Sultaana’s filings to the Clerk’s
office, the defendants have not shown that she acted as anything more than a courier.
Accordingly, the defendants’ motion to strike (ECF Doc. 198) is DENIED. 3
III.

Motion to Strike Sultaana’s Motion for Summary Judgment
In their motion to strike Sultaana’s motion for summary judgment, the defendants assert

that Sultaana’s motion is improper because: (1) this court previously ordered that the time
expired for summary judgment motions under Fed. R. Civ. P. 56; and (2) Sultaana’s motion did
not comply with the requirements of Local Rule 7.1(f) (“All memoranda exceeding fifteen (15)
pages in length . . . must have a table of contents, a table of authorities cited, a brief statement of

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If the defendants truly believe that Amirah Sultaana has engaged in the unauthorized practice of law,
they may report the alleged unauthorized practice to the Secretary of the Board on the Unauthorized
Practice of Law, the Office of Disciplinary Counsel, or the local bar association’s unauthorized practice
of law committee. See OHIO S. CT., BOARD ON THE UNAUTHORIZED PRACTICE OF LAW FAQS, available
at http://www.supremecourt.ohio.gov/Boards/UPL/faq/uplfaq.asp (last viewed October 24, 2019).
Nothing in this order shall be construed as res judicata to any issues in an unlicensed-practice-of-law
claim or charge against Amirah Sultaana.

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the issue(s) to be decided, and a summary of the argument presented.”). ECF Doc. 201 at 1-2.
Further, the defendants assert that Sultaana’s motion for summary judgment raises several issues
not related to the narrow issue in this case, and that it is actually an improper attempt to relitigate
the issues in his denied habeas petition. ECF Doc. 201 at 2-3. Sultaana responds that he
properly filed his motion for summary judgment, pursuant to the prison mailbox rule in Rule 3 of
the Rules Governing Section 2254 Cases, before the court ruled that no dispositive motions
would be taken. ECF Doc. 215 at 4-7. He also asserts that his summary judgment motion is not
an attempt to relitigate his habeas case but is confined to the issues in this case. ECF Doc. 215 at
8-9.
The defendants are correct that this court ordered no dispositive motions would be taken
because the time to file them had expired. See ECF Doc. 194 at 5. Further, the prisoner mailbox
rule under the habeas rules does not apply to non-habeas civil cases. Compare Rules Governing
Section 2254 Cases, Rule 1 (“These rules govern a petition for a writ of habeas corpus filed in a
United States district court under 28 U.S.C. § 2254.”), with Fed. R. Civ. P. 1 (“These rules
govern the procedure in all civil actions and proceedings in the United States district courts.”);
Fed. R. Civ. P. 81(4) (“These rules apply to proceedings for habeas corpus and . . . to the extent
that the practice in those proceedings: (A) is not specified in a federal statute, the Rules
Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases.”). Nevertheless, the
court again disagrees with the defendants’ assertion that Rule 12(f) gives the court authority to
strike a defendant’s motion for summary judgment – it does not. Adams v. Valega’s Prof. Home
Cleaning, Inc., No. 1;12-cv-644, 2012 U.S. Dist. LEXIS 157550, at *5 (N.D. Ohio, Nov. 2,
2012) (“A motion to strike [under Rule 12(f)] is technically not available to motions for
summary judgment. Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 868 (1st Cir. 1997).”).
Rule 56 also does not provide for “striking” a document that does not conform to its
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requirements. See generally Fed. R. Civ. P. 56. Instead, the court’s authority to strike Sultaana’s
motion for summary judgment must come through the court’s inherent authority to manage its
docket. See Reddy v. JPMorgan Chase Bank, N.A., No. 2:09-cv-1152, 2013 U.S. Dist. LEXIS
43640, at *4-5 (S.D. Ohio, Mar. 27, 2013) (citing Link v. Wabash R. Co., 370 U.S. 626, 630-31
(1962) (holding that trial courts have inherent power to “manage their own affairs as to achieve
an orderly and expeditious disposition of cases”); see also ACLU of Ky. v. McCreary County,
607 F.3d 439, 451 (6th Cir. 2010) (“[B]ased on the district court’s power to manage its own
docket, the court had ample discretion to strike Defendants’ late renewed motion for summary
judgment.”). Because Sultaana’s motion for summary judgment was improvidently filed, the
defendants’ motion to strike Sultaana’s summary judgment motion (ECF Doc. 201) is
GRANTED. The court orders that Sultaana’s motion for summary judgment (ECF Doc. 199) be
STRICKEN FROM THE RECORD.
IV.

Motion to Appoint Standby Counsel
In his motion to appoint standby counsel, Sultaana asks that the court appoint counsel to

assist him in discovery disputes with the defendants, assist in pending depositions, and help with
communication to avoid confusion between the parties. ECF Doc. 206 at 1-3. The defendants
respond that Sultaana is not entitled to counsel because this is not a criminal case, and they note
that he repeatedly objected to standby counsel when previously appointed. ECF Doc. 213 at 1.
A district court has discretion to appoint counsel for an indigent civil litigant. 28 U.S.C.
§ 1915(e)(1) (“The court may request an attorney to represent any person unable to afford
counsel.”); Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992) (“The appointment of counsel to
civil litigants is a decision left to the sound discretion of the district court.”). This discretion
applies to the appointment of standby counsel. Cf. McKaskle v. Wiggins, 465 U.S. 168, 184
(1984) (noting that the appointment of standby counsel in a habeas case can “relieve the [trial]
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judge of the need to explain and enforce basic rules of courtroom protocol”). “Appointment of
counsel in a civil case is not a constitutional right. Mekdeci v. Merrell Nat’l Labs., 711 F.2d
1510, 1522 n.19 (11th Cir. 1983). It is a privilege that is justified only by exceptional
circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982).” Wahl v. McIver, 773 F.2d
1169, 1174 (11th Cir. 1985). In determining whether “exceptional circumstances” exist, courts
have examined “the type of case and the abilities of the plaintiff to represent himself.” Archie v.
Christian, 812 F.2d 250, 253 (5th Cir. 1987); see also Poindexter v. FBI, 238 U.S. App. D.C. 26
(D.C. Cir. 1984). This generally involves a determination of the “complexity of the factual and
legal issues involved.” Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986).
This is not an extraordinary case. There is a narrow issue involved, and Sultaana has
repeatedly demonstrated his ability to represent his view on the issues involved here. Further,
Sultaana’s request for counsel is self-defeating. He does not request counsel to argue his claims
for him, but merely to assist him in resolving disputes – some of which are of his own creation –
and help him communicate with opposing counsel. See ECF Doc. 206 at 1-3. Sultaana’s
consistent refusal or inability to adequately communicate with counsel for the defendants does
not render his case extraordinary. see ECF Doc. 229 (detailing Sultaana’s refusal to
communicate, despite attempts to reach him at the e-mail address he gave defense counsel and
the court). Moreover, Sultaana’s resistance to appointment of standby counsel in the past has
likely waived any claim that he needs standby counsel to effectively litigate his case. See, e.g.,
ECF Doc. 148. Accordingly, Sultaana’s motion to appoint standby counsel (ECF Doc. 206) is
DENIED.
V.

Conclusion
In sum, Sultaana’s “motion to request CD” (ECF Doc. 193) is DENIED. The defendants’

“motion to strike all over-the-counter filings by Amirah Sultaana” (ECF Doc. 198) is DENIED.
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Sultaana’s motion to appoint standby counsel (ECF Doc. 206) is DENIED. The defendants’
motion to strike Sultaana’s motion for summary judgment (ECF Doc. 201) is GRANTED. The
court ORDERS that Sultaana’s motion for summary judgment (ECF Doc. 199) be STRICKEN
FROM THE RECORD.
IT IS SO ORDERED.
Dated: October 31, 2019
Thomas M. Parker
United States Magistrate Judge

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