Lacey v. Ohio Department of Rehabilitation and Correction et al

Filing 49

Order Adopting Report and Recommendation. The Court adopts the Magistrate Judge's objected to 47 Report and Recommendation and denies Plaintiff' s 44 Motion to Strike. Judge Christopher A. Boyko on 4/28/21. (S,HR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FRANK LACEY,
Plaintiff,
vs.
OHIO DEPARTMENT OF
REHABILITATION AND
CORRECTION, ET. AL.,
Defendant.

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CASE NO.1:18CV2006
SENIOR JUDGE
CHRISTOPHER A. BOYKO
ORDER

CHRISTOPHER A. BOYKO, SR. J:
This matter is before the Court on Plaintiff pro se Frank Lacey’s Motion to Strike
(ECF # 44). Plaintiff objects to the teleconference held February 4, 2021, because “the
defendant and his attorneys had failed to invoke this Court’s subject-matter jurisdiction under
28 U.S.C. § 1331.” After Defendant filed his opposition, the Magistrate Judge issued his
Report and Recommendation (“R & R”) (ECF # 47), recommending Plaintiff’s Motion be
denied. For the following reasons, the Court adopts the Magistrate Judge’s R & R and denies
Plaintiff’s Motion.
Plaintiff pro se Frank Lacey brought this action on August 31, 2018, against the Ohio
Department of Rehabilitation and Corrections and eleven other individually named
Defendants for claims stemming from alleged violations of his First Amendment rights. All
Defendants and claims were subsequently dismissed except those brought under 42 U.S.C. §
1983 against Defendant Jeremiah Linden.

As the Magistrate Judge points out, its unclear what Plaintiff seeks to strike. It could
be the teleconference because Plaintiff contends Defendant and his counsel failed to invoke
the Court’s subject matter jurisdiction over the teleconference. In his Motion, Plaintiff
objects to the teleconference but never expressly identifies what he seeks to strike from the
record. Plaintiff also challenges Defendant’s counsel’s notice of appearance as deficient,
apparently because they failed to invoke the Court’s subject matter jurisdiction.
Plaintiff also contends that he had no duty to serve a copy of the “instant action” on
Defendant because Defendant failed to appear and timely Answer the Complaint.
Lastly, Plaintiff argues the Magistrate Judge denied him his Due Process rights when
the Judge refused to allow Plaintiff to submit an oral motion at a teleconference in October
2020 but instead insisted that any motion to the Court be submitted in writing.
Standard of Review
A district court reviews de novo any finding or recommendations of the magistrate
judge’s report and recommendation to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(c); 28 U.S.C. § 2254, Rule 8(b); Loc. R. 72.3(b). A party may not file a general
objection to the entirety of the magistrate’s report. Ayers v. Bradshaw, 2008 WL 906100,
at*1 (N.D. Ohio Mar. 31, 2008) (citing Howard v. Sec’y of Health & Human Servs., 932
F.2d505, 508-09 (6th Cir. 1999)). “For an objection to be sufficiently specific, the petitioner
must direct ‘the district judge’s attention to specific issues decided by the magistrate contrary
to [the petitioner’s] position.’” Ayers, at *2 (quoting Neuman v. Rivers, 125 F.3d 315, 323
(6thCir. 1997)).
As the Magistrate Judge clearly reasoned, if the Court lacks subject matter

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jurisdiction, then everything, including Plaintiff’s Complaint, must be dismissed. Here,
Plaintiff has asserted federal claims, including employment discrimination claims under Title
VII and constitutional claims under 42 U.S.C. § 1983. 28 U.S.C. § 1331 grants federal
district courts subject-matter jurisdiction over all claims“arising under” federal law. Thus, the
Court clearly possesses subject matter jurisdiction because Plaintiff’s Complaint presents
questions of federal law.
Plaintiff further fails to offer any caselaw holding that a Defendant must invoke the
Court’s subject matter jurisdiction before appearing in a case. It is to Plaintiff’s Complaint
that the Court looks to determine its subject matter jurisdiction not Defendant’s invocation of
subject matter jurisdiction. Therefore, the Court agrees with the Magistrate Judge that
Defendant’s failure to invoke the Court’s subject matter jurisdiction does not deprive the
Court of the same nor does it prohibit Defendant’s counsel from appearing before the Court.
The Magistrate Judge further determined Plaintiff’s argument that he had no duty to
serve Defendant a copy of the “instant action” because Defendant failed to appear or answer
has no merit because Plaintiff failed to properly serve Defendant initially. While an entry of
default was originally docketed in the case, upon motion of Defendant to set aside the entry of
default, the Court granted the motion once Defendant established that he was never properly
served. Thus, Defendant did not fail to answer but did subsequently answer the Complaint
once service was properly executed upon him. Moreover, the docket demonstrates that
Defendant’s counsel entered their notice of appearance on March 27, 2020. Therefore, the
Magistrate Judge recommends and the Court agrees that Plaintiff’s arguments on Defendant’s
alleged failure to answer and failure to appear lack merit.

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Finally, the Magistrate Judge recommends the Court find Plaintiff’s lack of Due
Process argument fails because both Federal Rules of Civil Procedure and the Court’s Local
Rules require all motions be in writing. Federal Rule of Civil Procedure 7(b)(1)(a) and the
Local Civil Rule 7.1(b) provide that all motions, unless made during a hearing or trial, must
be in writing. Plaintiff provides no authority for his assertion that he has a Due Process right
to oral motions. The Court agrees with the Magistrate Judge that the plain language of the
Federal Rules of Civil Procedure and Local Rules require motions be in writing unless
otherwise authorized by the Court. Moreover, Plaintiff fails to argue that he was unable to
submit a written motion. Thus, he cannot demonstrate any prejudice.
Finally, Plaintiff has not filed any objections to the Magistrate Judge’s Report and
Recommendation. “The election not to file objections to the Magistrate Judge's report
releases the Court from its duty to independently review the record.” Godwin v. Tuscola Cty.
Ct., No. 20-12012, 2020 WL 6161257, at *1 (E.D. Mich. Oct. 21, 2020) citing Thomas v.
Arn, 474 U.S. 140, 149 (1985). “The failure to file objections to the report and
recommendation waives any further right to appeal.” Id.
Therefore, for the foregoing reasons, the Court adopts the Magistrate Judge’s
unobjected to Report and Recommendation and denies Plaintiff’s Motion to Strike.
IT IS SO ORDERED.

/s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge

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