Kaeding v. Warden, Lebanon Correctional Institution

Filing 56

ORDER adopting Report and Recommendations re 45 Report and Recommendations.; denying 51 Motion to Strike. Signed by Judge Michael R. Barrett on 9/30/13. (Attachments: # 1 Certified Mail Receipt) (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Mark H. Kaeding,
Petitioner,

Case No. 1:11cv121

v.

Judge Michael R. Barrett

Warden, Lebanon Correctional Institution,
Respondent.
ORDER
This matter is before the Court upon the Magistrate Judge’s September 11, 2012
Decision and Order Denying Motions for Evidentiary Hearing and Additional Discovery;
and Report and Recommendation (“R&R”) on the Merits. (Doc. 45.) In the R&R, the
Magistrate Judge recommends that Petitioner’s Complaint be dismissed with prejudice.
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C),
including notice that the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947
(6th Cir. 1981). 1 Petitioner has not filed objections to the Magistrate Judge’s September
11, 2012 R&R on the Merits. Instead, Petitioner has filed a Motion to Strike Magistrate’s
R&R. (Doc. 51.) Petitioner argues that the R&R is untimely and prematurely filed.
Petitioner also requests that the Magistrate Judge recuse himself.
The basis for Petitioner’s Motion to Strike requires a discussion of the procedural
history of this case. On August 8, 2011, Magistrate Judge Karen Litkovitz, to whom this
case was previously referred, recommended that this matter be stayed pending
1

A notice was attached to the Magistrate's Report and Recommendation regarding
objections. (Doc. 45, at 45.)

Petitioner’s exhaustion of his Ohio remedies. (Doc. 17.) This Court adopted that R&R
without objection, and this matter was stayed until May 30, 2012. (Doc. 24.) Upon the
lifting of the stay, Respondent was ordered to file a supplemental return of writ within
forty days of entry of the Magistrate Judge’s Order. This case was then transferred to
Magistrate Judge Merz, to whom this case is now referred. 2 Magistrate Judge Merz reiterated that the deadline for the supplemental return of writ was July 9, 2012, and
informed Petitioner that any reply would be due twenty days after the filing of the
supplemental return of writ.
Respondent timely filed the supplemental return of writ on July 9, 2012. (Doc.
31.) The Magistrate Judge again notified Petitioner that any reply would be due no later
than August 2, 2012. (Doc. 36.) Instead of filing a reply, Petitioner filed a motion for
extension of time, which was granted. (Docs. 37, 38.) The Magistrate Judge informed
Petitioner that his new deadline was October 1, 2012. (Doc. 38.) On August 8, 2012,
Petitioner filed a Motion for Leave to Conduct Additional Discovery (Doc. 40) and on
August 13, 2012, Petitioner filed a Motion for Appointment of Counsel (Doc. 41).3
Petitioner had previously filed a Motion for an Evidentiary Hearing on July 27, 2012.
(Doc. 35.)
On August 24, 2012, Petitioner filed his “Traverse to the Supplemental Return.”
(Doc. 43.)
On September 11, 2012, the Magistrate Judge denied the pending motions

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Petitioner objected to the transfer on the basis that Magistrate Judge Litkovitz was
already familiar with the case and Petitioner’s belief that the Clerk’s office in Dayton would not
provide timely notice of this Court’s decisions. (Doc. 28.) These objections were overruled.
(Doc.29.) Petitioner filed a Motion to Reconsider (Doc. 33), which was denied (Doc. 34.).
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The Magistrate Judge denied this Motion for the reasons previously given.

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relating to an evidentiary hearing and additional discovery and recommended that
Petitioner’s petition be dismissed with prejudice. (Doc. 45.) Petitioner was informed
that any objections were due fourteen days after being served with the R&R.
On September 18, 2012, Petitioner filed a document entitled “Petitioner’s
Traverse to Return of Writ.” (Doc. 46.) The Magistrate Judge struck this document,
explaining:
On August 1, 2012, Petitioner sought an extension of sixty days to file
traverses to both the original Return and Supplemental Return (Doc. No.
37). In response, the Court granted an extension to file “a reply/traverse”
(Order, Doc. No. 38, PageID 1776). Petitioner filed a Traverse on August
24, 2012 (Doc. No. 43). The Court did not grant leave to file two separate
traverses. Considering the matter to be ripe in light of the Petitioner’s
filing the traverse he was permitted, the Magistrate Judge prepared and
filed a forty-five page Report and Recommendations on the merits of the
case.
(Doc. 47, at 1-2.)

However, the Magistrate Judge granted Petitioner leave “to

incorporate any arguments he believes have not been addressed in his objections to the
Report and Recommendations, which must be filed by September 28, 2012.” (Id. at 2.)
Petitioner did not file any objections by that date.
Instead, on September 21, 2012, Petitioner then filed a Motion for Relief from
Judgment (Doc. 48), arguing that the R&R was entered twenty days before his traverse
was due.

Petitioner also asked that the case be reassigned to Magistrate Judge

Litkovitz. The Magistrate Judge denied the Motion in its entirety. (Doc. 49.)
On September 26, 2012, Petitioner filed a Motion for Extension of Time. (Doc.
50.)

Petitioner sought an additional sixty days to file objections to the R&R.

The

Magistrate Judge granted the motion and gave Petitioner until November 19, 2012 to
file his objections. Again, Petitioner failed to file any objections by that date. Instead,

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on October 3, 2012, Petitioner filed his Motion to Strike which is the subject of this
Order.
On November 15, 2012, Petitioner sought another extension of time and a
response to the Magistrate Judge’s Memorandum regarding recusal. (Doc. 52.) On
November 15, 2012, the Magistrate Judge denied the extension of time. Petitioner did
not file anything in response to this decision.
“[W]hile pro se litigants may be entitled to some latitude when dealing with
sophisticated legal issues, acknowledging their lack of formal training, there is no cause
for extending this margin to straightforward procedural requirements that a layperson
can comprehend as easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir.
1991). Even assuming that there was a reasonable misunderstanding as to whether
Petitioner was permitted to file two separate traverses, the Magistrate Judge made it
clear to Petitioner that he was to incorporate any arguments he would like presented in
his objections. The Magistrate Judge then gave Petitioner approximately two months to
complete this process. However, Petitioner failed to file any objections within that time
period.
The failure to file timely objections to an R&R after being advised to do so
constitutes a waiver of the right to further judicial review. See Thomas v. Arn, 474 U.S.
140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate's factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.”); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995) (“As long as a party was properly informed of the consequences of
failing to object, the party waives subsequent review by the district court and appeal to

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this court if it fails to file an objection.”). Accordingly, the Court finds there are no
grounds to strike the Magistrate Judge’s R&R and hereby adopts the Magistrate
Judge’s September 11, 2012 R&R on the Merits.
As part of his Motion to Strike, Petitioner also requests that the Magistrate Judge
recuse himself.

The Magistrate Judge has addressed this part of the Motion in a

Memorandum and has declined to recuse himself from further participation. (Doc. 52.)
Petitioner responded to the Magistrate Judge’s Memorandum. (Doc. 53.) “Rule 72(a)
of the Federal Rules of Civil Procedure requires that a district court judge find a
magistrate judge's decisions concerning nondispositive matters ‘clearly erroneous’
before reversing any such decisions.” Chesher v. Allen, 122 F. App'x 184, 187 (6th Cir.
2005).
Petitioner has failed to articulate an extrajudicial source of the “open display of
contempt and unfairness” he claims the Magistrate Judge has shown. See Youn v.
Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003) (explaining that alleged bias must “stem
from an extrajudicial source and result in an opinion on the merits on some basis other
than what the judge learned from his participation in the case.”) (quoting United States
v. Grinnell Corp., 384 U.S. 563, 583 (1966)). The Court finds the Magistrate Judge did
not abuse his discretion in declining to recuse himself from further participation in this
matter. Therefore, the Magistrate Judge’s decision is not clearly erroneous.
Based on the foregoing, it is hereby ORDERED that:
1. Petitioner’s Motion to Strike Magistrate’s R&R (Doc. 51) is DENIED;
a. There are no grounds for striking the Decision and Order Denying Motions
for Evidentiary Hearing and Additional Discovery; and Report and
Recommendation (“R&R”) on the Merits;

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b. The Magistrate Judge did not abuse his discretion in declining to recuse
himself from further participation in this matter.
2. The Magistrate Judge’s September 11, 2012 Report and Recommendation
(“R&R”) on the Merits. (Doc. 45) is ADOPTED. Accordingly, Petitioner’s Petition
is DISMISSED with PREJUDICE.
3. A certificate of appealability shall not issue with respect to this Order to the extent
that the Court has dismissed the petition with prejudice on procedural statute of
limitations grounds, because under the first prong of the applicable two-part
standard established in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists
of reason” would not find it debatable whether this Court is correct in its
procedural ruling. Petitioner remains free to request issuance of the certificate
from the Court of Appeals. See 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b);
4. With respect to any application by petitioner to proceed on appeal in forma
pauperis, 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 therefore the Court DENIES
any application by petitioner to proceed on appeal in forma pauperis. See Fed.
R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
Petitioner remains free to apply to proceed in forma pauperis in the Court of
Appeals.
5. This matter shall be CLOSED and TERMINATED from the docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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