Dixon v. Mohr et al

Filing 24

MEMORANDUM ORDER: (1) Plaintiff's 4 Motion to stop out of state transfer is DENIED; (2) Plaintiff's 17 Motion to appoint attorney is DENIED; (3) Plaintiff's 16 Motion to proceed without payment and reduce number of copies is DEN IED AS MOOT regarding the request to proceed without payment and DENIED regarding the request to reduce number of copies; (4) Plaintiff's 18 Motion for emergency assistance is DENIED; (5) Plaintiff's 19 Motion for all records is DENIED; (6) Plaintiff's 20 Motion for lie detector test is DENIED; (7) Plaintiff's 21 Motion for emergency automatic jury trial is DENIED; and (8) Plaintiff's 22 Motion for more time and 23 Motion for time extension are both DENIED AS MOOT. Signed by Magistrate Judge J. Gregory Wehrman on 5/25/12. (mtw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

WILLIAM DIXON,
Plaintiff

Case No. 1:12-cv-294
Dlott, J.
Wehrman, M.J.

vs
GARY MOHR, et al.,
Defendants
MEMORANDUM ORDER
Pending are several motions filed by pro se plaintiff, who is incarcerated. After
review, the Court concludes the motions should be denied without defendants, who have not
yet filed a response to plaintiff’s §1983 complaint, being required to respond to any of the
motions.
Plaintiff’s prolix, handwritten, partially illegible complaint is very difficult to
decipher, as are many of his other pleadings. Generally, plaintiff accuses various state prison
officials of failing to protect him adequately from other inmates. I recently issued a report and
recommendation in which I concluded that most of plaintiff’s causes of action should be
dismissed, with only a failure to protect claim against three defendants being allowed to
proceed. Doc. 14. This memorandum order addresses several of plaintiff’s miscellaneous
motions which were not discussed in my report and recommendation.
I. Motion to Stop Out of State Transfer
The first motion to be addressed will be plaintiff’s motion to stop an out of state
transfer. Doc. 4. In relevant part, the motion to stop out of state transfer asks the Court to
“ask O.D.C. [presumably the Ohio Department of Corrections] to stop any out of state
transfer. I [plaintiff] feel Oakwood P.C. will be safe enough for William Dixon. The out of
state move violates my due process and rights.” Doc. 4. As I construe it, therefore, plaintiff
is asking the Court to require the Ohio Department of Corrections, which is not a named
defendant, to house plaintiff in a specific correctional facility. Plaintiff does not have a

constitutional right to be housed in any particular facility and the Court affords correctional
departments great discretion in determining where to house inmates. See, e.g., Ward v. Dyke,
58 F.3d 271, 274 (6th Cir. 1995) (“Prisoners do not have a constitutional right to be
incarcerated in any particular institution. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532,
49 L.Ed.2d 451 (1976). Moreover, the Supreme Court has held repeatedly that the ability to
transfer prisoners is essential to prison management, and that requiring hearings for such
transfers would interfere impermissibly with prison administration. Id.; Olim v. Wakinekona,
461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Montanye v. Haymes, 427 U.S. 236, 96
S.Ct. 2543, 49 L.Ed.2d 466 (1976). ‘Whatever expectation the prisoner may have in
remaining at a particular prison so long as he behaves himself, it is too ephemeral and
insubstantial to trigger procedural due process protections as long as prison officials have
discretion to transfer him for whatever reason or for no reason at all.’ Meachum, 427 U.S. at
228, 96 S.Ct. at 2540.”).
In addition, there is no concrete indication in the motion that plaintiff is actually being
transferred to a facility located outside Ohio (or to which extraterritorial facility plaintiff
would be transferred). The Court cannot grant relief to plaintiff based upon vague conjecture
and theories. In any event, there is an “entire body of caselaw” holding that “a prisoner
simply has no right to complain if the state decides to house him outside its borders . . . .”
Evans v. Holm, 114 F.Supp.2d 706, 713 (E.D.Tenn. 2000). The motion to stop out of state
transfer will be denied.
II. Motion to Appoint Attorney
Plaintiff next asks the Court to appoint an attorney for him because he purportedly has
limited access to legal materials and his safety is not being adequately protected by
defendants. Doc. 17. It is unclear how the appointment of an attorney would result in a
tangible and immediate increase in plaintiff’s safety. Moreover, the Court expects all
correctional officials will comply with their duty to provide proper safety to plaintiff and to

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provide plaintiff with access to properly obtainable and discoverable legal materials, provided
that plaintiff has made a legally and procedurally proper request for materials in accordance
with all applicable local and federal rules of procedure.
In addition, the law does not require the appointment of counsel for indigent plaintiffs
in cases such as this, nor has Congress provided funds with which to compensate lawyers who
might agree to represent those plaintiffs. Moreover, there are not enough lawyers who can
absorb the costs of representing persons on a voluntary basis to permit the Court to appoint
counsel for all who file cases on their own behalf. The Court makes every effort to appoint
counsel in those cases which proceed to trial, and in exceptional circumstances will attempt to
appoint counsel at an earlier stage of the litigation. No such exceptional circumstances appear
in this case. Therefore, plaintiff's motion for appointment of counsel will be denied
III. Motion to Proceed Without Payment and Reduce Number of Copies
The Court has already issued an order granting plaintiff’s request to proceed in forma
pauperis and has denied plaintiff’s request to be exempt from paying a filing fee. Docs. 6, 12.
The aspect of the motion in which plaintiff again asks to proceed without payment is
duplicative and accordingly will be denied as moot. Turning to the remainder of the motion,
it is unclear what relief plaintiff specifically seeks as the motion provides only in relevant part
that “I need a reduced # of copies, I have no access to copies or paper.” Doc. 16.
Presumably, plaintiff seeks to only submit one copy of any pleading to the Clerk of Court with
the expectation that the Clerk will serve as plaintiff’s agent for service by providing a copy of
all of plaintiff’s pleadings to defendants.
Federal Rule of Civil Procedure 5(a) requires copies of motions and other documents
to be filed upon “every party . . . .”

Indeed, “[p]roper service of pleadings and other court

papers upon an opposing party is fundamental to the functioning of our adversarial system . . .
.” Robinson-Reeder v. American Council on Educ., 626 F.Supp.2d 11, 19 (D.D.C. 2009).
Plaintiff chose to initiate this action and his status as an incarcerated prisoner who has been

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granted in forma pauperis status does not relieve him of the fundamental obligation to serve a
copy of all documents which he desires to be filed in the record upon all parties in accordance
with the applicable rules of procedure. Plaintiff has cited to no authority which would not
require him to properly serve defendants with all pleadings. The motion for reduced copies
will be denied.
IV. Motion for Emergency Assistance
Plaintiff’s next motion asks the Court to direct him to be transferred to protective
custody. Doc. 18. The Court expects correctional officials to perform their duty to provide
adequate protection to plaintiff and all incarcerated persons. However, nowhere in the motion
does petitioner concretely assert that he has formally requested correctional officials to place
him in corrective custody.1 Plaintiff must exhaust his administrative remedies at his place of
incarceration by specifically requesting to be placed in protective custody before seeking
relief from the Court.
V. Motion for “All Records”
Plaintiff next asks the Court to order defendants “to release any and all medical files
and reports.” Doc. 19. Plaintiff’s motion is fatally vague in that it does not specify precisely
which medical files and reports he seeks.
In addition, there is no concrete indication that plaintiff has properly asked the
appropriate prison officials for the documents and files in question.2 Local Rule 37.1 provides

Plaintiff devotes most of the one-page motion to a claim that he was denied access to
his records and “copies of stuff” and claims that he “need[s] transferred to have access to file
this case and respond to courts [sic] responsces [sic].” Doc. 18. A transfer to protective
custody is not appropriate in order to provide plaintiff with more ready access to legal
materials. Plaintiff does state that he has placed “over 75 kites informal complaints, and
request[s].” Id. It is unclear what an informal “kite” involves. Notably, however, plaintiff
does not state that any of his informal complaints related directly to protective custody, nor
does plaintiff explicitly state that he has formally asked to be placed in protective custody.
1

The motion only confusingly provides that plaintiff has “submitted over 75
complaints” to prison officials about various topics but there is no concrete indication that
those requests specifically involve the documents at issue in the motion.
2

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in relevant part that “[o]bjections, motions, applications, and requests relating to discovery
shall not be filed in this Court, under any provision in Fed. R. Civ. P. 26 or 37 unless counsel
have first exhausted among themselves all extrajudicial means for resolving the differences.”
In addition, Local Rule 37.2 provides in relevant part that a motion to compel discovery “shall
be accompanied by a supporting memorandum and by a certification of counsel setting forth
the extrajudicial means which have been attempted to resolve differences.” Accordingly,
before seeking relief from the Court a discovery request must have been issued and the entity
to whom the request was made must have declined to provide all the requested items. After
the declination, the requesting party and the entity to whom the request was made must then
attempt to resolve their differences amongst themselves. Only if the parties are unable to
resolve their discovery disputes themselves may relief be sought from the Court. Plaintiff is
cautioned that the Court will summarily deny any future discovery-related motions which fail
to comply with all applicable rules of procedure, including LR 37.1 and 37.2.
VI. Motion for Lie Detector Test
Plaintiff next asks the Court to order a lie detector test to be administered to both him
(plaintiff) and then to “everyone else . . . .” Doc. 20. Plaintiff’s motion is frivolous and will
be denied as such.
VII. Motion for “Emergency Automatic ‘Jury Trial’ for Relief”
Defendant asks the Court to order an immediate jury trial. Doc. 21. This case is
nowhere near being ready for trial. In fact, defendants have not yet responded to the
complaint by filing an answer or motion to dismiss.
Unless judgment on the pleadings or a motion to dismiss is granted during the infancy
of a case, the Court permits the parties a period of time to engage in discovery (the period of
time when the parties can obtain relevant information from each other and sometimes from
third-parties). After discovery has been completed, the parties may file written motions with
the Court explaining why the opposing party’s case lacks legal merit (i.e., a dispositive

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motion–a motion which resolves all or some of the claims in a case). A case may progress to
trial only if the Court denies the dispositive motion(s) because there are sufficient legal
and/or factual issues which necessitate a trial. The motion for automatic, immediate jury trial
will be denied.
VIII. Motion for More Time/Motion for Time Extension
On April 23, 2012 the Court issued a deficiency order requiring plaintiff to submit a
certified copy of his inmate trust fund account statement or pay the $350 filing fee. Doc. 2.
Plaintiff’s two prisoner trust fund account statements were filed on May 4, 2012 [Doc. 7] and
May 8, 2012. Doc. 11. The Court granted plaintiff’s motion to proceed in forma pauperis on
May 21, 2012. Doc. 12.
On that same date plaintiff’s motion for more time to comply with the deficiency order
was filed [Doc. 22] and two days later plaintiff filed the very similar motion for time
extension. Doc. 23. Plaintiff has sufficiently complied with the deficiency order, as
evidenced by the fact that the Court granted plaintiff’s motion to proceed in forma pauperis.
Accordingly, both the motion for more time and motion for time extension will be denied as
moot.
IX. Conclusion
For the foregoing reasons, IT IS ORDERED:
1. Plaintiff’s motion to stop out of state transfer [Doc. 4] is denied; and
2. Plaintiff’s motion to appoint attorney [Doc. 17] is denied; and
3. Plaintiff’s motion to proceed without payment and reduce number of copies [Doc.
16] is denied as moot regarding the request to proceed without payment and denied
regarding the request to reduce number of copies; and
4. Plaintiff’s motion for emergency assistance [Doc. 18] is denied; and
5. Plaintiff’s motion for all records [Doc. 19] is denied; and
6. Plaintiff’s motion for lie detector test [Doc. 20] is denied; and

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7. Plaintiff’s motion for emergency automatic jury trial [Doc. 21] is denied; and
8. Plaintiff’s motion for more time [Doc. 22] and motion for time extension [Doc. 23]
are both denied as moot.
This the 25th day of May, 2012.

s/ J. Gregory Wehrman
J. Gregory Werhman
United States Magistrate Judge

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