Geraci v. Mohr et al

Filing 9

REPORT AND RECOMMENDATION that plaintiff's 8 MOTION to Dismiss be Granted and the complaint 1 Complaint be Dismissed without prejudice. It is further RECOMMENDED that the prior motions 4 , 5 to dismiss and for leave to proceed informa pauperis be Denied as Moot. Objections to R&R due by 12/24/2012. Signed by Magistrate Judge Karen L. Litkovitz on 12/6/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MATTEW A. GERACI,
Plaintiff,
vs
GARY MOHR, et al.,
Defendants.

Case No. 1:12-cv-771
Beckwith, J.
Litkovitz, M.J.
REPORT AND
RECOMMENDATION

On October 9, 2012, a pro se complaint was filed on behalf of plaintiff, who was alleged
to be an inmate at the Correctional Reception Center (CRC) in Orient, Ohio. (Doc. 1). On
November 5, 2012, after a Deficiency Order was issued requiring plaintiff to either pay the $350
filing fee or file an in forma pauperis application, Alonzo Shephard, another inmate at CRC who
claims he is plaintiffs "prose counsel" and "helper," filed a motion on plaintiffs behalf to
dismiss the complaint with prejudice followed by a motion for leave to proceed in forma
pauperis. (Docs. 4, 5). Because it appeared on close review of the complaint that it was not

signed by plaintiff and actually may have been prepared and submitted by "pro se counsel &
helper" Shephard, 1 the Court issued an Order on November 21, 2012, requiring plaintiff to
submit a complaint personally signed by plaintiff himself within thirty (30) days if he intends to
proceed with this cause of action. (Doc. 6).
This matter is now before the Court on a motion to dismiss filed in response to the
November 21, 2012 Order by "Matthew A. Geraci," an inmate at the North Central Correctional
Complex in Marion, Ohio. (Doc. 8). In the motion to dismiss filed on December 3, 2012, Geraci
states:
On or about October 9, 2012 an inmate "Shephard" filed a civil complaint in my
1

It is noted that upon close review of the in forma pauperis application, it was also difficult to ascertain
who actually signed that application-either plaintiff himself or a "helper" on plaintifrs behalf. (See Doc. 5, p. 7).

name. If the Court would look on the complaint form - my name is spelled
wrong. This is not my document or filing. I request that this Court would dismiss
this complaint and waive all cost in this action since I did not file or accept this as
my own.
(!d.).

In light of the recent pleading, which appears to be have been filed by the actual person
named as plaintiff in this action, it is RECOMMENDED that the plaintiffs motion to dismiss
filed on December 3, 2012 (Doc. 8) be GRANTED and the complaint (Doc. 1) DISMISSED
without prejudice on the grounds that plaintiffhimselfnever intended to initiate the instant action
and the inmate "helper," Alonzo Shephard, who prepared and filed the complaint on plaintiffs
behalf, had no authority to do so. (See Doc. 6) (and cases cited therein). It is FURTHER
RECOMMENDED that the prior motions to dismiss and for leave to proceed in forma pauperis

(Docs. 4, 5), which also appear to have been prepared and filed by Shephard, should be
DENIED as moot.
IT IS SO RECOMMENDED.

Date:

~X~

Karen L. Litkovitz
United States Magistrate Judge

2

~---------------

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1:12-cv-771

MATTEW A. GERACI,
Plaintiff,

Beckwith, J.
Litkovitz, M.J.

vs
GARY MOHR, et al.,
Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent's objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
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