Creech v. Warden, Chillicothe Correctional Institution

Filing 67

ORDER DENYING MOTION TO AMEND OR STAY 66 . Signed by Magistrate Judge Michael R. Merz on 10/3/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SCOTT D. CREECH,
Petitioner,

:

- vs -

Case No. 1:15-cv-193
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

ORDER DENYING MOTION TO AMEND OR STAY

This habeas corpus case is pending decision by District Judge Barrett on the Magistrate
Judge’s Report and Recommendations (ECF No. 48) and Supplemental Report and
Recommendations (ECF No. 55). Petitioner has now moved to amend the Petition and/or stay the
proceedings and/or hear a mixed petition (ECF No. 66).
This habeas corpus case was filed more than three and one-half years ago, on March 19,
2015. A year later on March 18, 2016, the Magistrate Judge, at Petitioner’s request and over
Respondent’s objection, stayed these proceedings pending the outcome of Petitioner’s thenpending appeal (Order, ECF No. 23, PageID 2075). On December 27, 2017, the Magistrate Judge
vacated the stay (ECF No. 36). Recognizing Petitioner’s desire to amend, the Court ordered him
to move to amend not later than January 29, 2018, and to show why amendments would not be
time-barred (ECF No. 38). Petitioner then moved to amend (ECF No. 40). When Respondent did
not oppose that motion, the Court granted it and Petitioner filed an Amended Petition (ECF No.
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41). After an Amended Answer (ECF No. 43) and Amended Reply (ECF No. 46), the Magistrate
Judge filed the initial Report and Recommendations (ECF No. 48). Part of Creech’s Objections
was that he still had claims not yet presented to the state courts. In the Supplemental Report after
recommittal, the Magistrate Judge wrote “[a] thread running through the Objections is Petitioner’s
apparent belief that he had a right to a stay until every possible state proceeding was complete.
However, a stay of habeas proceedings to permit exhaustion is discretionary with a District Court.”
(ECF No. 55, PageID 2936.)
In the instant Motion, Petitioner again seeks a stay pending the outcome of state court
proceedings, this time a “Motion to Vacate Void Judgment” in the Scioto County Court of
Common Pleas (ECF No. 66, PageID 3025). He has not provided this Court with a copy of that
Motion nor an outline of the claims made in it nor any suggestion of a reason why it might be well
taken by the trial court. Moreover, Mr. Creech has sought leave to amend “to present all
constitutional claims” without saying what those claims are.

Motion to Amend

Under 28 U.S.C. § 2242, a habeas corpus petition may be amended under the same rules
for amending a complaint in a civil action. The general standard for considering a motion to amend
under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. Davis,
371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
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dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of any allowance of the amendment,
futility of amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182.

See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman

standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th

Cir. 1983);

Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio
March 31, 2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1 (Ovington,
M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”).
Creech has been advised previously in this case that the proper procedure for a motion to
amend is to attach to that motion the proposed amended petition. He has not done that. Without
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such a filing, the Court cannot tell whether or not the amendment would be futile. Moreover, the
Magistrate Judge has in the past ordered Petitioner to show why new claims are not time barred
and the instant Motion contains no attempt at such a showing.
Finally, a motion to amend may be denied if the movant has a dilatory motive. To move
to amend when the case is already pending on dispositive reports and recommendations plainly
evinces such a motive.
Accordingly, the Motion to Amend is DENIED.

Motion to Stay

A district court’s authority to stay a habeas proceeding pending state court action is
recognized in Rhines v. Weber, 544 U.S. 269 (2005). The same case limits our authority to stay to
situations where there is good cause for a petitioner’s failure to exhaust before coming to federal
court. Creech has not done so. Nor has he shown there is any merit to the claims he has now made
in the trial court. Indeed, as noted above, he has not even told this Court what those claims are.
The Motion to Stay is therefore also DENIED.

October 3, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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