Foster v. Warden, Toledo Correctional Institution

Filing 178

REPORT AND RECOMMENDATIONS re 177 MOTION for Article III Relief Issuance filed by Christopher Foster. In sum, Foster has no standing to insist this Motion be decided in the first instance by an Article III judge. The Motion also has no merit because there is no conflict of interest between the duties assigned as special master in In re Cincinnati Policing and case management in this case. The Motion should be DENIED. Objections to R&R due by 6/13/2023. Signed by Magistrate Judge Michael R. Merz on 5/26/2023. (bjr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:15-cv-00713-MRB-MRM Doc #: 178 Filed: 05/30/23 Page: 1 of 3 PAGEID #: 2330

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CHRISTOPHER FOSTER,
Petitioner,

:

- vs -

Case No. 1:15-cv-713
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

RONALD ERDOS, WARDEN,
Southern Ohio Correctional Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion for Article III Relief
Issuance (ECF No. 177). Foster seeks relief from this Court’s dismissal of his Petition on July 24,
2017 (ECF No. 81).
Initially, Foster seeks District Judge Barrett’s decision on the instant Motion as an Article
III judge, seeking to avoid handling of the Motion by the undersigned whom he characterizes as
an Article I judge. United States Magistrate Judges, although they do not enjoy the lifetime tenure
accorded District Judges under Article III of the Constitution, perform judicial functions in District
Courts, which are Article III courts of the United States. The Judicial Code, 28 U.S.C. Ch. 43,
provides for the appointment of Magistrate Judges and the functions which they may be assigned.
One of those functions is providing reports and recommendations on motions for relief from
judgment under 28 U.S.C. § 636(b)(3) which are reviewable by the assigned District Judge under
Fed.R.Civ.P. 72(b).

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The Judicial Code provides no basis for a litigant to choose whether a District Judge
decides motions himself or herself or, instead, refers those motions to a Magistrate Judge. In this
case, the General Order governing the assignment of matters to Magistrate Judges at the Cincinnati
location of court provided that all habeas corpus case should be thus referred. When Foster filed
this case November 5, 2015, it was randomly assigned to Magistrate Judge Karen L. Litkovitz and
remained with her until November 9, 2016, when she transferred the case to the undersigned, again
acting under the Court’s general orders permitting transfer of cases among Magistrate Judges upon
mutual consent (Transfer Order, ECF No. 34).
On March 10, 2017, the undersigned recommended Respondent’s Motion to Dismiss be
granted (ECF No. 61). On Jul 24, 2017, Judge Barrett entered the judgment from which Foster
now seeks relief, dismissing the Petition with prejudice (ECF No. 82). Foster has attempted many
times and by many different procedural approaches to have that judgment reopened, all without
success.
The instant Motion involves a new approach. Foster threatens that unless the dismissal
judgment is reopened within two weeks, he will expose the fact that he is in prison because I have
not enforced the contract between the City of Cincinnati and the plaintiffs in the Cincinnati racial
profiling case (Motion, ECF No. 177, PageID 2320). By is citations in the Motion, Foster refers
to In re Cincinnati Policing, Case No. 1:99-cv-3170. On August 5, 2002, District Judge Susan J.
Dlott approved a settlement of that case. In re Cincinnati Policing, 209 F.R.D. 395 (S.D. Ohio,
Aug 5. 2002). She reported that she had appointed the undersigned as a special master in the case
on March 25, 2002, “to complete the negotiations referenced in the Order Establishing
Collaborative Procedure and a scheduling order of February 8, 2002.” Id. at 397. Intense
negotiations, described by Judge Dlott as the most intense she had experienced in her career,

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resulted in a Collaborative Agreement which the Court approved in the cited decision. As part of
that Agreement, the undersigned’s role as special master was continued until the Collaborative
Agreement was completed in 2008, years before Foster’s arrest which is at issue. Since then the
undersigned has had no role in the Cincinnati Policing case.
But even if that role had continued through the litigation of this case, it would not have
created the implied conflict of interest of which Foster complains and which he threatens to expose.
The Collaborative Agreement created no new organization of which the undersigned was or was
supposed to be a trustee. As a special master appointed under Fed.R.Civ.P. 53, the undersigned
had no investigative role and received no compensation beyond the salary prescribed for
Magistrate Judges.
In sum, Foster has no standing to insist this Motion be decided in the first instance by an
Article III judge. The Motion also has no merit because there is no conflict of interest between
the duties assigned as special master in In re Cincinnati Policing and case management in this
case. The Motion should be DENIED.
May 26, 2023.
NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.
s/ Michael R. Merz
United States Magistrate Judge
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