Foster v. Ohio State of

Filing 65

OPINION AND ORDER - IT IS ORDERED THAT: (1) Plaintiff's motion to investigate 48 is DENIED; (2) The Court will take no further action on the document captioned as "Mandamus With Mittimus Necessity" 50 ; (3) Plaintiff's duplicat e motion to strike Answer and motion for relief from prior order by the undersigned magistrate judge 57 , to the extent construed as motions for reconsideration of prior rulings, is DENIED. However, to the extent that any portion of Document 57 may be construed as objections to the prior Order of the undersigned magistrate judge under Rule 72(a), the motion should be resubmitted as objections to the presiding district judge; (4) Plaintiff's motion for relief from Void Bias Judgment 59 li kewise is DENIED to the extent construed either as a motion for reconsideration of prior rulings or a motion seeking recusal of the undersigned magistrate judge. To the extent that the same motion may be construed as objections to a prior Order of th e undersigned magistrate judge, it should be resubmitted as objections to the presiding district judge; (5) Defendant's motion for leave to file Dr. Ahmed's Answer Instanter, and the joint motion of all Defendants for leave to file an Amend ed Answer 62 63 are GRANTED, with the Answers to be filed; (6) In light of paragraph 5 of this Order and the filing of Defendant Dr. Ahmed's Answer, Plaintiff's application for the ministerial entry of default by the Clerk of Court 60 shall be stayed; (7) Defendants shall file any response to Plaintiff's motion for preliminary injunction and temporary restraining order 58 by 9/18/2017, with Plaintiff to file any reply not later than 10/2/2017, following which the undersign ed shall issue a Report and Recommendation on all dispositive motions that are then pending and fully ripe, including but not limited to Plaintiff's motion for entry of default judgment against Defendant Dr. Ahmed. Signed by Magistrate Judge Stephanie K. Bowman on 9/12/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER FOSTER,

Case No. 1:16-cv-920

Plaintiff,

Black, J.
Bowman, M.J.

v.
STATE OF OHIO, et al.,
Defendants.

OPINION AND ORDER
I. Background
Plaintiff, a prisoner currently incarcerated at the Southern Correctional Facility
(SOCF) and a prolific litigant in both the state and federal courts of Ohio, 1 filed this
§1983 action alleging violations of his civil rights while he was incarcerated at the
Toledo Correctional Institution (ToCI), as well as after his transfer to SOCF. His original
complaint alleges that in September 2014, while at ToCI, he sought help from Chief
Inspector Roger Wilson because he was treated like an animal. On September 12,
2014, he alleges that ToCI Warden Coleman ordered ToCI officers to take and dispose
of Plaintiff’s legal work and other property. After his transfer to SOCF, Plaintiff alleges
that he was subjected to racist and derogatory remarks, and was physically assaulted

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See, e.g., Southern District of Ohio Case Nos: 1:14-cv-617; 1:14-cv-668; 1:14-cv-642; 1:15-cv-595; 1:15cv-713; 1:16-cv-835;1:16-cv-846; see also Northern District of Ohio Case Nos. 3:15-cv-404; 3:16-cv-658;
3:16cv-2109; 3:16-cv-2168; 3:15-cv-2256; 3:16-cv-476; 3:16-cv-1535; 316-cv-1715. In addition, a recent
filing by Plaintiff himself prompted this Court to briefly examine state court filings, which reflect fourteen
cases filed by Plaintiff in the Ohio Court of Claims alone, plus a sufficient number of additional cases in
the Franklin Court of Common Pleas to cause that court to consider whether Plaintiff should be deemed a
“vexatious litigator.”

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by a number of officers, including Defendants Rankin, Southworth, Neff, Parish, and
John Doe, and possibly Workman. Plaintiff alleges that Defendant “Dr. Ahmed Fiscal”
denied him medical care after the assault, and continues to deny him care for a skin
disease.

The original complaint contains additional allegations regarding Plaintiff’s

conditions of confinement, as well as an attack on Plaintiff’s conviction and sentence.
As he had in prior lawsuits, Plaintiff sought to file his complaint in forma pauperis
(“IFP”) or without the upfront payment of any filing fee. In 1996, Congress enacted the
Prison Litigation Reform Act (“PLRA”), which requires prisoners to pay filing fees for the
suits or appeals that they file, even if they proceed IFP.

If IFP status is granted,

payment of the filing fee is collected over time through the deduction of partial payments
from an inmate’s prison account (when funds exist) through a monthly installment
scheme. 28 U.S.C. § 1915(b)(2). The PLRA also includes a “three-strikes provision,”
whereby “[p]risoners whose suits or appeals are dismissed three or more times as
frivolous, malicious, or failing to state a claim on which relief may be granted are barred
from proceeding IFP ‘unless the prisoner is under imminent danger of serious physical
injury.’” Bruce v. Samuels, 136 S. Ct. 627, 630 (2016) (citing 28 U.S.C. § 1915(g)).
Based upon Plaintiff’s litigation history in this Court, the undersigned filed an
R&R recommending that Plaintiff’s motion to proceed in forma pauperis be denied, as
he had previously filed three or more cases that had been dismissed at the screening
stage, and had failed to demonstrate “imminent danger” under 28 U.S.C. § 1915(g).
However, the presiding district judge rejected that R&R on December 5, 2016,
determining that Plaintiff had “adequately alleged imminent harm in a manner sufficient
to allow the Court to grant him in forma pauperis status,” (Doc. 9 at 3, PageID 37).
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Thereafter, the undersigned conducted a full screening of the merits of Plaintiff’s claims
under 28 U.S.C. § 1915(e) and permitted the following of Plaintiff’s claims to proceed:
(1) Eighth Amendment excessive force claims against defendants Rardin,
Southworth, Neff, Parish, John Doe, and Workman based on plaintiff’s
allegation that these officers attacked him upon his arrival to SOCF; (2)
excessive force claim against Sgt. Bear based on the January 17, 2017
attack; (3) deliberate indifference claim against Dr. Ahmed Fiscal; and (4)
conditions of confinement claims at SOCF, including plaintiff’s claims
regarding wheelchair accessibility, against defendants Warden Erdos,
Dyer, and Bear. Having found that the remaining allegations in the
complaint fail to state a claim upon which relief may be granted, the
remainder of the complaint should be dismissed.
(Doc. 12 at 12, PageID62; adopted at Doc. 25). The undersigned directed the U.S.
Marshal to serve a copy of the complaint as supplemented upon Defendants Rardin,
Southworth, Neff, Parish, Workman, Bear, Faisal, Erdos and Dyer. (Doc. 18).
Initially, service was perfected on Defendants Rardin, Parish, Bear, Erdos and
Dyer, but was not perfected on Defendants Southworth, Neff, Workman, or Dr. “Ahmed
Fiscal” – whose name defense counsel has recently clarified to be “Dr. Faisal Ahmed.”
On June 12, 2017, the undersigned recommended that Defendant Southworth be
dismissed by this Court based upon his death in July 2014; that R&R was adopted over
Plaintiff’s objection on August 16, 2017. (Doc. 56). Pursuant to the same R&R and
Order, summons was issued to the three remaining Defendants: Neff, Workman, and
Dr. Ahmed. 2 (Docs. 43, 44, 45). On August 2, 2017, Defendants Neff and Workman
filed their Answer. (Doc. 51). The Answer indicated that counsel was filing as an

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Plaintiff was unable to provide correct addresses for these four Defendants. Therefore, on May 16,
2017, the Court ordered the Office of the Attorney General to provide information in camera concerning
whether or not the unserved Defendants were still employed with the Ohio Department of Rehabilitation
and Corrections, and the addresses where they might be served. Counsel’s response confirmed the
death of Defendant Southworth, and provided information used for reissuance of new summons to the
remaining three Defendants.

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“Interested Party” on behalf of the State of Ohio in place of Dr. Ahmed, until a request
for representation had been received from that Defendant. (Id.)
II. Pending Motions
Since initiating this case, Plaintiff has filed at least twenty-four motions seeking
various forms of relief, in addition to other documents that are not captioned as
motions. 3 Six motions filed by Plaintiff are currently pending, as well as two motions
recently filed by Defendants. (Docs. 48, 57, 58, 59, 61, 62, 63). This Opinion and
Order addresses most of those pending motions.
A. Motion To Investigate (Doc. 48)
On July 21, 2017, Plaintiff filed a “motion to investigate” in which Plaintiff
generally complains about his conditions of confinement, allegedly inadequate medical
care, and/or failure of Defendants to diagnose or treat him for the skin disease of
“scabies” which Plaintiff alleges he has been “advised” by another inmate or inmates
that he may be suffering from, and which Plaintiff fears will be the cause of his death.
(Doc. 48). Plaintiff seeks in his “motion: to investigate” the following relief: (1) an order
sending “a court specialist immediately to take pictures (court master) of my legs and
condition to show that I am telling the truth” and to provide proof of Plaintiff’s claim of
“imminent danger”; (2) correction of a citation error in Plaintiff’s objections to the R&R;
and (3) an order requiring the U.S. Marshal Service “to pick me up & deliver me to Ohio
State penitentiary until I am released from prison….”; and to (4) “act on this motion with
haste and caution” to investigate imminent danger on Plaintiff’s behalf.

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(Doc. 48 at 4-

The Court’s last order noted that “Plaintiff has inundated this Court by filing 18 motions through June 2,
2017.”

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5). Plaintiff lists a fifth item in his motion, but the undersigned is unable to ascertain its
meaning. 4
Plaintiff’s motion will be denied. Plaintiff’s in forma pauperis status entitles him
only to proceed in this suit without the full upfront payment of a filing fee. However, his
IFP status does not entitle Plaintiff to an investigator or to a photographer to document
his alleged medical condition or any other condition of confinement.

Plaintiff’s

objections have already been ruled on by the presiding district judge, rendering the
requested correction of the citation error as moot.

The third and fourth requests – for

an order requiring transport to a different Ohio prison and/or to “act…with haste and
caution” to investigate the “imminent danger” that Plaintiff allegedly faces, both will be
denied as procedurally improper requests in the context of the pending non-dispositive
motion to investigate, and because they are duplicative of his motion for preliminary
injunctive relief.
B. Additional Document (non-motion) (Doc. 50)
On August 2, 2017, Plaintiff filed a “Mandamus with Mittimus [sic] Necessity Due
to Contemporaneous Imminent Danger Raised in Docs. 1,2, 14 and 16 of this litigation.”
(Doc. 50).

Because the document was not styled as a motion, it was not docketed as

such. However, the undersigned notes that the motion could be construed as a motion
seeking preliminary injunctive relief and/or a temporary restraining order. The body of
the motion contains a reference to “Rule 65(b)(1)” and seeks a “restraining order from
S.O.C.F. due to my current long term status quo that was described in (Doc. 25).” (Doc.

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The fifth item of relief (listed as item 4 on page 4 of his motion) states: “The Northern District Court did
appoint an attorney for that case, but that is strictly a case on Toledo (3:15-cv-404 (N.D.) & unlikely to be
able to aid fast/soon enough for this sought of safety/remedy is the sole purpose of this matter herein.”
(Id. at 4).

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50 at 1). Plaintiff’s reference to “Doc. 25” appears to be a reference to Judge Black’s
Decision and Entry dated April 18, 2017, which adopted an R&R filed on February 28,
2017. (Doc. 12). Because the document is not properly captioned and provided no
notice to the Defendants (or indeed to the undersigned) that Plaintiff sought any relief
from this Court, and because Plaintiff has filed another motion that more clearly seeks
duplicative injunctive relief, the undersigned declines to construe this document as a
separate motion and will take no action on it.
C. Motion for Relief from Magistrate Judge’s Order and Motion to
Strike Answer (Doc. 57)
On August 21, 2017, Plaintiff filed a “motion for relief from Magistrate Judge’s
Order,” seeking reconsideration of and/or objecting to the order filed on June 12, 2017,
that had denied multiple prior motions filed by Plaintiff. (Doc. 57). The same document
has been filed as a joint “motion to strike Answer to Complaint.” To the extent that the
Plaintiff’s motion is referred to the undersigned magistrate judge, the undersigned finds
no cause to reconsider her prior rulings. 5

In addition, to the extent the motion is

construed as objections, such objections appear to be untimely as they were filed far
beyond the fourteen-day period after service of the order. Pursuant to Rule 72(a), “[t]he
district judge in the case must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to law.” Id. (emphasis added).
Regardless, this particular motion appears to be directed to the presiding district judge,
U.S. District Judge Black, as the motion’s “conclusion” section specifies that Plaintiff
seeks relief from him rather than the undersigned.

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The undersigned previously granted certain Defendants leave to file an Answer Instanter It is that
Answer that Plaintiff apparently seeks to strike for a second time. (Docs. 38, 43).

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D. Motion for Preliminary Injunction and a Temporary Restraining
Order (Doc. 58)
On August 24, 2017, Plaintiff filed a motion seeking a preliminary injunction and a
temporary restraining order, clearly articulating the immediate injunctive relief he seeks
in this lawsuit. (Doc. 58). The undersigned finds it inappropriate to recommend ruling
on this motion until such time as the motion has been fully briefed.

Defendants have

up to and including September 18, 2017 in which to file any response, following which
Plaintiff will be allotted fourteen (14) days in which to file any reply memorandum.
E. Motion for Relief From Void Bias Judgment re Order on Motion to
Strike (Doc. 59)
On August 28, 2017, Plaintiff filed a motion for “relief from Void Bias Judgment,”
again seeking reconsideration of (and/or objecting to) a prior order of the undersigned
magistrate judge. (Doc. 59, seeking relief from August 15, 2017 order). The motion
repeatedly accuses the undersigned of bias, apparently based solely on adverse rulings
that Plaintiff has received to date. To the extent that the motion is construed as a
motion seeking recusal of the undersigned magistrate judge, the undersigned finds no
cause to recuse, as all rulings have been made in accordance with controlling law, and
no grounds exist that would support recusal based upon any bias or impropriety in this
case.
F. Motions Relating to the Tendered Answer of Dr. Faisel Ahmed
(Docs. 60, 61, 62, 63)
Four additional motions concern the initial failure of “Dr. Ahmed Fiscal,” recently
corrected to “Dr. Faisel Ahmed,” to timely Answer or respond to Plaintiff’s complaint.
On September 1, 2017, Plaintiff filed an application for entry of default against the
referenced Defendant, and separately filed a motion for default judgment on the same
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date. A few days later, on September 5, 2017, defense counsel filed a motion for leave
to file Dr. Ahmed’s Answer Instanter as well as a motion for leave to file an Amended
Answer of all Defendants (including but not limited to Defendant Ahmed). (Docs. 62,
63).
Defense counsel’s motion for leave to file Dr. Ahmed’s Answer out of time
adequately explains the basis for seeking an extension to file that Defendant’s Answer,
under the excusable neglect standard. Applying the relevant factors to this case, the
undersigned finds that counsel has exhibited good faith in promptly filing the delayed
Answer as soon as practicable, and that the initial lack of timeliness by Dr. Ahmed
should be excused. See generally Amick v. Ohio Dep’t of Rehab. & Corr., 2011 WL
4055246 at *2 (S.D. Ohio Sept. 8, 2011). For similar reasons, the undersigned will
grant the request by all Defendants to amend their joint Answer to respond to the added
claims contained in the supplement to Plaintiff’s complaint filed by Plaintiff on January
27, 2017. (See Doc. 63, citing Doc. 10).
The Court’s grant of Dr. Ahmed’s motion to file his Answer Instanter renders
moot Plaintiff’s recently filed application for a Clerk’s entry of default. Technically, the
Plaintiff’s pending motion for default judgment also could be denied as moot. However,
as a dispositive motion, the latter ruling by the undersigned would be by Report and
Recommendation and not included in this Order.
The undersigned has already filed several R&Rs in this case, and will be filing
another R&R in a fairly short time period, once the Plaintiff’s pending motion for
preliminary injunctive relief and a temporary restraining order is ripe and fully briefed.
Considering the anticipated filing of that R&R, judicial economy favors a short delay in
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recommending a formal ruling on the pending motion for default judgment, so that the
ruling might be combined into the anticipated R&R on the pending motion for
preliminary injunctive relief.
III. Conclusion and Order
For the reasons stated, IT IS ORDERED THAT:
1. Plaintiff’s motion to investigate (Doc. 48) is DENIED;
2. The Court will take no further action on the document captioned as
“Mandamus With Mittimus Necessity” (Doc. 50);
3. .Plaintiff’s duplicate motion to strike Answer and motion for relief from prior
order by the undersigned magistrate judge (Doc. 57), to the extent construed
as motions for reconsideration of prior rulings, is DENIED.

However, to the

extent that any portion of Document 57 may be construed as objections to the
prior Order of the undersigned magistrate judge under Rule 72(a), the motion
should be resubmitted as objections to the presiding district judge;
4. Plaintiff’s motion for relief from Void Bias Judgment (Doc. 59) likewise is
DENIED to the extent construed either as a motion for reconsideration of prior
rulings or a motion seeking recusal of the undersigned magistrate judge. To
the extent that the same motion may be construed as objections to a prior
Order of the undersigned magistrate judge, it should be resubmitted as
objections to the presiding district judge;
5. Defendant’s motion for leave to file Dr. Ahmed’s Answer Instanter, and the
joint motion of all Defendants for leave to file an Amended Answer (Docs. 62,
63) are GRANTED, with the Answers to be filed;
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6. In light of paragraph 5 of this Order and the filing of Defendant Dr. Ahmed’s
Answer, Plaintiff’s application for the ministerial entry of default by the Clerk of
Court (Doc. 60) shall be stayed;
7. Defendants shall file any response to Plaintiff’s motion for preliminary
injunction and temporary restraining order (Doc. 58) by September 18, 2017,
with Plaintiff to file any reply not later than October 2, 2017, following which
the undersigned shall issue a Report and Recommendation on all dispositive
motions that are then pending and fully ripe, including but not limited to
Plaintiff’s motion for entry of default judgment against Defendant Dr. Ahmed.

/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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