McDougald v. Bear et al

Filing 29

ORDER denying 14 Motion for Reconsideration. Signed by Judge Michael R. Barrett on 3/22/18. (ba)(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

JERONE MCDOUGALD
Plaintiff,
v.

Case No. 1:17cv124
Judge Michael R. Barrett

SHANNON BEAR, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion for Relief from Judgment (Doc. 14).
Defendants filed a response (Doc. 22) and Plaintiff filed a reply (Doc. 23).
I.

BACKGROUND/FACTS
On April 20, 2017, the Magistrate Judge issued a Report and Recommendation (“R&R”)

recommending that the claims against defendants Walter Sammons, Susan Feltz, Larry Green
and Director Gary Mohr be dismissed with prejudice, but permitted Plaintiff’s claims against the
remaining parties to move forward. (Doc. 6). On May 22, 2017, after the time to file objections
had run, the undersigned adopted the Magistrate Judge’s R&R. (Doc. 9). In the Order, the Court
noted that while notice of the R&R was served upon Plaintiff, it was returned to the Court. (Id.).
However, the Order mistakenly noted that the mail was returned due to Plaintiff’s failure to
apprise the Court of his change of address. (Id.). While the mail was returned as undeliverable,
the docket indicates it was actually returned because it was refused by Plaintiff. (Doc. 7).
On June 9, 2017, Plaintiff filed the instant motion, moving for relief from the Order (Doc.
9) adopting the Magistrate Judge’s R&R. He asserts his address has not changed, as he is still at
the Southern Ohio Correctional Facility (“SOCF”). (Doc. 14, PageID 70). He argues that the

SOCF staff has “been falsely documenting that plaintiff has been refusing legal mail and giving
other false information to [the] federal court stating the plaintiff’s address has change[d]…” (Id.)
II.

ANALYSIS
Rule 60(b) outlines the circumstances in which relief from a court’s final judgment or

order is appropriate:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). The party seeking relief bears the burden of proving entitlement to relief
by clear and convincing evidence. Info-Hold, Inc. v. Sound Merchandising, 538 F.3d 448, 454
(6th Cir. 2008).
In response to Plaintiff’s motion, Defendants attach copies of the “Legal Mail Log”
utilized by SOCF to track incoming legal correspondence. The Legal Mail Log includes the date
received, the inmate’s name and number, and the sender’s name and address. (See Doc 22-1).
Upon receipt, the inmate signs and dates the Legal Mail Log. (Id.).
The Legal Mail Log clearly shows that April 26, 27, and 28 are the only dates in which
Plaintiff’s legal mail was refused. (Id). On April 27, the Legal Mail Log notes next to Plaintiff’s
name, “I/M refusing all legal mail until he receives legal pick up.” (Id. at PageID 37). Since
then, Plaintiff apparently has been receiving his legal mail without issue.
Plaintiff’s reply attaches a Disposition of Grievance wherein Plaintiff filed a grievance
similarly alleging SOCF mail workers were falsifying documents. (Doc. 23, PageID 231).

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Plaintiff’s grievance was denied. (Id.).
Plaintiff’s motion is without merit for several reasons. First, there has been no final
judgment or order that would entitle Plaintiff to the relief he has requested. However, even if the
Court considers the merits of Plaintiff’s motion, he provides no evidence that the Legal Mail Log
was falsified. Rather, it appears as though Plaintiff chose to refuse his legal mail until his
outgoing mail was picked up. Accordingly, Plaintiff has not met his burden under Rule 60(b)(3).
To the extent Plaintiff makes an excusable neglect argument under Rule 60(b)(1), it likewise
fails. Missing a deadline because Plaintiff chose to refuse his legal mail does not constitute
excusable neglect.
III.

CONCLUSION
Considering the foregoing, Plaintiff’s Motion for Reconsideration (Doc. 14) is DENIED.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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