Hobbs v. Faulkner et al

Filing 136

ORDER adopting Report and Recommendations re 86 92 97 101 116 and 121 Report and Recommendation; this matter shall remain closed. Signed by Judge Michael R. Barrett on 2/18/20. (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

Ryan D. Hobbs,
Plaintiff,

Case No. 1:17cv441

v.

Judge Michael R. Barrett

Derek Faulkner, et al.,
Defendants.
ORDER
This matter is before the Court upon the following Orders and Report and
Recommendations (“R&R”) of the Magistrate Judge:
Magistrate Judge’s June 28, 2019 R&R (Doc. 86) and July 19, 2019
Supplemental R&R (Doc. 92) recommending that Plaintiff’s second Motion
for Relief from Judgment (Doc. 85) be denied.
Magistrate Judge’s August 16, 2019 R&R (Doc. 97) recommending that
Plaintiff’s third Motion for Relief from Judgment (Doc. 96) be denied.
Magistrate Judge’s August 30, 2019 R&R (Doc. 101) recommending that
Plaintiff’s Motion for Preliminary Injunction (Doc. 100) be denied.
Magistrate Judge’s November 13, 2019 R&R (Doc. 116) recommending
that Plaintiff’s fourth Motion for Relief from Judgment (Doc. 115) be denied.
Magistrate Judge’s November 26, 2019 R&R (Doc. 121) recommending
that Plaintiff’s fifth Motion for Relief from Judgment (Doc. 118) be denied.
Magistrate Judge’s Decision and Order (Doc. 122) denying Plaintiff’s Motion
to Recuse and Strike (Doc. 120).
Magistrate Judge’s Decision and Order denying Plaintiff’s Motion (Doc.
124); and Order to Show Cause. (Doc. 127).
The parties were given proper notice pursuant to Federal Rule of Civil Procedure
72(b), including notice that the parties would waive further appeal if they failed to file

objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947,
949-950 (6th Cir. 1981). Plaintiff has filed objections (Docs. 88, 93, 99, 102, 119, 125,
126, 127, 133) and Defendants have responded to those objections (Docs. 89, 94, 95,
104, 107, 108).
Also before the Court is Plaintiff’s Motion Striking Doc. 127 and By Separate Order
and Entry Granting Recusal or Magistrate Judge Merz. (Doc. 129); Plaintiff’s Motion for
Contempt of Court (Doc. 132); and Motion to Expedite Ruling on Non-Final Post
Judgments Motions to Consolidate on Appeal. (Doc. 110).
I. BACKGROUND
Plaintiff brought a pro se civil rights action pursuant to 42 U.S.C. § 1983 against
Defendants. Plaintiff claims Defendants violated 42 U.S.C. § 1983 by violating his right
to assistance of counsel and right to jury trial; and for violating his rights under Brady v.
Maryland, 373 U.S. 83 (1963). On March 29, 2019, this Court dismissed Plaintiff’s claims
and entered judgment. (Docs. 75, 76). Dismissal was, in part, based upon the Court’s
conclusion that Plaintiff’s claims are not cognizable under 42 U.S.C. § 1983 because his
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
On April 4, 2019, Plaintiff filed a Notice of Appeal. (Doc. 77). Plaintiff then filed
five separate Motions for Relief from Judgment. (Docs. 82, 85, 96, 115, 118). The central
argument in these motions is that Plaintiff is entitled to relief pursuant to Federal Rule of
Civil Procedure 60(d) because the judgment entered by this Court is void. Specifically,
Plaintiff argues that in dismissing Plaintiff’s case, this Court relied upon false statements
and findings made by the Magistrate Judge.
Plaintiff also filed a number of other motions, including a Motion for Preliminary

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and Permanent Injunction (Doc. 101); Motion to Expedite Ruling on Non-Final Post
Judgment Motions to Consolidate on Appeal (Doc. 110); Motion to Strike Doc. 127 and
By Separate Order and Entry Granting Recusal of Magistrate Judge Merz (Doc. 129); and
Motion for Order to Show Cause (Doc. 132).
The Court will now attempt to address the issues raised by Plaintiff so he may
proceed with his appeal he has filed with the Sixth Circuit.
II. ANALYSIS
A. Standard of review
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate judge's
order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). When
objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge's disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
B. Magistrate Judge’s June 28, 2019 R&R (Doc. 86) and July 19, 2019
Supplemental R&R (Doc. 92)
In his June 28, 2019 R&R (Doc. 86) and July 19, 2019 Supplemental R&R (Doc.
92), the Magistrate Judge recommends that Plaintiff’s Motion for Relief from Judgment
(Doc. 85) be denied. The Magistrate Judge explains that while he initially recommended
deferring any ruling on the Motion until the appeal is decided, he now recommends denial.
In his objections, Plaintiff accuses the Magistrate Judge of failing to accept all well3

plead factual allegations as true; misstating the law and facts; and refusing to permit
Plaintiff to conduct discovery.
The Court notes that the disposition of this case is largely based upon the
procedural history of Plaintiff’s state court proceedings and federal habeas proceedings.
The Court will now summarize those proceedings.
In March of 2008, Plaintiff plead guilty to one count of gross sexual imposition and
one count of unlawful restraint. On April 29, 2008, Plaintiff was sentenced to five years
of community control, but after he violated the terms of his community control, he was
sentenced to twelve months’ imprisonment on July 14, 2009. Plaintiff did not file an
appeal.
On May 10, 2010, Plaintiff filed a petition for post-conviction relief in state court.
On June 3, 2010, the trial court denied relief, and Plaintiff did not file an appeal of that
decision. Plaintiff filed the first of three motions to withdraw his guilty plea on August 10,
2012. All three motions were denied. The Warren County Court of Common Pleas barred
Plaintiff from further filings without leave of court.
On January 10, 2014, Plaintiff filed a petition for writ of habeas corpus in this Court.
Hobbs v. Ohio Adult Parole Authority, Case No. 13cv928. Plaintiff’s three grounds for
relief were based on a violation of Brady v. Maryland, 373 U.S. 83 (1963). However, this
Court found that Plaintiff’s habeas claim was barred by the statute of limitations found in
28 U.S.C. § 2244(d). Hobbs v. Warden, Madison Corr. Inst., No. 1:13-CV-928, 2015 WL
248332, at *1 (S.D. Ohio Jan. 20, 2015), report and recommendation adopted sub nom.
Hobbs v. Ohio Adult Parole Auth., No. 1:13-CV-928, 2015 WL 710340 (S.D. Ohio Feb.
18, 2015). This Court explained that Plaintiff’s conviction became final on May 31, 2008—

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the thirtieth day after he was sentenced because he failed to take a direct appeal to the
Twelfth District Court of Appeals. Id. at *1. Therefore, the statute of limitations for filing
his habeas petition expired on June 2, 2009. Id.
In the habeas proceedings, this Court found that Plaintiff was not entitled to
equitable tolling of the statute of limitations. This Court explained “[t]he documentary
material [Plaintiff] relies on for all three of his Grounds for Relief is material he received
from the Mason, Ohio, Police Department and Warren County Prosecutor's Office as the
result of public records requests made on April 30, 2012, and May 7, 2012.” Hobbs v.
Warden, Madison Corr. Inst., No. 1:13-CV-928, 2015 WL 74749, at *3 (S.D. Ohio Jan. 6,
2015). Because the first request for records was not until more than four years after
Plaintiff plead guilty, this Court found that Plaintiff had not demonstrated diligence in
pursuing his rights. Id. at *4. Plaintiff did not appeal this ruling, but over three years later,
Plaintiff filed a motion for relief from judgment. This Court denied the motion, and the
Sixth Circuit denied a certificate of appealability. Hobbs v. Ohio Adult Parole Auth., No.
19-3229, 2019 WL 2601565, at *3 (6th Cir. June 24, 2019).
This background is somewhat necessary to address the objections Plaintiff raises
regarding the disposition of Plaintiff’s § 1983 claims in this case. Plaintiff continues to
challenge the Court’s decision to grant Defendants’ motions to dismiss in this case. In
evaluating a 12(b)(6) motion to dismiss, a court must take the well-pleaded facts in the
complaint as true, but a court is “‘not bound to accept as true a legal conclusion couched
as a factual allegation.’” Long v. Insight Commc'ns of Cent. Ohio, LLC, 804 F.3d 791,
794 (6th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009)). Accordingly, Plaintiff’s assertion that his federal habeas claim was

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timely under 28 U.S.C. § 2244(d) cannot stand as a factual allegation which this Court
must accept as true. Instead, the conclusion that Plaintiff’s federal habeas claim was filed
beyond the statute of limitation is a legal conclusion which was decided by this Court in
Plaintiff’s habeas proceedings. Similarly, this Court’s conclusion that Plaintiff’s § 1983
claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) is a legal conclusion
reached by this Court. (Doc. 75, PAGEID# 1280). Finally, this Court’s conclusion that
any § 1983 claims Plaintiff seeks to bring against the Mason Fire Department and the City
of Lebanon are barred by the statute of limitations is a legal conclusion reached by this
Court. (Doc. 75, PAGEID# 1283). 1
Plaintiff is correct that this Court has not reached the merits of his habeas claim or
his § 1983 claim. Plaintiff is also correct that discovery has not been conducted in this
case. However, based on the above legal conclusions, this Court need not address the
merits of these claims or consider matters beyond the pleadings. “Trial courts have broad
discretion and inherent power to stay discovery until preliminary questions that may
dispose of the case are determined.” Gettings v. Bldg. Laborers Local 310 Fringe Benefits
Fund, 349 F.3d 300, 304 (6th Cir. 2003) (quoting Hahn v. Star Bank, 190 F.3d 708, 719
(6th Cir.1999). “Limitations on pretrial discovery are appropriate where claims may be
dismissed ‘based on legal determinations that could not have been altered by any further
discovery.’” Id. (quoting Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 430
(6th Cir.1995). To extent that Plaintiff disagrees with the legal determinations made by

1

The Sixth Circuit applies Ohio's two-year personal injury statute of limitations to § 1983
claims. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.1989). While Plaintiff claims that he
“discovered” his federal claim in June of 2017 (Doc, 93, PAGEID# 1346), Plaintiff’s proposed
claims against the Mason Fire Department and the City of Lebanon are founded upon public
records request results received in April and May 2012.
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the Court in this case, he is free to raise them in whatever avenues for appeal he may
have.
Seeking to avoid the statute of limitations issues altogether, Plaintiff asserts that
his claims are not subject to a statute of limitations because he has brought his claims
under Federal Rule of Civil Procedure 60(d)(3). While Plaintiff continually refers to his
claim as an “independent action” under this rule, that reference is “not entirely accurate.”
See Barrett v. Sec'y of Health & Human Servs., 840 F.2d 1259, 1262 (6th Cir. 1987). As
the Sixth Circuit has explained:
Rule 60(b)2 merely provides, in relevant part: “This rule does not limit the
power of a court to entertain an independent action to relieve a party from
a judgment, ... or to set aside a judgment for fraud upon the court.”
According to Wright and Miller, “[t]he reference to ‘independent action’ in
the saving clause is to what had been historically known simply as an
independent action in equity to obtain relief from a judgment.” 11 C. Wright
& A. Miller, Federal Practice & Procedure § 2868, at 237–38 (1973). The
“indispensable elements” of the independent action are:
(1) a judgment which ought not, in equity and good conscience, to be
enforced; (2) a good defense to the alleged cause of action on which
the judgment is founded; (3) fraud, accident, or mistake which
prevented the defendant in the judgment from obtaining the benefit of
his defense; (4) the absence of fault or negligence on the part of the
defendant; and (5) the absence of any adequate remedy at law.
Id. at 238 (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th
Cir. 1903)). Relief pursuant to the independent action is available only in
cases “of unusual and exceptional circumstances.” Rader v. Cliburn, 476
F.2d 182, 184 (6th Cir.1973) (per curiam).

2

As the Sixth Circuit has explained:

In 2007, Rule 60’s former Part (b) was separated into Parts (b), (c), (d), and (e) “as
part of the general restyling of the Civil Rules to make them more easily
understood.” Notes on 2007 amdt. to Fed. R. Civ. P. 60. The language of the
current Part (d) was formerly contained in Part (b).
Giasson Aerospace Sci., Inc. v. RCO Eng'g Inc., 872 F.3d 336, 339 (6th Cir. 2017).
7

Barrett, 840 F.2d at 1262–63.
In his habeas proceedings, Plaintiff previously claimed fraud under a Rule 60(d)(3)
based on the proceedings his state case. See Hobbs v. Ohio Adult Parole Auth., No. 193229, 2019 WL 2601565, at *2 (6th Cir. June 24, 2019). However, Plaintiff now takes a
different tack, claiming that the Magistrate Judge assigned to this case has committed a
fraud upon this Court.
The elements of fraud upon the court consists of conduct:
1. On the part of an officer of the court;
2. That is directed to the “judicial machinery” itself;
3. That is intentionally false, wilfully blind to the truth, or is in reckless
disregard for the truth;
4. That is a positive averment or is concealment when one is under a duty
to disclose; and,
5. That deceives the court.
Demjanjuk v. Petrovsky, 10 F. 3d 338, 348 (6th Cir. 1993). In support of his claim of fraud
upon the Court, Plaintiff accuses the Magistrate Judge of intentionally leaving out
important details, contradicting himself, and making false statements. However, as this
Court stated at the outset, when objections to a magistrate judge’s report and
recommendation are received on a dispositive matter, this Court’s review is de novo. See
Fed. R. Civ. P. 72(b)(3). This Court has carefully considered each of the Magistrate
Judge’s reports and recommendations in light of Plaintiff’s objections. As explained
above, this Court’s rulings are largely based upon the procedural history of Plaintiff’s
cases, which can be gathered from documents filed in the public record.
For all the foregoing reasons, the Court finds no error in the Magistrate Judge’s
June 28, 2019 R&R (Doc. 86) and July 19, 2019 Supplemental R&R (Doc. 92), and
8

therefore, Plaintiff’s Motion for Relief from Judgment (Doc. 85) is DENIED.
C. Magistrate Judge’s August 16, 2019 R&R (Doc. 97)
In the August 16, 2019 R&R (Doc. 97), the Magistrate Judge recommends denying
Plaintiff’s Motion for Relief for Judgment under Federal Rule of Civil Procedure 60(d)(1)
(Doc. 96). In his objections, Plaintiff raises many of the same arguments made in his
previously filed objections.
Rule 60(d)(1) provides that a district court may “entertain an independent action to
relieve a party from a judgment, order, or proceeding.” The Court has set forth the
elements of an independent action above: “(1) a judgment which ought not, in equity and
good conscience, to be enforced; (2) a good defense to the alleged cause of action on
which the judgment is founded; (3) fraud, accident, or mistake which prevented the
defendant in the judgment from obtaining the benefit of his defense; (4) the absence of
fault or negligence on the part of the defendant; and (5) the absence of any adequate
remedy at law.” Barrett, 840 F.2d at 1263 (citing 11 C. Wright & A. Miller, Federal Practice
& Procedure § 2868, at 238 (1973). Relief under the Rule is “available only to prevent a
grave miscarriage of justice.” Mitchell v. Rees, 651 F.3d 593, 595 (6th Cir. 2011) (quoting
United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998)). The
Sixth Circuit has described the circumstances in which a “grave miscarriage of justice”
has warranted an independent action under Rule 60(d):
In Beggerly, the Supreme Court cited Marshall v. Holmes, 141 U.S. 589,
596, 12 S.Ct. 62, 35 L.Ed. 870 (1891)—a case in which a forged letter was
used to obtain a default judgment—as an example of “a grave miscarriage
of justice” sufficient to justify the independent action because the defendant
was completely prevented, by fraud, from presenting any defense to the
complaint. Beggerly, 524 U.S. at 47, 118 S.Ct. 1862. In contrast, the Court
found the circumstances of Beggerly itself, a quiet-title action, insufficient to
establish “a grave miscarriage of justice” because the most that could be
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charged against the plaintiff (Government) was a failure to make a “full
disclosure” of relevant information. Id.; see also Computer Leasco, Inc. v.
NTP, Inc., 194 Fed.Appx. 328, 335 (6th Cir. 2006) (collecting cases in which
the circumstances “do not rise to the grave miscarriage of justice standard”).
Mitchell, 651 F.3d at 597-98.
Here, Plaintiff has had several opportunities to raise his claims under Brady. The
difficulty for Plaintiff, however, is that when Plaintiff sought to raise his claims, those
claims were foreclosed by the statute of limitations or Heck. To the extent that Plaintiff
argues that this Court is incorrect in ruling in this case that Plaintiff’s claims are barred by
Heck, those are arguments which are to be made on appeal.
The Court finds no error in the Magistrate Judge’s August 16, 2019 R&R (Doc. 97);
and therefore, Plaintiff’s Motion for Relief for Judgment under Federal Rule of Civil
Procedure 60(d)(1) (Doc. 96) is DENIED.
D. Magistrate Judge’s August 30, 2019 R&R (Doc. 101)
In the August 30, 2019 R&R (Doc. 101) the Magistrate Judge recommends
denying Plaintiff’s Motion for Preliminary and Permanent Injunction (Doc. 100). The
Magistrate Judge explains that Plaintiff’s request for injunctive relief lacks an arguable
basis in law.
In determining whether to grant or deny a preliminary injunction, this Court must
consider four factors: “(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of the injunction.” City of Pontiac
Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en
banc) (internal quotation marks omitted). The four considerations “are factors to be
10

balanced, not prerequisites that must be met.” Jones v. City of Monroe, 341 F.3d 474,
476 (6th Cir. 2003) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1984)).
The movant bears the heavy burden of demonstrating his entitlement to this extraordinary
remedy. Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566, 573 (6th
Cir. 2002).
Plaintiff has not carried that heavy burden here.

As the Magistrate Judge

explained, Plaintiff does not have a strong likelihood of success on the merits based on
the Sixth Circuit’s denial of Plaintiff’s request for leave to proceed on appeal in forma
pauperis. (Doc. 101, PAGEID# 1398). Moreover, as the Sixth Circuit has recently
reiterated:
Heck blocks a state prisoner’s § 1983 claim if its success “would necessarily
imply the invalidity of his conviction or sentence.” 512 U.S. at 487, 114 S.Ct.
2364. The idea is to channel what amount to unlawful-confinement claims
to the place they belong: habeas corpus. Wilkinson v. Dotson, 544 U.S. 74,
81, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005).
Sampson v. Garrett, 917 F.3d 880, 881 (6th Cir. 2019), cert. denied, No. 19-5945, 2019
WL 6107824 (Nov. 18, 2019). Because Plaintiff was barred by the statute of limitations
from pursuing his claims in habeas, and his § 1983 claim is blocked by Heck, Plaintiff is
unable to proceed on the merits of his claims. The failure to show any likelihood of
success on the merits is enough, by itself, to warrant denial of preliminary injunctive relief.
See Abney v. Amgen, Inc., 443 F.3d 540, 547 (6th Cir. 2006) (“a finding of no likelihood
of success ‘is usually fatal’”) (quoting Gonzales v. Nat'l Bd. of Med. Exam'rs, 225 F.3d
620, 625 (6th Cir. 2000)).
The Court finds no error in the Magistrate Judge’s August 30, 2019 R&R (Doc.
101); and therefore, Plaintiff’s Motion for Preliminary and Permanent Injunction (Doc. 100)

11

is DENIED.
E. Magistrate Judge’s November 13, 2019 R&R (Doc. 116)
In the November 13, 2019 R&R (Doc. 116), the Magistrate Judge recommends
denying Plaintiff’s fourth Motion for Relief from Judgment (Doc. 115). The Magistrate
Judge explains that it was not error for this Court to enter final judgment in this case
without ruling on Plaintiff’s Motion for Discovery (Doc. 63) and corresponding objections
to the denial of his Motion for Discovery (Doc. 65).
In his objections, Plaintiff again contends that he was entitled to discovery in this
case. In support, Plaintiff points to the Magistrate Judge’s statement that the statute of
limitations defense to Plaintiff’s § 1983 claim could not be “adjudicated on the face of the
Amended Complaint and must be reserved for later adjudication if the dismissal
recommendation [pursuant to Heck] is not accepted.”

(Doc. 44, PAGIED# 1097).

However, the Magistrate Judge’s recommendation pursuant to Heck was accepted, and
on March 29, 2019 judgment was entered in this case. (Doc. 75). 3
While Plaintiff blames Defendants for causing the delay in filing his federal habeas
claims by hiding favorable evidence, the issue of the timeliness of Plaintiff’s habeas
claims was adjudicated in Plaintiff’s habeas proceedings. In this case, there is no dispute
that Plaintiff’s constitutional claims challenge the lawfulness of his conviction and
sentence, which have not been overturned or invalidated.

Therefore, under Heck,

Plaintiff’s § 1983 claim is barred. No amount of discovery in this matter will change the
that result.

3

As a point of clarification, when the Court dismissed Plaintiff's § 1983 complaint under
Heck, this dismissal was without prejudice. Wheeler v. Dayton Police Dep't., 807 F.3d 764, 767
(6th Cir. 2015) (“When courts dismiss claims under Heck, they typically do so without prejudice”).
12

The Court finds no error in the Magistrate Judge’s November 13, 2019 R&R (Doc.
116); and therefore, Plaintiff’s fourth Motion for Relief from Judgment (Doc. 115) is
DENIED.
F. Magistrate Judge’s November 26, 2019 R&R (Doc. 121)
In the November 26, 2019 R&R (Doc. 121), the Magistrate Judge recommends
denying Plaintiff’s fifth Motion for Relief from Judgment (Doc. 118). The Magistrate Judge
repeats that it is permissible to dismiss this case without allowing discovery. In his
objections, Plaintiff raises the same arguments which the Court has addressed above.
The Court finds it unnecessary to repeat its analysis here.
The Court finds no error in the Magistrate Judge’s November 26, 2019 R&R (Doc.
121); and therefore, Plaintiff’s fifth Motion for Relief from Judgment (Doc. 118) is DENIED.
G. Magistrate Judge’s Order (Doc. 122)
On November 26, 2019, the Magistrate Judge denied Plaintiff’s Motion to Recuse
and Strike (Doc. 120). (Doc. 122). Plaintiff objects to this Order, explaining that the
Magistrate Judge should recuse himself because the Magistrate Judge refuses to
address the merits of his motions. (Doc. 126).
“A magistrate judge must recuse himself from hearing and deciding any action
where his ‘impartiality might reasonably be questioned.’” Wheat v. Ohio, 23 F. App'x 441,
443 (6th Cir. 2001) (quoting 28 U.S.C. § 455(a)). However, critical judicial remarks
generally “do not support a bias or partiality challenge.” Brown v. Wal-Mart Stores, Inc.,
507 F. App'x 543, 548 (6th Cir. 2012) (quoting Liteky v. United States, 510 U.S. 540, 555,
114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). In addition, “opinions formed by the judge on
the basis of facts introduced or events occurring in the course of the current proceedings,

13

or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Wilson v. Warden, Case No. 10-cv-54, 2010 WL 717273, at *2 (S.D.Ohio
Mar. 1, 2010). Bias sufficient to justify recusal must be personal, arising out of the judge's
background, and not based on the judge's interpretation of the law. Browning v. Foltz,
837 F.2d 276, 279 (6th Cir.1988). Nothing in the record would lead this Court to find that
the Magistrate Judge should recuse himself from this case. While Plaintiff is dissatisfied
with the Magistrate Judge’s interpretation of the law, he has not alleged facts which
indicate that an objective person would question the Magistrate Judge’s impartiality.
The Court finds no error in the Magistrate Judge’s November 26, 2019 Order
denying Plaintiff’s Motion to Recuse and Strike. (Doc. 122). Accordingly, Plaintiff’s
objections to the Order (Doc. 126) are OVERRULED.
H. Magistrate Judge’s Order (Doc. 127); Plaintiff’s Motion Striking Doc. 127
and By Separate Order and Entry Granting Recusal or Magistrate Judge
Merz (Doc. 129); and Plaintiff’s Motion for Contempt of Court (Doc. 132)
On December 13, 2019, the Magistrate Judge denied Plaintiff’s Motion (Doc. 124)
which again seeks to disqualify the Magistrate Judge. (Doc. 127). The Order also denied
Plaintiff’s request for the appointment of a special master. (Id.) Finally, the Magistrate
Judge ordered Plaintiff to show cause as to why he should not be sanctioned under
Federal Rule of Civil Procedure 11 for filing the second, third, fourth and fifth Motions for
Relief from Judgment. (Id.)
Plaintiff responded by filing his Motion Striking Doc. 127 and By Separate Order
and Entry Granting Recusal or Magistrate Judge Merz. (Doc. 129). Plaintiff has also filed
a Motion for Contempt of Court (Doc. 132) which “moves this Court to enter an order to

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show cause why Magistrate Judge Michael Merz should [not] be held in contempt of
court.”
The Court finds no basis to disqualify the Magistrate Judge or hold him in contempt
of court. A judge is presumed to be impartial, and a party seeking disqualification bears
the burden of alleging facts that would lead a reasonable person to question the neutrality
of the judge. United States v. Adams, 38 F.3d 1217, 1994 WL 589509 (6th Cir.1994)
(citing Holt v. KMI Continental, Inc., 821 F.Supp. 846, 847 (D.Conn. 1993)). Plaintiff has
not carried that burden here. Plaintiff merely objects to rulings that were unfavorable to
him, which is not a basis for recusal. See In re Adams, 31 F.3d 389, 396 (6th Cir. 1994).
The Court finds no error in the Magistrate Judge’s December 13, 2019 Order
denying Plaintiff’s Motion. (Doc. 127). Accordingly, Plaintiff’s objections to the Order
(Doc. 133) are OVERRULED; Plaintiff’s Motion Striking Doc. 127 and By Separate Order
and Entry Granting Recusal or Magistrate Judge Merz (Doc. 129) is DENIED; and
Plaintiff’s Motion for Contempt of Court (Doc. 132) is DENIED.
F. Motion to Expedite Ruling (Doc. 110)
In his Motion to Expedite Ruling (Doc. 110), Plaintiff seeks to expedite a ruling on
the objections he has filed. The Court has now ruled on those objections along with the
multiple motions Plaintiff has filed. Therefore, Plaintiff’s Motion to Expedite Ruling (Doc.
110) is DENIED as MOOT.
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. The Magistrate Judge’s June 28, 2019 R&R (Doc. 86) and July 19, 2019
Supplemental R&R (Doc. 92) are ADOPTED;
a. Accordingly, Plaintiff’s second Motion for Relief from Judgment (Doc.
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85) is DENIED;
2. The Magistrate Judge’s August 16, 2019 R&R (Doc. 97) is ADOPTED;
a. Accordingly, Plaintiff’s third Motion for Relief from Judgment (Doc. 96) is
DENIED;
3. The Magistrate Judge’s August 30, 2019 R&R (Doc. 101) is ADOPTED;
a. Accordingly, Plaintiff’s Motion for Preliminary Injunction (Doc. 100) is
DENIED;
4. The Magistrate Judge’s November 13, 2019 R&R (Doc. 116) is ADOPTED;
a. Accordingly, Plaintiff’s fourth Motion for Relief from Judgment (Doc. 115)
is DENIED;
5. The Magistrate Judge’s November 26, 2019 R&R (Doc. 121) is ADOPTED;
a. Accordingly, Plaintiff’s fifth Motion for Relief from Judgment (Doc. 118)
is DENIED;
6. Plaintiff’s objections to the Magistrate Judge’s Decision and Order (Doc.
122) denying Plaintiff’s Motion to Recuse and Strike (Doc. 120) are
OVERRULED;
7. Plaintiff’s objections to the Magistrate Judge’s Decision and Order; Order to
Show Cause (Doc. 127) are OVERRULED;
8. Plaintiff’s Motion Striking Doc. 127 and By Separate Order and Entry
Granting Recusal or Magistrate Judge Merz (Doc. 129) is DENIED;
9. Plaintiff’s Motion for Contempt of Court (Doc. 132) is DENIED;
10. Plaintiff’s Motion to Expedite Ruling (Doc. 110) is DENIED as MOOT;
11. Pursuant to 28 U.S.C. § 1915(a)(3), this Court certifies that for the foregoing
reasons an appeal of this Order would not be taken in good faith, and therefore
Plaintiff is denied leave to appeal in forma pauperis.
See McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); and

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12. This matter shall remain CLOSED and TERMINATED from the active
docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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