Harris et al v. Cooley et al
Filing
18
OPINION AND ORDER: IT IS ORDERED THAT: 1. Plaintiffs most recent motion seeking service upon the Cooley Defendants (Doc. 17) is GRANTED in part, as described in paragraph 3 of this Order; 2. Plaintiffs earlier motions for the date that the U.S. Marsh al executed service (Docs. 13, 16) are DENIED AS MOOT; 3. The Clerk of Court shall serve a copy of the complaint, the first amended complaint, Plaintiffs Notice of Erracta, the summons, and this Order upon the Defendants by ordinary mail, with all costs of service to be advanced by the Court. Signed by Magistrate Judge Stephanie K. Bowman on 12/22/2017. (bjc)(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
FRANKLIN DAVID HARRIS JR., et al.,
Case No. 1:17-cv-540
Plaintiffs,
Barrett, J.
Bowman, M.J.
v.
DANIEL COOLEY, et. al,
Defendants.
OPINION AND ORDER
Despite the filing of Plaintiffs’ pro se complaint on August 28, 2017, none of the
three Defendants have yet filed an answer or response to the complaint. The record
further reflects that two of the Defendants have yet to be served. Currently pending are
three motions in which Plaintiffs seek additional Court assistance to effectuate service
of their complaint. The Plaintiffs’ most recent motion will be granted in part.
I.
Background
The Court has permitted Plaintiffs to file their pro se complaint in forma pauperis,
or without payment of a filing fee. Plaintiffs, who live in Portsmouth, Ohio, are relatively
experienced pro se litigants, having pursued a number of cases in this Court, most of
which have been filed both pro se and in forma pauperis.1
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See, e.g., Case No. 1:89-cv-145 (civil rights); Case No. 1:91-mc-349; Case No. 1:91-mc-350; Lead Case
No. 92-cv-323 (employment discrimination); Related Member Case No.1:92-cv-324 (employment
discrimination), Member Case No. 1:93-cv-401 (employment discrimination); Case No. 1:93-mc-93; Case
No. 1:95-cv-29 (employment discrimination); Case No. 1:97-cv-156 (civil rights); Case No. 1:02-cv-475
(Fair Housing Act); Case No. 1:05-cv-84 (employment discrimination); Case No. 1:11-cv-179
(employment discrimination);
Plaintiffs’ current complaint alleges that they are African-American homeowners
who have resided in their home since October 20, 1994. (Doc. 1-3 at 1).
identified individual Defendants are Caucasian neighbors.
The three
The complaint generally
relates to a series of escalating and ongoing conflicts with the Defendants, primarily
over a privacy fence and gate between the two properties, which conflicts are alleged to
have occurred between August 7, 2016 and July 17, 2017. Plaintiffs allege that the
incidents, both individually and in combination, constitute violations of the Fair Housing
Act, and of Plaintiffs’ “federal civil rights.” Plaintiffs seek punitive damages, injunctive
relief (including but not limited to a temporary restraining order and temporary and
permanent injunctions), and attorney’s fees and costs. Plaintiffs claim that this Court
has pendant jurisdiction over their “Ohio Civil Rights claims” under the “Ohio Fair
Housing Act.” (Doc 1-2 at 2).
Proceedings in this case were initially delayed while this Court determined
whether Plaintiffs, who are debtors in ongoing bankruptcy proceedings, were the real
parties in interest, or whether the Trustee was the real party in interest. Upon resolution
of that threshold issue in Plaintiffs’ favor, the Court screened the complaint as required
by 28 U.S.C. § 1915(e).
In screening the complaint on September 13, 2017, the undersigned noted the
existence of what appears to be a closely related separate suit filed by the named
Defendants herein in Scioto County State Court.
See Cooley v. Harris, Case No.
17CIH00071 (Scioto County Court of Common Pleas).
In addition, the Bankruptcy
Trustee advised the undersigned of a third related adversary proceeding recently filed
by Plaintiffs in Bankruptcy Court, Case No. 1:17-ap-01041. The Trustee pointed out the
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existence of an open question as to which of the three courts “is the proper venue for
consideration of the Harris claims against the Cooleys, and where the Cooleys’ property
questions should be decided.” (Doc. 5 at 6). However, because the undersigned’s
review was limited to screening the complaint under § 1915(e), the Court declined to
resolve that question prior to service of the complaint. (Doc. 7).
The undersigned ultimately concluded that despite it being “very close as to
whether Plaintiffs have stated any cognizable federal claims,” Plaintiffs’ complaint
should be permitted to proceed, with service of the complaint by the U.S. Marshal. Id.;
but see Franco-Ward v. Nations Credit Corp., 2000 WL 875894 (6th Cir., June 20,
2000) (affirming dismissal of retaliation and intimidation claims under 42 U.S.C. §3617,
because plaintiffs’ allegations of racial discrimination were conclusory and unsupported
by factual allegations to support claims). In drawing that conclusion, the Court cited the
“liberal pleading standards applied to pro se pleadings, as well as the extremely low
threshold used in screening cases under 28 U.S.C. § 1915(e).” (Doc. 7). At the same
time, the Court advised all parties that the “decision to give the Plaintiffs the benefit of
the doubt at this preliminary screening stage should not be viewed as foreclosing any
affirmative defenses the Defendants may be able to raise in a motion to dismiss.” (Id.)
Plaintiffs filed objections to the undersigned’s September 13, 2017 Order, which
objections remain pending before U.S. District Judge Michael R. Barrett. (Doc. 9).
After summons was issued by the U.S. Marshal in accordance with this Court’s
Order, Plaintiffs filed an amended complaint. (Doc. 10). Less than two weeks later on
October 10, 2017, Plaintiffs filed a “Notice of Erracta [sic]” that purports to further amend
one or more citations in the amended complaint. (Doc. 11). The undersigned declines
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to conduct additional screening under § 1915(e) of the first amended complaint (or
Notice) at this time for reasons of judicial economy, and because the allegations in the
first amended complaint appear to be closely aligned to those in the original complaint.
On October 6, 2017, summons was returned as executed on the original
complaint for Defendant Chrissy Lodwick Spraughe.
Plaintiffs note that Defendant
Kayley Cooley signed for the summons and complaint on behalf of that Defendant on
September 29, 2017. (See Doc.11; see also Doc. 18 at 2). Although an answer was
due on or before October 20, 2017, no answer has been filed by that Defendant.
In contrast to the status of Defendant Spraughe, the record reflects that
Defendants Daniel and Kaylay Cooley “refused” to accept summons by certified mail.
(Docs. 14, 15; see also Doc. 17 at 4). On November 16, 2017 and again on November
20, 2017, Plaintiffs filed motions seeking the status of service concerning those
Defendants. (Docs. 13, 16).2
On December 8, 2017, Plaintiffs filed a third motion
seeking another court order directing the U.S. Marshal to personally serve the
Defendants. (Doc. 17).
Plaintiffs’ latest motion indicates that they have provided an
amended summons, copies of the complaint, and additional USM 285 forms for
purposes of effecting service.
Local Rule 4.2(c), consistent with Ohio R. Civ. Pro. 4.6(C), permits service by
ordinary mail in cases in which service by certified mail has been refused. Although the
law also permits service through personal delivery to the Defendants, the expense of
personal service is not warranted in this case due to the adequacy of service under
Rule 4.2(c). Unlike service by certified mail (which the Cooley Defendants have to date
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Plaintiffs state that they served the Trustee with copies of their motion. Although Plaintiffs remain the
real parties in interest, the Trustee has been added to the docket sheet of this Court, as the Trustee has
advised that she may have an interest should Plaintiffs recover any monetary damages.
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attempted to evade), proof of mailing by ordinary mail creates a rebuttable presumption
that the material was received. Bloch v. Eastern Mach. Screw Corp., 281 F. 777 (6th
Cir.1922); Griffin v. General Acc. Fire & Life Assur. Co., 94 Ohio App. 403 (1953).
III. Conclusion and Order
Accordingly, IT IS ORDERED THAT:
1. Plaintiffs’ most recent motion seeking service upon the Cooley Defendants
(Doc. 17) is GRANTED in part, as described in paragraph 3 of this Order;
2. Plaintiffs’ earlier motions for the date that the U.S. Marshal executed service
(Docs. 13, 16) are DENIED AS MOOT;
3. The Clerk of Court shall serve a copy of the complaint, the first amended
complaint, Plaintiffs’ Notice of Erracta, the summons, and this Order upon the
Defendants by ordinary mail, with all costs of service to be advanced by the
Court. The Clerk shall note the date of mailing on the docket sheet of this
record as proof of mailing.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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