Smith v. Warden, Chillicothe Correctional Institution

Filing 12

REPORT AND RECOMMENDATIONS ON MOTION FOR SANCTIONS - Petitioner's Motion for Sanctions under Fed. R. Civ. P. 11 (ECF No. 8) is without merit and should be denied. Objections to R&R due by 7/23/2018. Signed by Magistrate Judge Michael R. Merz on 7/9/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

- vs -

Case No. 1:17-cv-570
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN,
Chillicothe Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR
SANCTIONS

This habeas corpus case is before the Court on Petitioner’s Motion for Sanctions under
Fed. R. Civ. P. 11 (ECF No. 8). The Magistrate Judge reference in the case was transferred to the
undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 11).
Although a Rule 11 motion is not among those motions listed as dispositive in 28 U.S.C. §
636(b)(1)(a), the Sixth Circuit has held it is functionally equivalent and therefore requires a
recommendation from a Magistrate Judge to whom it is referred. Bennet v. General Caster Service
of N. Gordon Co., Inc., 976 F.2d 995 (6th Cir. 1992).
Fed. R. Civ. P. 11(b) provides
(b) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best
of the person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:

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(1) it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost
of litigation;
(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the evidence
or, if specifically so identified, are reasonably based on a lack of
information or belief.

Petitioner relies on subsection three and asserts that Respondent has acted in bad faith and
committed fraud on the Court by “still insist[ing] upon making the argument that the Petitioner
committed the criminal offense of felonious assault [as] oppose[d] to that of a[n] attempted
felonious assault.” (Motion, ECF No. 8, PageID 680).
The State Court Record (ECF No. 6) includes the jury’s verdict on Count 1, the felonious
assault conviction on which Petitioner is in custody. Id. at PageID 39. It was on this verdict that
Judge Charles J. Kubicki, Jr. imposed the sentence that Petitioner is serving. Id. at PageID 40.
The Court of Appeals acknowledged that Smith’s defense was that he had fired shots at the victim’s
car and not at the victim himself. State v. Smith, 1st Dist. Hamilton No. C-150691 (Nov. 30, 2016)
(unreported; copy at State Court Record ECF No. 6, PageID 85-89). But it also noted that the jury
convicted Smith of felonious assault on the victim. Id. at PageID 85.
In filing the Answer in this case, neither the Respondent, who is Smith’s custodian, nor the
Assistant Attorney General, who represents the Respondent, is making a factual assertion that
Smith shot at Walker. Rather, their assertions to this Court are that the Warden of the Chillicothe
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Correctional Institution has custody of Petitioner and therefore is the proper Respondent in this
case, and that the custody is based on the referenced conviction. Those assertions are not
fraudulent. They do not violate Fed. R. Civ. P. 11 because, as Respondent has proved, they are
true: Petitioner has a conviction for felonious assault.
The Motion for Sanctions is therefore without merit and should be denied.

July 9, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. 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.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. 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. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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