Hellmuth v. City of Middletown, Ohio et al

Filing 29

REPORT AND RECOMMENDATIONS re 16 Motion for Judgment on the Pleadings filed by Defendants Ami Vitori, Susan Cohen, Larry Mulligan, Jr., Joe Mulligan, Steve Bohannon, Douglas Atkins, Scott Reeve, Talbott Mood, Sarah Fox, City of Middle town, Ohio, 17 26 Plaintiff's Motions for Summary Judgment. IT IS RECOMMENDED THAT Defendants' motion for judgment on the pleadings 16 be GRANTED for the reasons stated and alternatively, that judgment be entered in Defendants' favor with prejudice based upon Plaintiff's failure to prosecute. IT IS FURTHER RECOMMENDED THAT Plaintiff's motions for summary judgment 17 26 be DENIED and that this case be CLOSED. Objections to R&R due by 6/3/2020. Signed by Magistrate Judge Stephanie K. Bowman on 5/20/2020. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:19-cv-00303-DRC-SKB Doc #: 29 Filed: 05/20/20 Page: 1 of 5 PAGEID #: 233

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DANIEL L. HELLMUTH,
Case No. 1:19-cv-303
Plaintiff,
Cole, J.
Bowman, M.J.
v.
CITY OF MIDDLETOWN, OHIO, et al.,
Defendants.
REPORT AND RECOMMENDATION
This civil action is now before the Court on Defendants’ motion for judgment on the
pleadings. Also before the Court are Plaintiff’s motions for summary judgment. For the
reasons stated below, the undersigned finds that Defendants are entitled to judgment as
a matter of law.
I.

Background and Facts

In his Complaint, Plaintiff contends that Defendants “fail[ed] to do a proper
investigation of [Plaintiff] being set up for a police shooting by the Trenton Police [and]
fail[ed] to intervene[.]” Id. at PageID 34-35. Plaintiff’s Complaint also alleges that
Defendants are “guilty” and that the “actions or inactions or criminal activity” of certain
Defendants have been ignored, including actions that were alleged in prior state and
federal court lawsuits filed by Plaintiff. Id. at PageID 42-46. The complaint identified the
following “claims” against Defendants: Neglect of Duty; Causation; Negligence; Slander
and Libel; Complicity; Failure to report a crime; False Statements; Failure to Intervene;
and Concealment. See Doc. #4, PageID 35-37. As compensation for Defendants’ alleged

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violations of law, Plaintiff’s Complaint seeks damages in the amount of $10,000,000.00.
Id. at PageID 46.
On September 20, 2019, Defendants filed their Motion for Judgment on the
Pleadings (“MJP”). See Doc. #16, PageID 135-147. On September 25, 2019, Plaintiff
Daniel L. Hellmuth (“Plaintiff”) filed a Motion for Summary Judgment (“First MSJ”). See
Doc. #17, PageID 148-150. On October 10, 2019, Defendants timely filed their
Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment (“Opposition to
First MSJ”). See Doc. #18, PageID 154-156. Plaintiff did not file a brief in reply.
On December 10, 2019, and after Plaintiff’s attempted appeal to the United States
Court of Appeals for the Sixth Circuit was dismissed, Plaintiff was ordered “to file any
response in opposition to Defendants’ [MJP] as well as any reply memorandum in support
to his [First MSJ] with the Court no later than January 3, 2020.” See Doc. 24, PageID 204.
The Order further stated that [“i]n the event that Plaintiff does not file his opposition to
Defendants’ motion for judgment on the pleadings by the January 3, 2020 deadline,
Defendants’ motion will be construed as unopposed and may be granted for the reasons
stated therein.” Id. No such memorandum in opposition or response to the “show cause”
order was filed.
II.

Analysis

Plaintiff failed to comply with the Court’s most recent “show cause” order. The
Defendants' unopposed motion for judgment on the pleadings has now been pending for
over six months. The undersigned has reviewed that motion and finds it well-reasoned
and well-supported.
Based upon the grounds advocated by the Defendants, they are entitled to

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judgment as a matter of law because: (1) 18 U.S.C. §§ 242 and 1001 do not create private
causes of action, and Plaintiff has failed to connect his independent 42 U.S.C. § 1983
claim to a violation of constitutional or federal law; (2) the Ohio criminal statutes identified
in Plaintiff’s Complaint do not afford him private causes of action; (3) neglect of duty and
causation are not valid Ohio common law claims, and Plaintiff’s negligence and
slander/libel (i.e., defamation) allegations fail to state claims for relief that are plausible
on their face; and (4) assuming arguendo that Plaintiff has stated a plausible claim for
relief, Defendants are entitled to qualified immunity because they acted reasonably under
the circumstances. Defendants persuasively argue that Plaintiff has failed to show the
existence of any genuine issue of material fact to support any of the elements of his
claims.
Last but not least, this case should be dismissed based upon Plaintiff’s failure to
file any timely response to the Court’s “show cause” order, which amounts to a failure to
prosecute. Plaintiff was explicitly warned in the Court’s last order that a failure to respond
“will result” in the recommendation that the Defendants' motion be granted.
As noted above, Plaintiff has failed to filed a response in opposition to Defendants’
motion for judgment on the pleadings. Yet, Plaintiff did file a second motion for summary
judgment. Upon careful review, however, Plaintiff’s motions for summary judgment fail to
address the arguments raised in Defendants’ motion for judgment on the pleadings.
Notably, Plaintiff’s motions for summary judgment assert that he is entitled to judgment
as a matter of law because he “has proven that the City of Middletown Notary Shelley
Meehan who notarized the deed transfer, was not in the presence of [Plaintiff] and his
now deceased wife, Susan Gail Hellmuth, therefore making the deed transfer illegal in a

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court of law[.]” Id. at PageID 148. However, even if Plaintiff has proven that Notary
Meehan did not properly notarize the deed transfer as he alleges, such an action does
not reach the level of a constitutional violation which would confer jurisdiction to this
federal court.

In addition, Plaintiff also concludes that Magistrate Judge Stephanie

Bowman is “collu[ding]” with Defendants “to commit Fraud Upon the Court in both the
original Butler County case CV 2017 10 2386 and in the Federal case 1:18-cv-00397[.]”
Id. However, as noted by Defendants’ in their response in opposition, Plaintiff’s
conclusions are unfounded, wholly unsupported and fail to support a finding that he is
entitled to a summary judgment. Plaintiff also failed to file a brief in reply in support of his
(second) motion for summary judgment.
In light of the foregoing, Defendants’ motion for judgment on the pleadings is welltaken and should be granted.
III. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED THAT Defendants' motion for judgment on
the pleadings (Doc. 16) be GRANTED for the reasons stated and alternatively, that
judgment be entered in Defendants' favor with prejudice based upon Plaintiff’s failure to
prosecute. IT IS FURTHER RECOMMENDED THAT Plaintiff’s motions for summary
judgment (Docs. 17, 26) be DENIED and that this case be CLOSED.

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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DANIEL L. HELLMUTH,
Case No. 1:19-cv-303
Plaintiff,
Cole, J.
Bowman, M.J.
v.
CITY OF MIDDLETOWN, OHIO, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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