Whiteside v. Collins et al

Filing 207

OPINION AND ORDER - Plaintiffs Motion for Reconsideration of Courts Desultory Judgment, [Doc. No. 199], and Plaintiffs Motion to Strike,[Doc. No. 202], are DENIED. Plaintiffs Request for Court to Take Judicial Notice, [Doc. No. 198], and Plaintiffs Motion for Judgment Forthwith, [Doc. No. 205], are DENIED as moot. Signed by Judge James L Graham on 4/25/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

NORMAN V. WHITESIDE,
Plaintiff,

vs.

Civil Action 2:08-cv-875
Judge Graham
Magistrate Judge King

TERRY COLLINS, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on multiple pending motions,
including Plaintiff’s Request for Court to Take Judicial Notice, Doc.
No. 198 (“Request for Judicial Notice”); plaintiff’s Motion for
Reconsideration of Court’s Desultory Judgment, Doc. No. 199 (“Motion
for Reconsideration”); Plaintiff’s Motion to Strike, Doc. No. 202
(“Motion to Strike”); and Plaintiff’s Motion for Judgment Forthwith,
Doc. No. 205.
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Norman V. Whiteside, a state inmate proceeding without

the assistance of counsel, asserted claims against defendants
associated with the Madison Correctional Institution (“MaCI”) and the
Ohio Department of Rehabilitation and Correction (“ODRC”), alleging
that Ohio Administrative Code (“O.A.C.”) § 5120-9-06(C)(28), (50),
(51) (“Rules 28, 50 and 51”)1 are vague and lack fair notice.2

1

The

Rule 28 forbids “[f]orging, possessing, or presenting forged or counterfeit
documents”; Rule 50 forbids “[p]ossession of property of another”; and Rule

1

Court previously granted defendants’ motion for summary judgment and
denied plaintiff’s motion for summary judgment, dismissing the
remaining claims against the remaining defendants.
Doc. No. 196.

Opinion and Order,

Final judgment was entered the same day.

Judgment in a

Civil Action, Doc. No. 197.
Thereafter, plaintiff filed a Motion for Reconsideration, asking
this Court to reconsider that “desultory” decision and, on the last
page of his motion, advising that his motion “should also be
considered one to alter or amend the judgment.
Reconsider, p. 4.

FRCVP 59.”

Motion to

Plaintiff also filed a separate motion, a Request

for Judicial Notice.

In response to plaintiff’s two motions,

Defendants’ Combined Memorandum in Opposition to Plaintiff’s Request
for the Court to Take Judicial Notice (Doc #: 198) and Memorandum in
Opposition to Plaintiff’s Motion for Reconsideration (Doc #: 199),
Doc. No. 201 (“Combined Memo. in Opp.”), was filed.

Thereafter,

plaintiff filed his Motion to Strike, seeking to strike the Combined
Memo. in Opp. to the extent that it addresses plaintiff’s Motion for
Reconsideration.

Plaintiff also filed Plaintiff’s Motion for Judgment

Forthwith, Doc. No. 205, asking for a ruling on these motions.

The

Court shall address these motions in turn.
II.

MOTION TO STRIKE
Plaintiff argues that the Court should strike defendants’

Combined Memo. in Opp. because it is untimely to the extent that it

51 forbids “[p]ossession of contraband, including any article knowingly
possessed which has been altered or for which permission has not been given.”
O.A.C. § 5120-9-06(C)(28), (50), (51).
2
Plaintiff’s other claims, as well as the claims of other plaintiffs, were
previously dismissed. See Opinion and Order, Doc. No. 66.

2

opposes the Motion for Reconsideration.

Motion to Strike.

In

support, plaintiff notes that the certificate of service attached to
the Motion for Reconsideration bears a date of October 4, 2012 and
argues that defendants’ response was due twenty-one (21) days
thereafter, or on October 25, 2012.
Civ. R. 7.2(a)(2)).

Id.

at 1 (citing to S.D. Ohio

Because the Combined Memo. in Opp. was not filed

until October 29, 2012, and because the Court previously stated that
it would no longer tolerate defendants’ inattention to this
litigation, plaintiff contends that the untimely Combined Memo. in
Opp. should be stricken.

Id. (citing Order and Report and

Recommendation, Doc. No. 148).
Defendants disagree, arguing that, despite the October 4, 2012
date reflected in the Motion for Reconsideration, defendants were not
actually served with the motion until the Clerk’s office uploaded the
document on the Court’s CM/ECF system on October 11, 2012.
Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Strike
(DOC #: 202), Doc. No. 204, pp. 1-2.

In so arguing, defendants take

the position that plaintiff, who does not appear to be a registered
user of the CM/ECF system, improperly mailed the Motion for
Reconsideration to the Clerk’s office to upload and serve upon
defendants.

Id. (citing certificate of service attached to Motion for

Reconsideration; Fed. R. Civ. P. 5.1(c)).3

Defendants therefore

3
Curiously, defendants cite to Fed. R. Civ. P. 5.1(c), which addresses
constitutional challenges to a statute and the attorney general’s ability to
intervene. Id. However, defendants’ quoted language suggests that they
intended to rely on S.D. Ohio Civ. R. 5.2(b), which governs electronic
service of filings. See S.D. Ohio Civ. R. 5.2(b): “Delivery Electronically
Including Facsimile. Parties may make service through the Court’s CM/ECF

3

contend that they had until November 1, 2012 (i.e., 21 days from
October 11, 2012) in which to respond to the Motion for
Reconsideration.

Id. at 2.

Even if they were properly served on

October 4, 2013, defendants argue, the Combined Memo. in Opp. is
nevertheless timely.

Id. at 2-3 (citing Fed. R. Civ. P. 5(b), 6(a),

(d)).
Assuming that the Motion for Reconsideration was served on
October 4, 2012, which is the date reflected in the certificate of
service attached to the Motion for Reconsideration, the local rules
provide that defendants had twenty-one (21) days from that date to
respond to plaintiff’s motion.

See S.D. Ohio Civ. R. 7.2(a)(2) (“Any

memorandum in opposition shall be served within twenty-one (21) days
from the date of service set forth in the certificate of service
attached to the Motion.”).

However, under Fed. R. Civ. P. 6(d), an

additional three (3) days are added when computing service.4
Therefore, defendants’ response was not due until October 28, 2012,
which fell on a Sunday.

Because the deadline fell on a weekend, Rule

6(a)(1)(C)5 further extended the filing deadline to October 29, 2012,
which is the date that the Combined Memo. in Opp. was filed.

Because

system on other parties who are registered users of the system as provided in
Fed. R. Civ. P. 5(b)(2)(E).”
4
“When a party may or must act within a specified time after service and
service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added
after the period would otherwise expire under Rule 6(a).” Fed. R. Civ. P.
6(d). Rule 5(b)(2)(C) addresses service by mail; (D) addresses leaving the
paper to be served with the clerk; (E) addresses sending it by electronic
means; (F) addresses delivering it by “any other means that the person
consented to in writing[.]”
5
“[I]f the last day [of the period to respond] is a Saturday, Sunday, or legal
holiday, the period continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).

4

defendants’ Combined Memo. in Opp. is timely filed, the Motion to
Strike is DENIED.
III. MOTION FOR RECONSIDERATION
Plaintiff seeks reconsideration of this Court’s Opinion and
Order, Doc. No. 196, advancing a variety of arguments and asserting
that the Court should consider his motion as “one to alter or amend
the judgment.

FRCVP 59.”

Motion for Reconsideration, p. 4.

A court may grant a motion to alter or amend judgment under Fed.
R. Civ. P. 59(e) where there is “(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.”
428 F.3d 605, 620 (6th Cir. 2005).

Intera Corp. v. Henderson,

See also Huff v. Metro. Life Ins.

Co., 675 F.2d 119, 122 (6th Cir. 1982) (finding that “the district
court correctly treated the motion to reconsider as a motion under
Rule 59 to alter or amend judgment”).

In deciding a Rule 59 motion,

the district court enjoys considerable discretion.

Leisure Caviar,

LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th
Cir. 2010).

Here, plaintiff does not specify the basis, i.e., clear

error of law, newly discovered evidence, etc., upon which his Rule
59(e) motion rests.

The Court nevertheless addresses plaintiff’s

specific challenges in turn.
First, plaintiff complains that the Judgment, Doc. No. 197, is
incomplete because “it doesn’t state how the action was tried or
decided.”

Motion for Reconsideration, p. 1.

Although no box on the

Judgment is checked, the Court has explained its judgment.
No. 197 (“Judgment is entered in favor of the defendants.

5

See Doc.
In

accordance with this order and the court’s previous orders, including
orders entered on March 17, 2010, and October 12, 2010, all claims
against all defendants are hereby dismissed.”).

The Judgment, Doc.

No. 197, cannot serve as a basis for altering or amending the judgment
dismissing the action.6
Second, plaintiff argues that the Opinion and Order, Doc. No.
196, reveals a “want of solicitude” in violation of case authority
holding that courts should treat pro se litigants with special
solicitude.

Motion for Reconsideration, pp. 1-2.

Plaintiff

apparently believes that the “want of solicitude” is evident in the
Court’s use of the words “rambling” and/or “convoluted” to refer to
his arguments and is evident “in this Court’s overall ruling as
revealed in the following.”

Id. at 2.

Contrary to plaintiff’s

assertion, however, the Court liberally construed plaintiff’s pro se
filings at the summary judgment stage.
p. 25.

See, e.g., Opinion and Order,

Moreover, the Court is aware of no authority, and plaintiff

has pointed to none, granting a Rule 59(e) motion because a court
acknowledges that a pro se litigant’s arguments are rambling or are
otherwise difficult to follow.

Indeed, the United States Court of

Appeals for the Sixth Circuit has used similar descriptions in the
face of such pro se filings.

See, e.g., Copeland v. Lockheed Martin

Corp., No. 99-5788, 2000 U.S. App. LEXIS 15754, at *3 (6th Cir. June
30, 2000) (“His [plaintiff’s] pro se, rambling brief has been

6

To the extent that plaintiff intends to argue that an apparent delay in
receiving a copy of the Judgment, Doc. No. 197 (which was dated September 25,
2012 and purportedly received on October 2, 2012), serves as a basis for
challenging the dismissal of this action, this argument likewise fails to
persuade the Court that altering or amending the judgment is warranted.

6

construed as arguing those claims which he raised before the district
court.”); Henke v. NLRB, No. 98-5300, 1999 U.S. App. LEXIS 14930, at
*4 (6th Cir. June 29, 1999) (“[Plaintiff] Henke’s main argument in his
convoluted pro se brief is that the [administrative law judge] abused
his discretion by approving the settlement because it did not provide
for full compensation for Henke’s business losses.”).

Finally, to the

extent that plaintiff believes that a “want of solicitude” is revealed
in certain challenged portions of the Opinion and Order, Doc. No. 196,
the Court addresses the merits of those particular challenges infra.
Third, plaintiff criticizes other rulings of this Court unrelated
to the Opinion and Order, Doc. No. 196, as well as the Court’s
previous denial of plaintiff’s prior motion to strike defendants’
affidavits (declarations) supporting their motion for summary
judgment.

Motion for Reconsideration, p. 2.

Although plaintiff

provides no citation to the record for the recommended rulings that he
now attacks, the docket reflects that plaintiff’s prior objections to
these rulings were considered years ago by the Court.

See Order and

Report and Recommendation, Doc. No. 54 (issued on November 24, 2009);
Plaintiff Whiteside’s Objection to Order and Report and
Recommendation, Doc. No. 65; Opinion and Order, Doc. No. 66; Report
and Recommendation, Doc. No. 103 (issued on November 22, 2010);
Objections to Magistrate’s Report and Recommendation, Doc. No. 105;
Opinion and Order, Doc. No. 106; Report and Recommendation, Doc. No.
127 (issued on August 23, 2011); Plaintiff’s Objections to Report and
Recommendation, Doc.# 127, Doc. No. 135; Opinion and Order, Doc. No.
145.

To the extent that plaintiff intends to again attack this

7

Court’s prior consideration of declarations attached to defendants’
motion for summary judgment, that attack has also been previously
considered and rejected by this Court.
No. 196, p. 5.

See Opinion and Order, Doc.

Plaintiff’s attempt to re-argue his position in this

regard is unpersuasive.

See, e.g., Howard v. United States, 533 F.3d

472, 475 (6th Cir. 2008) (“Rule 59(e) allows for reconsideration; it
does not permit parties to effectively ‘re-argue a case.’”) (quoting
Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,
374 (6th Cir. 1998)).
Fourth, plaintiff complains that the Court “ignored the probative
value of all discovery materials attached [by plaintiff], thus failing
to ‘afford a special solicitude’ to this pro se litigant.”
Reconsideration, p. 4.

Motion for

Plaintiff goes on to argue that “ignor[ing]

the probative value of all discovery materials attached” to his motion
for summary judgment is tantamount to holding that an inmate has no
right to be respected by prison officials or, like the holding in
Scott v. Sandford, 60 U.S. 393 (1857), that African-Americans had no
rights that Caucasian-Americans must respect.

Id.

Plaintiff

therefore contends that the Court should have “at least refer[red] to
some of the [plaintiff’s uncontroverted] discovery materials[.]”

Id.

(emphasis in original).
This Court disagrees.

As an initial matter, plaintiff fails to

specify upon what basis the Motion for Reconsideration in this regard
is meritorious under Rule 59(e).

However, the Court, construing

plaintiff’s motion liberally, see Haines v. Kerner, 404 U.S. 519, 52021 (1972), assumes that plaintiff intends to argue that the Court’s

8

failure to expressly refer to his discovery materials amounts to a
“clear error of law” or results in “manifest injustice.”
v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005).

Intera Corp.

In ruling on the

parties’ motions for summary judgment, the Court relied on only
material evidence in the record.

Stated differently, evidence on

which the jury could not reasonably find for plaintiff is not material
to the Court’s summary judgment analysis.

See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 251 (1986).

Accordingly, it

was not clearly erroneous or unjust under Rule 59(e) for the Court to
decline to refer to evidence in the record that does not create a
genuine dispute of material fact.

For example, plaintiff complains

that in defendant Haskins’ “2011 affidavit [apparently referring to
Exhibit B, Declaration of Melody Haskins, attached to defendants’
motion for summary judgment, Doc. No. 157], she claimed that Plaintiff
possessed others’ legal work.
she states differently.”

However, in her discovery responses,

Motion for Reconsideration, p. 2.

Notwithstanding that plaintiff has failed to cite to any particular
paragraph in the declaration or particular discovery request, the
Court is not persuaded that plaintiff’s characterization of this
evidence is supported by the record.

Moreover, plaintiff has not

explained how this evidence is material to the Court’s summary
judgment analysis in determining whether or not the three challenged
disciplinary rules are vague and lack fair notice.

See, e.g., Opinion

and Order, Doc. No. 196, pp. 34-35 (citing plaintiff’s criticism of
Rule 50).

In sum, plaintiff has not persuaded this Court that a

9

failure to cite to non-material evidence amounts to a clear error of
law or otherwise results in manifest injustice.
Fifth, plaintiff argues that O.A.C. § 5120-9-077 was not in
effect between 2004 and 2012 because O.A.C. § 5120-9-088 replaced §
5120-9-07 in 2004.

Motion for Reconsideration, p. 3; Plaintiff’s

Reply Memorandum to Defendants’ Combined Memorandum in
Opposition/Doc#201, Doc. No. 203, pp. 1-2 (citing to Exhibit A,
attached to Combined Memo. in Opp., which is apparently the 2006
LexisNexis (Anderson) version of these Code provisions) (“Plaintiff’s
Reply”).

Plaintiff contends that “at the time a conduct report was

issued against Plaintiff, and since 2004, there has been no provision
for conduct reports as the Court erroneously employs on page 10 of its
judgment.”

Motion for Reconsideration, p. 3 (emphasis in original).

Plaintiff therefore argues that “any conduct report written between
June 2004 and June 2012 has been unlawful.”
Plaintiff’s argument is not well-taken.

Id.
Plaintiff does not so

specify, but the Court presumes that plaintiff intends to argue that
the challenged Opinion and Order, Doc. No. 196, commits a clear error
of law under Rule 59(e).

As an initial matter, however, arguing that

O.A.C. § 5120-9-07 was not in effect and that the conduct reports
issued to plaintiff in 20069 (and “any conduct report written between
2004 and June 2012”) were “unlawful” on this basis goes beyond the
allegations asserted in the Amended Complaint, Doc. No. 15, which
7

This provision governs conduct report and hearing officer procedures.
This provision governs disciplinary procedures for violations of inmate rules
of conduct before the rules infraction board.
9
The record reflects that the challenged conduct reports were issued in 2006.
See, e.g., Exhibit B-1, attached to the Declaration of Melody Haskins,
attached to defendants’ motion for summary judgment, Doc. No. 157.
8

10

complains that certain disciplinary rules are vague and lack fair
notice.

See, e.g., Verified Complaint, Doc. No. 4, ¶¶ A, 24, 26, 32;

Amended Complaint (which incorporates by reference the allegations
within the Verified Complaint); Order and Report and Recommendation,
Doc. No. 54, p. 8 n.9 (construing plaintiff’s claims liberally to
include a claim involving Rule 51).

Indeed, plaintiff’s arguments at

the summary judgment stage focused on the language employed by the
challenged disciplinary rules and how that language was subject to
various interpretations and focused on the alleged proof required for
finding a violation of such disciplinary rules.

See, e.g.,

Plaintiff’s Motion for Summary Judgment, Doc. No. 182, pp. 1-5, and
Declaration in Support of Plaintiff’s Motion for Summary Judgment, ¶¶
12, 15-16, attached thereto; Plaintiff’s Memorandum Opposing
Defendants’ Summary Judgment Motion, Doc. No. 183, p. 5, and
Plaintiff’s Declaration in Opposition to Defendants’ Motion for
Summary Judgment, ¶ 10, attached thereto; Plaintiff’s Reply to
Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Summary
Judgment, Doc. No. 189, pp. 3-4.

In short, in advancing the theory

that all conduct reports issued between 2004 and June 2012 were
unlawful, plaintiff is attempting to raise a new claim in this action.
Plaintiff first attempted to assert this new claim in a Notice to
the Court, Doc. No. 191 (“Notice”), only after the parties’ motions
for summary judgment had been fully briefed, and nearly four years
after initiating this action.

Even if the Court liberally construed

the Notice to be a request for leave to amend pursuant to Fed. R. Civ.

11

P. 15(a),10 granting leave to amend under these circumstances would
result in undue delay and prejudice.

See, e.g., Foman v. Davis, 371

U.S. 178, 182 (1962) (considering such factors as “undue delay, bad
faith or dilatory motive on the part of a movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment [and]
futility of the amendment”); Murphy v. Grenier, No. 09-2132, 406 Fed.
Appx. 972, at *977 (6th Cir. Jan. 19, 2011) (concluding that granting
leave to amend would result in undue delay and prejudice where the
motion for leave was not filed until after briefing on a summary
judgment motion); Tucker v. Union of Needletrades, 407 F.3d 784, 788
(6th Cir. 2005) (“At the summary judgment stage, the proper procedure
for plaintiffs to assert a new claim is to amend the complaint in
accordance with Rule 15(a).”) (internal quotation marks and citations
omitted); Duggins v. Steak N' Shake, Inc., 195 F.3d 828, 834 (6th Cir.
1999) (finding no abuse of discretion in denying leave to amend where
movant “delayed [without justification] pursuing this claim until
after discovery had passed, the dispostive motion deadline had passed,
and a motion for summary judgment had been filed” and granting leave
“at this late stage in the litigation” would significantly prejudice
defendants).
unavailing.

Therefore, plaintiff’s attempt to assert this claim is
Id.

Moreover, the Notice was filed without leave and was not fully
briefed by the parties.

Cf. S.D. Ohio Civ. R. 7.2(a)(2) (“No

10

The Notice may also be construed as a supplemental brief in support of
plaintiff’s motion for summary judgment or surreply to defendants’ motion for
summary judgment. See infra.

12

additional memoranda beyond those enumerated [memoranda opposing a
motion and reply memorandum in support of a motion] will be permitted
except upon leave of court for good cause shown.”); Leeper v. Verizon
Wireless, No. 2:08-CV-0727, 2009 U.S. Dist. LEXIS 117187, at *29 (S.D.
Ohio Dec. 16, 2009) (disregarding surreply filed without leave).
Accordingly, plaintiff’s proffered new claim, rooted in his
interpretation of legislative history, was not properly before the
Court at the summary judgment stage.

See, e.g., Bridgeport Music,

Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (stating
that a plaintiff may not assert new theories of relief in response to
summary judgment or on appeal).

Under these circumstances, the Court

need not now consider plaintiff’s belated theory of relief.

Id.;

Willecke v. Kozel, No. 09-1601, 395 F. App’x 160, 167-68 (6th Cir.
Aug. 20, 2010) (“[T]he district court [is] not required to construe
the [plaintiff’s] request [to amend] in [its] brief [opposing summary
judgment] as a motion to amend, and [it] does not err in not doing so”
and declining to rule on such a request).
Even if the Court construed plaintiff’s belated claim as properly
before this Court, plaintiff nevertheless fails to establish a clear
error of law.

In advancing the argument that O.A.C. § 5120-9-07 was

not in effect in 2006 because O.A.C. § 5120-9-08 replaced that
provision in 2004, plaintiff relies on the legislative history as
summarized in the 2006 LexisNexis (Anderson) versions of O.A.C. §§
5120-9-07,11 5120-9-08.12

Motion for Reconsideration, p. 3; Plaintiff’s

11

This history provides the following: “Replaces: 5120-9-07; Eff 4-5-76; 1030-78; 3-24-80; 1-16-84; 7-18-97; 7-19-04[.]” O.A.C. § 5120-9-08 (Anderson

13

Reply, p. 1 (“Only persons who are functionally illiterate would not
be able to read simple, plain English.”) (citing to Exhibits A and B
(the 2006 LexisNexis (Anderson) version of those provisions), attached
to Combined Memo. in Opp.).

However, Anderson is not the official

source for the Ohio Administrative Code; it is Baldwin’s (a West
publication) that is the official source.

See THE BLUEBOOK: A UNIFORM

SYSTEM OF CITATION 260 T.1 (Columbia Law Review Ass’n et al. eds., 19th
ed. 2010).

In reviewing the official version of O.A.C. § 5120-9-07

(2006), nothing in the actual language of that Code provision suggests
that the provision was not in effect in 2006.

To the extent that

plaintiff argues that his interpretation of the history of O.A.C. §§
5120-9-07, 5120-9-08 renders O.A.C. § 5120-9-07 void or ineffective,
plaintiff is mistaken.

The actual text of the Code provision, which

is clear, trumps plaintiff’s reading of its legislative history.

Cf.

Thompson v. Greenwood, 507 F.3d 416, 419 (6th Cir. 2007) (“[A]
fundamental canon of statutory construction is that ‘when interpreting
statutes, the language of the statute is the starting point for
interpretation, and it should also be the ending point if the plain
meaning of that language is clear.’”) (quoting United States v.
Boucha, 236 F.3d 768, 774 (6th Cir. 2001)); Johnson, MacDonald &
Assocs. v. Webster Plastics, 856 F. Supp. 1249, 1253 n.2 (S.D. Ohio
1994) (noting that “Ohio has no official legislative history”);
DIRECTV, Inc. v. Levin, 181 Ohio App. 3d 92, 105 (Tenth Dist. Ct. App.
2006), attached as Exhibit A, p. 3, which is attached to Combined Memo. in
Opp.
12
This history provides the following: “Replaces: 5120-9-07; Eff 7-19-04[.]”
O.A.C. § 5120-9-08 (Anderson 2006), attached as Exhibit B, p. 5, which is
attached to Combined Memo. in Opp.

14

2009) (“Ohio has no official legislative history. . . .

As a

consequence, a court may not resort to legislative history, such as
the comments of a legislator regarding enactments, to alter the clear
wording of the legislative enactment.”) (internal quotation marks and
citations omitted).

Therefore, the Court’s reliance on O.A.C. § 5120-

9-07 (2006) when addressing conduct reports and hearing officer
procedures was not in error.

See Opinion and Order, Doc. No. 196, pp.

10-12, 21 (citing to O.A.C. § 5120-9-07(B)-(H) (2006)).13
Finally, plaintiff complains that the Court failed to rule on the
constitutionality of Rules 28, 50 and 51 and/or explain its ruling.
Motion for Reconsideration, p. 3.

This Court disagrees.

See, e.g.,

Opinion and Order, Doc. No. 196, pp. 24-38 (discussing due process as
it relates to plaintiff’s claims regarding Rules 28, 50 and 51).
In sum, plaintiff does not point to a change of controlling law,
new evidence, clear error or manifest injustice in the Court’s Opinion
and Order, Doc. No. 196, and therefore has not established a valid
basis for altering or amending this Court’s previous order and
judgment.

IV.

REQUEST FOR JUDICIAL NOTICE AND PLAINTIFF’S MOTION FOR JUDGMENT
FORTHWITH
In light of the foregoing, plaintiff’s Request for Judicial

Notice and Plaintiff’s Motion for Judgment Forthwith are moot.

13

Even if one were to look to the legislative history of O.A.C. § 5120-9-07,
that history does not necessarily establish that the regulation was not in
effect in 2006. See, e.g., Ohio Monthly Rec. 2207-2208 (February 2004)
(providing text of O.A.C. § 5120-9-07 with the following note: “HISTORY:
Eff. 7-19-04”).

15

WHEREUPON, plaintiff’s Motion for Reconsideration of Court’s
Desultory Judgment, Doc. No. 199, and Plaintiff’s Motion to Strike,
Doc. No. 202, are DENIED.

Plaintiff’s Request for Court to Take

Judicial Notice, Doc. No. 198, and Plaintiff’s Motion for Judgment
Forthwith, Doc. No. 205, are DENIED as moot.14

Date: April 25, 2013
_______s/James L. Graham____
James L. Graham
United States District Judge

14

Plaintiff apparently asks for “an opportunity to be heard” if there are
“question[s about] the propriety of taking judicial notice and the tenor of
the matter noticed[.]” Plaintiff’s Request for Judicial Notice, p. 1.
Because this matter may be decided on the briefs and materials submitted to
the Court, plaintiff’s request for oral argument is not well-taken.

16