Enyart v. Karnes et al

Filing 112

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 6-8-11. (ga)

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

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.
OPINION AND ORDER
On April 26, 2011, the United States Magistrate Judge
recommended that plaintiff’s motion for entry of default be denied
and that the motion to dismiss Franklin County as a defendant be
granted.

The Magistrate Judge also ordered that service of process

by ordinary mail be sent by the Clerk’s Office to defendants Waldren,
Thacker and Miller. 1
96.

Order and Report and Recommendation , Doc. No.

On May 2, 2011, the Magistrate Judge also denied plaintiff’s

request for the appointment of counsel, Order, Doc. No. 102, and
plaintiff’s motion to amend the complaint to add additional
defendants.

Opinion and Order, Doc. No. 104.

This matter is now

before the Court on plaintiff’s objections to the Report and
Recommendation, Doc. No. 107, and on plaintiff’s objections to the
May 2, 2011 orders of the Magistrate Judge.
Objection, Doc. No. 110.

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Objection, Doc. No. 109;

The Court will review the Magistrate

The Clerk of the Court sent service of process by ordinary mail,
pursuant to S. D. Ohio Civ. R. 4.2(c), to defendants Deputies Waldren, Thacker
and Miller. Certificate of Mailing by Clerk, Doc. No. 97. Service sent to
defendant Thacker was returned unserved. Doc. No. 108. It appears, however,
that service of process on defendants Waldren and Miller was successful,
although these defendants have not responded to the claims asserted against
them.

Judge’s recommendation de novo but will reverse the Magistrate
Judge’s orders only if those orders are clearly erroneous or contrary
to law.

See 28 U.S.C. §636(b); Fed. R. Civ. P. 72(b).

Plaintiff objects to the recommendation that Franklin County be
dismissed as a defendant, at least until plaintiff has had the
opportunity to conduct discovery as to this defendant.

As the

Magistrate Judge noted, the body of plaintiff’s complaint did not
include any substantive claim expressly against Franklin County.
Plaintiff named defendant Karnes, the former Sheriff of Franklin
County, in both his official and individual capacity, but this Court
granted defendant Karnes’ motion for summary judgment.
No. 92.

Order, Doc.

There is therefore no basis for retaining defendant Franklin

County in the litigation.

Plaintiff’s objection to the Magistrate

Judge’s recommendation is therefore without merit.
The Magistrate Judge denied plaintiff’s motion for the
appointment of counsel, without prejudice to a later stage of the
proceedings.

Order, Doc. No. 102.

Plaintiff objects to that order.

There is no absolute right to the appointment of counsel in a civil
case.

See Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 760

(6th Cir. 1985)(en banc)(“[I]n considering an application for
appointment of counsel, district courts should consider plaintiff’s
financial resources, the efforts of plaintiff to obtain counsel, and
whether plaintiff’s claim appears to have any merit.”). The
Magistrate Judge’s order denying plaintiff’s request for the
appointment of counsel made clear that plaintiff can renew his
request “after the Court has had the opportunity to more clearly
evaluate the merits of plaintiff’s claims.”

Order, Doc. No. 102.

The Magistrate Judge’s Order was neither clearly erroneous nor

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contrary to law.

Plaintiff’s objection is therefore without merit.

The Magistrate Judge also denied plaintiff’s motion for leave to
amend the complaint in order to join as additional defendants
employees of the Columbus Police Department and fellow inmates at the
Franklin County Jail who allegedly assaulted plaintiff in 2007.
Order, Doc. No. 104.

In doing so, the Magistrate Judge reasoned

that, because the statute of limitations on plaintiff’s claims has
now run, see Browning v. Pendleton, 869 F. 2d 989, 990 (6th Cir.
1989)(en banc), and because the proposed amendment would not relate
back to the filing of the original complaint, the proposed amended
complaint would be futile.

Opinion and Order, Doc. No. 104.

Plaintiff objects to that decision as it relates to the proposed
joinder of jail inmates.2

Plaintiff contends that claims asserted

against these proposed defendants would relate back to the time of
the filing of the original complaint because “their unlawful actions
are clearly stated in the original complaint filed on 08/06/09, . . .
but their names were not known until discovery and investigation
produced them.”

Plaintiff’s Objections to the Opinion & Order Filed

5/2/11, Doc. No. 109, at 3.

Under Fed. R. Civ. P. 15(c),

claims asserted in an amended complaint will relate back to the
filing of the original complaint only if, within 120 days after the
filing of the original complaint, the party sought to be named in the
amended pleading received notice of the action and knew or should
have known that, but for a mistake concerning the proper party’s
identity, the party would have been properly named in the original
complaint.

Id.

As the Magistrate Judge noted, a “lack of knowledge

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Plaintiff withdraws his request to join members of the Columbus Police
Department as defendants in this action. Plaintiff’s Objection to the Opinion
& Order Filed 5/2/11, Doc. No. 109, at 2.

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pertaining to an intended defendant’s identity does not constitute a
‘mistake concerning the party’s identity’ within the meaning of Rule
15(c).”

Moore v. Tennessee , No. 06-6148, 267 Fed. Appx 450 at *455

(6th Cir. March 3, 2008)(citing Cox v. Treadway , 75 F.3d 230, 240 (6th
Cir. 1996))(emphasis added).

Plaintiff has not proffered any

evidence that the jail inmates whom he now seeks to join as
defendants in this action received notice of the action within 120
days after the filing of the original complaint on August 6, 2009,
and knew or had reason to know that a mistake had been made,
resulting in their omission from the complaint.

Under these

circumstances, the decision of the Magistrate Judge denying
plaintiff’s motion to amend the complaint was neither clearly
erroneous nor contrary to law.
WHEREUPON plaintiff’s objections to the recommendation of the
Magistrate Judge are DENIED.

The Order and Report and

Recommendation, Doc. No. 96, is ADOPTED and AFFIRMED.
motion to entry of default, Doc. No. 93, is DENIED.
County’s motion to dismiss, Doc. No. 94, is GRANTED.

Plaintiff’s
Franklin
Franklin County

is DISMISSED as a defendant.
Plaintiff’s objections to the orders of the Magistrate Judge, Doc. Nos.
109-110, are DENIED.

s/George C. Smith
George C. Smith, Judge
United States District Court

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