Berk et al v. Moore et al

Filing 167

ORDER denying 159 Motion for Reconsideration. Signed by Judge Gregory L Frost on 10/22/12. (kn)

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

OTTO BERK, et al.,
Plaintiff,
vs.

Civil Action 2:10-CV-1082
Judge Frost
Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,
Defendants.
ORDER
The Magistrate Judge recommended that Defendants’ motion for
judgment on the pleadings, ECF. No. 85, be denied as to Plaintiffs’ ex
post facto claims but granted in all other respects.
and Recommendation, ECF. No. 139.

Order and Report

On August 31, 2012, this Court

granted defendants’ objections to that recommendation as it related to
the ex post facto claims, adopted and affirmed the Report and
Recommendation in all other respects and granted in its entirety
defendants’ motion for judgment on the pleadings.

Opinion and Order,

ECF. No. 153.

Final judgment was entered that same date.

ECF. No. 154.

This matter is now before the Court on Plaintiff Hall’s

motion to reconsider the judgment entered in this case.

Judgment,

ECF. No. 159.1

In his motion to reconsider, Plaintiff Hall complains, first,
that he is entitled to discovery.

More specifically, he argues that

Defendants are in contempt of the Order and Report and Recommendation,
ECF. No. 139, at 19-23, which addressed issues of discovery, even
though defendants filed a motion to stay discovery, ECF. No. 145.

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Notwithstanding the prior directive that Defendants file some response
to every motion, Order and Report and Recommendation, ECF. No. 139, at 2, 2425, Defendants have nevertheless failed to respond to Plaintiff Hall’s motion
to reconsider.

ECF. No. 159, at 5-6.

This objection is not well taken.

As Plaintiff

Hall concedes, Defendants filed a motion to stay discovery shortly
after the Magistrate Judge extended the discovery deadline in the
case.

However, The Court later granted in its entirety Defendants’

motion for judgment on the pleadings, Opinion and Order, at 18,
however, thereby obviating the need for discovery in this case.

Based

on this record, Plaintiff Hall is not entitled to discovery and has
not shown that Defendants are in contempt of a Court order.
Second, Plaintiff Hall disagrees with various statements and/or
arguments made in Defendants’ objections to the Order and Report and
Recommendation.

ECF. No. 159, at 6-7.

The Court has already

entertained Defendants’ objections, however, and remains convinced
that its resolution of those objections was proper.

See Opinion and

Order, ECF. No. 153.
Third, Plaintiff Hall reiterates his assertion that “the 2010
Handbook is a tergiversate Handbook[,]” setting forth several reasons
in support of his position.

ECF. No. 159, at 7.

Again, this Court

has already addressed this allegation, Opinion and Order, ECF. No.
153, and is not persuaded that its judgment was entered in error.
Finally, Plaintiff Hall insists that various parole guidelines,
manuals and matrices, and Senate Bill 2 increased the length of his
incarceration in violation of the ex post facto clause of the United
States Constitution.

ECF. No. 159, pp. 8-10.

As the Court reasoned

in granting Defendants’ motion for judgment on the pleadings, however,
“[P]laintiffs have failed to state a colorable claim under the ex post
facto clause of the United States Constitution.”
ECF. No. 153, at 18.

Opinion and Order,

The Court remains convinced that Defendants’

motion for judgment on the pleadings is meritorious; Plaintiff Hall

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has not persuaded the Court that final judgment was entered in error.
Accordingly, the Court DENIES plaintiff Hall’s motion to
reconsider.

ECF. No. 159.

/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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