Siegler v. The Ohio State University, et al

Filing 65

OMNIBUS ORDER denying 35 Motion for Reconsideration ; denying 45 Motion to make definite and certain; finding as moot 49 Motion; denying 50 Motion for Default Judgment; denying 56 Motion for Reconsideration ; finding as moot 8 Motion. Signed by Magistrate Judge Mark R. Abel on 07/29/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sara E. Siegler,

:
Plaintiff

:

v.

Civil Action 2:11-cv-170

:

The Ohio State University, et al.,
Defendants.

:

Magistrate Judge Abel

:
OMNIBUS ORDER

As the relief Plaintiff requests in her motion for corrective docket entry has
already been effected, that motion (Doc. 8) is MOOT.
Plaintiff’s motion for reconsideration of the Court’s June 13, 2011 order
denying her motion for an exemption from PACER fees (Doc. 35) is DENIED. The
Court does not find that Plaintiff has presented an adequate basis to set aside its
specific determination that “Plaintiff has not made a sufficient showing that she
either requires fee-waived access to PACER or that she is being billed a significant
amount of money for her access.” (Doc. 35 at 3.)
Plaintiff’s first motion to make definite and certain (Doc. 45) is DENIED. In
the first place, Plaintiff misapprehends the purpose of Fed. R. Civ. P. 12(e), which
is, as it says, to demand a “more definite statement of a pleading”. It is intended for
circumstances where, e.g., a plaintiff files a complaint that is so vague that a
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defendant “cannot reasonably prepare a response”. It is not intended as, as
Plaintiff employs it here, as a means of consulting the Court on “uncertainties with
regard to the filing of criminal complaints”. Furthermore, the opinion of the
Franklin County Prosecutor’s Office cited by Plaintiff in her motion is correct. A
private citizen has no “judicial or cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Richard C., 410 U.S. 614, 619 (1973). The
Court will not accept criminal complaints for filing, on Form AO 91 or otherwise,
unless the United States Attorney has authorized the prosecution. It will
furthermore not interfere in the United States Attorney’s discretion to determine
whether prosecution is warranted. See, e.g., Keenan v. McGrath, 328 F.2d 610, 611
(1st Cir. 1964); Winslow v. Romer, 759 F.Supp. 670 (D. Col. 1991).
The Court will not entertain Plaintiff’s second “motion to make definite and
certain” (Doc. 49) as such, for the reasons stated above. However, Plaintiff states
that the Court’s July 5, 2011 notice of preliminary pretrial conference mandated
that the parties conduct their Fed. R. Civ. P. 26(f) conference no later than July 11,
2011, and set the preliminary pretrial conference for August 11, 2011. She attaches
to her motion correspondence with defense counsel, who stated, apparently in
response to a set of discovery requests:
I am in receipt of your emails, however, I strongly suggest that you
more closely read Rule 26 of the Federal Rules of Civil Procedure.
Pursuant to Rule 26(d) “A party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f).” I
will respond with OSU’s Rule 26(f) report within a reasonable amount
of time. Additionally, as you may know, the Court has scheduled a
Preliminary Pretrial Conference and if you read the 26(f) report form
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you will see that this report is the venue for the parties to set out their
discovery plans. We will not be engaging in any discovery until we
have fully completed the 26(f) conference.
(Doc. 49-1 at 3.) Plaintiff requests, in brief, advice from the Court as to when she
may proceed with discovery. The docket of this case reflects that the parties each
filed separate Rule 26(f) reports on July 20, 2011. (Docs. 54, 55.) Defendants assert
that the Conference of the Parties took place on July 18, 2011; Plaintiff asserts that
she conferred with Defendants’ counsel on various dates between July 7 and July
19, 2011. In any case, pursuant to Fed. R. Civ. P. 26(d)(1), and unless as otherwise
ordered by the Court, as the Rule 26(f) conference has already occurred, any party
may engage in discovery. The motion (Doc. 49) is otherwise MOOT.
Plaintiff’s motion for the entry of default against Defendant Larry L.
Lewellen (Doc. 50) is DENIED. Although, as Plaintiff states, Defendant Lewellen
has not moved or pled in response to her complaint, the Court’s initial screening
report and recommendation of May 23, 2011 stated that he was “not required to
answer the complaint unless later ordered to do so by the Court.” (Doc. 10 at 21.)
Finally, Plaintiff’s motion for reconsideration of the Court’s July 11, 2011
order denying her motion to strike (Doc. 56) is DENIED. That order denied
Plaintiff’s request to strike a Form AO 85 (granting consent to reference of a civil
action to a United States Magistrate Judge) recently filed by Defendants, on
grounds that it had not been accompanied by a certificate of service. The Court
found that any failure to do so was de minimis. Plantiff has not set forth any basis
for the Court to reconsider its decision, or offered any explanation of any prejudice
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she has suffered from Defendants’ alleged failure. The Court will accordingly not
reconsider this matter.
s/Mark R. Abel
United States Magistrate Judge

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