Cockshutt v. State of Ohio Department of Rehabilitation & Correction et al
Filing
70
OPINION AND ORDER answer of defendants Gary Mohr, Gary Croft, and Casey Barr Doc. No. 21 , is ordered STRICKEN. Motion to appoint counsel, Doc. No. 67 , is DENIED. Signed by Magistrate Judge Norah McCann King on 3/11/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN D. COCKSHUTT,
Plaintiff,
vs.
Case No. 2:12-cv-532
Magistrate Judge King
STATE OF OHIO, DEPARTMENT OF
REHABILITATION & CORRECTION,
et al.,
Defendants.
OPINION AND ORDER
Plaintiff John D. Cockshutt, a state prisoner, alleges that his
security level was increased based on a false conduct charge, denying
him his rights to due process and to be free from cruel and unusual
punishment.
The Complaint, Doc. No. 4, seeks expungement of
plaintiff’s conduct report as well as monetary damages. This matter is
now before the Court, with consent of the parties pursuant to 28
U.S.C. § 636(c), for consideration of plaintiff’s motion for
Substitution of Defendant (“Plaintiff’s Motion”), Doc. No. 55.
Defendants oppose Plaintiff’s Motion, Defendants’ Response to
Plaintiff’s Motion for Substitution of Defendant (“Defendants’
Response”), Doc. No. 61, and plaintiff has filed a reply.
Plaintiff’s
Motion [] Contra to the Defendant[s’] Response (“Plaintiff’s Reply”),
Doc. No. 66.
Also before the Court is plaintiff’s Motion to Appoint
Counsel, Doc. No. 67.
The Complaint, Doc. No. 4, was filed on June 18, 2012 and names
as a defendant, inter alios, Ernie Moore, who is the former Director
of the Ohio Department of Rehabilitation and Correction (“ODRC”) and
the current Warden of the Lebanon Correctional Institution.
1.
Id. at p.
The docket indicates that service was effected on “Ernie Moore
(Gary Mohr) Director ODRC”.
See Doc. No. 9, pp. 1-3. However, Gary
Mohr, the current Director of ODRC, asserts that it was he who was
actually served instead of Ernie Moore.
Defendants’ Response, p. 3.
Gary Mohr filed an answer on August 17, 2012, indicating that, as the
current Director of ODRC, he has been automatically substituted for
“former ODRC Director Ernie Moore” pursuant to Fed. R. Civ. P. 25(d).
Answer of Defendants Gary Mohr, Gary Croft, and Casey Barr to
Plaintiff’s Complaint, with Jury Demand, Doc. No. 21, p. 1 n.1.
Plaintiff now seeks to substitute Ernie Moore as defendant
instead of Gary Mohr.
Plaintiff notes that Ernie Moore was the
Director of ODRC at the time of the events that gave rise to this
action;
plaintiff expressly asks that Gary Mohr be dismissed as a
defendant.
Plaintiff’s Motion, p. 2.
The parties seem to agree that Ernie Moore is the proper
defendant and that Gary Mohr’s participation in the action was
erroneous.
p. 1.
See id.; Defendants’ Response, pp. 5-6; Plaintiff’s Reply,
The parties also agree that Fed. R. Civ. P. 25(d) did not serve
to effect the automatic substitution of Gary Mohr for Ernie Moore
because Ernie Moore was not the Director of ODRC at the time this
action was filed.
4.
Plaintiff’s Reply, p. 1; Defendants’ Response, p.
The Court agrees with that determination.
See Fed. R. Civ. P.
25(d) (“An action does not abate when a public officer who is a party
in an official capacity dies, resigns, or otherwise ceases to hold
2
office while the action is pending.
The officer's successor is
automatically substituted as a party.”) (emphasis added).
Accordingly, to the extent that Gary Mohr has participated in
this action, he has done so mistakenly and has not acted on behalf of
any party.
Gary Mohr is not a proper defendant in this action and he
has no responsibility or authority to act in this case.
The Answer of
Defendants Gary Mohr, Gary Croft, and Casey Barr to Plaintiff’s
Complaint, with Jury Demand, Doc. No. 21, is therefore ordered
STRICKEN to the extent that it relates to Gary Mohr.
Plaintiff has filed a summons and a Marshals service form for
defendant Ernie Moore.
See Doc. No. 68.
Plaintiff is ADVISED that he
must also provide a copy of the Complaint before service can be
effected on Ernie Moore.
Should plaintiff provide a copy of the
Complaint, the United States Marshal will be DIRECTED to effect
service of process by certified mail on Ernie Moore, who shall have 45
days after service of process to respond to the Complaint.
Also before the Court is plaintiff’s Motion to Appoint Counsel.
Defendant Schmutz has filed a motion to dismiss for failure to state a
claim, Doc. No. 31, defendant Ernie Moore has not been served with
service of process, and the remaining defendants have filed an answer,
Doc. Nos. 21, 33.
Because the action has not yet progressed to the
point that the Court is able to evaluate the merits of plaintiff’s
claim, the Motion to Appoint Counsel, Doc. No. 67, is DENIED without
prejudice to renewal at a later stage of the proceedings.
See Henry
v. City of Detroit Manpower Dept., 763 F.2d 757, 760 (6th Cir. 1985)
(“[I]n considering an application for appointment of counsel, district
3
courts should consider plaintiff’s financial resources, the efforts of
plaintiff to obtain counsel, and whether plaintiff’s claim appears to
have any merit.”).
This Opinion and Order resolves plaintiff’s motion for
Substitution of Defendant, Doc. No. 55, and plaintiff’s Motion to
Appoint Counsel, Doc. No. 67.
The Clerk is DIRECTED to remove Doc.
Nos. 55 and 67 from the Court’s pending motions list.
March 11, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?