Brown v. Mohr et al
Filing
109
REPORT AND RECOMMENDATIONS that 64 MOTION for Order as supplemented by 72 ADDENDUM and 73 Further Proof of Retaliation be denied as moot. It is further recommended that 78 MOTION for Default, 79 MOTION to Dismiss, 90 MOTION for Sanct ions, and Motions to Supplement (Docs 95 and 102 ) be denied and that 94 MOTION to Stay be denied as moot. Finally, the court recommends that the Court decline to consider 82 MOTION for Order. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/23/2015. (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Steven S. Brown,
:
Plaintiff,
:
:
v.
Director Mohr, et al.,
Case No. 2:13-cv-0006
JUDGE PETER C. ECONOMUS
Magistrate Judge Kemp
:
Defendants.
:
REPORT AND RECOMMENDATION
This matter is before the Court to consider several pending
motions.
These motions include plaintiff Steven S. Brown’s
motion for an order to protect his legal papers (Doc. 64), as
supplemented by an addendum (Doc. 72) and a document entitled
“Further Proof of Retaliation in Support of Motion for
Preliminary Injunction and Motion for an order to Protect
Plaintiff’s Legal Papers and Motion Excusing any Further
Requirement to Exhaust Administrative Remedies” (Doc. 73).
Also
before the Court are Mr. Brown’s motion for an entry of default
(Doc. 78) and a motion to dismiss for insufficient service filed
on behalf of defendants Austin Stout, Greg Trout, Trevor Clark,
Director Mohr, Ryan Dolan, Nurse Smith and Ed Voorhies (Doc. 79).
Additionally, Mr. Brown has filed a motion for an order directing
defendants to debit his prison account for copies and postage to
enable him to access the courts (Doc. 82), a motion for sanctions
(Doc. 90), a motion to stay (Doc. 94), and motions to supplement
previous filings (Docs. 95 and 102).
For the following reasons,
it will be recommended that all of these motions be denied.
I.
Background
Mr. Brown, a state prisoner, originally filed this action in
the Court’s Western Division in August, 2012.
In his original
complaint, Mr. Brown alleged numerous civil rights violations
against 45 individuals employed by the Ohio Department of
Rehabilitation and Correction and the Ohio Attorney General’s
Office.
A Magistrate Judge in the Western Division screened the
complaint, dismissed several defendants and claims, severed the
claims relating to Mr. Brown’s incarceration at the Ross
Correctional Institution, and transferred the severed claims to
this Court.
The surviving claims arising out of events while Mr.
Brown was incarcerated at the Southern Ohio Correctional Facility
remains pending in the Western Division as Case No. 1:12-cv-583.
I.
The Motion for an Order to Protect Plaintiff’s Legal Papers
At the time Mr. Brown filed this motion, he was incarcerated
in the Ross Correctional Institution.
The gist of his motion
appears to relate to his previous request for a preliminary
injunction and requests that the Court overrule the Report and
Recommendation recommending the denial of his request.
In his
first addendum, he contends that he now has been transferred to
the SOCF and has been denied his legal papers.
He also asserts a
number of other conditions he is being forced to endure at SOCF.
His document captioned as further proof of retaliation also
appears to relate to events at SOCF.
To the extent that Mr. Brown intended this motion to
supplement his previous motion for a preliminary injunction, the
Court will recommend that the motion be denied as moot.
The
Report and Recommendation recommending denial of the motion for
preliminary injunction has been affirmed on the issue of
injunctive relief.
Further, to the extent that Mr. Brown’s
motion and related filings pertain to claims arising at RCI, his
request for injunctive relief was mooted by his transfer to SOCF.
See Holson v. Good, 579 Fed Appx. 363, 366 (6th Cir. August 27,
2014), citing Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).
To the extent that Mr. Brown’s supplemental filings relating to
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this motion address issues arising during his incarceration at
SOCF, these claims are not before this Court and are more
appropriately considered by the Court in Case No. 1:12-cv-583.
On November 6, 2014, a Supplemental Report and Recommendation was
issued in Case No. 1:12-cv-583 recommending that Mr. Brown’s
motion be denied.
Consequently, it will be recommended that the
Court decline to consider such claims in this case.
II.
The Motion for Entry of Default
In his motion for an entry of default, Mr. Brown requests
that the Court “issue a default judgment against Defendants,
Mohr, Dolan, Voorhies, Trout, Stout, Clark, Eddy, [and]
Reese....”
The gist of Mr. Brown’s motion is that these
defendants were served with the complaint in Case No. 1:12-cv-583
and have not filed an answer in this case.
Contrary to his
previously expressed positions, Mr. Brown apparently believes
that, regardless of whether these defendants were ever served in
this case, they “were given proper notice of the claims” in this
case, and therefore, he is entitled to a default judgment
granting his requested relief.
There are several problems with Mr. Brown’s position, the
well-documented service issues in this case aside.
First, as the
Court noted in its Report and Recommendation issued April 29,
2014, defendants Eddy and Reese are not named as defendants in
this transferred case.
Further, Mr. Brown confuses an entry of
default and a default judgment.
steps taken in sequence.
They are two distinct procedural
That is, an entry of default is
required before a default judgment can be entered.
See O’Neal v.
Nationstar Mortgage, 2008 WL 3007834, *6 (S.D. Ohio August 1,
2008), citing United Coin Meter Co. v. Seaboard Coastline R.R.,
705 F.2d 839, 844 (6th Cir. 1983).
However, Fed.R.Civ.P. 55(a)
provides that a default cannot be entered against a party unless
that party has failed to plead or otherwise defend.
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The Advisory
Committee Notes to the 2007 Amendments to Rule 55 explain the
phrase “to otherwise defend,” and state as follows:
Former Rule 55(a) directed the clerk to enter a
default when a party failed to plead or otherwise
defend “as provided by these rules.” The implication
from the reference to defending “as provided by these
rules” seemed to be that the clerk should enter a
default even if a party did something showing an intent
to defend, but that act was not specifically described
by the rules. Courts in fact have rejected that
implication. Acts that show an intent to defend have
frequently prevented a default even though not
connected to any particular rule.
See also Ross v. Creative Image Technologies, LLC, 2013 WL
2404234, *1 (W.D. Ky. May 31, 2013)(The Advisory Committee Notes
“confirm the view that Rule 55(a) does not require a responsive
pleading or Rule 12(b) motion”).
As contemplated by Rule 55(a),
the other defendants - Mohr, Dolan, Voorhies, Trout, Stout and
Clark - are actively defending this case by the filing of a Rule
12(b)(5) motion.
As a result, Mr. Brown has not demonstrated
grounds for an entry of default or, by extension, a default
judgment.
Consequently, the Court will recommend that Mr.
Brown’s motion be denied.
III.
The Motion to Dismiss
Turning to the motion to dismiss under Rule 12(b)(5),
defendants Mohr, Dolan, Voorhies, Trout, Stout, Smith, and Clark
cite to the Report and Recommendation issued April 29, 2014, in
which the Court directed Mr. Brown to submit “a service copy of
the complaint, a completed summons and a USM-285 for defendants
Stout, Trout, Clark, Mohr, Dolan, Eleby, Voorhies and Smith
within fourteen days of the date of this order.”
According to
these defendants, Mr. Brown has not done so and, beyond this,
they argue Mr. Brown has failed to perfect service on them since
this case originally was severed in January, 2013 - a lapse of
more than 600 days.
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In his response, Mr. Brown argues, consistent with his
position raised in many of his other filings, that he has been
unable to perfect service for numerous reasons including actions
by the Court and the defendants.
He contends that service in the
other case has provided sufficient notice to constitute service
in this case.
In reply, defendants argue that Mr. Brown cannot rely on
service in the other case to satisfy his service obligations
here.
Further, they contend that there is no evidence that he
has attempted to serve defendants Mohr and Clark.
Additionally,
defendants contend that Mr. Brown’s interpretation of the time
allowed for him to satisfy his service obligations is incorrect.
Finally, defendants assert that Mr. Brown’s pro se status does
not excuse his failure to timely serve the unserved defendants.
Under Fed.R.Civ.P. 12(b)(5), a complaint may be attacked for
insufficient service of process.
“A Rule 12(b)(5) motion is the
proper vehicle for challenging the failure to deliver a summons
and complaint in accordance with Rule 4(m).”
Schmidt v.
Jefferson County Bd. of Ed., 2014 WL 1877669 (W.D. Ky. May 9,
2014), citing 5B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE CIVIL §1353 (3d ed.).
Fed.R.Civ.P. 4(m) provides:
If a defendant is not served within 120 days after
the complaint is filed, the court - on motion or on its
own after notice to the plaintiff - must dismiss the
action without prejudice against that defendant or
order that service be made within a specificed time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
The Court’s obligation under Rule 4(m) was recently
explained in Greene v. Venatter, 2014 WL 559154, *2 (S.D. Ohio
February 11, 2014):
The first clause of Federal Rules of Civil
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Procedure 4(m) shows that a district court shall either
(1) dismiss a complaint without prejudice, or (2)
direct that service be made within a specified time, if
a plaintiff fails to serve a summons and complaint
within 120 days after filing the complaint. Osborne v.
First Union Nat. Bank of Delaware, 217 F.R.D. 405, 406
(S.D Ohio 2003). The second clause of Rule 4(m) states
that a district court shall extend the time for service
if a plaintiff demonstrates good cause for failing to
comply with the 120-day time requirement. Id. A plain
reading of these two clauses shows that a district
court generally possesses the discretion to dismiss a
complaint to allow service to be perfected within a
specified time, regardless of the absence of good
cause, whenever a plaintiff fails to perfect service
within 120 days after filing a complaint. Id. The
second clause then removes a district court’s
discretion if a plaintiff establishes good cause for
his failure to comply with the 120-day time limit. Id.
Upon a showing of good cause, a district court shall
extend the time for service. Further, the Supreme
Court supports this reading of Rule 4(m). See
Henderson v. United States, 517 U.S. 654, 116 S.Ct.
1638, 134 L.Ed.2d 880 (1996). The Supreme Court cited
the Advisory Committee Notes of Federal Rules of Civil
Procedure 4(m), stating that Rule 4(m) permits a
district court to enlarge the time for service “even if
there is no good cause shown.” Id. at 662.
See also Bradford v. Bracken County, 767 F.Supp.2d 740, 753 (E.D.
Ky. 2011)( “the Court must first determine whether there is good
cause for Plaintiff’s failure to timely execute service.
If not,
the Court must determine in its discretion whether to dismiss the
action or allow Plaintiffs additional time”).
The Court’s docket indicates that the issue of service has
dominated this case to date.
Several of the issues have been
addressed in prior Court orders and will not be repeated in
detail here.
Using the Report and Recommendation dated April 29,
2014 as the starting point, as the defendants have done in their
motion, the Court’s docket reflects that service has not been
perfected as ordered.
However, the docket also reflects that Mr.
Brown has sought extensions of time to complete service.
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Mr.
Brown also has filed numerous motions relating to his transfer
from RCI to SOCF, the alleged confiscation of his legal
materials, and the Clerk’s failure to provide him with requested
copies of service documents.
He also filed objections to the
Report and Recommendation, including an objection relating to the
time frame ordered for service.
Mr. Brown’s objections to the
Report and Recommendation were overruled by order dated October
24, 2014.
See Doc. 87.
By separate order, the Court granted
defendants’ motion to strike the amended complaint and directed
Mr. Brown to file a third amended complaint which complies with
the previous orders of this Court (Doc. 92).
Mr. Brown was given
thirty days from the filing of the amended complaint to properly
serve defendants.
Based on the language of Rule 4(m) and the Court’s recent
orders, the Court will recommend that defendants’ motion to
dismiss be denied.
Between Mr. Brown’s requests for extensions
of time, his representations that he has been unable to obtain
enough copies of required service documents, and the Court’s
recent direction regarding the filing of a third amended
complaint, the Court finds that good cause exists for an
extension of the service deadline as to the moving defendants.
Further, the Court will recommend that Mr. Brown’s motion to stay
a decision on the motion to dismiss be denied as moot.
IV.
Motion for Order to Debit Plaintiffs Account
for Copies and Postage
Additionally, Mr. Brown has filed a motion for an order
directing defendants to debit his prison account for copies and
postage to enable him to access the courts (Doc. 82).
As with
his motion for an order to protect his legal papers, the Court
finds that this motion relates to Mr. Brown’s confinement in
SOCF.
Consequently, it will be recommended that the Court
decline to consider the issues raised in this motion.
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V.
Motion for Sanctions for Refusing to Waive Service
Mr. Brown has moved for sanctions under Rule 4 contending
that certain defendants have not attempted to avoid unnecessary
expense and have instead thwarted his attempts to move forward
with this case.
He requests that defendants be ordered to pay
all expenses for service upon defendants Mohr, Trout, Stout,
Dolan, Eddy, Voorhies, Reese and Smith.
In response, defendants contend that Mr. Brown’s motion
must be denied because the language of Rule 4(d)(2) requires
payment for expenses incurred in making service and Mr. Brown has
not incurred any expenses because he has not completed service on
the defendants he identifies.
Further, defendants assert that
the motion must be denied because Mr. Brown did not properly
request waiver of service in accordance with Rule 4(d)(1).
Mr.
Brown did not file a reply.
The Court agrees with the defendants’ interpretations of
Rule 4(d) and defendants’ position that Mr. Brown is seeking
sanctions inconsistent with the Rule.
Consequently, it will
recommend that the motion for sanctions be denied.
VI.
Motions to Supplement
Finally, Mr. Brown has filed two motions to supplement
numerous other filings he has made, all of which are in varying
procedural postures and some of which relate to his confinement
at SOCF.
He does not connect with any specificity the
supplemental information and the previous motion to which it
allegedly relates.
The Court has reviewed the proposed
supplemental information and concludes that it does not present
anything new for the Court’s consideration.
Consequently, the
Court will recommend that the motions to supplement be denied.
VII.
Recommendation
For the reasons set forth above, the Court recommends that
the motion for an order to protect plaintiff’s legal papers (Doc.
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64 as supplemented by Docs. 72 and 73) be denied as moot to the
extent it is directed to the Report and Recommendation issued on
April 29, 2014 or pertains to events at RCI.
Further, the Court
recommends that the motions for an entry of default (Doc. 78), to
dismiss (Doc. 79), for sanctions (Doc. 90), and to supplement
(Docs. 95 and 102) be denied and that the motion to stay a
decision on the motion to dismiss (Doc. 94) be denied as moot.
Finally, the Court recommends that the Court decline to consider
the issues raised in Mr. Brown’s motion for an order directing
defendants to debit his prison account for copies (Doc. 82) and
that this motion be removed from this Court’s pending motions
list.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
A judge
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
Upon proper
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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/s/ Terence P. Kemp
United States Magistrate Judge
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