Brown v. Mohr et al

Filing 92

ORDER granting 52 Motion to Strike ; denying as moot 56 Motion for Extension of Time; denying as moot 61 Motion to Stay; denying as moot 62 Motion to Stay; denying as moot 65 Motion to lift requested stay ; denying as moot 65 Motion for Extension of Time; denying as moot 69 Motion to supplement amended complaint ; denying 75 Motion to Appoint Counsel ; granting 86 Motion for Extension of Time to File Response/Reply. Signed by Magistrate Judge Terence P Kemp on 11/6/2014. (agm1)

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.

:
ORDER

This matter is before the Court to consider several pending
motions.

These motions include defendants’ motions to strike the

second amended complaint (Doc. 52).

Also before the Court are

numerous motions filed by plaintiff Steven S. Brown including
motions for extension of time to serve additional defendants
(Doc. 56), to stay all proceedings (Doc. 62), to lift the
requested stay and for an extension of time (Doc. 65), to
supplement the amended complaint (Doc. 69), and to appoint
counsel (Doc. 75).

Defendants also have moved for an extension

of time to respond to the motion to debit account for copies and
postage.

Defendants’ motion for an extension of time (Doc. 86)

sets forth good cause and will be granted.

The remaining motions

will be disposed of as set forth below.
I.

Background

Mr. Brown, a state prisoner currently housed in the Southern
Ohio Correctional Facility, 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 SOCF remain pending in the Western
Division as Case No. 1:12-cv-583.
II.

The Motion to Strike the Amended Complaint and Plaintiff’s
Motion to Supplement the Amended Complaint
On April 11, 2014, with leave of Court, Mr. Brown filed a

second amended complaint in this case.

This amended complaint is

42 pages long, names 59 defendants, many of whom are employees at
the SOCF, and contains claims relating to the conditions of his
confinement at SOCF.

Defendants have moved to strike this

amended complaint arguing that it does not comply with the
previous orders severing the two actions and dismissing certain
claims.

Rather, according to the defendants, the amended

complaint contains parties and allegations no longer a part of
this case.

Defendants ask that the amended complaint be

stricken, that Mr. Brown be ordered to file an amended complaint
which complies with previous Court orders, and that the Court
warn Mr. Brown that his failure to comply may result in the
dismissal of his claims under Fed.R.Civ.P. 41(b).
In his response, Mr. Brown explains that, despite the
previous decision severing the cases, he chose to file the same
amended complaint in both cases and include claims arising in
both districts because he would like the cases to be consolidated
in either this Court or the Western Division.

He explains that,

prior to filing the amended complaint in both cases, he filed a
motion in the Western Division requesting that they “except
jurisdiction for the whole case because of the interrelated
claims, the possible conflict in rulings on policy issues,
excessive costs and time wasted, and many other reasons.”
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A

review of the docket in Case No. 1:12-cv-583 confirms that Mr.
Brown’s motion was filed as Document 54.
In reply, defendants contend, first, that Mr. Brown’s
response should be disregarded as untimely and the Court should
consider their motion to strike as unopposed.

Further, they

argue that Mr. Brown’s response is nothing more than an attempt
to re-litigate or supplement arguments he made in other motions.
Defendants argue that Mr. Brown does not address the central
issue of their motion to strike - that the amended complaint
includes parties and allegations that are no longer part of this
case.
First, the Court notes that Mr. Brown’s motion requesting
that this case be rejoined with the Western Division case has
been denied in Case No. 1:12-cv-583.

In denying Mr. Brown’s

motion the Court stated:
As detailed above, upon initial screening of this
matter, Plaintiff’s complaint was bifurcated into two
separate actions.
Plaintiff now asks the Court to
rejoin this case with Brown v. Mohr, et al., 2:13-cv-6
(S.D. Ohio). Plaintiff contends the matter should be
rejoined due to his indigence and incarceration and
problems serving the Complaint. Plaintiff’s motion is
meritless. Notably, Plaintiff has provided no legal
basis for this matter to be consolidated and/or
rejoined with the initial actions. The Court sees no
reason to revisit its January 2013 Order regarding this
issue. For these reasons, Plaintiff’s motion to rejoin
the initial claims (Doc. 54) is DENIED.
Mr. Brown has not filed a similar motion in this case,
having limited the discussion of this issue to his response.
Consequently, the issue of consolidation will not be addressed
here and the Court will proceed to address only the issues
relating to this case.
Turning to the motion to strike, as described above, Mr.
Brown has named twenty-four SOCF employees as defendants in his
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second amended complaint in addition to naming various employees
of RCI and ODRC.

He has reiterated claims against these

defendants as set forth in his original complaint.

By filing

such an amended complaint in this case, Mr. Brown has failed to
comply with the previous orders of both this Court and the
Western Division.

For example, in granting Mr. Brown leave to

file an amended complaint, this Court specifically directed that
his amended complaint conform to the representations in his
motion for leave.

Mr. Brown’s motion for leave raised issues

relating to conditions at Ross Correctional Institution only.
Mr. Brown’s amended complaint naming defendants and raising
issues relating to SOCF is inconsistent with the Court’s
instruction.

Further, the Court in Case No. 1:12-cv-583

specifically retained the claims relating to SOCF and transferred
only the remaining claims involving conditions at RCI or those
involving ODRC employees located in Columbus.

Consequently, the

Court will grant the defendants’ motion and will strike the
amended complaint for Mr. Brown’s failure to comply with this
Court’s orders.

Mr. Brown will be directed to file an amended

complaint in this case which complies with the terms of the
Court’s previous orders.

See Docs. 12 and 49 in Case No. 1:12-

cv-583 and Doc. 49 in Case No. 2:13-cv-06.

His failure to do so

may result in a recommendation that this case be dismissed for
Mr. Brown’s failure to comply with the Court’s orders.
Consistent with this holding, Mr. Brown’s motion for leave
to supplement the amended complaint will be denied as moot.
Similarly, because the time for the extension requested by Mr.
Brown has expired, his motion for an extension of time for
service (Doc. 56) will be denied as moot.

However, Mr. Brown

will be given 30 days after the filing of his third amended
complaint to properly serve the defendants.

Mr. Brown’s failure

to effect proper service within that time period will result in
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the dismissal of his complaint as to any defendants who have not
been served or were served improperly.
III.

Various Motions to Stay

Defendants’ motion to stay pending a ruling on objections to
the Report and Recommendation issued April 29, 2014 will be
denied as moot following the Court’s order of October 24, 2014
adopting and modifying the Report and Recommendation.
Mr. Brown filed a motion to stay all proceedings contending,
in part, that a stay was necessary pending a ruling by the
Western Division on his request that the cases be re-consolidated
in that Court.

Subsequently, Mr. Brown filed a motion to lift

the requested stay.

As discussed above, the Western Division has

now issued its order denying Mr. Brown’s request and a stay was
never entered in this case.

Consequently, both of these motions

will be denied as moot.
In his motion to lift the requested stay, Mr. Brown also
moved for an extension of time to respond to all defendants’
pending motions and to serve additional defendants.

He also

contends that he has been unable to re-serve certain defendants
in this case because the Clerk’s office has failed to provide him
with requested service forms.

To the extent that Mr. Brown seeks

an extension of time to respond to defendants’ motions, the
request will be denied as moot.

The defendants’ only pending

motions at the time Mr. Brown made this request were the motion
to strike and the motion to stay.

The motion to strike was

eventually fully briefed and, as set forth above, the motion to
stay will be denied as moot.
for an extension is moot.

Consequently, Mr. Brown’s request

With respect to Mr. Brown’s request

for service documents, the Court will direct that the Clerk
provide Mr. Brown with summonses and United State Marshals forms
for service of the third amended complaint.
IV.

Motion to Appoint Counsel
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Mr. Brown asked that counsel be appointed for him by a
motion filed September 23, 2014.

Since this action has not yet

progressed to the point that the Court is able to evaluate
the merits of plaintiff's claim, the motion for appointment
of counsel is denied.

Mars v. Hanberry, 752 F.2d 254 (6th

Cir. l985).
V.

Conclusion

For the reasons stated above, defendants’ motion for an
extension to time (Doc. 86) is granted.

The new date to file a

response in November 10, 2014.
The motion to strike (Doc. 52) is granted.

Plaintiff’s

second amended complaint is stricken from this Court’s docket.
Plaintiff shall file a third amended complaint which complies
with the Court’s previous orders as set forth above within
fourteen days of the date of this order.

Plaintiff’s failure to

comply may result in a recommendation that this case be dismissed
for plaintiff’s failure to comply with the Court’s orders.

The

Clerk is directed to provide plaintiff with summonses and United
States Marshals forms for service of the third amended complaint.
Plaintiff shall have thirty days from the filing of the third
amended complaint to serve the defendants.

Plaintiff’s failure

to effect proper service within that time period will result in
the dismissal of his complaint as to any defendants not served or
served improperly.
The motion for an extension of time (Doc. 56), the motions
to stay (Docs. 61 and 62), the motion to lift the stay and
motion for an extension of time (Doc. 65), and the motion to
supplement the amended complaint (Doc. 69) are denied as moot.
The motion to appoint counsel (Doc. 75) is denied.
MOTIONS FOR RECONSIDERATION
Any party may, within fourteen days after this Order is
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filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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