Rogers v. Reed et al

Filing 30

REPORT AND RECOMMENDATION AND ORDER - The Magistrate Judge recommends that 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be denied in part and granted in part. Objections to R&R due within fourteen (14) days. Further, Plaintiff's Motions 17 MOTION for Discovery for the Production of Grand Jury Transcripts, 18 MOTION for Discovery for the Production of Video Surveillance Tapes, 20 MOTION for Discovery, 23 MOTION to Produce, and 29 MOTION to Appoint Counsel are de nied. Finally, Defentants' 22 MOTION to Strike and to Stay is granted in part and denied in part. Plaintiff's 24 MOTION for Discovery is stricken. Signed by Magistrate Judge Terence P. Kemp on 10/20/2015. (agm)(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
Alterik Rogers,

:

Plaintiff,

:

v.

:
:

Sgt. Manard Reed, et al.,
Defendants.

Case No. 2:14-cv-2750
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION AND ORDER
Plaintiff, Alterik Rogers, currently an inmate at the
Belmont Correctional Institution, filed this action under 42
U.S.C. §1983 against Sgt. Manard Reed, Officer Reese Thompson,
and the Jefferson County Sheriff’s Department arising from events
which allegedly occurred while he was an inmate at the Jefferson
County Jail.

He subsequently amended his complaint to add the

Jefferson County Prosecuting Attorney as a defendant.

All

defendants with the exception of Sgt. Reed have moved to dismiss
the claims against them.
been fully briefed.

The motion for partial dismissal has

For the following reasons, the Court will

recommend that the motion be granted in part and denied in part.
I.

Background

Mr. Rogers’ original complaint contains the following
allegations.

On January 30, 2014, while in lockdown in his cell,

Mr. Rogers made a comment to another inmate in jest.

Sgt. Reed

overheard the comment, apparently interpreted it at as a threat,
and questioned Mr. Rogers about it.

Subsequently, Sgt. Reed and

Officer Thompson came to Mr. Rogers’ cell, ordered him to pack
his belongings, and told him he was going to solitary
confinement.

When he protested, these defendants grabbed him and

Officer Thompson restrained Mr. Rogers from behind while Sgt.

Reed grabbed his neck and choked him.

These defendants then

proceeded to drag Mr. Rogers to solitary confinement.

While he

was being placed in solitary confinement, Officer Thompson
continued to restrain him while he was assaulted by Sgt. Reed.
Sgt. Reed struck Mr. Rogers in the back of his head with a fist,
struck him in the temple, hit him 7-8 times, knocked him
unconscious, and then awakened him by another punch to the head.
According to his complaint, Mr. Rogers sustained injuries
including dizziness, blurred vision, loss of balance, headaches,
memory loss, slurred speech, and swelling of the cranium, all
injuries consistent with head trauma.

Mr. Rogers was denied

medical treatment despite his “screams for help.”
The original complaint further alleges that Sheriff Abdalla,
in his official capacity, is responsible for the actions of Sgt.
Reed and Officer Thompson.

Additionally, according to the

original complaint, Sgt. Reed “manufactured a false statement”
and persuaded the Jefferson County Prosecutor, Jane Hanlin, to
convene a grand jury and indict Mr. Rogers as a result.
The amended complaint sets forth a more condensed recitation
of the events of January 30, 2014 and focuses in greater detail
on the alleged conduct of the prosecutor, Ms. Hanlin.

According

to the amended complaint, the criminal case initiated by Ms.
Hanlin against Mr. Rogers remains pending in Jefferson County
Common Pleas Court.

Mr. Rogers alleges that Sgt. Reed and Ms.

Hanlin conspired to maliciously prosecute him based on false
written statements created by Sgt. Reed, but presented as if
prepared by witnesses.
Mr. Rogers seeks $500,000.00 in damages, “serious discipline
to all Defendant’s by their respected supervisors,” and the
“[d]ismissal of the charges in Jefferson County case number
14CR012 as they are ‘fruit of the poisoness tree.’”
II.

The Motion to Dismiss
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Defendants Sheriff Fred Abdalla, Corrections Officer Reese
Thompson and Jefferson County Prosecuting Attorney Jane M.
Keenan-Hanlin have moved to dismiss all claims against them.
They argue that, Mr. Rogers has failed to state a claim against
Sheriff Abdalla or Officer Thompson.

Further, they assert that

Sheriff Abdalla and Officer Thompson are entitled to immunity
pursuant to Ohio Revised Code Chapter 2744.

Additionally, they

contend that Ms. Keenan-Hanlin is entitled to prosecutorial
immunity.
More specifically, Sheriff Abdalla asserts that, because Mr.
Rogers has named the Jefferson County Sheriff’s Office as a
defendant, and because, under Ohio law, a county sheriff’s office
is not a legal entity capable of being sued, this action must be
construed as a claim against him in his official capacity.

As

Sheriff Abdalla reads the complaint and the amended complaint,
Mr. Rogers expressly seeks to hold him liable under a theory of
respondeat superior.

According to Sheriff Abdalla, Mr. Rogers

cannot assert a claim against him under this theory.

Further,

Sheriff Abdalla argues that Mr. Rogers has failed to allege any
custom or policy of the Jefferson County Sheriff’s Office which
has led to a constitutional violation and, therefore, Sheriff
Abdalla cannot be held liable under Monell v. Dep’t of Social
Services, 436 U.S. 658 (1978).
Officer Thompson contends that Mr. Rogers’ limited
allegations directed to him do not suggest the use of excessive
force or the “abuse of authority.”

He asserts that his presence

during the incident which forms the basis of Mr. Rogers’
complaint is insufficient to hold him liable.
Finally, Ms. Keenan-Hanlin contends that she is entitled to
prosecutorial immunity because the claims against her are
directed specifically to her role as the Jefferson County
Prosecuting Attorney.

She asserts that, even if the testimony or
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evidence presented before a grand jury or at trial is later
determined to be false, she is still entitled to absolute
immunity.
In response, Mr. Rogers asserts that Sheriff Abdalla must be
held liable because “he has direct knowledge of the past and
present actions [of] his officers.”

He contends that Sheriff

Abdalla’s employees, including Mr. Reed, “ha[ve] been
successfully sued before” and claims that the fact that are still
employed demonstrates Sheriff Abdalla’s accountability for
failing to properly train or reprimand employees.

Further, Mr.

Rogers argues that Sheriff Abdalla and Officer Thompson are not
entitled to immunity under Ohio Rev. Code 2744.

With respect to

Ms. Keenan-Hanlin, Mr. Rogers contends that because she was
engaged in a conspiracy with Officer Reed, she was not “enmeshed
in the judicial process” as a prosecutor.

He also asserts an

overall disagreement with the concept of prosecutorial immunity.
In reply, defendants contend that the isolated incident
alleged by Mr. Rogers is insufficient to support a Monell claim.
Further, they note that, in his response, Mr. Rogers has asserted
different allegations against Officer Reed from those asserted in
the complaint.

Specifically, defendants note that the affidavit

attached to the original complaint states, in part, “C/O Reese
Thompson restrained me from behind while Sgt. Reed grabbed me by
the front of my neck, choking me.”

According to defendants, in

his response, Mr. Rogers quotes the affidavit as stating, “C/O
Thompson restrained me by the front of my neck, choking me.”
Defendants argue that Mr. Rogers should not be permitted to
assert new or different allegations in a response to a motion to
dismiss.

Additionally, defendants reiterate that Sheriff Abdalla

and Officer Thompson are entitled to immunity under Ohio Revised
Code Chapter 2744.

Finally, with respect to Ms. Keenan-Hanlin,

defendants reassert prosecutorial immunity and further note that
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Mr. Rogers is asking the Court to interfere with state court
proceedings.
Mr. Rogers, without seeking leave of Court, filed a response
to defendants’ reply.

In this filing, Mr. Rogers argues, at some

length, that neither Sheriff Abdalla nor Officer Thompson are
immune from suit under Ohio Rev. Code 2744.

With respect to the

differing statements regarding Officer Thompson, Mr. Rogers
explains that it was the mistake of an inmate clerk.

Regardless,

however, he notes that defendants do not deny that Officer
Thompson restrained him while Officer Reed beat him.

As Mr.

Rogers sees it, Officer Thompson is a co-conspirator.
III.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).

All well-pleaded

factual allegations must be taken as true and be construed most
favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009).

Rule 8(a) admonishes the Court to look only for a “short

and plain statement of the claim,” however, rather than requiring
the pleading of specific facts.

Erickson v. Pardus, 551 U.S. 89

(2007).
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).

The

merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
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to relief.

See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,

702 (6th Cir. 1978).

Rule 12 (b)(6) must be read in conjunction

with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."

5A Wright &

Miller, Federal Practice and Procedure § 1356 (1990).

The moving

party is entitled to relief only when the complaint fails to meet
this liberal standard.

Id.

On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988).

"In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory."

Id.

(emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. It is with these standards in mind that the motion to dismiss
will be decided.
IV.
A.

Analysis

Official Capacity Claims

The Court will begin its analysis of this issue with an
examination of Mr. Rogers’ claim against the Jefferson County
Sheriff’s Department, or, as defendants characterize it, against
Sheriff Abdalla in his official capacity.

There is no question

that, under Ohio law, a county sheriff’s office is not a legal
entity capable of being sued.
949, 954 (S.D. Ohio 2000).

Barrett v. Wallace, 107 F.Supp.2d

Consequently, to the extent that the
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face of the complaint, and amended complaint, indicate an
intention to name the Jefferson County Sheriff’s Department as a
defendant, the Court will recommend that any claims against that
entity be dismissed.
To the extent Mr. Rogers intends to name Sheriff Abdalla as
a defendant, as defendants note, from the language and face of
the complaint, Mr. Rogers appears to be suing Sheriff Abdalla
only in his official capacity.

When a plaintiff sues local

government officials and employees in their official capacity,
the suit is treated as one against the municipality.

See, e.g.,

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the
government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity” (citation omitted)).
In order to satisfy the requirements for suing a municipal
employee or entity, Mr. Rogers must “1) identify a municipal
policy or custom; 2) connect that policy or custom to the
municipality; and 3) show that execution of that policy or custom
caused the particular injury.”

Janis v. Marcum, 77 Fed. App’x

308, 310 (6th Cir. 2003)(citing Garner v. Memphis Police Dep’t.,
8 F.3d 358, 364 (6th Cir. 1993) and Gregory v. Shelby County,
Tenn., 220 F.3d 433, 442 (6th Cir. 2000)).

“There are at least

four avenues a plaintiff may take to prove the existence of a
municipality's illegal policy or custom. The plaintiff can look
to (1) the municipality's legislative enactments or official
agency policies; (2) actions taken by officials with final
decision-making authority; (3) a policy of inadequate training or
supervision; or (4) a custom of tolerance or acquiescence of
federal rights violations.”

Thomas v. City of Chattanooga, 398

F.3d 426, 429 (6th Cir. 2005).
Mr. Rogers has not identified any custom or policy relating
to any alleged constitutional violation.
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His response includes

various statements indicating the basis for his claim is that
“Sheriff Abdalla should be held accountable for failing to
reprimand and properly train his employees.

Especially since

this [Officer Reed} has been successfully sued before.”

He also

states that “[c]ommon sense says that there is policy and
procedures against” the actions he alleges in his complaint,
reinforcing an interpretation that no custom or policy is the
driving force behind the conduct Mr. Rogers alleges.
Consequently, the Court will recommend that any claims for money
damages against Sheriff Abdalla in his official capacity be
dismissed.

Further, to the extent that Mr. Rogers’ complaint can

be read as seeking injunctive relief against Sheriff Abdalla in
his official capacity, the Court will recommend that any such
claim be dismissed as well.

According to the complaint, Mr.

Rogers is no longer detained in the Jefferson County Jail.

See

Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)(finding claims
for injunctive relief moot after plaintiff transferred to another
institution).
Similarly, the Court will recommend dismissal of any claims
asserted against Ms. Keenan-Hanlin and Officer Thompson in their
official capacities.

With respect to Officer Thompson, the

analysis set forth above with respect to Sheriff Abdalla is
equally applicable to Officer Thompson.

With respect to Ms.

Keenan-Hanlin, however, the Court of Appeals “has held that
county prosecutors, in the course of prosecuting crimes, act as
agents of the State and are immune from suits seeking money
damages against them in their official capacities.”

Thomas v.

McGinty, 2013 WL 3057011, *2 (N.D. Ohio June 17, 2013), citing
Boone v. Kentucky, 72 Fed. Appx. 306, 307 (6th Cir. 2003).
Further, to the extent that Mr. Rogers’ complaint can be read as
requesting injunctive relief against Ms. Keenan-Hanlin, the Court
will also recommend dismissal.

While suits for injunctive relief
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may be maintained against a state official in his or her official
capacity, the relief requested must be prospective in nature and
not based on past acts.
Cir. 2003).

Gean v. Hattaway, 330 F.3d 758, 776 (6th

As noted above, Mr. Rogers’ complaint suggests that

he is seeking relief based on past conduct and does not appear to
be seeking prospective relief.

For this reason, the Court will

recommend dismissal of all claims against the moving defendants
in their official capacities.
B.

Ms. Keenan-Hanlin

Turning to Mr. Rogers’ claim against Ms. Keenan-Hanlin in
her individual capacity, the gist of this claim is that she
conspired to bring false charges against him. To the extent that
Mr. Rogers is attempting to state a claim against her under
§1983, as a general rule, prosecutors enjoy immunity from
liability for damages with respect to any acts associated with
the position of prosecutor so long as such acts are "intimately
associated with the judicial phase of the criminal process."
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). As a policy
matter, a prosecutor, in order to perform that job independent of
improper considerations, must be free from the threat of suits
from those who are accused but not convicted. Otherwise, no
limits could be placed on the ability of unhappy participants in
the criminal process to harass a prosecutor and, ultimately, to
cause the prosecutor to act simply in order to avoid the threat
of future litigation, as opposed to vindicating the interests of
the state in the independent exercise of prosecutorial judgment.
"A prosecutor is duty bound to exercise
his best judgment both in deciding which
suits to bring and in conducting them
in court. The public trust of the
prosecutor's office would suffer if he
were constrained in making every decision
by the consequences in terms of his
own potential liability in a suit for
damages."
Id. at 424-25.
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Imbler did not define precisely the contours of
prosecutorial immunity. However, it is clear from Imbler
that such immunity extends both to the prosecutor's decision
to bring charges and his subsequent conduct of the case.
Further, the immunity extends to the decision to file complaints,
obtain an arrest warrant for a defendant, and conduct
interrogation relating to the decision to prosecute. Id. at
556-57. The immunity also extends to "failing to disclose
exculpatory and other information concerning witnesses, procuring
false testimony, failing to correct perjured testimony, causing a
conflict of interest for defense counsel, not disclosing that
conflict,... putting a 'spy' in the defense camp, and 'covering
up' those allegedly unconstitutional actions." Jones v.
Shankland, 800 F.2d 77, 80 (6th Cir. 1986), cert. denied 481 U.S.
1048 (1987). However, prosecutorial immunity does not extend to
acts taken in the prosecutor's administrative or investigative
capacities. see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993);
Burns v. Reed, 500 U.S. 478 (1991).
Here, Mr. Rogers argues that Ms. Keenan-Hanlin used
fabricated conduct reports as evidence to obtain an indictment
against him. As the above discussion indicates, even if this is
so, this is activity Ms. Keenan-Hanlin would have undertaken in
her role as a prosecutor. Consequently, she is entitled to
prosecutorial immunity to the extent that Mr. Rogers is seeking
monetary damages.
The complaint also indicates, however, that Mr. Rogers is
seeking to have pending state court charges initiated by Ms.
Keenan-Hanlin dropped. A federal court must decline to interfere
with pending state proceedings involving important state
interests unless extraordinary circumstances. Younger v. Harris,
401 U.S. 37, 44-45 (1971). Abstention is mandated where, as
here, federal court intervention would “unduly interfere[] with
the legitimate activities of the State.” Younger, 401 U.S. at
44. For all of these reasons, the Court will recommend that the

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partial motion to dismiss be granted as to all claims against Ms.
Keenan-Hanlin.
C. Officer Thompson
Defendants contend that Mr. Rogers’s allegations fail to
state a claim against Officer Thompson in his individual
capacity.

Although Mr. Rogers does not cite to the violation of

any specific constitutional right, the allegations of his
complaint describe an assault by Sgt. Reed which resulted in
physical harm to Mr. Rogers and Officer Thompson’s assistance of
Sgt. Reed in that assault.

Specifically, in his original

complaint, Mr. Rogers states:
11. Sgt. Reed and Correctional Officer Reese
Thompson came to my cell and ordered me to pack up my
belongings and that I [w]as going to solitary
confinement. I said to them, “Why am I going to the
hold? What did I do? This is wrong .... At this
time, both correctional officers grabbed me. C/O Reese
Thompson restrained me from behind while Sgt. Reed
grabbed me by the front of my neck, choking me.
12. They proceeded to drag me to solitary
confinement which is E wing. When they dragged me into
the cell, C/O Thompson continued to restrain me, my
hands still behind my back, I was physically assaulted
by Sgt. Reed.
...
14. I was in no shape or position to warrant this
excessive, violent force committed by staff of the
Jefferson County Jail and Specifically Sgt. Reed. I
was not combative or resisting any request by the
officers. Further, I did not disobey any direct orders
that I was given. They acted out in an aggressive
manner for no apparent reason.
This description of Officer Thompson’s involvement is limited but
does suggest that, at best, Officer Thompson did not intervene to
stop the alleged assault he was witnessing and, at worst, made it
easier for Sgt. Reed to carry out the alleged assault.
The substantive constitutional right raised by Mr. Rogers
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arises under the Due Process Clause of the Fourteenth Amendment,
because he was a pretrial detainee at the time of the incident.
While Estelle v. Gamble, 429 U.S. 97 (1976) and the Eighth
Amendment Cruel and Unusual Punishment clause, by their terms,
apply only to persons who have been convicted of a crime and,
therefore, are subject to punishment, persons who are
incarcerated while awaiting trial cannot be treated less
favorably than persons who are in prison following conviction.
Consequently, although they are not protected by the Eighth
Amendment, pretrial detainees are protected by the Fourteenth
Amendment Due Process Clause.

See Bell v. Wolfish, 441 U.S. 520,

535-37 (1979); see also Leary v. Livingston Cnty., 528 F.3d 438,
443 (6th Cir. 2008) (explaining that pretrial detainees bring
excessive-force claims under the Fourteenth Amendment Due Process
clause, whereas, “convicted prisoners may bring excessive-force
claims under the Eighth Amendment . . . and ‘free citizen[s]’ may
bring such claims under the Fourth Amendment”).

“The substantive

component of Fourteenth Amendment due process protects citizens
against conduct by law enforcement officers that ‘shocks the
conscience.’”

Harris v. City of Circleville, 583 F.3d 356, 365

(6th Cir. 2009) (citations omitted).

The Court of Appeals has

held that the Due Process Clause protects a pretrial detainee
from “excessive force that amounts to punishment.”
(citations omitted).

Id.

Under the Due Process Clause, “an

excessive-force claimant must show something more than de minimis
force.”

Leary, 528 F.3d at 443 (citations omitted).

Further, the Court of Appeals has recognized that a
correctional officer who observes an unlawful beating may be
liable under §1983 notwithstanding the fact that he or she did
not actively participate in the assault.

Gregg v. Ohio Dept. of

Youth Services, 661 F.Supp.2d 842, 855 (S.D. Ohio 2009), citing
McHenry v. Chadwick, 896 F.2d 184, 187 (6th Cir. 1990).
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In

McHenry, only one of the prison guards was alleged to have played
an active role in the plaintiff’s beating, but the other
corrections officers who were present were also found liable
because they breached their duty to protect the plaintiff by
failing to intervene.

McHenry, 896 F.2d at 188.

As noted above, the allegations regarding Officer Thompson’s
conduct are not highly detailed.

However, they are sufficient,

at the pleading stage, to state a claim for relief that is
plausible on its face, based, at a minimum, on an alleged failure
to intervene.

Consequently, the Court will recommend that the

partial motion for dismissal be denied with respect to Mr.
Rogers’ claim against Officer Thompson in his individual
capacity.
D.

State Law Claims

In his amended complaint, Mr. Rogers makes cursory reference
to claims including defamation, malicious prosecution, and
malpractice.

His language suggests that his defamation claim is

directed to all defendants while his claims of malicious
prosecution and malpractice are directed to Ms. Keenan-Hanlin.
To the extent that any of these claims are based on state law,
the Court will recommend that they be dismissed as to Sheriff
Abdalla and Ms. Keenan-Hanlin.

Because Mr. Rogers has failed to

state a viable federal claim against these defendants, the Court
should decline to exercise supplemental jurisdiction over any
state law claims against them.

See 28 U.S.C. 1367(c)(3).

V. Remaining Motions
There are several other motions pending including various
discovery motions filed by Mr. Rogers and a corresponding motion
to stay discovery and to strike Mr. Rogers’ filings.

Also

pending is Mr. Rogers’ motion for appointment of counsel.
Turning first to the motion to appoint counsel, because this
action has not yet progressed to the point that the Court is able
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to evaluate the merits of Mr. Rogers’ remaining claims, the
motion for appointment of counsel is denied.

See Mars v.

Hanberry, 752 F.2d 254 (6th Cir. l985).
With respect to discovery, Mr. Rogers has filed five
separate documents.

Two of these documents request production of

all “video surveillance tapes” and various documents - one
appears intended as a discovery request directed to defendants
and one appears to be a motion to compel requesting an order from
the Court.

The remaining filings include three motions seeking

individually “an order to the plaintiff’s through the Jefferson
Cty Common Pleas Court Judge Joseph J. Bruzzese, Jr. to produce
documents for discovery as requested,” “the release of all
transcripts regarding Case No. 14CR102,” and “production of grand
jury transcripts.”
In response to these filings, defendants have moved to have
them stricken for two reasons.

First, defendants argue that

these filings are premature because no scheduling order is in
place and no Court order has been issued allowing discovery to
proceed.

Further, they contend that motions to compel are

improper because they were not served with any discovery requests
prior to Mr. Rogers’ filing his motion.

Additionally, they note

that many of the requested documents are not within their control
but are public record available to both parties.

Defendants also

seek a stay of discovery pending a ruling on the partial motion
to dismiss and seek to have all future discovery motions filed by
Mr. Rogers stricken.
To the extent that Mr. Rogers has filed a discovery request
directed to the defendants, absent circumstances not present
here, such discovery requests are not to be filed.
P. 5(d).

Fed. R. Civ.

Consequently, defendants’ motion to strike will be

granted to this extent.

As for the four other discovery-related

filings, the Court will construe them as motions to compel and
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will deny them.

First, with respect to motions to compel

directed to the defendants, Mr. Rogers cannot “successfully move
for an order compelling documents when he did not first seek this
information through Rule 34.”

Nayyar v. Mount Carmel Health

System, 2012 WL 203418 (S.D. Ohio January 24, 2012).

To the

extent any discovery motion is directed to production of
documents by a non-party, the vehicle for obtaining such
discovery is a subpoena duces tecum under Fed.R.Civ.P. 45.

There

is no indication from the record that Mr. Rogers has complied
with Rule 45 in seeking these documents.

His status as a pro se

litigant proceeding in forma pauperis does not relieve him of the
obligation to comply with the Rules governing discovery.

Hansen

v. Director, O.D.R.C., 2013 WL 1915109 (S.D. Ohio May 8, 2013).
Further, the Court is without authority to compel the production
of documents from a non-party who has not been properly served
with a subpoena.

Colton v. Scutt, 2012 WL 5383115, *3 (E.D.

Mich. Nov. 1, 2012).
be denied.

Consequently, these discovery motions will

Finally, in light of the ruling above on the motion

to dismiss, defendants’ request for a stay will be denied as
moot.
VI.

Recommendation and Order

For the reasons stated above, it is recommended that the
partial motion to dismiss (Doc. 14) be denied in part and granted
in part.

The motion should be granted in part as to all claims

against the Jefferson County Sheriff’s Office, Sheriff Fred
Abdalla, and Jefferson County Prosecuting Attorney Jane M.
Kennan-Hanlin and any federal claims against Corrections Officer
Reese Thompson in his official capacity.

The motion should be

denied in part as to the federal claims against Officer Thompson
in his individual capacity and any state law claims.

Further,

plaintiff’s motions (Docs. 17, 18, 20, 23 and 29) are denied.
Finally, defendants’ motion to strike and to stay (Doc. 22) is
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granted in part and denied in part as set forth above.
Plaintiff’s discovery request (Doc. 24) is stricken.
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).

/s/ Terence P. Kemp
United States Magistrate Judge

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