McCain v. Jenkins et al
Filing
46
ORDER finding as moot 11 Motion for Preliminary Injunction; finding as moot 33 Motion to Address Access to Copies and Full Access to the Courts; granting 28 Motion for Order to provide a definite statement; granting 31 Motion or Leave to Supplement the Current Issues and Defendants When the New Definite Statement is Filed; finding as moot 34 Motion Pursuant to FRCP 7(b)(1)(2)(3); finding as moot 36 Motion for Order of the Court Pursuant to FRCP 7(b); denying 45 Motion to St ay; granting 30 Motion to Address the Defendants that have not been Served at this Time; granting 43 Motion in Response to Present Evidence Information and Chronological Order of Retaliation; granting 42 Motion Requesting Permission to Respo nd to 40 Response in Opposition to Motion; denying 29 Motion for Scheduling Order. Signed by Magistrate Judge Terence P. Kemp on 7/26/2016. (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
Michael D. McCain, Sr.,
:
Plaintiff,
:
:
v.
Warden, Chillicothe
Correctional Inst., et al.,
Case No. 15-cv-1262
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:
Defendants.
:
ORDER
Plaintiff Michael D. McCain, Sr., filed this action while he
was incarcerated at the Chillicothe Correctional Institution
located in Chillicothe, Ohio.
The pleadings, while somewhat
vague, include a number of claims asserted against various
officials or employees of that institution and relate to matters
such as access to copies of legal materials for indigent inmates,
safety concerns due to the presence of pigeon droppings in the
interior spaces of the institution, and threats made to Mr.
McCain due to his filing of grievances and lawsuits.
Early in the case, prior to process being served, Mr. McCain
moved for a preliminary injunction, raising various issues about
his treatment at CCI.
He indicated he had gone on a hunger
strike to protest his illegal incarceration, had been denied use
of the restroom by a corrections officer, and was being placed in
punitive segregation.
Among other things, he asked for a
transfer to a different institution.
He has since been
transferred to the Mansfield Correctional Institution.
While his
filings indicate his displeasure with that transfer, it has
mooted his original request for preliminary injunctive relief
(Doc. 11) and the Clerk shall remove that motion from the Court’s
pending motions list.
The same is true of a later-filed motion
to address access to copies (Doc. 33) and that motion shall also
be removed.
Defendants, rather than answering, moved for a more definite
statement (Doc. 28).
Mr. McCain’s only response (Doc. 31) was a
motion for leave to supplement his complaint to add claims when
he provided his more definite statement.
The Court considers the
Defendant’s motion to be unopposed and that motion is granted, as
is Mr. McCain’s motion.
The Court will address these matters
more fully below.
Mr. McCain has also filed two motions pursuant to
Fed.R.Civ.P. 7(b)(Docs. 34 and 36).
Again, both of these motions
address matters which occurred at CCI.
Both are now moot and
shall be removed from the Court’s pending motions list.
Most recently, Defendants moved for a 12-week stay of this
case due to personnel issues within the Attorney General’s
Office.
While the Court understands that, at times,
administrative issues within such an office may make it more
difficult for specific attorneys to litigate cases, the Attorney
General’s staffing decisions cannot dictate the progress of court
cases.
The Court therefore denies that motion (Doc. 45).
However, the procedures set forth below should provide Defendants
with ample time to perform their duties in this case.
Given the multiple pleadings already filed, plus Mr.
McCain’s request to supplement his complaint, the Court directs
Mr. McCain to file a comprehensive pleading addressing all of the
issues in his original pleadings (Docs. 1,5,6, and 8) he still
wishes to pursue and adding the matters he has asked to include
in a supplemental complaint.
28 days.
He shall file that document within
He need only provide one copy to counsel for the
defendants who have already been served, who appear to be
Administrator Pummal, Correctional Officer Inspector Free,
Correctional Officer Lt. Brown, Correctional Officer Lt.
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Saunders, Correctional Officer Sgt. Farrar, Cunningham, DiSantos,
and Charolette Jenkins.
He must provide summonses, complaints,
and form USM-285s for any other defendants against whom he wishes
to pursue claims, including those named in Doc. 30.
To the
extent that Doc. 30 asks for permission to serve any unserved
Defendants, that motion is granted.
Mr. McCain may include in
his supplemental complaint the claims set forth in his motion to
present evidence (Doc. 43); to that extent, that motion is
granted.
His motion requesting permission to respond to Doc. 40
(Doc. 42) is also granted, although it appears to the Court that
Doc. 43 is that response.
Those Defendants already served shall
respond to the amended and supplemental complaint within 28 days
of its service on their counsel.
New Defendants shall move or
plead within 45 days of the date of service.
Mr. McCain’s motion
for a preliminary injunction (Doc. 39) remains pending.
Defendants shall respond to that motion within 21 days.
The
motion for a scheduling order (Doc. 29) is denied as premature in
light of the fact that a new pleading will be filed and served.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
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. 91-3, pt.
I., F., 5.
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, notwithstanding the
filing of any objections, unless stayed by the Magistrate
-3-
Judge or District Judge.
S.D. Ohio L.R. 72.4.
/s/Terence P. Kemp
United States Magistrate Judge
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