McCain v. Jenkins et al
REPORT AND RECOMMENDATION AND ORDER - It is recommended that 39 MOTION for FRCP 65 Injunction and Restraining Order be denied. Objections to R&R due by 2/13/2017. The MOTION to Stay Proceedings (Doc. 47 ) is granted. The MOTION for General Reli ef (Doc. 49 ) is granted in part and denied in part as outlined. Signed by Magistrate Judge Terence P. Kemp on 1/30/2017. (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
Michael D. McCain, Sr.,
Correctional Inst., et al.,
Case No. 15-cv-1262
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Michael D. McCain, Sr., filed this action while he
was incarcerated at the Chillicothe Correctional Institution
This matter is now before the Court on the following
motions filed by Mr. McCain: motion for an injunction and
restraining order (Doc. 39); motion for extension of time and/or
stay (Doc. 47); and motion for general relief (Doc. 49).
Mr. McCain’s pleadings include a number of claims asserted
against various officials or employees of CCI 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. The 14
defendants are named as CCI Warden Charlotte Jenkins; Inspector
Free; Lt. Saunders; Lt. Brown; Sgt. Farrar; Administrator Pummal;
Deputy Warden Cunningham; Sergeant DiSantos; Correction Officer
Troute; Investigating Nurse Unknown; First Shift Officer Unknown;
First Shift Officer Mick; Lt. Hester, and Mental Health Staff
Service has been perfected on all those
defendants except for Investigating Nurse Unknown, First Shift
Officer Unknown, First Shift Officer Mick, Lt. Hester or Mental
Health Staff Member Unknown.
In an Order dated July 26, 2016, the Court addressed various
pending motions and directed Mr. McCain to file within 28 days a
“comprehensive pleading addressing all 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.” (Doc. 46 at 2.).
The Court instructed Mr. McCain to
provide summonses, complaints and form USM-285s for any further
defendants against whom he wishes to pursue claims.
defendants already served at that time were instructed to respond
to the amended and supplemental complaint within 28 days of its
service on their counsel.
The Court noted that Mr. McCain’s
motion for injunction and restraining order (Doc. 39) remained
pending and directed the defendants to respond to that motion
within 21 days of the date of the Order (which they have not
Id. at 3.
On August 19, 2016, Mr. McCain moved for an
extension of time or to stay the proceedings until he is able to
perfect service on the remaining defendants, which the defendants
do not oppose. (Docs. 47-48).
The Court will grant that motion.
Most recently, on December 12, 2016, Mr. McCain filed a
motion for general relief, i.e. to “compel the clerk to send
copies and time stamp [sic] of the last motion requesting
confirmation of the USM 285 forms, and for the Court to make
clear if the plaintiff can file a more definite statement.” (Doc.
Mr. McCain asserts in that motion that he had filed the
appropriate USM 285 forms with summons with the clerk in April
2016, but apparently these forms were intended for 12 defendants
not named in the pleadings.
Mr. McCain states that he is having
difficulty understanding the Court’s July 26 Order, and would
like the Court to clarify whether he is to file a “more definite
statement” and for adequate time to prepare his complaint.
respect to the request for clarification, the Court grants that
part of the motion and confirms that Mr. McCain is to file a
comprehensive amended complaint clearly setting out his cause(s)
of action to the best of his ability, and to include all the
specific defendants he is suing.
He will also need to provide
sufficient documents to allow the Marshall to serve any
defendants who have not yet been served.
Mr. McCain is
instructed to file his amended complaint within 28 days of
receipt of this Order.
To the extent that the motion requests
the Court to order the Clerk to re-send Mr. McCain time stamped
copies of the summonses, that request is denied.
Mr. McCain also moves for injunctive relief “to prevent
[Mansfield Correctional Institution, where he is now housed] from
taking unwarranted possession of [his] legal property” and to
order CCI to send his remaining legal property which he was
forced to leave there when he was transferred to Mansfield. The
defendants have not responded to the motion as directed by the
Court’s July 26 Order, presumably because Mr. McCain moved to
stay the proceedings and they did not oppose the motion.
that the proceedings are stayed until Mr. McCain files his
amended complaint, the motion for injunctive relief appears to be
moot, and it is recommended that the Court deny that motion (Doc.
The motion for a stay of proceedings (Doc. 47) is granted.
The motion for general relief (Doc. 49) is granted in part and
denied in part as explained above.
Motion for Reconsideration of Order
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.
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 Judge
or District Judge.
S.D. Ohio L.R. 72.4.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) 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
of the report or specified proposed findings or
recommendations to which objection is made.
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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