Burse et al v. Jenkins et al

Filing 65

REPORT AND RECOMMENDATION AND ORDER - It is RECOMMENDED that 57 MOTION Requesting Leave To Supplement The Complaint, Pursuant To FRCP 15(E), And To Demand Judgment For Defendants Default Pursuant To FRCP 54(c) And 55, In Reference To Defendants A ttempt To Commit Fraud Upon the Court be DENIED AS MOOT. Objections to R&R due by 4/14/2017. The following motions are DENIED AS MOOT: 58 MOTION for Leave to File (Supplement) Discovery and Response in Opposition to Plaintiff's Doc. 57, 62 MOTION of Judicial Inquiry for Possible Outstanding Motions, and 63 MOTION of Judicial Inquiry for Possible Outstanding Motions re 57 & 58. Plaintiff's MOTION to Appoint Counsel (Doc. 60 ) is DENIED. Signed by Magistrate Judge Kimberly A. Jolson on 3/31/2017. (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
EASTERN DIVISION
PERRIN BURSE,
Plaintiff,
Civil Action 2:15-cv-2992
Judge Michael H. Watson
Magistrate Judge Jolson

v.

CHARLOTTE JENKINS, et al.,
Defendants.

REPORT AND RECOMMENDATION
AND ORDER
This matter is before the Court on numerous Motions. Specifically, currently before this
Court for consideration are:

Plaintiff’s “Motion Requesting Leave To Supplement The

Complaint, Pursuant To FRCP 15(E), And To Demand Judgment For Defendants’ Default
Pursuant To FRCP 54(c) And 55, In Reference To Defendants’ Attempt To Commit Fraud Upon
the Court” (Doc. 57); “Defendants’ Motion For Leave To Supplement Discovery And Response
In Opposition To Plaintiff’s Motions To Supplement The Complaint And Default Judgment”
(Doc. 58); Plaintiff’s “Motion For Appointment Of Counsel, Pursuant To 28 USCS 1915, Due
To Special Circumstances” (Doc. 60; see Response in Opposition (Doc. 61)); and Plaintiff’s
Motions “Of Judicial Inquiry For Possible Outstanding Motions” (Docs. 62, 63). The Court
examines the pending Motions in turn.

I.

Plaintiff’s “Motion Requesting Leave To Supplement The Complaint, Pursuant To
FRCP 15(E), And To Demand Judgment For Defendants’ Default Pursuant To
FRCP 54(c) And 55, In Reference To Defendants’ Attempt To Commit Fraud Upon
the Court” (Doc. 57)
Although not entirely clear, Plaintiff filed the Motion seeking to add a claim of “Fraud

Upon the Court” based on Defendants’ alleged misrepresentations concerning when Plaintiff
received certain mail and for their deliberate attempt to delay the litigation of this case. (Doc. 57
at 3–4 (alleging alteration of the prison mail log)). Plaintiff’s arguments relate to Defendants’
Response To The Report And Recommendation (Doc. 52) And Defendants’ Response To
Plaintiff’s Objections (Doc. 55). On March 29, 2016, this Court issued an Opinion and Order
that, inter alia, adopted and affirmed the Report and Recommendation.

(Doc. 64).

Consequently, it is RECOMMENDED that the Motion be DENIED as MOOT. (Doc. 57).
II.

Defendants’ Motion For Leave To Supplement Discovery And Response In
Opposition To Plaintiff’s Motions To Supplement The Complaint And Default
Judgment (Doc. 58)
In the Motion, Defendants explain that this case has been handled by several attorneys,

which resulted in the need to supplement discovery. (Doc. 58). It appears Defendants have
already done so. (See id.). Further, this Court’s March 29, 2017, Opinion and Order allowed the
parties until Monday, May 1, 2017, to file dispositive motions and did not contemplate the need
for further discovery in this case. For these reasons, the Motion is DENIED as MOOT. (Doc.
58).

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III.

Plaintiff’s “Motion For Appointment Of Counsel, Pursuant To 28 USCS 1915, Due
To Special Circumstances” (Doc. 60; see Response in Opposition (Doc. 61))
Plaintiff seeks appointment of counsel due to special circumstances. (Doc. 60). 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 is DENIED. (Id.).
IV.

Plaintiff’s Motions “Of Judicial Inquiry For Possible Outstanding Motions” (Docs.
62, 63)
In the Motions Of Judicial Inquiry, Plaintiff inquires as to whether there has been a ruling

on his “Motion Requesting Leave To Supplement The Complaint, Pursuant To FRCP 15(E), And
To Demand Judgment For Defendants’ Default Pursuant To FRCP 54(c) And 55, In Reference
To Defendants’ Attempt To Commit Fraud Upon the Court” (Doc. 57) and Defendants’ Motion
For Leave To Supplement Discovery And Response In Opposition To Plaintiff’s Motions To
Supplement The Complaint And Default Judgment (Doc. 58). Because the instant Report and
Recommendation and Order addresses those Motions, the Motions Of Judicial Inquiry are
DENIED as MOOT. (Docs. 62, 63).
V.

CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff’s “Motion

Requesting Leave To Supplement The Complaint, Pursuant To FRCP 15(E), And To Demand
Judgment For Defendants’ Default Pursuant To FRCP 54(c) And 55, In Reference To
Defendants’ Attempt To Commit Fraud Upon the Court” be DENIED as MOOT. (Doc. 57).
Further, Defendants’ Motion For Leave To Supplement Discovery And Response In Opposition
To Plaintiff’s Motions To Supplement The Complaint And Default Judgment is DENIED as
MOOT (Doc. 58), Plaintiff’s “Motion For Appointment Of Counsel, Pursuant To 28 USCS

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1915, Due To Special Circumstances” is DENIED (Doc. 60), and Plaintiff’s Motions “Of
Judicial Inquiry For Possible Outstanding Motions” (Docs. 62, 63) are DENIED as MOOT.
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 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).
Procedure on Objections to 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. Responses to
objections are due fourteen days after objections are filed and replies by the objecting party are
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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. 72.3.
IT IS SO ORDERED.

Date: March 31, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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