Hendricks v. Mohr et al
OPINION AND ORDER granting 1 MOTION to Reopen Case, construed as the filing of a new action (2:15-cv-3130-JLG-TPK). Plaintiff shall file a complaint under the new case number within thirty (30) days. (See 2:12-cv-729-MHW-TPK for original case). Signed by Magistrate Judge Terence P. Kemp on 3/15/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text on 3/15/2016 (agm).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:12-cv-729
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
John Kasich, et al.,
OPINION AND ORDER
Plaintiff Benjamin Hendricks, a former Ohio inmate currently
residing in Tennessee, has filed a motion to reopen this civil
rights action brought under 42 U.S.C. §1983.
Briefly, on May 21,
2014, Mr. Hendricks filed a motion to voluntarily dismiss this
On July 24, 2014, the Court issued a Report and
Recommendation recommending that Mr. Hendricks’ unopposed motion
The Report and Recommendation was adopted by order
dated November 25, 2014, and this case was dismissed without
prejudice on that date.
Mr. Hendricks filed his motion to reopen on October 5, 2015.
The motion states, in its entirety:
The Plaintiff, Mr. Hendricks, respectfully
requests this Court to reopen this case. The case was
voluntarily withdrawn under Rule 41 and officially
closed in November 2014. The Plaintiff now wishes to
reopen this matter. The Plaintiff wishes to use the
last amended complaint filed with this Court and
respectfully requests a copy of said amended complaint
be sent to him at the address below.
Defendants make two arguments in opposing Mr. Hendricks’
First, defendants contend that, prior to his request to
voluntarily dismiss this action, in an order issued May 16, 2014
(Doc. 41), the Court had directed Mr. Hendricks to file an
amended complaint consistent with the terms of that order.
Because Mr. Hendricks did not file an amended complaint as
directed, defendants assert that there is no proper complaint
before this Court.
Further, defendants assert that, shortly
after his move to Tennessee, Mr. Hendricks was arrested and
remains in custody.
As a result, defendants explain, the Court
has no personal jurisdiction over Mr. Hendricks.
argument is so completely without legal support - Mr. Hendricks
is, after all, a plaintiff invoking the jurisdiction of the Court
and not a defendant who must have sufficient minimum contacts
with Ohio in order to support jurisdiction - that the Court will
not address it further.
In reply, Mr. Hendricks notes that the defendants filed
their response two days late, and asserts that they have waived
any right to object to the reopening of this case.
Additionally, Mr. Hendricks explains that he knows that the most
recently filed complaint needs to be corrected to comply with the
He asks for leniency on this issue and states
that he requested a copy of the complaint to make the
He also seeks a 30-day extension to do so.
Finally, he wants the Court to “issue a warning to defense
counsel for knowingly presenting false information, or only part
to the correct information, to this Court.”
In closing, Mr.
Hendricks requests the following relief, stated here verbatim:
Copy of the most recent Complaint and Order
granting in part that Complaint
30 days after receipt of that Complaint and Order
to comply with the Order
Issue a warning to defense counsel about false
Alternatively, re-open case and issue a stay and
abeyance until 30 days after Plaintiff resolves
Tennessee issues and returns to Ohio or allowed to
go home in Tennessee.
Mr. Hendricks does not say which procedural ground he is
relying on in seeking to reopen his case.
frequently construe motions to reopen as motions for relief from
judgment under Fed.R.Civ.P. 60(b), Mr. Hendricks does not address
any of the factors relevant to such a motion.
Rather, his motion
suggests that he is now ready to pursue claims he had previously
sought to have voluntarily dismissed for health reasons.
understanding is consistent with Mr. Hendricks’ discussion of the
Ohio savings statute in his motion to voluntarily dismiss his
complaint without prejudice.
A Rule 60(b) motion is not the correct procedural mechanism
for refiling a case after a voluntary dismissal has been taken.
Rather, the proper way to proceed is simply to file a new
Given Mr. Hendricks’ pro se status, the Court will
construe Mr. Hendricks’ motion to reopen as his attempt to comply
with the savings statute and to pursue his claims by way of a new
Further, the Court will construe this new action
as having been filed as of the date of the filing of his motion.
See, e.g., Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001)
(finding pro se prisoner’s mistake in filing a motion to
reinstate his case as not fatal and construing filing liberally
to be treated as initiating a new action).
statute of limitations applicable to claims arising
U.S.C. §1983 is the two-year statute of limitations
Ohio Revised Code §2305.10. Browning v. Pendleton, 869
(6th Cir. 1989). Mr. Hendricks’ claims, predating the
filing of his original complaint in 2012, are clearly more than
two years old.
However, when applying a state’s statute of
limitations, this Court is required to use the state’s procedural
rules affecting that statute of limitations.
Department of Rehabilitation and Corrections, 46 Fed.Appx. 765
(6th Cir. 2002).
Consequently, the Court will consider whether
the Ohio savings statute, as cited by Mr. Hendricks previously,
works to preserve his claims here.
That statute, Ohio Rev. Code 2305.19 provides:
In any action that is commenced or attempted to be
commenced, if in due time a judgment or the plaintiff
is reversed or if the plaintiff fails otherwise than
upon the merits, the plaintiff, or if the plaintiff
dies and the cause of action survives, the plaintiff’s
representative may commence a new action within one
year after the date of the reversal of the judgment or
the plaintiff’s failure otherwise than upon the merits
or within the period of the original applicable statute
of limitations, whichever occurs later. ...
Voluntary dismissal of an action under Rule 41(a)(2) is
considered by courts to constitute a failure otherwise than on
See Cooper v. City of Westerville, Ohio, 2014 WL
617650, *5 (S.D. Ohio Feb. 18, 2014).
Further, the savings
statute applies where “‘an action is timely commenced and is then
dismissed without prejudice after the applicable statute of
limitations has run.’”
Harris v. U.S., 422 F.3d 322, 331 (6th
Cir. 2005), quoting Lewis v. Connor, 21 Ohio St.3d 1 (1985).
Additionally, it applies when “‘[t]he original suit and the new
action are substantially the same.’”
Underwriters, Inc. v. General Electric Co., 900 F.Supp.2d 753,
758 (S.D. Ohio 2012), quoting Children’s Hospital v. Ohio Dept.
of Public Welfare, 69 Ohio St.2d 523 (1982).
In Mr. Hendricks’ original case, the Court granted his
motion to dismiss on November 25, 2014.
This was after the
expiration of the statute of limitations.
Mr. Hendricks had one
year from that date to initiate a new action.
filed his current motion on October 5, 2015, within the one-year
The nature of Mr. Hendricks’ motion indicates his
intention to pursue the same claims from his original case.
Under these circumstances, the Court finds that the Ohio savings
statute is applicable.
Defendants do not argue otherwise, and
that conclusion is dispositive of the present motion.
Consequently, the motion to reopen, construed as set forth above,
will be granted to this extent.
Turning to Mr. Hendricks’ additional requests for relief, to
the extent he seeks the appointment of counsel, because this
action has not yet progressed to the point that the Court is able
to evaluate the merits of plaintiff's claims, such request is
See Mars v. Hanberry, 752 F.2d 254 (6th Cir. l985).
Further, the Court notes that Mr. Hendricks has requested copies
of certain documents including the most recent complaint and the
Court’s order on amendment.
The Clerk’s office has procedures
for obtaining copies of documents and Mr. Hendricks should
contact that office directly for information regarding copying
For the reasons stated above, Mr. Hendricks’ motion to
reopen (Doc. 48), construed as the filing of a new action, is
The Clerk shall open a new civil action.
filing date of that action is October 5, 2015.
A copy of the
motion to reopen and all subsequent filings in this case,
including this Opinion and Order, shall be docketed in the newlyfiled case.
Mr. Hendricks shall file a complaint under the new
case number within 30 days of the date of this order.
responsible for paying the filing fee for that action, which he
should do within thirty days, and for serving the complaint on
the defendants, unless he applies for and is granted in forma
Mr. Hendricks should contact the Clerk’s office
regarding his request for copies of any prior filings in this
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. 14-01,
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
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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