Smith v. Montgomery County Sheriff's Office et al

Filing 145

REPORT AND RECOMMENDATIONS re 144 MOTION for Relief from Judgment re 143 Judgment filed by Billy M. Smith - Smith has not shown excusable neglect nor that he presented evidence in opposition to Defendants motions for summary judgment which created material issues for trial. He certainly has not shown Defendants would not be prejudiced by granting his Motion for Relief from Judgment. That Motion should be denied. Objections to R&R due by 2/19/2013. Signed by Magistrate Judge Michael R Merz on 01/30/13. (pb1)(Smith)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY M. SMITH,

:

Plaintiff,

Case No. 3:10-cv-448
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MONTGOMERY COUNTY
SHERIFF=S OFFICE, et al.,
Defendants.

REPORT AND RECOMMENDATIONS
This case is before the Court on Plaintiff’s Motion for Relief from Judgment (Doc. No.
144), filed and served January 28, 2013. Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(1)
from the final judgment of this Court entered December 10, 2012, which dismissed this case with
prejudice. Because this is a post-judgment motion, it is deemed referred to the Magistrate Judge
under 28 U.S.C. § 636(b)(3) for report and recommendations.
The docket reflects that the Magistrate Judge’s Report and Recommendations on the
cross-motions for summary judgment was filed October 9, 2012 (Doc. No. 138). As required by
Sixth Circuit precedent, Plaintiff was advised that he could file objections by October 26, 2012.
He sought and received an extension of time to December 1, 2012, to file objections, but did not
file any by that date or indeed within the next ten days. All told, Plaintiff had sixty-two days in
which to file objections, but did not do so and Judge Rose adopted the Report.
Smith now seeks relief under Fed. R. Civ. P. 60(b)(1) which provides “[o]n motion and
upon such terms as are just, the court may relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following reasons (1) mistake, inadvertence,
1

surprise, or excusable neglect” . . . “In order to be eligible for relief under 60(b)(1) the movant
must demonstrate the following: (1) The existence of mistake, inadvertence, surprise, or
excusable neglect. (2) That he has a meritorious claim or defense.” Marshall v. Monroe & Sons,
Inc., 615 F.2d 1156, 1160 (6th Cir. 1980), citing Ben Sager Chemicals International, Inc. v. E.
Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1366
(10th Cir. 1970); Central Operating Company v. Utility Workers of America, 491 F.2d 245 (4th
Cir. 1973). Determinations made pursuant to Fed. R. Civ. P.

60(b) are within the sound

discretion of the court and will not be disturbed on appeal unless the court has abused its
discretion. H. K. Porter Co., Inc. v. Goodyear Tire and Rubber Co., 536 F.2d 1115, 1119 (6th
Cir. 1976); Smith v. Kincaid, 249 F.2d 243, 245 (6th Cir. 1957)1.
Smith claims he relied in good faith on another person, one Stephen Clemmons, with
whom he had begun to work while Clemmons was incarcerated with Smith. Smith alleges
Clemmons has a business, American Correctional Service, LLC., in Columbus, Ohio,
Clemmons was supposed to provide Smith with assistance in completing objections to the Report
and Recommendations.
Litigants in federal court are permitted to conduct their cases pro se or to conduct them
through licensed attorneys. The Ohio Supreme Court controls both the licensing of attorneys in
the first instance and discipline of attorneys when they engage in fraudulent activity, such as
taking money from clients and then not performing the promised services. But there is no such
protection with respect to unlicensed persons who purport to provide legal services. American
Correctional Service LLC is not authorized to make any filings in this Court or indeed to take
any legal action on behalf of anyone. While a pro se litigant is allowed to obtain assistance from

1

Smith recites that default judgments are disfavored, but no default judgment was entered here. This case has been
vigorously litigated for more than two years.

2

anyone he pleases, he remains responsible for meeting court deadlines and following court
procedure. He cannot shift the blame to an unlicensed person who appears to be engaged in the
unauthorized practice of law. Even if Mr. Smith were represented in this matter by an attorney,
he would be responsible for the attorney’s mistakes. Pioneer Investment v. Brunswick, 507 U.S.
380, 396 (1993).
Smith has given the Court only the bare bones of his relationship with Clemmons. We are
not told when Clemmons began assisting Smith or when Clemmons was released from prison.
Smith’s affidavit says he sent the Report and Recommendations to Clemmons on October 23, 20122,
already two weeks after it was filed and without having requested or received an extension of time to
file objections. When he did ask for more time, he did not tell the Court that he was using outside
help (Motion, Doc. No. 141). When he was unable to reach Clemmons, he did not advise the Court
of that fact and ask for more time. The Magistrate Judge is unable to find that Smith’s neglect is
excusable.
Smith also asserts that no party will suffer prejudice as a result of granting relief. That claim
misses the whole point of prejudice. Defendants have litigated this case vigorously, completed
discovery, filed for summary judgment, and defended themselves against Smith’s motion for partial
summary judgment. They were successful. To grant the Motion would be to put them back where
they were before the discovery cut-off and summary judgment filing deadline, at least if the Court
were to recognize Smith’s claim to submit more evidence. The Court’s Scheduling Order would
have had this case tried, if summary judgment had not been granted, during the week of January 14,
2013. Along with losing the finality of the summary judgment granted in their favor, Defendants
would also lose the firm trial date they had been given by Judge Rose.
Smith asserts he has “meritorious arguments to rebut the Report and Recommendations.”
2

Interestingly, Smith claims at PageID 2769 that he did not receive the Report until October 25, 2012, two days
after he allegedly sent it to Clemmons.

3

(Motion, Doc. No. 144, PageID 2780). He did not, however, tender a set of objections with his
Motion for Relief, but has outlined his argument in four areas. Id. at PageID 2782-2785.

1.

Fourteenth Amendment Does Not Apply Only to Race

Smith asserts “[t]he conclusion of the magistrate that the 14th Amendment applies only to
race is not correct.”

However, he gives no reference to any place in the Report and

Recommendations where it is asserted that the Fourteenth Amendment applies only to race. The
only place the word “race” is mentioned in the Report is in the following quotation from the
Supreme Court:

“The central purpose of the Equal Protection Clause of the Fourteenth

Amendment is the prevention of official conduct discriminating on the basis of race.” (Report,
Doc. No. 138, at PageID 2752, quoting Washington v. Davis, 426 U.S. 229, 239 (1976)).
Obviously the Fourteenth Amendment has a much wider application than the prohibition of race
discrimination. What the Report did say with respect to the Fourteenth Amendment Equal
Protection Clause was:
Mr. Smith has not alleged nor come forward with any evidence
that he is a member of a suspect class or that Defendants
intentionally treated him differently from other[s] who are or were
similarly situated without any rational basis for the difference. To
the extent that Mr. Smith has made claims against Defendants
pursuant to the Equal Protection Clause of the Fourteenth
Amendment, there are no genuine issues of material fact and
Defendants are entitled to judgment as a matter of law on those
claims.
(Report, Doc. No. 138, PageID 2752.) Smith has certainly not come forward with any evidence
of an equal protection violation in his Motion for Relief.

2.

Excessive Force Findings
4

The Report found that police were at Smith’s house to execute a search warrant and that
he resisted arrest, requiring the use of force to effectuate the arrest. The police had reason to
believe he was armed and firearms were found in the house, leading to Smith’s conviction for
being a felon in possession of a firearm, Smith having previously been convicted of a felony.
Smith says his entire claim is that too much force was used and “[f]act issues and
evidence that would be presented at trial should properly preclude summary judgment on the
excessive force issue.” (Motion, Doc. No. 144, PageID 2783.) Smith does not point to any place
in the record where he has submitted that evidence, except photographs of himself afterwards
which he says depict the injuries he suffered. A plaintiff faced with a properly documented
summary judgment motion cannot say “just wait until trial,” but must come forward with
admissible evidence in opposition to the motion for summary judgment. On this claim Smith
does not even now point to competent evidence of excessive force.

3.

Deliberate Indifference to Serious Medical Needs.

With respect to his claim that the arresting officers were deliberately indifferent to his
serious medical needs, Smith again argues that there is evidence he would bring forward at trial.
But such evidence was needed at the time of summary judgment. Smith himself admitted he was
dazed and could not remember most of what happened after he was subdued. He did not dispute
evidence presented by Defendants that they called an ambulance to take him to the hospital.
Smith also presented no objective medical evidence of the seriousness of his condition, either in
opposition to the motions for summary judgment or with his Motion to Vacate.

5

4.

Fourth Amendment Claim

On this point Smith argues: “Smith can and will offer evidence at trial that the warrant
and the return of warrant were procured at the SAME TIME by the police – and this factbound
issue now precludes summary judgment on the 4th Amendment issue.” (Motion, Doc. No. 144,
PageID 2784.) Smith certainly did not offer any such evidence in opposition to the Motions for
Summary Judgment, nor does he offer it now. Even if he had such evidence, any claim under the
Fourth Amendment would be precluded by his guilty pleas in the underlying criminal cases
which remain unmodified. Heck v. Humphrey, 512 U.S. 477, 484 (1994); Jacob v. Township of
West Bloomfield, 531 F.3d 385, 388 (6th Cir. 2008).

Conclusion

Smith has not shown excusable neglect nor that he presented evidence in opposition to
Defendants’ motions for summary judgment which created material issues for trial. He certainly
has not shown Defendants would not be prejudiced by granting his Motion for Relief from
Judgment. That Motion should be denied.
January 30, 2013.
s/ Michael R. Merz
United States Magistrate Judge

6

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

7