Wilson v. Plummer et al
Filing
41
DECISION AND ENTRY ADOPTING IN PART AND NOT ADOPTING IN PART THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 36 ). Defendants' motion to dismiss (Doc. 26 ) is DENIED in its entirety; Plaintiff is hereby ORDERED to fi le a Second Amended Complaint with his newly alleged facts within 21 days of the date of this Order; and the Order staying discovery pending the Court's ruling on the motion to dismiss is LIFTED. Signed by Judge Timothy S. Black on 10/18/2013. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANTHONY L. WILSON,
Plaintiff,
vs.
PHIL PLUMMER, et al.,
Defendants.
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Case No. 3:12-cv-337
Judge Timothy S. Black
Magistrate Judge Michael J. Newman
DECISION AND ENTRY ADOPTING IN PART AND NOT ADOPTING IN PART
THE REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE (Doc. 36)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Michael J. Newman. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court, and, on September 13, 2013
submitted a Report and Recommendation. (Doc. 36). Plaintiff filed objections (Doc. 37),
but Defendants did not respond.
Plaintiff objects to the Magistrate Judge’s recommendation that his access-to-thecourts claim be dismissed. The Magistrate Judge premised his recommendation to
dismiss this claim on the fact that Plaintiff was represented by counsel. See Holt v. Pitts,
702 F.2d 639, 640-41 (6th Cir. 1983) (holding that an inmate’s constitutional right of
access to the courts was not violated when he was represented by appointed counsel). In
his objections, for the first time, Plaintiff maintains that although he had counsel of
record throughout his state court case, he effectively proceeded pro se for a portion of
that litigation. (Doc. 37 at 2). Specifically, Plaintiff’s court appointed counsel petitioned
the court to withdraw his representation. (Id.) The court overruled the motion to
withdraw, citing Plaintiff’s right to counsel, but explicitly provided that counsel was not
required to file written closing arguments. (Doc. 29-4 at PageID 263). Plaintiff was
permitted to submit the written closing argument on his own behalf. (Id.) Accordingly,
based on these new facts, the Court finds that Plaintiff has alleged sufficient facts to
survive the motion to dismiss. 1
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this case. Upon consideration of the foregoing, the Court does determine
that:
1. The Report and Recommendation (Doc. 36) is ADOPTED IN PART and
NOT ADOPTED IN PART. Specifically, Defendants’ motion to dismiss
(Doc. 26) is DENIED in its entirety;
2. Plaintiff is hereby ORDERED to file a Second Amended Complaint with his
newly alleged facts within 21 days of the date of this Order; 2 and
3. The Order staying discovery pending the Court’s ruling on the motion to
dismiss is LIFTED.
IT IS SO ORDERED.
Date: 10/18/13
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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Plaintiff makes two additional objections which the Court finds are without merit for the
reasons articulated in the Report and Recommendation. (Doc. 36).
1
If Plaintiff fails to timely file his Second Amended Complaint, the Court shall sua sponte
dismiss his access-to-the-courts claim.
2
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