Easterling v. State of Ohio

Filing 5

REPORT AND RECOMMENDATIONS - re 4 - The motion for temporary restraining order should therefore be denied. Objections to R&R due by 2/15/2013. Signed by Magistrate Judge Michael R Merz on 1/29/13. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WARREN EASTERLING,
Petitioner,

:

Case No. 3:13-cv-024
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
STATE OF OHIO,
Respondent.

REPORT AND RECOMMENDATIONS
This is an action in mandamus before the Court on Easterling’s Petition for Temporary
Restraining Order (Action in Mandamus)(Doc. No. 4 ).
No process has been issued in the case, much less served on Defendant State of Ohio.
Fed. R. Civ. P. 65(b) provides that a temporary restraining order may be issued without
notice to the adverse party only if
(a) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(b) the movant’s attorney certifies in writing any efforts made to
give notice and reasons why it should not be required.

Attached to the Petition is a Notice from Judge Mary Wiseman of the Montgomery
County Common Pleas Court that a final judgment has been entered in case No. 2012 CV 02436
in which Easterling in Plaintiff and Common Pleas Judge Dennis Langer is the Defendant. The
Court infers from Easterling’s papers that he wishes to file an appeal from that judgment, that he
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has been “trespassed” from the Montgomery County Courthouse, and that Judge Crawford’s
Order declaring him to be a vexatious litigator bars him from filing in any event.
These facts are not sufficient for the Court to enter a temporary restraining order without
notice.

Entirely apart from the question whether there is merit to Easterling’s Petition in

mandamus, he has until February 16, 2013, to appeal from Judge Wiseman’s Judgment. That is
adequate time to notify the Ohio Attorney General and give him an opportunity to be heard.
The motion for temporary restraining order should therefore be denied.
January 28, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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).

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