Gillispie v. Miami Township et al

Filing 46

ORDER - It is ORDERED, pursuant to S. D. Ohio Civ. R. 7.1.1(d), that any party which wishes to raise an issue of disqualification of the undersigned file a motion to that effect not later than May 1, 2014. Signed by Magistrate Judge Michael R Merz on 4/22/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,
Plaintiff,

-

vs

:

Case No. 3:13-cv-416
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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THE CITY OF MIAMI TOWNSHIP, et al.,

Defendants.

:

ORDER

This case is before the Court on receipt of an April 22, 2014, letter from counsel for
Defendants Tim Wilson, Marvin Scothorn, Miami Township, Stephen Gray, Thomas Angel,
John Dipietro, and Mathew Scott Moore requesting that the undersigned “consider a voluntary
recusal under 28 U.S.C. § 455.
The correspondence is shown as copied by email to all other counsel in the case, so it is
in no way inappropriate ex parte correspondence. Nevertheless, S. D. Ohio Civ. R. 7.2(c)
reflects the strong preference of the Court that matters other than advice of settlement be
presented formally by motion. Particularly in a matter such as this which has garnered public
attention, at least to the habeas corpus case, that concern is heightened because of the need for
the Court to be transparent to the public.

1

Accordingly, it is hereby ORDERED, pursuant to S. D. Ohio Civ. R. 7.1.1(d), that any
party which wishes to raise an issue of disqualification of the undersigned file a motion to that
effect not later than May 1, 2014.

April 22, 2014.
s/ Michael R. Merz
United States Magistrate Judge

2

Patrick Kasson
Direct Dial [phone]
[e-mail]

April 22, 2014

VIA EMAIL [e-mail]
Magistrate Judge Michael R. Merz
United States District Court
Southern District of Ohio
Federal Building, Room 501
200 West Second Street
Dayton, Ohio 45402
Phone: [phone]
RE:

Roger Dean Gillispie v. Miami Township, et al.
Case No.: 3:13-cv-416 (U.S. District Court, S.D. Ohio)

Dear Magistrate Judge Merz:
The undersigned counsel for Defendants Tim Wilson, Marvin Scothorn, Miami
Township, Stephen Gray, Thomas Angel, John Dipietro, and Mathew Scott Moore are all joining
in this correspondence in hopes of informally addressing a preliminary issue in this recently filed
civil case.
As you are aware, this civil case has its genesis in your December 15, 2011 Decision and
Order Granting a Conditional Writ of Habeas Corpus (Gillispie v. Timmerman-Cooper, Case No.
3:09-cv-471, ECF #63) and the later Orders flowing from that decision. It is our understanding
that you continue to exercise jurisdiction over the Habeas proceedings.
As you might imagine, our clients respectfully disagree with the decisions you have
rendered in the Habeas proceedings. Those conclusions will be hotly contested in the civil
action.
All counsel in this case have the deepest respect for you as a jurist. We sincerely do not
mean, through this letter, to offend you. We would be remiss, however, if we did not raise the
issue of a recusal under 28 U.S.C. § 455.
Our clients are concerned that your involvement in the Habeas proceedings and the
decisions you have made may affect your impartiality in the civil action. Rather than file

something formal, we thought it would be best to approach this with you informally, first,
through this correspondence. Our clients request that you consider a voluntary recusal under 28
U.S.C. § 455.
If you would like, I would be glad to set up a phone conference with all counsel to further
discuss this.
Thank you for your consideration of this matter.
Very truly yours,

s/ Patrick Kasson
Patrick Kasson (0055570)
Tyler Tarney (0089082)
REMINGER CO., LPA
65 E. State Street, 4th Floor
Columbus, OH 43215
[phone]
Email: [e-mail]
[e-mail]
Counsel for Defendants Tim Wilson and Marvin
Scothorn
s/ Lawrence E. Barbiere
Lawrence E. Barbiere (0027106)
SCHROEDER, MUNDRELL, BARBIERE & POWERS
5300 Socialville-Foster Road, #200
Mason, OH 45040
[phone]
Email: [e-mail]
Counsel for Defendant Stephen Gray, Thomas
Angel and John Dipietro
s/ Edward J. Dowd
Edward J. Dowd (0018681)
Dawn M. Frick (0069068)
Joshua R. Schierloh (0078325)
SURDYK, DOWD & TURNER CO., LPA
1 Prestige Place, #700
Miamisburg, OH 45343
[phone]
Email: [e-mail]
[e-mail]
[e-mail]
Counsel for Defendant City of Miami Township

s/ Todd M. Raskin
Todd M. Raskin (0003625)
Cara Michelle Wright (0084583)
MAZANEC, RASKIN & RYDER CO., LPA
100 Franklins Row
34305 Solon Road
Cleveland, OH 44139
[phone]
Email: [e-mail]
[e-mail]
Counsel for Defendant Matthew Scott Moore
cc:

David Owens
Michael Kanovitz
Michele Berry
Laura Mariani
Dwight Dean Brannon
Joel Sechler

(via email: [e-mail])
(via email: [e-mail])
(via email: [e-mail])
(via email: [e-mail])
(via email: [e-mail])
(via email: [e-mail])