Winkle v. Loranger et al

Filing 33

DECISION AND ORDER DENYING SECOND MOTION FOR RECUSAL AND DENYING MOTION FOR DEFAULT JUDGMENT; ORDER TO SHOW CAUSE 32 . By signing the Motion 32 , Plaintiff has certified that the three allegations made in the motion have evidentiary support. Plaint iff is ORDERED to produce any evidentiary support he has access to that support these three factual allegations in conjunction with his response to this Order to Show Cause why he should not be sanctioned under Fed. R. Civ. P. 11 for making in the Motion 32 the three allegations. Signed by Magistrate Judge Michael R Merz on 6/7/2014. (gh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK R. WINKLE,
Plaintiff,

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vs

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Case No. 3:14-cv-020
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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CAROL S. LORANGER, et al.,

Defendants.

:

DECISION AND ORDER DENYING SECOND MOTION FOR
RECUSAL AND DENYING MOTION FOR DEFAULT JUDGMENT;
ORDER TO SHOW CAUSE

This case is before the Court on Plaintiff’s Motion to Disqualify Magistrate [Judge]
Michael M. [sic] Merz for Federal Crimes, Obstruction, Conspiracy to Defraud, Accepting
Bribes, Gifts, Gratuities, and Violating the Plaintiff’s Rights to a Fair and Impartial Hearing of
the Facts, Brief in Opposition to the Magistrate [Judge]’s Report and Recommendations
Regarding Federal Defendants, Motion for Judgment of Default (Doc. No. 32).
On May 28, 2014, the Magistrate Judge filed a Report and Recommendations Regarding
Federal Defendants (Doc. No. 29). The portion of the instant Motion objecting to that Report is
timely and consideration of its merits is committed to District Judge Rose. The other two
portions of the Motion will be dealt with here.

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Motion to Disqualify

Winkle made a demand for recusal of the Magistrate Judge as part of his Objections
(Doc. No. 28) to a prior Report and Recommendations.

The grounds for recusal or

disqualification raised there were dealt with in the Decision and Order Denying Demand for
Recusal (Doc. No. 30). The grounds raised here are different and will be dealt with here.
Demands for recusal of a federal judge are directed in the first instance to the judge
sought to be disqualified. United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); In re
Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2nd Cir. 1988); MacNeil v. Americold
Corp., 735 F. Supp. 32, 36 (D. Mass. 1990)(specifically applying rule to United States magistrate
judges).
As his new basis for disqualification, Winkle alleges
that in the case of Winkle v. Shingler 3:03-445, that he [Winkle]
did personally witness Magistrate Michael M. Merz accept a bribe
of monetary value from the defense attorney prior to the
preliminary injunction hearing in which he was the plaintiff. In
fact, upon questioning both the Magistrate and the defense attorney
in question, Magistrate Merz asserted that "my friend often treats
me to lunch, golf outings, etc." It is interesting that a federal
Magistrate would openly take a bribe from a defense attorney in
front of the plaintiff whose case was to be heard in a conference
room a few minutes later and attempt to play it off as a regular
occurrence. This alleged "friend" is a defense attorney that has
accepted many alleged "gifts" from Magistrate Merz of dismisals
of cases and favorable rulings against his clients, and allegedly
openly admitted to this plaintiff that "Magistrate Merz and
himself" had exchanged gifts like these for years."

(Motion, Doc. No. 32, PageID 675.)

2

Winkle v. Shingler was a Fair Housing Act case brought by Winkle pro se on December
9, 2003. On January 9, 2004, Winkle moved for injunctive relief to prevent Defendant from
evicting him. That motion was set for hearing on January 20, 2004. The next day the Magistrate
Judge filed a Decision and Order which included findings of fact and concluded as a matter of
law that Winkle could not prove discrimination under the Fair Housing Act: his essential
complaint was that his landlord had rented to women with children and he was male and
childless. Having dismissed the Fair Housing claims with prejudice, the Court dismissed the
state law claims without prejudice so that they could be litigated in the proper forum, the Dayton
Municipal Court. Winkle took no appeal. No transcript was made of the proceedings in that
case although they were recorded by a court reporter using machine stenography.
Winkle now says I accepted a bribe in that case before the preliminary injunction hearing
but in front of Winkle. Winkle says he questioned both me and the defense attorney and I
admitted that the defense attorney, whom I described as a friend, “often treats me to lunch, golf
outings, etc.”
Winkle’s allegation is an outrageous lie. I have never played a round of golf in my life1.
I have never accepted anything of value from the defense lawyer in that case, or from any lawyer
in any case, either as a “gift” or as a bribe to influence my decisions.
The fact that Winkle’s allegation is a lie is strongly supported by the circumstantial
evidence. What person as litigious as Winkle has been in this Court would proceed to a hearing
in a case where he had just heard the presiding judge admit to being bribed and say nothing about
it? If Winkle’s allegations were true, he would himself be guilty of misprision of felony for his
failure to report the bribe. 18 U.S.C. § 4 provides:

1

I exclude two occasions when I played miniature golf with my granddaughter when she was eight and nine years
old.

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Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not
as soon as possible make known the same to some judge or other
person in civil or military authority under the United States, shall
be fined under this title or imprisoned not more than three years, or
both.

Winkle did not allege bribery when he initially sought my recusal. Nor did he raise the
second allegations that he now makes, to wit, that I have “only permitted two pro se cases to
proceed to discovery.” (Motion, Doc. No. 32, PageID 676.) That is also untrue. Three recent2
cases referred to this Magistrate Judge in which pro se plaintiffs have been allowed to conduct
discovery are Glowka v. Bemis, Case No. 3:12-cv-345; Smith v. Montgomery County Sheriff’s
Office, Case No. 3:10-cv-448; and Gessner v. Plummer, Case No. 3:10-cv-223.
Winkle’s second Motion to Disqualify is DENIED.

Motion for Default Judgment

Winkle moves for default judgment against United States Secretary of Education Arne
Duncan and the United States Department of Education (Motion, Doc. No. 32).
On May 28, 2014, the Magistrate Judge recommended that the Amended Complaint be
dismissed for want of prosecution as to the Federal Defendants because Winkle had not served
them with process within the time allowed by Fed. R. Civ. P. 4(m).
On April 7, 2014, Assistant United States Attorney Gregory Dunsky suggested of record
that Winkle had failed to serve the Federal Defendants in the manner required by law, to wit,
Fed. R. Civ. P. 4(i)(Doc. No. 10). On the same day, the Magistrate Judge filed a notice that he

2

i.e. filed after January 1, 2010.

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would recommend dismissal for want of prosecution as to any defendant upon whom service had
not been perfected by May 21, 2014, the 120th day after filing (Doc. No. 11) At no time after that
has Winkle filed proof of making service on the Federal Defendants as required by Rule 4(i).
In his request for default judgment against the Federal Defendants, Winkle says:
In his alleged further attempt to obstruct justice in this case on
behalf of the defendants, Magistrate [Judge] Michael M.[sic] Merz
once again has his facts in error. The plaintiff served the Federal
Defendants legal counsel every document including the Plaintiffs
Amended Complaint, and every document submitted by the
plaintiff from that point forward. Had the magistrate, in his alleged
quarrel with the plaintiff contacted the US Attorney's Office he
would have been informed by Asst. U.S. Atty. Gregory Dunsky
that he had indeed received every court document including the
plaintiff's first amended complaint.
(Motion, Doc. No. 32, PageID 676.)
Mr. Dunsky’s suggestion of lack of service (Doc. No. 10) lays out concisely what must
be done to obtain personal jurisdiction over a federal officer or agency. Winkle has not proven
he has served either the Department of Education or Secretary Duncan in the manner required by
law. Merely sending copies to the assigned Assistant United States Attorney, although necessary
under Fed. R. Civ. P. 5, is not sufficient. And whether or not copies have been sent to Mr.
Dunsky, it would have been a violation of the ethical prohibition on ex parte communications for
the Magistrate Judge to call Dunsky and ask.
The Motion for Default Judgment is DENIED.

5

Order to Show Cause

Fed. R. Civ. P. 11 provides in pertinent part:
(b) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or
other paper, an attorney or unrepresented party is certifying that to
the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on a lack of information or belief.

Acting sua sponte pursuant to Fed. R. Civ. P. 11(b)(3), the Magistrate Judge hereby
ORDERS that, on or before June 17, 2014, Plaintiff show cause in writing why he should not be
sanctioned under Fed. R. Civ. P. 11 for making in the instant Motion the following allegations:
1.

“[T]hat in the case of Winkle v. Shingler 3:03-445, that he [Winkle] did personally

witness Magistrate Michael M. Merz accept a bribe of monetary value from the defense attorney
prior to the preliminary injunction hearing in which he was the plaintiff.”

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2.

Magistrate Merz asserted that "my friend often treats me to lunch, golf outings, etc.”

3.

“The Southern Christian Leadership Conference conducted a historical study of

Magistrate Merz’ cases to the date of their client’s case and found that Magistrate Michael M.
Merz had only permitted two pro se cases to proceed to discovery, and that only one of those two
cases was permitted to proceed to trial.”
By signing the instant Motion, Plaintiff has certified that these allegations have
“evidentiary support.” Plaintiff is ORDERED to produce any evidentiary support he has access
to that support these three factual allegations in conjunction with his response to this Order to
Show Cause.

June 7, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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