Johnson v. Warden Pickaway Correctional Institution
DECISION AND ORDER DENYING MOTION TO COMPEL 38 . Signed by Magistrate Judge Michael R. Merz on 10/5/2017. (kpf)(This document and attachment have been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DERRICK L. JOHNSON,
- vs -
Case No. 3:15-cv-090
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
CHARLES BRADLEY1, Warden,
Pickaway Correctional Institution,
DECISION AND ORDER DENYING MOTION TO COMPEL
This is habeas corpus case is before the Court on Petitioner’s Motion to Compel the Clerk
to serve him with a copy of the Magistrate Judge’s Report and Recommendations of September
28, 2017 (ECF No. 38). Petitioner’s purpose is “to allow petitioner to file objections thereto, as
petitioner has NOT been served with such to date.” Id. at PageID 967.
The question that presents itself is how Petitioner knows that there exists a September 8,
2017, Report and Recommendations. On October 2, 2017, Judge Rice adopted the Report and
entered judgment (ECF Nos. 36, 37). The docket entry shows the Clerk sent both of those items
to Mr. Johnson, but they could not have arrived until after October 2. Petitioner cannot have
learned of that Decision by the time he sent his Motion to Compel, which he says he served on
the Attorney General on September 28, 2017 (Certificate of Service, ECF No. 38
Mr. Bradley is the current Warden at Petitioner’s place of confinement and is therefore substituted as Respondent
in this case; the caption is amended as set forth above. Fed. R. Civ. P. 25.
Because the Clerk’s Office says it mailed the Report and Recommendations, the Decision
and Entry, and the Judgment by ordinary mail to Mr. Johnson and the docket does not reflect any
return of that mail, the Motion to Compel is DENIED. As a matter of courtesy, the Clerk will
furnish Mr. Johnson with a copy of the Report and Recommendations without charge.
Because judgment has already been entered in the case, Mr. Johnson cannot now file
objections. He can, however, file a motion to amend the judgment under Fed. R. Civ. P. 59(3)
not later than twenty-eight days after the judgment (October 30, 2017). The Court is without
authority to extend that time.
October 5, 2017,
s/ Michael R. Merz
United States Magistrate Judge
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