Moon v. Jones, Sheriff et al

Filing 21

ORDER AND ENTRY: (1) GRANTING PRO SE PLAINTIFFS SECOND MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 20); (2) GRANTING PRO SEPLAINTIFFS MOTION FOR LEAVE FROM THE CERTIFICATE OF SERVICE REQUIREMENT (DOC. 19); AND (3) DIRECTING THE CLERK TO SEPAR ATELY FILE PRO SE PLAINTIFFS FIRST AMENDED COMPLAINT (DOC. 20-1)REPORT AND RECOMMENDATION THAT: (1) DEFENDANTS MOTION TO DISMISS BE DENIED AS MOOT (DOC. 12); AND (2) PRO SE PLAINTIFFS FIRST MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 14) BE DENIED AS MOOT. Signed by Magistrate Judge Michael J. Newman on 6/19/2017. (dm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DARNELL WESLY MOON,
Plaintiff,

Case No. 3:15-cv-424

vs.
SHERIFF RICHARD K. JONES, et al.,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
ORDER AND ENTRY: (1) GRANTING PRO SE PLAINTIFF’S SECOND MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 20); (2) GRANTING PRO SE
PLAINTIFF’S MOTION FOR LEAVE FROM THE CERTIFICATE OF SERVICE
REQUIREMENT (DOC. 19); AND (3) DIRECTING THE CLERK TO SEPARATELY
FILE PRO SE PLAINTIFF’S FIRST AMENDED COMPLAINT (DOC. 20-1)
**********
REPORT AND RECOMMENDATION1 THAT: (1) DEFENDANTS’ MOTION TO
DISMISS BE DENIED AS MOOT (DOC. 12); AND (2) PRO SE PLAINTIFF’S FIRST
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DOC. 14) BE DENIED
AS MOOT
______________________________________________________________________________
This civil case is before the Court on the motion to dismiss (doc. 12) filed by Defendants
Richard K. Jones and Dennis Adams. Doc. 12. Pro se Plaintiff Darnell Wesly Moon (“Moon”)
filed a memorandum in opposition to Defendants’ motion. Doc. 13. Thereafter, Defendants
filed a reply memorandum. Doc. 16.
In addition to opposing Defendants’ motion to dismiss, Moon has also filed two motions
for leave to file an amended complaint (docs. 14, 20), which the Court addresses before
addressing Defendants’ motion. In his original complaint, Moon asserts civil rights claims under
42 U.S.C. § 1983 against Defendants in their personal capacities, as well as a claim of intentional

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

infliction of emotional distress under Ohio law. Doc. 3. Moon’s § 1983 claims all concern the
alleged conditions of his confinement at the Butler County Jail (the “Jail”) in Hamilton, Ohio.
Id. Specifically, Moon contends that Defendants violated his constitutional rights by depriving
him of: (1) religious accommodations; (2) cleaning items for personal hygiene; (3) edible food;
and (4) recreation. Id. Defendants moved to dismiss Moon’s original complaint under Fed. R.
Civ. P. 12(b)(6), arguing that Moon’s factual allegations set forth only temporary inconveniences
and do not set forth any actual injury -- or at least a constitutional injury. Doc. 12 at PageID 45.
In his first motion for leave (doc. 14), Moon requested leave so that he could set forth
factual allegations with more specificity. Id. at PageID 57. Moon did not attached a proposed
amended complaint to his first motion for leave and failed to identify what additional facts he
sought to allege. See id. Nevertheless, on June 1, 2017, Moon filed a second motion for leave to
amend his complaint (doc. 20), to which he attached a proposed amended complaint. Doc. 20-1.
Moon’s proposed amended complaint sets forth similar allegations regarding the alleged
denial of religious accommodations, toiletries, and edible food. See doc. 20-1 at PageID 93-94.
Omitted from Moon’s proposed amended complaint are allegations regarding the lack of
recreation while incarcerated. See id. Added, however, are allegations about having been
stripped search upon intake; being laughed at while naked during the search by other inmates and
an unidentified corrections officer; living and showering in dirty conditions; being denied a
shower for 3 or 4 days and then being denied warm water for showers thereafter; having to
shower while exposed to other inmates; sleeping on a thin mattress; and sleeping in a freezing
cold cell. Id. at PageID 93-94.
Ordinarily, a district court “should freely give leave [to amend the pleadings] when
justice so requires.” Ross v. Am. Red Cross, 567 F. App’x 296, 306 (6th Cir. 2014) (citing Fed.
R. Civ. P. 15(a)(2)). The decision to grant or deny leave to amend lies within the discretion of
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the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). See Fed. R. Civ. P. 12(b)(6). In
the interests of justice, the undersigned GRANTS Moon’s second motion for leave (doc. 20) and
RECOMMENDS that Moon’s first motion for leave (doc. 14) be DENIED as MOOT. The
Clerk shall separately file Moon’s proposed amended complaint (doc. 20-1).
The Court next addresses Defendants’ motion to dismiss. Doc. 12. “Because amended
complaints supersede the original pleading, the filing of the amended complaint . . . technically
render[s] [a] pending motion to dismiss moot.” Yates v. Applied Performance Techs., Inc., 205
F.R.D. 497, 499 (S.D. Ohio 2002). Because Defendants’ motion to dismiss addresses the
allegations in the original complaint, the it is MOOT and the undersigned RECOMMENDS
that Defendants’ motion be DENIED as such, WITHOUT PREJUDICE to refile addressing
the allegations in the amended complaint.
Finally, Moon seeks leave from serving Defendants by regular mail and, instead, seeks
permission to serve Defendants through the Court’s electronic filing system (“CM/ECF”). Doc.
19. In light of the financial hardship upon Moon, and in the absence of prejudice to Defendants - they will receive all filings via the Court’s CM/ECF system -- the Court GRANTS Moon’s
motion. Doc. 19.

Date:

June 19, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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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 Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is 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. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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