Parrish v. Warden, Marion Correctional Institution

Filing 35

SUPPLEMENTAL OPINION ON STRIKING OBJECTIONS - In sum, Mr. Parrish's Objections to the Order Striking his Objections are not well taken and should be overruled. However, should the District Judge decide to consider the Objections despite their untimeliness, the Magistrate Judge believes no further recommittal on the basis of those Objections would be useful to the Court as the issues are adequately considered in the Report. Signed by Magistrate Judge Michael R. Merz on 7/7/2017. (kpf)(This document has 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
WILLIAM A. PARRISH, JR.,
Petitioner,

:

- vs -

Case No. 3:16-cv-486
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Marion
Correctional Institution,
:
Respondent.

SUPPLEMENTAL OPINION ON STRIKING OBJECTIONS

This case is before the Court on Petitioner=s Objections (ECF No. 33) to the Magistrate
Judge’s Order Striking Objections as Untimely (ECF No. 32). Judge Rice has recommitted the
case for reconsideration in light of the Objections (ECF No. 34).
On May 23, 2017, the Magistrate Judge filed a Report and Recommendations
recommending that Mr. Parrish’s habeas corpus petition be dismissed with prejudice (ECF No.
30). The Report had an appended Notice that any objections had to be filed within seventeen
days of the service of the Report (ECF No. 30, PageID 2187-88).
On June 19, 2017, the Clerk received and docketed Mr. Parrish’s Objections (ECF No.
31). Mr. Parrish represents that “[t]his Motion was dropped in the Institutional mail box on June
13, 2017.” Id. att PageID 2199. The Order Striking the Objections as Untimely credited that
representation of mailing, but noted that that was four days after objections were required to be
filed and served under the Notice and Fed. R. Civ. P. 72 (ECF No. 32).
Mr. Parrish’s Objections rely on that portion of Fed. R. Civ. P. 5(b)(2) which says that
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service is made by handing a document to a person. He asserts the Mail Room at the institution
where he is confined handed the Report to him on May 30, 2017, making that the date of service.
Actually, Rule 5(b)(2) provides six alternative ways to serve a person. Rule 5(b)(2)(C) provides
that service can be made by “mailing it to the person’s last known address – in which event
service is complete upon mailing.” As the docket shows, the Report was mailed to Mr. Parrish
on May 23, 20o17, the same day it was filed. Therefore the Order correctly calculated the date
the Objections were due as June 9, 2017, and they were untimely.
Mr. Parrish further objects that the Magistrate Judge acted beyond his authority in
striking the Objections without a motion to that effect by the Respondent. The General Order of
Assignment and Reference (Dayton General order 13-01) refers all habeas corpus cases filed at
the Dayton location of court to Magistrate Judge Merz “who is authorized to perform in each
such case any and all functions authorized for full-time United States Magistrate Judges by
statute.” 28 U.S.C. § 636 authorizes Magistrate Judges to hear and determine any pretrial matter
with certain enumerated exceptions; the exceptions do not include enforcing time limits under
the Federal Rules of Civil Procedure. Mr. Parrish offers no authority, and none is known to the
undersigned, prohibiting the enforcement of time limits under the Rules sua sponte.
Mr. Parrish speculates that the reason the Magistrate Judge struck the Objections was “to
prevent Judge Rice from viewing the document that proves Assistant Attorney General Jerri L.
Fosnaught has filed fraudulent documents in this judicial proceedings [sic].” (PageID 2213).
That is not so. The Magistrate Judge believes Mr. Parrish’s “fraudulent document” claim is a red
herring, designed to distract the Court from the fact that, as certified by Common Pleas Judge
Dankof, most of the matter Mr. Parrish alleges should be in the transcript never happened in his
courtroom.

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In sum, Mr. Parrish’s Objections to the Order Striking his Objections are not well taken
and should be overruled.
However, should the District Judge decide to consider the Objections despite their
untimeliness, the Magistrate Judge believes no further recommittal on the basis of those
Objections would be useful to the Court as the issues are adequately considered in the Report.

July 7, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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