Marcum v. Duchak et al

Filing 114

REPORT AND RECOMMENDATIONS IT IS THEREFORE RECOMMENDED THAT: Defendant Sheriff Dave Duchaks Motion to Dismiss for Failure to Prosecute (Doc. # 106 ) be DENIED. Objections to R&R due by 5/26/2020. Signed by Magistrate Judge Sharon L. Ovington on 5/12/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 3:17-cv-00437-WHR-SLO Doc #: 114 Filed: 05/12/20 Page: 1 of 7 PAGEID #: 1465

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TED MARCUM,
Plaintiff,
vs.
SHERIFF DAVE DUCHAK, et al.,
Defendants.

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Case No. 3:17-cv-00437
District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS 1
What remains in this prisoner civil rights case brought pro se by Plaintiff Ted
Marcum is capsulized in the following:
In the Court’s view, Plaintiff has stated a plausible claim that the Miami
County Jail’s policy of not providing pretrial detainees with the ability to
make free, direct phone calls during the booking process impermissibly
burdens his fundamental right to counsel of his choice and to reasonable bail.
He has also stated a plausible claim that the policy has a discriminatory effect
on indigent pretrial detainees. In addition, Plaintiff has sufficiently alleged
that this policy, established by Sheriff Duchak, is the moving force behind the
alleged constitutional violations.
(Doc. #73, PageID #s 815-16).
Defendant presently moves to dismiss this case for failure to prosecute. (Doc. #s
106, 113). Plaintiff opposes dismissal. (Doc. #111).
When this case began Plaintiff was a pretrial detainee at the Miami County Jail in
Miami County, Ohio where he remained until he finished serving a 180-day sentence. (Doc.

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

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#73, PageID #807). Presumably, this occurred on or around April 13, 2018 when Plaintiff
notified the Court of his address change to 185 Dye Mill Road, Troy, Ohio 45373. (Doc.
#58, PageID #729). At some point after this, he became peripatetic, alternating his address
of record between the Butler County Jail and his home in Troy, Ohio. (Doc. #90, PageID
#899). This, and some lethargy by Plaintiff, has led to problems moving the case forward.
See Doc. #s 86, 89. Plaintiff’s address changes prevented Defendant’s counsel from
contacting him about submitting a joint Rule 26(f) Report. This forced Defendant into filing
his own Rule 26(f) Report three times in order to comply with deadlines set by the Court.
(Doc. #s 76, 88, 97).
By April 3, 2019, the case had stalled due to Plaintiff’s address problems.
Consequently, the Court ordered him to show cause why the case should not be dismissed
with prejudice due to his failure to prosecute. (Doc. #89). The Court explained:
Plaintiff has a duty to keep the Court and opposing counsel informed of any
address changes. Notably, this is the second time that counsel for Defendant
has had to file a unilateral Rule 26(f) Report because Plaintiff has failed to
comply with his obligations. See Doc. #76. Although the Court is
sympathetic to the demands placed on prose litigants, failure to comply with
the Court’s Orders is unacceptable and will not be tolerated.
Id. at 892.
Plaintiff did not comply with the April 3rd Order and, as a result, on April 24, 2019,
the Court ordered him to file his own Rule 26(f) Report. The Court also placed him on
notice that if he failed to file his Report, “or even should he file same, should said filing be
defective in one or more particulars, the captioned cause will be dismissed, for want of
prosecution.” (Doc. #91, PageID #899). Plaintiff thereafter filed his Rule 26(f) Report.
(Doc. #93).
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In early August 2019, Plaintiff filed a notice of change of address, disclosing his
address as 185 Dye Mill Road, Troy, Ohio 45373. (Doc. # 95).
On December 4, 2019, District Judge Rice held a telephone conference with the
parties and granted Defendant’s Motion to Modify Case Schedule and reset the trial date for
December 7, 2020. (Doc. #104).
On January 13, 2020, Defendant served Plaintiff, by First Class Mail, with his first
set of interrogatories and first request for production of documents. (Doc. #105).
Defendant sent his discovery requests to Plaintiff at his address of record—185 Dye Mill
Road in Troy, Ohio. But Defendant again ran into problems. On March 2, 2020, the Postal
Service returned Defendant’s discovery requests to him marked address not known (ANK).
(Doc. #106, PageID #1205).
Defendant contends that dismissal of this case is warranted for Plaintiff’s failure
prosecute because he has failed to update the Court with his mailing address on multiple
occasions and because the Court has admonished and warned him on several occasions that
any further failure to meet this obligation would result in dismissal of this case. Defendant
asserts that Plaintiff has ignored these warnings. Defendant further contends that he has
suffered prejudice caused by Plaintiff’s failures to update his contact information, and
Defendant has been forced to litigate this case with almost no access to Plaintiff, thus
needing to waste time and resources tracking him down. Defendant asserts that because he
is no longer residing at his address of record, they are unable to serve him with basic
discovery requests.
Rule 41(b) of the Federal Rules of Civil Procedure permits a defendant to move to
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dismiss “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order
.…” Judge Rice has thoroughly explored Rule 41(b)’s boundaries:
The authority to dismiss a case under Rule 41(b) “is available to the
district court as a tool to effect management of its docket and avoidance of
unnecessary burdens on the tax-supported courts and opposing parties.” Knoll
v. American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999) (quotation
omitted). District courts are permitted substantial discretion in determining
whether dismissal is appropriate. Id. However, the Sixth Circuit has
emphasized that dismissal is a “harsh” remedy reserved for “extreme
situations where a plaintiff has engaged in a clear pattern of delay or
contumacious conduct.” Holt v. Pitts, 619 F.2d 558, 562 (6th Cir. 1980)
(reversing order of dismissal in § 1983 action). “The sanction of dismissal is
appropriate only if the attorney’s actions amounted to failure to prosecute and
no alternative sanction would protect the integrity of the pretrial process.”
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 594 (6th Cir. 2001) (emphasis
in original) (quotation omitted). The Sixth Circuit has often reversed district
court decisions, dismissing a complaint under Rule 41(b), absent a showing of
bad faith or notice to the plaintiff that the court is contemplating involuntary
dismissal. E.g., Nader v. Land, 433 F.3d 496, 501-02 (6th Cir. 2006)
(reversing lower court’s dismissal and citing other similarly reversed cases).
Offill v. Pennsylvania Life Ins. Co., 243 F.R.D. 276, 284 (S.D. Ohio 2007).
Although there has certainly been delay in this case caused by Plaintiff’s failure to
keep Defendant and the Court apprised of his address, the present circumstances—
Plaintiff’s failure to timely respond to Defendant’s written discovery requests—has not been
the result of similar omissions, or bad-faith conduct, by him.
On January 13, 2020, Plaintiff lived at his address of record, 185 Dye Mill Road in
Troy, Ohio. Defendant’s counsel, therefore, correctly sent his discovery requests to Plaintiff
at that address by certified mail. Plaintiff’s responses were due within thirty days after they
were served. See Fed. R. Civ. P. 33(b)(2), 34(b)(2). But, as described above, something
went wrong with the mailing. It did not reach Plaintiff at his address of record, and
Defendant received his discovery requests back from the Postal Service on March 2, 2020
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marked address not known. See Doc. #106, PageID #s 1200, 1205. Defendant concluded
from this that Plaintiff had again “failed to notify the Court and Defendant’s counsel of his
changed mailing address ….” Id. at 1200. Although this was a reasonable inference, it
turned out to be incorrect. Plaintiff swears that he had not changed his address. See Doc.
#111, PageID #s 1447. He later checked with the Postal Service and learned that if no one
responds to the mail carrier’s knock on the addressee’s door, which is the customary
practice when delivering certified mail, the mail carrier will leave a note attached to the
door. The note informs the addressee of the existence of the certified mail and that it is
being held at the Post Office.
This explains why Defendant’s counsel did not receive the certified mail back until
March 2—the Postal Service was holding it. Plaintiff, however, swears he never received
any note or notice from the Postal Service about Defendant’s certified mail. See id. at 1448.
Plaintiff points out that he did receive at his Dye Mill Road address a copy of the Court’s
Notice to him about Defendant’s Motion to Dismiss. Id. at 1449. This apparently was when
he first learned about the unsuccessful certified mailing.
It is possible that Plaintiff did not receive a note— assuming the mail carrier left
one—at his Dye Mill Road address concerning Defendant’s certified mail. If his statements
are credited, he did not. If his statements are overlooked, the question—whether he actually
received a note left by a mail carrier—remains unanswered on the present record. In these
circumstances, and given the harshness of dismissal for failure to prosecute, this is not an
“‘extreme situation’” in which Plaintiff “‘has engaged in a clear pattern of delay or
contumacious conduct.’” Offill, 243 F.R.D. at 284 (quoting, Holt, 619 F.2d at 562).
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Defendant lastly contends that Plaintiff’s Memorandum in Opposition to Defendant’s
Motion to Dismiss for Failure to Prosecute was untimely. Relying on Fed. R. Civ. P.
5(d)(2), Defendant reasons that a document is not filed until the Clerk of Court receives it.
Defendant sees Plaintiff’s untimely filing as again demonstrating his unwillingness to
comply with Court Orders and deadlines, further revealing his clear pattern of delay.
The Court notified Plaintiff that he had until March 27, 2020 to file his response to
Defendant’s Motion to Dismiss. (Doc. #107). This was twenty-four days after Defendant
served his Motion on Plaintiff by certified mail. (Doc. #106, PageID# 1204). Yet, Plaintiff
gets the benefit of three additional days—until March 30, 2020—because Defendant served
Plaintiff by mail. Id.; see Fed. R. Civ. P. 6(d). This means that when the Clerk docketed
Plaintiff’s Memorandum in Opposition on March 30, 2020, it was timely filed.
Accordingly, Defendant’s Motion to Dismiss lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
Defendant Sheriff Dave Duchak’s Motion to Dismiss for Failure to Prosecute (Doc.
#106) be DENIED.
May 12, 2020

s/Sharon L. Ovington
Sharon L. Ovington
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 Recommendations. Such objections shall specify the
portions of the Report 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.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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