Marcum v. Duchak et al

Filing 56

FIFTH SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends Sheriff Duchak's Motion to Dismiss (ECF No. 7) be denied as to Plaintiff's equal protection claim regarding a free telephone call upon arrest. Objections to R&R due by 4/24/2018. Signed by Magistrate Judge Michael R. Merz on 4/9/2018. (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
STATE OF OHIO
EX REL TED MARCUM,
Petitioner,

:

- vs -

Case No. 3:17-cv-437
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

SHERIFF DAVE DUCHAK,
:
Respondent.

FIFTH SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Defendant Duchak’s Objections (ECF No. 45) to the
Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 41) to the extent that the
Report recommends denying Defendant Duchak’s Motion to Dismiss (ECF No. 7) as to one of
Plaintiff’s claims for relief, to wit, his claim against the Sheriff in his official capacity that his
policy of failing to provide a free telephone call to persons upon incarceration violates the Equal
Protection Clause (Report, ECF No. 41, PageID 636). Judge Rice has recommitted the case to
the Magistrate Judge for reconsideration in light of the Objections (ECF No. 46).
Plaintiff Marcum filed Objections (ECF No. 50) to those portions of the Report that
recommended granting the Motion to Dismiss, but the Magistrate Judge struck those Objections
because they were untimely filed (ECF No. 53).

However, to the extent the Objections

document responds to Defendant Duchak’s Objections, they were timely filed and will be
considered on recommittal. Id.

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Sheriff Duchak correctly argues that the standard for review of a Magistrate Judge’s
recommended conclusions of law is whether the recommendations are “contrary to law” (ECF
No. 45, PageID 662). See Fed. R. Civ. P. 72(b).
The Magistrate Judge read Marcum’s Complaint as alleging that an arrested person is
entitled upon booking into a county jail to a free telephone call to a bail bondsman or an attorney
by Ohio Revised Code §§ 2935.20 and 2935.14, the Ohio Constitution, and the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution. (Report, ECF No. 41, PageID 63435.) The Report concluded that the Ohio statutory claim did not of itself rise to the level of a
constitutional violation, but that the Complaint did adequately state a claim for violation of the
Equal Protection Clause. Id. a PageID 636. The Sheriff’s policy, as least as pleaded and not
contradicted by the Objections, is that inmates are not charged by the Jail for access to a
telephone. However, the telephone service provider to the Jail does charge on an individual call
basis. Therefore a jail prisoner must, as Marcum alleges, pay for the call either by charging it to
a credit or debit card or a phone card purchased from the Jail Commissary, which can only be
done at certain times. Thus an indigent person who does not have access to a credit or debit card
and has no money to buy a phone card at the Commissary cannot call a bondsman or an attorney.
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
"deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend.
XIV, § 1. The Supreme Court has stated that this language "embodies the general rule that States
must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793,
799 (1997). The States cannot make distinctions which either burden a fundamental right, target
a suspect class, or intentionally treat a person differently from others similarly situated without
any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005).
When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City
of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010).
The Equal Protection Clause applies to administrative as well as legislative acts.
Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 597 (2008), citing Raymond v. Chicago
Union Traction Co., 207 U.S. 20 (1907). The fundamental rights which are protected from being
burdened by state action are those rights incorporated into the Fourteenth Amendment from the
Bill of Rights. The Eighth Amendment right to reasonable bail and the Sixth Amendment right
to counsel are two of such rights. McDonald v. Chicago, 561 U.S. 742 (2010).
Regarding bail, Sheriff Duchak correctly notes that the Constitution does not guarantee
an absolute right to be released on bail. (Objections, ECF No. 45, PageID 664, citing United
States v. Salerno, 481 U.S. 739 (1987).) He also concedes that bail is set at an amount higher
than reasonably necessary to assure the defendant’s appearance is excessive and violates the
Eighth Amendment. Id. citing Stack v. Boyle, 342 U.S. 1 (1951). 1 From these premises, the
Sheriff concludes, “Plaintiff enjoys no constitutionally protected right to access to a bail
bondsman.” Id. at PageID 664-665. However, the Sheriff’s policy of requiring that an inmate be
able to pay or obtain payment for an initial call to a bail bondsman arguably burdens his
fundamental right to reasonable bail. Alternatively, if use of a telephone is required to contact a
bail bondsman, the practice of providing a telephone only to those who can afford to make a call
discriminates against the indigent in arguably the same way that refusal to provide a trial
transcript to the indigent when one is needed for appeal discriminates unconstitutionally against
the indigent. Sheriff Duchak attempted to distinguish Griffin v. Illinois, 351 U.S. 12 (1956) on
1

Note that Salerno confirmed the constitutionality of the federal Bail Reform Act of 1984 which allowed a federal
court to detain a person without bond if found necessary to assure the person’s attendance and/or the safety of the
community.

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the grounds that the Supreme Court permitted Illinois to satisfy the transcript function in some
other way. Defendant Duchak has not suggested any alternative means of satisfying an indigent
inmate’s need to contact a bondsman.
Regarding the right to counsel, Sheriff Duchak again suggests Marcum suffered no harm
from being unable to use a free phone call to contact an attorney because the Public Defender
appeared with him at initial appearance/arraignment. We know from other filings that the Public
Defender will not accept incoming calls from the Jail, so Marcum could not have contacted the
public defender from jail. Without the facility of a free phone call, he could also not contact any
other attorney of his choice. Restricting a person’s ability to consult with counsel upon arrest to
his ability to talk with an assigned attorney at what is likely to be, in this Magistrate Judge’s
experience, a very crowded municipal court initial appearance docket places a burden on that
Sixth Amendment right.
The Sheriff relies on Aswegan v. Henry, 981 F.2d 313 (8th Cir. 1992). Plaintiffs there
obtained a preliminary injunction to allow unlimited telephone access to counsel, but Marcum
does not seek anything that broad.

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Conclusion

Based on the foregoing analysis, the Magistrate Judge again respectfully recommends
Sheriff Duchak’s Motion to Dismiss be denied as to Plaintiff’s equal protection claim regarding a
free telephone call upon arrest.

April 9, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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
Recommendations are 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 United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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