Marcum v. Duchak et al

Filing 64

SUBSTITUTED REPORT AND RECOMMENDATIONS - Based on this set of facts as they now appear from the pleadings, Sheriff Duchak's Motion to Dismiss is well taken in its entirety. This one remaining equal protection claim should be dismissed. Because t his is the last remaining claim, if the Court adopts this recommendation, it should also enter judgment dismissing the Complaint with prejudice. Objections to R&R due by 5/22/2018. Signed by Magistrate Judge Michael R. Merz on 5/8/2018. (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, et al.,
:
Respondents.

SUBSTITUTED REPORT AND RECOMMENDATIONS

This case is before the Court on Defendant Sheriff Duchak’s Objections (ECF No. 61) to
the Magistrate Judge’s Fifth Supplemental Report and Recommendations (ECF No. 56)
recommending that Sheriff Duchak’s Motion to Dismiss be denied as to Plaintiff’s equal protection
claim regarding a free telephone call upon arrest. Judge Rice has recommitted the case for
reconsideration in light of the Objections (ECF No. 62). The Magistrate Judge had previously
reached the same conclusion in the Report and Recommendations on Motions to Dismiss (ECF
No. 41).
Sheriff Duchak objects that the Magistrate Judge’s conclusion on this one remaining claim
is contrary to law (ECF No. 61, PageID 738). The standard for review of such objections is de
novo. Fed. R. Civ. P. 72(b)(3). Review of the Objections persuades the Magistrate Judge that he
has misconstrued the pleadings. Accordingly, as to this particular equal protection claim, those
two Reports are WITHDRAWN.

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The Magistrate Judge began his analysis of the Motions to Dismiss by outlining the claims
made in the Complaint, writing as to the free telephone call claim:
Beginning at page twenty-four (PageID 189), Marcum seeks
mandamus relief to require the Sheriff to provide inmates with a
“free” phone call to contact an attorney or a bondsman. At page fifty
he alleges that the agreement between the Miami County Sheriff’s
Office and the Miami County Public Defender which “prohibits all
inmates from ‘calling’ the Public Defender’s Office unless the
Public Defendant [sic] requests for such inmate to call the office” is
part of an illegal conspiracy (PageID 215). He references the Inmate
Handbook to show the existence of this policy.
(ECF No. 41, PageID 624.)
Regarding the telephone policy, the Magistrate Judge has already
concluded that the policy of allowing calls to the Public Defender
only when requested by that Office is not unconstitutional.
With respect to an initial telephone call upon arrest, Marcum claims
he was entitled to one such call for free and avers that the Miami
County Jail does not provide for such a call, despite Ohio Revised
Code § 2935.20 and 2935.14 (Complaint, ECF No. 2, PageID 190).
Instead he says inmates must purchase a phone card which can only
be done at certain times or bill the call to the credit or debit card of
some other person. Id. Marcum avers that he attempted to call “both
a bondsman, as well as an attorney, but none of them ‘accepted’ to
pay for the call.” Id. at PageID 192. Emphasizing how he believes
the Miami County Jail practice violates the two Ohio statutes cited,
he also claims it violates the Ohio Constitution and the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution. Id.
at PageID 196.
Seeking dismissal of this claim, Sheriff Duchak asserts the Miami
County Jail “provides all inmates with access to a phone free of
charge.” (Motion, ECF No. 7, PageID 286.) Earlier he asserted that
Marcum has admitted in his Complaint that inmates are permitted
free access to a telephone, but the call recipient must pay for the call.
Id., citing Complaint at PageID 50 and 62.
It appears from the pleadings that nothing being done by the Sheriff
prevents an inmate from placing and completing a telephone call
without incurring any cost. Rather it appears from what is pleaded
that the telephone company providing phone service at the Jail
charges on a per call basis, rather than providing unlimited service
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outgoing call service on a per line basis. Thus the charges appear to
be parallel to what is customary with contemporary cellphone
service as opposed to land line service where outgoing calls are
billed on a monthly rather than per call basis. The Sheriff himself
is not charging for access to the phone, but the telephone
company is charging on a per call basis.
Id. at PageID 634-35 (emphasis added).
The Sheriff’s most recent Objections make clear to the Magistrate Judge his mistake. The
Magistrate Judge had read the pleadings as alleging that, while the Sheriff did not charge the
inmate for a call, the telephone company did. If the inmate did not have some way of paying the
telephone company (e.g. by a prepaid phone card), he could not make the call. Instead, the
telephone company charges the person receiving the call rather than the inmate (ECF No. 61,
PageID 740). This is consistent with Plaintiff admission that he has in fact placed telephone calls
without being charged and that he could not find anyone willing to accept his calls and pay for
them.
This set of facts defeats Plaintiffs’ claim. The Constitution of the United States does not
guarantee to a jail inmate that his call to an attorney or a bail bondsman will be successfully
completed. Not only is that process not in control of the Sheriff, it is not within the control of any
other state actor who is subject to suit under 42 U.S.C. § 1983. Bail bondsmen are private citizens.
While the public defender is a public employee, the Supreme Court has held a public defender is
not a state actor for § 1983 purposes. Polk County v. Dodson 454 U.S. 312, 320-25 (1981).
Based on this set of facts as they now appear from the pleadings, Sheriff Duchak’s Motion
to Dismiss is well taken in its entirety. This one remaining equal protection claim should be
dismissed.

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Because this is the last remaining claim, if the Court adopts this recommendation, it should
also enter judgment dismissing the Complaint with prejudice.

May 8, 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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .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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