Marcum v. Duchak et al

Filing 69

SUPPLEMENT TO SUBSTITUTED REPORT AND RECOMMENDATIONS-This case is before the Court on Plaintiffs Objections (ECF No. 67 ) to the Magistrate Judges Substituted Report and Recommendations (ECF No. 64 ) which recommended grantingSheriff Duchaks Motion to Dismiss Plaintiffs sole remaining claim. Judge Rice has recommitted the case for reconsideration in light of the most recent Objections (ECF No. 68 ). The Magistrate Judge accordingly recommends that Marcums remaining claim for mandamus relief be dismissed as moot. Objections to R&R due by 6/6/2018. Signed by Magistrate Judge Michael R. Merz on 5/23/18. (kma)(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.

SUPPLEMENT TO SUBSTITUTED REPORT AND
RECOMMENDATIONS

This case is before the Court on Plaintiff’s Objections (ECF No. 67) to the Magistrate
Judge’s Substituted Report and Recommendations (ECF No. 64) which recommended granting
Sheriff Duchak’s Motion to Dismiss Plaintiff’s sole remaining claim. Judge Rice has recommitted
the case for reconsideration in light of the most recent Objections (ECF No. 68).
The Substituted Report recommended dismissal because the facts alleged by Plaintiff, as
the Magistrate Judge understood them, did not plead a claim under the Equal Protection Clause.
In his Objections, Plaintiff recites without proof many additional facts which at least color and
may change the analysis, e.g., (1) that there was an attorney of Marcum’s choice who would have
accepted representation if only Marcum could have reached him, (2) there was a friend who would
have posted bail or contacted a bondsman who would have posted bond if Marcum could have
reached him, and (3) there is a telephone in the booking area at the Miami County Jail which could
have been used to place the type of telephone call Marcum believes is legally guaranteed, but
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Sheriff Duchak’s policy does not permit such use. None of these facts is presently pleaded, much
less proved, but Plaintiff could move to add them to his Complaint and unless persuaded they are
legally irrelevant, the Court would be obliged to allow the amendment.
One fact that stands out and has not yet been addressed in motion practice is that Marcum
has been released from custody, having completed his sentence. As the Magistrate Judge has read
the Complaint, Marcum seeks mandamus relief against the Sheriff regarding the telephone policy
and practice. (See ECF No. 64, PageID 748). § 1983 claims relating to conditions of confinement
are moot when raised by persons who have been released from confinement. Preiser v. Newkirk,
422 U.S. 395 (1975); Abdur-Rahman v. Michigan Dept of Corrections, 59 F.3d 170 (6th Cir. 1995),
citing Secretary of Labor v. Burger King Corp., 955 F.2d 681, 685 (11th Cir. 1992); Cooper v.
Sheriff, Lubbock County, 929 F.2d 1078, 1084 (5th Cir. 1991)(per curiam).
The Magistrate Judge accordingly recommends that Marcum’s remaining claim for
mandamus relief be dismissed as moot.

May 23, 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
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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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