The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICARDO VERNAIR DODSON, : Case No. 2:18-cv-00908
:
Plaintiff, : District Judge Sarah D. Morrison
: Magistrate Judge Sharon L. Ovington
vs. :
:
GARY C. MOHR, et al.,
:
Defendants. :
:
ORDER
I.
The discovery deadline in this case expired on April 27, 2020. (Doc. No. 48). An
ongoing discovery dispute remained until the undersigned Judicial Officer issued an
Order ruling, in part, on Plaintiff’s First through Fourth Motions to Compel. (Doc. No.
98).
Various motions are presently pending beginning with Plaintiff’s Motion to
Extend the September 25, 2020 Dispositive Motion Deadline and Defendants’
Memorandum in Opposition. (Doc. Nos. 82, 86, 93). Plaintiff explains that he cannot
file a dispositive motion until the ongoing discovery disputes have been resolved. But
the ongoing discovery disputes he refers to were resolved by the Order ruling on his four
Motions to Compel. (Doc. No. 98). The previous discovery disputes therefore present no
impediment to his ability to file a dispositive motion. He will, however, be given
additional time—until November 20, 2020—to file a dispositive motion.
Plaintiff also seeks a stay of Defendants’ Motion for Summary Judgment due to
the ongoing discovery disputes. (Doc. Nos. 87, 97). Defendants oppose granting him a
stay. (Doc. No. 92). As explained in the previous paragraph, the ongoing discovery
disputes Plaintiff refers to were resolved by the Order ruling on his four Motions to
Compel. (Doc. No. 98). Those discovery disputes therefore present no obstacle to his
ability to respond to Defendants’ Motion for Summary Judgment. Plaintiff, however,
will be given additional time—until November 20, 2020—to respond to Defendants’
Motion for Summary Judgment. Plaintiff is placed on NOTICE that if he fails to timely
respond to Defendants’ Motion for Summary Judgment, by November 20, 2020, their
Motion may be granted and his case dismissed.
II.
Plaintiff contends that a stay of Defendants’ Motion for Summary Judgment is
needed because it is improper under Fed. R. Civ. P. 56(f) to grant summary judgment
without allowing the responding party ample opportunity for discovery. (Doc. No. 87,
PageID 905). He reasons that he—the responding party—has not been given an ample
opportunity for discovery because the parties’ discovery disputes remain pending. Again,
however, the pending discovery disputes he refers to were resolved by the Order ruling
on his four Motions to Compel. (Doc. No. 98).
Still, a question lingers: whether Plaintiff should be given additional time for
discovery in light of his reliance on Rule 56(f). Plaintiff’s aim is slightly off because the
substance of former Rule 56(f) is now found in Rule 56(d). But Plaintiff is correct that
Rule 56(d) presently applies because discovery is closed, because Plaintiff faces
Defendants’ Motion for Summary Judgment, and because he filed two discovery motions
after Defendants filed their Motion for Summary Judgment. (Doc. Nos. 88, 89).
To obtain discovery under Rule 56(d), a party opposing summary judgment must
show by affidavit or declaration “that, for specified reasons, it cannot present facts
essential to justify its opposition ….” “The affidavit [or declaration] must ‘indicate to the
district court [the party’s] need for discovery, what material facts it hopes to uncover, and
why it has not previously discovered the information.’” Doe v. City of Memphis, 928
F.3d 481, 490 (6th Cir. 2019) (citations omitted).
A court handling a Rule 56(d) motion “may: (1) defer considering the motion [for
summary judgment] or deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.”
Plaintiff has filed a Motion for Subpoena Duces Tecum Directing Ohio Attorney
General & Franklin County Prosecutor’s Office to Produce Documents/Original Records
of Case No. 90CR-11-5725. (Doc. No. 88). Defendants have not responded to it.
Plaintiff asks the Court to require Defendants to produce one of his rape victim’s mental-
health records. He contends that those records may contain information not disclosed by
the prosecution during his criminal trial in violation of Brady v. Maryland, 373 U.S. 83
(1963), and he argues that such evidence may entitle him to a new criminal trial. The
constitutionality of Plaintiff’s original criminal convictions is not at issue in the instant
case, which has proceeded from the outset under 28 U.S.C. § 1983. “Claims that
challenge the validity of a conviction or sentence are not cognizable under § 1983 in the
absence of a demonstration that the conviction or sentence ‘has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.’” Noel v. Guerrero, 479 F. App’x 666, 668-69 (6th Cir. 2012) (quoting
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Consequently, Plaintiff’s Motion for a
Subpoena Duces Tecum (Doc. No. 88) concerning mental-health records from his state
criminal proceedings lacks merit.
Plaintiff has also filed a Motion for Subpoena Duces Tecum Directing the Ohio
Attorney General & Franklin County Child Support Enforcement Agency to Produce
records from a paternity case in which he was a defendant.1 (Doc. No. 89). Defendants
did not respond to this Motion. Plaintiff maintains that the records from the paternity
case will establish that another individual, not Plaintiff, is the father of a child born to one
of his rape victims. This information connects to his claim that Defendants violated his
right to due process by denying him parole in 2018 based on false or inaccurate
information, including (in part) their incorrect belief that he had impregnated one of his
rape victims. He explains in his Amended Complaint:
Plaintiff submitted in [his] original complaint the Journal Entry from
the Juvenile Court of Common Pleas dismissing a Paternity suit filed
by the victim against the Plaintiff regarding establishing parent-child
relationship. It was determined after blood testing that Plaintiff was
excluded as the biological father and one Larry Stuckey was found to
be 999.99 percent of being the father of said minor child. Therefore
the case was dismissed against Plaintiff.
Based upon the Journal Entry of dismissal, Plaintiff did not cause the
victim to become pregnant causing the victim to give up the child for
1Plaintiff seeks documents from the paternity case brought against him and another individual in the
Franklin County Court of Common Pleas, case number “D 92dp-12-11576 Brenda Lee Mills vs. Larry
Valaldo Stuckey & Ricardo Verian [sic] Dodson ….” (Doc. No. 89) (italics added).
adoption. Therefore, this information is false and considered/used to
deny parole since 2009 until 2018 without Plaintiff knowing that the
OPB [Ohio Parole Board] was using this false information to deny
parole.
(Doc. No. 46, ¶s 49-50).
A review of the Journal Entry attached to Plaintiff’s Complaint reveals that the
paternity suit against him was dismissed without prejudice due the plaintiff’s (the child’s
mother’s) failure to prosecute (she did not show up for a hearing).2 (Doc. No. 1, PageID
92). The Journal Entry contains no specific information supporting Plaintiff’s current
assertion that he was not the father of the child. Plaintiff, moreover, presents no
explanation about why he did not seek a subpoena for this information much earlier in the
case before the close of discovery. Although additional time for discovery under Rule
56(d) is given “almost as a matter of course…,” it may be denied when “the non-moving
party has not diligently pursued discovery of the evidence.” Doe v. City of Memphis, 928
F.3d 481, 490-91 (6th Cir. 2019). Plaintiff did not diligently and specifically pursue the
records from the paternity case because he has long known about their existence—
arguably since 1993, see Doc. No. 89, PageID 917, but at latest since the date he filed his
original Complaint in this case in 2018. A subpoena for those records is therefore
unwarranted.
III.
Lastly, in light of the Court’s previous Order (Doc. No. 98), Plaintiff’s Motion
2Plaintiff did not attach the Journal Entry to his Motion. (Doc. No. 89). He instead attached a related summons and
letter neither of which supports his assertion that he is not the father of the child at issue in the paternity suit
documented in the Journal Entry.
Requesting an Order of Enforcement Directing Magistrate Judge Ovington to Follow the
August 17, 2020 Order Prior to Determining the Summary Judgment (Doc. No. 91) and
his Motion Requesting a Ruling on His Pending July 14, 2020 Motion (Doc. No. 95) are
denied as moot.
IT IS THEREFORE ORDERED THAT:
1. Plaintiff’s Motion to Extend the September 25, 2020 Dispositive Motion
Deadline (Doc. No. 82) is GRANTED. Plaintiff’s response to Defendants’
Motion for Summary Judgment and/or his dispositive motion are due by
November 20, 2020.
2. Plaintiff’s Motion to Stay (Doc. No. 87) is DENIED. Plaintiff shall file his
response to Defendants’ Motion for Summary Judgment by November 20,
2020.
3. Plaintiff’s Motion for Subpoena Duces Tecum Directing Ohio Attorney
General & Franklin County Prosecutor’s Office to Produce
Documents/Original Records of Case No. 90CR-11-5725 (Doc. No. 88) is
DENIED.
4. Plaintiff’s Motion for Subpoena Duces Tecum Directing the Ohio Attorney
General & Franklin County Child Support Enforcement Agency to Produce
Records (Doc. No. 89) is DENIED.
5. Plaintiff has filed a Motion Requesting an Order of Enforcement Directing
Magistrate Judge Ovington to Follow the August 17, 2020 Order Prior to
Determining the Summary Judgment (Doc. No. 91) is DENIED.
6. Plaintiff’s Motion Requesting a Ruling on His Pending July 14, 2020
Motion (Doc. No. 95) is DENIED.
October 26, 2020 s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge