The opinion
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAVID A. JOHNSON, Case No. 1:20-cv-338
Plaintiff, Barrett, J.
Bowman, M.J.
v.
INDIAN HILL EXEMPTED VILLAGE SCHOOL DIST.
BOARD OF EDUCATION,
Defendant.
REPORT AND RECOMMENDATION
This case represents one of at least three cases filed by Plaintiff in this Court.1 On
November 24, 2020, Plaintiff filed a motion seeking the appointment of counsel, citing
among other reasons, a lack of “education and physical ability to adequately investigate
crucial acts…, complex legal issues” and an alleged inability “to properly present his case”
without counsel. (Doc. 15). In stark contrast to those representations, the motion was
accompanied by a 17-page typed and well-organized legal memorandum replete with
numerous citations to statutory and case authority, including to Lavado v. Keohane, 992
F.2d 601, 605-606 (6th Cir. 1993), the Sixth Circuit case that explains that only
“exceptional circumstances” justify the appointment of counsel for a civil litigant. Finding
no such circumstances existed here, the undersigned denied Plaintiff’s motion for counsel
on January 21, 2021. (Doc. 18).
In its January 21, 2021 Order, the court pointed out that Plaintiff had filed a similar
1The records of this Court reflect additional cases filed by a “David A. Johnson,” but the undersigned has
not undertaken the research necessary to determine whether that individual is the same Plaintiff appearing
in the more recent cases.
No. 1:18-cv-868-TSB-KLL. In that case, counsel was appointed for the limited purpose
of representing Plaintiff during a court-facilitated settlement conference, and the case was
dismissed pursuant to the resulting settlement on January 21, 2020. (Doc. 18). The
Order also noted that Plaintiff filed a third pro se employment discrimination case,
Johnson v. Siemens Industry Inc., Case No. 1:20-cv-880-MRB-KLL, which case remains
in its infancy.
Plaintiff has been unresponsive to repeated requests by Defendant for discovery.
After the Court denied Plaintiff’s motion for the appointment of counsel, the undersigned
conducted two telephonic hearings on discovery issues on February 19, 2021 and again
on April 6, 2021. At the April 6, 2021 hearing, Plaintiff stated his intention to voluntarily
dismiss his case, citing his inability to obtain counsel to assist him. The Court directed
Plaintiff to file an appropriate motion within two weeks, and warned Plaintiff that a failure
to file his motion may result in a Report and Recommendation dismissing his case for
failure to provide discovery.
Instead of a straightforward motion to voluntarily dismiss his case, Plaintiff filed a
longer document that reiterates the allegations of his complaint and seeks a lengthy
continuance for Plaintiff to continue his attempts to secure counsel to prosecute this case.
At the end of his motion, however, Plaintiff seeks in the alternative a dismissal “without
prejudice” so that he can preserve his right to re-file the same case at a later date.
Defendant strongly opposes Plaintiff’s motion to the extent that he seeks a continuance,
and sets forth a strong argument for dismissal with prejudice based upon Plaintiff’s clear
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24). Defense counsel also has filed an affidavit detailing Plaintiff’s failure to respond to
its discovery requests since September 2020. (Doc. 23). Despite detailing grounds for
dismissal of this case with prejudice, Defendant alternatively states that “to speed the
dismissal of this action, Defendant does not object to the less drastic sanction of dismissal
without prejudice.” (Doc. 24 at 2).
In the interests of expediency and barring any objection from Defendant, IT IS
RECOMMENDED THAT Plaintiff’s motion to dismiss this case without prejudice (Doc.
22) be GRANTED, and that this case be DISMISSED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAVID A. JOHNSON, Case No. 1:20-cv-338
Plaintiff, Barrett, J.
Bowman, M.J.
v.
INDIAN HILL EXEMPTED VILLAGE SCHOOL DIST.
BOARD OF EDUCATION,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections. 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 (6th Cir. 1981).
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