El-Bey v. Sylvester

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JTTONALI ONE EYE EL-BEY,

Plaintiff, Case No. 1:21-cv-680

v. Barrett, J.

Bowman, M.J.

ELLIOTT SYLVESTER, et al.,

Defendants

MEMORANDUM OPINION AND ORDER

Pursuant to local practice, this prisoner civil rights case has been referred to the

undersigned magistrate judge. Presently pending before the Court is a motion filed by

Plaintiff that seeks discovery. In addition, the Court notes that mail addressed to Plaintiff

was returned as undeliverable, and that none of the Defendants have yet entered any

appearance in this case.

I. Background

While incarcerated in Butler County Jail, Plaintiff initiated this pro se action in forma

pauperis to challenge: (1) his allegedly unlawful arrest on August 20, 2021; (2) alleged

conditions at the Clinton County Jail; and (3) proceedings at his arraignment following his

arrest.1 The undersigned reviewed Plaintiff’s complaint under the initial screening

standards of 28 U.S.C. §§1915(e) and 1915(A), and recommended dismissal of all claims

1Plaintiff has initiated multiple proceedings in this Court under what presently appears to be a false name

or alias. See, e.g., El-Bey v. The United States of America, et al., No. 1:21-cv-574-MRB-SKB (S.D. Ohio),

El-Bey v. Wisecup, et al., No. 1:21-cv-678-MRB-SKB (S.D. Ohio), El-Bey v. The United States Postal

Service, No. 1:21-cv-590-MRB-SKB (S.D. Ohio), and El-Bey v. Walker, et al., No. 1:21-cv-679-MRB-SKB

(S.D. Ohio). Case No. 1:21-cv-574-MRB-SKB has been deemed to be related to the above-captioned case.

(Doc. 11)

with prejudice except for Plaintiff’s unlawful arrest claims against Defendants, Wilmington

Police Officers Sylvester, Juillerat, and Rager. (Doc. 11). The Report and

Recommendation (“R&R”) directed the U.S. Marshal to serve a copy of the complaint and

summons upon all three individual Defendants. (Id.) Although service appears to have

been effective, no Defendant has yet appeared.

On May 16, 2022, Plaintiff formally moved for leave to file Objections to the pending

R&R. The Court granted that motion and permitted the filing of Objections, while

correcting the docket to reflect that an earlier filed document was an unrelated

“Memorandum.”2 However, on July 20, 2022, the Court overruled Plaintiff’s Objections

and adopted the R&R as the opinion of the Court. (Docs. 16, 21). On May 23, 2022, the

copy of the R&R addressed to Plaintiff under the name used in this litigation and last

known address was returned as undeliverable. (Doc. 17).

II. Analysis of Pending Issues

A. Plaintiff’s Failure to Provide a Valid Name or Address

As stated above, the copy of the R&R sent to Plaintiff at his listed address at the

Butler County Jail was returned as undeliverable, indicating that Plaintiff has not kept this

Court apprised of his current address and/or his correct name. (See Doc. 17). In other

civil cases being prosecuted by Plaintiff in which mail has been returned as undeliverable,

the Court noted that Plaintiff’s name did not then appear on the Butler County Jail

website’s inmate roster. In at least one case, a piece of mail was returned to this Court

2Since initiating this action, Plaintiff has filed several procedurally unauthorized documents. See, e.g., Doc.

14 (Memorandum); Doc. 18, (Certification of Request(s) Sent to the Clinton County Municipal Clerk and the

Wilmington Police Department); Doc. 19, (Certificate of Confirmation Pertaining to the Supr 44-47 Request

for CRB2001523A). Plaintiff has filed similar procedurally irregular documents in related case 1: 21-cv-574-

MRB-SKB as well as other civil cases. Because the referenced documents require no judicial action, and

in the interests of judicial economy, the Court will not further address Docs. 14, 18, or 19 or similar

documents filed of record in the future.

with the notation “released.” (See Doc. 48 in Civil Case No. 1:21-cv-678-MRB-SKB; see

also Doc. 35 in Case No. 1:21-cv-574-MRB-SKB).

As this Court previously has noted, the same individual who proceeds as Plaintiff

herein was directed to undergo a psychiatric and/or psychological evaluation pursuant to

18 U.S.C. § 4241 in a pending criminal case in this Court. In the criminal case, Plaintiff’s

legal name is identified as Jtton Edward Watson. (See Doc. 31 in United States v.

Watson, No. 1:21-cr-110-MWM).3 On March 2, 2022, the Court ruled that Jtton Edward

Watson (a/k/a Plaintiff herein) was competent to participate in his defense and prepare

for his criminal trial in this Court. (Doc. 54 in U.S. v. Watson, No. 1:21-cr-110-MWM). As

of August 3, 2022, the name “Jtton Edward Watson” – a name that matches the name of

the criminal Defendant in Case No. 1:21-cr-110-MWM – does appear on the Butler

County Jail website’s inmate roster. The name used by Plaintiff herein does not. Out of

an abundance of caution, the undersigned will direct the Clerk to send a copy of this Order

to Plaintiff at his last known address at the Butler County Jail under both the name listed

in the caption of this complaint (which appears to be a false name or alias) and under

what appears to be his legal name, “Jtton Edward Watson.”

To the extent that it appears that Plaintiff has filed the above-captioned case under

a false name or alias, the undersigned will direct him to show cause why this case should

not be dismissed. It appears likely that Plaintiff’s initiation of this and other civil cases

under a false name and listing the Butler County Jail as his address may have contributed

3The criminal case docket in this Court identifies the Defendant as “Jtton Edward Watson, agent of JttonAli

One-Eye El-Bey.” Defendant’s legal name appears to be Jtton Edward Watson. However, on October 7,

2021, the undersigned granted Defendant’s oral request for the name “JttonAli One-Eye El-Bey” to be listed

as an “alias” on the docket. The Court’s Minute Entry further stated that Defendant “may renew his motion

[for a name change] should Defendant later be able to provide documentation of his legal name change to

the Court.” Defendant has never provided any evidence of a legal name change.

to the inability of this Court to serve him with copies of its prior Reports and

Recommendations and Orders. In Robinson v. Ionia Correctional Facility Medical Staff,

2017 WL 3841862, at *3 (W.D. Mich. Aug. 1, 2017), R&R adopted at 2017 WL 3840025

(W.D. Mich. Sept. 1, 2017), the court dismissed a case filed by a pro se inmate under a

false name because the use of a false name “made it impossible for the Court or

defendants’ counsel to perform the simple act of mailing him copies of orders and

motions.” The court there explained that the use of a false name amounted to fraud on

the Court:

“Filing a case under a false name deliberately, and without sufficient

justification, certainly qualifies as flagrant contempt for the judicial process

and amounts to behavior that transcends the interests of the parties in the

underlying action.” Dotson v. Bravo, 321 F.3d 663, 668 (7th Cir. 2003). “A

trial is not a masquerade party nor is it a game of judicial hide-n-seek where

the plaintiff may offer the defendant the added challenge of uncovering his

real name.” Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006).

“Permitting the plaintiff to pursue his claim would take the punch out of the

punishment for pummeling the probity of the judicial

system.” Id. See Wilson–Williams v. Freeman, No. 2:07–CV–480–MEF,

2010 WL 653873 at *3 (M.D. Ala. Feb. 22, 2010) (a plaintiff “may not purport

to seek justice in this court while committing fraud” regarding his

identity); Prince v. Delaware County Bar Association, 1993 WL 141711 at

*2 (E.D. Pa. May 3, 1993) (dismissing the pro se plaintiff's civil rights action

as sanction because, “Plaintiff in the case at bar has filed this suit using

a false name. This court finds that this conduct is the type that constitutes

fraud on the court because it clearly tampers with the judicial machinery and

subverts the integrity of the court itself.”).

Id. at *2. In addition to dismissal based upon the plaintiff’s use of a false name, the court

dismissed for failure to prosecute under Rule 41(b).

The same issues are present in the instant case. The use of a false name or alias

is equivalent to an invalid address at the Butler County Jail, since no person identified as

“JttonAli One-Eye El-Bey” is housed at that facility and mail addressed to the named

Plaintiff at the Butler County Jail has been returned as undeliverable. It is well established

that it is incumbent upon any litigant, including a pro se prisoner litigant, to keep the Court

apprised of his current address. While some latitude may be extended to pro se litigants

“when dealing with sophisticated legal issues ... there is no cause for extending this

margin to straightforward procedural requirements that a layperson can comprehend as

easily as a lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991). Based upon the

return of mail from the Butler County Jail, it appears that Plaintiff has either proceeded

under a false name and/or has failed to identify a name under which he can receive mail,

and/or a current address.

Without such basic information as a valid name and current address from a would-

be plaintiff, this Court has no recourse but to dismiss a complaint for failure to prosecute.

Under Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss any case

for “failure of the plaintiff to prosecute or to comply with the rules or order of the court....”

Unless the court orders otherwise, a dismissal for failure to prosecute pursuant to Rule

41(b) is an adjudication on the merits that is to be given preclusive effect, barring

subsequent actions based on the same allegations. See Bragg v. Flint Bd. of Educ., 570

F.3d 775 (6th Cir. 2009). The undersigned will direct Plaintiff to “show cause” why this

case should not be dismissed under Rule 41(b) for failure to keep the Court apprised of

the legal name and address where mail can be delivered.

B. Plaintiff’s Discovery Motion

On May 16, 2022, Plaintiff filed a “Motion for Production of Documents Pursuant

to Brady v. Maryland.” (Doc. 15). Plaintiff’s motion is procedurally improper for multiple

reasons. Under the Federal Rules of Civil Procedure, a party may not seek discovery from

any source before the parties have conferred as required by Rule 26(f), except under

limited circumstances including when authorized by court order. Fed. R. Civ. P. 26(d)(1).

Here, Defendants have not yet appeared and no calendar order has been entered;

therefore, any discovery request or motion is premature.

Even if the commencement of discovery were authorized, however, Plaintiff’s

“motion” still would be procedurally improper because it is nothing more than a request

for discovery. Discovery requests are not to be filed of record, but instead must be served

directly on the opposing party. See generally, Fed. R. Civ. P. 5(d)(1) ("discovery requests

and responses must not be filed until they are used in the proceeding ... [including]

requests for documents."); see also S.D. Ohio Civ. R. 5.4(a). The fact that Plaintiff

proceeds pro se does not entitle him to ignore procedural rules. See McNeil v. United

States, 508 U.S. 106, 113, 113 S. Ct. 1980 (1993) (holding that pro se litigants are not

exempt from the requirements of procedural rules in ordinary civil litigation).

Last, the undersigned notes that Plaintiff’s “motion” is addressed “Dear

Prosecuting Attorney,” and requests any and all exonerating evidence under case law

that defines a prosecutor’s duty to disclose exculpatory evidence. See e.g., Brady v.

Maryland, 83 S.Ct. 1194, 1196-97, 373 U.S. 83, 87 (1963) (holding that “the suppression

by the prosecution of evidence favorable to an accused … violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.”). The prosecuting attorney is not a named defendant herein

and Brady and its progeny do not define the scope of discovery in civil cases like this one.

While civil discovery is generally broader in scope, it is subject to limits to prevent abuse

by a party who seeks to evade the limitations of discovery in a criminal case. See

generally, Degen v. United States, 116 S.Ct. 1777, 1782, 517 U.S. 820, 826 (1996).

C. The Defendants’ Failure to Appear

Pursuant to the undersigned’s Report and Recommendation, summons was

issued to all three Defendants on April 28, 2022. (Doc. 12). The record reflects that green

cards confirming execution of the summons forms were returned via certified mail on May

16, 2022. The green cards bear the signature of a “Karen Miller” on behalf of each

Defendant. (Doc. 20). Based upon the date of service, the Defendants’ answers or

responses were due on June 6, 2022. As of this date, Defendants have yet to file any

responsive pleading or make any other appearance before this court.

Ordinarily, the Defendants’ failure to timely answer or otherwise appear might

prompt a “show cause” order from this Court. However, in light of the fact that this lawsuit

may be subject to summary dismissal for failure to prosecute, the undersigned will stay

issuance of a corresponding “show cause” order to the Defendants at this time.

III. Conclusion and Order

For the reasons discussed, IT IS ORDERED THAT:

1. The Clerk shall mail two copies of this Memorandum Opinion and Order to Plaintiff

at the Butler County Jail address provided in this litigation. The first copy should

be addressed to the name used in the above-captioned civil case, and the second

copy should be addressed to Jtton Edward Watson;

2. On or before August 30, 2022, Plaintiff shall SHOW CAUSE for his failure to

identify a valid legal name and address where he can be served, and shall further

SHOW CAUSE for initiating this lawsuit under what appears to be a false name or

alias that frustrates service by this Court and/or by any Defendant;

3. Plaintiff’s motion for discovery (Doc. 15) shall be STRICKEN from the record;

4. Pending review of Plaintiff’s response to this “show cause” order, the undersigned

may further direct Defendants to show cause for their failure to timely appear. In

the interests of justice, a copy of this Memorandum Opinion and Order shall be

mailed to Defendants Elliott Sylvester, Neil Rager and Cody Juillerat at the address

in which service of the complaint was made.

s/Stephanie K. Bowman ____

Stephanie K. Bowman

United States Magistrate Judge