The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL BROWN,
Plaintiff,
Civil Action 2:21-cv-5146
v. Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson
WILLIAM COOL, et al.,
Defendants.
ORDER
Pro se Plaintiff has filed service documents (Doc. 20), requested counsel (Docs. 22, 23),
renewed his request for a temporary restraining order (Doc. 23), and applied for entry of default
(Doc. 24). The Court addresses these filings in turn.
I. SERVICE
The Undersigned previously recommended this case be dismissed for failure to prosecute
because Plaintiff failed to submit necessary service documents. (Doc. 17). Since that
recommendation was made, Plaintiff submitted service documents. (Doc. 20). Accordingly, the
Undersigned WITHDRAWS the Report and Recommendation (Doc. 17).
Though Plaintiff’s Complaint names numerous individuals in a “List of Defendants” (Doc.
3-1 at 1) and mentions some of these names in his statement of facts (Doc. 3-1 at 2–7), it appears
Plaintiff truly alleges claims against only the four Defendants he named on his complaint form:
William Cool, Travis Raypool, Dane Osbourne, and D. Farmer (Doc. 3 at 2–3). Merely listing a
supposed defendant is not enough. See e.g., Denkins v. Mohr, No. 2:13-CV-584, 2014 WL 806370,
at *2 (S.D. Ohio Feb. 28, 2014), report and recommendation adopted, No. 2:13-CV-00584, 2014
WL 4272823 (S.D. Ohio Aug. 29, 2014), aff'd (Sept. 10, 2015) (finding the plaintiff failed to state
a claim because it did not meet the minimal pleading standard) (collecting cases).
For the four Defendants in this matter, the Court is in possession of summons forms
(Doc. 20 at 26–27, 32–33, 40–41, 48–49) and Marshal forms (Doc. 1-3 at 8–10, 13–14, 16, 23, 28,
31, 33, 35). And the Clerk’s Office has already issued summonses for them. (Doc. 21 at 25–26,
31–32, 39–40, 47–48). Accordingly, the Clerk’s Office is DIRECTED to FORWARD to the
United States Marshal the summons forms and Marshal forms for Defendants Cool, Raypool,
Osbourne, and Farmer. They are further DIRECTED to make copies of Plaintiff’s Complaint
(Doc. 3) and FORWARD those to the United States Marshal. Once in possession of the service
documents, the United States Marshal is DIRECTED to serve by certified mail a copy of the
Complaint (Doc. 3) on Defendants Cool, Raypool, Osbourne, and Farmer.
II. FILINGS FOR OTHER CASE
Plaintiff has multiple cases before the Court, including this case (2:21-cv-5146), which
involves events taking place at Ross Correctional Institution (“RCI”) and Brown v. Mahlman
(1:22-cv-239), which involves events at Southern Ohio Correctional Facility (“SOCF”). Plaintiff
filed his complaint regarding SOCF (1:22-cv-239) after the Court instructed him that those
allegations must be brought in a separate complaint. (See generally Doc. 14). Since opening his
new case, Plaintiff has continued to file motions and letters in this case that are clearly meant for
his other case, including his requests for counsel (Docs. 22, 23 at 2) and Motion for Preliminary
Injunction and Temporary Restraining Order (Doc. 23 at 1).
While the Court concludes that Plaintiff’s Motion for Appointment of Counsel (Doc. 23
at 2) and his other informal request for counsel (Doc. 22 (“[I]s it still too soon to ask for a
lawyer?”)) were likely misfiled in this case, the Court addresses the requests because they could
apply to this case. Plaintiff’s requests for counsel (Docs. 22, 23 at 2) are DENIED without
prejudice to renewal at a later stage of the proceedings because the action has not yet progressed
to the point that the Court is able to evaluate the merits of Plaintiff’s claim. See Henry v. City of
Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th Cir. 1985) (en banc) (“[I]n considering an
application for appointment of counsel, district courts should consider plaintiff’s financial
resources, the efforts of plaintiff to obtain counsel, and whether plaintiff’s claim appears to have
any merit.”). Generally, a motion to appoint counsel is appropriate after a complaint survives
motions to dismiss and motions for summary judgment. Since that has not happened here,
appointment of counsel is premature.
Further, the Court strikes the Motion for Preliminary Injunction and Temporary
Restraining Order (Doc. 23 at 1) because it applies only to the allegations made in Plaintiff’s other
case (1:22-cv-239). In fact, the Undersigned already struck and recommended denial without
prejudice for a similar motion (Doc. 7) for this reason. (Doc. 14 at 4). Yet, once again, Plaintiff
has filed a Motion for Preliminary Injunction and Temporary Restraining Order against SOCF
defendants. (Doc. 23 at 1). Because Plaintiff’s Motion for Preliminary Injunction and Temporary
Restraining Order (Doc. 23 at 1) has no relevance to this case, it is STRICKEN.
Finally, the Court notes that Plaintiff’s Letter filed on July 6, 2022 (Doc. 22), in addition
to requesting counsel, mentions that he has “discovered the c/o’s identity who injured [his] left
thumb.” (Doc. 22). He requests “the Courts get the roll call list of 1-26-22 2nd shift to confirm
this.” (Id.). Again, the filing is clearly meant for his other case (1:22-cv-239) because that case
has a Defendant listed as “The C/O who had my left thumb[.]” So the Court STRIKES Plaintiff’s
request for the Court to get the roll call list. (Doc. 22).
Moving forward, Plaintiff must only file motions or letters in this case that relate to his
allegations regarding events taking place at RCI. Plaintiff must include only this case number
(2:21-cv-5146) on such filings. That is, Plaintiff shall stop including both case numbers on his
filings, and Plaintiff must keep his cases straight going forward.
III. APPLICATION FOR ENTRY OF DEFAULT
The Court notes that Plaintiff applied to the Clerk for entry of default. (Doc. 24).
Recognizing the Plaintiff is pro se, the Court informs him that entry of default is properly filed
after Defendants have been served and failed to answer. At this point, no Defendant has been
served.
IV. CONCLUSION
The Clerk’s Office is DIRECTED to FORWARD to the United States Marshal the
summons forms and Marshal forms for Defendants Cool, Raypool, Osbourne, and Farmer. They
are further DIRECTED to make copies of Plaintiff’s Complaint and FORWARD those to the
United States Marshal. Once in possession of the service documents, the United States Marshal is
DIRECTED to serve by certified mail a copy of the Complaint on Defendants Cool, Raypool,
Osbourne, and Farmer.
Plaintiff’s requests for counsel (Docs. 22, 23 at 2) are DENIED without prejudice
Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order
(Doc. 23 at 1) and his request for the Court to get the roll call list (Doc. 22) are STRICKEN
because they are not properly filed in this case.
IT IS SO ORDERED.
Date: September 6, 2022 s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE