The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANDREW SMIGELSKI,
Plaintiff,
Civil Action 2:20-cv-4812
v. Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
GREGG CLULEY, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Mowery’s Motion to Strike (Doc. 115) and
Non-Parties Abigail Savings and City of Logan’s (“Non-Parties”) Motion to Strike (Doc. 117).
The Court addresses each motion in turn.
I. DEFENDANT MOWERY’S MOTION TO STRIKE
Defendant Mowery moved to strike a document attached as an exhibit (Doc. 114-8) to
Plaintiff’s Reply (Doc. 114) because it was confidential. (Doc. 115). This document, a May 19,
2022 letter from the Pickaway County Prosecuting Attorney’s Office, includes material “related
to a diversion case” that “should not be disseminated or reproduced in any way.” (Doc. 115, ¶ 2).
Plaintiff does not oppose sealing the document. (Doc. 118). So the Court asked Defendant
Mowery for his position on sealing the document. (Doc. 126). He agreed to sealing the document
in lieu of striking it. (Doc. 128).
To seal, Defendant Mowery must show (1) a compelling interest, (2) that outweighs the
public interest in access, and (3) is narrowly tailored. See Kondash v. Kia Motors Am., Inc., 767
F. App’x 635, 637 (6th Cir. 2019); see also Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan,
825 F.3d 299, 305 (6th Cir. 2016). Defendant Mowery has satisfied the compelling interest prong
because the document was not supposed to be “disseminated or reproduced[.]” (Doc. 115, ¶ 2).
The document is not directly related to Plaintiff’s underlying claim; it relates to a separate criminal
prosecution of Defendant Mowery that is not material here. Thus, there is little or no public interest
in accessing this information to better understand the present case. Finally, the request is narrowly
tailored because it seeks to seal only information which never should have been on the public
docket. Notably Defendant Mowery does not seek to seal any of the other ten exhibits to Plaintiff’s
Reply. (See Doc. 114-1–114-10). Accordingly, Defendant Mowery has satisfied the burden for
sealing.
The Motion to Strike (Doc. 115) is DENIED and the Clerk’s Office is DIRECTED to
PERMANENTLY SEAL Doc. 114-8.
II. NON-PARTIES’ MOTION TO STRIKE
Non-Parties move to strike statements in Plaintiff’s Reply in support of his Motion to
Compel (Doc. 114). (Doc. 117). They say that “Plaintiff’s Reply Brief is replete with unsupported
allegations that Non-Parties . . . have engaged in willful misconduct and have violated the
Plaintiff’s constitutional rights.” (Id. at 1). These allegations include that Abigail Savings
(“Savings”) engaged in prosecutorial misconduct, that City of Logan improperly withheld
documents, and that defense counsel is not telling the truth. (See Docs. 117, 129). Non-parties
move to strike these allegations from the record because they are “wholly unsupported” and “bear
no relation to the claims pending before [the] Court.” (Docs. 117 at 1, 129 at 2). Plaintiff argues
that this is an attempt to file a sur-reply without leave of Court. (Doc. 125). For the reasons that
follow, the Motion to Strike (Doc. 117) is GRANTED in part and DENIED in part.
“The [C]ourt may strike improvident filings based on its inherent authority to manage its
own docket.” Sultaana v. Jerman, No. 1:15-CV-382, 2019 WL 6343475, at *5 (N.D. Ohio Nov.
27, 2019) (citing ACLU of Ky. v. McCreary Cty., 607 F.3d 439, 451 (6th Cir. 2010)). Using this
inherent authority, the Court may “strike any filed paper which it determines to be abusive or
otherwise improper under the circumstances.” Dowell v. Bernhardt, No. 3:19-CV-00105, 2019
WL 6909461, at *6 (M.D. Tenn. Dec. 19, 2019) (emphasis in original) (citing In re Bear Stearns
Cos., Securities, Derivative and ERISA Litigation, 763 F. Supp. 2d 423, 581 (S.D. N.Y. 2011));
see also Bruce v. Great Britain, No. 3:17-CV-285, 2017 WL 11666484, at *2 (E.D. Tenn. Dec.
18, 2017) (“There is, however, a consensus that federal courts enjoy an inherit authority to strike
information in non-pleading filings.”); Wohadlo v. Tentcraft Inc., No. 1:18-CV-1442, 2021 WL
2383844, at *5 (W.D. Mich. Apr. 20, 2021), report and recommendation adopted, No. 1:18-CV-
1442, 2021 WL 1997020 (W.D. Mich. May 19, 2021) (collecting cases); Stephenson v. Fam. Sols.
of Ohio, Inc., 499 F. Supp. 3d 467, 475 (N.D. Ohio Nov. 4, 2020); Hlfip Holding, Inc. v. Rutherford
Cty., Tenn., No. 3:19-CV-00714, 2020 WL 6484254, at *2 (M.D. Tenn. Sept. 13, 2020). But
motions to strike “should be granted only when the material at issue has no possible relation to the
controversy.” Hlfip Holding, 2020 WL 6484254, at *2 (citing Byrd v. Wine, No. 3:16-cv-02738,
2017 WL 67993, at *2 (M.D. Tenn. Jan. 6, 2017)).
Regarding Savings, Plaintiff makes familiar assertions of prosecutorial misconduct and
unconstitutional actions. Plaintiff made similar allegations in his initial complaint, (Doc. 8,
¶¶ 103–135), which were screened by the Court (Docs. 7, 9), and have already been stricken from
the record (Doc. 39 at 2–3). These allegations against Savings are irrelevant to the current case,
which has been narrowed significantly. (Docs. 7, 9, 14). Plaintiff has been permitted to pursue
claims against Defendant Brooks for alleged unconstitutional collection of DNA, Defendant
Cluley for alleged misrepresentations in obtaining a search warrant, and Defendants Mowery,
Skinner, and Gabriel for alleged excessive force. (Docs. 7, 9). Nothing more. And Plaintiff is not
permitted to shoehorn in previously dismissed allegations against Savings under the guise of a
motion to compel argument. Plaintiff’s re-introduction of these allegations is irrelevant to his
motion to compel and irrelevant to his underlying complaint. Thus, the allegations in Plaintiff’s
Reply regarding Savings (Doc. 114 at 3–4) are STRICKEN from the record.
Regarding City of Logan and defense counsel, Plaintiff says that documents were
improperly withheld, his subpoena request was not fully responded to, and defense counsel was
not truthful. (Doc. 114 at 4–7). Non-Parties counter that this is false and unsupported. (Doc. 117
at 3–6). They say that City of Logan “did not withhold any documents” and “upon learning of
additional responsive documents, supplemented its public records response.” (Id. at 4). And they
assert that defense counsel signed the subpoenas, thus certifying that to the best of her knowledge
the information was complete and correct. (Id. at 7–8). Even though Plaintiff’s allegations may
not be true, his allegations do not rise to the level of abusive. And unlike his allegations against
Savings, Plaintiff’s argument here is at least somewhat related to what is at issue in this case and
Plaintiff’s Motion to Compel. (See generally Doc. 98).
Ultimately, the Court did not rely on Plaintiff’s assertions in resolving the Motion to
Compel (Doc. 98) because the Motion was denied based on timeliness (Doc. 126). So the City of
Logan and its counsel did not suffer an adverse consequence. And the power to strike should be
sparingly used by the Court. Hlfip Holding, 2020 WL 6484254, at *2 (quoting Blair v. Johnson
& Johnson, No. 3:19-cv-333-DJH-RSE, 2020 WL 1172715, at *4 (W.D. Ky. Mar. 11, 2020)
(quoting Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953))
(discussing the power to strike pleadings under Rule 12(f)). While the Court appreciates that Non-
Parties dispute Plaintiff’s characterization of the subpoena responses, the Court declines to strike
Plaintiff’s statements (Doc. 114 at 4–6).
In sum, the Motion to Strike (Doc. 117) is GRANTED IN PART AND DENIED IN
PART. Plaintiff’s statements regarding Savings (Doc. 114 at 3–4) are STRICKEN but Plaintiff’s
statements regarding City of Logan and defense counsel are not stricken.
IT IS SO ORDERED.
Date: September 12, 2022 s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE