The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT JOHNSON, : Case No. 2:22-cv-02455
:
Plaintiff, : District Judge Sarah D. Morrison
: Magistrate Judge Caroline H. Gentry
vs. :
:
ANNETTE CHAMBERS-SMITH, et al.,
:
Defendants. :
DECISION AND ORDER
This is a civil rights action under 42 U.S.C. § 1983. Plaintiff, an Ohio inmate
proceeding in forma pauperis and without the assistance of counsel, brings Eighth
Amendment claims against employees of the Madison Correctional Institute. The
following filings have been referred to the undersigned Magistrate Judge and are
addressed below: Plaintiff’s Motion for Leave to File Additional Interrogatories (“Motion
for Additional Interrogatories”) (ECF No. 36); Plaintiff’s Motion to Compel Defendants
to Fulfill Plaintiff’s Request for Discovery (“Motion to Compel”) (ECF No. 37);
Plaintiff’s Motion to Take Judicial Notice Pursuant to Fed. R. Evid. 201 (“Motion for
Judicial Notice”) (ECF No. 38); and Plaintiff’s letter to the Court (ECF No. 39).
I. Plaintiff’s Motion for Additional Interrogatories (ECF No. 36)
Plaintiff previously moved for leave to serve additional interrogatories upon
Defendants Westfall and Cann. (ECF No. 27.) Because Plaintiff failed to demonstrate a
particularized need for additional interrogatories, the Court denied that motion without
prejudice to renewal. (ECF No. 30, PageID 234–35.)
Plaintiff has now filed a second Motion for Additional Interrogatories, which, by
way of particularized need, states that
[t]here is a need for additional interrogatories for the purpose of obtaining
additional testimonial evidence relevant to Plaintiff’s civil complaint. The
need was created by Defendants Westfall and Cann’s responses to
Plaintiff’s earlier interrogatories and from additional reports received by
Plaintiff since the filing of the first twenty-five (25) interrogatories, which
include evidence contrary to one or more of Westfall and Cann’s responses
to those interrogatories.
(ECF No. 36, PageID 267.)
The discovery of new information of the kind Plaintiff describes may give rise to a
particularized need for additional discovery. See, e.g., Heins v. Commerce & Indus. Ins.
Co., 3:17-CV-00110, 2018 WL 4963570, at *10-11 (S.D. Ohio 2018) (Ovington, M.J.);
Shank v. Mitchell, 2:00-CV-00017, 2011 WL 2712593 (S.D. Ohio 2011) (Marbley, D.J.).
However, the requesting party generally must “submit the proposed additional requests to
the district court for review.” Pettus-Brown v. Phelps, No. 2:18-CV-00082, 2018 WL
5960821, at *13 (S.D. Ohio 2018) (Jolson, M.J.) (collecting cases). In the instant case,
Plaintiff has not submitted his proposed additional interrogatories to the Court. Nor does
his motion provide enough information for “the Court . . . to determine that the requested
information is necessary to prove Plaintiff's claims.” Id. at *14 (internal citation omitted).
See also Martin v. Posey, 2:15-CV-02294, 2017 WL 412876, at *10 (S.D. Ohio) (Kemp,
M.J.) (“While pro se pleadings are construed more liberally, the fact that Plaintiff
proceeds pro se does not entitle him to ignore the procedural rules for conducting
discovery.” (internal citation omitted)).
Accordingly, the Court again DENIES Plaintiff’s Motion for Leave to File
Additional Interrogatories (ECF No. 36) WITHOUT PREJUDICE. Plaintiff may renew
this motion if he can demonstrate a particularized need for the specific additional
interrogatories that he proposes (which should be attached to the motion) and if he can
explain why the benefits of allowing those additional interrogatories would outweigh the
concomitant burden on Defendants. See Mall v. Merlo, No. 2:18-CV-00430, 2019 WL
2521165, *3 (S.D. Ohio 2019) (Vascura, M.J.) (citing Pettus-Brown, 2018 WL 5960821).
II. Plaintiff’s Motion to Compel (ECF No. 37)
On April 25, 2023, Plaintiff filed a Motion to Compel Defendants to Fulfill
Plaintiff’s Request for Discovery (ECF No. 26). The Court denied that motion without
prejudice on the ground that Plaintiff had failed to include a good-faith certification as
required by Fed. R. Civ. P. 37(a)(1). (ECF No. 30, PageID 233.)
Plaintiff has now renewed his motion to compel, asking that the Court order
Defendants to comply with certain requests for documents. (ECF No. 37, PageID 270.)
Plaintiff’s renewed motion properly includes a Certificate of Good Faith that certifies
under penalty of perjury that Plaintiff “ha[s] made every attempt [he] can possibly make
to contact the Defendants concerning the requested Discovery.” (Id. at PageID 272.) The
Court finds that certification satisfies the requirements of Rule 37(a)(1) and thus that
Plaintiff’s Motion to Compel (ECF No. 37) is now properly before the Court.
Defendants have not responded to Plaintiff’s Motion to Compel, see S. D. Ohio
Civ. R. 7.2(a)(2), which the Court therefore construes as unopposed. See, e.g., Kendle v.
Whig Enters., LLC, No. 2:15-CV-01295, 2016 WL 898569, at *4 (S.D. Ohio 2016)
(McCann King, M.J.) (“Ordinarily, an unopposed motion to compel would be granted.”).
Furthermore, the Court has reviewed the requests with which Plaintiff seeks to compel
compliance, and they are not patently improper. See Carfagno v. Jackson National Life
Ins. Co., 2001 WL 34059032, at *1 (W.D. Mich. 2001); Shenker v. Sportelli, 83 F.R.D.
365, 367 (E.D. Penn. 1979).
Accordingly, the Court GRANTS Plaintiff’s Motion to Compel (ECF No. 37).
Defendants are ORDERED to provide Plaintiff with all of the documents identified in
the Motion to Compel no later than thirty (30) days from the date of this Order.
III. Plaintiff’s Motion for Judicial Notice (ECF No. 38)
When Plaintiff commenced this action, he named “Michael Troch” as a defendant.
(Complaint, ECF No. 1-1, PageID 13.) Although the Madison Correctional Institute
initially accepted service on Troch’s behalf (ECF No. 8), it later came to the attention of
Plaintiff and the Court that Troch had not been served. (See ECF No. 30, PageID 235.)
The Court therefore ordered the Ohio Attorney General, in its capacity as defense
counsel, to provide an address at which Troch1 could be served. (Id. at PageID 238.)
The Ohio Attorney General complied with that Order but noted that the Ohio
Department of Rehabilitation and Correction had no record of an employee by the name
1 That Order also addressed several other unserved defendants not relevant here.
of Michael Troch. (ECF No. 33, PageID 258.) Instead, the Attorney General suggested
that Plaintiff had intended to name Lieutenant Brian Troesch as a defendant. (ECF No.
33, PageID 258.) Plaintiff’s Motion for Judicial Notice confirms this fact and requests
that “the Court take Judicial Notice of this fact and ensure that Defendant Troesch is
served under the proper name.” (ECF No. 38, PageID 274.)
Significantly, Plaintiff also filed an amended complaint (ECF No. 40) that names
Lieutenant Troesch as a Defendant (id. at PageID 286), and the Court ordered the eU.S.
Marshal to serve the amended complaint (ECF No. 41, PageID 297–98). Plaintiff’s
Motion for Judicial Notice (ECF No. 38) is therefore moot.
The Court notes that this is the second time Plaintiff has filed a motion asking the
Court to take judicial notice. (See ECF No. 34.) In denying Plaintiff’s first such motion,
the Court advised Plaintiff that Federal Rule of Evidence 201 is just that – a rule of
evidence. “It is not a vehicle to correct . . . errors in pleadings.” (ECF No. 35, PageID
264–65.) The Sixth Circuit’s discussion of judicial notice in Abu-Joudeh v. Schneider is
instructive on this point:
While parties must normally submit admissible evidence to support the
factual allegations in their case, sometimes a fact is so obvious that federal
courts will allow a shortcut around these procedures. This shortcut—
judicial notice—is governed by Federal Rule of Evidence 201, which
allows courts to “judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial
jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). In
a civil case like this one, when a court takes judicial notice, the noticed fact
is presented to the jury, which is required to accept it ‘as conclusive.’
954 F.3d 842, 848 (6th Cir. 2020) (internal citations omitted).
As with his first motion, Plaintiff’s second Motion for Judicial Notice (ECF No.
38) does not ask the Court to take judicial notice of a fact. Rather, it asks the Court to
substantively alter a pleading. As the Court previously informed Plaintiff, an alteration of
that kind must be accomplished by requesting leave to file an amended complaint, not by
requesting that the Court take judicial notice.
For these reasons, the Court DENIES Plaintiff’s Motion to Take Judicial Notice
Pursuant to Fed. R. Evid. 201 (ECF No. 38).
IV. Plaintiff’s Letter to the Court (ECF No. 39)
On May 30, 2023, the Court received an untitled document in the form of a letter
from Plaintiff addressed to the undersigned Magistrate Judge. (ECF No. 39). In the letter,
Plaintiff alleged that he is being “harassed and threatened” by the staff of the Trumbull
Correctional Institution, at which he is currently incarcerated, in retaliation for filing the
instant action. (Id. at PageID 282.) For example, Plaintiff claims that “a Lt. Brock shook
down [his] cell and destroyed some of the legal documents pertaining to [Plaintiff’s]
case” and that “Unit Manager Smallwood and the Investigator [at the Trumbull
Correctional Institution] informed [Plaintiff] that if [he] continue[s] pursuing a civil
lawsuit against Defendants Heard and Westfall[,] they will make sure that [he] do[es] not
make it to the streets next year.” (Id.)
It is well-established that “filings by pro se litigants are liberally construed and
must be held to less stringent standards than formal pleadings drafted by lawyers.”
Waddell v. Greeneville Police Dep’t, 2022 WL 19077362, at *1, n. 1 (E.D. Tenn. 2022)
(internal punctuation omitted) (citing to Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
This relaxed pleading standard does not require a court to “conjure allegations on a
litigant’s behalf,” Erwin v. Edwards, 22 F. App’x 579, 580 (6th Cir. 2001) (internal
citations omitted), or “construct full-blown claims from sentence fragments,” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). It does, however, mandate “active
interpretation in some cases [in order] to construe a pro se petition to encompass any
allegation stating federal relief.” Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985).
In the instant case, construing Plaintiff’s letter liberally, the Court finds that it
plausibly alleges a claim for retaliation in violation of the First Amendment to the
Constitution:
To state a claim for retaliation under the First Amendment, a prisoner must
allege the following: (1) that he engaged in protected conduct; (2) that an
adverse action was taken against the plaintiff that would deter a person of
ordinary firmness from continuing to engage in that conduct; and (3) that
there is a causal connection between elements one and two – that is, the
adverse action was motivated at least in part by the plaintiff's protected
conduct.
Dykes v. Marshall, 2019 U.S. App. LEXIS 30498, at *10 (6th Cir. 2019). Plaintiff asserts
that he was engaged in the protected conduct2 of prosecuting the instant case and that he
was subjected to threats and harassment intended to deter him from continuing that
prosecution. (ECF No. 39, PageID 282.) Therefore, “however inartfully pleaded,” e.g.,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), Plaintiff’s letter sets forth a colorable First
Amendment claim under 42 U.S.C. § 1983. See Knapp v. City of Columbus, 93 F. App’x
2 Because “an inmate has an undisputed First Amendment right to file grievances against prison officials on his own
behalf,” a prisoner’s “pursuit of legal claims” is protected conduct so long as those claims are not frivolous. Bell v.
Johnson, 3087 F.3d 594, 607 (6th Cir. 2002) (internal citations omitted). This Court has previously held that
Plaintiff’s Eighth Amendment claims against the remaining defendants are not frivolous. (ECF No. 10 (adopting
Report and Recommendations, ECF No. 6).)
718, 720 (6th Cir. 2004) (“The failure in a complaint to cite a statute, or to cite the correct
one, in no way affects the merits of the claim. Factual allegations alone are what matters.
The court's duty is to look to the facts and grant the necessary relief as justice requires –
not to demand that certain citations or phrases are used.” (internal citation omitted));
Hodge v. Terminix Global Holdings, Inc., 2023 WL 1120879, at *4 (M.D. Tenn. 2023)
(noting in pro se case that “[t]he Federal Rules of Civil Procedure do not require
plaintiffs to pin their claims for relief to a precise statute or legal theory”).
Where, as here, a pro se party sets forth a viable request for relief but fails to
correctly caption that filing as a complaint, “the district court may[,] on its own
initiative[,] re-characterize a pro se pleading.” Young Bok Song v. Gipson, 423 F. App’x
506, 509 (6th Cir. 2011). Thus, in the instant case, “for efficiency’s sake and out of a
sense of fairness [the] pro se petitioner[],” U.S. v. McDonald, 326 F. App’x 880, 882 (6th
Cir. 2009) (italics added and internal citation omitted), the Court will re-characterize
Plaintiff’s letter (ECF No. 39) as a motion for leave to file a supplemental complaint
pursuant to Fed. R. Civ. P. 15(d).
Rule 15(d) provides in relevant part that, “[o]n motion and reasonable notice,
the court may, on just terms, permit a party to serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the date of the pleading to be
supplemented.” Here, Plaintiff’s letter does not specify the dates on which the events
giving rise to his retaliation claims allegedly occurred. However, in order to be retaliatory
as Plaintiff alleges, those events would necessarily have had to “happen[] after the date
of” Plaintiff’s original complaint. Furthermore, Plaintiff’s letter was docketed on June 1 –
more than three weeks prior to the date of the instant Order. The Court finds that this has
afforded Defendants reasonable notice of Plaintiff’s supplemental claims. Compare Fed.
R. Civ. P. 12(a)(1)(C) (twenty-one days for answers to complaints); S.D. Ohio Civ. R.
7.2(a)(2) (twenty-one days for responses in opposition to motions).
Accordingly, the Court RECHARACTERIZES Plaintiff’s letter to the Court
(ECF No. 39) as a Motion for Leave to Serve a Supplemental Complaint pursuant to Fed.
R. Civ. P. 15(d) and, so recharacterized, GRANTS that motion. The Court DIRECTS
the Clerk to re-docket Plaintiff’s letter (ECF No. 39) as a Supplemental Complaint.
The Court notes that Plaintiff’s letter does not fully set forth the identities and
addresses of the intended defendants. Therefore, the Court ORDERS Plaintiff, within
thirty (30) days of the date of this Order, to provide the Court with the names and
addresses of all defendants against whom he is asserting a claim for retaliation in his
Supplemental Complaint and to submit completed summons and Marshal forms for those
defendants. The Court DIRECTS the Clerk to provide Plaintiff with no fewer than five
(5) blank summons and five (5) blank United States Marshal forms. Upon receipt of that
information, the Court will order service of the Supplemental Complaint.
V. CONCLUSION
In sum, for the foregoing reasons, the Court ORDERS as follows:
1. Plaintiff’s Motion for Leave to File Additional Interrogatories (ECF No. 36) is
DENIED WITHOUT PREJUDICE.
2. Plaintiff’s Motion to Compel Defendants to Fulfill Plaintiff’s Request for
Discovery (ECF No. 37) is GRANTED. Defendants are ORDERED to provide
Plaintiff with all of the documents identified in the Motion to Compel (ECF No.
37) within thirty (30) days of the date of this Order.
3. Plaintiff’s Motion to Take Judicial Notice Pursuant to Fed. R. Evid. 201 (ECF No.
38) is DENIED.
4. With respect to Plaintiff’s letter to the Court (ECF No. 39):
a. The Court RECHARACTERIZES Plaintiff’s letter as a Motion for Leave
to File a Supplemental Complaint pursuant to Fed. R. Civ. P. 15(d) and, so
recharacterized, GRANTS that motion. The Clerk is DIRECTED to re-
docket that filing as Plaintiff’s Supplemental Complaint.
b. The Clerk is further DIRECTED to provide Plaintiff with no fewer than
five (5) blank summons and five (5) blank United States Marshal forms.
c. Within thirty (30) days of the date of this Order, Plaintiff is ORDERED to
provide the Court with the names and addresses of all individuals against
whom he is asserting his supplemental claims and to submit completed
summons and Marshal forms for those individuals. The Court will then
order service by separate entry.
IT IS SO ORDERED.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
Procedure on Objections
Pursuant to Fed. R. Civ. P. 72(a), any party may serve and file specific, written
objections within FOURTEEN days after being served with this Order. Pursuant to Fed.
R. Civ. P. 6(d), this period is extended to SEVENTEEN days if this Order is being
served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F).
Such objections shall specify the portions of the Order objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Order is based
in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof.
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,
949-50 (6th Cir. 1981).