Johnson v. Chambers-Smith

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

In this Section 1983 civil rights action, Plaintiff, an Ohio inmate proceeding

without the assistance of counsel, brings Eighth Amendment claims against employees of

the Madison Correctional Institute. This matter is before the Court to rule upon various

motions filed by Plaintiff and to address the failure of service on Defendant Cunningham.

I. PLAINTIFF’S MOTION FOR LEAVE TO FILE ADDITIONAL

INTERROGATORIES (DOC. NO. 55)

Federal Rule of Civil Procedure 33(a)(1) limits each party to serving no more than

25 written interrogatories, absent order of the Court. Fed. R. Civ. P. 33(a)(1). “A party

requesting leave to serve additional discovery requests must make a particularized

showing to establish a need for those additional requests.” Mall v. Merlo, No. 2:18-CV-

00430, 2019 WL 2521165, *3 (S.D. Ohio June 19, 2019) (Vascura, M.J.) (internal

citations omitted). In order to make such a showing, the requesting party must generally

“submit the proposed additional requests to the district court for review,” and his motion

must provide enough information for “the Court . . . to determine that the requested

information is necessary to prove Plaintiff's claims.” Pettus-Brown v. Phelps, No. 2:18-

CV-00082, 2018 WL 5960821, at *5-6 (S.D. Ohio Nov. 14, 2018) (Jolson, M.J.)

(collecting cases).

Plaintiff filed his first Motion for Additional Interrogatories on April 25, 2023.

(Doc. No. 27.) Plaintiff indicated that he had “previously submitted twenty-five (25) total

questions to each Defendant” and “request[ed] permission to submit to each Defendant

five (5) additional questions.” (Id. at PageID 219.) The Court denied the motion without

prejudice because Plaintiff had “offered no explanation” as to why the additional

interrogatories were necessary. (Doc No. 30, PageID 234.)

Plaintiff filed his second Motion for Leave to File Additional Interrogatories on

May 22, 2023. (Doc. No. 36.) Plaintiff again indicated that he had “previously submitted

twenty-five (25) total questions to each Defendant” and “request[ed] permission to

submit to each Defendant five (5) additional questions.” (Id. at PageID 267.) In addition,

Plaintiff stated that the additional interrogatories were made necessary by “Defendants

Westfall and Cann’s responses to Plaintiff’s earlier interrogatories and . . . additional

reports received by Plaintiff . . . which include[d] evidence contrary to one or more of

Westfall and Cann’s responses to those interrogatories.” (Id.) The Court recognized that

“[t]he discovery of new information of the kind Plaintiff describes may give rise to a

particularized need for additional discovery,” but once again denied Plaintiff’s motion

without prejudice due to Plaintiff’s failure to submit his proposed interrogatories or

otherwise provide the Court with sufficient information. (Doc. No. 43, PageID 310.)

Plaintiff has now filed a third Motion for Leave to File Additional Interrogatories.

(Doc. No. 55.) Unlike his earlier two motions, Plaintiff’s third motion states that

“Plaintiff has previously submitted less than twenty-five (25) questions to each

Defendant” and “requests permission to submit to each Defendant additional questions . .

. not to exceed twenty-five (25) in totem [sic].” (Id. at PageID 374 (emphasis added).)

Plaintiff also repeats verbatim his conclusory assertion that the additional interrogatories

are necessary due to unspecified new evidence “contrary to one or more of Westfall and

Cann’s responses to [prior] interrogatories.” (Id.) He also attached the proposed

interrogatories, which are numbered 17 through 25 for Defendant Westfall and 15

through 25 for Defendant Cann. (Doc. No. 55-1.)

What Plaintiff has not done, despite explicit instruction from the Court, is to

“demonstrate a particularized need for the specific additional interrogatories that he

proposes” or “explain why the benefits of allowing those additional interrogatories would

outweigh the concomitant burden on Defendants.” (Doc. No. 43, PageID 310.) Therefore,

the Court once again “lacks sufficient information to determine whether such

interrogatories are justified.” (Doc No. 30, PageID 234.)

Moreover, contrary to prior representations to the Court, Plaintiff now indicates

that he has not, in fact, already served twenty-five interrogatories each on Defendants

Westfall and Cann. If this is the case, then Plaintiff may serve his proposed additional

interrogatories as of right, without leave of the Court, rendering his motion moot.

Accordingly, the Court finds that Plaintiff’s Third Motion for Leave to File

Additional Interrogatories (Doc. No. 55) is not well-taken and therefore DENIES that

Motion.

II. PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC. NO. 58)

On September 21, 2023, Plaintiff filed a Motion to Appoint Counsel and to

Review Order and to Order Ref # for Kites. (“Motion to Appoint Counsel,” Doc. No. 58.)

Although somewhat obtuse, that Motion appears to seek several distinct forms of relief.

First, Plaintiff asks that the Court appoint counsel to represent him in this action.

(Id. at PageID 385.) In support of this request, Plaintiff states that he is in restrictive

housing and therefore has limited access to the prison law library. (Id.) In particular, he

asserts that he is being denied assistance by law library staff because they will not assist

him in typing his filings. (Id.) He therefore asks the Court to “do a thorough investigation

[into] appointing counsel for Plaintiff.” (Id. at PageID 387 (emphasis in original).)

However, as the Court has previously explained to Plaintiff (Doc. No. 3, PageID

76; Doc. No. 30, PageID 230-31), the appointment of counsel in civil cases is not a

constitutional right and is justified only by exceptional circumstances. Lavado v.

Keohane, 992 F.2d 601, 604-06 (6th Cir. 1993). See also Lanier v. Bryant, 332 F.3d 999,

1006 (6th Cir. 2003). Congress has not provided funds to compensate such attorneys and

few lawyers are willing and able to absorb the costs of representing civil litigants on a

voluntary basis. The Court makes every effort to appoint counsel in those cases that

proceed to trial and, in exceptional circumstances, will attempt to appoint counsel at an

earlier stage of the litigation. Despite Plaintiff’s difficulties with law library staff, no

exceptional circumstances appear here. Accordingly, to the extent that Plaintiff’s Motion

to Appoint Counsel (Doc. No, 58) asks the Court to appoint a lawyer to represent him in

this case, that motion is DENIED without prejudice. Once again, Plaintiff may renew his

request for counsel if this matter proceeds past motions to dismiss and motions for

summary judgment.

Plaintiff’s Motion also appears to ask the Court to order Defendants to produce

certain “kites” – prison-internal messages – for the Court’s review. (Doc. No. 58, PageID

386.) Plaintiff does not indicate why he believes the Court should conduct such a review

or what authority the Court has to issue such an order. Therefore, to the extent that

Plaintiff’s Motion to Appoint Counsel (Doc. No. 58) asks the Court to order Defendants

to produce kites for the Court’s review, that motion is DENIED. Plaintiff is directed to

follow the Federal Rules of Civil Procedure with respect to all discovery requests.

Finally, Plaintiff moves the Court to “review” its prior Order (Doc. No. 47), issued

July 5, 2023, wherein the Court ordered the United States Marshal to effect service upon

Defendant Cunningham. (Doc. No. 58, PageID 386-87.) Plaintiff notes that significant

time has now passed since the Court issued that Order but Defendant Cunningham

remains unserved. (Id.) Thus, Plaintiff asks the Court to “review[] and to take . . . steps to

see what the problem is . . .” (Id.) The Court finds this request to be well-taken.

Accordingly, to the extent that Plaintiff’s Motion to Appoint Counsel (Doc. No. 58) asks

the Court to address the failure of service on Defendant Cunningham, that motion is

GRANTED. The Court addresses that issue below.

III. PLAINTIFF’S MOTION FOR RELEASE (DOC. NO. 60)

On November 17, 2023, Plaintiff filed a document captioned “Motion for

Consideration to See if You Have the Authority to Have Me Released to the United

State[s] Service Military to Help and to Support Our Troops and to Support Israel.”

(“Motion for Release,” Doc. No. 60 (capitalization adjusted).) Plaintiff indicates that he

wishes to join the United States Armed Forces to assist in the current conflict in the

Middle East and asks to be released from prison for that purpose. (Id. at PageID 395.)

As an initial matter, Plaintiff’s Motion for Release is not well-taken because it has

no connection to the Eighth Amendment claims pled in this lawsuit. More fundamentally,

this Court simply has no power to order the relief that Plaintiff seeks. Thus, while the

Court appreciates Plaintiff’s desire to serve his country, Plaintiff’s Motion for Release

(Doc. No. 60) is DENIED.

IV. FAILURE OF SERVICE ON DEFENDANT CUNNINGHAM

On October 12, 2022, the Court ordered the United States Marshal to serve copies

of the complaint and summons upon all Defendants. (Doc. No. 6, PageID 117.) The

Marshals Service promptly sent those documents via certified U.S. Mail to the Madison

Correctional Institute, where they were accepted by an individual signing simply

“MaCI.” (Doc. No. 8.) However, Madison Correctional Institute Warden Leon Hill

subsequently advised the Court that “[c]ertified mail addressed to Ms. Cunningham,

Michael Troch, Mr. Stout, and Malcolm Heard were [sic] accepted in error by mailroom

staff. The individuals that are addressed on the envelopes do not work at Madison

Correctional Institution.” (Doc. No. 9.)

On April 28, 2023, Plaintiff filed a Motion for Extension of Time to Serve

Defendants (Doc. No. 29) in which he asserted that he “ha[d] only just” received a copy

of Warden Hill’s letter. (Id. at PageID 225.) Plaintiff therefore asked the Court to extend

the time for service of the complaint and summons upon the unserved Defendants

pursuant to Federal Rule of Civil Procedure 4(m).

The Court granted Plaintiff’s Motion for Extension of Time but found that a mere

extension of time, without more, would be futile and potentially detrimental to the

interests of the parties. (Doc. No. 30, PageID 9.) Accordingly, the Court ordered the Ohio

Attorney General to file a notice stating whether Defendants Heard, Troch, Cunningham,

and Stout remained employed by the State of Ohio and, if so, the addresses at which they

could be served. (Id. at PageID 10.) If any of the Defendants were no longer employed by

the State of Ohio, the Court ordered the Ohio Attorney General to provide those

Defendants’ last known home addresses in camera. (Id.)

The Ohio Attorney General confirmed that Defendants Heard, Stout, and Troesch1

were still employed by the State of Ohio, and provided addresses at which they could be

served. (Doc. No. 33, PageID 258.) Defendants Heard, Stout, and Troesch have since

been served without further incident. Because Defendant Cunningham is no longer

employed by the State of Ohio, the Attorney General submitted her last known address in

camera, pursuant to the Court’s Order. (Doc. No. 45 (sealed).)

1 The Attorney General suggested (Doc. No. 33, PageID 258), and Plaintiff later confirmed (Doc. No. 40, PageID

286), that Plaintiff had intended to name Brian Troesch rather than Michael Troch.

The Court subsequently ordered the United States Marshals Service to serve the

Complaint and summons upon Defendant Cunningham at the address provided by the

Ohio Attorney General. (Doc. No. 47.) On September 11, 2023, the summons was

returned unexecuted. (Doc. No. 57 (sealed).)

Federal Rule of Civil Procedure 4(m) provides that “[i]f a defendant is not served

[with a complaint and summons] within 90 days after the complaint is filed, the court . . .

must dismiss the action without prejudice against that defendant or order that service be

made within a specified time.” Generally, “the plaintiff bears the burden of perfecting

service and proving that proper service was made.” Tepe v. Whirlpool Corp., 2023 WL

6130297, at *2 (6th Cir. 2023). But where, as here, a plaintiff is proceeding in forma

pauperis, and the court orders service by the United States Marshal, the plaintiff is

“reliev[ed] . . . of the burden to serve process” and need only take “reasonable steps” to

identify the defendants. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996).

The Court has previously found that Plaintiff has taken reasonable steps to identify

Defendant Cunningham. (Doc. No. 30, PageID 236.) The burden of effecting service thus

shifted to the Marshals Service, and the continued failure of service of process on

Defendant Cunningham is “through no fault of Plaintiff,” Blair v. Shievelhud, No. 22-

05118, 2022 WL 18861790, at *5 (6th Cir. Dec. 5, 2022). Accordingly, there is

“automatically ‘good cause’” to once again “extend time for service under Rule 4(m).”

Graham v. Satkowski, 51 F.3d 710, 713 (7th Cir. 1995) (cited with approval by Byrd, 94

F.3d at 219)).

However, while Plaintiff is entitled to rely on the Marshals Service to effectuate

service, certain limits apply. The Marshal is not required to “be a private investigator for

[Plaintiff] or . . . use software available only to law enforcement officers to discover

addresses for defendants whose whereabouts are not discoverable through public

records.” Johnson v. Herren, No. 2:13-CV-00583, 2013 WL 6410447, at *3 (S.D. Ohio

Dec. 9, 2013) (McCann King, M.J.) (internal citation omitted).

In nearly identical circumstances involving failure of service by certified mail

upon a former employee of the Madison Correctional Institute, this Court held that “the

Marshal’s [sic] Service discharges its duty to take ‘reasonable efforts’ to try to effect

service of process by conducting an internet search and contacting a defendant's former

employer, even if that search is ultimately unsuccessful.” Johnson v. Herren, 2013 WL

6410447, at *3. In that case, the Court ordered the Marshals Service to employ such

means to locate and serve a defendant but also cautioned the plaintiff that, if these efforts

were unsuccessful, the Court would subsequently issue an order directing the plaintiff to

show caused why his claims against the unserved defendant should not be dismissed. Id.

See also, e.g., Richardson v. Johnson, 598 F.3d 734 (11th Cir. 2010) (vacating Rule 4(m)

dismissal of pro se claim and remanding “for a determination whether [defendant] can be

located with reasonable effort. If so, [he] must be served; otherwise, the district court

properly dismissed [plaintiff’s] claim”). The Court will adopt an identical approach here.

Accordingly, the Clerk is DIRECTED to provide the United States Marshals

Service a summons and copy of the Complaint (Doc. No. 5) for service on Defendant

Cunningham. The United States Marshals Service is DIRECTED to take reasonable

steps to locate and serve Defendant Cunningham within the next FORTY-FIVE (45)

DAYS. The Marshals Service may comply with the terms of this Order by conducting a

public internet search for Defendant Cunningham’s current address and making

reasonable inquiry at Defendant Cunningham’s former place of employment, the

Madison Correctional Institute.

If the Marshals Service perfects service upon Defendant Cunningham, it shall file

proof of service UNDER SEAL. If, despite reasonable effort as described herein, the

Marshals Service is unable to perfect service, it shall file the Process Receipt and Return,

Form USM-285, and describe in the “Remarks” section of that document the steps that

were taken to locate and effect service on Defendant Cunningham.

Plaintiff is CAUTIONED that if the Marshals Service is unable, despite

reasonable efforts, to locate and serve Defendant Cunningham, then the Court will issue a

an order requiring Plaintiff to show cause why his claims against Defendant Cunningham

should not be dismissed without prejudice for failure of service pursuant to Federal Rule

of Civil Procedure 4(m).

V. MOTION FOR PRO SE MEDIATION PROGRAM (DOC. NO. 46)

On July 5, 2023, Plaintiff filed a Motion for Pro Se Mediation Program (Doc. No.

46). Because one Defendant remains unserved, and has not appeared in this lawsuit, this

Motion is DENIED WITHOUT PREJUDICE. Plaintiff is free to refile this Motion

once Defendant Cunningham has been served and has filed an appearance in this lawsuit

or, alternatively, once Plaintiff’s claims against Defendant Cunningham have been

dismissed due to a failure of service.

VI. CONCLUSION

In sum, for the foregoing reasons, the Court ORDERS as follows:

1. Plaintiff’s Motion for Leave to File Additional Interrogatories (Doc. No. 55) is

DENIED.

2. Plaintiff’s Motion to Appoint Counsel (Doc. No. 58) is GRANTED IN PART

and DENIED IN PART:

a. Plaintiff’s request for court-appointed counsel is DENIED WITHOUT

PREJUDICE;

b. Plaintiff’s request that the Court order Defendants to produce certain kites

for the Court’s review is DENIED; and

c. Plaintiff’s request that the Court address the continued failure of service on

Defendant Cunningham is GRANTED.

3. Plaintiff’s Motion for Release (Doc. No. 60) is DENIED.

4. The Clerk of Court is DIRECTED to provide the United States Marshals Service

a summons and copy of the Complaint (Doc. No. 5) for service on Defendant

Cunningham.

5. The United States Marshals Service is DIRECTED to take reasonable steps to

locate and serve Defendant Cunningham within the next FORTY-FIVE (45)

DAYS. The Marshals Service may comply with the terms of this Order by

conducting a public internet search for Defendant Cunningham’s current address

and making reasonable inquiry at Defendant Cunningham’s former place of

employment, the Madison Correctional Institute.

a. If the Marshals Service perfects service upon Defendant Cunningham, it

shall file proof of service UNDER SEAL.

b. If, despite reasonable effort, the Marshals Service is unable to perfect

service, it shall file the Process Receipt and Return, Form USM-285, and

describe in the “Remarks” section of that document the steps taken to locate

and effectuate service on Defendant Cunningham.

6. Plaintiff’s Motion for Pro Se Mediation Program (Doc. No. 46) is DENIED

WITHOUT PREJUDICE.

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).