The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MILOUS BROWN,
Plaintiff, : Case No. 2:22-cv-2469
District Judge Michael H. Watson
- vs - Magistrate Judge Michael R. Merz
ANNETTE CHAMBERS-SMITH, et al.,
Defendants. :
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This case under 42 U.S.C. § 1983 is before the Court on Plaintiff’s Objections (ECF No.
66) to the Magistrate Judge’s Report and Recommendations recommending the Amended
Complaint be dismissed with prejudice on Defendants’ Motion to that effect (the “Report,” ECF
No. 65). District Judge Watson has recommitted the case to the undersigned for consideration of
the Objections (ECF No. 67).
The Report noted that Plaintiff had never filed an opposition to the Defendants’ Motion to
Dismiss despite having requested and received an extension of time to do so (Report, ECF No. 65,
PageID 677). The Report also noted that the undersigned had denied Plaintiff’s motion for leave
to file a second amended complaint and that Plaintiff had never objected to that Order. Id. The
Report incorporated that Order by reference and recommended dismissal. Id. at PageID 678.
Plaintiff now objects that he did oppose the Motion to Dismiss, but his opposition did not
reach the Court because of “one of the following: lost in the mail, arbitrarily delayed by prison
mailroom staff, or simply destroyed by unknown parties before it left the prison.” (Objections,
ECF No. 66, PageID 679).
Plaintiff also claims he sent his opposition with a Motion to Expand the Record. Id. The
Magistrate Judge denied the Motion to Expand the Record for the reasons given in the Order to
that effect (ECF No. 64). One of those reasons was that Plaintiff attempted to take advantage of
the prison mailbox rule1 without making a declaration of the date of mailing under penalty of
perjury. Plaintiff objects that “[a]dditionally anything submitted to a court is submitted "under
penalty of perjury" even if it was not spelled out as such (Objections, ECF No. 66, PageID 679-
80). Plaintiff cites no legal authority for that proposition and none is known to the undersigned.
Plaintiff also claims he is entitled to that construction of his filing under the principle that
pro se filings are to be liberally construed. Id. Again he cites no authority for that proposition and
none is known to the undersigned. If it were so, there would be little reasons to require, for
example, that habeas corpus petitions be sworn to. See Habeas Rule 2(c)(5) specifically imposing
a requirement to that effect. In general, liberal construction of a document implies giving it a
reading other than the strict technical reading courts give to documents prepared and filed by
attorneys. A pro se litigant is entitled to liberal construction of his or her pleadings. Haines v.
Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). However,
"[w]here, for example, a pro se litigant fails to comply with an easily understood court-imposed
deadline, there is no basis for treating that party more generously than a represented
1 . Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002).
litigant." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)(Norris, J.), citing Jourdan v. Jabe,
951 F.2d 108, 110 (6th Cir. 1991).
The substance of Plaintiff’s instant Objections seems largely directed at the Magistrate
Judge’s Decision and Order of August 9, 2023 (ECF No. 58), although Plaintiff makes no record
reference citations for the quotations he offers. Upon re-examination of the proposed Second
Amended Complaint, the Magistrate Judge adheres to the observations made in denying leave to
file that document, to wit, (1) it does not plead particular instances of interference with access to
the courts in sufficient detail to satisfy the pleading requirements of Bell Atlantic Corp. v.
Twombly, 550 U.S.544, 555 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); (2) it fails to
sue Director Chambers Smith in her official capacity despite being intended to change policy and
her amenability to suit in that capacity under Ex parte Young, 209 U.S. 123 (1908); (3) it fails to
plead a claim for relief under the Postal Service Clause. It attempts to build on the one example
the undersigned previously recognized as stating a claim (failure of delivery of an R&R), but
denies the damage from that example has been cured by re-service of the R&R, stating Plaintiff
has suffered annoyance and has had to pay extra postage.
Plaintiff acknowledges the Court obtained pro bono counsel for him, but also
acknowledges counsel felt compelled to withdraw when Plaintiff insisted on including “additional
issues” which Plaintiff asserts were justified in his mind given his own extensive experience
litigating cases. Plaintiff is of course entitled to proceed pro se, but he must meet the pleading
standards imposed by the Supreme Court on all federal litigants.
ODRC employees sued in the individual capacities are entitled to know what they allegedly
did when and how that allegedly interfered with Plaintiff’s constitutional rights. The Amended
Complaint does not give them that notice and the proposed Second Amended Complaint did not
cure that deficiency. Most of the proposed Second Amended Complaint details claims about
policy which, in theory at least is subject to cure by injunctive relief. But Plaintiff also wants
damages and must therefore plead with sufficient detail how, when, and by whom he was damaged.
He has not done so.
Conclusion
The Magistrate Judge again recommends the case be dismissed with prejudice. Because
reasonable jurists would not disagree with this conclusion, it is also recommended that Plaintiff be
denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal
would be objectively frivolous and should not be permitted to proceed in forma pauperis.
April 26, 2024.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. 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. #
s/ Michael R. Merz
United States Magistrate Judge