Pough v. DeWine

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LANCE POUGH,

Plaintiff, Case No. 2:21-cv-880

Vv. District Judge Michael H. Watson

MIKE DEWINE, et al., Magistrate Judge Caroline H.

Defendants. Gentry

OPINION AND ORDER

This civil rights matter, pending since March 2021, is before the Court to

consider several of the parties’ filings:

1. Plaintiffs Motion for Leave to File Third Proposed Amended

Complaint Instanter, ECF No. 168,

2. Plaintiffs Motion for Notice, ECF No. 176,

3. Plaintiffs Motion to Withdraw Motion in Limine, ECF No. 178,

4. Plaintiff's Reasons for Filing the Third Proposed Amended Complaint

Late in the Litigation, ECF No. 179,

5. Plaintiffs Motion to Withdraw Mixed Motives Analysis, ECF No. 180,

6. Defendants’ Motion to Stay Discovery, ECF No. 182,

7. Plaintiff's Motion for Leave to File Signed Complaint, ECF No. 183,

8. Plaintiffs Motion for Leave to File Addendum, ECF No. 184,

9. Plaintiffs Motion in Limine, ECF No. 185,

10. Plaintiff's Motion to Withdraw Motion to Withdraw, ECF No. 191, and

11. Plaintiff's Fifth Motion to Compel, ECF No. 194.

The Court addresses these matters below. Defendants’ pending Motion for

Summary Judgment, ECF No. 170, will be resolved separately.

I. STANDARD OF REVIEW

Because Plaintiff is proceeding in this case without the assistance of

counsel, the Court will construe his filings liberally. See Lamb v. Howe, 677 F.

App’x 204, 207 (6th Cir. 2017). The Court recognizes that “pro se filings should

be held to less stringent standards than formal pleadings drafted by lawyers.”

SEC v. Merklinger, 489 F. App’x 937, 940 (6th Cir. 2012) (internal citation

omitted).

However, “[t]he leniency granted to pro se petitioners . . . is not

boundless.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). The Supreme

Court has “never suggested that procedural rules in ordinary civil litigation should

be interpreted so as to excuse mistakes by those who proceed without counsel.”

McNeil v. United States, 508 U.S. 106, 113 (1993). “A plaintiffs status as a pro

sé litigant . . . does not discharge him from adhering to the requirements of the

Federal Rules of Civil Procedure nor the Local Rules for this District.”. Benzaoual

v. Ohiohealth Corp., No. 2:19-cv-3366, 2021 WL 2712174, at * 3-6 (S.D. Ohio

July 1, 2021) (internal citation omitted); see also Moore v. Westcomb, No. 2:20-

cv-179, 2021 WL 1851130, at *1 (W.D. Mich. May 10, 2021) (quoting /n re

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Sharwell, 129 F.3d 1265 (6th Cir. 1997) (table)) (“While [the party] was

proceeding pro se and may not have fully understood the rules of procedure, he

was still required to comply with the rules; his pro se status does not exempt him

from compliance.”). This is particularly true with respect to “straightforward

procedural requirements that a layperson can comprehend as easily as a

lawyer.” Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991).

The Court applies these standards to each of Plaintiff's filings.

li. ANALYSIS

A. Plaintiff's Motion for Leave to File Third Proposed Amended Complaint

Instanter, ECF No. 168, Reasons for Filing the Third Proposed Amended

Complaint Late in the Litigation, ECF No. 179, Motion for Leave to File

Signed Complaint, ECF No. 183, and Motion for Leave to File Addendum,

ECF No. 184

In February 2024, approximately three years into this litigation, Plaintiff

filed a Motion for Leave to File Third Proposed Amended Complaint Instanter.

ECF No. 168. About a month later and without leave, Plaintiff filed a document

entitled Plaintiffs Reasons for Filing the Third Proposed Amended Complaint

Late in the Litigation. ECF No. 179. Defendants responded, opposing Plaintiff's

request to file a new complaint. ECF No. 181.

Plaintiff then filed a Motion for Leave to File the “Signed” Proposed Third

Amended Complaint Instanter and a Motion for Leave to File the Instant

Addendum to His Motion for Leave to File the Third Proposed Amended

Complaint Instanter. ECF Nos. 183, 184. Finally, Plaintiff filed a Motion in

Case No. 2:21-cv-880 Page 3 of 24

Response/in Reply to the Defendants[’] Motion in Opposition to Plaintiff's Motion

for Leave to File the Third Amended Complaint. ECF No. 195.

Plaintiffs Motion for Leave to File Third Proposed Amended Complaint

Instanter, ECF No. 168, and Motion for Leave to File the “Signed” Proposed

Third Amended Complaint Instanter, ECF No. 183, seek essentially the same

relief. In both, Plaintiff seeks permission to file what appears to be the same

document. ECF No. 168-1; ECF No. 183-1. The latter motion simply seeks to

correct the clerical oversight by which Plaintiff left his proposed Third Amended

Complaint unsigned. ECF No. 183 at PAGEID # 2606. The Court will thus

construe these two filings as a single motion for leave to file a third amended

complaint. ECF Nos. 168, 183.

Before deciding the motion, the Court considers which filings are properly

before it. The Court’s Local Rules anticipate only two filings in response to a

motion: a memorandum in opposition to the motion and a reply memorandum in

support of it. S.D. Ohio Civ. R. 7.2(a)(2). Local Rule 7.2(a)(2) states that “[n]o

additional memoranda beyond those enumerated are permitted except upon

leave of court for good cause shown.” /d. Here, Defendants responded to

Plaintiffs motion, and Plaintiff filed a reply in support of it. ECF Nos. 191, 195.

No other memoranda were allowed without the Court’s permission.

Nonetheless, Plaintiff filed an additional document without seeking or

obtaining permission. His Reasons for Filing the Third Proposed Amended

Complaint Late in the Litigation, ECF No. 179, is thus an unauthorized “additional

Case No. 2:21-cv-880 Page 4 of 24

memorand[um]” filed contrary to Southern District of Ohio Local Civil Rule

7.2(a\(2). Plaintiff's pro se status does not exempt him from this Rule. See

Johnson v. Mohr, No. 2:15-cv-86, 2016 WL 5816262 (S.D. Ohio Oct. 5, 2016)

(striking sur-reply filed by pro se plaintiff in violation of local rule) and Section |,

above. The Court therefore STRIKES Plaintiffs filing entitled Reasons for Filing

the Third Proposed Amended Complaint Late in the Litigation, ECF No. 179.

Plaintiff also moved for leave to file an addendum to his motion for leave to

amend the complaint. ECF No. 184. Defendants do not oppose that motion,

and, on review, Plaintiff's proposed addendum primarily seeks to clarify minor

details to the Court and does not contain novel arguments that, if considered,

would prejudice Defendants. Accordingly, the Court GRANTS Plaintiff's Motion

for Leave to File Addendum to his Motion for Leave to File Third Amended

Complaint, ECF No. 184. The Court now turns to Plaintiff's motion for leave to

again amend the complaint.

1. Plaintiff's Proposed Amendments to the Second Amended

Complaint

Plaintiff makes two primary changes with his proposed Third Amended

Complaint. First, he seeks to add a new retaliation claim against a new

defendant, K. Judkins. ECF No. 168. Plaintiff alleges that Officer Judkins (or

“the Officer’) worked at Grafton Correctional Institution, where Plaintiff used to

reside. ECF No. 183-1 at PAGEID # 2630. Plaintiff says that, on or about March

6, 2022, the Officer conducted a search of Plaintiffs cell, focusing exclusively on

Case No. 2:21-cv-880 Page 5 of 24

Plaintiff's belongings and disregarding Plaintiff's cellmate. /d. Plaintiff further

asserts that, while performing the search, the Officer warned Plaintiff that “suing

parole board members can cause harm to [Plaintiff] and lead to another lengthy

flop [continuance] and more shakedowns and searches.” /d.

Plaintiff states that the Officer repeated this behavior on June 25 or 26,

2022, at which time the Officer also threatened that Plaintiff would suffer physical

harm if he filed a grievance against the Officer. /d. Based on these allegations,

Plaintiff seeks to bring a claim or claims against the Officer for retaliation in

violation of the First and Fourteenth Amendments. /d. at PAGEID # 2636.

Second, Plaintiff seeks to add a new Fourteenth Amendment due process

claim against the current Board Member Defendants. ECF No. 183-1 at PAGEID

# 2632-33. This new claim is based on Plaintiff's assertion that in December

2022 he learned that his parole file “contained inaccurate and false information

regarding the facts of [his criminal] case.” /d. at PAGEID # 2630-31; see

generally Dodson v. Mohr, No. 21-3778, 2022 WL 3954932, at *3 (6th Cir. July

28, 2022) (the Ohio Parole Board’s “knowing reliance on false information in a

parolee’s file, which is prohibited under state law, can constitute a due process

violation.” (citing State ex rel. Keith v. Ohio Adult Parole Auth., 2014-Ohio-4270,

23-28) (additional citation omitted)).

Specifically, Plaintiff alleges that his Ohio Parole Board Information Sheet

falsely says that he “made death threats to the victim which led to him fleeing the

area for several months[.]” ECF No. 183-1 at PAGEID # 2620-31; see also Ohio

Case No. 2:21-cv-880 Page 6 of 24

Parole Board Information Sheet, Ex. D5 to Proposed Third Amended Complaint,

ECF No. 168-7 at PAGEID # 2374.

Although partially redacted, the document appears to say that someone's

brother “confirmed with detectives that the victim had been a confidential

informant with their drug task force and the [sic] was scheduled to testify later

that month against [Plaintiff]. The victim had fled the area several months earlier

to Alabama due to death threats being made against him by [Plaintiff].” ECF No.

168-7 at PAGEID # 2374.

Plaintiff contends that he did not make death threats to the victim (who was

later murdered) and argues that the Board Members relied on this information—

which they knew or should have known to be false—when they denied him

parole and imposed a ten-year continuance. /d. at PAGEID # 2631-32.

But Plaintiff pleads few facts in support of this conclusion. He does not say

why he believes Defendants knew or should have known the statement was

false. He does not indicate that he objected to the statement at his parole

hearing, which makes logical sense—if he did not know about the statement until

December 2022 when he received it in discovery, he could not have challenged it

in March 2018. Instead, he appears to argue that erroneous information existed

in his file, which Defendants reviewed, and so, therefore, they knowingly

considered the error and violated his rights.

2. Law and Analysis

Case No. 2:21-cv-880 Page 7 of 24

Although presented as a motion to file an amended complaint, part of the

motion may be more appropriately considered a motion to supplement the

complaint.

Rule 15 of the Federal Rules of Civil Procedure governs amendments and

supplements to a complaint. Fed. R. Civ. P. 15(a), (d). Under the Rule, at this

point in the case, Plaintiff needs the Court's permission or Defendants’ consent

to amend his complaint again. Fed. R. Civ. P. 15(a)(2). The Court may also

permit Plaintiff “to serve a supplemental pleading setting out any transaction,

occurrence, or event that happened after the date of the pleading to be

supplemented.” Fed. R. Civ. P. 15(d). The standards for both types of motion

are generally the same. See generally Spies v. Voinovich, 48 F. App’x 520, 527

(6th Cir. 2002) (noting the same standard of review and rationale apply to

motions to amend under Fed. R. Civ. P. 15(a) and motions to supplement under

Fed. R. Civ. P. 15(d)).

Defendants do not consent to Plaintiffs motion, ECF No. 181 at PAGEID

# 2587, so he needs the Court’s permission to file a Third Amended Complaint.

The Court “should freely give leave when justice so requires.” Fed. R. Civ. P.

15(a)(2). However, “a party must act with due diligence if it intends to take

advantage of the Rule’s liberality.” United States v. Midwest Suspension &

Brake, 49 F.3d 1197, 1202 (6th Cir. 1995). “A party who delays in seeking an

amendment once the need to amend becomes apparent is acting contrary to the

spirit of the rule and runs the risk of the court denying permission because of the

Case No. 2:21-cv-880 Page 8 of 24

passage of time.” Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 459 (6th Cir.

2013), abrogated on other grounds by Obduskey v. McCarthy & Holthus LLP,

586 U.S. 466 (2019) (quoting 6 Charles A. Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice and Procedure § 1488, p. 764 (3d ed. 2010)) (cleaned

up).

Under Rule 15’s permissive standard, “leave should be granted unless

there is some apparent or declared reason not to allow the amendment.” Marx v.

Centran Corp., 747 F.2d 1536, 1550 (6th Cir. 1984). Those reasons include

undue delay, as noted above, and also “bad faith or dilatory motive on the part of

the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182

(1962).

With respect to the last of these reasons, an amendment would be futile “if

the claim, even with the amendment, could not withstand a Fed. R. Civ. P.

12(b)(6) motion to dismiss.” Green v. Mason, 504 F. Supp. 3d 813, 826 (S.D.

Ohio 2020) (cleaned up). An amendment may also be futile where the plaintiff

seeks to add unrelated claims against different parties. See Allah v. Smith, No.

2:22-cv-21, 2022 WL 4395680, at *4 (S.D. Ohio Sept. 23, 2022) (finding

amendment futile where the “new claim neither arises out of the ‘same

transaction, occurrence, or series of transactions or occurrences’ as Plaintiff's

other claims, nor does it involve ‘any question of law or fact common to all

Case No. 2:21-cv-880 Page 9 of 24

defendants.” (quoting Fed. R. Civ. P. 20(a)(2)(A)-(B))); see also Mims v. Simon,

No. 1:22-cv-323, 2022 WL 1284106, at *3 (W.D. Mich. Apr. 29, 2022) (leave to

amend may be denied if the amendment would result in the improper joinder of

parties or claims (citing Fed. R. Civ. P. 21)).

Here, Defendants argue that the Court should deny leave because Plaintiff

has unduly delayed in bringing these claims and an amendment at this date

would prejudice them. ECF No. 181 at PAGEID # 2582. Defendants accurately

observe that this matter has been pending for more than three years and that

Plaintiffs proposed new claims stem from facts of which he has been aware for

well over a year. /d. at PAGEID # 2588, 2583. They further note that “extensive

litigation has ensued” in this case, “including extensive discovery.” /d. at

PAGEID # 2588.

Plaintiff responds that Defendants have not said precisely how they would

be prejudiced by his proposed amendment. ECF No. 195 at PAGEID # 2762.

He argues there is good cause to grant leave (that his delay in seeking leave is

excusable) because his proposed amendments are “based on evidence turned

over by [Defendants] during discovery.” /d. at PAGEID # 2753, 2759.

Plaintiffs arguments are ultimately unpersuasive. As Defendants note,

Plaintiffs proposed claims against the Officer are not based on “newly

discovered evidence” but rather on his own firsthand experiences. ECF No. 181

at PAGEID # 2583. Plaintiff specifically said he was present for the Officer’s

alleged retaliation. ECF No. 183-1 at PAGEID # 2630. Therefore, Plaintiff has

Case No. 2:21-cv-880 Page 10 of 24

had the information necessary to bring his proposed claims against the Officer

since March 6, 2022. Id.

Similarly, the document underlying Plaintiffs new due process claims

against the Board Members cannot fairly be described as “newly discovered.”

Plaintiff explicitly states these claims stem from information he learned in

December 2022. ECF No. 183-1 at PAGEID # 2630. If true, Plaintiff waited for

approximately fifteen months before trying to bring those claims in February

2024. ECF No. 168.

Plaintiff does not satisfactorily explain why he delayed for so long before

seeking to bring these claims. His only argument on this point is that he provided

justification for his delay in his Reasons for Filing the Third Proposed Amended

Complaint Late in the Litigation. See ECF No. 179. He contends that, by failing

to refute those justifications, Defendants have conceded them. ECF No. 183-1.

But, as explained above, Plaintiffs Reasons for Filing the Third Proposed

Amended Complaint Late in the Litigation were never properly before the Court.

Defendants had no obligation to refute arguments that Plaintiff was not permitted

to make in the first place, and their lack of response does not amount to a

concession. On this record, the Court concludes that Plaintiff has unduly delayed

in bringing his latest motion to amend. See Pittman v. Experian Info. Solutions,

Inc., 903 F.3d 619, 642 (6th Cir. 2018) (affirming denial of leave to amend where

Plaintiff “unduly delayed moving for leave to amend his complaint for more than a

year and provided no excuse or justification for the delay’).

Case No. 2:21-cv-880 Page 11 of 24

The Court also concludes that allowing further amendment at this time

would unduly prejudice Defendants. The Sixth Circuit has found undue prejudice

where allowing amendment would cause defendants to “have wasted time and

expense attacking a hypothetical complaint.” Hiller v. HSBC Fin. Corp., 589 F.

App’x 320, 321 (6th Cir. 2015) (quoting Glazer, 704 F.3d at 458-59). That is the

case here, where the parties have engaged in extensive, protracted, and

acrimonious litigation concerning the previous complaints for more than three

years, including dozens of motions filed by Plaintiff. See Lyle v. Jackson, 49 F.

App’x 492, 495 (6th Cir. 2002) (affirming denial of leave to amend for undue

prejudice to existing defendants where amendments “would have prolonged the

proceedings without any prospect of ever resolving all of [the plaintiff's]

complaints’).

Finally, with respect to the proposed claim against the Officer, the Court

notes that the allegations concern events that occurred at a different prison four

years after the parole hearing that is the subject of the previous complaints.

Compare Second Amend. Compl. J 22, ECF No. 20 at PAGEID # 238 (March 6,

2018 hearing while at Richland Correctional Institution) with Proposed Third

Amend. Compl. J 46, ECF No. 183-1 at PAGEID # 2630 (March 6, 2022 cell

search while at Grafton Correctional Institution).

These claims, although conceptually linked, should be brought in different

cases as courts generally hold that “[uJnrelated claims against different

defendants belong in different suits, not only to prevent the sort of morass [a

Case No. 2:21-cv-880 Page 12 of 24

multiple claim, multiple defendant] suit produce[s], but also to ensure that

prisoners pay the required filing fees—for the Prison Litigation Reform Act limits

to 3 the number of frivolous suits or appeals that any prisoner my file without

prepayment of the required fees.” George v. Smith, 507 F.3d 605, 607 (7th Cir.

2007) (citing 28 U.S.C. § 1915(g)); see also Hetep v. Warren, 27 F. App’x 308,

309 (6th Cir. 2001) (denying proposed amendment adding new unrelated claims

against new defendants (citation omitted)).

The relevant language for deciding this issue comes from Rule 20, which

says that “Persons . . . may be joined in one action as defendants’ if two

conditions are satisfied:

(A) any right to relief is asserted against them jointly, severally, or in

the alternative with respect to or arising out of the same transaction,

occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in

the action.

Fed. R. Civ. P. 20(a)(2). Plaintiffs claims do not satisfy this test. The claims are

not asserted against the Board Members and the Officer jointly, severally, or in

the alternative. Plaintiff instead raises distinct claims against each based on

different facts. Nor do the claims “aris[e] out of the same transaction,

occurrence, or series of transactions or occurrences.” The allegations are of two

different events, four years apart. Finally, the Court sees no apparent question of

law or fact common to the claims against the Board Members and the Officer.

Although Plaintiff has alleged that these events are “related” because the Officer

Case No. 2:21-cv-880 Page 13 of 24

retaliated against him for suing Board Members, relatedness is not the correct

standard. See Honzu v. Doe, No. 2:22-cv-292, 2023 WL 5625487, at *3 (S.D.

Ohio Aug. 31, 2023) report and recommendation adopted, 2023 WL 8357286

(S.D. Ohio Dec. 1, 2023) (denying leave to amend without prejudice because,

“Iw]hile these allegations are arguably similar in nature to those in the [previous]

Complaint, they occurred at a different time and appear to be made against an

entirely different set of defendants at an entirely different prison’).

Even an allegation of retaliation is an insufficient link between two distinct

factual scenarios and types of claims. In Brown v. Cool, No. 2:21-cv-5146, 2023

WL 10511455, at *2 (S.D. Ohio May 10, 2023), another judicial officer of this

Court faced a similar situation and found that the claims should proceed

separately:

In the instant case, there is a clear demarcation between the initial

Complaint and the Motion to Amend. The Complaint targets events

alleged to have occurred at RCI while the Motion to Amend targets

events alleged to have subsequently occurred at SOCF. There is no

overlap between the Defendants named in the initial Complaint and

the proposed Defendants at SOCF. The only conceivable nexus

between the events alleged to have occurred at RCI and the

subsequent events alleged to have occurred at SOCF is Plaintiffs

intimation that his transfer to, and alleged mistreatment at, SOCF

were in retaliation for grievances he was pursuing at RCI. But this

alleged nexus is nota proper basis for combining into one lawsuit

unrelated claims against different defendants. See Allah, 2022 WL

866295 at *2 (discussing Fed. R. Civ. P. 20(a)(2), and citing Cage v.

Michigan, No. 16-cv-11679, 2018 WL 3729062, at*1 (E.D. Mich. Aug.

6, 2018)).

Id. at *2 (emphasis added and record citations omitted). Cases that are “related”

may be so designated by this Court under Southern District of Ohio Local Civil

Case No. 2:21-cv-880 Page 14 of 24

Rule 3.1(b) for “the orderly division of the business of the Court,” but that does

not mean that all related claims should proceed together in the same case. See

Martin v. Shoop, Warden, No. 2:22-cv-4423 (S.D. Ohio July 23, 2024) (noting

that relatedness and consolidation are different concepts).

If this Court were to allow Plaintiff to add the new retaliation claim against

the Officer, the claim would need to be severed and dismissed as improperly

joined, meaning that an amendment to include it here is futile. Johnson v.

Chambers-Smith, No. 2:22-cv-4179, 2023 WL 2555446, at *8 (S.D. Ohio Mar. 17,

2023), report and recommendation adopted, 2023 WL 6065130 (S.D. Ohio Sept.

18, 2023); see also Mims, 2022 WL 1284106, at *3 (leave to amend may be

denied if the amendment would result in the improper joinder of parties or claims

(citing Fed. R. Civ. P. 21)).

Finally, the obvious logistical impact of adding a new claim against a new

defendant—a different type of claim, and a different type of defendant, likely

requiring a different type of discovery and another round of discovery disputes—

is that it would undoubtedly delay resolution of this case. Some Defendants,

including those who are no longer Parole Board Members, might have to wait

years for resolution of the claims against them while the new defendant's matter

(service, discovery, motion practice, etc.) catches up. That delay, on top of

Plaintiff's delay in bringing his request to file a fourth complaint, and considering

the futility of including at least one of the new claims, leads the Court to conclude

that further amendment should not be allowed at this time. Accordingly, the

Case No. 2:21-cv-880 Page 15 of 24

Court DENIES Plaintiff's Motion(s) for Leave to File Third Proposed Amended

Complaint Instanter, ECF Nos. 168, 183.

B. _Plaintiff’s Motion for Notice of Mixed Motives Analysis, ECF No. 176,

and Motion To Withdraw Mixed Motives Analysis, ECF No. 180

Plaintiff filed a document entitled “Motion for Notice of Mixed Motives

Analysis and Intentions to Argue the Mixed Motives Theory in His Response to

the Defendants[’] Motion for Summary Judgment.” ECF No. 176. Later, Plaintiff

filed a “Motion to Withdraw the Mixed Motives Analysis and Standard Motion,”

stating that he “made a mistake in filing [the Motion for Notice].” ECF No. 180 at

PAGEID # 2578.

His request is well-taken. The Court GRANTS Plaintiffs motion to

withdraw his motion for a mixed motive analysis, ECF No. 180. Plaintiffs “Motion

for Notice of Mixed Motives Analysis,” ECF No. 176, is DENIED AS MOOT.

C. Plaintiff's Motion in Limine, ECF No. 185, Motion To Withdraw Motion

in Limine, ECF No. 178, and Motion To Withdraw Motion To Withdraw

Motion in Limine, ECF No. 191

The Court received Plaintiff's “Motion to Withdraw the Motion in Limine

Dated 3-5-2024” on March 20, 2024. ECF No. 178. The Court did not receive

Plaintiffs motion in limine until a few days later, however. ECF No. 185.

Thereafter, Defendants opposed the motion in limine, ECF No. 187, and

Plaintiff filed a “Motion to Withdraw the Motion to Withdraw the Motion In Limine

in Light of the Defendant[s] Responding to It,” ECF No. 191. Plaintiff also filed a

reply in support of his motion in limine. ECF No 196.

Case No. 2:21-cv-880 Page 16 of 24

“A motion in limine is a request for guidance by the court regarding an

evidentiary question.” United States v. Luce, 713 F.2d 1236, 1240 (6th Cir.

1983). It is “essentially an advisory opinion” regarding whether the Court is likely

to allow the introduction of specific evidence at trial. /d. When properly used, a

motion in limine will “narrow the evidentiary issues for trial and . . . eliminate

unnecessary trial interruptions.” Louzon v. Ford Motor Co., 718 F.3d 556, 561

(6th Cir. 2013) (internal citation omitted). Although more frequently used to

exclude evidence, motions in limine may also be used to preemptively admit

evidence. See, e.g., Ohler v. United States, 529 U.S. 753 (2000) (affirming use

of motion in limine to admit evidence of prior bad acts in advance of trial).

In this case, Plaintiff's motion in limine asks the Court to admit several

documents into evidence for use at trial and in defending against Defendants’

motion for summary judgment. ECF No. 185. But, as Defendants note, evidence

relied upon at summary judgment need not be formally admitted by way of

motion in limine. ECF No. 187 at PAGEID # 2702; Scoitt-Benson v. KBR, Inc.,

826 F. App’x 364, 368 (5th Cir. 2020) (“A motion in limine is addressed to the

admissibility—or not—of evidence at trial; it has no place in a motion for

summary judgment.”).

The Court is currently considering the admissibility of Plaintiffs evidence

when reviewing Defendants’ motion for summary judgment. In the interest of

judicial economy, the Court concludes that the better approach is to conduct the

analysis in that context, rather than to separately decide a motion in limine.

Case No. 2:21-cv-880 Page 17 of 24

Accordingly, the Court GRANTS Plaintiff's Motion to Withdraw his Motion to

Withdraw his Motion in Limine. ECF No. 191. Plaintiff's Motion to Withdraw his

Motion in Limine is TERMINATED on the docket. ECF No. 178.

The Court DENIES Plaintiffs Motion in Limine, ECF No. 185, but will

consider the parties’ arguments along with their proffered evidence in its

forthcoming decision on Defendants’ motion for summary judgment.

D. Defendants’ Motion To Stay Discovery, ECF No. 182

In their motion to stay discovery, Defendants report that Plaintiff continues

to propound discovery requests, which Defendants characterize as a “fishing

expedition.” ECF No. 182. They argue that the additional discovery Plaintiff

seeks will not help him defend against their pending motion for summary

judgment but that responding to his continued requests “would be burdensome

and cause the improvident use of scarce State and judicial resources.” /d.

Defendants therefore ask the Court to stay discovery pending resolution of

dispositive motions. /d.

Plaintiff opposes a stay. ECF No. 198. He contends that the information

sought will assist him. He criticizes Defendants’ request because they “have not

explained how or why [Plaintiffs continued discovery requests are] burdensome

or would cause the improvident use of scarce state and judicial resources.” ECF

No. 198 at PAGEID # 2803.

“Trial courts have broad discretion and inherent power to stay discovery

until preliminary questions that may dispose of the case are determined.” Hahn

Case No. 2:21-cv-880 Page 18 of 24

v. Star Bank, 190 F.3d 708, 719 (6th Cir. 1999). However, because a motion for

summary judgment necessarily requires the parties to produce evidence, “it is

generally improper to grant summary judgment without affording the non-movant

sufficient opportunity for discovery.” Oatman v. Potter, 92 F. App’x 133, 138 (6th

Cir. 2004). Moreover, this Court has recognized that “[t]he notion that a

potentially dispositive motion would stay discovery is directly at odds with the

need for expeditious resolution of litigation.” Pres. Partners, Inc. v. Sawmill Park

Props., LLC, No. 2:22-cv-00477, 2023 WL 2943820, at *2 (S.D. Ohio April 14,

2023) (internal quotation omitted). Therefore, “as a general rule, this Court is not

inclined to stay discovery while a potentially dispositive motion is pending unless

special circumstances justify that action.” /d. (internal quotations omitted); see

also Ames v. LaRose, No. 2:22-cv-2085, 2022 WL 11615872, at *2 (S.D. Ohio

Oct. 20, 2022) (“the fact that a party has filed a case-dispositive motion is...

insufficient to support a stay of discovery”) (internal quotation omitted).

Defendants argue that a stay of discovery is justified because “there is a

strong likelihood of success on their Motion for Summary Judgment.” ECF No.

182 at PAGEID # 2602. This argument is unpersuasive. The Court has

historically declined “to grant a stay based on one party’s view of the strength of

its Motion.” Kendell v. Shanklin, No. 2:20-cv-985, 2020 WL 6748505, at *2 (S.D.

Ohio June 4, 2020) (internal quotation omitted).

Defendants also argue that continued discovery would impose an undue

burden upon them. ECF No. 182 at PAGEID # 2602. The Court agrees with

Case No. 2:21-cv-880 Page 19 of 24

Plaintiff that Defendants have not specified how or why this is so. ECF No. 198.

It appears the discovery requests that prompted Defendants’ Motion to Stay were

Plaintiff's requests for contact information for non-parties Shirley Smith and

JoEllen Smith, as discussed in the next section. ECF No. 182 at PAGEID

# 2601. The Court is unconvinced that providing two addresses (or stating that

Defendants do not have them) would unduly tax scarce state resources.

For all these reasons, the Court DENIES Defendants’ Motion to Stay

Discovery, ECF No. 182.

E. Plaintiff's Fifth Motion To Compel, ECF No. 194

In this motion, Plaintiff says that he served interrogatories on Defendants

seeking “the current and correct addresses of ODRC Spokeswoman JoEllen

Smith and the address of ex board member Shirley Smith.” ECF No. 194 at

PAGEID # 2738. Plaintiff has produced the interrogatories in question, which are

addressed to Defendant Houk and read as follows:

1) Please provide the current address for ODRC spokeswoman JoEllen

Smith{] or former spokeswoman JoEllen Smith.

2) Please provide the current address for ODRC [flormer Parole Board

member Shirley Smith.

ECF No. 194-2 at PAGEID # 2745.

When Defendant Houk failed to timely respond to Plaintiff's interrogatories,

Plaintiff sent a letter to Defendants’ counsel “seeking a resolution or solution.”

ECF No. 194-3 at PAGEID 2747. Defendants’ counsel responded that

“Defendant Houk will not be responding to [Plaintiff's] request for [sic]

Case No. 2:21-cv-880 Page 20 of 24

interrogatories at this time.” ECF No. 194-1 at PAGEID # 2743. Defendants’

counsel expressed a belief that Plaintiff was seeking residential addresses for

Shirley Smith and JoEllen Smith and indicated that “those residential addresses

are not in Mr. Houk’s possession, and in any event, would not be disclosed due

to security concerns.” /d.

Plaintiff asks the Court to compel Defendants to provide Shirley Smith's

address. ECF No. 194 at PAGEID # 2738. He argues that, because Defendants

failed to timely object to his interrogatories, Defendants have waived their right to

do so now. /d. at PAGEID # 2739.

“In general, when a party fails to object timely to interrogatories, production

requests, or other discovery efforts, objections thereto are waived.” United

States v. Elsass, No. 2:10-cv-336, 2011 WL 335957, at *3 (S.D. Ohio Jan. 31,

2011) (cleaned up). Magistrate Judge Gentry previously had to remind

Defendants that “neither Plaintiff's pro se status nor their own perception of the

frivolity of his claims exempts Defendants from the requirement that they follow

the [discovery] rules.” Decision & Order at 19, ECF No. 110 at PAGEID # 1165.

Under the rules, if Houk was not in possession of Shirley Smith’s address, could

not reasonably get it, or felt that he should not disclose that address due to

“security concerns,” his proper recourse was to respond in a timely fashion with

that information. It was not proper to simply fail to respond, based on an

unconveyed inference that Plaintiff must have meant to include the word

“residential” in his request. See Libertarian Party of Ohio v. Husted, No. 2:13-cv-

Case No. 2:21-cv-880 Page 21 of 24

953, 2015 WL 5766518, at *2 (S.D. Ohio Oct. 2, 2015) (“counsel have an

obligation to work together in good faith to [e]nsure that issues of semantics .. .

do not clog up the discovery process itself or lead to unnecessary motions

practice”).

Nevertheless, Defendants advance at least one persuasive argument.

They indicate that Houk does not have a current address for Shirley Smith. ECF

No. 197 at PAGEID # 2796. Despite the Court's frustration that Houk did not

simply tell Plaintiff this, the Court cannot compel Houk to produce information

that he does not have. See Solly v. Mausser, No. 2:15-cv-956, 2017 WL

4280935, at *2 (S.D. Ohio Sept. 27, 2017) (“the Court cannot compel what does

not exist.”).

Defendants also argue that Plaintiffs motion to compel is moot. They note

that Plaintiff sought the addresses “for the purpose of issuing subpoenas,” ECF

No. 194-1 at PAGEID # 2743, but that the Court has already ordered the United

States Marshals Service to serve a subpoena on Shirley Smith on Plaintiff's

behalf, see ECF No. 197 at PAGEID # 2797 (citing ECF No. 189).

The docket reflects that on April 24, 2024, per the Court’s Order, the

Marshals Service filed under seal a process receipt indicating that Shirley Smith

had been personally served with Plaintiffs subpoena on April 23. ECF No. 192

(sealed). Therefore, to the extent that Plaintiff sought Shirley Smith’s address for

purposes of effecting service, his motion to compel production of that address

appears to be moot. To the extent Plaintiff wishes to serve further process upon

Case No. 2:21-cv-880 Page 22 of 24

Shirley Smith, he may file the appropriate motion seeking service by the

Marshals Service.

In conclusion, although the Court does not approve of Defendants’ failure

to reply, Plaintiff's Fifth Motion to Compel, ECF No. 194, is not well-taken and is

therefore DENIED.

lll. CONCLUSION

For the reasons stated herein, the Court hereby:

1. DENIES Plaintiffs Motion for Leave to File Third Proposed Amended

Complaint Instanter, ECF No. 168.

2. DENIES as MOOT Piaintiffs Motion for Notice, ECF No. 176.

3. TERMINATES Plaintiffs Motion to Withdraw Motion In Limine, ECF

No. 178.

4. STRIKES Plaintiffs Reasons for Filing the Third Proposed Amended

Complaint Late in the Litigation, ECF No. 179.

5. GRANTS Plaintiffs Motion to Withdraw Mixed Motives Analysis,

ECF No. 180.

6. DENIES Defendants’ Motion to Stay Discovery, ECF No. 182.

7. DENIES Plaintiffs Motion for Leave to File Signed Complaint, ECF

No. 183.

8. GRANTS Plaintiffs Motion for Leave to File Addendum, ECF No.

184.

9. DENIES WITHOUT PREJUDICE Plaintiff's Motion in Limine, ECF

No. 185.

10. GRANTS Plaintiffs Motion to Withdraw Motion to Withdraw, ECF

No. 191.

141. DENIES Plaintiffs Fifth Motion to Compel, ECF No. 194.

Case No. 2:21-cv-880 Page 23 of 24

The Court will resolve Defendants’ Motion for Summary Judgment, ECF No. 170,

separately.

IT IS SO ORDERED. | ,

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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