Opinion
Case No. 1:12-cv-628
04-16-2013
JIMMIE L. WASHINGTON, Plaintiff, v. C/O JOHN McCOY, Defendant.
Beckwith, J. Litkovitz, M.J.
ORDER AND REPORT AND
RECOMMENDATION
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF) proceeding pro se, brings this prisoner civil rights action under 42 U.S.C. § 1983 against defendant C/O John McCoy (McCoy) alleging McCoy used excessive force against him in violation of his constitutional rights. This matter is before the Court on the following motions: (1) plaintiff's request for a stay (Doc. 8); (2) plaintiff's motion for an injunction (Doc. 9); (3) plaintiff's motion for default judgment (Doc. 11); (4) plaintiff's motion to amend the complaint (Doc. 14); (5) plaintiff's motion to compel discovery (Doc. 15); (6) plaintiff's second motion for default judgment (Doc. 17); (7) plaintiff's motion for service (Doc. 18); (8) plaintiff's motion for scheduling ADR (Doc. 19); (9) plaintiff's third motion for default judgment (Doc. 20); (10) plaintiff's second motion for an injunction (Doc. 21); and (11) plaintiff's fourth motion for default judgment. (Doc. 22). The court will first address plaintiff's motions for default judgment and motion for service.
I. Plaintiff's Motions for Default Judgment and for Service (Docs. 11, 17, 18, 20, 22)
Plaintiff moves for default judgment against McCoy asserting that he has failed to timely file a response to the complaint; Plaintiff contends that he has properly served McCoy at SOCF, McCoy's workplace. Plaintiff correctly states that a summons was issued by this Court in August 2012 (Doc. 5), but that the summons was returned unexecuted on November 6, 2012 with a notation that "I/M not at SOCF need I/M #." (Doc. 10). The undersigned notes that the "green card" accompanying the unexecuted summons is addressed to "John McCoy" as opposed to C/O John McCoy. Id. It therefore appears that the individual serving the summons was attempting to effect service on an inmate at SOCF as opposed to a correctional officer. Accordingly, service has not been properly effected on defendant McCoy and plaintiff's motions for default judgment are not well-taken.
Entry of default judgment is only appropriate where a defendant has failed "to plead or otherwise defend" against a properly served lawsuit. Fed. R. Civ. P. 55. Plaintiff bears the burden of showing that McCoy has been effectively served with process. Id.; Abel v. Harp, 122 F. App'x 248, 250 (6th Cir. 2005). Plaintiff has failed to carry his burden as the record demonstrates that the attempt to serve McCoy was unsuccessful. Notably, this was through no fault of plaintiff's, but rather due to the omission of McCoy's status as a correctional officer at SOCF on the "green card" accompanying the summons issued by this Court. The Court acknowledges that plaintiff has filed two notices with the Clerk of Court asserting that he had effected personal service on McCoy at SOCF by hand delivering unspecified papers. See Docs. 12, 13. Yet, it seems plaintiff has conceded that his attempt at personally serving McCoy was improper as he requested in both notices and in his motion for service that the Court re-order service upon McCoy. See Docs. 12, 13, 18.
To remedy the service issues in this matter, the undersigned grants plaintiff's motion for service. Regarding plaintiff's motions for default judgment, the undersigned recommends that these motions be denied as McCoy has not been properly served. Lastly, in light of this ruling, plaintiff's motion to stay his pending motions for default judgment is DENIED as moot. (Doc. 8).
The specific instructions regarding service are included below in connection with plaintiff's motion to amend.
II. Plaintiff's Motions for an Injunction (Docs. 9, 21)
Plaintiff seeks an injunction enjoining McCoy and other SOCF employees from retaliating against him for filing this lawsuit. Plaintiff requests that the Court enter an Order transferring him from SOCF, alleging that McCoy and other SOCF employees have physically and verbally assaulted him, falsely accused him of misconduct and instituted internal proceedings against him, planted contraband in his cell, and interfered with his mail and personal belongings. (Docs. 9, 21).
In determining whether to issue an injunction, this Court must balance the following factors:
1. Whether the party seeking the injunction has shown a "strong" likelihood of success on the merits;Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000); United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 347 (6th Cir. 1998); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). The four factors are not prerequisites, but must be balanced as part of a decision to grant or deny injunctive relief. Leary, 228 F.3d at 736; Performance Unlimited v. Quester Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995). Injunctions are extraordinary remedies that should only be granted if the movant carries his burden of proving that the circumstances clearly demand it. Leary, 228 F.3d at 739.
2. Whether the party seeking the injunction will suffer irreparable harm absent the injunction;
3. Whether an injunction will cause others to suffer substantial harm; and
4. Whether the public interest would be served by a preliminary injunction.
After careful consideration, the Court finds that plaintiff's motions for injunctions should be denied. Plaintiff has not alleged facts sufficient to warrant an injunction. Plaintiff has made no attempt to apply the above factors to his situation and he has not alleged facts indicating a substantial likelihood of succes$ on the merits of his claims. More importantly, plaintiff has failed to present evidence showing he has a substantial likelihood of success on the merits of his constitutional claims or that he will suffer irreparable harm absent an injunction.
Specific to the first motion, an injunction is not warranted in this case because the purpose of an injunction - to preserve the status quo until a trial on the merits can be held, see Martin, 924 F.2d at 102 - would not be served. The remedy plaintiff presently seeks is more than an injunction maintaining the status quo; he seeks an Order from this Court directing his transfer from SOCF to another correctional institution. Such affirmative relief is generally beyond the scope and purpose of injunctive relief. See id.
Regarding the second motion, plaintiff has not put forth evidence supporting injunctive relief. While plaintiff has filed a document he labels "affidavit," see Doc. 21 at 1, it is not taken before a person having authority to witness the affirmation, such as a notary public. An affidavit is required to be sworn to by the affiant in front of an officer authorized to administer oaths. See Peters v. LincolnElec. Co., 285 F.3d 456, 475 (6th Cir. 2002). Nor does the document amount to an unsworn declaration under penalty of perjury pursuant to 28 U.S.C. § 1746. Under 28 U.S.C. § 1746, unsworn declarations must state: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." 28 U.S.C. § 1746. Plaintiff's "affidavit" was not made "under penalty of perjury," see Doc. 21, and therefore fails to satisfy the statutory requirements of an unsworn declaration. Consequently, plaintiff's second motion for an injunction should be denied.
Based on the record before the Court and upon balancing the above factors, the Court finds that plaintiff's requested injunctive relief is not warranted in this case. Accordingly, it is therefore RECOMMENDED that plaintiff's motions for injunction (Doc. 9, 21) be DENIED.
III. Plaintiff's Motion to Amend the Complaint (Doc. 14)
Plaintiff seeks to amend his complaint to include allegations that McCoy retaliated against plaintiff after plaintiff attempted to personally serve McCoy with notice of the instant lawsuit by fabricating a report that plaintiff had engaged in misconduct. See Doc. 14 at 1-2. Plaintiff further seeks to add a deprivation of due process claim against the SOCF Rules Infraction Board, the Ohio Department of Rehabilitation and Correction (ODRC), and/or the State of Ohio. Plaintiff's proposed claim includes allegations that he was not allowed to submit evidence of his own handwriting!to contradict McCoy's report that he had engaged in misconduct by giving McCoy a list of items to bring plaintiff in exchange for plaintiff dismissing the instant litigation. Plaintiff alleges that by prohibiting him from producing this evidence, ODRC policies and his constitutional rights were violated. Id. at 2-4.
The record includes a copy of the conduct report completed by McCoy. (Doc. 13).
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Under the Federal Rules of Civil Procedure, a party is entitled to "amend its pleading once as a matter of course within . . . 21 days of serving it . . . ." Fed. R. Civ. P. 15(a)(1)(A). As discussed above, plaintiff's complaint has not yet been served on any defendant. The Court will therefore grant plaintiff's motion to amend.
Plaintiff is ORDERED to submit a copy of his original and amended complaints, summons forms, and United States Marshal forms for McCoy and the newly added defendants so service of process may be made on these defendants within twenty (20) days of the date of this Order. Upon receipt of these documents, the Court shall order service of process by the United States Marshal.
The Clerk of Court is DIRECTED to send plaintiff's summons and United States Marshal forms for this purpose.
IV. Plaintiff's Motion to Compel Discovery (Doc. 15)
Plaintiff seeks an order compelling McCoy to furnish certain documents and evidence related to the internal Rules Infraction Board hearing instituted against him by McCoy. (Doc. 15). As discussed above, the instant lawsuit has not yet been properly served on McCoy. Thus, plaintiff's motion to compel discovery is premature and is DENIED.
V. Plaintiff's Motion for Scheduling ADR (Doc. 19)
In his motion for "scheduling of ADR [alternative dispute resolution]," plaintiff seeks a stay of his pending motions for default judgment "so that the parties can conduct a[n] alternative dispute resolution." (Doc. 19 at 2). For the reasons stated above, the undersigned is recommending that plaintiff's motions for default judgment be denied for lack of proper service on McCoy. Plaintiff's request to stay the Court's rulings on these motions is therefore denied. In addition, pro se prisoner civil rights cases are not eligible for a referral to a court-administered ADR process. See S.D. Ohio Civ. R. 16.3(b). Therefore, plaintiff's motion for scheduling ADR is DENIED. To the extent plaintiff seeks to engage in settlement discussion with the putative defendants named in his amended complaint, plaintiff is free to initiate these conversations without Court involvement.
IV. Conclusion
For the reasons stated herein, IT IS ORDERED THAT:
1. Plaintiff's motion for service (Doc. 18) is GRANTED.
2. Plaintiff's motion to stay (Doc. 8) is DENIED as moot;
3. Plaintiff's motion to amend (Doc. 14) is GRANTED. Plaintiff is ORDERED to submit a copy of his original and amended complaints, summons forms, and United States Marshal forms for C/O John McCoy and the newly added defendants so service of process may be made on these defendants within twenty (20) days of the date of this Order. Upon receipt of these documents, the Court shall order service of process by the United States Marshal. The Clerk of Court is DIRECTED to send plaintiff's summons and United States Marshal forms for this purpose.
4. Plaintiff's motion to compel (Doc. 15) is DENIED; and
5. Plaintiff's motion to schedule ADR (Doc. 19) is DENIED.
Further, IT IS RECOMMENDED THAT plaintiff's motions for default judgment (Docs. 11, 17, 20, 22) be DENIED and that plaintiff's motions for an injunction (Docs. 9, 21) be DENIED.
______________________
Karen L. Litkovitz
United States Magistrate Judge
JIMMIE L. WASHINGTON, Plaintiff,
vs.
C/O JOHN McCOY, Defendant.
Case No. 1:12-cv-628
Beckwith, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. 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. If the Report and Recommendation is based in whole or in part upon matters occurring on the 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 14 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 (6th Cir. 1981).