Finfrock v. Ohio Dep't of Rehab. & Corr.
| Decision Date | 07 May 2018 |
| Docket Number | Case No. 3:17-cv-1264 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | Joseph W. Finfrock, Plaintiff v. Ohio Department of Rehabilitation & Corrections, et al., Defendants |
Pro se Plaintiff Joseph W. Finfrock was an inmate at the North Central Correctional Complex in Marion, Ohio, beginning in March 2015. In March of 2017, Finfrock filed a complaint in the Franklin County Court of Common Pleas against the Ohio Department of Rehabilitation and Correction, Director Gary C. Mohr, Neil Turner, Warden, and Becky Joyce, Deputy Warden. (Doc. No. 1-1).
Defendants Turner and Joyce removed this action to the United States District Court for the Southern District of Ohio on June 5, 2017, within thirty days after receiving the complaint. (Doc. No. 1). Turner and Joyce also filed their answer to the complaint on June 12, 2017. (Doc. No. 3).
On June 15, 2017, this case was transferred to the present forum as the Magistrate Judge properly determined the North Central Correctional Complex was located in Marion County, Ohio, which is within the jurisdiction of the Northern District of Ohio. (Doc. No. 5). Defendants Mohr and the Ohio Department of Correction filed their answer to the complaint on June 22, 2017. (Doc. No. 8).
Finfrock's initial complaint alleges discrimination and retaliation in violation of the American with Disabilities Act, 42 U.S.C. §§ 12101-12213, as well as the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 797.
This matter is now before me on multiple motions by all of the parties. As all of the issues have been briefed and response time has passed, I turn to address the motions.
Under Fed. R. Civ. P. 55, default is a two-step process with the entry of default as the first procedural step. Shepard Claims Service Inc. v. William Darrah & Assoc., 796 F.2d 190, 193 (6th Cir. 1986). Rule 55(a) permits a clerk to enter default against a party who has failed to plead or otherwise defend. Default is entered by the clerk of the court upon application of a party who seeks to enforce the default provisions. 10 James Wm. Moore, Moore's Federal Practice § 55.01[1] (3d ed. 2017). (Emphasis added). See also Tarbell v. Jacobs, 856 F.Supp. 101, 104 (N.D.N.Y. 1994).
The rule also requires that the default must be "made to appear by affidavit or otherwise." While the entry of default is a procedural formality, it is nevertheless a prerequisite to the issuance of a default judgment. United States v. Di Mucci, 879 F.2d 1488, 1490 (7th Cir. 1989); Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1530 (11th Cir.), cert. denied, 474 U.S. 995 (1985).
Once an action is removed from state to federal court, the Federal Rules of Civil Procedure govern procedure. Where a defendant has not filed an answer in state court before the removal, their answer time is governed by Fed. R. Civ. P. 81(c)(2):
It is understood that "[t]he purpose of these strict time requirements is to ensure that answers are filed quickly in removed actions." 14 Moore's Federal Practice, § 81.04[4][b] (3d ed 2017).
The docket reflects Defendants Turner and Joyce filed their answer exactly seven days after the case was removed to federal court in compliance with Fed. R. Civ. P. 81(c)(2)(C). In contrast, Defendants Mohr and the ODRC did not file their answer until June 22nd, some seventeen days after the case was removed, nor did they seek an extension of time to submit their answer.
In their opposition to the motion for default, Mohr and the ODRC state they were required to formally request representation and received approval of the same under Ohio Rev. Code §§ 109.361 and 109.3621. Once they received that approval, these Defendants filed their answer on June 22, 2017. Alternatively, these Defendants request the court accept their answer as timely filed.
The Sixth Circuit has noted that "cases should be tried on their merits rather than the technicalities of pleadings." Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) (citation omitted). Here, the Plaintiff did not move for default in compliance with Fed. R. Civ. P. 55(a) and the Defendants filed their answer outside of the time frame of Fed. R. Civ. P. 81(c)(2)(C). In the interests of justice, I find the answer of Mohr and the ODRC to be timely filed and the Plaintiff's motion for default (Doc. No. 10) to be moot.
In light of the ruling on the Plaintiff's motion for default, Defendant Turner and Joyce's motion to strike Plaintiff's motion for default (Doc. No. 11) is also denied as moot.
Under Fed. R. Civ. P. 12(f), "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The purpose of this motion "'avoid[s] the expenditure of time and money that must arise from litigating spurious issues by dispensing with' them early in the case." Operating Engineers Local 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (citation omitted). Such motions are disfavored. Id.
The movant must demonstrate the challenged matter "has no bearing on the subject matter of the litigation and that its inclusion will prejudice the defendant[ ]." See 2 Moore's Federal Practice § 12.37[3] (3d ed. 2017). Motions to strike are aimed at material contained in pleadings. See Fox v. Michigan State Police Dep't, 173 Fed. Appx. 372, 375 (6th Cir. 2006).
In this case, the Defendants seek to strike the following filings: (1) Plaintiff's Rebuttal of Defendants' Answers to Complaint (Doc. No. 9) ; and (2) Plaintiff's Notification requesting addidom [sic] to depositions of December 7, 2017 (Doc. No. 20). The Defendants contend these filings by the pro se Plaintiff are impermissible, non-responsive, and should be stricken from the record. Alternatively, they contend they should be disregarded by the Court.
I agree with the Defendants that the aforementioned filings by Plaintiff have no bearing on the subject matter of the litigation. I find the better course of action is to not strike those filings, but for this Court to disregard them. See Lombard v. MCI Telecommunications Corporation, 13 F.Supp.2d 621, 625 (N.D. Ohio 1998) (); United States v. Rohner, No. 5:12CV2682, 2014 WL 4327923 at *1 (N.D. Ohio 2014). Accordingly, the Defendants' motions to strike (Doc. Nos. 13, 16, and 21) are denied.
Rule 15 provides a party may amend its pleadings once as a matter of course within 21 days of serving the pleading or, if a responsive pleading is required, 21 days after service of a responsive pleading. Fed. R. Civ. Pro. 15(a)(1). Fed. R. Civ. Pro. 15(a)(2). "In the absence of any apparent or declared reason - such as undue delay, 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, futility of amendment, etc. - the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis, 371 U.S. 178, 182 (1962); see also Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir. 1989). "Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted." Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973).
The pro se Plaintiff moves to amend his complaint to add the entities which comprise "MTC" as they are allegedly responsible for the complete medical care and security of all inmates at the North Central Correctional Complex. Petitioner also "seeks relief though official and individual capacity." (Doc. No. 10 at p. 2). In a second filing, the Plaintiff reiterates his need for and the refusal of the Defendants to provide him medical care in the form of a working hearing aid and treatment for his hernia. (Doc. No. 19). Thus far, only Defendants Turner and Joyce have responded to Plaintiff's initial motion to amend his complaint, indicating they had no objection to his request.
As there is no opposition to his motions for leave to amend the complaint, I find Plaintiff's motions are granted.
The Sixth Circuit has held there is no statutory right to appointed counsel in civil cases, but that such an appointment is within a court's discretion. Glover v. Johnson, 75 F.3d 264, 268 (6th Cir.), cert. denied, 519 U.S. 816 (1996). See also, Abdur-Rahman v. Michigan Dept. of Corrections, 65 F.3d 489, 492 (6th Cir. 1995); Willett v. Wells, 469 F. Supp. 748 (E.D. Tenn. 1977), aff'd, 595 F.2d 1227 (6th Cir. 1979). Appointment of counsel in a civil action is a privilege and is justified only by exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993).
At this stage of the litigation, I do not find exceptional circumstances exist and will deny Plaintiff's motion to appoint counsel without prejudice. The Plaintiff may, however, petition the Court to appoint pro bono counsel if the case survives initial dispositive motion practice.
The purpose of Fed. R. Civ. P. 36 is to establish the admission of facts on which...
To continue reading
Request your trial