Marcum v. Duchak et al
| Ted Marcum |
| Dave Duchak, Rob Davie, Stacy Wall, Elizabeth S Gutmann and Steve R Layman |
| 3:2017cv00437 |
| December 19, 2017 |
| US District Court for the Southern District of Ohio |
| Dayton Office |
| MIAMI |
| Michael R. Merz |
| Walter H. Rice |
| Civil Rights |
| 28 U.S.C. ยง 1441 |
| Defendant |
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Filing
145
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. # 144 ); OVERRULING PLAINTIFF'S MOTION FOR RECONSIDERATION (DOC. # 140 ). Based on the reasoning and citations of authority set forth by United States Magistrate Judge Sharon L. Ovington in her June 23, 2021, Report and Recommendations, Doc. # 144 , as well as upon a thorough de novo review of the Court's file and the applicable law, the Court ADOPTS said judicial filing, and OVERRU LES Plaintiff's Motion for Reconsideration, Doc. # 140 , of the Court's March 19, 2018, Decision and Entry dismissing the claims brought against Defendant, Sheriff Dave Duchak, in his individual capacity, Doc. # 49 . Although Plaintiff wa s advised of his right to file Objections to the Report and Recommendations, and of the consequences of failing to do so, no Objections were filed within the time allotted. Only the § 1983 Equal Protection claim brought against Sheriff Duchak in his official capacity remains for trial on April 4, 2022. Signed by Judge Walter H. Rice on 07/14/2021. (bjr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
144
REPORT AND RECOMMENDATIONS re 140 MOTION for Reconsideration filed by Ted Marcum and on Defendant, Dave Duchak's Memorandum in Opposition to Plaintiff's Motion for Reconsideration re 141 . IT THEREFORE IS RECOMMENDED THAT: 1. Plain tiff, Ted Marcum's, Motion for Reconsideration (Doc. 140 ) be DENIED; and 2. This matter hereafter proceed as to the sole remaining issue of Marcum's Equal Protection claim against Defendant, Dave Duchak, in his official capacity only. Objections to R&R due by 7/7/2021. Signed by Magistrate Judge Sharon L. Ovington on 06/23/2021. (bjr) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
130
DECISION AND ENTRY SUSTAINING PLAINTIFF'S MOTION FOR STAY OF PROCEEDINGS (DOC. # 120 ); OVERRULING PLAINTIFF'S REQUEST FOR PHOTOCOPIES (DOC. # 122 ); SUSTAINING DEFENDANT SHERIFF DAVE DUCHAK'S MOTION TO MODIFY THE CASE SCHEDULE (DOC. # 124 ); SUSTAINING PLAINTIFF'S MOTION FOR LEAVE TO FILE EXCESS PAGES AND TO ATTACH AN APPENDIX PERTAINING TO DISCOVERY ISSUES (DOC. # 127 ); VACATING AMENDED PRELIMINARY PRETRIAL ORDER (DOC. # 115 ); STAYING CASE THROUGH FEBRUARY 28, 2021; CONFE RENCE CALL SET FOR MARCH 3, 2021- For this reason, the Court SUSTAINS Plaintiff's Motion for Stay of Proceedings, Doc. #120, and Defendant's Motion to Modify the Case Schedule, Doc. #124. The Court, however, OVERRULES Plaintiff's Reque st for Photocopies, Doc. #122. The Court VACATES the Amended Preliminary Pretrial Order, Doc. #115, and STAYS the above-captioned case through February 28, 2021. If Mr. Marcum has not yet completed the MonDay portion of his sentence by that date, he shall notify the Court so that the stay can be extended. The Court will hold a conference call on March 3, 2021, at 4:30 p.m., to set further deadlines and a new trial date. Prior to that date, Plaintiff MUST notify this Court of his then-present add ress and phone number, in order that the Court might reach him at the above time. Failure to do so WILL result in the dismissal of this lawsuit with prejudice for failure to cooperate. Signed by Judge Walter H. Rice on 8/31/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
121
ORDER - Accordingly, Defendant Sheriff Dave Duchaks Motion to Strike (Doc. # 112 ) is denied. Signed by Magistrate Judge Sharon L. Ovington on 6/10/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
118
DECISION AND ENTRY- It is therefore ORDERED that: 1. The Report and Recommendations docketed on May 12, 2020 (Doc. # 114 ) is ADOPTED in full; and 2. Defendant Sheriff Dave Duchaks Motion to Dismiss for Failure to Prosecute (Doc. # 106 ) is DENIED. IT IS SO ORDERED.. Signed by Judge Walter H. Rice on 6/2/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
114
REPORT AND RECOMMENDATIONS IT IS THEREFORE RECOMMENDED THAT: Defendant Sheriff Dave Duchaks Motion to Dismiss for Failure to Prosecute (Doc. # 106 ) be DENIED. Objections to R&R due by 5/26/2020. Signed by Magistrate Judge Sharon L. Ovington on 5/12/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
107
NOTICE TO PRO SE PLAINTIFF OF MOTION TO DISMISS- You are hereby notified that Defendant Sheriff Dave Duchak filed a Motion to Dismiss on March 3, 2020. (Doc. # 106 ). You should receive a copy of the Motion directly from Defendant.Your response must be filed with the Court not later than March 27, 2020. If you fail to file a timely response, Defendants Motion to Dismiss may be granted and your case dismissed. Signed by Magistrate Judge Sharon L. Ovington on 3/4/2020. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
91
DECISION AND ENTRY GIVING PLAINTIFF ONE FINAL OPPORTUNITY TO A VOID THE CAPTIONED CAUSE BEING DISMISSED FOR FAILURE TO PROSECUTE- ACCORDINGLY, given the exigencies of this case, and the fact that Plaintiff has apparently alternated between his addres s in Troy and the Butler County Jail, this Court willattach to this Decision and Entry, which will be sent to him, at both the Butler County Jail and his address in Troy, Ohio, a blank form for the filling out of a Rule 26(f) Report. He may do so on a unilateral basis. Providing same is filed within ten days from date and, moreover, provided that same is filled out, both completely and realistically, the Court will attempt to "harmonize" each side's Rule 26(f) Report and submit to the parties a scheduling order in as prompt a manner as is possible. Failure of the Plaintiff to file his own Rule 26(f) Report or even should he file same, should said filing be defective in one or more particulars, the captioned cause will be dismissed, for want of prosecution. Signed by Judge Walter H. Rice on 4/24/19. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
86
DECISION AND ENTRY OVERRULING DEFENDANT SHERIFF DAVE DUCHAK'S MOTION TO STRIKE (DOC. # 83 ); SUSTAINING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT (DOC. # 84 ), WHICH THE COURT CONSTRUES AS A MOTION TO MODIFY THE PRELIMINARY PRETRIAL ORDER ; VACATING PRELIMINARY PRETRIAL ORDER (DOC. # 79 ); DIRECTING PARTIES TO CONFER AND FILE JOINT RULE 26(f) REPORT WITHIN 21 DAYS OF THE DATE OF THIS DECISION AND ENTRY. Signed by Judge Walter H. Rice on 3/12/19. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
73
DECISION AND ENTRY TERMINATING AS MOOT PORTIONS OF UNITED STATES MAGISTRATE JUDGE'S REPORTS AND RECOMMENDATIONS ON REQUEST FOR HABEAS CORPUS RELIEF (DOCS. ## 16 , 25 , 28 , 39 ); ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOM MENDATIONS ON REQUEST FOR WRIT OF MANDAMUS (DOC. # 69 ) AND OVERRULING REQUEST FOR WRIT OF MANDAMUS; ADOPTING REPORT AND RECOMMENDATIONS ON REQUEST FOR TEMPORARY PROTECTION ORDER (DOC. # 18 ) AND OVERRULING MOTION FOR TEMPORARY PROTECTION ORDER (DOC. # 3 ); REJECTING UNITED STATES MAGISTRATE JUDGE'S SUBSTITUTED REPORT AND RECOMMENDATIONS (DOC. # 64 ); SUSTAINING PLAINTIFF'S OBJECTIONS THERETO (DOCS. # 67 ); ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S SUPPLEMENT T O SUBSTITUTED REPORT AND RECOMMENDATIONS (DOC. # 69 ); OVERRULING THE REMAINDER OF DEFENDANT SHERIFF DAVE DUCHAK'S MOTION TO DISMISS (DOC. # 7 ). Signed by Judge Walter H. Rice on 8/31/18. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
69
SUPPLEMENT TO SUBSTITUTED REPORT AND RECOMMENDATIONS-This case is before the Court on Plaintiffs Objections (ECF No. 67 ) to the Magistrate Judges Substituted Report and Recommendations (ECF No. 64 ) which recommended grantingSheriff Duchaks Motion to Dismiss Plaintiffs sole remaining claim. Judge Rice has recommitted the case for reconsideration in light of the most recent Objections (ECF No. 68 ). The Magistrate Judge accordingly recommends that Marcums remaining claim for mandamus relief be dismissed as moot. Objections to R&R due by 6/6/2018. Signed by Magistrate Judge Michael R. Merz on 5/23/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
68
RECOMMITTAL ORDER - This case is before the Court on Plaintiffs Objections (ECF No. 67 ) to the Magistrate Judge's most recent Report and Recommendations (ECF No. 64 ). The District Judge has preliminarily considered the Objections and believe s they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and making recommendations based on that analysis. Signed by Judge Walter H. Rice on 5/21/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
64
SUBSTITUTED REPORT AND RECOMMENDATIONS - Based on this set of facts as they now appear from the pleadings, Sheriff Duchak's Motion to Dismiss is well taken in its entirety. This one remaining equal protection claim should be dismissed. Because t his is the last remaining claim, if the Court adopts this recommendation, it should also enter judgment dismissing the Complaint with prejudice. Objections to R&R due by 5/22/2018. Signed by Magistrate Judge Michael R. Merz on 5/8/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
63
ORDER ADOPTING REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT- This case is before the Court on Plaintiff's Motion for Relief from Judgment (ECF No. 58 ). On April 16, 2018, the Magistrate Judge to whom this case is assigned file d a Report and Recommendations recommending the motion be denied (ECF No. 59 ). Plaintiff was notified that any objections to that Report were required to be filed within seventeen days, i.e., not later than May 3, 2018. That time has now expired an d no objections have been filed. Accordingly, the Report and Recommendations are ADOPTED and Plaintiffs Motion for Relief from Judgment (ECF No. 58 ) is DENIED. Signed by Judge Walter H. Rice on 5/7/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
62
RECOMMITTAL ORDER - This case is before the Court on Defendant Duchak's Objections (ECF No. 61 ) to the Magistrate Judge's Fifth Supplemental Report and Recommendations (ECF No. 56 ). The District Judge has preliminarily considered the O bjections and believes they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supp lemental report analyzing the objections and making recommendations based on that analysis.. Signed by Judge Walter H. Rice on 5/3/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
59
DECISION AND ORDER; REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT 58 - Objections to R&R due by 4/30/2018. Signed by Magistrate Judge Michael R. Merz on 4/13/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
57
DECISION AND ORDER ON MOTION TO STRIKE - The Motion (ECF No. 44) of Defendants Duchak, Davie, Gutmann, and Layman to Strike Plaintiff's Sworn Affidavit of February 22, 2018 (ECF No. 40) is granted. Signed by Magistrate Judge Michael R. Merz on 4/10/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
49
ORDER ADOPTING IN PART REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS- Accordingly, the Report and Recommendations are ADOPTED insofar as they recommend dismissing with prejudice all claims against Defendants Layman, Gutmann, and Davie and all clai ms against Defendant Duchak except for Marcum's Equal Protection claim regarding failure to provide a free telephone call to contact a bondsman or attorney1. Signed by Judge Walter H. Rice on 3/19/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
47
ORDER ADOPTING THIRD SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Accordingly, the Third Supplemental Report and Recommendations is adopted and the Petition herein dismissed without prejudice. Because reasonable jurists would not disagree with this con clusion, Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed informa pauperis. Signed by Judge Walter H. Rice on 3/14/18. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
41
REPORT AND RECOMMENDATIONS ON MOTIONS TO DISMISS 7 and 9 - The Magistrate Judge respectfully recommends that the Motions to Dismiss be GRANTED except as to Marcum's Equal Protection claim regarding failure to provide a free telephone call to contact a bondsman or attorney. Objections to R&R due by 3/9/2018. Signed by Magistrate Judge Michael R. Merz on 2/22/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
39
FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the matter in light of Mr. Marcum's Objections, the Magistrate Judge adheres to his prior recommendations. Objections to R&R due by 3/7/2018. Signed by Magistrate Judge Michael R. Merz on 2/21/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) kpf).
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Filing
38
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends Mr. Marcum's habeas corpus claims be dismissed without prejudice for lack of exhaustion, but will withdraw that recommendation if Mr. Marcum f iles his proposed Amended Petition as he has promised to do. Objections to R&R due by 3/6/2018. Signed by Magistrate Judge Michael R. Merz on 2/20/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
36
RECOMMITTAL ORDER - This case is before the Court on Petitioner's Objections (ECF No. 34 & 35 ) to the Magistrate Judge's Reports and Recommendations (ECF Nos. 25 & 28 ). The District Judge has preliminarily considered the Objection s and believes they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and making recommendations based on that analysis.. Signed by Judge Walter H. Rice on 2/6/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
28
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - If Mr. Marcum will file a separate habeas corpus petition embodying his claims for that relief, the Magistrate Judge will grant a motion to hold those claims in abeyance pending exhaustion of state court remedies. However, the Magistrate Judge remains persuaded that Mr. Marcum should be required to exhaust. Objections to R&R due by 2/9/2018. Signed by Magistrate Judge Michael R. Merz on 1/26/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
27
RECOMMITTAL ORDER - This case is before the Court on Petitioner's Supplemental Objections (ECF No. 26 ) to two Reports and Recommendations of Magistrate Judge Merz (ECF No. 16 & 17 ), combined in the same document with initial Objections t o Magistrate Judge Merz's Report and Recommendations on motion for Temporary Protection Order (ECF No. 18 ). The District Judge has preliminarily considered the Objections and believes they will be more appropriately resolved after further anal ysis by the Magistrate Judge. Accordingly, pursuantto Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to file a supplemental report analyzing the Objections and making recommendations based on that analysis. Signed by Judge Walter H. Rice on 1/24/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
24
RECOMMITTAL ORDER - This case is before the Court on Petitioner's Objections (ECF No. 21 ) to the Magistrate Judge's Reports and Recommendations (ECF Nos. 16 & 17 ) and Order (ECF No. 19 ). The District Judge has preliminarily consid ered the Objections and believes they will be more appropriately resolved after further analysis by the Magistrate Judge. Accordingly, pursuant to Fed. R. Civ. P. 72(b)(3), this matter is hereby returned to the Magistrate Judge with instructions to f ile a supplemental report analyzing the Objections and making recommendations based on that analysis. Signed by Judge Walter H. Rice on 1/22/18. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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Filing
19
ORDER DENYING APPOINTMENT OF COUNSEL AND FINDING MOTION FOR CLASS CERTIFICATION TO BE MOOT. Signed by Magistrate Judge Michael R. Merz on 1/11/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
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