United States District Court, S.D. Ohio, Eastern Division
KEVIN A. TOLLIVER, Plaintiff,
REGIONAL DIRECTOR ROBERT JEFFRIES, et al., Defendants.
C. Smith Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
Kevin A. Tolliver, a state inmate who is proceeding without
the assistance of counsel, has brought this civil rights
action against numerous Defendants. In light of the unique
procedural posture of this case, the Court
RECOMMENDS that this action be stayed
pending resolution of Plaintiff's appeal of Tolliver
v. Noble, et al., No. 2:16-cv-1020 to the United States
Court of Appeals for the Sixth Circuit.
case has a bit of history behind it. Prior to filing this
matter, Plaintiff filed another lawsuit in this Court, namely
Tolliver v. Noble, et al., No. 2:16-cv-1020.
Plaintiff's claims in that case primarily concerned an
alleged deprivation of personal property (including legal
materials) and transfer to another institution. (See
Doc. 1 in 2:16-cv-1020). The matter came before the Court on
an initial screen which required the Court to dismiss the
Complaint (or any portion of it) that was frivolous or
malicious, failed to state a claim upon which relief may be
granted, or sought monetary relief from a defendant who was
immune from such relief. 28 U.S.C. §§ 1915(e)(2),
Report and Recommendation issued on January 13, 2017, the
Court recommended, inter alia, that Plaintiff's
Complaint be dismissed for failure to state a claim.
(See Doc. 1 in 2:16-cv-1020). The Court acknowledged
that the legal materials Plaintiff was allegedly deprived of
pertained to a potential claim under the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) and
his criminal appeals, but ultimately determined
Plaintiff's allegations were inadequately supported by
facts in the Complaint. (See id.).
objected on January 30, 2017, explaining that the Court
should have received his proposed Amended Complaint
addressing these deficiencies. (See Doc. 12 in
2:16-cv-1020). Plaintiff attached the Notice and Filing of
the Motion for Leave to File an Amended Complaint to his
objection. (Ex. 1 to Doc. 12 in 2:16-cv-1020). Plaintiff also
filed a Motion for an Extension of Time to File an Amended
Complaint on February 17, 2017, noting his objection to the
Report and Recommendation and explaining that he had obtained
additional information to support his claims, had attempted
to amend his complaint, and was requesting an additional
thirty days in order to do so. (Doc. 13 in 2:16-cv-1020).
March 8, 2017, the District Judge issued an Order adopting
the Report and Recommendation. (Doc 14 in 2:16-cv-1020). In
doing so, he noted that “Plaintiff object[ed] to the
Magistrate Judge's Order and Report and Recommendation,
by arguing that he has filed a Motion to Amend his Complaint,
but actually he has filed a Motion for Extension of Time to
file an Amended Complaint, which has been received and
docketed by the Court as ECF No. 13.” (Id. at
1). However, the District Judge determined that
“Plaintiff's objections present[ed] the same issues
presented to and considered by the Magistrate Judge in the
Order and Report and Recommendation” and concluded that
“[h]e has failed to establish any basis for
reconsideration of the Magistrate Judge's conclusions
that his Complaint fails to state a claim which relief may be
granted by this Court.” (Id. at 2).
Consequently, the District Judge dismissed the Complaint for
failure to state a claim, denied Plaintiff's Motion for
an Extension of Time to File an Amended Complaint as moot,
and directed the Clerk to terminate the case. (Id.).
weeks following the District Judge's Order, Plaintiff
filed a Motion for Leave to File an Amended Complaint. (Doc.
16 in 2:16-cv-1020). The proposed Amended Complaint provided
that his claims arose under 42 U.S.C. § 1983 and
concerned alleged retaliation for his successful use of the
inmate grievance process in violation of his First Amendment
rights. (Doc. 16-1 in 2:16-cv-1020; see also id. at
2 (stating that “[p]art and parcel of the
retaliation” are claims under the Eighth and Fourteenth
Amendments)). Plaintiff's proposed Amended Complaint
contained new facts in support of his allegations, many of
which concerned the propriety of the religious services
provided at the institution. (See id.). However, in
light of the District Judge's March 8, 2017 Order denying
his request to file an Amended Complaint, the Court denied
Plaintiff's Motion and instructed Plaintiff that no
further filings should be made in the terminated case. (Doc.
17 in 2:16-cv-1020).
April 11, 2017, Plaintiff appealed the March 8, 2017
dismissal of his Complaint and the denial of his request to
file an Amended Complaint to the United States Court of
Appeals for the Sixth Circuit. See Tolliver v. Noble, et
al., No. 17-3367; (Doc. 18 in 2:16-cv-1020). On December
14, 2017, the Sixth Circuit granted Plaintiff's motion
for leave to proceed in forma pauperis on appeal and
granted his motion for the appointment of counsel due to the
relative complexity of some of the issues presented.
(See Doc. 22 in 2:16-cv-1020).
meantime, Plaintiff filed the instant case, which the Court
has deemed related to his original case, Tolliver v.
Noble, et al., No. 2:16-cv-1020. (See Doc. 8).
Plaintiff's thirty-one page Complaint is nearly identical
to the Complaint that Plaintiff attempted to file two weeks
following the District Judge's Order in Tolliver v.
Noble, et al., No. 2:16-cv-1020. (Compare Doc. 16-1
in 2:16-cv-1020 with Doc. 6 in 2:17-cv-806). Thus,
the Court must determine whether it is able to review
Plaintiff's claims in this case, given that they are the
same claims he seeks to pursue through his appeal.
United States Supreme Court addressed “the power of a
court to stay proceedings in one suit until the decision of
another, and upon the propriety of using such a power in a
given situation” long ago in Landis v. North
American Co., 299 U.S. 248 (1936). In that decision, the
Supreme Court stated, “[v]iewing the problem as one of
power, and of power only, we find ourselves unable to assent
to the suggestion that before proceedings in one suit may be
stayed to abide the proceedings in another, the parties to
the two causes must be shown to be the same and the issues
identical.” Id. at 255. Rather, the Supreme
Court determined that “the power to stay proceedings is
incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for
litigants” and observed that “[h]ow this can best
be done calls for the exercise of judgment, which must weigh
competing interests and maintain an even balance.”
Id. (citations omitted). “In assessing the
propriety of a stay, courts weigh ‘the potentiality of
another case having a dispositive effect on the case to be
stayed, the judicial economy to be saved by waiting on a
dispositive decision, the public welfare, and the
hardship/prejudice to the party opposing the stay, given its
duration.'” Schartel v. OneSource Tech.,
LLC, 1:15-cv-1434, 2015 WL 7430056, at *1 (N.D. Ohio
Nov. 17, 2015) (quoting Michael v. Ghee, 325
F.Supp.2d 829, 831 (N.D. Ohio 2004)).
initial screening that the Court would typically conduct at
this stage of the proceedings suggests that Plaintiff may
have at least some viable claims under RLUIPA and the First
Amendment based on free exercise and retaliation; hence,
Plaintiff would have an interest in the efficient resolution
of those claims on the merits. Indeed, Defendants, the
public, and this Court share that same interest. However, if
Plaintiff is able to pursue those same claims in the 2016
case, his claims may be precluded here. At the very least,
the appeal concerning the same issues between the same
parties raises the potential for inconsistent rulings.
Because Plaintiff's filings led to this unique procedural
posture, it does not appear that a stay of this case would
impose an undue ...