IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

OTTO BERK, et al.,

Plaintiffs,

vs. Civil Action 2:10-CV-1082

Judge Frost

Magistrate Judge King

ERNIE MOORE, DIRECTOR, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiffs, three inmates at the Marion Correctional Institution

[“MCI”] who were convicted of criminal offenses prior to 1996, bring

this action for declaratory and injunctive relief under 42 U.S.C.

§1983 alleging that the retroactive application to them of Ohio’s

current parole laws and guidelines violates the due process and ex

post facto clauses of the United States Constitution as well as the

Ohio Constitution. This matter is now before the Court on defendants’

motion to dismiss the claims of plaintiffs Jeff Blair and Don Hall for

misjoinder pursuant to Fed. R. Civ. P. 20, Doc. No. 24, and on

plaintiffs’ motion for default, Doc. No. 28.

Rule 20(a)(1) of the Federal Rules of Civil Procedure provides

that persons may be joined as plaintiffs in an action if

(A) they assert any right to relief 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

plaintiffs will arise in the action.

Moreover, Fed. R. Civ. P. 21 makes clear that a court “may at any

time, on just terms, add or drop a party. The court may also sever

any claim against a party.” The handling of misjoined claims falls

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within the broad discretion of the trial court. Michaels Bldg. Co. v.

Ameritrust Co., N.A., 848 F.2d 674, 682 (6th Cir. 1988).

Defendants contend that the three named plaintiffs have

improperly joined their claims in this action:

Plaintiffs Berk, Blair and Hall each bring very

different factual backgrounds to this case. Each

was convicted of different crimes under different

circumstances. . . . Each had separate parole

suitability hearings where unique information was

considered by the [Ohio Parole] Board . . . . 

Plaintiffs were denied release on parole at

different hearings. . . . Allowing Plaintiffs

with extraordinarily diverse backgrounds to

proceed together in an ex post facto/parole case

conflicts with the individualized nature of such

cases and would create problems that this Court

and the Sixth Circuit routinely seek to avoid. .

. .

Defendants’ Motion to Dismiss without Prejudice Plaintiffs Blair and

Hall for Misjoinder, at 3-4. This Court recently held, in granting

motions for leave to intervene filed by other inmates, that “the . . .

challenge to the retroactive application of current parole laws and

regulations to persons convicted prior to 1996 presents [common]

questions of law and fact” and that resolution of the various claims

“will be based primarily on issues of law.” Opinion and Order, Doc.

No. 45, at 6. That same reasoning persuades this Court that,

notwithstanding the different details surrounding each plaintiff’s

parole hearings, the claims of all three named plaintiffs arise out of

the same transaction or occurrence or series of transactions or

occurrences, and that a common, fundamental question of law – i.e.,

may current parole laws and regulations be retroactively applied to

plaintiffs – will arise in the action. The Court therefore concludes

that the claims of the three named plaintiffs were properly joined in

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this action. It follows that defendants’ motion to dismiss for

misjoinder is without merit.

Plaintiffs have asked that defendants’ default be entered because

defendants failed to timely respond to the Complaint. Doc. No. 28. 

However, on March 1, 2011, this Court granted defendants’ motions to

stay their response to the Complaint pending resolution of their

motion to dismiss. Order, Doc. No. 37. Thus, defendants are not in

default for response to the Complaint. Plaintiffs’ motion for default

is therefore without merit.

It is therefore RECOMMENDED that defendants’ motion to dismiss

for misjoinder, Doc. No. 24, be denied and that plaintiffs’ motion for

default, Doc. No. 28, be likewise denied.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

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States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

May 16, 2011

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