IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

 

JOHN D. COCKSHUTT, 

Plaintiff, 

 vs. Case No. 2:12-cv-532 

 Magistrate Judge King 

 

STATE OF OHIO, DEPARTMENT OF 

REHABILITATION & CORRECTION, 

et al., 

 

 Defendants. 

 

 

 OPINION AND ORDER

Plaintiff John D. Cockshutt, a state prisoner, alleges that his 

security level was increased based on a false conduct charge, denying 

him his rights to due process and to be free from cruel and unusual 

punishment. The Complaint, Doc. No. 4, seeks expungement of 

plaintiff’s conduct report as well as monetary damages. This matter is 

now before the Court, with consent of the parties pursuant to 28 

U.S.C. § 636(c), for consideration of plaintiff’s motion for 

Substitution of Defendant (“Plaintiff’s Motion”), Doc. No. 55. 

Defendants oppose Plaintiff’s Motion, Defendants’ Response to 

Plaintiff’s Motion for Substitution of Defendant (“Defendants’ 

Response”), Doc. No. 61, and plaintiff has filed a reply. Plaintiff’s 

Motion [] Contra to the Defendant[s’] Response (“Plaintiff’s Reply”), 

Doc. No. 66. Also before the Court is plaintiff’s Motion to Appoint 

Counsel, Doc. No. 67. 

The Complaint, Doc. No. 4, was filed on June 18, 2012 and names 

as a defendant, inter alios, Ernie Moore, who is the former Director 

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of the Ohio Department of Rehabilitation and Correction (“ODRC”) and 

the current Warden of the Lebanon Correctional Institution. Id. at p. 

1. The docket indicates that service was effected on “Ernie Moore 

(Gary Mohr) Director ODRC”. See Doc. No. 9, pp. 1-3. However, Gary 

Mohr, the current Director of ODRC, asserts that it was he who was 

actually served instead of Ernie Moore. Defendants’ Response, p. 3. 

Gary Mohr filed an answer on August 17, 2012, indicating that, as the 

current Director of ODRC, he has been automatically substituted for 

“former ODRC Director Ernie Moore” pursuant to Fed. R. Civ. P. 25(d). 

Answer of Defendants Gary Mohr, Gary Croft, and Casey Barr to 

Plaintiff’s Complaint, with Jury Demand, Doc. No. 21, p. 1 n.1. 

Plaintiff now seeks to substitute Ernie Moore as defendant 

instead of Gary Mohr. Plaintiff notes that Ernie Moore was the 

Director of ODRC at the time of the events that gave rise to this 

action; plaintiff expressly asks that Gary Mohr be dismissed as a 

defendant. Plaintiff’s Motion, p. 2. 

The parties seem to agree that Ernie Moore is the proper 

defendant and that Gary Mohr’s participation in the action was 

erroneous. See id.; Defendants’ Response, pp. 5-6; Plaintiff’s Reply, 

p. 1. The parties also agree that Fed. R. Civ. P. 25(d) did not serve 

to effect the automatic substitution of Gary Mohr for Ernie Moore 

because Ernie Moore was not the Director of ODRC at the time this 

action was filed. Plaintiff’s Reply, p. 1; Defendants’ Response, p. 

4. The Court agrees with that determination. See Fed. R. Civ. P. 

25(d) (“An action does not abate when a public officer who is a party 

in an official capacity dies, resigns, or otherwise ceases to hold 

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office while the action is pending. The officer's successor is 

automatically substituted as a party.”) (emphasis added). 

Accordingly, to the extent that Gary Mohr has participated in 

this action, he has done so mistakenly and has not acted on behalf of 

any party. Gary Mohr is not a proper defendant in this action and he 

has no responsibility or authority to act in this case. The Answer of 

Defendants Gary Mohr, Gary Croft, and Casey Barr to Plaintiff’s 

Complaint, with Jury Demand, Doc. No. 21, is therefore ordered 

STRICKEN to the extent that it relates to Gary Mohr. 

Plaintiff has filed a summons and a Marshals service form for 

defendant Ernie Moore. See Doc. No. 68. Plaintiff is ADVISED that he 

must also provide a copy of the Complaint before service can be 

effected on Ernie Moore. Should plaintiff provide a copy of the 

Complaint, the United States Marshal will be DIRECTED to effect 

service of process by certified mail on Ernie Moore, who shall have 45 

days after service of process to respond to the Complaint. 

Also before the Court is plaintiff’s Motion to Appoint Counsel. 

Defendant Schmutz has filed a motion to dismiss for failure to state a 

claim, Doc. No. 31, defendant Ernie Moore has not been served with 

service of process, and the remaining defendants have filed an answer, 

Doc. Nos. 21, 33. Because the action has not yet progressed to the 

point that the Court is able to evaluate the merits of plaintiff’s 

claim, the Motion to Appoint Counsel, Doc. No. 67, is DENIED without 

prejudice to renewal at a later stage of the proceedings. See Henry 

v. City of Detroit Manpower Dept., 763 F.2d 757, 760 (6th Cir. 1985) 

(“[I]n considering an application for appointment of counsel, district 

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courts should consider plaintiff’s financial resources, the efforts of 

plaintiff to obtain counsel, and whether plaintiff’s claim appears to 

have any merit.”). 

This Opinion and Order resolves plaintiff’s motion for 

Substitution of Defendant, Doc. No. 55, and plaintiff’s Motion to 

Appoint Counsel, Doc. No. 67. The Clerk is DIRECTED to remove Doc. 

Nos. 55 and 67 from the Court’s pending motions list. 

March 11, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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