IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:12-cv-729

 : JUDGE MICHAEL H. WATSON

John Kasich, et al., Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

Plaintiff Benjamin Hendricks, a former Ohio inmate currently 

residing in Tennessee, has filed a motion to reopen this civil

rights action brought under 42 U.S.C. §1983. Briefly, on May 21,

2014, Mr. Hendricks filed a motion to voluntarily dismiss this

action. On July 24, 2014, the Court issued a Report and

Recommendation recommending that Mr. Hendricks’ unopposed motion

be granted. The Report and Recommendation was adopted by order

dated November 25, 2014, and this case was dismissed without

prejudice on that date.

Mr. Hendricks filed his motion to reopen on October 5, 2015. 

The motion states, in its entirety:

The Plaintiff, Mr. Hendricks, respectfully

requests this Court to reopen this case. The case was

voluntarily withdrawn under Rule 41 and officially

closed in November 2014. The Plaintiff now wishes to

reopen this matter. The Plaintiff wishes to use the

last amended complaint filed with this Court and

respectfully requests a copy of said amended complaint

be sent to him at the address below. 

Defendants make two arguments in opposing Mr. Hendricks’

motion. First, defendants contend that, prior to his request to

voluntarily dismiss this action, in an order issued May 16, 2014

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(Doc. 41), the Court had directed Mr. Hendricks to file an

amended complaint consistent with the terms of that order. 

Because Mr. Hendricks did not file an amended complaint as

directed, defendants assert that there is no proper complaint

before this Court. Further, defendants assert that, shortly

after his move to Tennessee, Mr. Hendricks was arrested and

remains in custody. As a result, defendants explain, the Court

has no personal jurisdiction over Mr. Hendricks. This latter

argument is so completely without legal support - Mr. Hendricks

is, after all, a plaintiff invoking the jurisdiction of the Court

and not a defendant who must have sufficient minimum contacts

with Ohio in order to support jurisdiction - that the Court will

not address it further.

In reply, Mr. Hendricks notes that the defendants filed

their response two days late, and asserts that they have waived

any right to object to the reopening of this case. 

Additionally, Mr. Hendricks explains that he knows that the most

recently filed complaint needs to be corrected to comply with the

Court’s order. He asks for leniency on this issue and states

that he requested a copy of the complaint to make the

corrections. He also seeks a 30-day extension to do so. 

Finally, he wants the Court to “issue a warning to defense

counsel for knowingly presenting false information, or only part

to the correct information, to this Court.” In closing, Mr.

Hendricks requests the following relief, stated here verbatim: 

1) Copy of the most recent Complaint and Order

granting in part that Complaint

(2) 30 days after receipt of that Complaint and Order

to comply with the Order

(3) Issue a warning to defense counsel about false

information

(4) Appoint counsel

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(5) Alternatively, re-open case and issue a stay and

abeyance until 30 days after Plaintiff resolves

Tennessee issues and returns to Ohio or allowed to

go home in Tennessee. 

Mr. Hendricks does not say which procedural ground he is

relying on in seeking to reopen his case. Although courts

frequently construe motions to reopen as motions for relief from

judgment under Fed.R.Civ.P. 60(b), Mr. Hendricks does not address

any of the factors relevant to such a motion. Rather, his motion

suggests that he is now ready to pursue claims he had previously

sought to have voluntarily dismissed for health reasons. This

understanding is consistent with Mr. Hendricks’ discussion of the

Ohio savings statute in his motion to voluntarily dismiss his

complaint without prejudice. 

A Rule 60(b) motion is not the correct procedural mechanism

for refiling a case after a voluntary dismissal has been taken. 

Rather, the proper way to proceed is simply to file a new

complaint. Given Mr. Hendricks’ pro se status, the Court will

construe Mr. Hendricks’ motion to reopen as his attempt to comply

with the savings statute and to pursue his claims by way of a new

civil action. Further, the Court will construe this new action

as having been filed as of the date of the filing of his motion. 

See, e.g., Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001)

(finding pro se prisoner’s mistake in filing a motion to

reinstate his case as not fatal and construing filing liberally

to be treated as initiating a new action). 

The statute of limitations applicable to claims arising

under 42 U.S.C. §1983 is the two-year statute of limitations

found in Ohio Revised Code §2305.10. Browning v. Pendleton, 869

F.2d 989 (6th Cir. 1989). Mr. Hendricks’ claims, predating the

filing of his original complaint in 2012, are clearly more than

two years old. However, when applying a state’s statute of

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limitations, this Court is required to use the state’s procedural

rules affecting that statute of limitations. Coleman v.

Department of Rehabilitation and Corrections, 46 Fed.Appx. 765 

(6th Cir. 2002). Consequently, the Court will consider whether

the Ohio savings statute, as cited by Mr. Hendricks previously, 

works to preserve his claims here. 

That statute, Ohio Rev. Code 2305.19 provides:

In any action that is commenced or attempted to be

commenced, if in due time a judgment or the plaintiff

is reversed or if the plaintiff fails otherwise than

upon the merits, the plaintiff, or if the plaintiff

dies and the cause of action survives, the plaintiff’s

representative may commence a new action within one

year after the date of the reversal of the judgment or

the plaintiff’s failure otherwise than upon the merits

or within the period of the original applicable statute

of limitations, whichever occurs later. ...

Voluntary dismissal of an action under Rule 41(a)(2) is

considered by courts to constitute a failure otherwise than on

the merits. See Cooper v. City of Westerville, Ohio, 2014 WL

617650, *5 (S.D. Ohio Feb. 18, 2014). Further, the savings

statute applies where “‘an action is timely commenced and is then

dismissed without prejudice after the applicable statute of

limitations has run.’” Harris v. U.S., 422 F.3d 322, 331 (6th

Cir. 2005), quoting Lewis v. Connor, 21 Ohio St.3d 1 (1985). 

Additionally, it applies when “‘[t]he original suit and the new

action are substantially the same.’” American Premier

Underwriters, Inc. v. General Electric Co., 900 F.Supp.2d 753,

758 (S.D. Ohio 2012), quoting Children’s Hospital v. Ohio Dept.

of Public Welfare, 69 Ohio St.2d 523 (1982). 

In Mr. Hendricks’ original case, the Court granted his

motion to dismiss on November 25, 2014. This was after the

expiration of the statute of limitations. Mr. Hendricks had one

year from that date to initiate a new action. Mr. Hendricks

filed his current motion on October 5, 2015, within the one-year

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deadline. The nature of Mr. Hendricks’ motion indicates his

intention to pursue the same claims from his original case. 

Under these circumstances, the Court finds that the Ohio savings

statute is applicable. Defendants do not argue otherwise, and

that conclusion is dispositive of the present motion. 

Consequently, the motion to reopen, construed as set forth above,

will be granted to this extent.

Turning to Mr. Hendricks’ additional requests for relief, to

the extent he seeks the appointment of counsel, because this

action has not yet progressed to the point that the Court is able

to evaluate the merits of plaintiff's claims, such request is

denied. See Mars v. Hanberry, 752 F.2d 254 (6th Cir. l985). 

Further, the Court notes that Mr. Hendricks has requested copies

of certain documents including the most recent complaint and the

Court’s order on amendment. The Clerk’s office has procedures

for obtaining copies of documents and Mr. Hendricks should

contact that office directly for information regarding copying

fees. 

For the reasons stated above, Mr. Hendricks’ motion to

reopen (Doc. 48), construed as the filing of a new action, is

granted. The Clerk shall open a new civil action. The effective

filing date of that action is October 5, 2015. A copy of the

motion to reopen and all subsequent filings in this case,

including this Opinion and Order, shall be docketed in the newlyfiled case. Mr. Hendricks shall file a complaint under the new

case number within 30 days of the date of this order. He is

responsible for paying the filing fee for that action, which he

should do within thirty days, and for serving the complaint on

the defendants, unless he applies for and is granted in forma

pauperis status. Mr. Hendricks should contact the Clerk’s office

regarding his request for copies of any prior filings in this

case.

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MOTION FOR RECONSIDERATION

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

United States Magistrate Judge

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