UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TED MARCUM,

Plaintiff,

vs.

SHERIFF DAVE DUCHAK, et al.,

Defendants.

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Case No. 3:17-cv-437

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

This matter is before the Court on Plaintiff Ted Marcum’s Motion for 

Reconsideration (Doc. #140), and on Defendant Dave Duchak’s Memorandum in 

Opposition to Plaintiff’s Motion for Reconsideration. (Doc. #141).2 For the reasons 

that follow, it is RECOMMENDED that Plaintiff’s Motion for Reconsideration be 

DENIED.

Factual & Procedural Background/The Parties’ Claims

This three-and-a-half-year-old case has an extensive history involving both 

the state courts of Ohio and this Court. In October of 2017, Marcum entered a nocontest plea in the Miami County Municipal Court to a reduced charge of 

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

2 Marcum has not filed a reply memorandum as to the current motion, and the time for doing so 

has expired. See S.D. Ohio Civ. R. 7.2(a)(2).
2

attempted breaking and entering. While serving the 180-day sentence imposed for 

that crime, Marcum filed a 99-page pro se complaint in the Miami County 

Common Pleas Court, setting forth claims for monetary relief under 42 U.S.C. § 

1983 due to alleged violations of his civil rights, but also seeking declaratory and 

injunctive relief, including requests for habeas corpus and mandamus relief from 

his confinement. (See Doc. #1, Exh. 4, and Doc. #2). Named as Defendants were 

Duchak, the Miami County Sheriff who then had custody of Marcum; Miami 

County Municipal Court Judge Elizabeth S. Gutmann, who sentenced him; Stacy 

Wall, whom Marcum identified as an Assistant Prosecutor for Miami County; 

Public Defender Steve Layman; and Miami County Correctional Officer Rob 

Davey.3 (Id.).

Due to conflicts of interest implicated by the inclusion of Miami County 

officials as Defendants, the matter was assigned to a visiting judge, who 

determined that Marcum’s then-pending direct appeal deprived the Common Pleas 

Court of jurisdiction over his mandamus claim and also presented an adequate 

remedy for his habeas claim. (Doc. #1, Exh. 13). The visiting judge thus dismissed 

those two claims without prejudice. (Id.). Defendants then removed the matter to 

federal court. (Doc. #1). Marcum’s motion seeking appointment of counsel, 

3 This Court has adopted the spelling of Davey’s last name as stated by Defendants rather than 

the spelling set forth in Marcum’s complaint. (See Doc. #1, p. 1, n.1).
3

certification of a class action, and a temporary protection order already was

pending at that time. (Doc. #3).

Either shortly before or shortly after removal, all Defendants moved to 

dismiss the claims against them. (Docs. #4, 7, 9). On referral from District Judge 

Walter H. Rice, Magistrate Judge Michael R. Merz issued a series of at least 12 

separate Report and Recommendations addressing the Defendants’ motions to 

dismiss and various other issues raised by the parties. (See Docs. #16, 17, 18, 25, 

28, 38, 39, 41, 56, 59, 64, 69). In the Report and Recommendations on Motions to 

Dismiss issued on February 23, 2018, Magistrate Judge Merz determined, inter 

alia, that Marcum’s complaint failed to allege any viable claim against Defendant 

Duchak in his individual capacity. (Doc. #41, pp. 11-12). He recommended that all 

of Marcum’s claims except his Equal Protection claim be dismissed. (Id., pp. 18-

19). A copy of that Report and Recommendations was served on Marcum and 

contained an express warning that “[f]ailure to make objections in accordance with 

th[e] procedure [set forth at Fed. R. Civ. P. 72(b)] may forfeit rights on appeal.” 

(Id., p. 19). 

Although Marcum filed written objections to nearly all previous and 

subsequent Report and Recommendations (see, e.g., Docs. #21 [objections to 

Docs. #16, 17]; 26 [objections to Docs. #16, 17, 18]; 34 [objections to Doc. #28]; 

35 [objections to Doc. #25]; 61 [objections to Doc. #56]; 67 [objections to Doc. 
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#64]), he did not formally object to the Report and Recommendations on Motions 

to Dismiss. (See Doc. #49, p. 1). Accordingly, on March 19, 2018, Judge Rice 

adopted the recommendation as to the individual capacity claims, and dismissed all 

of Marcum’s claims against Duchak except his Equal Protection claim. (Doc. #49).

More than three years later – on March 25, 2021 – Marcum filed his current 

motion asking the Court to reconsider Magistrate Judge Merz’s February 23, 2018 

Report and Recommendations on Motions to Dismiss (Doc. #41), as well as Judge 

Rice’s March 19, 2018 Order adopting that Report and Recommendations. (Doc. 

#49, adopting Doc. #41).

4 Marcum’s current challenge is directed only toward the 

dismissal of his claims against Duchak in his “individual capacity.” (Doc. #140).

Marcum contends that he failed to object to Magistrate Judge Merz’s 

recommendation that the claims against Duchak individually be dismissed only 

because he (Marcum) “did not notice” that aspect of the subject Report and 

Recommendations. (Id., p. 2, citing Doc. #41, p. 11). Due to that purported 

“oversight,” Marcum now claims to have been prevented from demonstrating that 

his complaint actually does contain allegations against Duchak for actions taken in 

4 While the opening paragraphs of Marcum’s Motion to Reconsider identify Doc. 48 as the Order 

at issue (see Doc. #140, p. 1), both the March 19, 2018 date his motion specifies for the Order 

(see id.) and the motion’s later references to Doc. 49 (id., pp. 2, 5) make clear that Judge Rice’s 

March 19, 2018 Order adopting Magistrate Judge Merz’s February 23, 2018 Report and 

Recommendations regarding the individual capacity claims against Defendant Duchak (Doc. 

#49) is the Order that Marcum intends to target here – not the March 14, 2018 Order Adopting 

Third Supplemental Report and Recommendation and dismissing Marcum’s habeas corpus 

claims without prejudice. (See Doc. #48, adopting Doc. #38).
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his individual capacity – i.e., Duchak’s act of “enforcing the [Miami County Jail] 

policy” that denied Duchak a “free” phone call to an attorney, in violation of his 

constitutional right to counsel. (Id., pp. 2-5). On that basis, Marcum contends that 

Duchak is subject to individual liability for his own conduct and on the theory of 

“supervisory liability,” due to his “creating a policy or custom under which the 

unconstitutional practices occurred.” (Id., p. 10, n.9). Marcum suggests that 

fundamental fairness requires that he be permitted to proceed against Duchak in his 

individual capacity, and thus asks the Court to reconsider the dismissal of his

individual capacity claims.

In opposing that motion, Defendant Duchak argues that Marcum has not 

satisfied Fed. R. Civ. P. 54(b)’s standard for relief from judgment, as his Motion 

for Reconsideration is both untimely and without merit. (Doc. #141). Contending 

that Marcum had ample prior opportunity to object to the dismissal of his claims 

against Duchak individually, Duchak urges that Marcum’s proposition that he only 

recently realized that those claims had been dismissed does not warrant revisiting 

that issue. Further, Duchak contends that Marcum’s complaint fails to allege that 

Duchak personally participated in any deprivation of rights that Marcum may have 

experienced, and that Marcum cannot now inject a theory of supervisory liability 

as a new means of holding Duchak personally liable. Duchak thus asks that 

Marcum’s motion be denied.
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Standard of Review

a. Motions for Reconsideration

As previously recognized by this Court, “[t]he Federal Rules of Civil 

Procedure do not specifically provide for motions for reconsideration.” Sherrod v.

Wal-Mart Stores, Inc., No. 3:14-CV-454, 2021 WL 534613, at *4 (S.D. Ohio Feb. 

12, 2021). Nevertheless, those rules do authorize a court, at any time before the 

entry of final judgment, to revise any order or decision that “adjudicates fewer than 

all the claims . . . of fewer than all the parties.” Fed. R. Civ. P. 54(b). Accordingly, 

motions for reconsideration of interlocutory decisions have been treated as motions 

for relief under Rule 54(b). See Sherrod at *4.

Typically, a court will reconsider an interlocutory or non-final order only 

when there is “(1) an intervening change of controlling law; (2) new evidence 

available; or (3) a need to correct a clear error or prevent manifest injustice.” Id., 

quoting Louisville/Jefferson Cty. Metro Gov’t v. Hotels.com, L.P., 590 F.3d 381, 

389 (6th Cir. 2009); see also Ohio v. U.S. Env't Prot. Agency, No. 2:15-CV-2467, 

2019 WL 417297, at *2 (S.D. Ohio Feb. 1, 2019) (“[a]s a general principle, 

motions for reconsideration are looked upon with disfavor unless the moving party 

demonstrates: (1) a manifest error of law; (2) newly discovered evidence which 

was not available previously to the parties; or (3) intervening authority.”), quoting 

Meekison v. Ohio Dep’t of Rehab. & Corr., 181 F.R.D. 571, 572 (S.D. Ohio 1998).
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“Motions for reconsideration are not intended to re-litigate issues previously 

considered by the Court or to present evidence that could have been raised earlier.”

Sherrod at *4, quoting Northeast Ohio Coalition for Homeless v. Brunner, 652 F. 

Supp. 2d 871, 877 (S.D. Ohio 2009). Although “frequently brought,” motions for 

reconsideration should be “granted only in rare and unusual circumstances.” Z.H.

by & through Hutchens v. Abbott Labs., Inc., No. 1:14CV176, 2017 WL 5462181, 

at *2 (N.D. Ohio Jan. 9, 2017), citing Gencorp, Inc. v. American Int'l

Underwriters, 178 F.3d 804, 834 (6th Cir. 1999); Plaskon Elec. Materials, Inc. v.

Allied–Signal, Inc., 904 F. Supp. 644, 669 (N.D. Ohio 1995). Courts “need not and 

should not” reconsider their prior decisions “in the vast majority of instances, 

especially where [motions for reconsideration] merely restyle or re-hash the initial 

issues.” Id., quoting McConocha v. Blue Cross and Blue Shield Mutual of Ohio, 

930 F. Supp.1182, 1184 (N.D. Ohio 1996).

b. Motions to Dismiss

Because the challenged Report and Order resulted in the Court’s granting in 

part Defendants’ motions to dismiss, the Court also must consider the standard 

governing motions to dismiss. A motion to dismiss under Fed. R. Civ. P. 12(b)(6) 

is designed to test the sufficiency of the complaint. Riverview Health Institute LLC 

v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 
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‘state a claim to relief that is plausible on its face.’” Doe v. Miami University, 882

F.3d 579, 588 (6th Cir. 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 

S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

“A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id., quoting Iqbal at 678. On a motion to dismiss, “[w]e must 

construe the complaint in the light most favorable to the plaintiff and accept all 

allegations as true.” Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).

However, conclusory allegations amounting to “a formulaic recitation of the 

elements” of a constitutional claim are “not entitled to be assumed to be true.” 

Ashcroft at 681, citing Twombly at 554-555.

Analysis

a. Notice of individual capacity claims

A considerable portion of Marcum’s current memorandum is devoted to 

persuading the Court that his complaint gave sufficient notice of his intent to sue 

Duchak not merely in his official capacity, but also individually. (See Doc. #140, 

pp. 7-9). That argument is unnecessary. The “course of proceedings” test for which 

Marcum therein advocates applies only “[w]hen a § 1983 plaintiff fails to 

affirmatively plead capacity in the complaint.” Moore v. City of Harriman, 272 
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F.3d 769, 773 (6th Cir. 2001). Here, Marcum’s complaint states explicitly that 

Duchak “is sued in both his individual and official capacity.” (Doc. #2, p. 2).

The question presented, then, is not whether Marcum gave adequate notice 

of his intent to pursue an individual capacity claim against Duchak, but whether 

the factual allegations of his complaint are sufficient to actually state a viable 

individual capacity claim against that Defendant. Marcum’s unequivocal assertion

of an “individual capacity” claim is not dispositive of that issue.

b. Waiver

Before addressing the viability of Marcum’s individual capacity claim, this 

Court must consider whether Marcum should be permitted to raise a challenge to 

Judge Rice’s more than three-year-old decision dismissing that claim. From the 

outset, Marcum acknowledges that the subject individual capacity claims were 

dismissed after he failed to file written objections in accordance with Fed. R. Civ. 

P. 72(b) to the Report and Recommendations on Motions to Dismiss. (Doc. #140, 

p. 2). He attributes that omission to “oversight,” as he purportedly “did not notice” 

the recommendation that his individual capacity claims against Duchak be 

dismissed. (Id.). 

In a matter involving similar circumstances, the Sixth Circuit Court of 

Appeals treated a party’s failure to object to a magistrate judge’s report and 

recommendations as a waiver of the right to appellate review. See Fraley v. Ohio
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Dep't of Corr., No. 16-4720, 2018 WL 2979902, at *2 (6th Cir. Mar. 22, 2018)

(finding pro se Ohio inmate waived appeal by failing to file objections to 

recommendation that his claims be dismissed), citing Thomas v. Arn, 474 U.S. 140, 

142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Alspaugh v. McConnell, 643 F.3d 162, 

166 (6th Cir. 2011). See also Lemaster v. Warden, 860 F.2d 107 (Table), 1988 WL 

1098262 (6th Cir. Oct. 19, 1988) and Damron v. Scroggy, 826 F.2d 1062 (Table), 

1987 WL 38402 (6th Cir. Aug. 11, 1987), both citing Arn, supra. The same waiver 

rationale applies to Marcum’s motion for reconsideration. Marcum was expressly 

warned that failing to file objections could preclude further review of the Court’s 

decision on the issues before it. (See Doc. #41, p. 9). Despite being so cautioned, 

Marcum took no action, and has offered only his own “oversight” as an 

explanation for that omission.

After careful review of the record, the Court determines that Marcum should 

be held to have waived the right to seek reconsideration of both Magistrate Judge 

Merz’s February 23, 2018 Report and Recommendations on Motions to Dismiss 

(Doc. #41) and Judge Rice’s March 19, 2018 Order dismissing Marcum’s 

individual capacity claims against Duchak. (Doc. #49). Although Marcum 

intimates that the Court committed “clear error” by dismissing those claims (Doc. 

#140, pp. 14-15), the primary “error” underlying Marcum’s present predicament is 

his own mistake in negligently failing to file timely objections to the subject 
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Report and Recommendations. Nothing before this Court demonstrates that 

principles of fundamental fairness require revisiting the Court’s three-year-old

dismissal decision. The Court recommends denying Marcum’s Motion for 

Reconsideration on that basis alone.

c. Merits of motion for reconsideration under Fed. R. Civ. P. 54(b)

This Court’s conclusion regarding waiver by Marcum obviates the need to 

further address his motion for reconsideration. Nevertheless, the Court also 

concludes that Marcum has not satisfied the standard applied to such motions made 

under Fed. R. Civ. P. 54(b). See Sherrod, No. 3:14-CV-454, 2021 WL 534613 at 

*4; Louisville/Jefferson Cty. Metro Gov’t, 590 F.3d at 389; Meekison, 181 F.R.D. 

at 572. Marcum admits that his motion does not invoke new evidence or a change 

of law; instead, he relies solely on the applicable standard’s remaining prong – that 

reconsideration is necessary in order “to correct a clear error or prevent manifest 

injustice.” (Doc. #140, p. 15); see Sherrod at *4. In this instance, however, 

Marcum has demonstrated neither that the Court’s prior decision was clearly 

erroneous nor that a manifest injustice will occur if he is not permitted to proceed 

with an Equal Protection claim against Duchak in his individual capacity.

Magistrate Judge Merz concluded that Marcum’s complaint “does not 

include allegations of personal participation by the Sheriff in any constitutional 

violations Marcum may have suffered.” (Doc. #41, p. 12). Having reviewed the 
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same document, the undersigned agrees. With all factual allegations accepted as 

true, Marcum’s complaint alleges only that Duchak, as Sheriff, was responsible for 

overseeing the Miami County Jail policy that allegedly denied inmates the ability 

to place a telephone call to an attorney without paying for that call. Specifically, 

the complaint alleges that Duchak “himself violated [Marcum’s] right to obtain 

counsel when [Duchak] enforce[d] a local policy practice that prevented [Marcum] 

from being given a ‘free’ phone call for purposes of contacting an attorney.” (Doc. 

#2, p. 6). The complaint further asserts that Duchak also violated Marcum’s right 

to counsel by denying his grievances related to the alleged policy. (Id.). There is no 

allegation that Duchak personally denied Marcum a call to an attorney, that he 

personally subverted usual practices in order to deprive Marcum of such a call, or 

that he personally instructed some particular individual to deny Marcum such a 

call. Indeed, even the memorandum offered in support of Marcum’s instant motion 

for reconsideration repeatedly points only to Duchak’s alleged “enforce[ment]” of 

the no-free-call policy as a basis on which to hold him liable in his individual 

capacity. (See Doc. #140, pp. 3, 5, 6).

“The ‘denial of administrative grievances or the failure to act’ by prison 

officials does not subject supervisors to liability under § 1983.” Grinter v. Knight, 

532 F.3d 567, 576 (6th Cir. 2008), quoting Shehee v. Luttrell, 199 F.3d 295, 300 

(6th Cir.1999). As a result, Duchak cannot be held personally liable based on the 
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complaint’s allegation that he denied Marcum’s internal jail grievances related to 

accessing a free call to an attorney. (See Doc. #2, p. 6). Thus, only Marcum’s 

allegation regarding Duchak’s role in enforcing objectionable policy remains as a 

possible basis for the Sheriff’s individual liability.

“[D]amage claims against government officials arising from alleged 

violations of constitutional rights must allege, with particularity, facts that 

demonstrate what each defendant did to violate the asserted constitutional right." 

Heyne v. Metro. Nashville Pub. Schs, 655 F.3d 556, 564 (6th Cir. 2011), citing 

Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008). “Government officials may 

not be held liable for the unconstitutional conduct of their subordinates under the 

theory of respondeat superior.” Iqbal, 556 U.S. at 676. Rather, such officials are 

personally liable for damages under 42 U.S.C. § 1983 “‘only for their own 

unconstitutional behavior.’'" Heyne at 684, quoting Leach v. Shelby Cty. Sheriff, 

891 F.2d 1241, 1246 (6th Cir. 1989); see also Peatross v. City of Memphis, 818 

F.3d 233, 241 (6th Cir. 2016) (“We have long held that supervisory liability 

requires some ‘active unconstitutional behavior’ on the part of the supervisor. “), 

quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999).

“[W]here an official’s execution of his or her job function causes injury to 

the plaintiff, the official may be liable under the supervisory-liability 

theory.” Peatross at 242, citing Hill v. Marshall, 962 F.2d 1209, 1213 (6th 
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Cir.1992). To succeed on a supervisory liability theory, a plaintiff bringing suit 

under 42 U.S.C. § 1983 must show “[a]t a minimum . . . that a supervisory official 

at least implicitly authorized, approved or knowingly acquiesced in the 

unconstitutional conduct of the offending subordinate.” Turner v. City of Taylor, 

412 F.3d 629, 643 (6th Cir. 2005), quoting Bellamy v. Bradley, 729 F.2d 416, 421 

(6th Cir. 1984). Even where the facts set forth in a complaint might support a claim 

on the basis of supervisory liability, however, such claims will not stand against a 

supervisor in his individual capacity if the plaintiff failed to plead supervisory 

liability. See Culpepper v. Detroit Police Officer Harold Rochon, No. 15-12386, 

2015 WL 6437203, at *4 (E.D. Mich. Oct. 21, 2015); see also Baytops v.

Slominski, No. 4:20-CV-11630, 2021 WL 2139093, at *6 (E.D. Mich. May 26, 

2021) (granting summary judgment as to Section 1983 claims where plaintiff 

“d[id] not even plead supervisory liability”) (emphasis sic).

Although Marcum’s complaint does state that Duchak “enforce[d]” the nocall policy, nowhere does the complaint allege that Duchak was an active 

participant in the specific chain of events that led to someone at the jail refusing to 

allow Marcum to use a telephone to call an attorney. Furthermore, nowhere does 

that document use the terms “supervisor” or “supervisory liability” with regard to 

Duchak, or directly allege that he is personally liable due to “authoriz[ing], 

approv[ing] or knowingly acquiesc[ing] in the unconstitutional conduct of” 
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subordinates alleged to have refused Marcum access to a telephone. See Turner, 

412 F.3d at 643. Although federal courts generally hold pro se litigants “to a less 

stringent pleading standard than a party with an attorney[,] . . . ‘more than bare 

assertions of legal conclusions is ordinarily required to satisfy federal notice 

pleading requirements.’” Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008), 

citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) 

and quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th 

Cir.1988); see also Kamppi v. Ghee, 208 F.3d 213 (table), 2000 WL 303018, at *1 

(6th Cir. May 14, 2000) (“the less stringent standard for pro se plaintiffs does not 

compel the courts to conjure up unpleaded facts to support conclusory 

allegations”). As a result, the current motion’s belated attempt to re-cast Marcum’s 

individual capacity claim against Duchak as being based upon “supervisory 

liability” (see Doc. #140, pp. 9-12) is unavailing.

Finally, assuming arguendo that Marcum’s complaint were capable of being 

construed to plausibly set forth a viable individual capacity claim against Duchak, 

Marcum still would be required to overcome the substantial hurdle of the qualified 

immunity defense before damages could be awarded against Duchak on that claim. 

See, e.g., Watson v. City of Marysville, 518 F. App'x 390, 393–94 (6th Cir. 2013); 

Peatross, 818 F.3d at 422. Without delving into a detailed quality immunity 

analysis, this Court sees no implication of “manifest injustice” in limiting Marcum, 
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who no longer is in custody for the criminal charge at issue herein, to proceeding 

for an award of compensatory damages only as to an official capacity claim for the 

Equal Protection violation alleged, while excluding any individual capacity claim.

IT THEREFORE IS RECOMMENDED THAT:

1. Plaintiff 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.

June 23, 2021 s/ Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, 

written objections to the proposed findings and recommendations within 

FOURTEEN days after being served with this Report and Recommendations. 

Such objections shall specify the portions of the Report objected to and shall be 

accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription 

of the record, or such portions of it as all parties may agree upon or the Magistrate 

Judge deems sufficient, unless the assigned District Judge otherwise directs. A 

party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit 

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. 

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).