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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

STATE OF OHIO, 

 EX REL TED MARCUM, 

Petitioner, : Case No. 3:17-cv-437 

- vs - District Judge Walter H. Rice 

Magistrate Judge Michael R. Merz 

SHERIFF DAVE DUCHAK, et al., 

 : 

 Respondents. 

SUPPLEMENT TO SUBSTITUTED REPORT AND 

RECOMMENDATIONS 

 

 This case is before the Court on Plaintiff’s Objections (ECF No. 67) to the Magistrate 

Judge’s Substituted Report and Recommendations (ECF No. 64) which recommended granting 

Sheriff Duchak’s Motion to Dismiss Plaintiff’s sole remaining claim. Judge Rice has recommitted 

the case for reconsideration in light of the most recent Objections (ECF No. 68). 

 The Substituted Report recommended dismissal because the facts alleged by Plaintiff, as 

the Magistrate Judge understood them, did not plead a claim under the Equal Protection Clause. 

In his Objections, Plaintiff recites without proof many additional facts which at least color and 

may change the analysis, e.g., (1) that there was an attorney of Marcum’s choice who would have 

accepted representation if only Marcum could have reached him, (2) there was a friend who would 

have posted bail or contacted a bondsman who would have posted bond if Marcum could have 

reached him, and (3) there is a telephone in the booking area at the Miami County Jail which could 

have been used to place the type of telephone call Marcum believes is legally guaranteed, but 
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Sheriff Duchak’s policy does not permit such use. None of these facts is presently pleaded, much 

less proved, but Plaintiff could move to add them to his Complaint and unless persuaded they are 

legally irrelevant, the Court would be obliged to allow the amendment. 

 One fact that stands out and has not yet been addressed in motion practice is that Marcum 

has been released from custody, having completed his sentence. As the Magistrate Judge has read 

the Complaint, Marcum seeks mandamus relief against the Sheriff regarding the telephone policy 

and practice. (See ECF No. 64, PageID 748). § 1983 claims relating to conditions of confinement 

are moot when raised by persons who have been released from confinement. Preiser v. Newkirk, 

422 U.S. 395 (1975); Abdur-Rahman v. Michigan Dept of Corrections, 59 F.3d 170 (6th Cir. 1995), 

citing Secretary of Labor v. Burger King Corp., 955 F.2d 681, 685 (11th Cir. 1992); Cooper v. 

Sheriff, Lubbock County, 929 F.2d 1078, 1084 (5th Cir. 1991)(per curiam). 

 The Magistrate Judge accordingly recommends that Marcum’s remaining claim for 

mandamus relief be dismissed as moot. 

May 23, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .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 Recommendations are 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 
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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 United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).