1

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,

:

Respondent.

FIFTH SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

This case is before the Court on Defendant Duchak’s Objections (ECF No. 45) to the 

Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 41) to the extent that the 

Report recommends denying Defendant Duchak’s Motion to Dismiss (ECF No. 7) as to one of 

Plaintiff’s claims for relief, to wit, his claim against the Sheriff in his official capacity that his 

policy of failing to provide a free telephone call to persons upon incarceration violates the Equal 

Protection Clause (Report, ECF No. 41, PageID 636). Judge Rice has recommitted the case to 

the Magistrate Judge for reconsideration in light of the Objections (ECF No. 46). 

Plaintiff Marcum filed Objections (ECF No. 50) to those portions of the Report that 

recommended granting the Motion to Dismiss, but the Magistrate Judge struck those Objections 

because they were untimely filed (ECF No. 53). However, to the extent the Objections 

document responds to Defendant Duchak’s Objections, they were timely filed and will be 

considered on recommittal. Id. 

Case: 3:17-cv-00437-WHR-MRM Doc #: 56 Filed: 04/10/18 Page: 1 of 5 PAGEID #: 718
2

Sheriff Duchak correctly argues that the standard for review of a Magistrate Judge’s 

recommended conclusions of law is whether the recommendations are “contrary to law” (ECF

No. 45, PageID 662). See Fed. R. Civ. P. 72(b). 

The Magistrate Judge read Marcum’s Complaint as alleging that an arrested person is 

entitled upon booking into a county jail to a free telephone call to a bail bondsman or an attorney 

by Ohio Revised Code §§ 2935.20 and 2935.14, the Ohio Constitution, and the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution. (Report, ECF No. 41, PageID 634-

35.) The Report concluded that the Ohio statutory claim did not of itself rise to the level of a 

constitutional violation, but that the Complaint did adequately state a claim for violation of the 

Equal Protection Clause. Id. a PageID 636. The Sheriff’s policy, as least as pleaded and not 

contradicted by the Objections, is that inmates are not charged by the Jail for access to a 

telephone. However, the telephone service provider to the Jail does charge on an individual call 

basis. Therefore a jail prisoner must, as Marcum alleges, pay for the call either by charging it to 

a credit or debit card or a phone card purchased from the Jail Commissary, which can only be 

done at certain times. Thus an indigent person who does not have access to a credit or debit card 

and has no money to buy a phone card at the Commissary cannot call a bondsman or an attorney.

The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 

"deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. 

XIV, § 1. The Supreme Court has stated that this language "embodies the general rule that States 

must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 

799 (1997). The States cannot make distinctions which either burden a fundamental right, target 

a suspect class, or intentionally treat a person differently from others similarly situated without 

any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564

Case: 3:17-cv-00437-WHR-MRM Doc #: 56 Filed: 04/10/18 Page: 2 of 5 PAGEID #: 719
3

(2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005).

When the disparate treatment burdens a fundamental right, strict scrutiny applies. Miller v. City 

of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010).

The Equal Protection Clause applies to administrative as well as legislative acts. 

Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 597 (2008), citing Raymond v. Chicago 

Union Traction Co., 207 U.S. 20 (1907). The fundamental rights which are protected from being 

burdened by state action are those rights incorporated into the Fourteenth Amendment from the 

Bill of Rights. The Eighth Amendment right to reasonable bail and the Sixth Amendment right 

to counsel are two of such rights. McDonald v. Chicago, 561 U.S. 742 (2010).

Regarding bail, Sheriff Duchak correctly notes that the Constitution does not guarantee 

an absolute right to be released on bail. (Objections, ECF No. 45, PageID 664, citing United 

States v. Salerno, 481 U.S. 739 (1987).) He also concedes that bail is set at an amount higher 

than reasonably necessary to assure the defendant’s appearance is excessive and violates the 

Eighth Amendment. Id. citing Stack v. Boyle, 342 U.S. 1 (1951).1 From these premises, the 

Sheriff concludes, “Plaintiff enjoys no constitutionally protected right to access to a bail 

bondsman.” Id. at PageID 664-665. However, the Sheriff’s policy of requiring that an inmate be 

able to pay or obtain payment for an initial call to a bail bondsman arguably burdens his 

fundamental right to reasonable bail. Alternatively, if use of a telephone is required to contact a 

bail bondsman, the practice of providing a telephone only to those who can afford to make a call 

discriminates against the indigent in arguably the same way that refusal to provide a trial 

transcript to the indigent when one is needed for appeal discriminates unconstitutionally against 

the indigent. Sheriff Duchak attempted to distinguish Griffin v. Illinois, 351 U.S. 12 (1956) on 

1 Note that Salerno confirmed the constitutionality of the federal Bail Reform Act of 1984 which allowed a federal 

court to detain a person without bond if found necessary to assure the person’s attendance and/or the safety of the 

community. 

Case: 3:17-cv-00437-WHR-MRM Doc #: 56 Filed: 04/10/18 Page: 3 of 5 PAGEID #: 720
4

the grounds that the Supreme Court permitted Illinois to satisfy the transcript function in some 

other way. Defendant Duchak has not suggested any alternative means of satisfying an indigent 

inmate’s need to contact a bondsman.

Regarding the right to counsel, Sheriff Duchak again suggests Marcum suffered no harm 

from being unable to use a free phone call to contact an attorney because the Public Defender 

appeared with him at initial appearance/arraignment. We know from other filings that the Public 

Defender will not accept incoming calls from the Jail, so Marcum could not have contacted the 

public defender from jail. Without the facility of a free phone call, he could also not contact any 

other attorney of his choice. Restricting a person’s ability to consult with counsel upon arrest to 

his ability to talk with an assigned attorney at what is likely to be, in this Magistrate Judge’s 

experience, a very crowded municipal court initial appearance docket places a burden on that 

Sixth Amendment right. 

The Sheriff relies on Aswegan v. Henry, 981 F.2d 313 (8th Cir. 1992). Plaintiffs there 

obtained a preliminary injunction to allow unlimited telephone access to counsel, but Marcum 

does not seek anything that broad. 

Case: 3:17-cv-00437-WHR-MRM Doc #: 56 Filed: 04/10/18 Page: 4 of 5 PAGEID #: 721
5

Conclusion

Based on the foregoing analysis, the Magistrate Judge again respectfully recommends 

Sheriff Duchak’s Motion to Dismiss be denied as to Plaintiff’s equal protection claim regarding a 

free telephone call upon arrest. 

April 9, 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. 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 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).

Case: 3:17-cv-00437-WHR-MRM Doc #: 56 Filed: 04/10/18 Page: 5 of 5 PAGEID #: 722