Massengale, Sr. v. Perhacs et al.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLINT J. MASSENGALE, SR.,
Plaintiff,
v.
PATRICK J. PERHACS, et al.,
Defendants.
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Case No. 1:24-cv-01793
Judge J. Philip Calabrese
Magistrate Judge
James E. Grimes, Jr.
OPINION AND ORDER
Plaintiff Clint J. Massengale filed this action without a lawyer against several
police officers he alleges violated, among other things, his Fourth and Fourteenth
Amendment rights under 42 U.S.C. § 1983. 	The Court referred this matter to a
Magistrate Judge to hear and decide all pretrial matters not dispositive of any party’s
claim or defense. 	(ECF No. 8.) 	The parties object to three rulings the Magistrate
Judge made:
(1) 	The Magistrate Judge denied Plaintiff’s motion to strike Defendants’
allegedly evasive answers to his second amended complaint and instead determined
that certain answers would be treated as admissions. 	(ECF No. 95.) 	Defendants
object to that determination. (ECF No. 102.)
(2) 	The 	Magistrate 	Judge 	denied 	Plaintiff’s 	motion 	for 	leave 	to 	seek
reconsideration of an order quashing his subpoena. (ECF No. 121.) Plaintiff objects
to that order. (ECF No. 129.)
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(3) 	The Magistrate Judge resolved Plaintiff’s motion to compel, which he
liberally construed as a notice of discovery dispute. 	(ECF No. 154.) 	Plaintiff also
objects to that order. (ECF No. 157.)
ANALYSIS
Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge may “hear and determine
any pretrial matter pending before the court,” with certain exceptions not relevant
here. 	Under this statute, a judge “may reconsider any pretrial matter under this
subparagraph (A) where it has been shown that the magistrate judge’s order is clearly
erroneous or contrary to law.” Id. Accordingly, an order of a magistrate judge does
not receive de novo review, as does a report and recommendation under 28 U.S.C.
§ 636(b)(1)(B). 	“A finding is ‘clearly erroneous’ when, although there is evidence to
support it, the reviewing court . . . is left with the definite and firm conviction that a
mistake has been committed.” 	Hagaman v. Commissioner, 958 F.2d 684, 690 (6th
Cir. 1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 398
(1948)).
I. 	Defendants’ Objection
Defendants argue that the Magistrate Judge’s determination that certain
allegations in Plaintiff’s second amended complaint were deemed “admitted due to
allegedly non-responsive answers” is clearly erroneous because it did not account for
“the full text of [their] responses.” (ECF No. 102, PageID #1658.)
I.A. 	Defendants’ Answer
In Defendants’ answer to Plaintiff’s second amended complaint, they repeat
the same answer or a variation of it several times across multiple pages in response
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to 	Plaintiff’s 	allegations 	of 	events 	based 	on 	records 	from 	his 	sealed 	criminal
proceeding. 	(See generally ECF No. 75.) 	Specifically, they often answer that
Defendants “[a]ver that, if such records were unsealed by a court of competent
jurisdiction, the Police Reports, Probable Cause Affidavits, 911 calls, and Police body
camera footage would speak for themselves, and otherwise deny the remaining
allegations of paragraph [number] of the Complaint.” 	(See, e.g., id., ¶ 37, PageID
#1096.)
Defendants argue that the Magistrate Judge only focused on the first portion
of their answers that the documents would speak for themselves and disregarded the
second portion that they “otherwise deny the remaining allegations” of the relevant
paragraphs. 	(ECF No. 102, PageID #1658.) 	But there is no indication in the
Magistrate Judge’s order that he disregarded the latter part of their answers. 	The
Court has no reason to assume the Magistrate Judge disregarded the complete text
of Defendants’ answer or its meaning within the context of the record as a whole.
I.B. 	Availability and Knowledge
Defendants are correct that much of what Plaintiff alleges in his second
amended complaint is based on transcripts, reports, and records that were (at least,
at the time) not in the record. 	(See generally ECF No. 70.) 	Defendants include the
police officers who either responded to a 911 call, wrote police reports and affidavits,
or gathered the relevant records. 	(Id.) 	These officers have firsthand knowledge of
the alleged events. Moreover, in their answer, Defendants attach two of the probable
cause affidavits (ECF No. 75-1; ECF No. 75-2), which they claim in their answer
“speak for themselves.” (See, e.g., ECF No. 75, ¶ 37, PageID #1096.)
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Defendants argue that they framed their answers based on their “good faith
interpretation 	of 	a 	directly 	on-point 	Ohio 	statute 	and 	cases,” 	which 	they
acknowledged that “[t]he Court has subsequently denied” in any event. 	(ECF
No. 102, PageID #1658–59.) Therefore, they claim that the only thing that they “can
legally do is deny such allegations about sealed facts and documents.” 	(Id., PageID
#1659.) But that is not the answer Defendants gave.
I.C. 	Responses to Requests for Admission
Defendants attempt to remedy the situation by attaching their responses to
Plaintiff’s requests for admission, in which they claim to have either “admitted or
denied such allegations.” 	(Id.; ECF No. 102-1; ECF No. 102-2; ECF No. 102-3; ECF
No. 102-4; ECF No. 102-5; ECF No. 102-6; ECF No. 102-7.) 	But this discovery tool
serves a different function in litigation than the answer. 	They might or might not
remedy Defendants’ position at the pleading stage.
* 	* 	*
In response to answers where defendants “simply stat[e] a document ‘speaks
for itself,’” courts have “required the allegations be deemed admitted or stricken
responses and required defendants to re-plead.” 	Alcorn v. Parker Hannifin Corp.,
No. 1:13-cv-119, 2013 WL 12121515, at *1 (S.D. Ohio June 27, 2013). The Magistrate
Judge, in his discretion, determined that the allegations be deemed admitted, and
the Court is aware of no case law or other authorities that foreclose him from doing
so. 	Indeed, 	the 	Magistrate 	Judge 	specifically 	limited 	this 	determination 	to
“[r]esponses in Defendants’ answer that a document speaks for itself,” which he
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concluded “will be deemed as admissions that the document in question reads as
Massengale alleges.” (ECF No. 95, PageID #1513.)
Therefore, 	the 	Court 	determines 	that 	there 	was 	no 	clear 	error 	in 	the
Magistrate Judge’s determination and OVERRULES this objection. (ECF No. 102.)
II. 	Plaintiff’s Objections
Plaintiff objects to (1) the Magistrate Judge’s denial of Plaintiff’s motion for
leave to seek reconsideration of an order quashing his subpoena; and (2) the
Magistrate Judge’s resolution of Plaintiff’s motion to compel, which he liberally
construed as a notice of a discovery dispute. (ECF No. 129; ECF No. 157.)
II.A. 	Denial of Reconsideration
By way of background, Plaintiff issued a subpoena to a county prosecutor
requesting records relating to his sealed case. (ECF No. 38-1.) The Magistrate Judge
granted the prosecutor’s motion to quash. 	(ECF No. 45.) 	Plaintiff objected to that
order in a 20-page brief. (ECF No. 49.) The Court struck that objection for failure to
comply with the page limits set out in Local Rule 7.1(f) and determined that “the
record shows no clear error in the Magistrate Judge’s discretionary decision” in any
event. 	(ECF No. 68, PageID #948.) 	Then, Plaintiff served the prosecutor with
another subpoena which was nearly identical in substance to the previous one.
(Compare ECF No. 38-1 with ECF No. 79-1.) 	The Magistrate Judge again granted
the prosecutor’s motion to quash, determining that Plaintiff “ha[d] not asked for leave
to re-issue the same subpoena that the Court quashed in March” and “did not ask the
Court to reconsider its decision.” 	(ECF No. 92, PageID #1486.) 	Plaintiff moved for
leave to seek reconsideration of the Magistrate Judge’s initial order quashing his
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subpoena. (ECF No. 104.) The Magistrate Judge denied that motion. (ECF No. 121.)
Plaintiff objects to the Magistrate Judge’s denial of his motion for reconsideration.
(ECF No. 129.)
II.A.1. Proper Avenue
Plaintiff alleges that the Magistrate Judge “expressly stated that the proper
course would be to seek leave, reconsideration or appeal” and he claims that he
“followed that guidance and moved for reconsideration, only to have the filing
rejected” and was “penalized for attempting to follow the very procedure the court
identified.” 	(Id., PageID #2207.) 	But the Magistrate Judge informed Plaintiff that
these were the proper avenues in response to Plaintiff reissuing the “same subpoena”
and “[s]imply ignoring the Court’s order and trying again,” which was “not an
appropriate option.” (ECF No. 92, PageID #1486–87.) The Magistrate Judge merely
explained the proper vehicles for Plaintiff to move, such as for reconsideration. (Id.)
The Magistrate Judge made no representations as to how he would rule on such a
motion. (Id.)
II.A.2. New Evidence
Next, Plaintiff argues that the Magistrate Judge “[f]ail[ed] to apply the Rule
54(b) framework,” which he claims “makes the ruling contrary to law.” (ECF No. 129,
PageID #2208.) 	It is unclear to the Court how the Magistrate Judge failed to apply
this framework. 	“Rule 54(b) of the Federal Rules of Civil Procedure permits
immediate review of certain district court orders prior to the ultimate disposition of
a case.” General Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994)
(citations omitted). 	“The rule is specifically ‘designed to facilitate the entry of
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judgment on one or more claims, or as to one or more parties, in a multi-claim/multi-
party action.’” Id. (quoting Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir.
1986)). Beyond that, Rule 54(b) just provides that any order disposing of fewer than
all claims or parties remaining subject to revision. The Magistrate Judge explained
how Mr. Massengale might going about obtaining a different result.
In any event, Plaintiff claims that he “presented new facts and evidence
showing why the subpoena ruling warranted revision,” with which the Magistrate
Judge allegedly did not engage. (ECF No. 129, PageID #2208.) Plaintiff points to the
following new facts: 	(1) his second amended complaint becoming the operative
pleading; (2) evidence reflecting that “fabricated information was conveyed via
electronic transmission” by Officer Perhacs to an assistant prosecuting attorney;
(3) Plaintiff uncovered “an [allegedly] improperly issued grand jury subpoena”; and
(4) the prosecutor’s office “continued to oppose two properly served subpoenas while
it refused to “disqualify itself or voluntarily withdraw from electronic monitoring”
regarding this case. (ECF No. 104, PageID #1732.)
But the Magistrate Judge, in his discretion, determined that “Massengale
ha[d] already had multiple bites at this apple” regarding the issuance of subpoenas
to the prosecutor. (ECF No. 121, PageID #1901.) None of the allegedly material facts
that Plaintiff cites in his reconsideration motion change the fact that he had tried on
two 	separate 	occasions 	to 	serve 	two 	subpoenas 	that 	were 	nearly 	identical 	in
substance. 	(Compare ECF No. 38-1 with ECF No. 79-1.) 	Plaintiff makes no
explanation either in his reconsideration motion or objection why any of these facts
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change the Magistrate Judge’s original observation that Plaintiff “could obtain the
records by filing an appropriate application with the court of common pleas.” 	(ECF
No. 45, PageID #425.)
The Magistrate Judge reiterated this point in his reconsideration order,
acknowledging that Plaintiff “can seek unsealing in the relevant state courts,” with
a “motion . . . apparently pending in Bedford Municipal Court.” (ECF No. 121, PageID
#1901.) Contrary to Plaintiff’s assertion, the municipal court proceedings are directly
relevant to Plaintiff acquiring records in his case.
II.A.3. Reasoning
Finally, Plaintiff alleges that “the denial and the order offers no clear basis for
denial on the reconsideration.” 	(ECF No. 129, PageID #2209.) 	To the contrary, the
Magistrate Judge’s order specifically explained that (1) “Massengale ha[d] already
had multiple bites at this apple” regarding the issuance of the subpoena, (2) there
was not a “good basis to re-plow this ground,” and (3) “Massengale [was] not without
recourse” regarding a motion to unseal before the municipal court and two mandamus
actions before the Ohio Supreme Court. (ECF No. 121, PageID #1901–02.)
* 	* 	*
For these reasons, the Court determines that there was no clear error in the
Magistrate Judge’s denial of Plaintiff’s motion for reconsideration. Accordingly, the
Court OVERRULES this objection. (ECF No. 129.)
II.B. 	Discovery Dispute
Plaintiff filed a motion to compel discovery without first seeking leave to do so,
which the Magistrate Judge liberally construed as a notice of discovery dispute “given
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Massengale’s pro se status and in an effort to promptly resolve the issues Massengale
has brought to the Court’s attention.” 	(ECF No. 154, PageID #2668.) 	Plaintiff had
requested 	that 	the 	Magistrate 	Judge 	compel 	Defendants 	to 	produce 	certain
responsive documents to Plaintiff’s requests for production, including: 	(1) “[a]ll
native-format 	TAC 	and 	RMS 	data 	with 	full 	metadata”; 	(2) 	“[a]ll 	prosecutor-
transmission packets and database run reports”; and (3) “[a]ll training and policy
materials identified in those requests.” (ECF No. 150, PageID #2453.)
In reviewing these requests, the Magistrate Judge observed that Plaintiff
failed to make a clear request for the third category (see generally ECF No. 150-1);
therefore, he forfeited the issue because there was “no clear request for the Court to
act.” (ECF No. 154, PageID #2668.) Next, the Magistrate Judge determined that the
first requested category was outside the scope of the parties’ agreement for the
discovery of electronically stored information, reiterated that both the Magistrate
Judge and the Court had determined that the parties agreed not to follow Appendix K
(the Northern District’s standard ESI protocol), and determined that Defendants
produced the material to the extent that it fell within the parties’ agreement. 	(Id.,
PageID #2668–69.) 	Finally, regarding the second category, the Magistrate Judge
ordered defense counsel to “either provide a declaration that the entirety of evidence
sent to the prosecutor’s office has been produced or otherwise disclose what has not
already been produced to Massengale” by November 14, 2025. (ECF No. 154, PageID
#2670.)
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Plaintiff objects to the Magistrate Judge’s order, claiming that it “is clearly
erroneous and contrary to law because it rests on a nonexistent ‘ESI agreement,’
ignores Defendants’ waiver of objections through untimely responses, and fails to
address the discovery issues raised by [Plaintiff] as the moving party.” (ECF No. 157,
PageID #2689.)
II.B.1. ESI Agreement
Plaintiff argues that the parties have no agreement for the discovery of
electronically stored information because there is no written or oral stipulation to
that effect, no document indicating that Plaintiff agreed to anything other than
Appendix K, and only a “vague reference to the parties having agreed to a method for
conducting ESI” in the case management plan. 	(Id., PageID #2690.) 	Further,
Plaintiff contends that the Magistrate Judge’s determination “effectively deprives
[Plaintiff] of evidence [Plaintiff] need[s] to litigate the core theory of [his] case” and
that there “is no alternative way to obtain this information.” (Id., PageID #2690–91.)
Plaintiff raised these same arguments or similar versions of them before the
Magistrate Judge and the Court on numerous occasions. 	The Magistrate Judge
addressed this issue before, determining that “(1) the parties, including Massengale,
represented 	to 	the 	Court 	that 	they 	have 	an 	agreement 	about 	discovery 	of
electronically stored information, (2) Defendants’ counsel recited the agreement to
the Court, (3) Massengale didn’t object or add to counsel’s recitation, and (4)
Defendants’ counsel then explained the agreement again in emails to Massengale.”
(ECF No. 43, PageID #411.)
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So 	too 	has 	the 	Court. 	In 	addressing 	a 	previous 	objection, 	the 	Court
acknowledged that, “[w]hether Plaintiff consented to the protocol for review and
production of electronically stored information or not . . . the Magistrate Judge
recognized that Plaintiff did not object to this agreement when the parties presented
it to him,” and “[i]t was not error for a court to treat silence as the waiver of objection,
especially in the face of other indication that the parties had an agreement,” such as
their correspondence. 	(ECF No. 68, PageID #947.) 	The Court will not address the
same argument again.
Moreover, the parties’ Rule 26(f) Report does not include a “vague reference”
that the parties agreed to a method for conducting discovery of electronically stored
information. (ECF No. 30, PageID #246.) In conspicuous terms, the report, like every
other standard report used by parties, provides options to indicate what the parties
had agreed to. (Id.) The parties did not check the box indicating that they had agreed
to follow Appendix K. 	(Id.) 	Rather, they indicated that they “ha[d] agreed to a
method for conducting discovery of ESI.” 	(Id.) 	Plaintiff’s signature is on this
document. (Id., PageID #247.) He was not forced to agree to this method.
Further, Plaintiff’s claim that the Magistrate Judge has deprived him of
evidence without an alternative way to obtain that information lacks merit. 	(ECF
No. 157, PageID #2690–91.) 	In his order, the Magistrate Judge acknowledged that
defense counsel and the Director of Information Technology for the City of Solon
provided declarations which explained “what has been produced, and to the extent
that certain information was produced, who Massengale can contact to obtain
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additional documents.” (ECF No. 150, PageID #2669; ECF No. 136-10; ECF No. 136-
11; ECF No. 136-12.) 	Indeed, the IT director included multiple names and contact
information in his declarations regarding who Plaintiff could contact for certain
requested information. 	(ECF No. 136-11; ECF No. 136-12.) 	In addition, the
Magistrate Judge ordered defense counsel to provide declarations regarding the
production of evidence sent to the prosecutor’s office (ECF No. 154, PageID #2670),
and Defendants complied (ECF No. 158), despite Plaintiff’s latest issue with that
filing (ECF No. 161). The Magistrate Judge has since ordered Defendants to produce
a declaration providing further clarity regarding what documents they sent to the
prosecutor’s office. (ECF No. 164.) The Magistrate Judge has not deprived Plaintiff
the evidence that he requests or the opportunity to discover it.
II.B.2. Forfeited Objections
Next, Plaintiff contends that the Magistrate Judge “permitted Defendants to
rely on objections they had forfeited” after Defendants “served no responses, no
objections, and requested no extension” to Plaintiff’s second set of requests for
production. 	(ECF No. 157, PageID #2692.) 	Defendants contend that they timely
responded. (ECF No. 160, PageID #2727–28; ECF No. 160-1, ¶ 2, PageID #2732; ECF
No. 160-2.)
In any event, there is no indication in the Magistrate Judge’s order that he
permitted—or even acknowledged—any objections from Defendants. 	(See generally
ECF No. 154.) 	As the order makes clear, “the Court held a conference to address
Plaintiff’s motion to compel, construed as a discovery dispute,” as well as Plaintiff’s
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motion for a protective order. (Id., PageID #2665.) The Magistrate Judge addressed
Plaintiff’s motions and Defendants’ responses. Nothing more.
II.B.3. Discovery Compliance
Finally, Plaintiff argues that the Magistrate Judge began the hearing by
“questioning [Plaintiff’s] discovery compliance, even though that issue was not
properly before the Court” because it was raised in Defendants’ response brief. (ECF
No. 157, PageID #2692.) But the Magistrate Judge stated in his order that, because
Plaintiff’s 	motion 	for 	a 	protective 	order 	“related 	to 	Defendants’ 	response 	to
Massengale’s motion to compel, the Court addressed Defendants’ assertions made in
briefing, which suggested that Massengale had not complied with his own discovery
obligations.” 	(ECF No. 154, PageID #2665–66; ECF No. 152, PageID #2655.)
Therefore, the issues were entwined, and it was within the Magistrate Judge’s
discretion to address any issues relevant to the motions at the conference.
Notably, Plaintiff 	takes 	no 	issue 	with 	the 	Magistrate 	Judge 	addressing
Plaintiff’s motion for a protective order, which Plaintiff filed “between the time that
Massengale filed his motion to compel and [the] conference.” 	(ECF No 154, PageID
#2665.) 	The Magistrate Judge chose to address that motion too, seemingly without
objection, “[g]iven the frequency of filings to date and in the interest of judicial
economy.” 	(Id.) 	Accordingly, the Court sees no issue with addressing any issues
related to Plaintiff’s motion to compel or other related discovery disputes at the
conference, especially because Plaintiff was present and had the opportunity to argue
on his behalf on any issues addressed.
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* 	* 	*
For these reasons, the Court determines that there was no clear error in the
Magistrate Judge’s resolution of Plaintiff’s motion to compel discovery, which he
liberally 	construed 	as 	a 	notice 	of 	discovery 	dispute. 	Accordingly, 	the 	Court
OVERRULES this objection. (ECF No. 157.)
CONCLUSION
For all the foregoing reasons, the Court OVERRULES Defendants’ objection
(ECF No. 102) and Plaintiff’s objections (ECF No. 129; ECF No. 157).
SO ORDERED.
Dated: December 6, 2025
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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