Avery v. Wooten

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID AVERY,

Plaintiff,

Case No. 2:20-cv-357

vs. Judge Michael H. Watson

Chief Magistrate Judge Elizabeth P. Deavers

JOHN D. WOOTEN, JR, et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, a state inmate currently incarcerated at the Trousdale Turner Correctional

Center in Hartsville, Tennessee, filed this action on December 30, 2019, in the Ohio Supreme

Court. (ECF No. 1.) On January 23, 2020, several federal officers,1 identified in Plaintiff’s

filing as respondents, removed the action to this Court under 28 U.S.C. §§ 1442(a)2 and 1446.

(Id.)

1The federal officers filing the removal petition include U.S. Senator Marsha Blackburn,

U.S. Secretary of the Treasury Steven Mnuchin, Senior District Judge John Daniel Breen of the

U.S. District Court for the Western District of Tennessee, Clerk Keith Throckmorton of the U.S.

District Court for the Middle District of Tennessee, Carmen Romero of the U.S. Department of

Justice, former U.S. Senator and Secretary of State John Kerry, and former U.S. Marshal Louise

W. Kelton.

2 The federal officer removal statute permits a defendant to remove to federal court a

state-court action brought against the

United States or any agency thereof or any officer (or any person acting under that

officer) of the United States or of any agency thereof, sued in an official or

individual capacity for any act under color of such office or on account of any right,

title or authority claimed under any Act of Congress for the apprehension or

punishment of criminals or the collection of the revenue. 28 U.S.C. § 1442(a)(1).

This matter is before the Court sua sponte for an initial screen of Plaintiff’s Complaint,

captioned as an “Original Writ of Error,” as required by 28 U.S.C. § 1915A3 to identify

cognizable claims and to recommend dismissal of Plaintiff’s filing, or any portion of it, which is

frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). Having

performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court

DISMISS Plaintiff’s Complaint in its entirety.

I.

Congress enacted 28 U.S.C. § 1915A, as part of the Prison Litigation Reform Act, Pub.L.

104–134, 110 Stat. 1321, enacted in April 1996, in order to “discourage prisoners from filing

[frivolous] claims that are unlikely to succeed.” Crawford-El v. Britton, 523 U.S. 574, 596

(1998). Congress directed the Courts to “review, before docketing, if feasible or in any event, as

soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress

from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. §

1915A(a). In particular, subsection (b) provides:

On review, the court shall identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint—

(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or—

(2) seeks monetary relief from a defendant who is immune from such relief.

Bennett v. MIS Corp., 607 F.3d 1076, 1084 (6th Cir. 2010); see also Ohio ex rel. Bristow

v. Dir., No. 2:13-CV-614, 2013 WL 5408440, at *1 (S.D. Ohio Sept. 25, 2013) (Section

1442(a) permits the removal of a civil action filed in state court against any officer or

agency of the United States to a United States district court).

3 Plaintiff is not seeking leave to proceed in forma pauperis in this Court.

28 U.S.C. § 1915A(b). Thus, § 1915A requires sua sponte dismissal of an action upon the

Court’s determination that the action is frivolous or malicious, or upon determination that the

action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ ... [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on

its face.’ ” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “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. “The plausibility of an inference depends on a

host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,

the Court holds pro se complaints “ ‘to less stringent standards than formal pleadings drafted by

lawyers.’ ” Garrett v. Belmont Cnty. Sheriff’s Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

The requirements of § 1915A are applicable in the removal context. See Duff v. Yount, 51

F. App’x 520, 521 (6th Cir.2002) (per curiam) (screening removed prisoner action under §§

1915(e) and 1915A); see also Davis v. Goss, No. CIV.A.6:09-257-DCR, 2010 WL 1872871, at

*2 (E.D. Ky. May 10, 2010) (“Screening of pro se prisoner cases is appropriate under the

statutory framework, whether a case is initiated in state or federal court.”).

II.

In 2009, Plaintiff was convicted by a jury in Davidson County, Tennessee, of aggravated

robbery, especially aggravated robbery, reckless endangerment, and attempted second degree

murder because he robbed a couple in their home and slit their throats with a box cutter. He

currently is serving “a total effective sentence of 49 years.” State v. Avery, No.

M200801809CCAR3CD, 2009 WL 4724430 (Tenn. Crim. App. Dec. 10, 2009). His conviction

was affirmed on appeal. Id.

In 2018, Plaintiff filed a civil action in the Trousdale County Circuit Court captioned as

D.A. Avery v. D. Ryals, Case No. 2018-cv-4690. (ECF No. 1-1 at 13, PAGEID #16.) As Plaintiff

describes it in a hand-written notation, this civil action was filed “as a direct result of the

erroneous judgment entered in Case No. 20060C-2451 by Cheryl A. Blackburn.” Id.

Judge Wooten, the presiding judge, dismissed Case No. 2018-cv-4690 by order dated

April 29, 2019. (ECF No. 1-1 at 13, PAGEID #16.) Petitioner explains that this dismissal was

the impetus for filing the Writ. (Id. at 10, PAGEID #13.) Plaintiff seeks the deployment of “the

county Sheriffs or the U.S. Marshals” to “immediately” relieve him from “false imprisonment.”

(Id.) He also seeks “equitable and just compensation” in the “negotiable sum of

$333,333,000.00.” (Id.)

Plaintiff names nearly 100 individuals as Respondents, the majority of whom appear to

be Tennessee county, state or federal officials or employees. (ECF No. 1-1 at 6-8, PAGEID #9-

11.) Plaintiff designates himself as the “Claimant at Law” filing in “The Superior Court of

Common Law, Republic of Ohio. (Id. at 10, PAGEID #13.)

Plaintiff attaches an “Affidavit of Error-in-Fact” to his “Original Writ.” (ECF No. 1-1 at

11, PAGEID #14.) Plaintiff asserts that he is not waiving his Native American birthrights, that

he was not a party to his criminal action which he describes as a “commercial dispute,” and that

the “Federal Tort Claims Act removes immunity from actions arising in tort.” (Id.) Further, he

states that “all parties have been consciously made aware of this urgent and life-threatening

situation via several notices and affidavits … and have failed to act” and “each and every

specifically named Respondent shall be jointly and severally liable.” (Id.) He does not address

the specific conduct of any Defendant other than Defendants Wooten and Blackburn.

III.

A. Mandamus Relief4

Initially, Plaintiff’s filing appears to be seeking mandamus relief from the Ohio Supreme

Court seeking the deployment of either the “County Sheriffs or the U.S. Marshals” to secure his

immediate release from his alleged false imprisonment in Tennessee. Aside from Plaintiff’s

decision to file his action in the Ohio Supreme Court, there is no indication that he seeks relief

4 The duty to perform an initial screen has been found to extend to a prisoner-filed

petition for writ of mandamus. See Banks v. U.S. Attorney, No. 1:08-CV-1394, 2008 WL

3853307, at *1 (M.D. Pa. Aug. 15, 2008) (citing Jones v. Behe, No. 1:17-CV-493, 2017 WL

2778628, at *3 (M.D. Pa. June 27, 2017).

directed to any county sheriffs or U.S. Marshals located in Ohio. Regardless, his request for any

such relief fails for several reasons.

First, as noted above, Plaintiff’s action was removed to this Court by federal officials

pursuant to 28 U.S.C. §1442.56 The derivative jurisdiction doctrine7 applies to cases removed by

the federal government or federal officers pursuant to § 1442(a). Fed. Home Loan Mortg. Corp.

v. Gilbert, 656 F. App'x 45, 53 (6th Cir. 2016); Ohio ex rel. Bristow v. Dir., No. 2:13-CV-614,

2013 WL 5408440, at *2 (S.D. Ohio Sept. 25, 2013). This doctrine has been explained as

follows:

The derivative jurisdiction doctrine, properly understood, does not go to the federal

courts’ subject matter jurisdiction—their power—to review a case. Despite its

“improvident name,” the doctrine “is best understood as a procedural bar to the

exercise of federal judicial power” rather than “an essential ingredient to federal

subject matter jurisdiction.” Rodas, 656 F.3d at 619. We have said as much. Morda

v. Klein, 865 F.2d 782, 784 (6th Cir. 1989)

Gilbert, 656 F. App’x at 53 (Sutton, J. concurring) (quoting Rodas v. Seidlin, 656 F.3d 610,

618 (7th Cir. 2011)).

Clearly, a state court has no authority to issue a writ of mandamus against a federal

officer. Bristow, 2013 WL 5408440, at *2; Ohio ex rel. Griffin v. Smith, No. 2:06CV1022, 2007

5 See Bennett, 607 F.3d at 1084 n. 7 (6th Cir. 2010) ( “[S]ection 1442(a)(1) authorizes

removal of the entire case even if only one of the controversies it raises involves a federal officer

or agency[.]” 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Joan E. Steinman,

Federal Practice & Procedure § 3726 (4th ed.2009)

6 Id. at n. 13 (“’… the jurisdiction of the federal courts over a properly removed action

will not be defeated by later developments in the suit.’” Jamison, 14 F.3d at 239 (quoting 14C

Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Joan E. Steinman, Federal Practice &

Procedure § 3739 (4th ed. 2009)).

7In Gilbert, the Sixth Circuit Court of Appeals described this doctrine as “appear[ing] to

be on its last legs.” 656 F. App’x at 49.

WL 1114252 (S.D. Ohio Apr. 12, 2007). Further, Ohio courts have no authority to release a

prisoner from confinement in another state. State ex rel. Hanshaw v. Parker, 2001-Ohio-2369

Mott v. Sheriff of Hamilton Cty., 48 Ohio App.3d 84, 548 N.E.2d 301 (1988). Because the Ohio

Supreme Court lacked the authority to entertain a petition for a writ of mandamus against the

federal officials, this Court likewise lacks such authority based on the derivative-jurisdiction

doctrine as it relates to the federal officials.

Further, “’[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary

situations.’” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011)

(quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)). Mandamus jurisdiction in

federal courts is codified at 28 U.S.C. § 1361. That section provides that “[t]he district courts

shall have original jurisdiction of any action in the nature of mandamus to compel an officer or

employee of the United States or any agency thereof to perform a duty owed to the plaintiff. As

explained in Bristow:

The existence of jurisdiction under section 1361 is inextricably bound with the

merits of whether a writ of mandamus should issue; in order to establish either

jurisdiction or entitlement to the writ, a court must find that a duty is owed to the

plaintiff.” Maczko v. Joyce, 814 F.2d 308, 310 (6th Cir. 1987). Mandamus is

available only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a

clear duty to act; and (3) there is no other adequate remedy available to the plaintiff.

Carson v. United States Office of Special Counsel, 633 F.3d 487, 491 (6th Cir.

2011).

Bristow, 2013 WL 5408440, at *3. Here, Plaintiff has failed to plausibly plead any facts

demonstrating either his clear right to relief or any Defendant’s clear duty to act. See id.

Absent any such allegations, the Court has no authority to compel any federal officer or

employee, including the U.S. Marshal, to act.

Finally, Plaintiff also has failed to plausibly plead any facts sufficient to invoke the

Court’s authority under the All Writs Act, 28 U.S.C. § 1651. That statute empowers federal

courts to “issue all writs in aid of their respective jurisdictions, including writs in the nature of

mandamus.” State ex rel. Skaggs v. Brunner, 588 F. Supp. 2d 828, 833 (S.D. Ohio 2008).

Pursuant to the statute, a federal court may issue a writ of mandamus ordering a state official to

enforce rights protected by federal law. State ex rel. Skaggs v. Brunner, 588 F. Supp. 2d 828,

833 (S.D. Ohio 2008) (citing CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975)). However, “[a]

federal court has no general jurisdiction to issue writs of mandamus where that is the only relief

sought. In the absence of special statutory authority, it can issue writs of mandamus only as

ancillary to and in aid of jurisdiction otherwise vested in it.” Haggard v. State of Tenn., 421 F.2d

1384, 1386 (6th Cir. 1970); see also Skaggs, 588 F. Supp. 2d at 833. Moreover, “the All Writs

Act generally should only be used “sparingly and only in the most critical and exigent

circumstances.” In re Life Inv’rs Ins. Co. of Am., 589 F.3d 319, 330 (6th Cir. 2009). As

explained in more detail below, Plaintiff has identified no such circumstances here.

For all of these reasons, Plaintiff has not alleged any facts that he is entitled to the

extraordinary relief he seeks. Accordingly, it is RECOMMENDED that the Court dismiss

Plainitff’s claim for mandamus relief.

B. Civil Rights Relief

Plaintiff also claims that he is falsely imprisoned and seeks damages from nearly 100

individual defendants. This suggests that he may intend this action, at least in part, as a civil

rights action under 42 U.S.C. § 1983. None of the defendants are alleged to reside in Ohio.

Accordingly, venue for such a claim is not proper in this Court. 28 U.S.C. § 1391. This fact

alone may be sufficient reason for the Court to dismiss Plaintiff’s filing.8 Further, for the

8 Bordages v. Thorne, No. 219CV02353JTFDKV, 2020 WL 587651, at *3 (W.D. Tenn.

Feb. 6, 2020)( “A court may dismiss on venue grounds under § 1915 when improper venue is

‘obvious from the face of the complaint and no further factual record is required to be

following reasons, it would not be in the interest of justice to transfer this claim to another

district court. 28 U.S.C. § 1406.

A civil rights action is not a substitute for habeas corpus. When a prisoner challenges the

fact or duration of his confinement, his sole federal remedy is habeas corpus. Heck v. Humphrey,

512 U.S. 477, 787 (1994); Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas is the exclusive

remedy . . . for a prisoner who seeks immediate or speedier release from confinement.”). In

Heck, the United States Supreme Court held that, in assessing a claim under 42 U.S.C. § 1983, a

court “must consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence.” Heck, at 487. 9 If the claim would render a conviction

or sentence invalid, “the complaint must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Id. Thus, under Heck, Plaintiff cannot

proceed with a § 1983 claim here because he cannot “prove that [his] conviction or sentence has

been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court's issuance of a

writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486–87. See Watkins v. Snow, No. 3:12CV-

P585-S, 2013 WL 1879489, at *2 (W.D. Ky. May 3, 2013) (citing Parker v. Phillips, 27 F.

App'x 491, 493 (6th Cir.2001) (The Heck bar applies to claims of false imprisonment). It is

developed.’”) (citing Brent v. Hyundai Capital Am., No. 2:14-cv-02600-STA-dkv, 2014 WL

7335415, at *3, 2014 U.S. Dist. LEXIS 176197, at *6 (W.D. Tenn. Oct. 2, 2014)).

9 As discussed, several of the Defendants are federal officials. The Bivens doctrine serves

as the federal counterpart to civil rights actions pursuant to 42 U.S.C. § 1983, and the decisional

law developed under § 1983 generally applies to Bivens-type actions. Beasley v. Poole, No.

1:11-CV-63, 2011 WL 2689347, at *6 (E.D. Tenn. July 11, 2011). To the extent that Plaintiff’s

filing could be construed as asserting a Bivens claim, the Heck rule applies with equal force to a

federal civil rights action under Bivens. Id., at *8 (citing Ruff v. Runyon, 258 F.3d 498, 502 (6th

Cir.2001)).

therefore RECOMMENDED that the Court dismiss his claims to the extent he intends to assert

a civil rights action against Defendants as “Heck-barred.”

C. Habeas Relief

Finally, although Plaintiff complains that he is unlawfully incarcerated, he has not filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. However, as noted above,

when a state prisoner challenges the fact or duration of his physical imprisonment and seeks a

determination that he is entitled to release from that imprisonment, the sole federal remedy is a

petition for writ of habeas corpus. Mundy v. Michigan, No. 19-12835, 2020 WL 1676727, at *1

(E.D. Mich. Apr. 6, 2020) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). To this

limited extent, this matter is before the Court on its own motion pursuant to Rule 4 of the Rules

Governing Section 2254 Cases in the United States District Courts (providing, in relevant part,

that “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to

notify the petitioner”).

A habeas petition submitted by a person in state custody may be filed in the district where

the person is in custody or in the district where the person was convicted and sentenced. 28

U.S.C.A. § 2241. Because Plaintiff was both convicted and incarcerated in Tennessee, he should

have filed any petition seeking habeas relief in the appropriate district court in Tennessee.

Accordingly, the Court lacks jurisdiction to review any habeas claim Plaintiff may be attempting

to assert.

In this circumstance, “[t]he district court of a district in which is filed a case laying venue

in the wrong division or district [must] dismiss, or if it be in the interest of justice, transfer such

case to any district or division in which it could have been brought.” 28 U.S.C. § 1406.

Plaintiff’s filing fails to allege any facts supporting a claim for habeas relief, names nearly 100

defendants, and borders on the nonsensical. Accordingly, the Undersigned is unable to

determine that it would be in the interest of justice to transfer this action. See Demos v. U.S.

Sec'y of Def., No. 3:13CV-P20-R, 2013 WL 486640 (W.D. Ky. Feb. 6, 2013)(declining to

transfer habeas case brought under § 2241 and filed in wrong venue where allegations were

frivolous and implausible and citing Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)).

Consequently, it is RECOMMENDED that the Court dismiss Plaintiff’s claim to the

extent he seeks habeas relief.

IV.

For the reasons explained above, it is RECOMMENDED that Plaintiff’s Complaint be

DISMISSED in its entirety and that all pending motions be denied as moot. It is FURTHER

RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the

foregoing reasons an appeal of any Order adopting this Report and Recommendation would not

be taken in good faith and therefore deny Plaintiff leave to appeal in forma pauperis. See

McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l

Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the

magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal

the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

that defendant waived appeal of district court’s denial of pretrial motion by failing to timely

object to magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation

omitted)).

/s/ Elizabeth A. Preston Deavers______

DATED: April 30, 2020 ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE