Lair v. Ohio Parole Board

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARL D. LAIR,

Plaintiff,

Case No. 2:20-cv-347

Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Elizabeth P. Deavers

OHIO PAROLE BOARD, et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Carl D. Lair, a state inmate who is proceeding without the assistance of counsel,

brings this action against the Ohio Parole Board and the Franklin County Court of Common

Pleas. (ECF No. 1-1.) On February 3, 2020, Plaintiff was granted leave to proceed in forma

pauperis in this action. (ECF No. 5.) This matter is before the Court for the initial screen of

Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to

recommend dismissal of Plaintiff’s Complaint, 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. §§ 1915(e)(2), 1915A. Having performed the initial

screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A, for the reasons that follow, it

is RECOMMENDED that the Court DISMISS this action.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) 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).

1Formerly 28 U.S.C. § 1915(d).

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, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se ain 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)). This lenient

treatment, however, has limits; “‘courts should not have to guess at the nature of the claim

asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II.

Plaintiff asserts that he was released from prison on January 1, 2019, and was placed on

parole, or post-release control. (ECF No. 1-1 at 5.) He alleges that he is currently being held in

the Franklin County Jail after failing to report pursuant to his parole and being charged with

escape. (Id.) Plaintiff requests that this Court release him from post-release control and dismiss

his escape charges since he has “done all [his] time” for the underlying crime. (Id. at 6.)

Plaintiff names the Ohio Parole Board and the Franklin County Court of Common Pleas

as Defendants. (ECF No. 1-1.) Plaintiff’s Complaint fails to state a claim because neither of

these Defendants are capable of being sued in federal court except in certain limited

circumstances that are not applicable in this case. The Eleventh Amendment of the United States

Constitution operates as a bar to federal-court jurisdiction when a private citizen sues a state or

its instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby Cnty., 211 F.3d 331, 334 (6th Cir. 2000).

“It is well established that [28 U.S.C.] § 1983 does not abrogate the Eleventh Amendment.”

Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013) (citing Quern v. Jordan, 440 U.S. 332,

341 (1979)).

Both the Ohio Parole Board and Franklin County Court of Common Pleas are

instrumentalities of the state of Ohio. See Mathis v. Netcare Corp., No. 2:12-CV-576, 2012 WL

2884804, at *1 (S.D. Ohio July 13, 2012) (citing Mumford v. Basinksy, 105 F.3d 264, 269-70

(6th Cir. 1997) (holding that a division of the Franklin County Court of Common Pleas “is an

instrumentality of the State of Ohio and is, under the Eleventh Amendment to the United States

Constitution, absolutely immune from suit in this Court”); see also Latham v. Bd., No. 1:15-CV-

488, 2015 WL 5905833, at *3 (S.D. Ohio Sept. 16, 2015), report and recommendation adopted

sub nom. Latham v. Ohio Parole Bd., No. 1: 15-CV-488, 2015 WL 5882979 (S.D. Ohio Oct. 7,

2015) (citing Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State

School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978);

Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“Absent an express waiver, the Eleventh

Amendment to the United States Constitution bars suit against a State or one of its agencies or

departments in federal court regardless of the nature of the relief sought” and “[t]he Ohio Parole

Board is a section within the Adult Parole Authority, a state agency.”) “Ohio has not waived its

sovereign immunity in federal court.” Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999).

Further, neither the Ohio Parole Board nor the Franklin County Court of Common Pleas are

“persons” who can be held liable under § 1983. Diaz v. Dep’t of Corr., 703 F.3d 956, 962 (6th

Cir. 2013). Thus, dismissal pursuant to § 1915(e) of Plaintiff’s claims against the Ohio Parole

Board and the Franklin County Court of Common Pleas is appropriate.

In addition, to the extent Plaintiff’s claims are premised upon an alleged unconstitutional

criminal conviction, his claims are “Heck-barred.” The United States Supreme Court has 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

v. Humphrey, 512 U.S. 477, 487 (1994). A person detained in state custody cannot state a claim

under § 1983 if a ruling on that claim would render a conviction or sentence invalid. Id.

Accordingly, “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 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. Accordingly, to the extent Plaintiff

seeks to directly challenge the fact or duration of his confinement at the Franklin County Jail, his

sole remedy in federal court is filing a petition for writ of habeas corpus under 28 U.S.C. § 2254.

See Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas is the exclusive remedy . . . for the

prisoner who seeks immediate or speedier release from confinement.” (internal quotation marks

and citation omitted)). Thus, Plaintiff has not stated a claim upon which relief can be granted in

this Court.

III.

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

DISMISSED in its entirety for failure to state a claim upon which relief can be granted. The

Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s Office, 150 E.

Gay St., 16th Floor, Columbus, Ohio 43215. 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 by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Natl 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)).

Date: May 13, 2020 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE