The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MONTEL M. MCCLELLAND,
Plaintiff,
Case No. 2:20-cv-5331
Judge Michael H. Watson
v.
Magistrate Judge Jolson
GARY MOHR, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Montel M. McClelland is an inmate at Northeast Ohio Correctional Center who is
proceeding pro se against Defendants City of Steubenville and Michael Hyde. (Doc. 1-1). This
matter is before the Undersigned for consideration of Plaintiff’s Motion for Leave to Proceed in
forma pauperis (Doc. 1), Plaintiff’s Motion to Appoint Counsel (Doc. 2), and the initial screen of
Plaintiff’s Complaint under 28 U.S.C. §§ 1915A, 1915(e)(2).
Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who
render services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).
Furthermore, having performed an initial screen and for the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s claims. Plaintiff’s Motion to Appoint
Counsel (Doc. 2) is DENIED as moot as a result. Finally, the Clerk is DIRECTED to seal Exhibit
A attached to Plaintiff’s Complaint, which contains confidential personally-identifying
information.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1) and (2) (Doc. 1), Plaintiff’s Motion is GRANTED. Plaintiff is required to
pay the full amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s Motion
reveals that he has an insufficient amount to pay the full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at the
Northeast Ohio Correctional Center is DIRECTED to submit to the Clerk of the United States
District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of
either the average monthly deposits to the inmate trust account or the average monthly balance in
the inmate trust account, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account, but only when the amount in the account
exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C.
§ 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be
made payable to Clerk, United States District Court and should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do so
as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order
to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of
this Order to the Court’s financial office in Columbus.
II. LEGAL STANDARD
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,
or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). In reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all
well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In sum, although pro se
complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic
pleading essentials” are still required, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. DISCUSSION
Plaintiff’s claims stem from his December 2018 arrest in Jefferson County, Ohio. (See
generally Doc. 1-1). Specifically, he alleges that Defendant Michael Hyde, a Steubenville, Ohio
police officer, “arrested [him] pursuant to a complaint” but that Plaintiff “did not see or receive a
copy of the complaint . . . until” December 27, 2018, after “sen[ding] a public record request to
the Jefferson County Clerk.” (Id. at 2–3). Plaintiff seeks injunctive and monetary relief pursuant
to 42 U.S.C. § 1983, asserting he was:
deprived . . . of his 4th, 8th, & 14th Amendment rights when he filed a criminal
complaint without a factual justification to support the arrest warrant, thus the
Deputy clerk or Magistrate could not have made an independent & neutral
determination of probable cause for an arrest warrant under color of state law.
(Id. at 3).
Plaintiff’s Complaint suffers from a fatal flaw: Section 1983 does not permit Plaintiff to
challenge the fact or duration of his confinement. Gary v. Shelby Cty. Gov’t, No.
218CV02756TLPTMP, 2020 WL 533185, at *7 (W.D. Tenn. Feb. 3, 2020) (citing Heck v.
Humphrey, 512 U.S. 477, 481 (1994); Preiser v. Rodriguez, 411 U.S. 475, 488–90 (1973)). Rather,
“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of
his confinement . . . even though such a claim may come within the literal terms of § 1983.” Heck,
512 U.S. at 481. This is true “‘no matter the relief sought (damages or equitable relief), no matter
the target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.’” Gary, 2020 WL 533185, at *7 (quoting Wilkinson v. Dotson, 544
U.S. 74, 81–82 (2005)).
That is the case here. Plaintiff alleges that “only a complaint was filed, without an
affidavit,” (Doc. 1-1 at 3), and the complaint lacked probable cause because it did not reflect
Defendant Hyde’s “personal knowledge . . . [or] indicate any source for his belief that Plaintiff
committed a crime” (id. at 7). Ultimately, Plaintiff is alleging he should never have been arrested
based on Defendant Hyde’s complaint. (See id.). But “the merits of those claims would affect the
validity of [Plaintiff’s] conviction or sentence[.]” Gary, 2020 WL 533185, at *7 (citing Edwards
v. Balisok, 520 U.S. 641, 646 (1997); Heck, 512 U.S. at 846). And since Plaintiff has not shown
“‘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 habaeas corpus[,]’” he may not pursue relief
under § 1983. Sinkovitz v. Wallace, No. 2:18-CV-1262, 2018 WL 5784355, at *2 (S.D. Ohio Nov.
5, 2018), report and recommendation adopted, No. 2:18-CV-1262, 2018 WL 6182351 (S.D. Ohio
Nov. 26, 2018), aff’d, No. 18-4205, 2019 WL 2403229 (6th Cir. Mar. 19, 2019) (quoting Heck,
512 U.S. at 486–87).
At bottom, “[i]f there are problems with the [complaint or probable cause supporting
Plaintiff’s arrest], [his] claims are more appropriate for habeas relief, not § 1983.” Gary, 2020
WL 533185, at *7 (internal quotation marks omitted) (concluding that plaintiffs’ § 1983 claim that
defendants’ use of a “rubber stamp procedure to indict them in state court without probable cause”
was Heck-barred as it “challenge[d] the validity of [plaintiffs’] state court criminal proceedings”);
see also Bostic v. Tenn. Dep’t of Corr., No. 3:18-CV-00562, 2018 WL 3539466, at *5 (M.D. Tenn.
July 23, 2018) (finding that plaintiff’s § 1983 claims “regarding the constitutionality of his
continued confinement” were Heck-barred); Albert v. Ohio Adult Parole Auth., No. 2:17-CV-701,
2017 WL 4310492, at *2 (S.D. Ohio Sept. 28, 2017), report and recommendation adopted, No.
2:17-CV-701, 2018 WL 1785491 (S.D. Ohio Apr. 13, 2018) (“[B]efore Plaintiff may seek money
damages in a federal civil rights proceeding in which he appears to claim that the revocation of his
conditional release on parole was unlawfully obtained, he must first show that [that decision] . . .
has been overturned or set aside”).
For these reasons, the Undersigned finds that Plaintiff has not stated a claim upon which
relief may be granted against any of the named Defendants. Moreover, “[b]ecause, as noted above,
Plaintiff[’s] Complaint centers on matters . . . [he] can attack in the state criminal court process or
through habeas relief, [Plaintiff] cannot cure the deficiencies in the [C]omplaint, [so] . . . leave to
amend is not warranted here.” Gary, 2020 WL 533185, at *7. The Undersigned, therefore,
RECOMMENDS that the Court DISMISS Plaintiff’s claims. Plaintiff’s request that the Court
appoint him counsel in this case (Doc. 2) is, consequently, DENIED as moot. Finally, pursuant
to 28 U.S.C. § 1915(a)(3), should the Court adopt the Undersigned’s recommendation, the
Undersigned RECOMMENDS that it certify that an appeal would not be taken in good faith.
IV. CONCLUSION
Plaintiff’s request to proceed in forma pauperis is GRANTED. However, having
performed an initial screen and for the reasons set forth above, it is RECOMMENDED that the
Court DISMISS Plaintiff’s claims. Plaintiff’s Motion to Appoint Counsel (Doc. 2) is DENIED
as moot. Finally, the Clerk is DIRECTED to seal Exhibit A attached to Plaintiff’s Complaint,
which contains confidential personally-identifying information.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: October 15, 2020 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE