Kister v. State of Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD KISTER,

Plaintiff,

Civil Action 2:20-cv-6525

v. Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

STATE OF OHIO,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Chad Kister, an Ohio resident proceeding without the assistance of counsel, has

submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court GRANTS

Plaintiff’s request to proceed in forma pauperis. 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). This matter is also

before the Court for the initial screen of Plaintiff’s Complaint as required by 28 U.S.C. §

1915(e)(2) 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). Having performed the initial screen, for the reasons that follow, it is

RECOMMENDED that the Court DISMISS this action pursuant to 28 U.S.C. § 1915(e)(2).

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), which

provides in pertinent part as follows:

(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).

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

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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, when

considering a pro se plaintiff’s Complaint, a Court “must read [the allegations] with less

stringency . . . and accept the pro se plaintiff’s allegations as true, unless they are clearly

irrational or wholly incredible.” Reynosa v. Schultz, 282 F. App’x 386, 389 (6th Cir. 2008)

(citing Denton v. Hernandez, 504 U.S. 25, 33 (1992) (internal citation omitted).

II.

Plaintiff’s Complaint lacks clarity and contains numerous “wholly incredible”

allegations. (See, e.g., Comp., ECF No. 1-1 at PAGEID # 5 (alleging Plaintiff is the victim of a

brain implant and that another individual, who put a powerline into the Pentagon, was trying to

erase copies of the brain implant x-rays and this same individual broke into Plaintiff’s home to

steal his ozone-depletion free rocket fuel invention).) To the extent Plaintiff intends to advance

claims against unnamed defendants predicated on these “irrational or wholly incredible”

allegations, his Complaint fails to meet the facial plausibility standard and must be dismissed

pursuant to § 1915(e) as legally frivolous.

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It appears, however, that Plaintiff instead seeks to file a direct appeal from a judgment

rendered by the Ohio Supreme Court. The caption of his Complaint lists “State of Ohio” as the

only other party to this action and states “On Appeal from Ohio Supreme Court.” (Id. at

PAGEID # 4.) Plaintiff also states in his “Introduction” section that “The Ohio Supreme Court,

while failing to accept the case, did leave it open for appeal to the federal court.” (Id.) Plaintiff

attaches three state-court journal entries reflecting jury convictions on criminal charges. In terms

of relief, Plaintiff asks this Court to dismiss his criminal charges or alternatively to order a new

jury trial on the charges.

This Court lacks jurisdiction to adjudicate direct appeals from state-court judgments. See

In re Cook, 551 F.3d 542, 548 (6th Cir. 2009) (“The Rooker-Feldman doctrine embodies the

notion that appellate review of state-court decisions and the validity of state judicial proceedings

is limited to the Supreme Court under 28 U.S.C. § 1257, and thus that federal district courts lack

jurisdiction to review such matters.”); Gottfried v. Med. Planning Servs., Inc., 142 F.3d 326, 330

(6th Cir. 1998) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923)) (“Rooker–

Feldman stands for the simple (yet nonetheless confusing) proposition that lower federal courts

do not have jurisdiction to review a case litigated and decided in state court; only the United

States Supreme Court has jurisdiction to correct state court judgments.”). Put another way,

because only the United State Supreme Court has jurisdiction to correct state-court judgments, if

Plaintiff seeks to appeal a decision from the Ohio Supreme Court, he may only do so through

filing a petition for writ of certiorari to the United States Supreme Court. If instead Plaintiff

seeks to obtain an order declaring that his state-court criminal conviction was obtained in

violation of his rights guaranteed under the Constitution, he must proceed by filing a petition for

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writ of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. §§ 2241, 2254; Preiser v.

Rodriguez, 411 U.S. 475, 484 (1973). It is therefore RECOMMENDED that this action be

DISMISSED pursuant to § 1915(e).

III.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis is GRANTED. (ECF No.

1.) For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this action

pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.

PROCEDURE ON OBJECTIONS

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).

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IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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