Campbell v. Chambers Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

William Campbell, Jr.,

Civil Action 2:21-cv-4055

Plaintiff,

Judge Michael H. Watson

“ Magistrate Judge Vascura

Annette Chambers-Smith, et ai.,

Defendants.

OPINION AND ORDER

William Campbell, Jr. (‘Plaintiff’), an Ohio inmate at the North Central

Correctional Complex who is proceeding pro se, brings this civil rights action

under 42 U.S.C. § 1983 against the following Defendants, all in both their

individual and official capacities: (1) Annette Chambers-Smith, Director of the

Ohio Department of Rehabilitation and Correction and of the Ohio Adult Parole

Authority (“OAPA’); (2) Cynthia Mausser, former OAPA chairperson and board

member, and (3) Several John Does, “also members of the Ohio Adult Parole

Authority, or other State officials, wno are unknown at this time, by identity.”

Compl. J] 5-8, ECF No. 1-1 at PAGEID ## 11-12.

Plaintiff alleges that he was denied parole due to racial animus and

systematic discrimination against African American parole candidates vis-a-vis

their Caucasian counterparts.

On September 3, 2021, the Magistrate Judge issued a Report and

Recommendation (“R&R”) recommending that the lawsuit be dismissed as time-

barred. R&R, ECF No. 4 at PAGEID # 113. On September 23, 2021, Plaintiff

filed Objections. Obj., ECF No. 5. For the reasons set forth below, the Court

ADOPTS the R&R and DISMISSES the Complaint.

I. BACKGROUND

The Magistrate Judge accurately set forth the procedural history and the

factual allegations in the Complaint. R&R, ECF No. 4 at PAGEID ## 108-10.

The Court incorporates that discussion by reference.

The Magistrate Judge noted that the latest date on which Plaintiff's injury

could have accrued for statute of limitations purposes was February 20, 2019,

the date on which his application for reconsideration of his denial of parole was

denied, “meaning that the statute of limitations for a § 1983 lawsuit expired no

later than February 20, 2021.” /d. at PAGEID # 113; see also Browning v.

Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (statute of limitations for 42 U.S.C.

§ 1983 claim in Ohio is two years (citing Ohio Rev. Code § 2305.10)).

As Plaintiff did not file suit until July 29, 2021, the Magistrate Judge

concluded that Plaintiffs Compiaint is time-barred and should be dismissed.

R&R, ECF No. 4 at PAGEID # 113 (citing Castillo v. Grogan, 52 F. App’x 750,

751 (6th Cir. 2002) (noting that sua sponte dismissal of complaint that is barred

on its face by the statute of limitations is appropriate)).

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ll. © STANDARD OF REVIEW

Section 1915A requires trial courts to screen all complaints “in a civil action

in which a prisoner seeks redress from a governmental entity or officer or

employee of governmental entity’ and to sua sponie dismiss an action or claim

upon a determination by the Court that the action or claim “is frivolous or

malicious, or fails to state a claim upon which relief may be granted[.]” 28 U.S.C.

§ 1915A(a),(b)(1); 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)). “A claim is frivolous if it lacks ‘an

arguable basis either in law or in fact.” Flores v. U.S. Att'y Gen., No. 2:14-cv-84,

2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014), report and recommendation

adopted at 2014 WL 2535232 (S.D. Ohio Jun. 5, 2014) (quoting Neitzke v.

Wilfiams, 490 U.S. 319, 325 (1988)). This occurs when “indisputably meritless”

legal theories underlie the complaint, or when a complaint “relies on ‘fantastic or

delusional’ allegations.” /d. (quoting Neitzke, 490 U.S. at 327-28).

“A magistrate judge must promptly conduct the required proceedings when

assigned, without the parties’ consent, to hear a pretrial matter dispositive of a

claim or defense . . . The magistrate judge must enter a recommended

disposition[.]” Fed. R. Civ. P. 72(b){1). “[A] party may serve and file specific

written objections to the proposed findings and recommendations.” Fed. R. Civ.

P. 72(b)(2). “The district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to. The district

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judge may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions.” Fed. R.

Civ. P. 72(b)(3).

ill. ANALYSIS

Defendant's Objections speak to the merits of his claims, which the

Magistrate Judge correctly surmised are alleged “violations of the Due Process

and Ex Post Facto Clauses and a First Amendment retaliation claim.” R&R, ECF

No. 4 at PAGEID #112. However, he does not dispute that his claims are time-

barred; nor does he mention the statute of limitations or whether equitable tolling

operated to excuse his untimely filing. See, e.g., Holland v. Florida, 560 U.S.

631, 649 (2010) (holding that in order to obtain equitable tolling of the statute of

limitations, a litigant must establish “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way” (citing

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))).

From its independent review of the record, the Court concludes that the

Magistrate Judge was correct in concluding that the denial of reconsideration of

the Ohio Parole Boara’s decision on February 20, 2019, Compl., ECF No. 1-1 at

PAGEID # 48, was the latest date on which the injury giving rise to the instant

action could have occurred. R&R, ECF No. 4 at PAGEID # 113. Further, there

can be no dispute that the statute of limitations expired two years later, on

February 20, 2021, Browning, 869 F.2d at 992, but that Plaintiff did not file the

Complaint until five months after expiration. While the statute of limitations is

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normally an affirmative defense, sua sponte dismissal under 28 U.S.C. § 1915A

is appropriate when, as here, the “statute of limitations defense clearly appears

on the face of a pleading[.]” Watson v. Wayne Cty., 90 F. App’x 814, 815 (6th

Cir. 2004); accord Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001).

Accordingly, all claims against Defendants must be dismissed as frivolous.

Finally, in Simons v. Washington, the United States Court of Appeals for the

Sixth Circuit held that pursuant to 28 U.S.C. § 1915(g), District Courts may, and

often should, recommend to future courts whether a complaint should be

considered one of the three cases under which an incarcerated plaintiff may

proceed in forma pauperis. 996 F.3d 350, 353 (6th Cir. 2021). This is commonly

known as the “three-sirikes rule.” /d. at 351. As Plaintiffs Complaint is being

dismissed as “frivolous,” 28 U.S.C. § 1915(g), the Court concludes that this

Complaint should be treated as one of Plaintiffs strikes.

IV. DISPOSITION

For the reasons set forth above, the R&R is ADOPTED, and Plaintiffs

Complaint is DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915A as

frivolous. The Clerk shall enter judgment for Defendants and terminate this case.

IT IS SO ORDERED.

/s/ Michael H. Watson

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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