# Campbell v. Chambers Smith > District Court, S.D. Ohio · October 15, 2021 URL: https://www.frixlaw.com/law-library/cases/10378829 ## Case - **Court:** District Court, S.D. Ohio - **Decided:** October 15, 2021 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378829 ## How later opinions describe it (automated extraction) - noting that sua sponte dismissal of complaint that is barred on its face by the statute of limitations is appropriate - 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)) - applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B){ii ## Opinion text 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)). Case No. 2:21-cv-4055 Page 2 of 5 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 Case No. 2:21-cv-4055 Page 3 of 5 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 Case No. 2:21-cv-4055 Page 4 of 5 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 Case No. 2:21-cv-4055 Page 5 of 5 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378829. Public record. Not legal advice.