Atkinson v. State Of Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROBERT L. ATKINSON, : Case No. 3:22-cv-192

:

Plaintiff, :

: District Judge Thomas M. Rose

vs. :

Magistrate Judge Kimberly A. Jolson

:

STATE OF OHIO, et al., :

:

Defendants. :

:

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s Second Amended Complaint (Docs. 19, 20).

I.

Plaintiff, a former prisoner at the Montgomery County Jail (“MCJ”), filed this pro se civil

rights action against the State of Ohio and the Montgomery County Sheriff’s Department

pursuant to 42 U.S.C. § 1983 and Ohio state law based on allegations of wrongful incarceration

at the Montgomery County Jail. (See Doc. 7-1; 7-2; and 7-3).

Plaintiff submitted his initial Complaint in four installments, consisting of three civil

complaint forms and a habeas corpus form (see Doc. 1-1; 1-2; 1-3; and 1-4), and also submitted a

document titled Motion or Application for Over-Detention or Wrongful Detention, which

appeared to contain additional allegations (see Doc. 3, at PageID 177-80). On August 2, 2022,

the Court ordered Plaintiff to submit a single, completed civil Complaint form within thirty days

if he wished to proceed with his action. (Doc. 6).

Additionally, given Plaintiff’s submission of a habeas corpus form as part of his

Complaint in this case (see Doc. 1-4), the Court noted that, to the extent that Plaintiff was “in

custody” and sought to challenge the constitutionality of his custody, conviction, or sentence,

federal habeas relief was the appropriate remedy. See Preiser v. Rodriquez, 411 U.S. 475, 500

(1973). In such a case, the Court directed Plaintiff to file a separate habeas corpus action. (Doc.

6, at PageID 192).

On August 10, 2022, Plaintiff attempted to comply with the Court’s August 2, 2022

Deficiency Order by submitting another motion for leave to proceed in forma pauperis (Doc. 7),

along with both an Amended Complaint (Doc. 7-1; 7-2; and 7-3) and a Petition for writ of habeas

corpus and supporting exhibits (Doc. 7-4; 7-5).

Because it appeared that Plaintiff submitted his habeas corpus Petition and supporting

exhibits (Doc. 7-4; 7-5) in this action in error, the Court directed Plaintiff on August 16, 2022, to

show cause within fourteen days why his separately submitted Petition for writ of habeas corpus

and supporting exhibits (Doc. 7-4; 7-5) should not be stricken from the record in this civil action

and returned to him for filing, if he so wished, in a new and separate action. Alternatively, the

Court noted that if Plaintiff intended to file his Petition for a writ of habeas corpus and

supporting exhibits as a new and separate action in this Court, he should inform the Court of this

intention, also within fourteen days.

In Plaintiff’s timely response to the Court’s August 16, 2022 Order, he indicated that he

“would like to file his petition for writ of habeas corpus and exhibits as a ‘new’ and ‘separate’

action in this Court[.]” (Doc. 9, at PageID 287). In light of Plaintiff’s response, the Clerk of

Court was directed to open a new case for Plaintiff’s Petition for a writ of habeas corpus and

exhibits (Doc. 7-4; 7-5) and to strike those filings (Doc. 7-4; 7-5) from this action.

On September 14, 2022, the undersigned filed an initial Screening Report and

Recommendation that recommended dismissing Plaintiff’s Amended Complaint in the instant

case for failure to state a claim upon which relief could be granted. The undersigned found that

the sole Defendants—the State of Ohio and the Montgomery County Sheriff’s Department—

were not proper parties under § 1983 and that, even liberally construing Plaintiff’s claims as

against Montgomery County and/or the Montgomery County Sheriff, Plaintiff failed to allege

sufficient facts to state a plausible claim. (Doc. 15, at PageID 313-16). In light of these

recommendations, the undersigned also recommended that the Court decline to exercise

supplemental jurisdiction over the state-law claims. (Id., at PageID 316). In an abundance of

caution, however, the undersigned recommended that Plaintiff be granted leave to file a Second

Amended Complaint to rectify the identified deficiencies. (Id., at PageID 316). On October 6,

2022, the District Court adopted in full the September 14, 2022 Report and Recommendation.

(Doc. 16).

On October 25, 2022, Plaintiff filed an amended pleading. (Doc. 19). On October 27,

2022, Plaintiff filed another amended pleading. (Doc. 20). The Court considers these filings

(Docs. 19 and 20) together as Plaintiff’s Second Amended Complaint. Plaintiff’s Second

Amended Complaint supersedes Plaintiff’s earlier filed complaints and is the operative complaint

in this case. Scuba v. Wilkinson, No. 1:06-cv-160, 2006 WL 2794939, at *2 (S.D. Ohio Sept. 27,

2006) (citing Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)); see also

Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014) (“An amended complaint supersedes an

earlier complaint for all purposes.”) (quotation and citation omitted).

This matter is now before the undersigned for initial screening of plaintiff’s Second

Amended Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims

and to recommend dismissal of the Second Amended 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.

II.

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

1Formerly 28 U.S.C. § 1915(d).

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

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 complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cty. 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)).

III.

In his Second Amended Complaint, Plaintiff names three new defendants—Montgomery

County Sheriff Rob Streck, MCJ Captain Daughtery, and MCJ Major Andy Easton—and alleges

that his claims arise out of:

Case No: 19-CRB-5115 also Case No: 19-CRB-672 in the Montgomery County

Municipal Court. Wherefore, I was “forced” by said Defendant[s] to be

incarcerated or detained for more time passed the statute for a misdemeanor of the

1st Degree.

(Doc. 19, at PageID 335; Doc. 19-1, at PageID 342).2 For relief, Plaintiff seeks money damages.

(Doc. 19, at PageID 338).

Based on his allegations, Plaintiff brings claims against Defendants for conspiracy and

violations of his right under the Eighth Amendment to the United States Constitution to be free

from cruel and unusual punishment. For the reasons below, the Second Amended Complaint is

subject to dismissal for failure to state a claim upon which relief may be granted.

IV.

The Court considers Plaintiff’s conspiracy claim first. It is well-settled in the Sixth

Circuit that civil conspiracy claims under 42 U.S.C. § 1983 must be pleaded with “with some

degree of specificity, and vague and conclusory allegations unsupported by material facts are not

sufficient to state a claim.” Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010).

See also Boxill v. O’Grady, 935 F.3d 510, 519 (6th Cir. 2019) (“The plaintiff must plead enough

facts to support a reasonable inference that there was a single plan, that the alleged coconspirator

shared in the general conspiratorial objective, and that an overt act was committed in furtherance

2Although Plaintiff alleges that the underlying state-court cases were filed in the Montgomery County

Municipal Court (see Doc. 19-1, at PageID 342), the undersigned’s review of the record in this case (see, e.g., Doc.

19, at PageID 337 (containing Plaintiff’s description of his arrest dates and charges)) and the Dayton Municipal Court

website (see https://clerkofcourt.daytonohio.gov/PA/TCSearchTypes.cfm?initialArea=criminal) reveals that these

cases were in fact filed in the Dayton Municipal Court.

of the conspiracy that caused injury to the complainant.”) (internal quotation marks omitted);

Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch, 826

F.2d 1534 (6th Cir. 1987)) (affirming dismissal of conspiracy claims under § 1983 because the

plaintiff failed to plead the claims with the “requisite specificity”). Here, construing the

complaint liberally, Plaintiff’s factual allegations are insufficient to suggest that Defendants

shared a conspiratorial objective or otherwise planned together to deprive him of a

constitutionally-protected right. Therefore, Plaintiff’s conspiracy claim lacks the requisite

specificity to state a cognizable claim under 42 U.S.C. § 1983.

The Court next considers Plaintiff’s Eighth Amendment claim. Courts, including the

Sixth Circuit, have recognized a federal right to be released from state custody upon completion

of one’s sentence. See Shorts v. Bartholomew, 255 F. App’x 46, 51 (6th Cir. 2007) (citing

cases). Plaintiff’s Second Amended Complaint and accompanying exhibits make clear, however,

that Plaintiff has failed to plausibly allege that Defendants held him in custody beyond his

scheduled release date.3 Rather, excerpts from a hearing transcript that Plaintiff attaches as an

exhibit to his Second Amended Complaint establish that at a hearing on February 5, 2020, in

Case No. 19-CRB-672, in which Plaintiff had pleaded guilty to domestic violence, the trial judge

sentenced Plaintiff to “89 more days.” (Doc. 20-1, at PageID 435).4 Although the judge

indicated that he would consider a motion for early release (see id.), the state-court docket

3Pursuant to Federal Rule of Civil Procedure 10, these exhibits are considered a part of the Second Amended

Complaint “for all purposes.” See Fed. R. Civ. P. 10(c). Cf., Fishman v. Williams, No. CV 14-4823 MWF(JC), 2016

WL 11484591, at *7 (C.D. Cal. Sept. 21, 2016) (“When screening a pro se plaintiff’s complaint pursuant to 28 U.S.C.

§ 1915A, the Court may consider facts drawn from the complaint and supporting exhibits attached thereto.”); Johnson

v. Buffalo Pub. Schools: Adult Educ. Div., No. 19-CV-1484 (JLS), 2021 WL 9455714, at *3 (W.D.N.Y. Jan. 7, 2021)

(“The Court deems the attachments and exhibits attached to Johnson’s Complaint part of the pleading and considers

them, to the extent they are relevant, in its screening decision.”).

4Excerpts from another hearing transcript attached to the Second Amended Complaint establish that Case

No. 19-CRB-5115 was dismissed on January 29, 2020, because Plaintiff had “served the maximum amount of time.”

(Doc. 20-1, at PageID 426).

reveals that Plaintiff’s motion for early release was denied on March 18, 2020.5 Plaintiff’s

sentence in Case No. 19-CRB-672 would have thus expired on or about May 4, 2020. Plaintiff

alleges that he was released from the MCJ on May 3, 2020, a day before his sentence expired.

(Doc. 19, at PageID 338). In light of Plaintiff’s own allegations and submitted exhibits, Plaintiff

has failed to plead a plausible claim that Defendants held him in custody beyond his scheduled

release date.

Furthermore, to the extent that Plaintiff seeks to challenge his sentences in Case Nos. 19-

CRB-5115 or 19-CRB-672, such claims are barred unless and until there has been a prior judicial

determination that he was unlawfully incarcerated. In Heck v. Humphrey, 512 U.S. 477 (1994),

the Supreme Court held that if a judgment rendered in the plaintiff’s favor would necessarily

imply that his conviction or sentence was invalid, the complaint for damages under § 1983 must

be dismissed unless the plaintiff has already succeeded in having the conviction or sentence

invalidated through reversal on direct appeal, expungement by executive order, or declaration of

invalidity by a state tribunal authorized to make such a determination or by a federal court’s

issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Heck, 512 U.S. at 486-87.

Because success on Plaintiff’s Eighth Amendment claim would call into question the validity of

his sentence in Case No. 19-CRB-672, the claim is barred by Heck.6

5Viewed at the Dayton Municipal Court website:

(https://clerkofcourt.daytonohio.gov/PA/TCCaseSummary.cfm?cid=dmprSzhyYzlTbCtiOEVySHBGclZmdz09&CF

ID=15362268&CFTOKEN=77b99b7c041c4f77-1813812C-C6F1-812E-604944468067D255). This Court may take

judicial notice of court records that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642,

648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

6Notably, as set forth above in Part I of this Report and Recommendation, Plaintiff did file a separate habeas

corpus action when he filed the instant action. However, when Plaintiff was asked to show cause why that matter

should not be dismissed on the basis that he was not “in custody” at the time he filed suit, Plaintiff did not respond to

the show cause order. Plaintiff’s habeas action was ultimately dismissed for want of prosecution. See Atkinson v.

Montgomery County Jail, Case No. 3:22-cv-236 (S.D. Ohio) (Docs. 17, 20, 21).

Accordingly, in sum, Plaintiff’s Second Amended Complaint should be dismissed

pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A. The dismissal should be with prejudice with the

caveat that the dismissal should not be construed as precluding plaintiff from filing a habeas

petition to the extent appropriate under the circumstances. See Wheeler v. Dayton Police Dep’t,

807 F.3d 764, 767 (6th Cir. 2015) (“When courts dismiss claims under Heck, they typically do so

without prejudice”) (emphasis original); see also Thompson v. Love's Travel Stops & Country

Stores, Inc., 748 F. App’x 6, 11 (6th Cir. 2018) (“[O]ur court has stated on several occasions that

dismissal for lack of subject matter jurisdiction should normally be without prejudice.”) (citing

cases).

V.

IT IS THEREFORE RECOMMENDED THAT:

1. The Second Amended Complaint be DISMISSED with prejudice, pursuant to 28

U.S.C. §§ 1915(e)(2), 1915A, with the caveat that the dismissal should not be construed as

precluding plaintiff from filing a habeas petition to the extent appropriate under the

circumstances.

2. The Court certify pursuant to 28 U.S.C. § 1915(a) 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. Plaintiff remains free to

apply to proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d

800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274,

277 (6th Cir. 1997).

VI.

The CLERK OF COURT is DIRECTED to send this Order and Report and

Recommendation to Plaintiff using the address he has provided to the Court in this case and also

to the address he provided in Case No. 3:22-cv-236. Plaintiff is DIRECTED to keep the Court

apprised of any changes to his address.

Additionally, the CLERK OF COURT is DIRECTED to update the docket record in this

case to show that the State of Ohio and the Montgomery County Sheriff’s Department have been

TERMINATED as parties to the action and that Defendants Montgomery County Sheriff Rob

Streck, Captain Daughtery, and Major Andy Easton have been ADDED as parties to the action.

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. Nat’l 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

the 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).

December 2, 2022 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

United States Magistrate Judge