El Bey v. Branstool

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVEN ABDUL-AZZIZ EL BEY, : Case No. 2:23-cv-1258

:

Plaintiff, :

: Chief District Judge Algenon L. Marbley

vs. :

Magistrate Judge Elizabeth P. Deavers

:

JUDGE W. DAVID BRANSTOOL, :

REPORT AND

:

RECOMMENDATION

Defendant. :

:

Plaintiff, a prisoner at the Allen Correctional Institution,1 has initiated this prisoner civil

rights action against defendant Licking County, Ohio Court of Common Pleas Judge W. David

Branstool. Plaintiff has paid the filing fee. This matter is before the Court for a sua sponte

review of the complaint to determine whether the complaint, or any portion of it, should be

dismissed because it 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. See Prison

Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

The screening procedures established by § 1915 apply to complaints filed by prisoners

against governmental entities, officials or employees regardless of whether the plaintiff has paid

the filing fee, as in this case, or is proceeding in forma pauperis. See 28 U.S.C. § 1915A(a);

Hyland v. Clinton, 3 F. App’x 478, 479 (6th Cir. 2001); Bell v. Rowe, No. 97-4417, 1999 WL

196531, at *1 (6th Cir. Mar. 22, 1999) (citing McGore v. Wrigglesworth, 114 F.3d 601, 608-09

(6th Cir. 1997)); see also Fleming v. United States, 538 F. App’x 423, 426 (5th Cir. 2013) (per

1 Although the documents submitted to the Court in this case were mailed from an alternate

address, the Ohio Department of Rehabilitation and Correction Offender Details page indicates

that plaintiff is in custody at the Allen Correctional Institution based on his Licking County, Ohio

conviction and sentence in Case No. 15CR00463.

curiam) (citing Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998)); Miller v. Edminsten,

161 F. App’x 787, 788 (10th Cir. 2006); Lewis v. Estes, No. 00-1304, 2000 WL 1673382, at *1

(8th Cir. Nov. 8, 2000) (per curiam) (citing McGore and Seventh and Second Circuit Court

decisions).

I. Screening of Complaint

A. Legal Standard

A complaint may be dismissed as frivolous when the plaintiff cannot make any claim

with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989);

see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable

legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal

interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual

basis when the allegations are delusional or rise to the level of the irrational or “wholly

incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199. The Court

need not accept as true factual allegations that are “fantastic or delusional” in reviewing a

complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,

490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of prisoner complaints that fail to

state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). A complaint filed by

a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in

Iqbal and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and

1915(e)(2)(B)(ii)).

“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.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded

factual allegations as true, but need not “accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Although a complaint need not contain “detailed factual allegations,” it must provide “more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does

a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”

Id. at 557. The complaint must “give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

A. Allegations in the Complaint

Plaintiff, who states that he is a “Moor American National, Aboriginal, Indigenous, Natural

Inhabitant, Living Human-Being, In Propria Persona, Sui Juris, (NUL TIEL CORPORATION, not

under the 14th Amendment as a Corporate Citizen – Corporate Construct on Paper) not an ens

legis, and not a nom-de-guerre, straw man, or any other artificial corporate construct as written in

all CAPITAL LETTERS (by Law such grammar indicates a Corporation, per United States

Government Printing Office), by the unclean hands of others, or any Representative thereof,”

brings this action against defendant Licking County, Ohio Court of Common Pleas Judge W.

David Branstool. (See Doc. 1 at PageID 1). The document submitted to the court—captioned as

a “Writ of Mandamus”—asserts that the Licking County, Ohio Court of Common Pleas failed to

establish jurisdiction with respect to plaintiff’s underlying criminal conviction and sentence in

Case No. 2015-CR-463. (Id. at PageID 6). According to plaintiff, defendant Judge Branstool “has

repeatedly refused to place proof of jurisdiction on the record as a matter of law; ignored this

Petitioner’s Article 1 Sec. 9 Constitutional right of habeas corpus and are in default and in want of

jurisdiction.” (Id.). Based on his claim that the state trial court does not have jurisdiction over

him by virtue of his Moorish-American ancestry, plaintiff claims that the 2015 state-court, criminal

proceedings against him are “NULL an[d] VOID AB INITIO and are UNENFORCEABLE for

lack of jurisdiction.” (Id. at PageID 8).

As relief, plaintiff seeks a writ of mandamus to command Judge Branstool “to execute his

judicial duties” and for his state court criminal case to be “immediately Discharged, Dismissed,

Expunged, and Withdrawn” and for “the immediate release of the flesh and blood living Man and

Noble Steven Abdul-Azziz El Bey now serving without warrant of jurisdiction unlawfully and

illegally as surety for the fictious corporate person, ens legis, artificial person, stramineus homo,

STEVEN L. SMITH.” (Id.).

B. Analysis

This action should be dismissed for failure to state a claim upon which relief may be

granted. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).

As an initial matter, as here, where a plaintiff challenges the validity of his conviction or

sentence and seeks immediate or speedier release, the proper mechanism for plaintiff to challenge

his present physical custody is a petition for a writ of habeas corpus, not this civil rights action.

Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“This Court has held that a prisoner in state custody

cannot use a § 1983 action to challenge ‘the fact or duration of his confinement.’”) (quoting Preiser

v. Rodriguez, 411 U.S. 475, 489 (1973)). As noted above, plaintiff challenges the trial court’s

jurisdiction over his state-court criminal conviction/sentence and seeks relief in the form of

immediate release. To the extent that plaintiff seeks relief in the form of dismissal of his criminal

conviction and/or immediate release his sole remedy is a petition for a writ of habeas corpus after

exhausting his state court remedies.

Plaintiff has captioned his submission to the Court as a “Writ of Mandamus,” however,

this Court does not have the authority to grant him mandamus relief in this case. Under 28 U.S.C.

§ 1361, “[t]he district courts shall have original jurisdiction of any action in the nature of

mandamus to compel an officer or employee of the United States or any agency thereof to perform

a duty owed to the plaintiff.” Here, because plaintiff “seeks an order compelling a state official to

act, this Court has no authority under the mandamus provision to grant him the relief he requests.”

Ruiz v. Oklahoma Cnty. Sheriff’s Office, No. CIV-07-43-C, 2007 WL 950367, at *2 (W.D. Okla.

Mar. 27, 2007). See also Knox v. Bland, 632 F.3d 1290, 1292 (10th Cir. 2011) (“To the extent that

[plaintiff] is seeking relief in the nature of mandamus, ordering Defendants to take action in their

capacities as state judges, we have no authority to issue such a writ to direct state courts or their

judicial officers in the performance of their duties.”) (internal quotation marks and citation

omitted); Williams-Bey v. Mengel, No. 95-3090, 1996 WL 48884, at *1 (6th Cir. Feb. 6, 1996)

(“Williams-Bey was not entitled to mandamus relief as federal courts have no authority to direct

state courts, or their officers, in the performance of their duties”). Accordingly, plaintiff’s

complaint for a writ of mandamus should be dismissed for failure to state a claim upon which relief

may be granted.

Finally, the undersigned notes that to the extent that plaintiff’s submission is properly

characterized as being brought under 42 U.S.C. § 1983, the complaint is subject to dismissal. As

an initial matter, it appears the complaint is time-barred. Plaintiff names Judge Branstool as a

defendant in connection with his 2015 state-court criminal conviction and sentence. However, the

civil rights complaint is governed by Ohio’s two-year statute of limitations applicable to personal

injury claims. See, e.g., Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (holding that

the “appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is

contained in Ohio Rev. Code § 2305.10, which requires that actions for bodily injury be filed

within two years after their accrual”); see also Wallace v. Kato, 549 U.S. 384, 387 (2007) (and

Supreme Court cases cited therein) (holding that the statute of limitations governing § 1983 actions

“is that which the State provides for personal-injury torts”). Although the statute of limitations is

an affirmative defense, when it appears clear on initial screening of the complaint that the action

is time-barred, the complaint may be dismissed for failure to state a claim upon which relief may

be granted. See Jones v. Bock, 549 U.S. 199, 215 (2007). Cf. Fraley v. Ohio Gallia Cnty., No.

97-3564, 1998 WL 789385, at *1-2 (6th Cir. Oct. 30, 1998) (holding that the district court

“properly dismissed” the pro se plaintiff’s § 1983 civil rights claims under 28 U.S.C. §

1915(e)(2)(B) because the complaint was filed years after Ohio’s two-year statute of limitations

had expired).

In any event, judges are afforded absolute immunity for acts they commit while functioning

within their judicial capacity. Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130

F.3d 246, 255 (6th Cir. 1997). Judges retain absolute immunity from liability even if they act

maliciously or corruptly, as long as they are performing judicial acts and have jurisdiction over the

subject matter giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57

(1978). See also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962

(6th Cir.1985). Plaintiff’s complaint includes no facts to plausibly suggest that defendant presided

over a matter over which he without subject matter jurisdiction or that he performed non-judicial

acts.

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28

U.S.C. § 1915A(b).

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) 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. See McGore v. Wrigglesworth, 114

F.3d 601 (6th Cir. 1997).

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,

and shall be accompanied by a memorandum of law in support of the objections. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).

Date: April 24, 2023 s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge