# Davenport v. The State of Ohio

> District Court, S.D. Ohio · April 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10382411

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 24, 2023
- **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/10382411

## How later opinions describe it (automated extraction)

- 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

CARLOS DAVENPORT, : Case No. 2:22-cv-4419
:
Plaintiff, :
: District Judge Algenon L. Marbley
vs. :
Magistrate Judge Elizabeth P. Deavers
:

THE STATE OF OHIO, et al., :
REPORT AND
:
RECOMMENDATION
Defendants. :
:

Plaintiff, a prisoner at the Ross Correctional Institution, has filed a pro se civil rights
complaint in this Court against defendants the State of Ohio and Franklin County, Ohio. (Doc.
1). By separate Order plaintiff has been granted leave to proceed in forma pauperis. 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).
Screening of Plaintiff’s Complaint
A. Legal Standard
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

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). 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

1 Formerly 28 U.S.C. § 1915(d).
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 Cnty. 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)).
B. Allegations in the Complaint
Plaintiff brings this action against defendants the State of Ohio and Franklin County, Ohio.
(Doc. 1, Complaint at PageID 1). Plaintiff alleges that defendants “have engaged and continue to
engage in a Conspiracy which involves deliberate plotting to subvert the laws of the United States,
and that deprive the plaintiff of rights, privileges, secured or protected by the Constitution and the
Laws of the United States.” (Id. at PageID 3). Without factual elaboration, plaintiff alleges that
state and county officials have submitted unidentified false records to a United States District
Court, permitted “an unauthorized, unlicensed official of Franklin County to impersonate a
Franklin County Court of Common Pleas Judge,” and allowed rulings “without clear jurisdiction.”
(Id.). Plaintiff claims that the Franklin County Court of Common Pleas is engaging in a
“Corrupt/Criminal pattern or practice which exceeds the Courts/States jurisdiction.” (Id.).
Although plaintiff does not identify any specific state or county official or the proceeding

in which false records were allegedly submitted, the undersigned notes that plaintiff made similar
allegations against the state-court judge and other individuals involved in his state-court criminal
trial in a prior habeas action filed in this Court. See Davenport v. Warden, Case No. 2:14-cv-245
(S.D. Ohio Mar. 11, 2014) (Doc. 11 at PageID 912-15, 917-18; Doc. 14 at PageID 960-63).
As relief, plaintiff seeks declaratory and injunctive relief. (See Doc. 1 at PageID 5).
The complaint 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, the State of Ohio is immune from suit in this federal court. Absent an
express waiver, the Eleventh Amendment to the United States Constitution bars suit against a State

or one of its agencies or departments in federal court regardless of the nature of the relief sought.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v.
Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v.
Jordan, 415 U.S. 651, 663 (1974). The exceptions to the Eleventh Amendment bar of suits in
federal court against a state do not apply in this case. The State of Ohio has neither constitutionally
nor statutorily waived its Eleventh Amendment rights. See Mixon v. State of Ohio, 193 F.3d 389,
397 (6th Cir. 1999); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir.
1982); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 681 (6th Cir. 1976); see also Will v. Michigan Dept.
of State Police, 491 U.S. 58 (1989). Nor has plaintiff sued a state official seeking prospective
relief for future constitutional violations. Ex Parte Young, 209 U.S. 123 (1908). In addition,
Congress did not “explicitly and by clear language” express its intent to “abrogate the Eleventh
Amendment immunity of the States” in enacting Section 1983. See Quern v. Jordan, 440 U.S.
332, 341-43, 345 (1979). Therefore, plaintiff’s claims for relief against the State of Ohio should
be dismissed.

The complaint should also be dismissed as to Franklin County, Ohio. “It is firmly
established that a municipality, or as in this case a county, cannot be held liable under § 1983 for
an injury inflicted solely by its employees or agents.” Gregory v. Shelby County, Tenn., 220 F.3d
433, 441 (6th Cir. 2000) (citing Monell, 436 U.S. at 694). To state a claim for relief against
Franklin County for his alleged injuries, plaintiff must allege that “those injuries were the result
of an unconstitutional policy or custom of the County.” Matthews v. Jones, 35 F.3d 1046, 1049
(6th Cir. 1994). See Monell, 436 U.S. at 694; Doe v. Claiborne County, 103 F.3d 495, 507 (6th
Cir. 1996). See also Polk County v. Dodson, 454 U.S. 312 (1981) (municipal policy must be the
“moving force” behind constitutional deprivation). “The ‘official policy’ requirement [of Monell]

was intended to distinguish acts of the municipality from acts of employees of the municipality,
and thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in
original). Municipalities and other governmental entities cannot be held responsible for a
constitutional deprivation unless there is a direct causal link between a policy or custom and the
alleged deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery County, Ohio, 989 F.2d 885,
889 (6th Cir. 1993).
Aside from plaintiff’s conclusory allegation that the complaint is intended “to remedy a
Pattern or Practice” of unconstitutional conduct by officials of the Franklin County Court of
Common Pleas (see Doc. 1 at PageID 1), plaintiff fails to allege any facts to plausibly suggest that
any county official acted pursuant to a particular policy or custom of Franklin County in allegedly
violating his civil rights. See Graham ex. rel. Estate of Graham v. County of Washtenaw, 358 F.3d
377, 383 (6th Cir. 2004) (“A plaintiff asserting a section 1983 claim on the basis of a municipal
custom or policy must ‘identify the policy, connect the policy to the [County] itself and show that

the particular injury was incurred because of the execution of that policy.’”) (quoting Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). Therefore, plaintiff’s complaint fails to
state a claim upon which relief may be granted against defendant Franklin County.2
Plaintiff claims defendants conspired against him. However, it is well-settled in the Sixth
Circuit that conspiracy claims 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 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 42 U.S.C. § 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 the defendants shared a conspiratorial
objective or otherwise planned together to deprive him of a constitutionally-protected right.

2 As noted above, plaintiff does not name any specific Franklin County official in the complaint.
To the extent that plaintiff seeks to hold a Franklin County judge liable based on his allegations,
the compliant is subject to dismissal because 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). Aside from plaintiff’s conclusory allegations that officials
acted in excess of jurisdiction, the complaint alleges no facts plausibly suggesting that any official
presided over a matter over which they were without subject matter jurisdiction or performed non-
judicial acts.
Plaintiff does not describe—aside from in vague, conclusory terms—any specific action taken by
defendants. For example, without factual elaboration, plaintiff alleges as follows:
The State of Ohio by way of its officers; (Franklin County Court of Common Pleas,
agents for the State of Ohio) conspired and are currently conspiring to deprive rights
of Plaintiff(s) and continue to neglect to prevent deprivation of rights guaranteed
when it knowingly and with intent allowed the following “Criminal &
Unconstitutional” act(s): Impersonation of Judge(s), practicing law by unlicensed
agents of the County/State, known systematic malfeasances with corrupt intent by
agents of Franklin County, the State of Ohio and others as defined by Confederacy
Clause, to subvert the laws and guarantees of the United States Constitution.

(Doc. 1 at PageID 2). Plaintiff’s vague, unsubstantiated and conclusory claims based on a
conspiracy theory lacks the requisite specificity to state a cognizable claim under 42 U.S.C. § 1983.
Finally, to the extent that plaintiff claims defendants violated various federal statutes, the
complaint must also be dismissed for failure to state a claim. The complaint includes allegations
regarding 18 U.S.C. §§ 1001, 1621, 241, and 242. However, these criminal statutes do not provide
plaintiff with a private cause of action. See United States v. Oguaju, 76 F. App’x 579, 581 (6th
Cir. July 9, 2003) (there is no private right of action under either 18 U.S.C. §§ 241, 242) (citing
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994)); Fuller v. Unknown
Officials, 387 F. App’x 3, 4 (D.C. Cir. 2010) (“To the extent appellant attempted to raise causes
of action based on criminal statutes, there is no private cause of action for perjury, 18 U.S.C. §
1621 . . . or false statements, 18 U.S.C. § 1001 ”). Plaintiff also appears to rely on 42 U.S.C. §
14141, the Violent Crime Control and Law Enforcement Act of 1994, which provides for a civil
action by the United States Attorney General. The statute does not provide plaintiff with a private
cause of action. See, e.g., Weathers v. Holland Police Dep’t, No. 1:13-cv-1349, 2015 WL 357058,
at *3 (W.D. Mich. Jan. 27, 2015) (dismissing claim under § 14141 upon finding that the section
does not create a private cause of action); Logue v. U.S. Marshals, Case No. 1:13-cv-348, 2013
WL 3983215, at *3 (Dlott, J.; Bowman, M.J.) (S.D. Ohio Aug. 1, 2013) (Report and
Recommendation) (finding that the plaintiff could not bring a claim under § 14141 because only
the United States Attorney General can bring a civil action under the section), adopted (S.D. Ohio
Sept. 23, 2013). Accordingly, to the extent that plaintiff claims defendants violated the above
federal statutes the complaint should be dismissed for failure to state a claim upon which relief
may be granted.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382411. Public record. Not legal advice.