Brown v. Wenker

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOHN BROWN,

Plaintiff,

v. Civil Action 1:23-cv-466

Judge Jeffery P. Hopkins

Magistrate Judge Chelsey M. Vascura

MATTHEW F. WENKER, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, John Brown, an Ohio inmate who is proceeding without the assistance of

counsel, brings this action against the Federal Bureau of Investigation (“FBI”), FBI Agent

Matthew F. Wenker, and the United States of America, seeking dismissal of criminal charges, to

which Plaintiff eventually pleaded guilty, that arose from an allegedly unconstitutional search of

his grandmother’s residence. (Compl., ECF No. 1-1.) This matter is before the Court for the

initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify

cognizable claims and to recommend dismissal of Plaintiff’s 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(b)(1)–(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having

performed the initial screen, for the reasons that follow, the undersigned RECOMMENDS that

the Court DISMISS this action pursuant to §§ 1915(e)(2) and 1915A(b)(1) for failure to state a

claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. (ECF

No. 1.) Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28 U.S.C.

§ 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he has $74.91 in his prison

account, which is insufficient to pay the filing fee.

Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust accounts

(Inmate ID Number 049192) at Butler County Jail is DIRECTED to submit to the Clerk of the

United States District Court for the Southern District of Ohio as an initial partial payment, 20%

of the greater of either the average monthly deposits to the inmate trust account or the average

monthly balance in the inmate trust account, for the six months immediately preceding the filing

of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28

U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of

fees or costs and that judicial officers who render services in this action shall do so as if the costs

had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and

the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to

the Court’s financial office in Columbus.

I. BACKGROUND

Plaintiff alleges that on January 28, 2022, Defendant Matthew Wenker, an FBI agent,

executed a search warrant at Plaintiff’s grandmother’s residence, and that law enforcement

officers used “coercive force” to obtain his grandmother’s verbal and written consent to the

search. (Compl., ECF No. 1-1, PAGEID #19.) Officers recovered a Schedule II controlled

substance and firearms and ammunition from Plaintiff’s grandmother’s residence, which led to

law enforcement officers obtaining a warrant to search Plaintiff’s residence. (Id.) After Plaintiff

was indicted on charges of possession of a controlled substance with intent to distribute and

initially pleaded not guilty, a change of plea hearing was held on January 12, 2023, at which time

Plaintiff pleaded guilty and the Court accepted his guilty plea. (Id.) Subsequently, Plaintiff’s

criminal attorney informed him that an investigation had been commenced into alleged

corruption by Mr. Wenker, and that Plaintiff’s criminal case was being “placed on hold.” (Id.,

PAGEID #20.)

Plaintiff’s Complaint purports to assert claims under 42 U.S.C. § 1983 for (1) malicious

prosecution, (2) illegal search and seizure (false arrest), (3) fabrication of evidence,

(4) deprivation of liberty, (5) intentional and negligent infliction of emotional distress, and

(6) “Federal Rule Civil Procedure 60(b) return unlawful property seized.” (Id., PAGEID #17.)

Plaintiff further asks the Court to “dismiss all charges without prejudice” and to award him $1

million for pain, suffering, and emotional distress. (Id., PAGEID #18.)

II. STANDARD OF REVIEW

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), which

provides in pertinent part as follows:

(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; [or]

(ii) fails to state a claim on which relief may be granted. . . .

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. See

also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action

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

governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion

of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).

Further, 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 of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

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, 374 F. App’x 612,

614 (6th Cir. 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. ANALYSIS

As an initial matter, Plaintiff’s Complaint invokes 42 U.S.C. § 1983, which governs

violations of constitutional rights by “a person acting under color of state law.” See Hunt v.

Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008). However, Plaintiff’s

claims are asserted only against the FBI, an individual FBI agent, and the United States of

America. The undersigned therefore evaluates Plaintiff’s claims under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). A Bivens action “allows civil

rights claims against federal officials that are analogous to those brought against state officials

under 42 U.S.C. § 1983.” Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010).

Plaintiff does not specify whether he intends to sue Mr. Wenker in his individual or

official capacity. To the extent Plaintiff advances official-capacity claims, and to the extent

Plaintiff advances claims against the FBI or the United States government, those claims are

barred by sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 485–86 (1994) (holding that

Bivens damages actions may not be brought against federal agencies); Miller v. F.B.I., 149 F.3d

1183 (6th Cir. 1998) (Table) (holding that sovereign immunity precludes a Bivens action against

a federal agency or official in their official capacity for damages); Witter v. Johanns, No. 2:07-

CV-510, 2008 WL 4404298, at *10 (S.D. Ohio Sept. 23, 2008) (“No Bivens claim may be

asserted against a federal agency or a federal official in his official capacity.”).

Turning to any remaining individual-capacity claims against Mr. Wenker, Plaintiff

alleges that the criminal process instituted against him is based on corruption and “fruits of the

poisonous tree” in connection with the allegedly unconstitutional search of his grandmother’s

residence. The Court therefore construes Plaintiff’s Bivens claims to allege that Mr. Wenker

violated Plaintiff’s Fourth Amendment right to be free of unconstitutional searches and seizures.

Plaintiff’s Complaint fails to state a claim on which relief can be granted. “To succeed on

a Bivens action, a plaintiff must first establish a constitutional violation.” Hill v. Lappin, 630

F.3d at 471. Plaintiff’s claims appear to rest on the proposition that Defendant Wenker engaged

in some unspecified “corruption” that warrants dismissal of the charges against Plaintiff. But

Plaintiff does not support his allegations of corruption with any facts. Plaintiff’s conclusory

allegation that the evidence against him was somehow obtained illegally is not sufficient to raise

a plausible inference under Iqbal that Plaintiff’s constitutional rights were violated. Further, any

“coercive force” used to obtain Plaintiff’s grandmother’s consent to the search of her residence is

of no moment, because Plaintiff also alleges that Mr. Wenker obtained a warrant to search his

grandmother’s residence. Accordingly, Plaintiff’s grandmother’s consent, or lack thereof, does

not affect the validity of the search.

Moreover, to the extent Plaintiff seeks to collaterally attack his conviction, his claims are

barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). “Heck blocks a state

prisoner’s § 1983 claim if its success ‘would necessarily imply the invalidity of his conviction or

sentence.’” Sampson v. Garrett, 917 F.3d 880, 881 (6th Cir. 2019) (quoting Heck at 487).1 The

undersigned recognizes that Fourth Amendment claims do not always rest on a theory that would

necessarily imply the invalidity of a prisoner’s sentence (because even if evidence were obtained

through an unlawful search or seizure, the conviction might yet be preserved by, e.g., the

inevitable discovery or good faith exceptions). See Harper v. Jackson, 293 F. App’x 389, 392

(6th Cir. 2008). However, Plaintiff here complains not only of an unreasonable search, but also

of his “deprivation of liberty” and seeks “dismiss[al] of all charges.” (Compl., ECF No. 1-1,

PAGEID #17–18.) It is difficult to read Plaintiff’s Complaint as anything other than a collateral

attack on his conviction. “The idea [of the Heck doctrine] is to channel what amount to unlawful-

confinement claims to the place they belong: habeas corpus.” Sampson at 881 (citing Wilkinson

v. Dotson, 544 U.S. 74, 81 (2005)). Accordingly, to the extent Plaintiff’s claims rest on

1 “[T]he Heck holding applies equally to an action brought under Bivens.” Robinson v. Jones,

142 F.3d 905, 906–07 (6th Cir. 1998).

allegations of unlawful confinement resulting from an unlawful conviction, he must pursue relief

through habeas channels.

In sum, Plaintiff’s official-capacity claims against Mr. Wenker and his claims against the

FBI and the United States are barred by sovereign immunity, his factual allegations are

insufficient to raise a plausible inference that his constitutional rights were violated under Bivens,

and Plaintiff’s collateral attack on his conviction is barred by Heck. It is therefore

RECOMMENDED that Plaintiff’s Complaint be DISMISSED.

IV. DISPOSITION

For the reasons set forth above, Plaintiff’s motion for leave to proceed in forma pauperis

under 28 U.S.C. § 1915(a)(1) and (2) (ECF No. 1) is GRANTED. In addition, it is

RECOMMENDED that the Court DISMISS this action pursuant to §§ 1915(e)(2) and

1915A(b)(1) for failure to state a claim on which relief may be granted.

The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison

cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s

financial office in Columbus.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A District Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a District Judge of this Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made herein, may receive

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28

U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE