Abdusshakur

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (DAYTON)

MUSA ABDUSSHAKUR, : Case No. 3:25-cv-00405

:

Plaintiff, : District Judge Michael J. Newman

: Magistrate Judge Caroline H. Gentry

vs. :

:

DAVID M. MCNAMEE, et al.,

:

Defendants. :

REPORT AND RECOMMENDATION

Musa Abdusshakur sues three municipal officials who allegedly violated his civil

rights. (See Doc. No. 4 at PageID 30 [suing under 42 U.S.C. § 1983].) His original

Complaint, which he filed without the assistance of counsel, contains only a few factual

allegations. (Doc. No. 4.) Specifically, Plaintiff alleges that:

3. Defendant [Judge David M.] McNamee enforced an invalid sentence.

4. Defendant [Prosecutor Melvin] Planas prosecuted without a verified

complaint or probable cause.

5. Defendant [Fred] Barker initiated or supported unlawful enforcement

with no constitutional basis.1

6. These acts caused reputational harm, emotional distress, and unlawful

restraint of liberty.

7. These acts constitute malicious prosecution, abuse of process, and

deliberate indifference to Plaintiff’s constitutional rights.

(Doc. No. 4 at PageID 30.)

1 Defendant Barker may be a code enforcement officer with the City of Xenia.

Plaintiff’s claims appear to involve a land development or zoning issue and arise

out of the criminal case of City of Xenia vs. Abdusshakur, No. 24 CR B 00617, in the

Xenia Municipal Court. (See Doc. No. 4 at PageID 34-39 [attaching a docket printout of

the case].) However, the Complaint does not elaborate on what actions each Defendant

took that allegedly violated Plaintiff’s rights.

On December 1, 2025, Plaintiff asked for 7-10 days to consult with counsel and

file an amended complaint. (Motion for Leave to Amend the Complaint, Doc. No. 2.) The

undersigned Magistrate Judge granted his request and directed Plaintiff to file his

amended complaint by December 19, 2025. (Doc. No. 3 at PageID 27.) To date, he has

not filed an amended complaint. The undersigned therefore considers the original

Complaint as filed herein. (Doc. No. 4.) For the reasons discussed below, the undersigned

RECOMMENDS that the Court DISMISS it.

Because Plaintiff is proceeding in forma pauperis (Doc. No. 3), the Court must

screen his Complaint and dismiss any part of it that is frivolous or malicious; that fails to

state a claim on which relief may be granted; or that seeks monetary relief against a

defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). The Court

liberally construes the pro se Complaint, but will not construct claims for Plaintiff or

speculate about facts he has not alleged. Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Tulis v. Orange, 686 F. Supp. 3d 701, 706 (M.D. Tenn. 2023).

To state a claim for relief, a complaint must set forth “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The

Court must construe a complaint in plaintiff’s favor, accept all well-pleaded factual

allegations as true, and evaluate whether the complaint contains “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007).

“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 556). However, a complaint that consists of “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting

Twombly, 550 U.S. at 555).

Plaintiff’s Complaint here does not contain enough factual material to state a

claim. (Doc. No. 4.) While he identifies the relevant claims as “malicious prosecution,

abuse of process, and deliberate indifference,” his statements are conclusory and factually

insufficient to state a claim on which relief may be granted. A plaintiff must allege facts

that describe how each defendant violated his rights. Reid v. City of Detroit, No. 18-

13681, 2020 WL 5902597, at *6 (E.D. Mich. Oct. 5, 2020) (“The Sixth Circuit ‘has

consistently held that damage claims against government officials arising from alleged

violations of constitutional rights must allege, with particularity, facts that demonstrate

what each defendant did that violated the asserted constitutional right’”) (quoting

Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)) (emphasis in original). Because

the Complaint here contains only labels and conclusions, it should be dismissed.

There are additional reasons to dismiss the Complaint. Plaintiff appears to assert

that Defendants’ participation in his prosecution and conviction in Xenia Municipal

Court violated his rights. (Doc. No. 4.) But Plaintiff cannot challenge a criminal

conviction in an action brought under 42 U.S.C. § 1983. See Cox v. Nord, No. 1:23-cv-

324, 2023 WL 6276198, at *3 (S.D. Ohio Sept. 26, 2023), report and recommendation

adopted, 2023 WL 7699848 (S.D. Ohio Nov. 15, 2023) (citing Prieser v. Rodriguez, 411

U.S. 475, 500 (1973)) (“to the extent that [the plaintiff] challenges his state court criminal

convictions, seeks a new trial, or challenges the length of his sentence, his sole remedy is

through a petition for a writ of habeas corpus under 28 U.S.C. § 2254.”).

In addition, to the extent Plaintiff seeks monetary damages based on an alleged

wrongful conviction, his Section 1983 claims are barred by Heck v. Humphrey, 512 U.S.

477 (1994). “Before [he] can bring claims for an allegedly unconstitutional conviction . . .

a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court’s issuance of a writ of

habeas corpus under 28 U.S.C. § 2254.” Steele v. DeWine, No. 1:13-cv-2408, 2014 WL

897001, at *3 (N.D. Ohio Mar. 6, 2014) (citing Heck, 512 U.S. at 486). There is no

suggestion here that Plaintiff’s conviction(s) have already been invalidated.

Moreover, claims against Judge McNamee and Prosecutor Planas in their

individual capacities are barred as a matter of law. Claims against Judge McNamee for

how he handled the criminal case against Plaintiff are barred by the doctrine of judicial

immunity. See Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing Mireles v. Waco,

502 U.S. 9 (1991)) (“It is well established that judges are entitled to absolute judicial

immunity from suits for money damages for all actions taken in the judge’s judicial

capacity, unless these actions are taken in the complete absence of any jurisdiction.”);

Brown v. Hamilton Cnty., Ohio/Hamilton Cnty. Prosecutor’s Off., No. 1:19-cv-969, 2021

WL 4451563, at *2-3 (S.D. Ohio Sept. 29, 2021) (where “each of the alleged actions

about which Plaintiff complains occurred in the context of the criminal case brought

against him,” the defendant judge was immune and the claims against him dismissed). A

judge does not lose this immunity even if “the action he took was in error, was done

maliciously, or was in excess of his authority.” Stump v. Sparkman, 435 U.S. 349, 356-57

(1978). Because Plaintiff does not allege that Judge McNamee completely lacked all

subject matter jurisdiction over the criminal case, any claims based on how he handled

that case are barred.

Claims against Prosecutor Planas in his individual capacity are also barred. Like

judges, prosecutors are “absolutely immune from liability” for actions they take that are

“intimately associated with the judicial phase of the criminal process.” Van de Kamp v.

Goldstein, 555 U.S. 335, 341 (2009) (citation and quotation marks omitted); see

also Cady v. Arenac Cnty., 574 F.3d 334, 339 (6th Cir. 2009) (citing Imbler v. Pachtman,

424 U.S. 409, 410 (1976)) (“The Supreme Court in Imbler held that ‘a state prosecuting

attorney who acted within the scope of his duties in initiating and pursuing a criminal

prosecution’ was not amenable to suit under § 1983.”). There are some narrow exceptions

to this immunity, see Van de Kamp, 555 U.S. at 343, but nothing in the Complaint

implicates them. Thus, to the extent that Plaintiff brings a claim against Prosecutor Planas

for how he handled the criminal case, that claim is barred.

For all these reasons, the undersigned Magistrate Judge RECOMMENDS to

District Judge Newman that the Court DISMISS this case. The undersigned further

RECOMMENDS that the Court CERTIFY that 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 28 U.S.C. § 1915(a)(3); McGore v.

Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Plaintiff may file objections to these recommendations as outlined in the section

below. He is reminded that he must notify the Court if his mailing address changes while

the case is pending.

IT IS SO RECOMMENDED.

s/Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

Notice Regarding Objections to this Report and Recommendations

If any party objects to this Report and Recommendations (“R&R”), the party may

serve and file specific, written objections to it within fourteen (14) days after being

served with a copy thereof. Fed. R. Civ. P. 72(b). 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. The Court may extend the fourteen-day objections period if a

timely motion for an extension of time is filed.

A District Judge of this Court will make a de novo determination of those portions

of the R&R to which objection is made. Upon proper objection, 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 R&R will result in

a waiver of the right to have the District Judge review the R&R de novo, and will also

operate as a waiver of the right to appeal the decision of the District Court adopting the

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

(6th Cir. 1981).