Foster

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

TERRY L. FOSTER, ) CASENO. 1:26 CV 615

)

Plaintiff, )

)

v. ) JUDGE DONALD C. NUGENT

)

CITY OF CLEVELAND, )

)

) MEMORANDUM OPINION

Defendant. ) AND ORDER

Pro se plaintiff Terry L. Foster filed this civil rights action under 42 U.S.C. § 1983

against the City of Cleveland. (Doc. No. 1). Plaintiff also filed an application to proceed in forma

pauperis. (Doc. No. 2). By separate Order, the Court grants the application.

I. Background

Plaintiff's complaint consists of rambling, incoherent allegations concerning his

conviction and sentence in the Cuyahoga County Court of Common Pleas, Case No.

CR-22-670220-A.! On February 1, 2023, Foster pleaded guilty to one count of murder with a

Plaintiff filed a substantially similar complaint on March 12, 2026, also challenging this

conviction in the Cuyahoga County Court of Common Pleas. See Foster v. State of Ohio,

No. 1:26-cv-00595. The Court dismissed that complaint on June 30, 2026, pursuant to 28

U.S.C. §1915(e)(2), for failure to state a claim. Id.

three-year firearm specification, one count of murder to the lesser included offense of involuntary

manslaughter, and one count of trafficking. See State of Ohio v. Foster, No. 112564, 2024 WL

1327968, 2024 Ohio App. LEXIS 1087, at * 3 (Ohio Ct. App. Mar.28, 2024). The trial court

sentenced Foster to 21 years to life. Jd. Foster appealed. On March 28, 2024, the Eighth District

Court of Appeals affirmed the conviction but remanded the case to the trial court to (1) advise

Foster of Sierah’s Law’s requirements; (2) impose the indefinite sentence for involuntary

manslaughter pursuant to the Reagan Tokes Law; and, (3) make consecutive sentence findings as

appropriate on the record and incorporate those findings into the sentencing journal entry. Id. at

36. Upon remand, the trial court imposed consecutive findings following resentencing, and

Foster appealed the consecutive sentences. See State of Ohio v. Foster, No. 114148, 2025 Ohio

App. LEXIS 794 (Ohio Ct. App. Mar. 13, 2025). The Eighth District Court of Appeals affirmed

Foster’s consecutive sentences. Jd. at 13. Foster appealed both decisions to the Ohio Supreme

Court, and the Ohio Supreme Court dismissed the appeals. See State of Ohio v. Foster, Nos.

2025-1667 and 2025-1669, 2026-Ohio-475 (Ohio Feb. 17, 2026) (dismissing delayed appeals).

On April 7, 2026, Foster filed a Petition for Writ of Habeas Corpus pursuant to 28 US.C. §

2254, which is pending in this district court. See Foster v. Stuff, No. 1:26-cv-00826 (N.D. Ohio

filed Apr. 7, 2026).

Foster alleges that numerous violations occurred during his state court proceedings,

including conspiracy, involuntary servitude, “flagrant negligent,” unlawful detainment, legal

malpractice, racial bias/discrimination, fraud, wrongful conviction, malicious prosecution, and

complicity. (See Doc. No. 1 at 1). Foster also appears to object to the state court of appeals’

remand order and what transpired upon remand. In a conclusory statement, Plaintiff alleges that

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“this case” violates the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth

Amendments. (/d. at 2).

Foster seeks monetary, declaratory, and injunctive relief, as well as the immediate release

from custody.

II. Standard of Review

Pro se pleadings are liberally construed. Boag v. MacDougall, 454 U.S. 364, 365, 102 S.

Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.

594, 30 L. Ed. 2d 652 (1972). The district court, however, is required to dismiss an in forma

pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief may be

granted or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S.

Ct. 1827, 104 L. Ed. 2d 338 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk

v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law

or fact when it is premised on an indisputably meritless legal theory or when the factual

contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim

upon which relief may be granted when it lacks “plausibility in th[e] complaint.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 564, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

A pleading must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 173 L. Ed.

2d 868 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The factual allegations in the pleading must be

sufficient to raise the right to relief above the speculative level on the assumption that all the

allegations in the complaint are true. Twombly, 550 U.S. at 555. Plaintiff is not required to

include detailed factual allegations but must provide more than “an unadorned,

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the-defendant-unlawfully-harmed-me accusation.” Jgbal, 556 U.S. at 678. A pleading that offers

legal conclusions or a simple recitation of the elements of a cause of action will not meet this

pleading standard. Id.

In reviewing a complaint, the court must construe the pleading in the light most favorable

to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

III. Discussion

Upon the Court’s review, Plaintiff's complaint must be dismissed in accordance with 28

U.S.C. §1915(e)(2). Even liberally construed, it fails to state a plausible civil rights claim.

Plaintiffs complaint purports to assert claims calling into question the validity of his

criminal conviction and he seeks immediate release. The Supreme Court held that a civil rights

action under 42 U.S.C. § 1983 is not an appropriate vehicle for a prisoner to challenge a state

conviction or sentence. Rather, where, as here, a prisoner is challenging “the very fact or duration

of his physical imprisonment, and the relief he seeks is a determination that he is entitled to

immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ

of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 36 L. Ed. 2d 439

(1973). Plaintiff therefore fails to state a plausible federal civil rights claim.

Additionally, to the extent Plaintiff is seeking damages for an allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid under 42 U.S.C. § 1983, he must first show that the

conviction has already been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal, or called into question by a court’s issuance of a writ of habeas corpus.

See Heck v. Humphrey, 512 U.S. 477, 486, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). In the

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absence of such a showing, any complaint for damages must be dismissed. See Wright v.

Kinneary, 46 Fed. App’x. 250, 252 (6th Cir. 2002) (citing Heck, 512 U.S. at 486-87). The

holding in Heck has been extended to actions seeking injunctive and declaratory relief. See

Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997)

(declaratory relief); Wilson v. Kinkela, 145 F.3d 1335 [published in full-text format at 1998 U.S.

App. LEXIS 9341], 1998 WL 246401, at *1 (6th Cir. 1998) (extending Heck to actions seeking

declaratory and injunctive relief).

Here, there is no suggestion in the complaint that Plaintiff's conviction has been set aside

or invalidated in any of the ways articulated in Heck. As previously noted, Plaintiff's conviction

was affirmed on direct appeal and the Ohio Supreme Court dismissed his appeals. Additionally,

Plaintiff’ s habeas petition is still pending in this district court. Because Plaintiff is challenging

the fact of his conviction in this complaint, and his conviction has been affirmed, he fails to

allege a cognizable civil rights claim.

Moreover, even if Plaintiff had stated a cognizable claim, he fails to state a claim against

the City of Cleveland. Section 1983 does not permit a plaintiff to sue a local government entity

or municipality on the theory of respondeat superior for an injury allegedly inflicted solely by its

employees or agents. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 692-94, 98 S.

Ct. 2018, 56 L. Ed. 2d 611 (1978). Rather, municipal liability attaches when an injury is caused

by implementing an official policy or custom adopted by the government entity. Jd. at 694.

“Beyond having to identify ‘conduct properly attributable to the municipality,’ a plaintiff ‘must

also demonstrate that, through its deliberate conduct, the municipality was the “moving force”

behind the injury alleged. In other words, ‘a plaintiff must show that the municipal action was

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taken with the requisite degree of culpability and must demonstrate a direct causal link between

the municipal action and the deprivation of federal rights.’”” Brown v. Chapman, 814 F.3d 447,

462 (6th Cir. 2016) (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382,

137 L. Ed. 2d 626 (1997)). Here, the complaint fails to suggest that any custom or policy of the

City of Cleveland caused Plaintiff's alleged injuries. Plaintiff therefore fails to state a claim for

relief against the City of Cleveland.

IV. Conclusion

For the foregoing reasons, the Court dismisses this action pursuant to 28 U.S.C.

§1915(e)(2). Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from

this decision may not be taken in good faith.

IT IS SO ORDERED.

DONALD C. SUGENy

United States District Judge

DATED: foo 30, 20ub

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