Opinion

Aniyunwiya

Court
District Court, S.D. Ohio
Filed
Aug 18, 2026
Cited by
0 cases
Authority
More cited than 44.2%

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ACHAK BEN ANIYUNWIYA, : Case No. 2:25-cv-1406

:

Plaintiff, :

: Judge Michael H. Watson

vs. :

Magistrate Judge Kimberly A. Jolson

:

JAMES STILWELL, et al., :

:

Defendants. :

:

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Belmont Correctional Institution (BECI), has filed a Motion to

Amend Complaint to Bring into Compliance (Doc. 10) and a Notice to Court of Loss of Eyesight.

(Doc. 11). In the proposed Amended Complaint, Plaintiff alleges violations of the First, Fourth,

Sixth, and Fourteenth Amendments and state-law conversion claims against Defendants Sgt. Mark

Brookover, Officer James Stillwell, Captain Rice, Unknown Zanesville City Jail Captain, and

Unknown Zanesville City Jail Shift Officers and defense attorney W. Joseph Edwards. (Doc. 10).

By separate Order, Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28

U.S.C. § 1915. (Doc. 3).

Upon the Undersigned’s review, Plaintiff’s Motion to Amend Complaint to Bring into

Compliance (Doc. 10) is GRANTED. Accordingly, Plaintiff’s asserted claims within his Motion

will now serve as his Amended Complaint and this case’s operative complaint. Consequently, the

Undersigned WITHDRAWS the prior R&R that recommended dismissal for lack of jurisdiction

and want of prosecution. (Doc. 5).

This case is currently before the Court for a sua sponte review of the Amended Complaint

to determine whether the Amended 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).

I. SCREENING OF THE COMPLAINT

The Undersigned begins by summarizing the applicable legal standard before turning to

Plaintiff’s specific allegations.

A. Legal Standard

In enacting the original in forma pauperis statute, 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.” Denton v. Hernandez,

504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such

abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint

if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C.

§§ 1915(e)(2)(B)(i) and 1915A(b)(1). 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, 490 U.S. at 328–

29; 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, 504 U.S. at 32; 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 complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 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).

B. Plaintiff’s Allegations

Plaintiff describes four types of claims arising from a traffic stop that resulted in arrest,

detention, and trial. (See generally, Doc. 10). Liberally construing Plaintiff’s allegations, see

Erickson, 551 U.S. at 94, the Amended Complaint can be divided into the stop and search claims

against Sgt. Mark Brookover, Officer James Stillwell, and Captain Rice; the detention claims

against Unknown Zanesville City Jail Captain and Unknown Zanesville City Jail Shift Officers;

the ineffective assistance of counsel claims against W. Joseph Edwards; and the property claims

against Sgt. Mark Brookover, Officer James Stillwell, and Captain Rice.

1. Stop and Search Claims

Plaintiff alleges that on May 15, 2025, his vehicle was stopped by Defendant Officer James

Stillwell. (Doc. 4 at 7).1 After being pulled over, Plaintiff alleges that Officer Stillwell

“immediately opened his door, drew his duty weapon, and without explanation demanded [he]

exit his truck.” (Id.). In response, Plaintiff locked his door and called 911. (Id.). Defendant Sgt.

Mark Brookover appeared at the passenger side door a “few moments later” and “with his weapon

drawn and pointing directly at [his] face demanded [Plaintiff] get out of [his] truck and tried

opening the door.” (Id.). Plaintiff telephoned Sheriff Lutz (not named in this suit) as he trusted

Sheriff Lutz could “deescalate the situation” and it was his “best chance of surviving it.” (Id.).

After Sherriff Lutz arrived, Plaintiff exited the vehicle and was restrained by Sgt. Brookover and

Sherrif Lutz. (Id.). Plaintiff alleges that Sgt. Brookover then “climbed into the driver seat of [his]

truck with his weapon drawn and searched the backseat” and “took a magazine from inside a

pocket in the door.” (Id.). Plaintiff asserts that Defendant Captain Rice told Sgt. Brookover “not

1 While Plaintiff’s Amended Complaint (Doc. 10) remains the operative Complaint, Plaintiff’s initial filing (Doc. 4)

contains facts providing context for the legal claims he advances within the Amended Complaint. The Court will

reference Plaintiff’s initial filing as needed.

to remove anything else until they took photos.” (Id.). Finally, Plaintiff alleges that another officer

arrived on scene with “a document said to be a warrant.” (Id.).

Stemming from the events of this stop and search, Plaintiff claims he was “overcharged”

with a “felony fleeing case that was subsequently dismissed by the judge.” (Doc. 10 at 2). This

“overcharge” caused Plaintiff to “suffer through months of uncertainty and undue emotional

distress and caused the Plaintiff to have issues with his own family and associates, thus straining

those relations.” (Id.). Plaintiff describes that “[p]eople did not want to ride in a vehicle with

Plaintiff anymore, including his loved ones, for fear that Plaintiff would ‘run away from the cops’

if pursued.” (Id.). He further asserts that Officer Stillwell and Sgt. Brookover “unnecessarily and

in violation of Plaintiff’s right to be secure in his person, pointed guns at Plaintiff’s head at direct

range where there was no immediate threat from the Plaintiff, causing emotional distress and fear

for his safety.” (Id.). Finally, Plaintiff states that a “search warrant was never presented to search

[his] vehicle” and that he “told the Police that they could not search his vehicle because he didn’t

give consent and they did so anyhow.” (Id.).

2. Detention Claims

Following his arrest after the stop, Plaintiff spent a week in detention at the Zanesville City

Jail. (Doc. 10 at 2). Upon arrival, Plaintiff expressed to Defendants Unknown Zanesville City

Jail Captain and Unknown Zanesville City Jail Shift Officers that he had dietary needs “for

religious and health purposes.” (Id.). Plaintiff alleges that the Unknown Defendants “did not feed

him according to his dietary needs,” while they fed other inmates according to theirs. (Id.).

Plaintiff alleges that he was fed only “half a banana and an apple over the course of seven days”

while Unknown Defendants tried “to force him to eat foods that his diet and religious needs did

not allow for.” (Id.).

During his detention, Plaintiff describes experiencing “sickness, weakness, and

degradation, as well as mental deterioration and blood sugar issues” from the lack of food. (Id.).

After his release on bail, Plaintiff asserts that “it took him about three days of eating very small

portions of food to get the ability eat back as he had lost the will or sensation to eat food due to

the lack of food in the jail.” (Id.). Finally, Plaintiff states that he lost twenty to twenty-five pounds

while detained from the lack of food. (Id.).

3. Ineffective Assistance of Counsel Claims

From the events described above, Plaintiff was indicted and subsequently convicted of

Failure to Comply and Improperly Handling Firearms in a Motor Vehicle in the Muskingum

County Court of Common Pleas. State of Ohio vs. Achak B. Aniyuniwiya, Muskingum C.P. Case

No. CR2025-0372, viewed at https://clerkofcourts.muskingumcounty.org/eservices/; see Lynch v.

Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th

Cir. 1999)) (courts may take judicial notice of court records available online to the public).

During his case, Plaintiff alleges that his defense attorney Defendant W. Joseph Edwards

“never spoke to him about [his] case in any sort of detail.” (Doc. 10 at 3). He asserts that

Defendant Edwards “only gave him a discovery and set him up for a plea hearing which the

Plaintiff didn’t take because it wasn’t explained to him what he would be taking a plea for.” (Id.).

He further contends that there was no further “conversation about strategy or anything of an

adversarial nature regarding [Plaintiff’s] criminal matters” and that Plaintiff “proceeded to trial

without counsel of the issues.” (Id.). Additionally, Plaintiff alleges that he asked Defendant

Edwards to file an appeal in his case, but that Defendant Edwards “never did.” (Id.).

4. Property Claims

Finally, Plaintiff asserts state-law conversion claims against Defendants Sgt. Mark

Brookover, Officer James Stillwell, and Captain Rice regarding his vehicle and personal property

inside the vehicle. (Doc. 10 at 2–3).2 Plaintiff alleges that his truck involved in the stop was

“taken from him without explanation and [he] has a property interest in his vehicle.” (Id. at 2).

Additionally, Plaintiff states that, “even if the law did allow the Plaintiff’s vehicle to be taken, it

[does not] mean that all of his belongings in the vehicle can be taken.” (Id. at 2–3). He says that

the officers “never gave Plaintiff an opportunity to retrieve any of his property in the vehicle that

had nothing to do with the case.” (Id. at 3).

For relief, Plaintiff seeks the return of the property seized “not in accordance with the law”

or “the value of such”; retraining of Defendants Sgt. Mark Brookover and Officer James Stillwell

“that pointed weapons to [his] head without a security threat being presented to them”; monetary

and punitive damages against Defendants Unknown Zanesville City Jail Captain and Unknown

Zanesville City Jail Shift Officers for failing to feed Plaintiff while in custody; “any reasonable past,

present, and future damages” against Defendants Unknown Zanesville City Jail Captain and

Unknown Zanesville City Jail Shift Officers for medical bills for situations arising medically from

the failure and refusal to feed Plaintiff”; and for any relief that the Court deems necessary. (Id. at

3).

C. Analysis

The Undersigned analyzes each of Plaintiff’s four categories of claims separately. While

the Undersigned concludes some may proceed for further development, some should be dismissed.

2 Plaintiff identifies Defendants Sgt. Mark Brookover, Officer James Stillwell, and Captain Rice as those associated

with “stop issues and seizure.” (See Doc. 10 at 3). While Plaintiff more generally refers to “police” when describing

his property claims, the identification of Sgt. Mark Brookover, Officer James Stillwell, and Captain Rice as officers

related to “seizure” claims is liberally construed as encompassing Plaintiff’s property claims.

1. Proceeding Claims

First, the Court has not yet determined whether it will exercise supplemental jurisdiction

over any state-law conversion claims against Defendants Sgt. Mark Brookover, Officer James

Stillwell and Captain Rice pursuant to 28 U.S.C. § 1367. In light of Plaintiff’s pro se status, the

Court will not sua sponte dismiss Plaintiff’s state-law claims against these three Defendants and

they may proceed. The Court will determine at a later stage in the proceedings whether the exercise

of supplemental jurisdiction over any state-law claims is appropriate. Plaintiff is ORDERED to

complete and file one summons form and one USM-285 form for each of these three Defendants

within ten (10) days.

Second, at this stage in the proceedings, without the benefit of briefing by the parties, the

Undersigned concludes that Plaintiff may PROCEED at this juncture for further development with

his allegations regarding his detention at Zanesville City Jail; specifically, Plaintiff’s Fourteenth

Amendment conditions of confinement and disparate treatment claims and First Amendment

religious exercise claim against Defendants Unknown Zanesville City Jail Captain and Unknown

Zanesville City Jail Shift Officers. The Court advises Plaintiff that this is only a preliminary

determination. The Court has not made a determination as to the merits of the claims or potential

defenses thereto, nor are Defendants precluded from filing a motion to dismiss, motion for more

definite statement, or other appropriate motion under the Federal Rules of Civil Procedure. See,

e.g., Wiley v. Austin, No. 8:20CV220, 2020 WL 6204382, at *3 (D. Neb. Oct. 22, 2020).

That said, some clarification is required. Ordinarily, the next step in a civil case is for the

complaint and summons to be served on the defendants. Here, however, none of the proceeding

defendants have been identified. So, they cannot be served. While this is not reason to dismiss the

claims, it does present a challenge for the efficient handling of the case. See Robinson v. Doe, No.

1:07-cv-729, 2009 WL 650383, at *2 (S.D. Ohio March 10, 2009) (“Although designation of a ‘John

Doe’ . . . defendant is not favored in the federal courts, it is permissible when the identity of the

alleged defendant is not known at the time the complaint is filed and plaintiff could identify

defendant through discovery.”).

Under these circumstances, it is appropriate to permit service of the Complaint on a high-

ranking official who could identify the unknown defendants through discovery. It appears the Chief

of the Zanesville Police Department Scott Comstock would know or could determine the identities

of deputies or officers who were responsible for Plaintiff’s rations during his week of detention at

the Jail. The Court shall order service of the Summons and Complaint on Chief Comstock for this

limited purpose only. See, e.g., Eckstein v. Unknown Deputies at Franklin Cnty. Corr. Ctr. II, No.

2:24-CV-1072, 2024 WL 1930842 (S.D. Ohio May 2, 2024); See also Mincy v. Hamilton Cnty. Just.

Ctr., No. 1:20-cv-00822, 2021 WL 5754729, at *5 (S.D. Ohio Dec. 3, 2021) (noting that adding

“Sherriff McGuffey as a party for the limited purpose of identifying the full names of the Defendants

is the more pragmatic and expeditious option that preserves both this Court’s and the U.S. Marshal’s

limited resources while acknowledging the serious nature of the allegations that Plaintiff raises in

his complaint”).

Once Chief Comstock is served, Plaintiff shall be permitted to serve discovery on him, but

only to determine the identities of the unknown defendants. From Chief Comstock, Plaintiff may

ask for the name(s) of the deputies or officers who were responsible for him and his food rations on

the days of his alleged mistreatment at the Zanesville City Jail. Plaintiff may also ask for addresses

where the unnamed defendants may be served, if known. However, Plaintiff is WARNED that

Chief Comstock may object to any discovery request he believes goes beyond this limited grant.

Additionally, should Chief Comstock believe that Plaintiff’s discovery requests exceed the scope of

this Order, or are otherwise improper, he is instructed to contact the Undersigned’s chambers.

Further, Plaintiff may serve discovery requests on Defendants Sgt. Mark Brookover, Officer

James Stillwell, and Captain Rice once they have answered or responded to his Amended Complaint

and the Court sets a case schedule. As part of those requests, Plaintiff may ask them for the name(s)

of the deputies or officers who were responsible for him and his food rations on the days of his

alleged mistreatment at the Zanesville City Jail and for addresses where the unnamed defendants

may be served, if known.

Upon discovery of the full names of the unknown defendants, Plaintiff will be required to

supplement his complaint to identify them. See Slocum v. Bear, No. 1:18-cv-423, 2019 WL

2234227, at *3 (S.D. Ohio May 6, 2019), report and recommendation adopted, 2019 WL 2233633

(S.D. Ohio May 23, 2019); Murray v. Ohio Dep’t of Corr., No. 1:14-cv-168, 2014 WL 1382401, at

*4 (S.D. Ohio Apr. 8, 2014). Accordingly, Plaintiff is ORDERED to supplement his Complaint

for the limited purpose of naming Defendants Unknown Zanesville City Jail Captain and Unknown

Zanesville City Jail Shift Officers and stating which Defendant he connects to which of the

allegations in his Amended Complaint within sixty (60) days. Also within sixty (60) days, Plaintiff

is ORDERED to a motion to issue service on these defendants and provide one completed

Summons form and one U.S. Marshal form for each of them. Once Plaintiff determines how many

defendants to name in his supplement, he may request as many blank forms as he needs from the

Clerk of Court.

If Plaintiff does not supplement his Complaint as directed, these claims will be dismissed

for lack of prosecution or for failure to state a claim. Plaintiff is further ADVISED that no service

will be issued on the unknown defendants unless he complies with this Order. He should not delay.

See generally Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (“Sixth Circuit precedent clearly

holds that new parties may not be added after the statute of limitations has run”); Fed. R. Civ. P.

4(m) (concerning time limits for service).

However, for the reasons set forth below, the Undersigned RECOMMENDS the remainder

of Plaintiff’s Complaint be DISMISSED. 28 U.S.C. § 1915A(b).

2. Official Capacity Claims

As an initial matter, Plaintiff never specifies whether he sues Defendants Sgt. Mark

Brookover, Officer James Stillwell, Captain Rice, Defendants Unknown Zanesville City Jail

Captain, and Unknown Zanesville City Jail Shift Officers in their official capacities, individual

capacities, or both. “If there is no indication that defendants are being sued in their individual

capacities, the Court assumes they are being sued in their official capacities.” Moore v. City of

Harriman, 271 F.3d 769, 772 (6th Cir 2001). However, the Court may look to the “course of the

proceedings” test to determine whether defendants have received enough notice to hold them

individually responsible for the alleged claims. Id. Plaintiff seeks monetary damages against the

Unknown Zanesville City Jail Captain and Unknown Zanesville City Jail Shift Officers, which is

one factor indicating an intent to sue these Defendants in their individual capacities. Id. at 773.

Furthermore, the nature of Plaintiff’s claims against Defendants Sgt. Mark Brookover and Officer

James Stillwell of the firearms being pointed at his head and Defendants Unknown Zanesville City

Jail Captain and Unknown Zanesville City Jail Shift Officers refusing to feed Plaintiff any food

compliant with his dietary and personal needs involves personal action against Plaintiff, which

suggests an individualized intent. Rose v. Reed, No. 2:12-CV-977, 2014 WL 3547375, at *4 (S.D.

Ohio July 17, 2014) (Graham, D.J.). “To the extent doubt persists that this combination of factors

warrants construing the complaint as one against the defendants individually, this doubt should be

resolved in [plaintiff’s] favor as a pro se plaintiff.” Id. (citing Lindsay v. Bogle, 92 F.App’x 165,

169 (6th Cir. 2004)). Therefore, at this early stage in the proceedings, without the benefit of further

development, the Court construes Plaintiff’s complaint to sue Defendants Sgt. Mark Brookover,

Officer James Stillwell, Unknown Zanesville City Jail Captain, and Unknown Zanesville City Jail

Shift Officers in their official and individual capacities.

However, upon review of Plaintiff’s claims against Captain Rice, the Court construes

Plaintiff to sue him only within his official capacity. Plaintiff does not seek monetary damages from

Captain Rice, nor does the one allegation with Captain Rice’s involvement—an order for Sgt.

Brookover to not remove any items from the vehicle until photos could be taken—indicate an

individualized intent toward Plaintiff. Therefore, in the absence of any indication that Plaintiff seeks

to sue Captain Rice in his individual capacity, the Court will assess Plaintiff’s claims against Captain

Rice as against his official capacity.

All that said, Plaintiff’s federal claims should be dismissed as to Defendants Sgt. Mark

Brookover, Officer James Stillwell, Captain Rice, Unknown Zanesville City Jail Captain, and

Unknown Zanesville City Jail Shift Officers in their official capacities. These Defendants are all

employed by the Zanesville City Jail. A local jail or correctional facility is not a “person” subject

to suit under 42 U.S.C. § 1983. Cummings v. Middletown, Ohio City Jail, No. 1:08-CV-248, 2008

WL 1849172, at *3 (S.D. Ohio Apr. 23, 2008) (Dlott, D.J.). A suit against Defendants in their

official capacities would, in reality, be a way of pleading the action against the entity of which

defendants are agents. Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Even if the

Court were to consider Plaintiff’s Amended Complaint to pursue claims against the City of

Zanesville, which can be sued under 42 U.S.C. § 1983 for its own unconstitutional practice or

policy effectuated by its agents, Plaintiff has not sufficiently alleged that there was an

unconstitutional practice or policy at Zanesville City Jail to trigger Monell liability. Therefore, he

cannot maintain suit against Sgt. Mark Brookover, Officer James Stillwell, Captain Rice,

Unknown Zanesville City Jail Captain, and Unknown Zanesville City Jail Shift Officers in their

official capacities. Thus, Plaintiff has failed to state a claim under Monelll against these

Defendants in their official capacities; therefore, the Court RECOMMENDS that Defendants Sgt.

Mark Brookover, Officer James Stillwell, Captain Rice, Unknown Zanesville City Jail Captain,

and Unknown Zanesville City Jail Shift Officers be DISMISSED in their official capacities.

3. Heck Doctrine

Next, Plaintiff’s allegations regarding the alleged warrantless and non-consenting vehicle

search claims and overcharging claim should be dismissed under the doctrine announced under Heck

v. Humphrey, 512 U.S. 477 (1994). Heck holds that a civil rights lawsuit is barred if it would

necessarily imply the invalidity of a plaintiff’s prior criminal conviction or sentence, unless the

plaintiff establishes that the conviction or sentence has been “reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal . . ., or called into question by a federal

court’s issuance of a writ of habeas corpus.” Id. at 512 U.S. 486–87.

At the core of Plaintiff’s alleged warrantless and non-consenting vehicle search claims and

overcharging claim are a challenge to the validity of his state conviction. (See Doc. 10 at 3 (asking

the Court “to grant relief as it deems necessary,” which, by the nature of these claims, would lead

to invalidity of his state conviction)). However, Plaintiff has not established any of the four avenues

that would make Heck inapplicable to these claims. First, Plaintiff never filed a direct appeal for

his convictions. Second, Plaintiff has not established that the conviction or sentence has been

expunged by executive order. Third, state tribunal invalidation has not occurred in this case.

Finally, no writ of habeas corpus has been issued.3 Therefore, to the extent Heck governs Plaintiff’s

claims, the Undersigned RECOMMENDS that Plaintiff’s warrantless and non-consenting vehicle

search claims and overcharging claim be DISMISSED without prejudice.

4. 42 U.S.C. § 1983 Claim against Defense Counsel Edwards

Next, Plaintiff’s ineffective assistance of counsel claims he attempts to bring under 42 U.S.C.

§ 1983 fail against his defense counsel. First, Defendant Edwards was not acting under the color of

state law within the meaning of § 1983. Polk County v. Dodson, 454 U.S. 312, 320–25 (1981). It

is firmly established that a defense attorney, regardless of whether he is a public defender or a private

attorney, is not a state actor for purposes of § 1983. Id. at 325 (“[A] public defender does not act

under color of state law when performing a lawyer’s traditional functions as counsel to a defendant

in a criminal proceeding.”); Otworth v. Vanderploeg, 61 F. App’x 163, 165 (6th Cir. 2003) (“[A]

lawyer representing a client is not, by virtue of being an officer of the court, a state actor under color

of state law within the meaning of § 1983.”). Therefore, the Undersigned RECOMMENDS that

Plaintiff’s ineffective assistance of counsel claims against Defendant Edwards be DISMISSED.

5. Failure to State a Claim

Finally, Plaintiff’s claim against Defendants Sgt. Mark Brookover and Officer James

Stillwell regarding the excessive force claim under the Fourth Amendment of pointing their

firearms “at his head” during the traffic stop should also be dismissed. In his initial filing, Plaintiff

alleges that, after he pulled over, Defendant Officer Stillwell “immediately opened his door, drew

his duty weapon, and without explanation demanded [he] exit his truck.” (Doc. 4 at 7). In response,

Plaintiff locked his door and called 911. (Id.). According to Plaintiff, Defendant Sgt. Mark

Brookover appeared at the passenger side door a “few moments later” and “with his weapon drawn

3 Plaintiff has a pending habeas corpus action within this Court: Aniyunwiya v. Belmont Correctional Institution, Case

No. 2-26-cv-913, Doc. 1 (S.D. Ohio 2026).

and pointing directly at [his] face demanded [Plaintiff] get out of [his] truck and tried opening the

door.” (Id.).

In the context of alleged excessive force during an investigative traffic stop, the Fourth

Amendment’s objective reasonableness inquiry—“whether the officers’ actions are ‘objectively

reasonable’ in the light of the facts and circumstances confronting them, without regard to their

underlying intent or motivation”—governs the analysis. Graham v. Connor, 490 U.S. 386, 396

(1989). A standard of “reasonableness at the moment applies: ‘Not every push or shove, even if it

may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.”

Id. (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)). Some factors assessed in the

objective reasonableness injury are “the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id. But, at base, the Court must consider the “totality of the

circumstances.” Saalim v. Walmart, Inc., 97 F.4th 995, 1004 (6th Cir. 2024); see also Moore v. City

of Memphis, 853 F.3d 866, 870 (6th Cir. 2017) (“An officer’s use of force is excessive if, under the

totality of the circumstances, the force was objectively unreasonable.”).

Here, the Undersigned finds Plaintiff’s allegations insufficient under the objective

reasonableness analysis. Plaintiff, by his own admission, was actively failing to comply with the

officers’ instructions to exit the vehicle. (Doc. 4 at 7 (stating that “he locked the door and called

911” and did not exit until Sheriff Lutz appeared on the scene)). Additionally, Plaintiff was charged

and convicted of Improperly Handling Firearms in a Motor Vehicle, pursuant to O.R.C.

§ 2923.16(B). That subsection of the statute instructs that “[n]o person shall knowingly transport

or have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the

operator or any passenger without leaving the vehicle.” See O.R.C. § 2923.16(B). Plaintiff’s

conviction under this statute indicates that he had a loaded firearm in the vehicle that was accessible

to him at the time of the traffic stop, a factor that, contrary to his assertion in his Amended

Complaint, would pose an immediate threat to the safety of the officers.

Additionally, under similar facts, courts have concluded that such allegations of officers

drawing their weapons “require at least de minimis physical injury.” See Cummings v. Ohio, No.

2:24-CV-4041, 2025 WL 2242756, at *6 (S.D. Ohio Aug. 6, 2025) (Jolson, M.J.), report and

recommendation adopted, No. 2:24-CV-4041, 2025 WL 2653823 (S.D. Ohio Sept. 16, 2025)

(Sargus, D.J.) (citing Youngblood v. City of Paducah, No. 5:15-cv-60-TBR, 2016 WL 2643030, at

*4 (W.D. Ky. May 6, 2016) (quoting Rodriguez, 637 F.3d at 687) (finding the plaintiff’s excessive

force claim where she alleged “the police entered like a herd of wild Bison and pointed military

style weapons at her” failed to state a claim “because she has not alleged even a de minimis physical

injury”) (collecting cases)). In his Amended Complaint, Plaintiff’s one-sentence excessive force

claim does not assert any physical injury caused by the incident, only “emotional distress and fear

for his safety.” (Doc. 10 at 2). While the circumstances presented to the Undersigned are sparse,

the totality of those circumstances do not suggest the force used against a plaintiff in possession of

a loaded firearm within reach and failing to comply with the officers’ instructions was objectively

unreasonable. Therefore, the Undersigned RECOMMENDS that Plaintiff’s claim against

Defendants Sgt. Mark Brookover and Officer James Stillwell regarding the alleged excessive force

during the traffic stop be DISMISSED without prejudice.

***

In sum, the Undersigned finds that Plaintiff’s Fourteenth Amendment conditions of

confinement and disparate treatment claims and First Amendment religious exercise claim against

Defendants Unknown Zanesville City Jail Captain and Unknown Zanesville City Jail Shift

Officers may proceed. Additionally, because the Court has not yet determined whether it will

exercise supplemental jurisdiction over any state-law conversion claims, those claims against

Defendants Sgt. Mark Brookover, Officer James Stillwell and Captain Rice may proceed as well.

But, the Undersigned RECOMMENDS the Court DISMISS Plaintiff’s Complaint as to all

Defendants sued in their official capacities for failure to state a claim under Monelll. Furthermore,

the Undersigned RECOMMENDS that Plaintiff’s warrantless and non-consenting vehicle search

claims and overcharging claim be DISMISSED without prejudice as barred by Heck.

Additionally, the Undersigned RECOMMENDS Plaintiff’s ineffective assistance of counsel

claims against Defendant Edwards be DISMISSED. Finally, the Undersigned RECOMMENDS

that Plaintiff’s excessive force claim against Defendants Sgt. Mark Brookover and Officer James

Stillwell during the traffic stop be DISMISSED without prejudice for failure to state a claim.

II. PLAINTIFF’S NOTICE TO COURT / MOTION FOR APPOINTED COUNSEL

As noted above, Plaintiff in his Notice to Court of Loss of Eyesight informs the Court that

he is “having surgical procedures because [he] is going blind.” (Doc. 11). He relates that he is

“unable to read documents” and others “read them to [him] and then [he] must have them write

what [he] wishes the Court to know.” (Id.). Because he alleges that the person helping him will

be released and that he would no longer have help, Plaintiff asks the Court for relief “with any

remedy deemed necessary.” (Id.). The Undersigned liberally construes Plaintiff’s Notice as a

Motion to Appoint Counsel.

The law does not require the appointment of counsel for indigent plaintiffs in cases such

as this, see Lavado v. Keohane, 992 F.2d 601, 604–05 (6th Cir. 1993), nor has Congress provided

funds with which to compensate lawyers who might agree to represent those plaintiffs. The

appointment of counsel in a civil proceeding is not a constitutional right and is justified only by

exceptional circumstances. Id. at 605–06. See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir.

2003). Moreover, there are not enough lawyers who can absorb the costs of representing persons

on a voluntary basis to permit the Court to appoint counsel for all who file cases on their own

behalf. The Court makes every effort to appoint counsel in those cases which proceed to trial,

and, in exceptional circumstances, will attempt to appoint counsel at an earlier stage of the

litigation. While the Undersigned is sympathetic to Plaintiff’s physical ailments, no such

circumstances appear in this case, at this time. As our sister court in the Eastern District of

Michigan has recently reiterated:

An ‘exceptional circumstance’ is something ‘beyond relatively routine

circumstances such as illiteracy, poverty, lack of legal knowledge, or illness.’” (ECF

No. 18, PageID.67) (quoting Andwan v. Village of Greenhills, No. 1:13-cv-624, 2017

WL 194347, at *7 (S.D. Ohio Jan. 18, 2017)). The difficulties of litigating a case

due to incarceration alone do not warrant appointment. See, e.g., Jeter v. Lawless,

No. 1:19-CV-623, 2019 WL 6044202 (S.D. Ohio Nov. 15, 2019) (no exceptional

circumstances found where plaintiff alleged difficulty in litigating matter due to

incarceration and placement in segregation).

Sanders v. Purdom, No. 2:23-CV-11413, 2024 WL 4294635, at *1 (E.D. Mich. Sept. 25, 2024).

Consequently, Plaintiff’s motion to appoint counsel (Doc. 11) is DENIED without prejudice.

IT IS THEREFORE RECOMMENDED THAT:

1. The Court DISMISS Plaintiff’s Amended Complaint as to Defendants Sgt. Mark

Brookover, Officer James Stillwell, Captain Rice, Unknown Zanesville City Jail Captain and

Unknown Zanesville City Jail Shift Officers in their official capacities for failure to state a claim

under Monelll.

2. The Court DISMISS WITHOUT PREJUDICE Plaintiff’s warrantless and non-

consenting vehicle search claims and overcharging claim as barred by Heck.

3. The Court DISMISS Plaintiff’s ineffective assistance of counsel claims against

Defendant Edwards.

4. The Court DISMISS WITHOUT PREJUDICE Plaintiff’s allegations regarding the

excessive force incident involving the traffic stop against Defendants Sgt. Mark Brookover and

Officer James Stillwell for failure to state a claim upon which relief can be granted. 28 U.S.C.

§§ 1915(e)(2)(B); 1915A(b).

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s Fourteenth Amendment conditions of confinement and disparate

treatment claims and First Amendment religious exercise claim against Defendants Unknown

Zanesville City Jail Captain and Unknown Zanesville City Jail Shift Officers MAY PROCEED.

2. Because the Court has not yet determined whether it will exercise supplemental

jurisdiction over any state-law conversion claims, those claims against Defendants Sgt. Mark

Brookover, Officer James Stillwell and Captain Rice MAY PROCEED.

3. Plaintiff must file a supplement to the Complaint and motion to issue service, as

described above, setting forth the identity of the unidentified Defendants within sixty (60) days.

Plaintiff is advised that no service with be issued on the unnamed Defendants unless Plaintiff

complies with this Order.

4. The Clerk shall mail Plaintiff four blank summons forms and four blank USM-285

forms.

5. Plaintiff shall fully complete one summons form and one USM-285 form for Chief

of the Zanesville Police Department Scott Comstock and file them within ten (10) days. Once he

has completed this, the Court will direct service as to this party for the limited purpose of identifying

the unnamed defendants, described above.

6. Plaintiff shall fully complete summons and USM-285 forms for each of Defendants

Sgt. Mark Brookover, Officer James Stillwell and Captain Rice and file them within ten (10) days.

Once he has completed this, the Court will direct service on these Defendants.

7. The Clerk shall mail Plaintiff a copy of the Southern District of Ohio’s Guide for Pro

Se Litigants. Plaintiff shall read the guide and pay particular attention to the information on pages

9–11 (“Service of Process), 12 (“After Service of Process”), 13–14 (“Requirements for Filing

Documents”; “Deadlines for Filings”; and “Pretrial Stage”), 15 (“Discovery”), and 30–35

(“Guidance for Completing Service of Process Forms”).

8. Plaintiff shall serve upon Defendants or, if appearance has been entered by counsel,

upon Defendants’ attorney(s), a copy of every further pleading or other document submitted for

consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk

of Court a certificate stating the date a true and correct copy of any document was mailed to

Defendants or Defendants’ counsel. Any paper received by a district judge or magistrate judge

which has not been filed with the Clerk or which fails to include a certificate of service will be

disregarded by the Court.

9. The prior Report and Recommendation that recommended dismissal for lack of

jurisdiction and want of prosecution (Doc. 5), is withdrawn.

Date: August 18, 2026 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

PROCEDURE ON OBJECTIONS:

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a

copy of the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Berkshire v. Dahl, 928 F.3d 520,

530 (6th Cir. 2019). See also Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638

F.2d 947 (6th Cir. 1981).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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