Perry v. Wilson
Filing
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Memorandum Opinion and Order: Plaintiff has also filed a Motion to Proceed In Forma Pauperis. (ECF 2 ). That Motion is granted. Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 10/18/11. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Ray Perry,
Plaintiff,
v.
James Wilson,
Defendant.
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CASE NO. 1:11-CV-1309
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Pro se plaintiff Ray Perry filed this action against Ohio Adult Parole Authority (“OAPA”)
Parole Officer James Wilson. In his Complaint, plaintiff alleges causes of action for malicious
prosecution and slander arising from defendant Wilson’s testimony against plaintiff in connection
with plaintiff’s arrest for escape. He seeks compensatory and punitive damages.
Plaintiff has also filed a Motion to Proceed In Forma Pauperis. (ECF 2). That Motion is
granted.
Background
In March 1993, plaintiff was convicted of felonious assault, aggravated burglary, and
carrying a concealed weapon (“CCW”). He was sentenced to an indefinite term of five to
fifteen years of imprisonment on the felonious assault charge, a concurrent term of eight to
twenty-five years on the aggravated burglary charge, and one year plus a consecutive three-year
term for the firearm specification. Plaintiff was paroled in August 2001, and ordered to
complete his sentence under the supervision of the OAPA.
In March 2002, plaintiff was indicted for the offense of escape for allegedly failing to
report to his parole officer following his August 2001 release from prison. Following a jury
trial, plaintiff was convicted of escape and sentenced to two years of imprisonment and three
years of post-release control. In April 2005, plaintiff was again indicted for the offense of
escape. He pled guilty and, on September 25, 2005, was sentenced to serve fifty-five days in
jail.
In December 2005, plaintiff was once again indicted for escape. The matter proceeded
to a bench trial on August 13, 2007. During that trial, defendant Wilson testified that plaintiff
was a “hybrid” parolee, “as he is subject to three years of post-release control (in connection
with [his 2002 escape conviction]) and sixteen years of parole (in connection with [his 1993
felonious assault, aggravated burglary, and CCW conviction]).” State v. Perry, 2008 WL
4750346 at *2 (Ohio App. 8 Dist. Oct. 30, 2008). Defendant Wilson also indicated that plaintiff
“would remain under the supervision of the Ohio Adult Parole Authority until 2023.” Id.
On August 15, 2007, plaintiff was convicted of one count of escape and sentenced to
two years imprisonment and two years of post-release control sanctions. Plaintiff alleges that he
was released from prison on August 17, 2010.
Plaintiff has filed numerous lawsuits in this Court relating to the above charges and
convictions. Several months prior to his August 2007 trial on escape charges, plaintiff filed
Perry v. Wilson, Case No. 1:07CV1144 (N.D. Ohio) (J. O’Malley). In that case, plaintiff
claimed that defendant Wilson slandered him by stating that plaintiff violated his parole, and
exceeded his authority by filing escape charges against him. That action was dismissed
pursuant to 28 U.S.C. § 1915(e) on July 25, 2007.
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Two days after he was sentenced for his August 2007 escape conviction, plaintiff filed
another action to challenge the State’s ability to prosecute him on escape charges. See Perry v.
Collins, Case No. 1:07CV2952 (N.D. Ohio) (J. Gwin). Specifically, he claimed that “those
released on PRC are being unlawfully prosecuted for escape pursuant to [Ohio Rev. Code]
2921.34 for failing to visit their parole officer . . .. [T]here is no statute authorizing the
prosecution.” That action was dismissed pursuant to 28 U.S.C. § 1915(e).
One month after filing the second action challenging the escape charges, plaintiff filed a
third case, this time against parole board member Jim Bedra and defendant Wilson. See Perry
v. Bedra, Case No. 1:07CV3245 (N.D. Ohio) (J. O’Malley). In his complaint in that case,
plaintiff alleged:
Pursuant to R.C. 2967.28 (2005) as it existed in 9/2005, periods of PRC
[post-release control] do not run concurrent or consecutive to each other.
A latter felony conviction would terminate a former PRC supervision.
Also, parole and PRC supervisions do not aggregate. A 1 year parole
supervision is terminated by a 3 year PRC supervision pursuant to R.C.
2967.28(4)(B). Whereby, after 9/26/2005, I was not on parole pursuant
to R.C. 2967.15 or PRC pursuant to R.C. 2967.28. However, I find
myself in prison now for the parole violation of escape pursuant to R.C.
2967.34.
He further claimed that the OAPA was not following the requirements of the Ohio Revised
Code, and the parole board lacked authority to pursue escape charges for violating the terms of
his post-release control. That case was dismissed pursuant to 28 U.S.C. § 1915(e) on January
15, 2008.
Plaintiff then filed a fourth case, this time a Petition for Writ of Habeas Corpus. See
Perry v. Collins, Case No. 1:09CV2254 (N.D. Ohio) (J. Gwin). Therein, he claimed that:
This case involves the unconstitutionality of the Adult Parole Authority
placing this Petitioner under post release control supervision when the trial
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court had not placed this Petitioner on post release control, as evidenced by
the journal entry for an F5 escape conviction pursuant to Hernandez vs.
Kelly, 844 N.E. 2d 301,Ohio, and by prosecuting this Petitioner for escape
pursuant to R.C.2921.34, for not reporting to a parole officer for post
releaser [sic] control supervision, when the trial court had not placed the
Petitioner on post release control.
He further asserted that (1) a post release control sentence supercedes parole or post-release
control that is required in a prior sentence; (2) a defendant must be notified of post-release
control at the time of sentencing; (3) an escape conviction is unlawful pursuant to Ohio Revised
Code §2921.34(B)(2) when the detaining authority should have known there was no legal basis
for the detention; (4) escape is a third degree felony when the most serious offense for which a
period under detention is a fifth degree felony; (5) those released from prison are not subject to
escape charges for supervised release; and (6) he was denied effective assistance of appellate
counsel.
Plaintiff then filed a second or successive Petition for Writ of Habeas Corpus, again
challenging his September 2007 escape conviction. Perry v. Collins, Case No. 1:10CV144
(N.D. Ohio) (J.O’Malley). As plaintiff had not obtained leave from the Sixth Circuit to file a
successive habeas petition, the Court transferred the matter to the Sixth Circuit on July 15,
2010. The Sixth Circuit subsequently denied plaintiff’s motion for an order authorizing this
Court to consider his successive habeas petition.
Plaintiff filed his Complaint in the instant case on June 27, 2011. This is the sixth case
filed by plaintiff relating to his 2007 conviction and sentences for escape. In this Complaint,
plaintiff states summarily that he is seeking damages against defendant Wilson for malicious
prosecution, slander, and cruel and unusual punishment. However, the specific allegations set
forth in the body of his Complaint relate primarily to the alleged unconstitutionality of
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plaintiff’s 2007 escape conviction and subsequent placement on post-release control.
Specifically, plaintiff asserts in the instant case the very same issues raised in his 2009 Petition
for Writ of Habeas Corpus (i.e. Perry v. Collins, Case No. 1:09CV2254 (N.D. Ohio)(J.Gwin)),
set forth above. In addition, plaintiff alleges that (1) his 1993 conviction for felonious assault,
aggravated burglary, and CCW is unconstitutional because the State failed to disclose
exculpatory information; and (2) the Ohio Department of Rehabilitation & Corrections
(“ODRC”) unlawfully held him for an additional 20 months after his two year prison term
expired.
Standard
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court 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 can be granted, or if it lacks an arguable basis in law or fact.1 Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an 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 the complaint.” Bell Atl.
1
An in forma pauperis claim may be dismissed sua sponte, without prior notice to
the plaintiff and without service of process on the defendant, if the court explicitly states
that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the
claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d
601, 608-09 (6th Cir. 1997); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986);
Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir. 1985).
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Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal , 129 S.Ct.
1937, 1949 (2009). 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. Bell Atl. Corp., 550 U.S. at 555. The plaintiff is not required to include detailed factual
allegations, but must provide more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 129 S.Ct. at 1949. 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).
For the reasons stated below, this action is dismissed pursuant to §1915(e).
Analysis
This Complaint is plaintiff’s sixth attempt to bring these matters before the Court. For
the reasons set forth below, the Court finds that these claims are barred by the doctrine of res
judicata.
The doctrine of res judicata promotes judicial economy and protects litigants from the
burden of relitigating claims and issues with the same parties. Parklane Hosiery Co v. Shore,
439 U.S. 322, 326 (1979). See also Martin v. Dana Driveshaft Manufacturing, L.L.C., 2010
WL 3515597 at *2 (N.D. Ohio. Sept. 2, 2010). Res judicata applies when (1) there is a final
decision on the merits of the first action by a court of competent jurisdiction; (2) the second
action involves the same parties, or their privies, as the first; (3) the second action raises an
issue actually litigated or which should have been litigated in the first action; and (4) there is
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identity of claims. See Rawe v. Liberty Mut. Ins. Co., 462 F.3d 521, 528 (6th Cir. 2006);
Hamilton’s Bogarts v. Michigan, 501 F.3d 644, 650 n. 4 (6th Cir. 2007); Walker v. General
Telephone Co., 2001 WL 1667282 at * 4 (6th Cir. Dec. 26, 2001).
The Sixth Circuit has held that, in order for the third and fourth elements of the above
test to be satisfied, “there must be an identity of the causes of action; that is, an identity of facts
creating the right of action and of the evidence necessary to sustain each action.” Westwood
Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). See also Holder v. City of
Cleveland, 2008 WL 2787496 at *2 (6th Cir. July 17, 2008). Where the two causes of action
arise from the “same transaction, or series of transactions,” the plaintiff should have litigated
both causes in the first action and may not litigate the second issue later. See Rawe, 462 F.3d at
529.
Plaintiff has twice filed lawsuits against defendant Wilson in this Court. See Perry v.
Wilson, Case No. 1:07-CV-1144 (N.D. Ohio) (J.O’Malley); Perry v. Bedra, Case No. 1:07-CV3245 (N.D. Ohio) (J.O’Malley). The issues raised by plaintiff, both in the instant case and in his
two previous lawsuits against defendant Wilson, relate to his 2007 conviction for escape and
either were already litigated or could have been litigated in these actions. Thus, these issues are
barred by the doctrine of res judicata.
Plaintiff also appears to raise an issue under Brady v. Maryland, 373 U.S. 83 (1963),
relating to his 1993 conviction for felonious assault, aggravated burglary, and CCW.
Specifically, he appears to argue that his 1993 conviction is unlawful because the State failed to
disclose a statement he had made to the police after his arrest. Even accepting these allegations
as true, the Court finds that there is no conceivable basis on which defendant Wilson, a Parole
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Officer, could be held liable for the State’s alleged failure to disclose exculpatory information to
plaintiff in 1993. This claim is, thus, dismissed for failure to state a claim upon which relief
may be granted pursuant to § 1915(e).
Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The Court
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be
taken in good faith.2
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
UNITED STATES DISTRICT JUDGE
Dated: 10/18/11
2
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court
certifies that it is not taken in good faith.
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