Lemons v. Cuyahoga County Court of Common Pleas et al
Filing
7
Opinion and Order signed by Judge James S. Gwin on 6/9/14 granting plaintiff's motion to proceed in forma pauperis and setting forth the grounds for dismissal without prejudice of the complaint based on lack of subject matter jurisdiction. (Related Docs. 1 , 2 , 3 and 6 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
RODNEY EDWARD LEMONS,
CASE NO. 1:13-CV-2704
Plaintiff,
vs.
OPINION & ORDER
[Resolving Doc. Nos. 1, 2, 3, & 6]
CUYAHOGA COUNTY COURT OF
COMMON PLEAS, et al.,
Defendants.
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Before the court is pro se plaintiff Rodney Edward Lemons’s “Complaint” (Doc. No. 1) filed
in forma pauperis against the Cuyahoga County Court of Common Pleas, Judge Nancy Fuerst and
Alison D. Edelstein. He has also filed a Motion to Proceed In Forma Pauperis (Doc. No. 2), Motion
to Reassign Judge (Doc. No. 3.) and Motion to Supplement Complaint (Doc. No. 6.) Lemons asks
the Court to release him on bond pending the Ohio Supreme Court’s ruling in the following cases:
CR 576552, CR 574602, CR 567533, CR 531567, and CR 531967. For the following reasons, the
Court DISMISSES the complaint.
I. Background
The face page of the Complaint is blank except for an annotation to “see attached.” The
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Case No. 1:13-CV-2704
Gwin, J.
attachments include an Affidavit of Fact, Affidavit of Prejudice, Petition for Substantive Due Process
Violations and Declaratory Relief under the Ohio Constitution. A careful reading of these
documents reveal Lemons is challenging a conviction in the Court of Commons Pleas. A review of
the County docket indicates a jury found Lemons guilty on November 6, 2013 of
telecommunications fraud in violation of Ohio Revised Code (ORC) § 2913.05, securing records
by deception, in violation of ORC §2913.43, attempted aggravated theft in violation of ORC
§§2923.02/2913.02 A(3) and extortion in violation of ORC §2905.11. See State of Ohio v. Lemons,
No. CR 13 576552 (Ct. Com. Pl. Cuyahoga Ct.)(Fuerst, J.) On April 8, 2014, Judge Nancy Fuerst
imposed the following sentence: 30 months on Counts 2, 3, 4, 5 and 8, 18 months on Counts 1, 6 and
7. All counts are to run concurrent to each other.
Lemons is now attempting to attack his conviction based, in part, on alleged violations of his
right to due process. Further, he acknowledges that he has pending appeals of his conviction in the
Supreme Court of Ohio. For the reasons stated below, this action is dismissed pursuant to 28 U.S.C.
§1915A.
II. Legal Standards
28 U.S.C. § 1915A
A district court is expressly authorized to dismiss any civil action filed by a prisoner
seeking relief from a governmental entity, as soon as possible after docketing, if the court
concludes that the complaint fails to state a claim upon which relief may be granted, or if the
plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915A; Onapolis v. Lamanna, 70 F.Supp.2d 809 (N.D. Ohio 1999)(if prisoner's civil rights
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Gwin, J.
complaint fails to pass muster under screening process of Prison Litigation Reform Act (PLRA),
district court should sua sponte dismiss complaint); see Siller v. Dean, No. 99-5323, 2000 WL
145167 at *2 (6th Cir. Feb. 1, 2000).
III. Analysis
“[F]ederal law opens two main avenues to relief on complaints related to imprisonment: a
petition for habeas corpus, 28 U.S.C. § 2254[§ 2241 for federal prisoners], and a complaint under
the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S.
749, 750 (2004). It is only habeas relief, however, that can test the fact or duration of a
prisoner’s confinement. Thomas v. Eby, 481 F.3d 434, 438 (6th Cir.2007). Here, Lemons
challenges several issues directly related to his conviction. In essence, he is asking this Court to
set aside his conviction based on several factors which he believes undermine the legitimacy of
his conviction and imprisonment. A habeas corpus petition, however, is the only proper
mechanism for a prisoner attacking the “legality or duration” of his or his confinement. Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973). As the Preiser court explained:
It is clear, not only from the language of §§ 2241(c)(3) and
2254(a), but also from the common-law history of the writ, that the
essence of habeas corpus is an attack by a person in custody upon
the legality of that custody, and that the traditional function of the
writ is to secure release from illegal custody. By the end of the
16th century, there were in England several forms of habeas
corpus, of which the most important and the only one with which
we are here concerned was habeas corpus ad subj iciendum-the
writ used to ‘inquir(e) into illegal detention with a view to an order
releasing the petitioner.’ Fay v. Noia, 372 U.S. 391, 399 n. 5, 83
S.Ct. 822, 827, 9 L.Ed.2d 837 (1963).
Id. (emphasis added). To the extent Lemons seeks to challenge his conviction and sentence, he
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must first exhaust his state court remedies pursuant to Rule 4 of the Rules Governing Section
2254 Cases. Only then may he challenge the Constitutionality of his conviction in a petition
pursuant to 28 U.S.C. §2254.
IV. Conclusion and Order
Based on the foregoing, the Plaintiff’s Motion to Proceed In Forma Pauperis is granted
and Complaint is dismissed without prejudice based on lack of subject matter jurisdiction. See
e.g. Wagenknecht v. United States, 533 F.3d 412 (6th Cir. 2008). Further, 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
IT IS SO ORDERED.
Dated: June 9, 2014
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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