Mischer v. Cuyahoga County Court Administrator for the State of Ohio Court of Common Pleas Criminal Division

Filing 3

Opinion and Order signed by Judge James S. Gwin on 5/22/15 setting forth the grounds for dismissal of the complaint. (Related Doc. 1 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARK MISCHER,
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Plaintiff,
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vs.
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CUYAHOGA COUNTY COURT
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ADMINISTRATOR,
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Defendant.
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CASE NO. 1:15 CV 178

OPINION & ORDER

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se plaintiff Mark Mischer, a state prisoner, filed the civil complaint in this action
against the “Cuyahoga County Court Administrator for the State of Ohio Court of Common
Pleas Criminal Division,” seeking release from prison and damages on the basis of an alleged
violation of his speedy trial rights.
The plaintiff’s action must be dismissed pursuant to 28 U.S.C. §1915A, which requires a
district court to dismiss as soon as practicable after docketing any civil action filed by a prisoner
against a governmental entity the court determines is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. §1915A.
The plaintiff’s action fails to state a claim on which relief may be granted. The Supreme
Court held in Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), “that when a state prisoner is
challenging the very fact or duration of his physical imprisonment, . . . his sole federal remedy
is a writ of habeas corpus.” Thus, if a prisoner challenges the legality of his confinement, he

may not use a civil rights action as an alternative to a petition for a writ of habeas corpus, which
requires that he exhaust his state remedies. See id. at 489-90. Accordingly, to the extent the
plaintiff is challenging the legality of his confinement, his civil complaint fails to state a claim
on which relief may be granted because his sole federal remedy is a petition for a writ of habeas
corpus, and he has not shown he exhausted his state remedies.
In addition, the Supreme Court has held that a plaintiff may not recover damages arising
from an allegedly illegal incarceration without allegations that his underlying criminal
conviction was 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.
Heck v. Humphrey, 512 U.S. 477, 487 (1994). The plaintiff’s complaint lacks allegations
required to assert a damages claim demonstrating the invalidity of his underlying conviction.
Accordingly, the plaintiff’s action is dismissed for failure to state a claim on which relief
may be granted under 28 U.S.C. §1915A. The Court further 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: May 22, 2015

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

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