Viola v. Bennett

Filing 10

Memorandum of Opinion and Order: Accordingly, for the reasons stated above, the plaintiff's motions for a temporary restraining order (Doc. No. 2 ) and for service of the complaint (Doc. No. 7 ) are denied, and this action is dismissed pursuant to 28 U.S.C. §1915A. 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 5/22/17. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

Anthony L. Viola,
Plaintiff,
v.
Mark S. Bennett,

Defendant.

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CASE NO. 1: 17 CV 456
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Pro se plaintiff Anthony L. Viola, a federal prisoner incarcerated in the McKean
Correctional Institution in Bradford, Pennsylvania, has filed this civil rights action against Mark
S. Bennett, the Assistant United States Attorney who prosecuted him in United States v. Viola,
Case No. 08 CR 506 (N.D. Ohio) (Nugent, J.).
The plaintiff was tried by a jury in Case No. 08 CR 506 and found guilty of two counts
of conspiracy to commit wire fraud and thirty-three counts of wire fraud in violation of 18
U.S.C. §§371 and 1343. The trial court denied the plaintiff’s motion for a new trial, in which he
asserted ineffective assistance of counsel and prosecutorial misconduct, and sentenced him to 60
months imprisonment for each of the conspiracy counts and 150 months of imprisonment on
each of the wire fraud counts, to be served concurrently and to be followed by three years of
supervised release. The Sixth Circuit affirmed the district court’s order denying the motion for
a new trial. United States v. Viola, Case No. 12-3112 (6th Cir. Nov. 6, 2013).
The district court denied a subsequent motion by the plaintiff to vacate or set aside his
sentence pursuant to 28 U.S.C. §2255, in which the plaintiff asserted among other things various
forms of prosecutorial misconduct. The Sixth Circuit denied his motion for a certificate of

appealability to pursue an appeal of the district court’s order denying this motion, and denied
three other motions the plaintiff filed. See United States v. Viola, Case No. 16-3023 (6th Cir.
Nov. 23, 2016). The Sixth Circuit held that jurists of reason could not disagree that the plaintiff
had not made a substantial showing of the denial of a federal constitutional right.
In this civil rights action, the plaintiff alleges that AUSA Bennett violated his
constitutional rights in his criminal case by making representations to the Sixth Circuit that he
waived conflicts of interest regarding his counsel. He asks the Court to declare Bennett’s
representations “unconstitutional and issue an order enjoining [Bennett] from falsely informing
any court that the Plaintiff waived any conflicts of interest.” (Doc. No. 1 at 5.) The plaintiff
further requests that “a Temporary Restraining Order be issued, until such time as a hearing
concerning [the] matter can be held.” (Id.)
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982); Haines v. Kerner, 404 U.S. 519, 520 (1972), federal district courts are expressly
required, under 28 U.S.C. §1915A, to screen any complaint in a civil action in which a prisoner
seeks redress from an officer or employee of a governmental entity, and to dismiss before
service any such action that 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; Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010).
The plaintiff’s complaint is frivolous, fails to state a claim, and must be dismissed
pursuant to §1915A.
The Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994), bars a
prisoner from raising constitutional claims in a civil rights action if a judgment on the merits of

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those claims would affect the validity of the prisoner’s conviction or sentence, unless the
prisoner shows that his “conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.” See also Edwards
v. Balisok, 520 U.S. 641 (1997).
Heck applies with equal force to a civil rights action brought against federal officials
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir.1998). In addition, Heck extends
to actions seeking injunctive or declaratory relief. See Edwards, 520 U.S. at 646-48
(declaratory relief); Wilson v. Kinkela, No. 97-4035, 1998 WL 246401, at *1 (6th Cir. May 5,
1998) (injunctive relief).
Plaintiff's allegations clearly call into question the validity of his federal conviction. His
alleged civil rights claims are, therefore, barred under Heck because he has made no allegation
or showing that the conviction has been invalidated in any of the ways articulated in Heck.
Further, the Sixth Circuit and other courts in this district have repeatedly rejected the
plaintiff’s allegations against Bennett. See, e.g., United States v. Viola, Case No. 16-3023 (6th
Cir. Nov. 23, 2016); U.S. Bank National Ass’n v. Viola, Case No. 16 CV 969, 2016 WL
7012303, at *2 and cases cited in footnote 16 (N.D. Ohio Dec. 1, 2016).
Conclusion
Accordingly, for the reasons stated above, the plaintiff’s motions for a temporary
restraining order (Doc. No. 2) and for service of the complaint (Doc. No. 7) are denied, and this
action is dismissed pursuant to 28 U.S.C. §1915A.

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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.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/22/17

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