Allsup v. Smith et al
Memorandum Opinion and Order. This action is dimissed under section 1915(e). Further, the court certifies, pursuant to 28 USC 1915(a)(3) that an appeal from this decision could not be taken in good faith re 1 . Judge David A. Katz on 11/16/11. (R,Ci)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WAYNE T. ALLSUP,
RICHARD SMITH, et al.,
CASE NO. 3:11 CV 1508
JUDGE DAVID A. KATZ
MEMORANDUM OF OPINION
On July 22, 2011, plaintiff pro se Wayne T. Allsup, an inmate at Toledo Correctional
Institution, filed this in forma pauperis civil rights action against Richard Smith, Kenton Clerk of
Courts, Gina Messner, Susan Leeth, Carrie Haidenschild, Brad Bailey and Judge Grimslid. The
complaint, which seeks monetary relief and plaintiff’s release from prison, alleges plaintiff was
improperly convicted in the Ohio Court of Common Pleas.1 For the reasons stated below, this action
is dismissed pursuant to 28 U.S.C. § 1915(e).
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 action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief
The website for the Ohio Department of Rehabilitation and Correction reflects
Allsup was convicted of numerous offenses, and that his prison term expires in September 2020.
can be granted, or if it lacks an arguable basis in law or fact.2 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).
The Supreme Court has held that, when a prisoner challenges "the very fact or
duration of his physical imprisonment, ... his sole federal remedy is a writ of habeas corpus."
Preiser v. Rodriguez, 411 U.S. 475, 501 (1973).
Further, absent allegations that criminal
proceedings terminated in plaintiff's favor or that a conviction stemming from the asserted violation
of his rights was reversed, 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, he may not recover
damages for his claim. Heck v. Humphrey, 512 U.S. 477 (1994).
Accordingly, this action is dismissed under section 1915(e). 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.
/s/ David A. Katz
DAVID A. KATZ
UNITED STATES DISTRICT JUDGE
A 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); Spruytte v. Walters, 753
F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); 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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