Wilkes v. Cook et al
Filing
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OPINION AND ORDER severing Mr. Wilkes' habeas corpus claims from his §1983 claims, denying 5 Motion to Appoint Counsel & transferring both cases to the United States District Court for the Northern District of Ohio, Western Division. Signed by Magistrate Judge Terence P Kemp on 5/7/2014. (kk2) [Transferred from ohsd on 5/7/2014.]
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Joseph Wilkes,
:
Plaintiff,
: Case No.
v.
2:14-cv-18
:
Judge Hon. Gary G. Cook, et al.,: JUDGE GREGORY L. FROST
Magistrate Judge Kemp
Defendants.
:
OPINION AND ORDER
Joseph Wilkes, a state prisoner, brought this case both as a
civil action seeking damages under 42 U.S.C. §1983 and a petition
for writ of habeas corpus seeking release from prison.
The Court
has granted his application for leave to proceed in forma
pauperis and has assessed a partial filing fee.
For the reasons
set forth below, this Court will sever the habeas corpus action
from the civil claims in this case, creating a new case for the
petition for habeas corpus relief.
The Court will then transfer
both cases to the United States District Court for the Northern
District of Ohio.
I. Background
The gist of the complaint appears to be this.
In 2010, Mr.
Wilkes was arrested and charged with offenses relating to drugs
and a weapon found at someone else’s home.
He claims the
homeowners admitted possession of both the drugs and the weapon
but they were never charged.
Mr. Wilkes accuses all of the
defendants - who appear to be either persons associated with Mr.
Wilkes’ criminal trial or employees of the Ohio Department of
Rehabilitation and Correction, although the complaint does not
precisely identify all of the defendants - with violating his
constitutional rights by imprisoning him, and keeping him in
prison, despite the absence of any evidence to believe he
committed a crime.
He asks the Court to release him and to award
him damages for the time he has spent in prison; he also includes
some very vague allegations about inhumane prison conditions and
denial of medical care, all of which presumably took place at his
current institution, the North Central Correctional Institution
located in Marion, Ohio.
The Court has located, and relies in part upon, a decision
of the Sixth District Court of Appeals issued in Mr. Wilkes’
state case, see State v. Wilkes, 2013 WL 2612282 (Lucas Co. App.
June 7, 2013).
From that decision, it appears that Defendant
Kenneth Rexford was Mr. Wilkes’ attorney; Defendants Brenda
Majdalani and Julia Bates were the prosecuting attorneys; and
Defendant Gary Cook was the trial judge.
The Court is aware and
takes judicial notice that Defendant Gary Mohr is the Director of
the Ohio Department of Rehabilitation and Correction and that
Defendant Neil Turner is or was the warden at NCCI.
II. Discussion
Under Preiser v. Rodriguez, 411 U.S. 475 (1973), the fact of
a conviction or the length of a sentence cannot be challenged in
an action brought under 42 U.S.C. §1983; that type of relief is
available to a state prisoner in federal court only through a
petition for a writ of habeas corpus.
Mr. Wilkes appears to
recognize that by asking for habeas relief, in addition to money
damages on his §1983 claims.
As this Court noted in Cargile v. Ohio Adult Parole
Authority, 2012 WL 359648 (S.D. Ohio Feb. 2, 2012), adopted and
affirmed 2012 WL 832220 (S.D. Ohio Mar. 12, 2012), such disparate
claims for relief ordinarily may not proceed together, and
severance is warranted unless it is clear that one claim cannot
proceed without the other being first adjudicated. There, all of
the §1983 claims asserted by the Plaintiff arose from his alleged
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wrongful conviction, and, under Heck v. Humphrey, 512 U.S. 477
(1994), they could not proceed unless and until the plaintiff
obtained relief from his conviction through his habeas petition.
Thus, although the Court noted that “[t]he most appropriate
remedy, if the two cases really could proceed separately, would
seem to be to sever the claims from each other and have the Clerk
assign a new case number to one portion of the case,” id. at *3,
the Court did not order a severance there because of the
interdependent nature of the claims.
By contrast, Mr. Wilkes has raised at least some §1983
claims which do not depend upon his obtaining habeas corpus
relief. Claims about the condition of his confinement are not
barred by his failure to have his conviction or sentence
overturned. Consequently, a severance is appropriate here.
Once the cases are severed, both should be transferred. Any
viable condition of confinement claims which relate to the North
Central Correctional Institution should be prosecuted in the
Northern District of Ohio, Western Division. See 28 U.S.C. §115.
Similarly, any habeas claims relating to a conviction obtained in
Lucas County belong in that Court. This Court notes that the
allegations supporting the civil rights claim are not
particularly detailed, but leaves it to the proper court to
conduct an initial screening and to decide if it should dismiss
the claims or grant leave to amend. The habeas claims may be
unexhausted but, again, the initial Rule 4 screening ought to be
done by the proper court.
III. Conclusion
Based upon the foregoing, the Clerk of Courts is directed to
sever Mr. Wilkes’ habeas corpus claims from his §1983 claims.
The Clerk shall do so by opening a new civil case, which Mr.
Wilkes is permitted to pursue without prepayment of the $5.00
filing fee for actions brought under 28 U.S.C. §2254, and filing
the complaint in this case in that case as well, along with a
copy of this order.
Both cases shall then be transferred to the
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United States District Court for the Northern District of Ohio,
Western Division.
The pending motion for appointment of counsel
(Doc. 5) is denied.
IV. Procedure on Motion to Reconsider
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
28 U.S.C. §636(b)(1)(A),
Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).
The motion must specifically designate the
order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.
The District Judge, upon consideration of the
motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
S.D. Ohio L.R. 72.4.
IT IS SO ORDERED.
/s/ Terence P. Kemp
United States Magistrate Judge
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