Smith v. Hochul et al

Filing 13

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's three Motions for Appointment of Counsel (ECF Nos. 3 , 9 , 12 ) and Motion to Proceed In Forma Pauperis (ECF No. 2 ) are denied as moot and the Complaint 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 Benita Y. Pearson on 7/29/2014. (JLG)

PEARSON, J.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIAN AVERY SMITH,

Plaintiff,
v.
WILLIAM J. HOCHUL,JR.,
Defendants.

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CASE NO. 4:14cv0162

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 1 ,2, 3,9 & 12]

Before the Court is pro se Plaintiff Brian Avery Smith’s civil rights Complaint filed
against William J. Hochul, Jr, Maura K. O'Donnell, Richard Callahan, Thomas Albus, James
Ramey, Owen E. Cunningham, Jarrod M. Petrelli, Brendon M. Donlan, Stephanie M. Bifano,
Allan Rain, Unknown U.S. Marshall 1, Unknown U.S. Marshall 2, Unknown U.S. Marshall 3,
Christopher J. Collins, Unknown Police Officer of Willoughby Hills, Unknown K-9 Officer of
Willoughby Hills, General Manager of Land Rover of Cleveland, Melissa Colley, Cleophus J.
Weeks, Brandon Portis Esq., Unknown Lawyer, Sam Davis Esq., Frank Lotempio, 3rd. Esq.,
Patrick Brown Esq., John Elmore Esq., Theresa Davis, Mutairo Olayiwola, Walter Hennigan,
Honey Sheats-Harris, Sonny Letak, Lenard Flowers, Simmonette Sandra Fischer, Joseph Burch
Myra Burch, Todd Maclin, Danielle McCarthy, Will Sanio, Chantel Smith, Kelly Atkinson,
Derek Johnson, Sonya Jasper, Andy Suilaman, W.C. Unknown, C.K. Unknown, R.D. Unknown,

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S.A. Unknown, M.S. Unknown, N.I. Unknown, M.S. Unknown, Renee Anthony, Frank Pollack,
Unknown Pen Fed Employee, Matt Beardsley, Dwight Coleman, Hal Ware, Jim Rohr, Kenneth
D. Lewis, J.N. Levine, Saun Bruce, W. Van, Jack Williams, Dawn G. Lopoce, Renard
Laplanche, William H. Rodgers, Marcy Mcdowell, Simmon Haslam, Thomas Gilman, Owner of
Long Island Auto Finder, Anna Hastings, Michelle Ridley, Spring Leaf Financial Supervisor,
Luis Martinez, Lisa Krollman, Kathleen Lynch, Talent Communications CEO, Unknown Tax
Prepayer, Owner of Paystubguy, Erie County Executive, Buffalo News Editor, Warren Buffet,
W.G. Mitchell, Larry Paige, Unknown C.O., Metro Valley CEO, Todd Tryon, Garnell Whitfield,
and Chris Reynolds. (ECF No. 1.) Plaintiff, who is currently being held at the Northeast Ohio
Correctional Center awaiting trial on federal charges, alleges the Defendants violated his
Constitutional rights. He seeks compensatory damages and declaratory relief.
I. Background
Plaintiff was indicted on April 10, 2013 in the United States District Court for the
Western District of New York. See United States v. Smith, et al., No. 1:13-cr-00084 (W.D.
N.Y.)(Arcara, J.). All pre-trial matters were referred to Magistrate Judge H. Kenneth Schroeder,
before whom Plaintiff appeared on April 17, 2013 to enter a plea of not guilty. Plaintiff also
waived his right to a detention hearing, but reserved the right to move for reconsideration based
on changed circumstances.
On September 12, 2013, Plaintiff exercised his rights and moved for reconsideration of
bail at a hearing on that date. During the hearing, the motion was denied and Plaintiff was
remanded back to the custody of the U.S. Marshals Service.

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Pending the issuance of a superseding indictment, Magistrate Schroeder issued an Order
on October 2, 2013 to stop the speedy trial clock pursuant to 18 U.S.C. § 3161(h)(1)(D).
On November 7, 2013, a superseding indictment was filed against Plaintiff. On the same
date, he entered a plea of not guilty and the government moved to continue his detention pending
trial. A Motion for Reconsideration of Order of Detention was denied. Magistrate Schroeder
granted Plaintiff’s Motion for Extension of Time to File Pretrial Motions.
On June 4, 2014, oral arguments were held on the Pretrial Motions. The court determined
it would await the Supreme Court's decision regarding the search of cell phones and held
Plaintiff’s motions in abeyance. A Status Conference was scheduled for July 10, 2014.
By Order issued July 2, 2014, the Status Conference was adjourned until July 29, 2014.
Magistrate Schroeder further noted: “the Speedy Trial Clock remains stopped pursuant to Title
18 U.S.C. Section 3161(h)(1)(D).”
In his complaint before this Court, Plaintiff alleges several violations of his Constitutional
rights leading to his arrest and the indictment for which he awaiting trial. ECF No. 1. He also
acknowledges he previously filed a lawsuit dealing with the same facts and parties who are
involved in this action. ECF No. 1 at 1. That case was filed on November 12, 2013 in the United
States District Court for the Western District of New York. See Smith v. Hochul, et al., No.
1:13-cv-01106 (W.D.N.Y.).
A review of the docket in the New York case reveals the court denied his motion to
proceed in forma pauperis, without prejudice, and "administratively terminat[ed]" the case on
December 2, 2013. Plaintiff was permitted to reopen the case if he filed a new Motion to

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proceed in forma pauperis, or if he paid the filing fee.
On December 20, 2013, Plaintiff filed a new Motion to proceed In Forma Pauperis.
Before the court ruled on his pending motion, however, Plaintiff filed the above-captioned case
on January 24, 2014. In May 2014, he notified this Court that he had been transferred from a jail
in New York to N.E.O.C.C.
On May 16, 2014, United States District Judge John T. Curtin granted Plaintiff’s Motion
to Proceed In Forma Pauperis, dismissed William Hochul, Maura O'Donnell, Richard Callahan,
Thomas Albus, Robert Flynn, Sam Davis, Frank LoTempio, III and Patrick Brown as party
defendants and permitted Plaintiff to file an amended complaint. Plaintiff timely complied with
the court's request and filed an amended complaint on June 30, 2014 and named Joseph Burch,
Myra Burch, Melissa Colley, Sam Davis, Theresea Davis, Brendan M. Donlan, Walter Hennigan,
William J. Hochul, Jr, Lisa Krollman, Frank Lotempio, 3rd, Maura K. O'Donnell, Brandon
Portis, Unknown Officer of Willoughby Hills, Cleophus J. Weeks. For the reasons that follow,
this Court finds this action is duplicative of the case pending in New York and subject to
summary dismissal.
II. Standard of Review
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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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); see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing
numerous Supreme Court cases for the proposition that attenuated or unsubstantial claims divest
the district court of jurisdiction); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir.1988)
(recognizing that federal question jurisdiction is divested by unsubstantial claims).
III. Duplicative Litigation
Generally, the pendency of an action in state court is no bar to proceedings concerning the
same matter in the federal court having jurisdiction. When the matter is between federal district
courts, however, the general principle is to avoid duplicative litigation. See Colorado River
Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). This underscores the
general requirement that a plaintiff bring all claims arising out of a common set of facts in a
single lawsuit. Id. Faced with a duplicative suit, it is within this Court’s discretion to stay or
dismiss the suit before it, allow both federal cases to proceed, or to enjoin the parties from
proceeding in the other suit. Smith v. SEC, 129 F.3d 356, 361 (6th Cir.1997).
All relevant factors suggest this action should be dismissed. In determining whether an
action is duplicative of another, district courts are afforded “a great deal of latitude and
discretion,” but generally, a suit is duplicative if the “claims, parties, and available relief do not
significantly differ between the two actions.” Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223
(7th Cir.1993) (citing Ridge Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc., 572
F.Supp. 1210, 1213 (N.D.Ill.1983)). This Court acknowledges that the first complaint filed was
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amended to exclude some defendants, however, it is “nonfatal to that plea [of the other suit
pending] that the parties are not identical,” as “they need not be if their interests are aligned.”
Curtis v. Citibank, 226 F.3d 133, 138 and 215 (2d Cir.2000). The defendants and interests that
remain in the amended New York case, like the complaint before this Court, all address the same
allegedly unconstitutional actions that resulted in Plaintiff’s pending indictment in the Western
District of New York. Thus, the two matters are duplicative.
IV. Improper Venue
Even if this case were not duplicative, Plaintiff has not established why venue is proper
in this Court. At the time he filed both complaints, he was physically located within the
jurisdictional reach of the Western District of New York. While a court’s personal jurisdiction
over a pre-trial detainee’s custodian is relevant for habeas purposes, see Braden v. 30th Judicial
Circuit Ct. of Ky., 410 U.S. 484, 494-95 (1973) ("[t]he writ of habeas corpus does not act upon
the prisoner who seeks relief, but upon the person who holds him in what is alleged to be
unlawful custody"), the proper venue for a civil action is not determined on that basis.
Plaintiff alleges the defendants violated his civil rights pursuant to 42 U.S.C. § 1983. For
a civil action based on federal question jurisdiction, proper venue is determined by where “any
defendant resides” or “in which a substantial part of the events or omissions giving rise to the
claim occurred.” 28 U.S.C. § 1391(b). The majority of defendants identified by the Plaintiff are
located in several cities in Western New York as well as, Atlanta, Georgia; St. Louis, Missouri;
North Carolina; Illinois; and, Toronto, Canada. Moreover, the events involving these defendants
occurred within the locations where the defendants reside. Because Plaintiff has already filed
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this matter in a court which has jurisdiction over several defendants named in this action and
locations in which relevant events occurred, there is no basis upon which this Court could enjoin
the pending New York action based on Ohio as the proper venue.1
Plaintiff has not established any basis upon which this Court should continue to entertain
this action. Accordingly, the case is dismissed as duplicative of pending Case No. 1:13cv01106
in the Western District of New York, or, in the alternative, for improper venue.
V. Conclusion
Based on the foregoing, Plaintiff’s three Motions for Appointment of Counsel (ECF Nos.
3, 9, 12) and Motion to Proceed In Forma Pauperis (ECF No. 2) are denied as moot and the
Complaint 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.2
IT IS SO ORDERED.

July 29, 2014
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

1

Although Plaintiff names an automobile dealer in Ohio and two unnamed Willoughby
Hills, Ohio, police officers as defendants, the issues surrounding Plaintiff's claims against these
parties address the heart of his pending criminal case. To the extent these claims challenge the
constitutionality of Plaintiff's confinement, Plaintiff has improperly raised them in a civil rights
suit. Only a habeas corpus petition can test the legality or duration of confinement. See Badea v.
Cox, 931 F .2d 573, 574 (9th Cir.1991); Okoro v. Scibana, No. 99-1322, 1999 WL 1252871, at
*2 (6th Cir. Dec. 15,1999)), cert. dismissed, 530 U.S. 1227 (2000).
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28 U.S.C. § 1915(a)(3) provides: “An appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good faith.”
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