Heru v. State of Ohio Inc. et al

Filing 5

Memorandum Opinion and Order: Plaintiff's claims against the State of Ohio, the Tuscarawas County Court of Common Pleas, the Tuscarawas County Commissioners, the Tuscarawas County Prosecutor's Office, Judge Elizabeth L. Thomakos, Ass istant Prosecutor David Hipp, Prosecutor Ryan Styer, Detective Scott Ballentine, ODRC Religious Services Administrator Michael Davis, ODRC Chief Inspector, Clerk of Court Jeanne Stephens, and Public Defender Matthew Petit are dismissed pursuant to 28 U.S.C. Section 1915(e). Pursuant to 28 U.S.C. Section 1915(a)(3), an appeal from this decision could not be taken in good faith. Plaintiff's Freedom of Religion claims against Belmont Correctional Institution warden, Mary Potter, and Belmont Correctional Institution chaplain, Berger, are transferred to the United States District Court for the Southern District of Ohio. (Related Doc. No. 1 , 4 ). Judge Sara Lioi on 6/2/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SAKHU MAA TEM HERU, aka
SEKOU MUATA IMANI,
PLAINTIFF,

vs.
STATE OF OHIO, et al.,
DEFENDANTS.

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CASE NO. 5:17cv00247

JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER

Pro se plaintiff Sakhu Maa Tem Heru aka Sekou Muata Imani filed this action against the
State of Ohio, the Tuscarawas County Court of Common Pleas, the Tuscarawas County
Commissioners, the Tuscarawas County Prosecutor’s Office, and Judge Elizabeth L. Thomakos.
Plaintiff contends that he is removing this case from state court, citing diversity of citizenship, the
Alien Tort Claims Act 28 U.S.C. §1350, and Federal Civil Procedure Rules 12(b) and 60(b), as
the basis for federal court jurisdiction. Plaintiff appears to challenge a 2008 criminal conviction in
the Tuscarawas County Court of Common Pleas. He asserts claims for genocide, denationalization,
unlawful arrest, arbitrary detention, false imprisonment, kidnaping, torture, and cruel and unusual
punishment, and seeks monetary damages.
Plaintiff filed an amended complaint on April 5, 2017, which appears to supplement, rather
than supersede, his original complaint. (Doc. No. 4.) He continues to claim that this case is a
removed state court action, and cites the Alien Tort Claims Act and diversity of citizenship as the
basis for federal court jurisdiction. He appears to continue to challenge his 2008 criminal

conviction, and adds claims for violation of his First Amendment right to Freedom of Religion by
Belmont Correctional Institution officials. In the amended complaint, plaintiff adds defendants:
Tuscarawas County Assistant Prosecutor David Hipp, Tuscarawas County Prosecutor Ryan Styer,
Tuscarawas County Sheriff’s Detective Scott Ballentine, Tuscarawas County Court of Common
Pleas Clerk of Court Jeanne Stephens, Tuscarawas County Public Defender Matthew Petit, Ohio
Department of Rehabilitation and Correction (“ODRC”) Religious Services Administrator
Michael Davis, the ODRC Chief Inspector, the Belmont Correctional Institution Warden Mary
Potter, and the Belmont Correctional Institution Chaplain Berger.
A.

Background

Plaintiff’s complaint and amended complaint are largely incomprehensible. They are
composed almost entirely of meaningless rhetoric, with random citations to various legal and nonlegal sources. Plaintiff states that he is an indigenous Native American with Olmec, Ute, Cherokee,
and Blackfoot ancestry, and also claims “free Moorish” ancestry. Plaintiff claims that he “declared
his inalienable right as an indigenous person to a status separate and distinct from the 14th
Amendment corporate citizen.” (Doc. No. 1 at 51). He also indicates that he exercised his right to
expatriation by filing such a declaration with the Tuscarawas County Court of Common Pleas
Clerk of Court, the Ohio Governor, the Ohio Secretary of State and the Ohio Attorney General.
He sent a document to some or all of the defendants, and instructed them to rebut the document
word for word, or it will be considered to be admitted. The defendants did not respond. Plaintiff
appears to claim that, based on his indigenous status and the defendants’ failure to respond to his
document, the Tuscarawas County Court of Common Pleas lacked subject matter jurisdiction to

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All references are to page numbers generated by the Court’s electronic filing system.
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proceed with his criminal prosecution in case no. “2007 01 0145” which he contends voids his
conviction. Plaintiff also alleges that: he was denied a fair trial and appeal, the right to discovery,
the right to counsel, the right of self-representation, the right to a suppression hearing, the right to
compulsory process to obtain witnesses, the right to be free of fraud on the court, the right to Brady
Evidence, the right to be free from unreasonable searches and seizures, the right to be free of
warrants or indictments without probable cause, the right to a grand jury, the right to contract rights
under the Uniform Commercial Code, the right to be free of genocide, the right to travel, and the
right to access to the courts.
In his amended complaint, plaintiff contends that Belmont Correctional Institution officials
interfered with the practice of his religion. Plaintiff claims that he practices Moorish Kemetism.
He states that he originally received permission by prison officials to wear a fez and wore it for
several months, but was not permitted to wear a fez on a visit in December 2016, and was
prohibited by Captain Rizzo from wearing it to the dining hall in January 2017. Plaintiff contends
that inmates of other religions are permitted to wear their religious headgear. He also alleges he
was denied kosher meals. Finally, plaintiff alleges the Belmont Correctional Institution does not
provide religions services for Moorish Kemetic practitioners.
B.

Standard of Review

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 Court is required to dismiss
an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief
can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319
(1989); Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Sistrunk v. City of Strongsville,
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99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised
on an indisputably meritless legal theory or when the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted
when it lacks plausibility in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007).
A pleading must contain a short and plain statement of the claim showing that the pleader
is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the assumption
that all the allegations in the complaint are true. Bell Atl. Corp., 550 U.S. at 555. The plaintiff is
not required to include detailed factual allegations, but must provide more than an unadorned, “thedefendant-unlawfully-harmed-me” accusation. Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause of action will not meet this pleading
standard. Id. In reviewing a complaint, the Court must construe the pleading in the light most
favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
C.

Analysis

As an initial matter, plaintiff did not (and could not) remove his 2007 criminal case from
state court. A defendant may remove “any civil action brought in a state court of which the district
courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The notice of removal
of a civil action or proceeding must be filed within thirty days after the receipt by the Defendant
through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based. 28 U.S.C. § 1446 (b). First, plaintiff did not file a notice
of removal, he filed a new civil action. Second, only civil cases are removable. Plaintiff indicates
he is attempting to remove a criminal case. Finally, the criminal case plaintiff claims he is
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removing is closed. In April 2008, a jury found him guilty of two counts of trafficking in drugs
and two counts of aggravated trafficking in drugs. An Ohio appellate court affirmed his conviction
in May 2013. The Ohio Supreme Court declined jurisdiction in January 2014. Even if the case
were removable, the time to do so would have expired.
This action can only be described as a new civil rights action. Plaintiff, however, cannot
file a civil rights action to attack his conviction. In order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, plaintiff must prove that the
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 under 28 U.S.C. § 2254. Heck v. Humphrey,
512 U.S. 477, 486 (1994). A claim for damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable in a civil rights action. Therefore, when a state
prisoner seeks damages in a civil rights action, the Court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. If it
would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated. If, however, the Court determines that the plaintiff's action,
even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
In this case, plaintiff claims that his conviction is void, and asserts that he was denied a
fair trial and appeal, the right to discovery, the right to counsel, the right of self-representation, the
right to a suppression hearing, the right to compulsory process to obtain witnesses, the right to be
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free of fraud on the court, the right to Brady evidence, the right to be free from unreasonable
searches and seizures, the right to be free of warrants or indictments without probable cause, and
the right to a grand jury. These claims, if found to have merit by this Court would call into question
the validity of his conviction. He has not alleged that his conviction has been overturned. Indeed,
he is incarcerated at the Belmont Correctional Institution serving a prison sentence for this
conviction, and cannot assert these claims in this civil rights action.
Plaintiff’s amended complaint adds claims pertaining to the practice of his religion at the
Belmont Correctional Institution. He claims that he was denied the ability to wear his fez on two
occasions, was denied kosher meals, and was denied organized religious services as a Moorish
Kemetic. He names the Belmont Correctional Institution warden and chaplain, as well as the
ODRC Chief Inspector and ODRC Religious Services Administrator. While the Court conceivably
may be able to construe a possible claim against the institution’s warden and chaplain, plaintiff
does not allege any facts to suggest the basis for his claims against the ODRC officials. Plaintiff
cannot establish the liability of any defendant absent a clear showing that the defendant was
personally involved in the activities that form the basis of the alleged unconstitutional behavior.
Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381
(6th Cir. Sept. 20, 1995). The complaint simply contains no facts reasonably associating these
defendants to any of the claims set forth by plaintiff. Plaintiff’s claims against the ODRC Chief
Inspector and ODRC Religious Services Administrator are dismissed.

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Finally, this Court is not the proper venue for plaintiff’s claims against the Belmont
Correctional Institution warden and chaplain for denial of his First Amendment right to Freedom
of Religion. A civil action may be brought only in: (1) a judicial district where any defendant
resides, if all defendants reside in the state in which the Court is located, (2) a judicial district in
which a substantial part of the events or omissions giving rise to the claim occurred, or (3) if there
is no district in which an action may otherwise be brought as provided by this section, any judicial
district in which any defendant is subject to the Court’s personal jurisdiction with respect to the
action brought. 28 U.S.C. § 1391(b). Here, the remaining two defendants reside in the Southern
District of Ohio. The events giving rise to the claims against them occurred in the Southern District
of Ohio. The Southern District of Ohio is the proper venue for these claims.
D.

Conclusion

For all the foregoing reasons, plaintiff’s claims against the State of Ohio, the Tuscarawas
County Court of Common Pleas, the Tuscarawas County Commissioners, the Tuscarawas County
Prosecutor’s Office, Judge Elizabeth L. Thomakos, Assistant Prosecutor David Hipp, Prosecutor
Ryan Styer, Detective Scott Ballentine, ODRC Religious Services Administrator Michael Davis,
ODRC Chief Inspector, Clerk of Court Jeanne Stephens, and Public Defender Matthew Petit are
dismissed pursuant to 28 U.S.C. § 1915(e). Pursuant to 28 U.S.C. § 1915(a)(3), an appeal from
this decision could not be taken in good faith.

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Plaintiff’s Freedom of Religion claims against Belmont Correctional Institution warden,
Mary Potter, and Belmont Correctional Institution chaplain, Berger, are transferred to the United
States District Court for the Southern District of Ohio.
IT IS SO ORDERED.

Dated: June 2, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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