Nixon v. Gibson et al
Filing
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Memorandum Opinion and Order dismissing this matter. An appeal may not be taken in good faith. Judge John R. Adams on 10/17/18. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID A. NIXON
Plaintiff,
v.
HANK T. GIBSON, et al.,
Defendants.
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CASE NO. 5:18 CV 1429
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
AND ORDER
Pro se Plaintiff David A. Nixon filed this action against the Portage County Adult Probation
Department and Chief Probation Officer Hank T. Gibson. In the Complaint, Plaintiff claims he was
arrested on two capias warrants for failing to appear for two probation revocation hearings. He
contends he should not have had to appear in court for a probation violation and therefore should not
have been arrested for failing to appear because his probation was stayed by the court at the time the
alleged violation occurred. He claims the Defendants violated his Fifth, Eighth and Fourteenth
Amendment rights. He seeks $ 25,000.00 in damages.
I.
Background
Plaintiff’s Complaint is very brief. He alleges he is on probation and Gibson is his probation
officer.
He contends he was arrested in March 2018 on two warrants for failure to appear at
probation revocation hearings. Plaintiff alleges he should not have had to appear in court to defend
probation violation charges because his probation had been stayed at the time the warrants were
issued. He indicates he was incarcerated for sixty days before he received a court hearing. He
contends that at that hearing, the judge reinstated his probation and released him. He claims he was
denied due process and subjected to cruel and unusual punishment.
II.
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 (6th Cir. 1990); Sistrunk v. City of Strongsville, 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. Twombly, 550 U.S. at 555. The Plaintiff is not
required to include detailed factual allegations, but must provide more than “an unadorned, the
Defendant 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
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favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).
III.
Analysis
Plaintiff claims he was denied due process and subjected to cruel and unusual punishment.
It is not clear which actions violated his constitutional rights. To the extent he is claiming the
probation violation charge itself violated his rights, his claim is without merit. There is no
constitutional guarantee that only the guilty will be arrested or charged. Baker v. McCollan, 443
U.S. 137, 145 (1979). Instead, due process is satisfied when the accused is given notice of the
charges and an opportunity to be heard. Garcia v. Fed. Nat. Mortg. Ass’n, 782 F.3d 736, 741 (6th
Cir. 2015). Plaintiff was given notice and two opportunities to be heard; however, he did not appear
in court for those probation revocation hearings. If, indeed, Plaintiff had a valid argument that he
could not violate probation because it was stayed, those probation revocation hearings provided him
with the opportunity to present those defenses. He cannot claim he was denied due process or
subjected to cruel and unusual punishment when he did not appear for the hearings provided to him.
To the extent Plaintiff is claiming he was denied due process and subjected to cruel and usual
punishment because he was arrested on the capias warrants and held in jail for six months pending
another revocation hearing, his claim is still without merit. Again, there is no guarantee that only
the guilty will be arrested, Baker, 443 U.S. at 145, and Plaintiff was given notice and an opportunity
to be heard at the revocation hearing. He provides no allegations suggesting the reason why he was
held in jail for that period of time; however, on the face of the pleading there is nothing that suggests
Plaintiff was subjected to any type of extreme deprivation that would compromise his health or
safety. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). Plaintiff fails to allege sufficient facts to
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suggest this last hearing violated his right to due process or subjected him to cruel and unusual
punishment.
IV.
Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). 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.1
IT IS SO ORDERED.
Date: October 17, 2018
/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is
not taken in good faith.
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