Suber v. Maus

Filing 12

ORDER AND SUPPLEMENTAL REPORT AND RECOMMENDATION - IT IS THEREFORE ORDERED THAT: Plaintiffs motion to amend the complaint 10 is GRANTED. IT IS THEREFORE RECOMMENDED THAT: 1. The Court ADOPT in its entirety the March 26, 2018 Report and Recommenda tion (Doc. 6), recommending that plaintiffs Declaratory Judgment Act claim be DISMISSED with prejudice for failure to state a claim upon which relief can be granted. 2. The Court DISMISS without prejudice plaintiffs claims under 42 U.S.C. § 7; 1985 and 1986, the sole federal claims presented in plaintiffs supplemental amended complaint, for failure to state a claim upon which relief can be granted. 3. The Court DECLINE to exercise supplemental jurisdiction over plaintiffs remaining sta te-law claims and that the Court DISMISS these claims without prejudice. 4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). ( Objections to R&R due by 5/9/2018). Signed by Magistrate Judge Stephanie K. Bowman on 04/25/2018. (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
IRA SUBER,
Plaintiff,

Case No. 1:18-cv-143
Dlott, J.
Bowman, M.J.

vs
JAMES F. MAUS,
Defendant.

ORDER AND SUPPLEMENTAL
REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Federal Correctional Institute in Ashland, Kentucky (FPC
Ashland), filed a “Verified Complaint for Declaratory Judgment,” pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. § 2201. (Doc. 1). Plaintiff named James F. Maus, a
federal public defender who allegedly represented plaintiff in a criminal matter in this Court, as
the sole defendant. (See id., at PageID 1-2). On March 26, 2018, the undersigned issued a
Report and Recommendation, recommending that the complaint be dismissed under the
screening requirements of the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b)(1), for failure to state a claim upon which relief may be granted. (Doc. 6). The
undersigned found that plaintiff sought to challenge the validity of his criminal conviction, which
is an impermissible use of the Declaratory Judgment Act. See Forsythe v. State of Ohio, 333
F.2d 678, 679 (6th Cir. 1964). On April 23, 2018, 1 plaintiff filed an objection (Doc. 11) to the
March 26, 2018, Report and Recommendation, which is currently pending before the District
Court. This matter is now before the undersigned on plaintiff’s April 16, 2018 motion to file an
amended complaint. (Doc. 10).
A.

Plaintiff’s Motion to File an Amended Complaint

Plaintiff’s motion to amend the complaint (Doc. 10) is GRANTED. See LaFountain v.
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Plaintiff sought and was granted an extension of time in which to file his objection. (See April 6, 2018, Notational
Order, granting plaintiff until April 23, 2018, in which to file his objection).

Harry, 716 F.3d 944, 951 (6th Cir. 2013) (permitting a district court to allow a plaintiff to amend
a complaint even when the complaint is subject to dismissal under the PLRA). Because the
amended complaint incorporates by reference allegations from the initial complaint and refers to
an exhibit filed with the initial complaint (see Doc. 10-1, at PageID 39), the undersigned
understands the amended complaint to be a supplemental amended complaint that adds new
claims to the lawsuit. Plaintiff’s supplemental amended complaint is now subject to a sua sponte
review, in accordance with the standards set forth in detail in the March 26, 2018 Report and
Recommendation (Doc. 6, at PageID 20-22), which are incorporated by reference herein, to
determine whether the supplemental complaint, or any portion of it, should be dismissed because
it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See also 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b).
B.

Screening of Supplemental Amended Complaint

In the supplemental amended complaint (Doc. 10-1), plaintiff seeks to add claims for
monetary damages against Maus under 42 U.S.C. §§ 1985 and 1986, as well as under state-law
theories of fraud, intentional infliction of emotional distress, civil conspiracy, and fraudulent
concealment. (See Doc. 10-1, at PageID 38, 42-46). For the reasons below, the federal claims in
plaintiff’s supplemental amended complaint should be dismissed without prejudice pursuant to
Heck v. Humphrey, 512 U.S. 477 (1994), and the Court should decline to exercise supplemental
jurisdiction over the remaining state-law claims.
Section 1985 prohibits conspiracies to deprive a person of equal protection of the laws.
See Webb v. United States, 789 F.3d 647, 671-72 (6th Cir. 2015). “Section 1986 prohibits the

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aiding and abetting of violations of § 1985 and thus is derivative of § 1985.” Nicolson v. City of
Westlake, 76 F. App’x 626, 629 (6th Cir. 2003) (citing Browder v. Tipton, 630 F.2d 1149, 1155
(6th Cir. 1980)). Plaintiff asserts that Maus, “by conspiring with other known and unknown
actors . . ., deprived [plaintiff] of his right to equal protection of the laws, or of equal privileges
and immunities under the laws by providing [plaintiff] materially false information.” (Doc. 10-1,
at PageID 40-41). Plaintiff alleges that “[b]ut for the materially false statements and information
provided by [Maus], [plaintiff] would have made substantially different decisions regarding his
judicial proceeding, with better results and outcomes for [plaintiff].” (Id., at PageID 40).
Plaintiff has failed to state a cognizable § 1985 claim against Maus. Under Heck v.
Humphrey, 512 U.S. 477 (1994), a prisoner cannot state a cognizable claim for damages under
§ 1985 if a ruling on the claim “would necessarily imply the invalidity of his conviction and
confinement until such time that the conviction is reversed on direct appeal, 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.” Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003)
(citing Heck, 512 U.S. at 486-87).
In his claim under § 1985, plaintiff continues to attack the lawfulness of his conviction.
However, he has not shown that his criminal conviction has been set aside. Therefore, under
Heck, he is barred from bringing a § 1985 claim at this time. See Lanier, 332 F.3d at 1005-06.
Plaintiff’s derivative claim under § 1986 likewise fails to state a claim. See Browder, 630 F.2d at
1155 (stating that there can be no violation of § 1986 without a predicate violation of § 1985).
Because plaintiff has failed to state a cognizable federal claim for relief, the Court should
decline to exercise supplemental jurisdiction over plaintiff’s state-law claims pursuant to 28

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U.S.C. §1367(c)(3).
Accordingly, in sum, it is RECOMMENDED that the Court DISMISS without
prejudice plaintiff’s claims under 42 U.S.C. §§ 1985 and 1986, the sole federal claims presented
in plaintiff’s supplemental amended complaint, for failure to state a claim upon which relief can
be granted. 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b). Moreover, it is RECOMMENDED that the
Court DECLINE to exercise supplemental jurisdiction over plaintiff’s remaining state-law
claims and that the Court DISMISS these claims without prejudice.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s motion to amend the complaint (Doc. 10) is GRANTED.
IT IS THEREFORE RECOMMENDED THAT:

1.

The Court ADOPT in its entirety the March 26, 2018 Report and

Recommendation (Doc. 6), recommending that plaintiff’s Declaratory Judgment Act claim be
DISMISSED with prejudice for failure to state a claim upon which relief can be granted. 28
U.S.C. §§ 1915(e)(2)(B); 1915A(b).
2.

The Court DISMISS without prejudice plaintiff’s claims under 42 U.S.C.

§§ 1985 and 1986, the sole federal claims presented in plaintiff’s supplemental amended
complaint, for failure to state a claim upon which relief can be granted. 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b).
3.

The Court DECLINE to exercise supplemental jurisdiction over plaintiff’s

remaining state-law claims and that the Court DISMISS these claims without prejudice. 28
U.S.C. §1367(c)(3).
4.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
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reasons an appeal of any Order adopting this Report and Recommendation would not be taken in
good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
IRA SUBER,
Plaintiff,

Case No. 1:18-cv-143
Dlott, J.
Bowman, M.J.

vs
JAMES F. MAUS,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after
being served with a copy of those objections. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

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