Suber v. Maus

Filing 6

REPORT AND RECOMMENDATIONS-IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiffs complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 2. 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 4/9/2018. Signed by Magistrate Judge Stephanie K. Bowman on 03/26/2018. (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,
vs
JAMES F. MAUS,
Defendant.

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

Plaintiff, an inmate at the Federal Correctional Institute in Ashland, Kentucky (FPC
Ashland), brings this “Verified Complaint for Declaratory Judgment,” pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. § 2201. (Doc. 1). Plaintiff names James F. Maus, a
federal public defender, who allegedly represented plaintiff in a criminal matter, as the sole
defendant. (See id., at PageID 1-2). Plaintiff has paid the filing fee.
This matter is before the Court for a sua sponte review of the complaint (Doc. 1) to
determine whether the 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 Prison Litigation Reform Act of
1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). The screening
procedures established by § 1915 apply to complaints filed by prisoners against governmental
entities, officials or employees regardless of whether the plaintiff has paid the filing fee, as in
this case, or is proceeding in forma pauperis. See 28 U.S.C. § 1915A(a); Hyland v. Clinton, 3
F. App’x 478, 479 (6th Cir. 2001); Bell v. Rowe, No. 97-4417, 1999 WL 196531, at *1 (6th
Cir. Mar. 22, 1999) (citing McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997));
see also Fleming v. United States, 538 F. App’x 423, 426 (5th Cir. 2013) (per curiam) (citing
Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998)); Miller v. Edminsten, 161 F. App’x

787, 788 (10th Cir. 2006); Lewis v. Estes, No. 00-1304, 2000 WL 1673382, at *1 (8th Cir.
Nov. 8, 2000) (per curiam) (citing McGore and Seventh and Second Circuit Court decisions).
I.

Screening of Complaint
A.

Legal Standard

A complaint may be dismissed as frivolous when the plaintiff cannot make any claim
with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29
(1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no
arguable legal basis when the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action
has no arguable factual basis when the allegations are delusional or rise to the level of the
irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898
F.2d at 1199. The Court need not accept as true factual allegations that are “fantastic or
delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th
Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at

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470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to
state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
B.

Plaintiff’s Complaint

Although styled as a declaratory judgment action, plaintiff’s complaint raises claims
concerning “a criminal matter in this court in Case No. 1:13-CR-019,” in which plaintiff alleges
that defendant represented him. (Doc. 1, at PageID 4). Plaintiff states that he pleaded guilty in
that matter and was sentenced to “151 months.” (See id., at PageID 2-4).
The Declaratory Judgment Act, 28 U.S.C. § 2201, cannot be used as a substitute for
appeal, habeas corpus, coram nobis, or other remedial procedure. See Forsythe v. State of Ohio,
333 F.2d 678, 679 (6th Cir. 1964); see also, Rivera v. Michigan, No. 1:06-cv-783, 2007 WL
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431025, at *1 (W.D. Mich. Feb. 5, 2007) (citing numerous cases).
Because statements in plaintiff’s complaint make it clear that he is challenging his
conviction in Case No. 1:13-CR-019, 1 plaintiff’s claim is not cognizable in this action and his
complaint should be dismissed. See Forsythe, 333 F.2d at 679; see also Abdel-Whab v. United
States, 175 F. App’x 528, 528 (3d Cir. 2006) (affirming the dismissal of a complaint where the
plaintiff sought a ruling under the Declaratory Judgment Act that his conviction was invalid).
Accordingly, in sum, the complaint (Doc. 1) should be dismissed pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) because plaintiff has failed to state a claim upon which relief
may be granted.
IT IS THEREFORE RECOMMENDED THAT:
1.

The plaintiff’s complaint (Doc. 1) be DISMISSED with prejudice pursuant to 28

U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
2.

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).

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

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Plaintiff alleges, for instance, that he was “coerce[d] . . . to accept the plea deal.” (See Doc. 1, at PageID 4).

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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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