Hammond v. Taylor et al

Filing 7

REPORT AND RECOMMENDATION that the complaint be dismissed re 5 Complaint filed by Gary D Hammond. Objections to R&R due by 5/11/2009. Signed by Magistrate Judge Mark R. Abel on 4/24/09. (rew )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Gary D. Hammond, Plaintiff v. U.S. Attorney Jeffrey A. Taylor, et al., Defendants

: : : : : Civil Action 2:09-cv-305 Judge Sargus Magistrate Judge Abel

INITIAL SCREENING REPORT AND RECOMMENDATION Plaintiff Gary D. Hammond brings this civil rights action under 42 U.S.C. §1983. This matter is before the Magistrate Judge for a Report and Recommendation on initial screening of the complaint pursuant to 28 U.S.C. §1915A(a) and (b)1 and 42 U.S.C.

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The full text of §1915A reads: (a) Screening.--The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for Dismissal.--On review the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

§1997e(c) to identify cognizable claims, and to dismiss the complaint, or any portion of it, which 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. The Magistrate Judge finds that the complaint fails to state a claim upon which relief may be granted and therefore RECOMMENDS dismissal of the complaint. The complaint alleges that on May 21, 2008, the Crooksville Police Department came to Hammond's door without an arrest warrant. The police followed Hammond into his house and slammed him against the wall. He was taken outside and arrested. On June 13, 2008, Hammond notified the prosecutor that the statement of the witness was missing, but the prosecutor decided to proceed with the prosecution. On September 12, 2008, plaintiff's court-appointed attorney sought to have all charges dismissed against him. On October 30, 2008, plaintiff pleaded no contest so as not to spend anymore time in jail. The complaint further alleges that on April 17, 2009, the United States District Court for the Southern District of Ohio dismissed his lawsuit based on the incident because of caselaw of the Sixth Circuit and the United States Supreme Court. Plaintiff (2) seeks monetary relief from a defendant who is immune from such relief. (c) Definition.--As used in this section, the term "prisoner" means any person incarcerated or detained in any facility who is accused of, convicted of, sentence for, or adjudicated delinquent for, violations of criminal law or terms and conditions of parole, probation, pretrial release, or diversionary program. 2

brings this action against the Sixth Circuit and the United States Supreme Court because of their previous holdings, including Heck v. Humphrey, 512 U.S. 477 (1994), which were the bases for this Court's dismissal of his action. Plaintiff seeks judicial review in the Supreme Court to determine if the Sixth Circuit caselaw and the holding of Heck v. Humphrey violate his rights under the Fourth Amendment. When considering whether a complaint fails to state a claim under Rule 12(b)(6), Federal Rules of Civil Procedure, a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley v. Gibson, 355 U.S. 41, 47 (1957). A civil "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. at 45-46; Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990). Moreover, pro se prisoner complaints must be liberally construed. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Plaintiff's complaint fails to state a claim under 42 U.S.C. §1983. If plaintiff seeks to challenge the Court's decision in case number 02:08-cv-541, the proper procedure for doing so was to appeal that decision. The Sixth Circuit and United States Supreme Court cannot be held liable for previous holdings made by those Courts.

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Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED for failure to state a claim under 42 U.S.C. §1983. IT IS FURTHER ORDERED that the United States Marshal serve upon each defendant named in part III, B and C of the form civil rights complaint a summons, a copy of the complaint, and a copy of this Order. Defendants are not required to answer the complaint unless later ordered to do so by the Court. The Clerk of Court is DIRECTED to mail a copy of this Order to the Attorney General of Ohio, Corrections Litigation Section, 150 East Gay St., 16th Floor, Columbus, OH 43215. If any party objects to this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). s/Mark R. Abel United States Magistrate Judge

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