Hawk v. City of Athens

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Gary Hawk. It is RECOMMENDED that this action be dismissed. Objections to R&R due by 12/14/2009. Signed by Magistrate Judge Norah McCann King on 11/23/2009. (sr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION GARY HAWK, Plaintiff, vs. CITY OF ATHENS, Defendant. REPORT AND RECOMMENDATION Plaintiff, a state prisoner, brings this civil action Civil Action 2:09-CV-1058 Judge Smith Magistrate Judge King challenging his criminal conviction and requests, at a minimum, the opportunity to appeal his conviction and sentence in the Athens County Court of Common Pleas. This matter is before the Court for the initial screen of the complaint required by 28 U.S.C. 1915(e), 1915A. An inmate cannot pursue a claim under 42 U.S.C. 1983 that would necessarily imply the invalidity of his criminal conviction or sentence unless that conviction or sentence has previously been invalidated through, for example, the appellate process or proceedings in habeas corpus. Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff in this case previously challenged his conviction in a habeas corpus action instituted in this Court. Hawk v. Warden Noble Correctional Institution, 2:06-CV-707. This Court dismissed that action as untimely, id., Doc. No. 15, and the United States Court of Appeals for the Sixth Circuit affirmed that dismissal. See id., Doc. No. 22. Accordingly, plaintiff's criminal conviction has not been invalidated or vacated. 1983 cannot, therefore, proceed. It is therefore RECOMMENDED that this action be DISMISSED. Plaintiff's claim under If any party seeks review by the District Judge of this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 636(b)(1); F.R. Civ. P. 72(b). 28 U.S.C. Response to objections must be filed F.R. Civ. within ten (10) days after being served with a copy thereof. 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 of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). November 23, 2009 s/Norah McCann King Norah McCann King United States Magistrate Judge 2

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