Hawk v. City of Athens

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 1-4-10. (ga)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION GARY HAWK, Plaintiff, vs. CITY OF ATHENS, Defendant. OPINION AND ORDER Plaintiff, a state prisoner, claims the right to appeal his c r iminal conviction and seeks to assert in this civil rights action a claim based on the denial of access to the Courts. 2009, the United States Magistrate Judge issued On November 24, a Report and Civil Action 2:09-CV-1058 Judge Smith Magistrate Judge King

Recommendation recommending that the action be dismissed, reasoning that plaintiff's claim under 42 U.S.C. §1983 cannot proceed so long as his underlying criminal conviction remains. Report and Recommendation, Doc. No. 4. b efore See Heck v. Humphrey, 512 U.S. 477 (1994).1 the Court on plaintiff's objections to This matter is now that Report and See

Recommendation, Doc. No. 6, which the Court will consider de novo. 28 U.S.C. §636(b).

In his objections, plaintiff disagrees with the reasoning of the Magistrate Judge and argues that his request for damages in this action does not violate Heck. "... I seek monetary damages, and ... see

Plaintiff's prior habeas corpus action in this Court, in which plaintiff challenged his underlying criminal conviction based on, inter alia, the alleged denial of his right to appeal, was dismissed as untimely. Hawk v. Warden Noble Correctional Institution, 2:06-CV-707.

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the minimal and full purpose of this action [is] to be granted a[n] order by this honorable court demanding the defendant to grant access to me by way of appeal." Objection, at 1, Doc. No. 6. One of the cases

cited by plaintiff in support of this assertion, Morris v. Wolfe, 2:06CV-324 (S.D. Ohio 2008), was a case in which this Court considered a similar claim in a habeas corpus action. That case, therefore, actually supports the reasoning of the Magistrate Judge. The other cases cited

by plaintiff, Thompson v. Choinski, 525 F.3d 205 (2nd Cir. 2008); Carter v. Schotten, 70 Ohio St.3d 89 (1994), involve claims of inadequacy of prison law libraries and other conditions of confinement. These cases

cannot be construed as standing for the proposition that the denial of a prisoner's right to appeal his criminal conviction does not sound in habeas corpus. In any event, the only defendant named in the Complaint is the City of Athens which plaintiff alleges, "operated as the Court of Appeals and Common Pleas. ..." Complaint, at 1, Doc. No. 3. To the

c o n t rary, Ohio courts are arms of the State of Ohio and not of local governments such as cities. 1997). Mumford v. Basinski, 105 F.3d 264 (6th Cir.

As agencies of the State of Ohio, the courts of this state are

vested with the immunity from suit in federal courts conferred by the Eleventh Amendment to the United States Constitution. Id. For this

reason, too, plaintiff's action under §1983 cannot proceed. WHEREUPON plaintiff's objections to the Report and

Recommendation are DENIED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED for lack of subject matter

jurisdiction and for failure to state a claim upon which relief can be 2

granted. The Clerk shall enter FINAL JUDGMENT.

s/George C. Smith George C. Smith, Judge United States District Court

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