Harper v. Fifth District Court of Appeals et al

Filing 13

ORDER that 11 Plaintiff's Objections to the Report and Recommendation are DENIED; The REPORT AND RECOMMENDATION 6 is ADOPTED and AFFIRMED; This action is hereby DISMISSED. Signed by Judge Gregory L Frost on 5/2/12. (sem1)

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

HENRY N. HARPER, A638-859
Plaintiff,
vs.

Civil Action 2:11-cv-1116
Judge Frost
Magistrate Judge King

FIFTH DISTRICT COURT OF APPEALS,
et al.,
Defendants.

OPINION AND ORDER
On December 19, 2011, the United States Magistrate Judge
recommended that this action be dismissed.
Doc. No. 6.

This matter is

Report and Recommendation,

now before the Court on plaintiff’s

objections to that recommendation. Motion to Object to Magistrate’s
Report

and

objections.

Recommendation,
Defendants’

Doc.

No.

Memorandum

11.
in

Defendants

Opposition

Objections to Report and Recommendation, Doc. No. 12.
consider the matter de novo.

to

oppose

the

Plaintiff’s

The Court will

See 28 U.S.C. §636(b); Fed. R. Civ. P.

72(b).
The Complaint, Doc. No. 5, names as defendants the Ohio Fifth
District Court of Appeals and three judges of that court who “affirmed
the Trial Court’s verdict on inconsient [sic] and incorrect information
and then published this information on the Westlaw website, therefore
committing Slander and Libel . . . .”

Id., p. 4. Attached to the

Complaint is a copy of the decision about which plaintiff apparently
complains, which affirmed plaintiff’s conviction on various criminal
charges. State of Ohio v. Henry Harper, No. 2010-CA-44, 2011 WL 4011642

(Ohio App. 5 Dist. September 9, 2011).

The Magistrate Judge construed

the Complaint as asking this Court to review the state appellate court
judgment.

Because the Rooker-Feldman doctrine divests “‘lower federal

courts . . . from exercising appellate jurisdiction over final statecourt judgments,’” the Magistrate Judge recommended that the action be
dismissed

for

lack

of

subject

matter

jurisdiction.

Report

and

Recommendation (quoting Marks v. Tennessee, 554 F.3d 619, 622 (6th Cir.
2009).
In his objections, plaintiff complains that the Magistrate
Judge misconstrued the allegations of the Complaint. Rather than seeking
review by this Court of the judgment of the state court, plaintiff
asserts, the “Complaint is addressing the improper conduct of the Fifth
District Court of Appeals by the publication of Slanderious [sic] and
Libelious [sic] material on Westlaw Website.”

Motion to Object to

Magistrate’s Report and Recommendation, p. 2.
This Court rejects plaintiff’s characterization of the claims
asserted in this action.

Although it invokes state tort law, this case

challenges the validity of the judgment of the state court: “. . . the
Fifth District Court of Appeals Judges . . . TOOK the Prosecutor’s Brief
for a fact and made a judgement on false materials, and PUBLISHED it on
Westlaw Website, therefore committing Slander and Libel against the
Plaintiff . . . .”

Id.

Even accepting at face value plaintiff’s

assertion of state law tort claims, those claims cannot proceed in this
Court. Civil claims that, if successful, “would necessarily imply the
invalidity” of a prior conviction or sentence, cannot proceed in federal
courts.

Heck v. Humphrey, 512 U.S. 477, 487 (1994). Because plaintiff’s

success on his claims of libel or slander would necessarily imply the
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invalidity of his state court convictions, this Court concludes that
plaintiff’s action cannot proceed in this Court.
Plaintiff’s objections to the Report and Recommendation, Doc. No.
11, are DENIED.

The Report and Recommendation, Doc. No. 6, is ADOPTED

AND AFFIRMED.
This action is hereby DISMISSED.

The Clerk is DIRECTED to enter

FINAL JUDGMENT in this case.
Moreover, the Court concludes that an appeal from that judgment
would not be taken in good faith.

See 28 U.S.C. § 1915(a).

/s/

Gregory L. Frost
Gregory L. Frost
United States District Judge

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