Mate v. Toledo City of et al

Filing 3

REPORT AND RECOMMENDATION granting 1 MOTION for Leave to Proceed in forma pauperis & recommending that the 2 Complaint be dismissed for failure to state a claim upon which relief can be granted. Signed by Magistrate Judge Terence P Kemp on 9/17/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Winner Dawan Mate,

:

Plaintiff,
v.

:

Case No. 2:12-cv-834

Ohio Rehabilitation and
Correctional, et al.,

:

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

Defendants.

:
REPORT AND RECOMMENDATION

Plaintiff, Winner Dawan Mate, has submitted a complaint and
a request for leave to proceed in forma pauperis.

He qualifies

financially for a waiver of the required filing fee, so the Court
will grant his application to proceed.

However, for the

following reasons, it will recommended that the complaint be
dismissed for failure to state a claim upon which relief can be
granted.
I.

Factual Background

Mr. Mate’s complaint, which names a large number of
defendants, appears to be focused on one particular event: the
imposition of a sentence of post-conviction control by an Ohio
court back in 2006.

According to the complaint, Mr. Mate was

originally sentenced to a prison term in March, 2002.

At that

time, he claims that he was not sentenced to serve a term of
post-release control which would take effect after his release
from prison.

However, when he was released in 2006, post-release

control was imposed.

He claims that such a term was lawful only

if he had been given notice of a new sentencing hearing and only
if such a hearing had been held - and he says that never
happened, although he alleges that a new sentencing entry was
filed in March of 2006 which included a post-release control
term.
After that date, Mr. Mate claims that he has been subjected

to continuous physical restraint for violations of post-release
control.

Among other places, he alleges he has been sent to the

Lucas County Jail, a halfway house, mental health facilities, and
institutions under the control of the Ohio Department of
Rehabilitation and Correction.

He seeks $100,000,000.00 in

damages for the alleged violation of his rights.
II. Legal Standard
The ability to proceed in forma pauperis was established by
Congress through 28 U.S.C. §1915 in order to provide greater
means of access to the judicial system for the indigent.
v. Hernandez, 504 U.S. 25, 31 (1992).

Denton

The statute allows, with

proper showing of financial need, a petitioner to proceed in an
action “without prepayment of fees or security thereof.”

28

U.S.C. §1915(a)(1).
However, 28 U.S.C. §1915(e)(2) requires the Court “to
dismiss the case at any time if the court determines that …(B)
the action or appeal (i) is frivolous or malicious; (ii) fails to
state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such
relief.”

A suit is frivolous if it lacks any arguable foundation

in either fact or law.
(1989).

Neitzke v. Williams, 490 U.S. 319, 325

A complaint fails to state a claim upon which relief can

be granted, if, after accepting as true all well-pleaded
allegations of the complaint, the allegations do not “raise a
right to relief above the speculative level.”

Bell Atl. Corp v.

Twombly, 550 U.S. 544, 555 (2007).
The Court is mindful that pro se complaints are to be
construed liberally in favor of the pro se party.

Haines v.

Kerner, 404 U.S. 519 (1972); see also Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991).

It is with these standards in mind

that the Court conducts its initial screening of the complaint
submitted by Mr. Mate.
III.

Discussion

There are a large number of legal problems with Mr. Mate’s
complaint.

Some of the defendants, like the Ohio Department of

Rehabilitation and Correction and the Ohio Adult Parole
Authority, cannot be sued for damages in a federal court because
they are immune from such suits under the Eleventh Amendment to
the United States Constitution.

See Foulks v. Ohio Dept. of

Rehabilitation and Correction, 713 F.2d 1229 (6th Cir. 1983),
and, as more fully discussed below, the statute of limitations
may have run on a number of his claims, including his primary
claim concerning the 2006 sentencing proceedings.

However, the

most significant legal issue raised by the complaint is that Mr.
Mate cannot recover damages for either being placed illegally on
post-release control or for having been accused of violating that
control unless and until he obtains a decision either from a
state court or from this Court (which could only occur in a
habeas corpus case) that the post-release control is invalid.

He

has not alleged that this has occurred, and his damage claims
cannot be decided by this court in an action brought under 42
U.S.C. §1983.
In Heck v. Humphrey, 512 U.S. 477 (1994), the United States
Supreme Court held that no §1983 cause of action for money
damages arising out of an allegedly unlawful incarceration exists
unless and until the underlying sentence or conviction is legally
eliminated.

Under Heck, a §1983 plaintiff "must prove that a

conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by
a federal court's issuance of a writ of habeas corpus" before any
suit for money damages relating to that sentence or conviction
can be commenced.

Id. at 486-87.

If a judgment in favor of the

plaintiff would necessarily imply that a conviction or sentence
was invalid, the court is to dismiss the action unless the
conviction or sentence has been previously invalidated.

Id.

Consistent with Heck, the Court, when faced with a complaint
like Mr. Mate’s must ask this question: if Mr. Mate won this case
by proving that he had been unconstitutionally placed on postrelease control or subjected to unlawful proceedings to revoke
that status, would that call into question the validity of either
his underlying conviction or his sentence?

The answer to that

question is clearly yes.
There are really two parts to Mr. Mate’s claim, as the Court
reads the complaint.

One type of governmental action which Mr.

Mate appears to be complaining about is a series of revocations
of his post-release control.

Although his complaint is not

completely clear on this issue, he seems to be saying that false
charges have been filed against him, or that he was subjected to
improper procedures which led to his being sent back to jail or
to some other type of custodial facility such as a halfway house.
The falsity of the charges appears to be based on the fact that,
in his view, Mr. Mate never was legally subject to post-release
control, so that any claim that he violated its restrictions
would necessarily be false.

But Mr. Mate has not claimed that he

ever challenged, in state court or elsewhere, any of these
actions or the underlying sentence of post-release control.
Additionally, he does not allege that, as result of any such
challenge, he has succeeded in getting any particular revocation
of post-release control, or the post-release control itself, set
aside.

If this Court were to find that his post-release control

had ever been illegally revoked, that ruling would call into
question the validity of an underlying state criminal decision not a conviction, perhaps, but either a determination by the
Parole Authority which led to the imposition of a sentence, or
the sentencing entry filed in 2006 - and that is exactly the type
of decision which Heck v. Humphrey forbids.
Other federal courts which have been faced with the same
issue have reached the same conclusion.

For example, in Crow v.

Penry, 102 F.3d 1086 (10th Cir. 1996), the plaintiff was serving
a parole term and, after he was arrested and sent to prison for a
parole violation, sued for damages under §1983.

The Court of

Appeals dismissed that claim because the Supreme Court’s decision
in Heck “applies to proceedings that call into question the fact
or duration of parole or probation.”
1087.

Crow v. Penry, 102 F.3d at

The Court of Appeals for the Eleventh Circuit decided a

case, Vickers v. Donahue, 137 Fed. Appx. 285 (11th Cir. June 28,
2005) the same way.

There, the plaintiff claimed that his

probation officer stated falsely that he had violated his
community control, and that those false statements led to his
being sent back to jail.

The court noted the plaintiff’s claim,

“if successful, would completely invalidate two of the grounds
for which his community control was revoked in the first place
without first having had a ‘favorable termination’ as required
under Heck.”

Vickers v. Donahue, 137 Fed. Appx. at 290.

are many other decisions just like these.

There

See, e.g., West v.

Eskes, 2008 WL 4283056, *6 (W.D.Wash. Sept. 17, 2008), which held
that a claim just like Mr. Mate’s had to be dismissed because
“plaintiff has not established that his probation revocations and
re-incarceration has been invalidated on appeal, by a habeas
petition, or through some similar, favorable proceeding.”
Neither has Mr. Mate.

Unless and until he obtains a ruling from

a state or federal court in a habeas-type proceeding that any of
his revocations were invalid (and there would be a host of
problems with any federal habeas corpus action he might file, not
the least of which would be the one-year statute of limitations
which applies in such cases, see 28 U.S.C. §2244(d)), he cannot
sue the people involved for damages on the grounds that they
violated his constitutional rights when they either imposed or
revoked his post-release control.
It may be, of course, that Mr. Mate is no longer serving any
of the sentences he received when his post-release control was

revoked, and perhaps he is no longer subject to post-release
control.

He might argue that, because he is no longer able to

ask to have those sentences invalidated because he has finished
serving them, Heck should not apply.

However, the Court of

Appeals for the Sixth Circuit has rejected that exact argument.
In Powers v. Hamilton Co. Public Defender Comm’n, 501 F.3d 592,
602-03 (6th Cir. 2007), the Court of Appeals concluded that while
“Heck's favorable-termination requirement cannot be imposed
against §1983 plaintiffs who lack a habeas option for the
vindication of their federal rights,” it could be imposed on
prisoners who “could have sought and obtained habeas review while
still in prison but failed to do so.”
Ohio allows persons who have had their post-release control
revoked to challenge that action.

As this Court has said,

“claims challenging parole revocations may be raised in a state
habeas corpus petition pursuant to Ohio Rev.Code §2725.01 et
seq., or in a state writ of mandamus pursuant to Ohio Rev.Code
§2731.01 et seq.”

Boswell v. Warden, Lebanon Correctional Inst.,

2008 WL 4411416, *9 (S.D. Ohio Sept. 29, 2008).

Mr. Mate could

have challenged any of the revocations he complains about, and,
if he was right about the falsity of the accusations which led to
his being sent back to jail, he could have had those revocations
set aside.

Moreover, if his primary claim is that he never

should have been on post-release control in the first place, he
has had many opportunities since it was imposed back in 2006 to
challenge its legality, including directly appealing the
sentencing entry.

Even if someone serves a short sentence for

violating post-release control and cannot reasonably challenge
that sentence, the fact that the person remains on such control
after being released from custody allows for a challenge to the
post-release control itself.

As the court said in Williams v.

Caruso, 2009 WL 960198, *11 (E.D. Mich. April 6, 2009), about a
plaintiff who complained about having his parole revoked but who

had finished serving his sentence for the violation, “[w]hile not
presently in custody as a result of the parole violation,
plaintiff is still subject to parole and presumably will be
subject to parole for a period of time. Applying that test to the
present situation, ... plaintiff would be eligible for habeas
jurisdiction and Heck... bars the present suit.”

The same

reasoning applies here.
There are other reasons why Mr. Mate’s complaint fails to
state a claim.

If Heck did not bar his challenge to the

imposition of post-release control in 2006, then that claim
accrued in 2006 when the allegedly illegal sentence was imposed.
The statute of limitations for cases filed under 42 U.S.C. §1983
is two years.
1989).

Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.

Further, even though the allegedly illegal custody

continued beyond the date that the sentence was imposed, any
action taken by the defendants which was based on the fact that
Mr. Mate was on post-release control (even if that control was
not lawfully imposed) stemmed directly from the March, 2006
imposition of that sentence.

When that is the case, the statute

of limitations runs from the date the sentence was imposed; “[a]
continuing violation in a §1983 action occurs [only] when there
are continued unlawful acts, not by continued ill effects from
the original violation.”

Kovacic v. Cuyahoga County Dep't of

Children and Family Services, 606 F.3d 301, 308 (6th Cir. 2010).
From this discussion, it is evident that the complaint does
not state a plausible claim for relief.

Because that is so, it

must be dismissed under 28 U.S.C. §1915(e)(2).
IV.

Recommended Disposition and Order

Plaintiff’s application for leave to proceed in forma
pauperis (#1) is granted.

Further, it is recommended that the

complaint be dismissed under 28 U.S.C. §1915(e)(2) for failure to
state a claim upon which relief can be granted.
V.

Procedure on Objections

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a waiver
of the right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge