Davenport v. Cooper et al

Filing 10

REPORT AND RECOMMENDATIONS re 9 Amended Complaint, filed by Carlos Davenport. It is RECOMMENDED that this action be dismissed. Objections to R&R due by 11/3/2014. The Report and Recommendation, ECF. 5 is WITHDRAWN. Signed by Magistrate Judge Norah McCann King on 10/17/2014. (pes1)

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

CARLOS DAVENPORT,
Plaintiff,
Civil Action 2:14-cv-392
Judge Marbley
Magistrate Judge King

vs.

CHRISTOPHER M. COOPER, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this civil rights action
without prepayment of fees or costs.

On August 20, 2014, the Court

granted plaintiff’s motion for leave to proceed in forma pauperis and,
after performing the initial screen of the action required by 28
U.S.C. §§ 1915(e), 1915A, recommended that the action be dismissed for
lack of subject matter jurisdiction and for failure to state a claim
upon which relief can be granted.
Recommendation, ECF 5.
recommendation.

Order and Report and

Plaintiff filed objections to that

Objection, ECF 7.

filed an amended complaint.

On October 10, 2014, plaintiff

Amended Complaint, ECF 9.

In light of the filing of the Amended Complaint, the August 20,
2014 Report and Recommendation, ECF 5, is WITHDRAWN. However, having
performed the initial screen of the Amended Complaint pursuant to 28
U.S.C. §§ 1915(e), 1915A, the Court concludes once again that the
action must be dismissed for lack of subject matter jurisdiction and

for failure to state a claim upon which relief can be granted.
The Amended Complaint names as defendants two lawyers who
represented plaintiff in a state court criminal matter, the prosecutor
in those proceedings, and the presiding trial judge and his bailiff.
The Amended Complaint also names as defendants two additional state
court judges, members of the Ohio Disciplinary Counsel, two Ohio
Assistant Ohio Attorneys General, an Ohio Assistant Public Defender,
and a Columbus Police Officer – all of whom, it is alleged, were
notified of wrongdoing by the trial judge, bailiff, and the attorneys
involved in plaintiff’s state criminal matter, but failed to take
action.

The Amended Complaint seeks monetary damages.

Although the precise nature of plaintiff’s claims in this action
are not entirely clear, plaintiff appears to base some of his claims
on events that allegedly occurred during the course of his state court
criminal proceedings between November 2010 and November 2011.
Plaintiff appears to complain that, in November 2010, the state court
trial judge refused to appoint counsel for plaintiff after he
discharged his retained counsel (who was suspended from the practice
of law in June 2011 for misconduct unrelated to his representation of
plaintiff) and improperly revoked plaintiff’s bond.

Plaintiff also

appears to complain about actions allegedly taken by the judge’s
bailiff and by the lawyer(s) who represented him through his
sentencing in November 2011.

Plaintiff alleges that all the

defendants conspired to deprive plaintiff of his civil rights,
including his right to due process, and engaged in criminal

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misconduct.
To the extent that plaintiff’s claims necessarily imply that his
criminal conviction and confinement are unconstitutional, those claims
cannot proceed under 42 U.S.C. §§ 1983 or 1985 unless his conviction
has been “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal, or ha[s] otherwise been called
into question by a federal court’s issuance of a writ of habeas
corpus.”

Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir.

2003)(citing Heck v. Humphrey, 512 U.S. 477 (1994)).

Thus, challenges

to the fact or duration of one’s confinement, i.e., challenges falling
“within the traditional scope of habeas corpus,” are not cognizable
under either §§ 1983 or 1985.

Lanier, 332 F.3d at 1005-06 (extending

Heck to claims under § 1985).

See also Thomas v. Eby, 481 F.23d 434,

438 (6th Cir. 2007).

The Court notes that plaintiff’s action for a

writ of habeas corpus under 28 U.S.C. § 2254, Davenport v. Warden,
2:14-cv-245 (S.D. Ohio), remains pending in this Court.
Plaintiff also appears to base at least certain claims on
criminal statutes.

See Amended Complaint, pp. 17-18.

As a general

rule, a private right of action cannot be maintained under a criminal
statute.

American Postal Workers Union, AFL-CIO, Detroit Local v.

Independent Postal System of America, Inc., 481 F.2d 90, 93 (6th Cir.
1973).

See also United States v. Oguaju, 76 Fed. Appx. 579, 581 (6th

Cir. July 9, 2003)(there is no private right of action under either 18
U.S.C. §§ 241, 242) (citing Robinson v. Overseas Military Sales Corp.,
21 F.3d 502, 511 (2d Cir. 1994)); Howard v. Ohio Supreme Court, 2008

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WL 148890, *8 (S.D. Ohio January 14, 2008)(18 U.S.C. §245 is a
criminal statute that does not give rise to a civil cause of action).
For a variety of reasons, the Amended Complaint fails to state a
claim for relief under 42 U.S.C. § 1983.

Absolute judicial immunity

operates to protect judges from liability for monetary damages in
connection with actions taken by them in their judicial capacity.
DePiero v. City of Macedonia, 180 F.3d 770, 783 (6th Cir. 1999)
(“Judges are generally absolutely immune from civil suits for money
damages, including §1983 suits”).

Court clerks or bailiffs are immune

from such liability for actions taken by them at the direction of the
judge.

Huffer v. Bogen, 503 F. App’x 455, at *5 (6th Cir. November 1,

2012) (citing Foster v. Walsh, 804 F.2d 416, 417 (6th Cir. 1988)).
Lawyers, even lawyers appointed by a court to represent a criminal
defendant, do not act under color of state law for purposes of § 1983.
Polk County v. Dodson, 454 U.S. 312, 318-19 (1981).
The Amended Complaint also fails to state a conspiracy claim
under 42 U.S.C. § 1985 because plaintiff does not allege that any
conspiracy between and among defendants was motivated by a racial or
other class-based, invidiously discriminatory animus.

See Griffin v.

Breckenridge, 403 U.S. 88, 102-03 (1971); Dotson v. Lane, 360 F. App’x
617, 620 n.2 (6th Cir. 2010).
The claims against the members of the Ohio Disciplinary Counsel,
the Assistant Attorneys General, the Assistant Public Defender, and a
Columbus Police Officer also fail to state a claim.

Plaintiff alleges

that these defendants were notified of alleged criminal violations and

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an alleged conspiracy and yet failed to take any action.
Complaint, pp. 16, 22.

Amended

These allegations are not based on “active

unconstitutional behavior,” which is a prerequisite to liability on
the part of a government official under 42 U.S.C. § 1983.

See Combs

v. Wilkinson, 315 F.3d 548, 554 (6th Cir. 2002) (citing Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
Moreover, at least some of plaintiff’s claims were untimely
filed.

The events in plaintiff’s state criminal proceeding are

alleged to have occurred between November 2010 and November 2011.
Claims under 42 U.S.C. §§ 1983 and 1985 must be initiated in Ohio
within two (2) years of the time the cause of action accrues.
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc)
(claims under § 1983); Harris v. Board of Educ. of Columbus, Ohio,
City School District, 798 F. Supp. 1331, 1345 (S.D. Ohio 1992) (claims
under § 1985); Ealy v. Diorio, 2009 WL 545106, *2 (S.D. Ohio March 3,
2009)(same).

In general, a civil rights claim for relief accrues when

the plaintiff knows or has reason to know of the injury that is the
basis of his action.
1159 (6th Cir. 1991).

Friedman v. Estate of Presser, 929 F.2d 1151,
“A plaintiff has reason to know of his injury

when he should have discovered it through the exercise of reasonable
diligence.”

Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).

The

facts underlying the events complained of in plaintiff’s criminal
proceeding, and plaintiff’s claims arising out of those events, should
have been known to plaintiff, who was after all a participant in the
proceedings about which he now complains, at the time they occurred.

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Because plaintiff waited more than two (2) years after those events to
initiate this action, his claims based on those events are untimely.
For all these reasons, it is RECOMMENDED that this action be
dismissed.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) 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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the 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.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

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2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
preserve an issue for appeal . . . .”) (citation omitted)).

October 17, 2014

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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