Davenport v. Cooper et al

Filing 5

ORDER AND REPORT AND RECOMMENDATIONS re 1 Complaint filed by Carlos Davenport. It is RECOMMENDED that this action be dismissed. The MOTION for Leave to Proceed in forma pauperis (doc. 3 ) is GRANTED. Objections to R&R due by 9/8/2014. Signed by Magistrate Judge Norah McCann King on 8/20/2014. (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.

ORDER AND
REPORT AND RECOMMENDATION

Plaintiff,

a

state

prisoner,

without prepayment of fees or costs.

brings

this

civil

rights

action

This matter is before the Court

on plaintiff’s application for leave to proceed in forma pauperis, ECF
3, and for the initial screen of the action required by 28 U.S.C. §§
1915(e), 1915A.
I.
Plaintiff’s motion for leave to proceed in forma pauperis, ECF 3,
is

GRANTED.

Plaintiff

$350.00 filing fee.

is

assessed

the

full

amount

of

the

Court's

28 U.S.C. §1915(b)(1).

Plaintiff's declaration reveals that he currently possesses an
amount insufficient to pay the full filing fee.

The custodian of the

plaintiff's inmate trust account at the institution of his residence
is DIRECTED to submit to the Clerk of the United States District Court
for the Southern District of Ohio, as an initial partial payment, 20%

1

of the greater of either the average monthly deposits to the inmate
trust

account

or

the

average

monthly

balance

in

the

inmate

trust

account, for the six (6) months immediately preceding the filing of
the complaint.
After

full

payment

of

the

initial

partial

filing

fee,

the

custodian shall submit 20% of the inmate's preceding monthly income
credited to the account, but only when the amount in the account
exceeds $10.00 until the full fees of $350.00 have been paid to the
Clerk

of

this

Court.

28

U.S.C.

§1915(b)(2).

See

McGore

v.

Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
The Clerk of Court is DIRECTED to mail a copy of this order to
the plaintiff and the prison cashier's office.

The Clerk is FURTHER

DIRECTED to forward a copy of this order to the Court's financial
office in Columbus.
II.
Having performed the initial screen of the action, however, the
Court RECOMMENDS that the action be dismissed for lack of subject
matter jurisdiction and for failure to state a claim upon which relief
can be granted.
The original Complaint, ECF 1, names as defendants two lawyers
who represented plaintiff in a state court criminal matter, the state
court trial judge and his bailiff.

Plaintiff filed a document on July

7, 2014, captioned Affidavit Pursuant to

Rule (3) The Complaint, ECF

4, which appears to name as additional defendants an Assistant Ohio
Public Defender and an Assistant Attorney General who have apparently

been involved in plaintiff’s post-conviction proceedings.
Although the precise nature of plaintiff’s claims in this action,
which was filed on April 29, 2014,1 are not entirely clear, plaintiff
appears to base 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

suspended

after

from

the

he

discharged

practice

of

his

law

retained

in

June

counsel

2011

for

(who

was

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)

represented him through his sentencing in November 2011.

who

Plaintiff

alleges that all the defendants conspired to deprive plaintiff of his
civil

rights,

criminal
Complaint

including

misconduct
nor

the

his

right

to

due

process,

including

identity

fraud.

Affidavit

Pursuant

to

and

Neither

Rule

(3)

engaged

the
The

in

original
Complaint

articulates the relief sought by plaintiff.
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

1

It appears that plaintiff signed the Complaint on March 28, 2014.
1, PageID# 7.

3

ECF

into

question

corpus.”

by

a

Lanier

federal
v.

court’s

Bryant,

332

issuance
F.3d

of

999,

a

writ

1005-06

of

habeas

(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. 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 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).

It is the United States

Attorney – not a private citizen – who is authorized to “prosecute . .
. all offenses against the United States” within each district.

28

U.S.C. § 547(1).
For a variety of reasons, the 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.
City

of

Macedonia,

generally

180

absolutely

F.3d

immune

770,
from

783

(6th

civil

Cir.

suits

DePiero v.

1999)(“Judges

for

money

are

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,

2012)(citing

503

Foster

Fed.

v.

Appx.

Walsh,

(6th

455,
F.2d

804

**5
416,

417

Cir.

November

(6th Cir.

1,

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 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 classbased,

invidiously

discriminatory

animus.

Breckenridge, 403 U.S. 88, 102-03 (1971);

See

Griffin

v.

Dotson v. Lane, 360 F.

App’x 617, 620 n.2 (6th Cir. 2010).
Moreover, this action was untimely filed. The events about which
plaintiff complains 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.

5

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.

Friedman v. Estate of Presser, 929

F.2d 1151, 1159 (6th Cir. 1991).

“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, 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. 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.
III.
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).

28

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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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.

2007) (“[A] general objections to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

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

Date: August 20, 2014

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