Rodgers v. State of Ohio et al

Filing 27

REPORT AND RECOMMENDATION re 6 Amended Complaint filed by Otis Lee Rodgers. It is recommended that Plaintiff's claim for damages under 42:1983 be DISMISSED for lack of subject matter jurisdiction and for failure to state a claim for relief. It is further recommended that if Plaintiff decides pursues a habeas corpus claim he must file a petition. Objections to R&R due by 6/9/2014. Signed by Magistrate Judge Norah McCann King on 5/21/14. (sem1)

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

OTIS LEE RODGERS,
Plaintiff,
Civil Action 2:14-cv-453
Judge Frost
Magistrate Judge King

vs.

STATE OF OHIO, et al.,
Defendants.

REPORT AND RECOMMENDATION

Plaintiff, who is currently incarcerated in the State of
California, brings this civil rights action under 42 U.S.C. § 1983
alleging that the Ohio Adult Parole Authority has lodged a detainer
against him in violation of plaintiff’s constitutional rights.

The

Amended Complaint, ECF 6, seeks declaratory, injunctive and monetary
relief.

This matter is now before the Court for the initial screen of

the Complaint required by 28 U.S.C. §§ 1915(e), 1915A.1
Plaintiff’s

claim

under

42

U.S.C.

§

1983

arising

out

of

the

parole detainer lodged against him cannot proceed at this juncture
because a judgment in his favor would necessarily imply the invalidity
of the detainer. See Heck v. Humphrey, 512 U.S. 477 (1994).

Before

this Court can consider plaintiff’s claim for damages based on the

1

The case was initiated in the Central District of California, was
subsequently transferred to the Eastern District of California, Order, ECF 4,
and was thereafter transferred to this Court at plaintiff’s request, Order,
ECF 24.

1

issuance of the parole detainer, plaintiff must establish that the
detainer “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. 28 U.S.C. § 2254.”

Heck v. Humphrey, at

486-87 (1994). See also Munofo v. Alexander, 47 Fed. Appx. 329 (6th
Cir. Sept. 20, 2002)(Because prisoner had not successfully challenged
the parole detainer through appropriate remedies, his § 1983 suit was
barred by Heck v. Humphrey). The fact that plaintiff is not yet in the
physical

custody

of

Ohio’s

parole

officials

foreclose habeas corpus remedies to him.
411

U.S.

immediate

475,

487

release

(1973)(Habeas
from

illegal

corpus

custody,

will

not

serve

to

See Preiser v. Rodriguez,
relief
but

is

is

not

to

available

also

limited

to

attack future confinement or to obtain future release.).
It is therefore RECOMMENDED that plaintiff’s claim for damages
under

42

U.S.C.

§

1983

be

DISMISSED

for

lack

of

subject

matter

jurisdiction and for failure to state a claim for relief. It is FUTHER
RECOMMENDED that, should plaintiff decide to pursue in this action a
claim for habeas corpus relief under 28 U.S.C. § 2254, he be required
to file a petition for a writ of habeas corpus consistent with the
provisions of Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts.
The

Clerk

is

DIRECTED

to

provide

corpus petition.

2

to

plaintiff

a

form

habeas

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 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 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

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

Date: May 21, 2014

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