Rodgers v. State of Ohio et al

Filing 38

ORDER adopting 27 Report and Recommendations.. Signed by Judge Gregory L Frost on 6/24/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
OTIS LEE RODGERS,
Petitioner,
Civil Action 2:14-cv-453
Judge Frost
Magistrate Judge King

vs.
STATE OF OHIO, et al.,
Respondents.
OPINION & ORDER

Petitioner, who is currently incarcerated in California, filed an
action in the United States District Court for the Central District of
California asserting claims for damages under 42 U.S.C. § 1983 in
connection with a detainer lodged against him by the Ohio Adult Parole
Authority. ECF 1.

The action was thereafter transferred to the

Eastern District of California, Order, ECF 4, and petitioner’s
application for leave to proceed in forma pauperis was granted.
Order, ECF 8. Petitioner’s request to transfer the case to this Court,
ECF 23, was also granted. Order, ECF 24.
On May 21, 2014, the United States Magistrate Judge recommended
that petitioner’s claims for monetary damages under 42 U.S.C. § 1983
be dismissed.

Report and Recommendation, ECF 27 (citing Heck v.

Humphrey, 512 U.S. 477 (1994)).

The Magistrate Judge also commented,

“[S]hould plaintiff decide to pursue in this action a claim for habeas
corpus relief under 28 U.S.C. § 2254, he [should] file a petition for
a writ of habeas corpus consistent with the provisions of Rule 2 of

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the Rules Governing Section 2254 Cases in the United States District
Courts.

Id. at PAGEID #184. Petitioner thereafter filed a Petition

for a Writ of Habeas Corpus, ECF 32.

This matter is now before the

Court on petitioner’s objection to the Report and Recommendation.
Objection, ECF 33.
28 U.S.C. § 636(b);

The Court will consider the matter de novo.

See

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

Petitioner asks that he be permitted to pursue in this action
claims under both 42 U.S.C. § 1983 and 28 U.S.C. § 2254.

He does not

appear to disagree with the Magistrate Judge’s conclusion that this
Court lacks subject matter jurisdiction over his claims under § 1983
because he has not yet successfully challenged the parole detainer
through habeas corpus proceedings or other appropriate means. See
Munofo v. Alexander, 47 Fed. Appx. 329 (6th Cir. Sept. 20 2002).
Rather, petitioner appears to base his objection entirely on the fact
that he was assessed a $350.00 filing fee when his application for
leave to proceed in forma pauperis was granted.
It was petitioner who filed a civil complaint asserting claims
under § 1983.

The Prison Litigation Reform Act (“PLRA”) requires that

a prisoner who asserts such claims be assessed the full filing fee. 28
U.S.C. § 1915(b).

That is true even where, as here, the Court

concludes that the claims originally asserted cannot proceed.

The

fact that petitioner was permitted to transform this action into a
habeas corpus action under § 2254, which is not governed by the PLRA,
see Smith v. Angelone, 111 F.3d 1126, 1130 (4th Cir. 1997)(and cases
cited therein), does not require that this Court exercise jurisdiction

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over plaintiff’s claims under § 1983.
Having considered de novo petitioner’s objections and the record
in this action, the Court DENIES petitioner’s objections to the Report
and Recommendation.

The Report and Recommendation, ECF 27, is ADOPTED

AND AFFIRMED. Petitioner’s claims under 42 U.S.C. § 1983 are
DISMISSED.

The action may proceed as an action for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254.
For the reasons set forth above and in the Report and
Recommendation, ECF 27, the Court hereby CERTIFIES pursuant to 28
U.S.C. § 1915(a)(3) that any appeal of this Opinion & Order is not
taken in good faith.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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