Jackson v. Allen

Filing 8

INITIAL SCREENING/REPORT AND RECOMMENDATIONS re 3 Complaint filed by Edward Jackson. The Magistrate Judge RECOMMENDS that the complaint be DISMISSED because it fails to state a claim under 42 U.S.C. §1983. Defendant does not have to respond to the complaint unless the Court rejects this Report and Recommendation - Objections due w/in ten (10) days of the date of this report. Signed by Magistrate Judge Mark R. Abel on 06/23/2014. (sr1)

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

Edward Jackson,

:
Plaintiff

Defendant

Judge Frost

:

Jeffery Allen,

Civil Action 2:14-cv-0580

:

v.

:

Magistrate Judge Abel

:

Initial Screening Report and Recommendation
Plaintiff Edward Jackson, a prisoner at the Lebanon Correctional Facility, brings
this civil rights action under 42 U.S.C. §1983.
This matter is before the Magistrate Judge for screening of the complaint under
28 U.S.C. §1915(e)(2) to identify cognizable claims, and to recommend dismissal of the
complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. See, McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). The
Magistrate Judge finds that the complaint does not satisfy the requirements of Rule 8(a),
Federal Rules of Civil Procedure, that it "contain (1) a short and plain statement of the
grounds upon which the court's jurisdiction depends . . . , (2) a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." The Magistrate
Judge finds that the complaint fails to state a claim for relief under 42 U.S.C. § 1983 and,
therefore, recommends dismissal of the complaint.

The complaint alleges that plaintiff Edward Jackson has never been resentenced
as ordered by the Ohio Court of Appeals. On September 28, 1988, Jackson was charged
with kidnapping, rape and gross sexual imposition of Shawn Kimbrough; kidnapping,
rape and gross sexual imposition of Shawn Renee Richardson; kidnapping and attempted rape of 15 year old Alicia Bohannon; felonious assault on Steven Johnson; and having a weapon while under a disability when he committed these crimes. In 1989, he was
tried before a jury in the Court of Common Pleas for Franklin County, Ohio and found
guilty of three counts of kidnapping, in violation of Ohio Revised Code § 2905.01, two
counts of rape, in violation of Ohio Revised Code § 2907.02, one count of attempted
rape, in violation of Ohio Revised Code § 2923.02, one count of gross sexual imposition,
in violation of Ohio Revised Code § 2907.05, and one count of having a weapon while
under disability, in violation of Ohio Revised Code § 2923.10. In addition, he was found
guilty of the specifications of having a firearm on or about his person or under his control while committing these offenses, having previously been convicted of aggravated
robbery, and that he did not release his kidnap victims in a safe place, unharmed.
On direct appeal, the Ohio Court of Appeals for the Tenth District affirmed the
judgments of conviction, but remanded for resentencing on the attempted rape conviction and the gun specificatiosn. The trial court sentenced Jackson to not less than 12
years and up to 25 years imprisonment for the attempted rape. The Court of Appeals
held that the statutory maximum sentence for that crime was 15 years. State v. Edward
Jackson, 1990 WL 122569, *11 (Ohio Ct.App. 10th Dist. August 23, 1990). As to the
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firearms specification, the Court of Appeals held:
In the case at bar, this court finds that the kidnapping and rape of
Renee and Shawn arose out of the same transaction. The kidnapping and
attempted rape of Alicia Bohanon arose out of the result of a second transaction. The fact that appellant was also convicted of carrying a weapon
while under disability is separate from the other two transactions as above
outlined. Accordingly, the trial court should have imposed three consecutive three-year terms of actual incarceration on firearm specifications because the underlined offenses arose from three transactions.
Id., *12.
On October 9, 1990, the trial court resentenced Jackson as required by the Court
of Appeals' decision. "The only effect of the resentencing was that appellant was given
three three-year terms of actual incarceration for the firearm specifications instead of the
five three-year terms from the original sentencing. The trial court reimposed sent-ences
adding up to an aggregate indefinite prison term of fifty-one to one hundred five years."
State v. Jackson, 1998 WL 354023, *1 (Ohio Ct.App. 10th Dist. June 30, 1998). Plaintiff
Jackson has made several attempts to have his sentence changed, but each has been
rebuffed. See, State v. Jackson, 2001 WL 1143215 *1 (Ohio Ct.App. 10th Dist. Sept-ember
28, 2001).
Here the sole defendant named in the complaint is Jeffery Allen. However, the
complaint does not explain what Allen did to deprive Jackson of a constitutional right.
Nor does it state when he acted to do so.
When considering whether a complaint fails to state a claim under Rule 12(b)(6),
Federal Rules of Civil Procedure, a court must construe it in the light most favorable to

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the plaintiff and accept all well-pleaded material allegations in the complaint as true.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705
F.2d 134, 155 (6th Cir. 1983). Rule 8(a), Federal Rules of Civil Procedure provides for
notice pleading. Conley v. Gibson, 355 U.S. 41, 47 (1957). The United States Supreme
Court held in Erickson v. Pardus, 127 S.Ct. 2197 (June 4, 2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
, 127
S.Ct. 1955,
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
Moreover, pro se prisoner complaints must be liberally construed. Erickson v. Pardus,
above; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).
Analysis. The complaint fails to give defendant Allen fair notice of plaintiff’s
claim against him. Further, A civil rights action is not a substitute for habeas corpus.
When a prisoner challenges the fact or duration of his confinement, his sole federal
remedy is habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 787 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). A convicted criminal
defendant cannot bring a claim under 42 U.S.C. § 1983 if a judgment on the claim
“would necessarily imply the invalidity” of his criminal conviction and that conviction
has not been set aside. Heck, 512 U.S. at 487. Here plaintiff challenges the duration of
his sentence. A judgment for him would necessarily undermine the Ohio courts' decision affirming his sentences, and those sentences have not been set aside. Consequently,

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the complaint fails to state a claim for relief under 42 U.S.C. § 1983.
Accordingly, the Magistrate Judge RECOMMENDS that the complaint be DISMISSED because it fails to state a claim under 42 U.S.C. §1983. Defendant does not have
to respond to the complaint unless the Court rejects this Report and Recommendation.
IT IS FURTHER ORDERED that plaintiff's application to proceed without prepayment of fees be GRANTED. The United States Marshal is ORDERED to serve upon
each defendant named in the complaint a copy of the complaint and a copy of this
Order.
If any party objects to this Report and Recommendation, that party may, within
ten (10) days, file and serve on all parties a motion for reconsideration by the Court,
specifically designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk of Court is DIRECTED to mail a copy of the complaint and this Report
and Recommendation to each defendant.
s/Mark R. Abel
United States Magistrate Judge

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