Reitz v. McKay et al

Filing 8

ORDER AND REPORT AND RECOMMENDATION re Complaint. The Magistrate Judge RECOMMENDS that the Complaint be dismissed pursuant to § 1915(e)(2) for failure to state a claim upon wich relief can be granted. Objections to R&R due by 11/17/2014. Plaintiff's Motions to proceed in forma pauperis are GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/28/2014. (mas1) Modified text on 10/28/2014 (mas1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIS REITZ,
Plaintiff,
Civil Action 2:14-cv-974
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

W. WYATT MCKAY, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Willis Reitz, a state inmate who is proceeding without the assistance of counsel,
brings this action under 42 U.S.C. § 1985 against a number of individuals who he alleges
conspired together to commit fraud in connection with his state-court criminal proceedings. This
matter is before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§
1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of Plaintiff’s
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. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons set forth
below, it is RECOMMENDED that the Court DISMISS Plaintiff’s action for failure to state a
claim upon which relief can be granted.
This matter is also before the Court for consideration of Plaintiff’s motions for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF Nos. 1, 4, and 7.)
Plaintiff’s motions are GRANTED. Plaintiff is required to pay the full amount of the Court’s

$350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he
currently possesses the sum of $182.35 in his prison account, which is insufficient to pay the full
filing fee. His application indicates that his average monthly deposits for the six-month period
prior to filing his application to proceed in forma pauperis were $151.04. Pursuant to 28 U.S.C.
§ 1915(b)(1), the custodian of Plaintiff’s inmate trust account (Inmate No. A292394) at Franklin
Medical Center 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% 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-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 fee of $350.00 has 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). Checks should be
made payable to: Clerk, United States District Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check. It is ORDERED
that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that
judicial officers who render services in this action shall do so as if the costs had been prepaid.
The Clerk of Court is DIRECTED to mail a copy of this Order to 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.
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I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

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Formerly 28 U.S.C. § 1915(d).
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,
the Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

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II.
As best as the Court can discern from the allegations Plaintiff sets forth in his Complaint,
in 1994, Plaintiff was convicted of several counts of rape and gross sexual imposition and
sentenced to life in prison. He alleges that a number of the individuals involved in the statecourt criminal proceedings, including his counsel, the prosecutors, and the judges, conspired to
commit fraud, convict, and sentence him without due process in violation of 42 U.S.C. § 1985.
In terms of relief, Plaintiff seeks a declaration “of his true legal status” and $1.5 million from
each of the defendants. (Pl.’s Compl. 5, ECF No. 1-2.) For a number of reasons, Plaintiff’s
claims fail on the merits.
Because Plaintiff’s Section 1985 claims necessarily imply the invalidity of his conviction
and sentence, those claims cannot proceed given the absence of any evidence or allegation that
his convictions have been “reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal, or have 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)).
In addition, Plaintiff’s claims are untimely. Claims under 42 U.S.C. § 1985 must be
initiated in Ohio within two (2) years of the time the cause of action accrues. Sykes v. United
States, 507 F. App’x 455, 462 (6th Cir. 2012); Dotson v. Lane, 360 F. App’x 617, 620 n.2 (6th
Cir. 2010). “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.” Dotson, 360 F. App’x at 620 n.2.
Here, the alleged wrongdoing occurred in 1994. Plaintiff did not file his Complaint in this case
until July 24, 2014, approximately eighteen years after the statute of limitations expired on his
Section 1985 claims.
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In sum, because Plaintiff’s claims are untimely and otherwise barred under Heck, it is
RECOMMENDED that his Complaint be dismissed pursuant to § 1915(e)(2) for failure to state
a claim upon which relief can be granted.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is 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. 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)).

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Date: October 28, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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