Summers v. Ohio Adult Parole Authority

Filing 9

ORDER and REPORT AND RECOMMENDATIONS: The Court GRANTS 1 Motion for Leave to Proceed in forma pauperis and RECOMMENDS 8 Complaint be DISMISSED in its entirety. Objections due within fourteen (14) days. Signed by Magistrate Judge Elizabeth Pres ton Deavers on 3/13/2015. (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification as well as Prison Cashier's Office, Court's Financial Office and Ohio Attorney General's Office as directed.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES SUMMERS,
Plaintiff,

v.

Civil Action 2:15-cv-704
Judge Gregory L. Frost
Magistrate Judge Elizabeth Preston Deavers

OHIO ADULT PAROLE AUTHORITY,
Defendant.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, James Summers, a state inmate who is proceeding without the assistance of
counsel, brings this civil rights action under 42 U.S.C. § 1983 against the Ohio Adult Parole
Authority (“APA”), alleging that he has been subjected to discrimination and is unlawfully
incarcerated. 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
that follow, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its
entirety.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s
motion is 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 seventy-seven cents 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 $40.00. Pursuant to 28
U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at Ross Correctional
Institution 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.

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)2 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-*

*

*

(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
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
2

Formerly 28 U.S.C. § 1915(d).

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demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 504 (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, 727 F.3d at 504 (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)).
II.
Plaintiff identifies his “[c]ause[s] of action” as unlawful incarceration and discrimination.
(ECF No. 1-2 at 2.) The Court is unable to discern the bases for Plaintiff’s unlawful
incarceration claim. To the extent he is challenging the fact or duration of his confinement, his
sole remedy in federal court is habeas corpus. See Skinner v. Switzer, 131 S.Ct. 1289, 1293

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(2011) (“Habeas is the exclusive remedy . . . for the prisoner who seeks immediate or speedier
release from confinement.” (internal quotation marks and citation omitted)).
With regard to his discrimination claim, as best the Court can discern, Plaintiff seeks to
assert an equal protection claim under § 1983 against the APA, alleging that the APA has
discriminated against him because he does not have a “flat-time” sentence. (ECF No. 1-1 at 6.)
“The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution ‘protects against arbitrary classifications, and requires that similarly situated
persons be treated equally.’” Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005) (quoting
Richland Bookmart, Inc. v. Nichols, 278 F.3d 570, 574 (6th Cir. 2002)). “Without question,
prisoners are not considered a suspect class for purposes of equal protection litigation.” Jackson,
411 F.3d at 619 (citing Wilson v. Yaklich, 148 F.3d 596, 604 (6th Cir. 1998)). “Moreover, there
is no fundamental right to parole under the federal constitution.” Id. (citing Bd. of Pardons v.
Allen, 482 U.S. 369 (1987)).
Here, Plaintiff’s Complaint fails to set forth any facts suggesting that the APA
intentionally treated him differently than other similarly-situated inmates. Instead, he offers a
variety of hypotheticals to demonstrate how an individual who is eligible for parole might lose
eligibility for misconduct whereas inmates who are not eligible for parole who engage in the
same misconduct would not. But even the inmates Plaintiff references in his hypotheticals are
not similarly situated given that they are not all eligible for parole and subject to the APA’s
authority. Accordingly, the Undersigned recommends dismissal of Plaintiff’s equal protection
claim.

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III.
For the reasons set forth above, it is RECOMMENDED that the Court DISMISS
Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. The
Clerk is DIRECTED to send a copy of this order to the Ohio Attorney General’s Office, 150 E.
Gay St., 16th Floor, Columbus, Ohio 43215.
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: March 13, 2015

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

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