Rodgers v. Solano County Courts et al

Filing 8

REPORT AND RECOMMENDATIONS re 5 Motion for TRO filed by Otis Lee Rodgers. It is RECOMMENDED that plaintiff's claims under 42 U.S.C. § 1983 be dismissed for lack of subject matter jurisdiction and for failure to state a claim for relief and that plaintiff' s motions for interim injunctive relief, Motion, ECF 1; Motion, ECF 5, be DENIED. It is FURTHER RECOMMENDED that, should plaintiff decide to pursue in this action a claim for habeas corpus relief under 28 U.S.C.§ 2241 o r 28 U.S.C. § 2254, he be required to file a petition for a writ of habeas corpus. Objections to R&R due by 9/14/2015. Signed by Magistrate Judge Norah McCann King on 8/26/2015. (pes)(This document and 2254 form have been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

OTIS LEE RODGERS,
Plaintiff,
Case No. 2:15-cv-2754
Judge Marbley
Magistrate Judge King

v.

SOLANO COUNTY COURTS, et al.,
Defendants.

REPORT and RECOMMENDATION
Plaintiff, who is currently incarcerated in California, brings
this civil rights action seeking injunctive relief pursuant to 42
U.S.C. § 1983 in connection with attempts by the State of Ohio to
extradite him. Plaintiff has also filed motions for interim injunctive
relief. Motion, ECF 1; Motion, ECF 5.
For the reasons stated in the order transferring this case to
this Court, Order, ECF No. 6, plaintiff’s claims are not properly
presented in a civil action under § 1983. See Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994);
Preiser v. Rodriguez, 411 U.S.C. 475, 484 (1973). See also Rodgers v.
State of Ohio, 2:14-cv-453 (S.D. Ohio). If plaintiff wishes to pursue
his claims in a petition for a writ of habeas corpus under 28 U.S.C. §
2241 or 28 U.S.C. § 2254, he must file a proper petition.1

1

A petition for a writ of habeas corpus must also address the issue of
exhaustion. In Ohio, a state court action for a writ of habeas corpus under
O.R.C. § 2725.01 et seq., is the appropriate remedy when the claim is that
the Ohio Adult Parole Authority lacks jurisdiction over a person. Brewer v.

1

It is therefore RECOMMENDED that plaintiff’s claims under 42
U.S.C. § 1983 be dismissed for lack of subject matter jurisdiction and
for failure to state a claim for relief and that plaintiff’s motions
for interim injunctive relief, Motion, ECF 1; Motion, ECF 5, be
DENIED.

It is FURTHER RECOMMENDED that, should plaintiff decide to

pursue in this action a claim for habeas corpus relief under 28 U.S.C.
§ 2241 or 28 U.S.C. § 2254, he be required to file a petition for a
writ of habeas corpus.
The Clerk is DIRECTED to provide the proper habeas corpus form
petition to plaintiff.
Because the standards governing in forma pauperis applications in
cases under § 1983 differ significantly from those governing such
applications in habeas corpus cases, the Court will defer
consideration of plaintiff’s motion to proceed in forma pauperis,
Motion, ECF 2, until plaintiff clarifies the basis on which he intends
to proceed.
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
Dahlberg, 942 F.2d 328 (6th Cir. 1991). Where the claim is that the Ohio
Parole Authority has failed to perform an act that it has a clear legal duty
to perform, the appropriate remedy is a state court petition for a writ of
mandamus under O.R.C. § 2731.01 et seq. Rodgers v. Capots, 12 F.3d 214
(Table), 1993 WL 483476 (6th Cir. Nov. 232, 2003). See also Williams v.
Perini, 557 F.2d 1221 (6th Cir. 1977).

2

thereof.

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

The parties are 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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
August 26, 2015

3

to