Sevilla v. O'Brien et al

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Jesus Sevilla. It is RECOMMENDED that this action be dismissed for failure to state a claim upon which relief can be granted. Objections to R&R due by 12/4/2015. Signed by Magistrate Judge Norah McCann King on 11/16/2015. (pes)(This document has 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

JESUS SEVILLA,
Plaintiff,
Civil Action 2:15-cv-2979
Judge Graham
Magistrate Judge King

vs.

RON O’BRIEN, et al.,
Defendants.
REPORT AND RECOMMENDATION

Plaintiff, a state prisoner, brings this civil rights action
under 42 U.S.C. § 1983 alleging that defendants, the Prosecuting
Attorney for Franklin County, Ohio, and two (2) Assistant Prosecuting
Attorneys, violated plaintiff’s constitutional rights when, during the
course of plaintiff’s 2006 prosecution for murder and attempted
murder, they concealed exculpatory DNA evidence from plaintiff.
According to plaintiff, had this evidence been disclosed, he “would
not have been convicted.” Complaint, ECF No. 1, PAGEID# 5. Plaintiff
also contends that O.R.C. §§ 2953.72-75, which authorizes DNA testing
under certain circumstances, and O.R.C. § 2953.23, which establishes
the time by which petitions for post conviction relief must be filed,
are “controled [sic] in the interest of the state” and deprive
plaintiff of due process and equal protection. Id. The Complaint seeks
a declaration that defendants are not entitled to the protection of
qualified immunity, that defendants’ suppression of DNA evidence

1

“worked to the actual and substantial prejudice of Plaintiff,” Id. at
PAGEID# 6, that plaintiff is entitled to post conviction DNA testing,
and that defendants’ pretrial and post trial conduct in connection
with DNA testing deprived plaintiff of due process and equal
protection. Id. The Complaint also seeks an injunction requiring
defendants to produce to plaintiff “all (DNA) evidence biological
evidence tested or not tested in” plaintiff’s criminal case. Id.
This matter is now before the Court for the initial screen of the
Complaint required by 28 U.S.C. §§ 1915(e), 1915A.
The claims asserted in this action constitute a challenge to
plaintiff’s criminal conviction and confinement. Those claims cannot
proceed under § 1983 unless plaintiff’s conviction has 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)). Challenges to the fact or duration of one’s
confinement, i.e., challenges falling “within the traditional scope of
habeas corpus,” are not cognizable under § 1983.

See also Thomas v.

Eby, 481 F.23d 434, 438 (6th Cir. 2007).
Plaintiff does not allege that his conviction has been either set
aside or declared invalid. Indeed, plaintiff’s habeas corpus action
under 28 U.S.C. § 2254 was dismissed by this Court as untimely. Jesus
Sevilla v. Warden, Chillicothe Correctional Institution, 2:14-cv-2637
(S.D. Ohio October 8, 2015). Under these circumstances, the claims

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asserted in this civil rights action cannot proceed.
It is therefore RECOMMENDED that this action be dismissed for
failure to state a claim upon which relief can be granted.

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
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

recommendation).

to

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those

3

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
Date: November 16, 2015

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to