Sevilla v. O'Brien et al

Filing 7

ORDER adopting Report and Recommendations re 5 Report and Recommendations.. Signed by Judge James L. Graham on 12/4/2015. (ds)(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,
v.

Case No. 2:15-cv-2979

Ron O’Brien, et al.,
Defendant.
ORDER
Plaintiff Jesus Sevilla, a state prisoner, filed this action
on November 10, 2015, pursuant to 42 U.S.C. §1983 against Franklin
County,

Ohio,

Prosecuting

Attorney

Ron

O’Brien

and

Assistant

Prosecuting Attorneys David F. Zeyen and Laura R. Swisher in their
individual and official capacities.

Petitioner was convicted of

murder and attempted murder in the Court of Common Pleas of
Franklin County, Ohio in August of 2006.

Plaintiff now seeks

biological DNA crime scene evidence which he alleges was in the
possession and control of the defendants or available for DNA
testing.
claimed

Complaint, p. 5.
that

DNA

evidence

Plaintiff alleges that the defendants
“was

non-existent”

and

that

they

concealed or failed to disclose evidence requested at trial,
specifically, bullet forensic evidence, blood and hair evidence,
hospital tests, reports, and fingerprint evidence.

Plaintiff

alleges that had this evidence been disclosed, plaintiff would not
have been convicted at trial.

Complaint, p. 5.

Plaintiff also

claims that Ohio Rev. Code §§2953.72-2953.81 and 2953.23(A), as
construed, “are controled [sic] in the interest of the state, and
not for the best interest of the citizen for Article III purposes
by procedural mechanisms” that violate his due process and equal

protection rights under the Fourteenth Amendment of the United
States Constitution and the Ohio Constitution.
Plaintiff seeks a declaratory judgment: 1) that the defendants
would not be entitled to qualified immunity for suppressing DNA
evidence; 2) that defendants’ pretrial and post-trial refusal to
disclose or test DNA evidence prejudiced plaintiff and violated his
due process and equal protection rights; 3) that the interest of
justice requires postconviction disclosure and testing of DNA
evidence; and 4) that the Rooker-Feldman and res judicata doctrines
do not apply in this case.

Plaintiff also requests injunctive

relief compelling defendants to reveal all DNA evidence tested in
his criminal case and to turn it over to plaintiff for inspection.
On November 17, 2015, the magistrate judge issued a report and
recommendation after conducting an initial screen of the complaint
pursuant

to

28

U.S.C.

§1915(e)

and

28

U.S.C.

§1915A.

The

magistrate judge concluded that plaintiff’s claims constitute a
challenge to his criminal conviction and confinement which may not
proceed under §1983 because the complaint failed to allege that
plaintiff’s conviction has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal, or
otherwise called into question by a federal court’s issuance of a
writ of habeas corpus.

Doc. 5, p. 2 (citing Lanier v. Bryant, 332

F.3d 999, 1005-06 (6th Cir. 2003) and Heck v. Humphrey, 512 U.S.
477 (1994)).
fact

or

The magistrate judge noted that challenges to the

duration

of

one’s

confinement

falling

within

the

traditional scope of habeas corpus are not cognizable under §1983.
Doc. 5, p. 2 (citing Thomas v. Eby, 481 F.3d 434, 438 (6th Cir.
2007)).

The magistrate judge further observed that plaintiff’s

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habeas corpus action under 28 U.S.C. §2254 was dismissed by this
court as untimely. See Sevilla v. Warden, Chillicothe Correctional
Inst., 2:14-cv-2637 (S.D. Ohio Oct. 8, 2015).

Doc. 5, p. 2.

The

magistrate judge recommended that this action be dismissed for
failure to state a claim for which relief may be granted.

Doc. 5,

p. 3.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s objections (Doc. 6) to the magistrate judge’s report
and recommendation. If a party objects within the allotted time to
a report and recommendation, the court “shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court
“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”

28 U.S.C.

§636(b)(1).
Under 28 U.S.C. §1915(e), sua sponte dismissal of an action is
required upon the court’s determination that the action fails to
state a claim upon which relief may be granted. Grinter v. Knight,
532 F.3d 567, 572 (6th Cir. 2008).

Courts conducting initial

screens under §1915(e) apply the motion to dismiss standard.
e.g.,

Hill

v.

Lappin,

630

F.3d

468,

470–71

(6th

Cir.

See,
2010)

(applying Fed. R. Civ. P. 12(b)(6) standards to review under 28
U.S.C. §§1915A and 1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of

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facts in support of those allegations that would entitle him to
relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
complaint

need

not

contain

detailed

factual

While the

allegations,

the

“[f]actual allegations must be enough to raise the claimed right to
relief above the speculative level” and “state a claim that to
relief that is plausible on its face.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007).
Plaintiff

alleged

in

the

complaint

that

the

defendants

withheld exculpatory evidence at trial and that, had this evidence
been disclosed, he would not have been convicted.

Plaintiff

further alleged that defendants’ pretrial and post-trial refusal to
disclose or test DNA evidence prejudiced him and violated his due
process and equal protection rights. Plaintiff’s due process claim
is based on Brady v. Maryland, 373 U.S. 83 (1963), which prohibits
the prosecution from withholding evidence favorable to the accused
and material to his guilt or to punishment. Plaintiff now contends
in his objections that, despite the allegations in his complaint,
he is not asserting a Brady claim here, but rather is pursuing that
claim in his habeas action which is now pending on appeal.
argues that this claim is not barred by Heck.

He

However, he also

alleges in his objections that the defendants have continued to
oppose his efforts to obtain the discovery materials in his case in
postconviction proceedings.

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The court agrees with the magistrate judge’s conclusion that
plaintiff’s allegations that the defendants withheld exculpatory
evidence at trial fail to state a claim under §1983.

Under Heck,

§1983 is not an available remedy where any award in the plaintiff’s
favor would “necessarily imply” the invalidity of his conviction.
Heck, 512 U.S. at 487.

The Supreme Court has noted that “a Brady

claim, when successful postconviction, necessarily yields evidence
undermining a conviction” and that Brady claims thus “have ranked
within the traditional core of habeas corpus and outside the
province of §1983.” Skinner v. Switzer, 562 U.S. 521, 536 (2011).
To the extent that the allegations in plaintiff’s complaint can be
construed as asserting a due process right under Brady to the posttrial disclosure of exculpatory evidence, that claim also fails, as
Brady does not require the post-trial disclosure of evidence.

See

District Attorney’s Office for Third Judicial Dist. v. Osborne, 557
U.S. 52, 68-69 (2009).

In addition, plaintiff has no substantive

due process right to DNA evidence.

Id. at 72-75.

Plaintiff argues in his objections that his claims are not
barred by the Rooker-Feldman doctrine.

This doctrine, stemming

from Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), bars
actions brought by state-court losers seeking district court review
of state court judgments.

Exxon Mobil Corp. v. Saudi Basic

Industries Corp., 544 U.S. 280, 284 (2005).

Attached to the

complaint is a motion filed by plaintiff on November 17, 2011, in
Franklin County Case No. 05-CR-4630 requesting the release of
records and evidence by the Bureau of Criminal Investigation.
Plaintiff states in his objections that this motion was denied on

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procedural grounds on June 20, 2012. Plaintiff further contends in
his objections that he filed another motion in the common pleas
court

on

August

1,

2012,

requesting

the

court

to

order

the

prosecutor to provide him with evidence relevant to his conviction,
which was denied by the court on May 23, 2014, and that a petition
for writ of mandamus filed by plaintiff on June 16, 2014, in the
Ohio

Court

of

dismissed.

Appeals

for

the

Tenth

Appellate

District

was

To the extent that plaintiff’s complaint can be

construed as a request for review by this court of the state court
decisions referred to in the complaint and plaintiff’s objections,
such review is barred by the Rooker-Feldman doctrine.
In his objections, plaintiff argues that his claim that the
Ohio DNA testing procedures contained in Ohio Rev. Code §§2953.722953.83 violate his constitutional rights can proceed under §1983
and is not barred by Heck.
2953.73,

a

person

convicted

Under Ohio Rev. Code §§2953.72 and
of

and

sentenced

to

a

term

of

imprisonment for a felony can file an application for the testing
of DNA evidence, on a form prescribed by the attorney general for
this purpose, with the court of common pleas judge who sentenced
the offender.

Upon the filing of an application, the judge must

require the prosecuting attorney to use reasonable diligence to
determine whether biological material was collected from the crime
scene or victim, and whether the parent sample of that biological
material still exists.

Ohio Rev. Code §2953.75(A).

The common

pleas judge decides whether the application should be accepted or
rejected,

and

that

§2953.73(D) and (E).

decision

is

appealable.

Ohio

Rev.

Code

Ohio Rev. Code §2953.21, also referred to in

plaintiff’s complaint, governs general post-conviction remedies,

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but also applies in cases where DNA testing performed under
§§2953.72-2953.83 established the person’s actual innocence.
In Skinner, the Supreme Court addressed the issue of whether
a federal court has jurisdiction under §1983 over a claim which
challenges the constitutionality of a state statute governing the
production and testing of DNA evidence.

The Court concluded that

subject-matter jurisdiction over such a claim did exist and was not
barred

by

the

Rooker-Feldman

doctrine,

as

the

plaintiff

was

challenging the state statute itself, not the prior adverse state
court decisions.

Skinner, 562 U.S. at 531-533.

The Court further

held that such a §1983 claim was not barred under Heck, noting that
success in a suit seeking DNA testing would not ‘“necessarily
imply”’ the invalidity of the conviction, as the DNA test results
might

prove

exculpatory.
Assuming

to

be

inconclusive

or

incriminatory

rather

than

Id. at 544-36 (quoting Heck, 512 U.S. at 487).
that

plaintiff’s

attack

on

the

DNA

evidence

procedures in §§2953.72-2953.83 is cognizable under §1983, the
court concludes that plaintiff’s complaint nonetheless fails to
state a claim for relief.

Although plaintiff’s reference to the

Ohio DNA testing provisions in his complaint indicates that he is
aware of them, he failed to allege in his complaint or in his
objections that he ever filed an application for DNA testing under
the Ohio statutes.

None of the previous procedures employed by

plaintiff described in the documents attached to his complaint and
in his objections involved an application under §§2953.71-2953.83.
In fact, many of those documents do not specifically refer to DNA
evidence.
In Osborne, where the plaintiff sought to attack the Alaska

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statutory scheme on procedural due process grounds, the Supreme
Court noted:
His attempt to sidestep state process through a new
federal lawsuit puts Osborne in a very awkward position.
If he simply seeks the DNA through the State’s discovery
procedures, he might well get it. If he does not, it may
be for a perfectly adequate reason, just as the federal
statute and all state statutes impose conditions and
limits on access to DNA evidence. It is difficult to
criticize the State’s procedures when Osborne has not
invoked them.
This is not to say that Osborne must
exhaust state-law remedies. But it is Osborne’s burden
to demonstrate the inadequacy of the state-law procedures
available to him in state postconviction relief. These
procedures are adequate on their face, and without trying
them, Osborne can hardly complain that they do not work
in practice.
Osborne, 557 U.S. at 71 (internal citations omitted).
Because there is no indication that plaintiff has ever filed
an application under the Ohio statutes, his complaint contains no
factual basis gleaned from personal experience for arguing that
those procedures would be constitutionally deficient as applied to
him.

See Hartman v. Walsh, No. 5:11-cv-1401, 2011 WL 5362123 at

*3-4 (N.D.Ohio Nov. 2, 2011)(granting motion for judgment on the
pleadings on procedural due process claim where plaintiff had used
only the general postconviction relief methods available under
§2953.21, and had not filed an application for DNA testing under
§§2953.71-2953.83).

He also does not allege in his complaint how

the Ohio DNA testing procedures are inadequate on their face.
Conclusory allegations are insufficient to state a civil rights
claim.

Crawford-El v. Britton, 523 U.S. 574, 588 (1998); see also

Hartman, 2011 WL 5362123 at *4 (plaintiff who did not plead how
§§2953.71-2953.83 were inadequate failed to state a procedural due
process claim); Dell v. O’Hare, No. 2-15-CV-11211, 2015 WL 5063267
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at *2 (E.D.Mich. Aug. 27, 2015)(conclusory allegations challenging
Michigan procedures for DNA testing were insufficient to state a
procedural due process claim).
Plaintiff’s allegations that he has been denied his equal
protection rights are also conclusory in nature.

He has provided

no factual support for this claim, nor has he described how he has
been treated differently for others who are similarly situated.
See Bannum, Inc. v. City of Louisville, Kentucky, 958 F.2d 1354,
1359-60 (6th Cir. 1992); Dell, 2015 WL 5063267 at *3 (dismissing
equal protection claim on initial screen where plaintiff provided
no factual support for his equal protection claim and failed to
show how he had been treated differently from others similarly
situated). The court finds that plaintiff has failed to adequately
plead a due process or equal protection claim.
Having reviewed the report and recommendation and plaintiff’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court finds that plaintiff’s objections are without merit. The
court overrules plaintiff’s objections and adopts the magistrate
judge’s report and recommendation (Doc. 5).

This action is hereby

dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to
state a claim for which relief may be granted.

The clerk shall

enter judgement dismissing this case.

Date: December 4, 2015

s/James L. Graham
James L. Graham
United States District Judge

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