Jacobs v. Cook

Filing 12

OPINION AND ORDER OVERRULING Plaintiff's Objection, UPHOLDING 9 REPORT AND RECOMMENDATIONS. Signed by Judge Algenon L. Marbley on 12/22/2016. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION EARL RALPH JACOBS, Case No. 16-cv-770 Plaintiff, JUDGE ALGENON L. MARBLEY V. Magistrate Judge Jolson WARDEN BRIAN COOK, Defendant. OPINION & ORDER Before the Court is PlaintifPs Objection to the Report and Recommendation of the MagistrateJudge (Doc. 10). For the reasons that follow, the Court OVERRULES the objection, UPHOLDING the judgment of the Magistrate Judge, DISMISSING this case. I. BRIEF BACKGROUND On October 3,2016, the MagistrateJudge recommended that the Complaint in the above- styledmatterbe dismissed pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), which demand dismissal of a complaint or any portionthereofthat a court finds is "fiivolousor malicious," "failsto statea claim on which reliefmaybe granted," or "seeks monetary reliefagainst a defendant who is immune from such relief."29 U.S.C. § 1915(e)(2)(i)-(iii). Plaintifffiled his Complaint with the Courton September 29,2016, alleging violations of the First, Fifth, Sixth, Eighth, Thirteenth, Fourteenth, and Fifteenth Amendments of the United States Constitution, along with claims arising imder the Ohio Constitution. He is suing Brian Cook, Warden of the SoutheasternCorrections Institution, under 42 U.S.C. § 1983. In his Objection, Plaintiffalso moves the Court to appoint him counsel under the Sixth Amendment to the United States Constitution. II. DISCUSSION As the Magistrate Judge laid out in its Report and Recommendation, a plaintiffmay bring a suit against a state actor for personal liability if the defendant, acting under the color of law, deprived the plaintiff of a federal right. Kentucl^ v. Graham, 473 U.S. 159,165-66 (1985). A plaintiffmay bring an action for liability in such a defendant's official capacity if the plaintiff successfiilly proves that the entity's '"policy or custom'... played a part" in the defendant's violation of the federal law. Id. (citing Mo/ie// v. Dep't ofSoc. Servs., 436 U.S. 658,694 (1978)). The Magistrate Judge recommends dismissal for three reasons: (1) Plaintiff does not provide satisfactory allegations regarding any of the violations he alleges; (2) much of the complaint concerns wrongful detention, which may not proceed under 42 U.S.C. § 1983 unless and until Plaintiffs imderlying 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)); and (3) the allegations concem activity that took place well before the two-year window during which, after the constitutional violations had occurred. Plaintiff may bring a suit under § 1983 in Ohio. Browning V. Pendleton, 869 F.2d 989,990 (6th Cir. 1989). Plaintiff makes several arguments, only one of which is on point. The pertinent argument is that the Court cannot hold him to the same stringent standard as a trained lawyer. See Haines V. Kerner, 404 U.S. 519, 520 (1972). This is true yet unpersuasive, because the Magistrate Judge's Report and Recommendation acknowledged as much, {seeDoc. 10 at 2), and this Court on review finds nothing amiss with the Magistrate Judge's application of that standard. Plaintiffs remaining arguments are unintelligible or outlandish, and they include what seems to be an allegation that the Court's conduct has somehow violated the separation of powers doctrine, an argument that God is more important than the government, and a request for emancipationfrom slavery. In any event, because the arguments do not direct the Court to any of the bases of the Magistrate Judge's recommendation that the matter be dismissed, the Court will not address those arguments. And because Plaintiffs Objection provides no colorable argument why insufficient pleading or the statute of limitations does not bar this action. Plaintiff objects neither specifically nor understandably to the Magistrate Judge's recommendation. The Court therefore OVERRULES Plaintiffs Objection, UPHOLDING the Report and Recommendation of the Magistrate Judge, DISMISSING this case. See Miller v. Currie, 50 F.3d 373,380 (6th Cir. 1995) (objections to a magistrate's report and recommendation "must be clear enough to enable the district court to discern those issues that are dispositive and contentious.") (citing Howard v. Sec'y ofHealth & Human Servs., 932 F.2d 505,509 (6th Cir. 1991)). The Court also DENIES Plaintiffs request to appoint counsel. Plaintiff is not under accusation of the government in a criminal proceeding, and the Sixth Amendment affords the assistance of counsel only in such cases. U.S. Const, amend. VI. This case is DISMISSED. IT IS SO ORDERED. s/Algenon L. Marblev ALGENON L. MARBLEY UNITED STATES DISTRICT COURT

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