Sinkovitz v. Ralf Robinson Inc.

Filing 6

ORDER finding as moot 2 Motion ; adopting Report and Recommendations re 3 Report and Recommendations. Any future petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 should not be construed as a second or successive petition. Signed by Judge James L. Graham on 10/19/2017. (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
Paul Sinkovitz,
Plaintiff,
v.

Case No. 2:17-cv-616

Ralf Robinson Inc.,
Defendant.
ORDER
This is a pro se action filed by Paul Sinkovitz, a state
inmate, against Ralf Robinson Inc. (identified as “Ralph Robinson,
Inc. Ohio Pump & Supply” in documents attached to the complaint),
a private creditor which is apparently seeking a judgment against
plaintiff in an Ohio court.

This matter is before the court for

consideration of the magistrate judge’s report and recommendation
(Doc. 3).

The magistrate judge conducted an initial screen of

plaintiff’s complaint pursuant to 28 U.S.C. §§1915(e)(2) and 1915A,
and

recommended

that

this

action

be

dismissed

pursuant

to

§1915(e)(2) for failure to state a claim on which relief may be
granted.
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
§636(b)(1).

made

by

the

magistrate

judge.”

28

U.S.C.

On October 17, 2017, plaintiff filed an objection to

the report and recommendation, and on October 18, 2017, plaintiff

filed a supplemental objection.
As

the

magistrate

judge

correctly

explained,

28

U.S.C.

§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.
(6th Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572

Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard.

See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 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
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).
allegations

or

legal

conclusions

allegations will not suffice.

Id.

masquerading

Conclusory
as

factual

While the complaint need not

contain detailed factual 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.

2

544, 555, 570 (2007).

Where the facts pleaded do not permit the

court to infer more than the mere possibility of misconduct, the
complaint has not shown that the pleader is entitled to relief as
required under Federal Rule of Civil Procedure 8(a)(2).

Id.

The magistrate judge noted that plaintiff complains that he
has been unlawfully incarcerated, and he asserts a right of habeas
corpus.

The magistrate judge correctly concluded that to the

extent that plaintiff sought to file a petition for a writ of
habeas corpus pursuant to 28 U.S.C. §2254, his complaint is
deficient because it names a private business as the defendant, not
the state official responsible for his custody, and contains no
allegations demonstrating that plaintiff has exhausted his state
court remedies.

The magistrate judge also properly noted that, to

the extent that plaintiff seeks to pursue a civil action for money
damages premised on an allegedly invalid criminal conviction, the
action is barred under Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), because plaintiff has not alleged that his conviction has
been reversed on direct appeal or otherwise declared to be invalid.
Insofar as plaintiff asserts that defendant is liable under 42
U.S.C. §1983 for his alleged unconstitutional incarceration, his
complaint fails to state a claim on which relief may be granted
because plaintiff has alleged no facts showing that defendant, a
private corporate entity, is a state actor.

To the extent that

plaintiff is seeking to somehow challenge the actions of the state
municipal court judge in the proceedings filed in that court
against plaintiff

by the defendant, plaintiff has shown no basis

for this court to exercise jurisdiction over that action.
Plaintiff

has

filed

objections

3

to

the

report

and

recommendation.

However, the conclusory arguments he makes are

insufficient to demonstrate that the magistrate judge’s legal
determinations were incorrect.

The court concludes that the

magistrate judge did not err in concluding that the complaint fails
to state a claim on which relief may be granted.
In accordance with the foregoing, the court denies plaintiff’s
objections

(Docs.

4

and

5),

and

adopts

the

report

and

recommendation (Doc. 3). Plaintiff’s petition for release (Doc. 2)
is denied as moot.

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.
this case.

The clerk shall enter judgement dismissing

Any future application for writ of habeas corpus filed

pursuant to 28 U.S.C. §2254 shall not be construed as a second or
successive petition.

Date: October 19, 2017

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

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