Heru v. State of Ohio Inc. et al

Filing 56

OPINION AND ORDER - The Magistrate Judge's Reports and Recommendations ECF Nos. 941] and 52 are ADOPTED. Plaintiff's Objections ECF Nos. 47 and 55 are OVERRULED. Defendants' Motion for Summary Judgment ECF No. 29 is GRANTED. Signed by Judge Edmund A. Sargus on 10/27/2020. (cmw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:17-cv-00658-EAS-KAJ Doc #: 56 Filed: 10/27/20 Page: 1 of 4 PAGEID #: 780

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SAKHU MAA TEM HERU,
Plaintiff,
Case No. 2:17-cv-658
Judge Edmund A. Sargus, Jr.
Magistrate Judge Kimberly A. Jolson

v.
STATE OF OHIO INC., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff’s Objection to the Magistrate
Judge’s September 16, 2019, Report and Recommendation, (ECF No. 52), as well as Plaintiff’s
Objection to the Magistrate Judge’s June 19, 2019, Report and Recommendation. (ECF No. 41).
The Magistrate Judge first issued a June 19, 2019, Report and Recommendation, (ECF No. 41), to
which Plaintiff objected. (ECF No. 47). This Court recommitted the matter to the Magistrate Judge
to address the new arguments, and the facts in support of such arguments, raised in Plaintiff’s
Objection. (ECF No. 49). The Magistrate Judge considered these new arguments and issued the
September 16, 2019, Report and Recommendation, (ECF No. 52), recommending this Court grant
Defendants’ Motion for Summary Judgement (ECF No. 29). Plaintiff objected. (ECF No. 55). For
the reasons below, the Court OVERRULES Plaintiff’s Objections (ECF Nos. 47, 55) and
ADOPTS both Reports and Recommendations. (ECF Nos. 41, 52). Defendants’ Motion for
Summary Judgement (ECF No. 29) is GRANTED.
Plaintiff, while a prisoner at Belmont Correctional Institution 1, proceeding pro se, initiated
this action in Tuscarawas County Court of Common Pleas and subsequently removed it to the

1

Plaintiff has since been transferred to London Correction Institution. (See ECF No. 47, Ex. 1)

1

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United States District Court for the Northern District of Ohio, Easter Division on February 6, 2017.
(ECF No. 1). Plaintiff states that he is an indigenous Native American with Olmec, Ute, Cherokee,
Blackfoot, and free Moorish ancestry.
Acknowledging the difficulty in interpreting Plaintiff’s claims, District Judge Lioi
identified claims related to Plaintiff’s 2008 criminal conviction in Tuscarawas County Court of
Common Pleas, including claims for genocide, denationalization, unlawful arrest, arbitrary
detention, false imprisonment, kidnaping, torture, and cruel and unusual punishment, as well as
claims under the Alien Torts Claims Act, and the First Amendment right to Freedom of Religion.
(ECF No. 5 at 1–2). Having examined all claims, under 28 U.S.C. § 1915(e), Judge Lioi dismissed
Plaintiff’s claims related to his 2008 criminal conviction and his freedom of religion claims against
all Defendants except the BCI Warden and Chaplain. (ECF No. 5 at 8). Judge Lioi subsequently
found the proper venue for the claims against BCI Warden and Chaplain was in this Court and
transferred those claims. (ECF No. 5 at 9).
After the transfer of this case, the remaining Defendants filed a Motion for Summary
Judgement. (ECF No. 29). Plaintiff filed a Motion in Opposition, (ECF No. 39), which this Court
interprets as a response in opposition, and to which Defendants replied. (ECF No. 40). The
Magistrate Judge reviewed the Defendants’ motion and correctly recommended that this Court
grant summary judgement. (ECF No. 41). Plaintiff objected by raising two new arguments. (ECF
No. 47). First, he argues that the Magistrate Judge failed to address his request for a declaratory
judgement based on his alleged status as a citizen of Mexico whose rights are protected under the
Treaty of Guadalupe Hidalgo. (Id. at 2–6). Second, he asserts that his claim for injunctive relief is
not moot because he can now submit evidence that prison officials have denied similar requests

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for religious accommodations since he was transferred to the London Correctional Institution. (Id.
at 6–8).
This Court recommitted the matter to the Magistrate Judge, who then addressed these new
arguments and again recommended this Court grant Defendants’ Motion for Summary Judgement.
Plaintiff then objected to this Report and Recommendation, asserting that the Magistrate Judge
failed to address his request for a declaratory judgement based on the fact that he is a citizen of
Mexico under the treaty of Guadalupe Hidalgo. (ECF No. 55 at 1). 2
If a party objects within the allotted time to a report and recommendation, 28 U.S.C.
§ 636(b)(1) provides that a district court “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which the objection is made. The
district court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate.”
Plaintiff objects that the second Report and Recommendation, (ECF No. 52), failed to
address his request for a declaratory judgement, but the Report and Recommendation did address
Plaintiff’s request for a declaratory judgement. Specifically, the Report and Recommendation
states:
Plaintiff now argues that his alleged status as a Mexican citizen entitled him to
certain protections under the Treaty of Guadalupe Hidalgo and that he is, therefore,
entitled to declaratory relief on his First Amendment and RLUIPA claims. Plaintiff
did not cite, and the [Magistrate Judge] has not been able to find, any authority or
precedent to support this argument. Any religious exercise claims based on the
Treaty of Guadalupe Hidalgo are without merit, if not frivolous.
(ECF No. 52 at 4). This Court agrees. The Treaty of Guadalupe Hidalgo ended the MexicanAmerican War; it does not bare any relation to Defendant’s First Amendment and RLUIPA claims.

2

Defendant does not appear to re-assert that his objection that injunctive relief is not moot in his objection to the
second Report and Recommendation.

3

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Accordingly, the Reports and Recommendations (ECF Nos. 41, 52) are ADOPTED,
Plaintiff’s Objections are OVERRULED (ECF No. 47. 55), and Defendants’ Motion for Summary
Judgement (ECF No. 29) is GRANTED.
IT IS SO ORDERED.
10/27/2020
DATE

s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

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