Albert v. Ohio Adult Parole Authority et al

Filing 5

REPORT AND RECOMMENDATIONS: Magistrate Judge grants 1 Motion to Proceed In Forma Pauperis and recommends dismissing 4 Complaint. Objections to R&R due by 10/12/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/28/2017. (df)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THOMAS ALBERT,
Plaintiff,
Civil Action 2:17-cv-701
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

OHIO ADULT PAROLE
AUTHORITY, et al.,
Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Thomas Albert, an Ohio citizen who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against the Ohio Adult Parole Authority, his
parole officer James Haas, his parole revocation hearing officer Jennifer Pribe, and Cynthia
Mausser in an unknown capacity (collectively “Defendants”), all of whom are Ohio citizens.
Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who render
services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This
matter is before the United States Magistrate Judge for the initial screen of Plaintiff’s Complaint
under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of
Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons
that follow, it is RECOMMENDED that the Court DISMISS this Plaintiff’s claims against
Defendants for failure to assert any claim over which this Court has subject matter jurisdiction.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 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.
A federal court has limited subject matter jurisdiction. “The basic statutory grants of
federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for
‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’
jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is

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Formerly 28 U.S.C. § 1915(d).
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invoked when a plaintiff pleads a claim “arising under” the federal laws, the Constitution, or
treaties of the United States. Id. (citation omitted). For a federal court to have diversity
jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that
each plaintiff must be a citizen of a different state than each defendant, and the amount in
controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).
II.
According to the Complaint, Defendants were involved in various capacities with
Plaintiff’s parole revocation. (ECF No. 1-1 at 5, 7.) On May 25, 2015, Plaintiff entered custody
at the Franklin County Jail for failure to communicate with his parole officer. (Id. at 5.) On
May 29, 2017, Plaintiff was transferred to the Franklin County Corrections Center II, where he
participated in a fight and subsequently received sanctioning by the sheriff’s staff. (Id.) As a
result of these events, Plaintiff was charged with violating the terms of his parole. (Id.)
Plaintiff’s parole was revoked following a hearing on July 20, 2017. (Id. At 7.) Plaintiff alleges
that revocation of his parole violates his “due process” rights and denies him his right to confront
witnesses against him. (Id.) Plaintiff seeks a rehearing of his parole revocation and $10,500 in
damages. (Id. at 6.)
III.
Plaintiff purports to bring this action under 42 U.S.C. § 1983. To the extent that Plaintiff
seeks an order declaring that state court revocation of his conditional release on parole was
obtained in violation of his rights guaranteed under the United States Constitution, however,
Plaintiff must proceed by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. A
civil rights action is not a substitute for habeas corpus. When a prisoner challenges the fact or
duration of his confinement, his sole federal remedy is habeas corpus. Heck v. Humphrey, 512
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U.S. 477, 787 (1994); Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas is the exclusive
remedy . . . for a prisoner who seeks immediate or speedier release from confinement.”). A
convicted criminal defendant cannot bring a claim under 42 U.S.C. § 1983 if a judgment on the
claim “would necessarily imply the invalidity” of his criminal conviction and that conviction has
not been set aside. Heck, 512 U.S. at 487. Here, Plaintiff seeks another parole hearing, which
necessarily implicates the length of his confinement, and a judgment for plaintiff would
necessarily undermine his criminal conviction. Consequently, the Complaint fails to state a
claim for relief under 42 U.S.C. § 1983.
If, alternatively, the “due process” which Bailey seeks consists of monetary damages
from Defendants, he cannot recover damages in a § 1983 proceeding, based on the doctrine set
forth in Heck. Plaintiff’s allegations that Defendants violated his constitutional rights during
various stages of the parole revocation process amount to no more than a collateral challenge of
his imprisonment. “[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
been [overturned].” Heck, 512 U.S. at 486–87. In other words, before Plaintiff may seek money
damages in a federal civil rights proceeding in which he appears to claim that the revocation of
his conditional release on parole was unlawfully obtained, he must first show that the Ohio Adult
Parole Authority’s decision to revoke his parole has been overturned or set aside.
IV.
For the reasons explained above, Plaintiff’s Complaint fails to assert any claim over
which this Court has subject matter jurisdiction. Accordingly, the Undersigned finds that
Plaintiff has not made out viable claims upon which relief may be granted against any of the
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named defendants. It is therefore RECOMMENDED that the Court dismiss Plaintiff’s claims
pursuant to Section 1915(e)(2).
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
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 of 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 object to the
magistrate judge’s recommendations constituted a waiver of [th defendant’s] 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 of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those 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 to preserve an issue for appeal . . . .” (citation
omitted)).

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IT IS SO ORDERED.

Date: September 28, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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