Thompson v. Brown et al

Filing 4

REPORT AND RECOMMENDATION re 3 Complaint filed by Lowell W. Thompson in that it is RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted. The Court W ITHDRAWS the August 21, 2017 Report and Recommendation (ECF No. 2) AS MOOT. Objections to R&R due by 9/25/2017. Response to objections must be filed within fourteen (14) days after being served with a copy. Signed by Magistrate Judge Chelsey M. Vascura on 9/11/2017. (kdp)(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

LOWELL W. THOMPSON,
Plaintiff,
Civil Action 2:17-cv-721
Judge George C. Smith
Magistrate Judge Chelsey A. Vascura

v.

CHRISTOPHER J. BROWN, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Lowell W. Thompson, a state inmate who is proceeding without the assistance
of counsel, brings this action against a number of defendants who he maintains conspired to have
him tried, convicted, and sentenced. On August 21, 2017, the Court issued a Report and
Recommendation recommending that Plaintiff’s Application to Proceed In Forma Pauperis be
denied and that he be granted thirty days or to either pay the Court’s filing fee of submit the
proper documentation. (ECF No. 2.) The Court further advised Plaintiff that “if
he opts to proceed with this litigation, which appears to fail to state viable claims, his action may
be subject to dismissal as frivolous under 28 U.S.C. § 1915(e)(2).” (Id. at 1-2.) On September 5,
2017, Plaintiff paid the filing fee. The Court therefore WITHDRAWS the August 21, 2017
Report and Recommendation (ECF No. 2) AS MOOT.
This matter is now before the Court for the initial screen of Plaintiff’s Complaint under
28 U.S.C. §§ 1915(e)(2) and 1915A 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); see also McGore v. Wrigglesworth, 114 F.3d 601, 608
(6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to
state a claim on which relief may be granted.
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, which
provides in pertinent part as follows:
(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.
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Formerly 28 U.S.C. § 1915(d).
2

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)

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(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has
limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.
Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II.
The entirety of Plaintiff’s Complaint states as follows:
Christopher J. Brown, Edmond P. Costello, Randy Nice, and Rachael
Price conspired together without state substantive authority to do so and tried,
convicted and sentenced Lowell W. Thompson to prison. Edmund P. Costello
and Price without state statutory authority prosecuted Thompson for a criminal
offense which he was never lawfully accused of, thereby denying him of any state
sabotage remedy by law. Defendants Ronald C. Parsons and J.A. Peistrup acting
as trial counsel attorneys for Thompson alleged to represent him in a criminal
case where none existed by law. And Defendants Powell, Hendrickson, and
Roughand ruled on Thompson’s case in the court of appeals on procedure without
lawful state authority, conspiring with others to deny Thompson the due process
and equal protection of the law. These defendants knowingly denied Thompson
substantive rights as a citizen by denying him his basic 4th Amendment rights and
a trial by a court of law. As Defendant Brown refused to respond to the question
of subject-matter jurisdiction raised in a motion to arrest judgment.
(Compl. 2, ECF No. 3.)
The foregoing allegations fail to survive the Twombly and Iqbal pleading standards. The
undersigned is unable to discern what specific actions a state actor took that could plausibly form
the basis of a claim entitling Plaintiff to relief. For example, Plaintiff alleges that several
Defendants engaged in a conspiracy to violate his rights. “A civil conspiracy under § 1983 is an
agreement between two or more persons to injure another by unlawful action.” Bazzi v. City of
Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (internal citation and quotations omitted). To state
an actionable civil conspiracy claim, a plaintiff must allege the following elements: “(1) a single
plan existed, (2) [the defendant] shared in the general conspiratorial objective to deprive [the
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plaintiff] of his constitutional (or federal statutory) rights, and (3) an overt act was committed in
furtherance of the conspiracy that caused injury to [the plaintiff].” Id. A plaintiff may not rely
on mere speculation and conjecture to establish the existence of an agreement. Moore v. City of
Paducah, 890 F.2d 831, 834 (6th Cir. 1989) (in the summary judgment context). Applied here,
Plaintiff’s conclusory allegations fail to plausibly state a conspiracy claim.
Moreover, because all of the claims Plaintiff seeks to assert appear to imply the invalidity
of his state-court criminal conviction, they must be dismissed as “Heck-barred.” In Heck, the
United States Supreme Court held that, in assessing a claim under 42 U.S.C. § 1983, a court
“must consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). If the
claim would render a conviction or sentence invalid, “the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id.
Here, Plaintiff’s claims appear to be premised upon his allegations that his criminal trial,
conviction, and sentencing were unlawful or are invalid. Thus, under Heck, Plaintiff cannot
proceed with any § 1983 claims because he cannot “prove that [his] conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486–87.
If instead Plaintiff seeks to directly challenge the fact or duration of his confinement, his
sole remedy in federal court is habeas corpus. See Skinner v. Switzer, 131 S.Ct. 1289, 1293
(2011) (“Habeas is the exclusive remedy . . . for the prisoner who seeks immediate or speedier
release from confinement.” (internal quotation marks and citation omitted)). Thus, to pursue any

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such direct challenge to the duration of his incarceration, Plaintiff must file a petition for a writ
of habeas corpus that complies with Rule 2(d) of the Rules Governing Habeas Corpus Cases
Under Section 2254. The undersigned also notes that Plaintiff has failed to allege that he has
exhausted his state-court remedies, which is a prerequisite to obtaining habeas relief under §
2254. 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be granted unless it appears
that— (A) the applicant has exhausted the remedies available in the courts of the State . . . .”).
Finally, although Plaintiff fails to provide the official capacity titles for the defendants he
sues, it appears that several are either judicial officers or prosecutors. Both judges and
prosecutors enjoy absolute immunity from civil liability when acting within acting within the
scope of their duties. Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (judges immune); Imber v.
Pachtman, 424 U.S. 409, 427 (1976) (prosecutors immune). For this additional reason,
Plaintiff’s claims against those defendants who are judges or prosecutors must be dismissed.
III.
For the reasons set forth above, it is RECOMMENDED that this action be dismissed
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.
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.

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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 [the 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)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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