Smith v. Anderson et al
REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the Complaint in itsentirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for relief on which relief can be granted re 5 Complaint filed by William E. Smith. Objections to R&R due by 12/18/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on December 4, 2017. (jlk)(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
WILLIAM E. SMITH,
Case No. 2:17-cv-800
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
LAWRENCE COUNTY, et al.,
INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, William E. Smith, a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against Brigham Anderson (Lawrence County
Prosecutor), Jeff Lawless (Lawrence County Sheriff), William Winters (Lawrence County
Deputy Sheriff), and Lawrence County. (ECF No. 5.) This matter is 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),
1915A(b); 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 the Complaint in its entirety.
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-*
(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.
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) (emphasis in original).
Formerly 28 U.S.C. § 1915(d).
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 ain complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
Cir. April 1, 2010) (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)).
Although the Complaint and the attached exhibits are often difficult to follow, Plaintiff
appears to rest his claims on two underlying bases: an alleged burglary charge and an alleged
failure to mail a civil rights complaint. (Complaint, ECF No. 5 (“Compl.”).) The Court
addresses each in turn.
Claims arising from an alleged burglary charge
Plaintiff alleges that, while he was incarcerated, he moved on three occasions in 2013
through 2015, for “speedy disposition” of all criminal matters against him. (Id. at 5–6.) Other
than an indictment based on his previous escape, Plaintiff alleges that he was advised that there
were no outstanding “warrants/indictments” or “warrant/detainers/holders” against him. (Id.)
However, Plaintiff alleges that on October 15, 2016, he “observed on the unit kiosk a pending
detainer/warrant/from Lawrence County, Ohio seemingly ‘unveiled in tardy fashion,’ since it
purportively [sic] derived from February 4, 2007, alleged Burglary[.]” (Id. at 6 (internal
quotation marks in original).) It is not clear if Plaintiff complains that this burglary charge was
never filed or was filed too late or if he complains that the detainer on an existing charge was
belatedly filed. (Id. at 3–12.) In any event, Plaintiff further alleges that the burglary charge was
later dismissed. (Id. at 8.) Plaintiff asserts that Defendants’ actions or failures related to his
burglary charge violated his rights under the Equal Protection Clause and the Due Process Clause
of the Fourteenth Amendment to the United States Constitution. (Id. at 9–12.)
To the extent Plaintiff seeks to assert an equal protection violation, he has failed to
sufficiently allege such a claim. The Equal Protection Clause provides that no State shall “deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV,
§ 1. Here, Plaintiff does not allege that he was subjected to disparate or discriminatory treatment
because of his membership in a protected class; nor does he allege that other similarly situated
inmates were treated differently. (See generally Compl.) Accordingly, Plaintiff has not stated a
colorable claim of denial of equal protection. See McCleskey v. Kemp, 481 U.S. 279, 292
(1987); Wells v. Jefferson Cty. Sheriff Dep’t, 159 F. Supp. 2d 1002, 1008 (S.D. Ohio 2001).
Plaintiff also alleges that Defendants’ actions or failures related to Plaintiff’s burglary
charge violated his rights to due process. (Compl., pp. 9–12.) “[T]he Fourteenth Amendment’s
Due Process Clause protects persons against deprivations of life, liberty, or property; and those
who seek to invoke its procedural protection must establish that one of these interests is at
stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a procedural due process claim
under § 1983, Plaintiff must demonstrate “that he possessed a protected property or liberty
interest and was deprived of that interest.” Warren v. City of Athens, Ohio, 411 F.3d 697, 708
(6th Cir. 2005). Here, Plaintiff’s claim fails because he has not identified any deprivation. (See
generally Compl.) While he alleges during the course of transfers between certain facilities that
he was not permitted to bring property with him and ultimately lost that property (id. at 7; ECF
No. 5-1 at 7 (list of alleged property loss)), he alleges no facts that even suggest that the alleged
failure to institute criminal proceedings or failure to lodge a detainer against him was a
proximate cause of the loss of that property. (Id.) For these reasons, Plaintiff has failed to state a
viable § 1983 due process claim based on Defendants’ actions or failures related to his burglary
Plaintiff also alleges that he recently discovered that another indictment had been filed
against him in Lawrence County. (Id. at 11.) Although Plaintiff does not specify the charge
contained in that indictment, it appears that the indictment may once again assert the burglary
charge, because Plaintiff complains that “this case has been once at bar. . . .” (Id.) To the extent
that, by his request for “prospective declaratory judgment,” (id. at 13), Plaintiff intends to ask
this Court to interfere with a pending state criminal prosecution, this Court must abstain from
doing so. Younger v. Harris, 401 U.S. 37 (1971) (providing that federal courts must abstain
from enjoining a state criminal prosecution absent extraordinary circumstances); see also
Samuels v. Mackell, 401 U.S. 66, 72 (1971) (holding that Younger abstention also applies to
federal claims for declaratory judgment).
In addition, to the extent that Plaintiff asserts claims against Defendant Brigham
Anderson, the Lawrence County Prosecutor, in his individual capacity,1 this Defendant is entitled
to prosecutorial immunity. “[A] prosecutor enjoys absolute immunity from § 1983 suits for
damages when he [or she] acts within the scope of his [or her] prosecutorial duties.” Imbler v.
Patchtman, 424 U.S. 409, 420 (1976). “‘Absolute prosecutorial immunity is not defeated by a
showing that the prosecutor acted wrongfully or even maliciously, or because the criminal
defendant ultimately prevailed on appeal or in a habeas corpus proceeding.’” Grant v.
Holenbach, 870 F.2d 1135, 1138 (6th Cir.1989) (quoting M. Schwartz & J. Kirklin, Section 1983
Litigation: Claims, Defenses, and Fees § 7.8 (1986)). Plaintiff does not assert that Defendant
Anderson was acting outside of his prosecutorial duties when he failed to file a burglary charge
or detainer or allegedly delayed in filing such a charge. Defendant Anderson is therefore
immune from Plaintiff’s individual capacity claim based on conduct related to an alleged
burglary charge. Imbler, 424 U.S. at 420; Grant, 870 F.2d at 1138.
Alleged failure to mail civil rights complaint
Plaintiff also alleges that he previously prepared a complaint under 42 U.S.C. § 1983,
alleging violations “of his civil rights by state actors under color of law and office.” (Compl. at
8.) According to Plaintiff, he placed this complaint in an envelope addressed to this Court for
filing and handed the envelope to Defendant William Winters, Lawrence County Deputy Sheriff,
for mailing on October 22, 2016. (Id.) Plaintiff alleges that he later checked on the status of his
filing and learned on February 16, 2017, that the Court had never received the complaint. (Id. at
9.) Plaintiff asserts claims of denial of his right of access to the courts. (Id.)
In addition to the above allegations, Plaintiff alleges that Defendant Anderson “illicited [sic]
false and misleading information to an Ohio grand jury” relating to the alleged burglary charge.
(Compl. at 10.)
Inmates enjoy a right of access to the courts under the First Amendment to the United
States Constitution. Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817
(1977); Flagg v. City of Detroit, 715 F.3d 165, 173 (6th Cir. 2013). However, an inmate’s
constitutional right of access to the courts is restricted to actions attacking the inmate’s sentence
or challenging the conditions of the inmate’s confinement. Lewis v, 518 U.S. at 355. In order to
state a claim for the denial of that right, Plaintiff must allege that (1) he was prevented from
filing a non-frivolous legal claim challenging either his conviction or the conditions of his
confinement, (2) he suffered actual injury, and (3) his legal claim was lost or rejected or he is
currently prevented from bringing the claim. Clark v. Corr. Corp. of Am., 113 F. App’x 65, 68
(6th Cir. 2004).
Here, Plaintiff does not identify the precise nature of civil claim addressed in his
complaint, nor does he clearly allege that he intended to attack a pending prosecution or the
conditions of his confinement. Moreover, Plaintiff has not alleged that he suffered actual injury
by reason of any failure on the part of Defendant Williams to mail his civil complaint. The
burglary prosecution about which Plaintiff complained was in any event voluntarily dismissed
and Plaintiff does not allege that any legal claim challenging the conditions of his confinement
has been foreclosed to him (although the presentation of such a claim may require the filing of
another complaint). For these reasons, Plaintiff has failed to state a claim of denial of his right of
access to the courts. See, e.g., Clark, 113 F. App’x at 68; Dellis v. Corrs. Corp. of Am., 257 F.3d
508, 511 (6th Cir. 2001) (“Plaintiff failed to state an access to the court claim because he did not
demonstrate actual prejudice to pending or contemplated litigation.”).
Finally, the Court notes that Plaintiff at times invokes state law, but it is not clear what he
intends by these invocations. (Compl. at 5–6, 12.) To the extent that Plaintiff intends to assert
claims under state law, it is RECOMMENDED that such claims be dismissed without prejudice
to institution in an appropriate state forum.
For the reasons set forth above, it is RECOMMENDED that the Complaint in its
entirety be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim for
relief on which relief can be granted. The Clerk is DIRECTED to send a copy of this Report
and Recommendation to the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor,
Columbus, Ohio 43215.
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 [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
IT IS SO ORDERED.
Date: December 1, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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