Al'Shahid v. Mohr et al

Filing 5

REPORT AND RECOMMENDATION AND ORDER: It is RECOMMENDED that the Court dismiss Plaintiff's claims pursuant to Section 1915(e)(2) AND accordingly, it is recommended that the Court dismiss Plaintiff's Motion to Appoint Counsel 4 . ORDER: I t is Ordered that Plaintiff's request to proceed in forma pauperis is GRANTED 1 . Signed by Magistrate Judge Elizabeth Preston Deavers on April 4, 2018. (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
EASTERN DIVISION

CURTIS AL’SHAHID,
Plaintiff,
Civil Action 2:18-cv-33
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

GARY C. MOHR, 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 Gary C. Mohr, Director of the Ohio
Department of Rehabilitation and Corrections, and Andre Imbrogno, Chairperson of the Ohio
Adult Parole Board (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 and
Amended 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-*

*

*

(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
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
1

Formerly 28 U.S.C. § 1915(d).

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 and Amended Complaint, Defendants were involved in
various capacities with Plaintiff’s denial of parole. (ECF No. 1-1 at 2-3 & 1-6 at 2.) On May 1,
2014, and March 1, 2017, Plaintiff was denied parole by the Ohio Adult Parole Board. (ECF No.
1-1 at 3.) Plaintiff alleges that an intentionally inaccurate report of his previous convictions
caused these denials and that Defendants are responsible for the inaccuracies. (Id. at 2-4.)
Plaintiff maintains that Defendants thereby violated his due process rights under the Fourteenth
Amendment. (Id. At 4.) Plaintiff seeks declaratory and injunctive relief, including “immediate
release” from prison, $80,000.00 in compensatory damages, and $80,000.00 in punitive
damages. (Id. at 6; ECF No. 1-6 at 5.)1
III.
Plaintiff purports to bring this action under 42 U.S.C. § 1983. To the extent that Plaintiff
seeks an order declaring that his parole denial was made 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 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
1

Plaintiff’s Amended Complaint (ECF No. 1-6) is very similar to his original complaint except
to the extent that he removes his request for injunctive relief and his request to be immediately
released, and provides additional information about the purported fabrication of the reports of his
previous convictions.

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 monetary damages for denial of “a meaningful parole board hearing,” which
necessarily implicates the length of his confinement, and a judgment for plaintiff would
necessarily undermine his criminal conviction. (ECF No. 1-6 at 5.) Consequently, the
Complaint fails to state a claim for relief under 42 U.S.C. § 1983.
If, alternatively, the “due process” which Plaintiff 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 application 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 his conditional
release on parole was unlawfully denied, he must first show that the Ohio Adult Parole
Authority’s decision to deny 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
named defendants. It is therefore RECOMMENDED that the Court dismiss Plaintiff’s claims

pursuant to Section 1915(e)(2). Accordingly, it is also recommended that the Court dismiss
Plaintiff’s Motion to Appoint Counsel. (ECF No. 4.)
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)).

IT IS SO ORDERED.

Date: April 4, 2018

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