Cramer v. State Of Ohio

Filing 4

ORDER and REPORT AND RECOMMENDATION: Plaintiff's request to proceed 1 in forma pauperis is GRANTED. The Magistrate Judge RECOMMENDS that the Court DISMISS this 5 action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted. Objections to R&R due by 2/23/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/9/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text and linked Complaint to this entry on 2/9/2018 (kpt).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PAUL JOE CRAMER,
Plaintiff,
Civil Action 2:18-cv-63
Judge James L. Graham
Magistrate Judge Chelsey M. Vascura

v.
STATE OF OHIO,
Defendant.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Paul Joe Cramer, an Ohio resident proceeding without the assistance of counsel,
brings this action under 42 U.S.C. § 1983 against the State of Ohio. Plaintiff alleges that the
State violated his right to due process as guaranteed by the Fourteenth Amendment to the United
States Constitution when an Ohio common pleas court sentenced him to a period of community
control that was greater than contemplated by his plea agreement and without ordering a
presentence investigation as required by Ohio law. Plaintiff seeks damages of $4,000,000,
expungement, and release from community control.
Plaintiff’s request to proceed in forma pauperis is GRANTED. (ECF No. 1.) 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 also before the Court 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, the undersigned RECOMMENDS 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 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. See
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)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
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Formerly 28 U.S.C. § 1915(d).
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set forth in Federal Rule of Civil Procedure 8(a). 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). 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)). Further, 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) of the Federal Rules of Civil Procedure, “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. In considering whether this facial plausibility standard is met, a Court must
construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se 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. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).

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II.
Plaintiff Cramer alleges that, in 2016, a Belmont County, Ohio, Common Pleas Court
sentenced him to a period of incarceration followed by five years of community control
sanctions, even though Plaintiff and the judge had both signed a plea agreement that
contemplated only four years of community control sanctions. Plaintiff also alleges that the
Common Pleas Court erred by failing to order a presentence investigation, as required by Ohio
law, before sentencing Plaintiff to community control. Plaintiff asserts that the Common Pleas
Court’s actions violated due process rights guaranteed to him by the Fourteenth Amendment.
The essence of Plaintiff’s constitutional claim is that a state court sentenced him in
violation of the United States Constitution. That claim is “Heck-barred.”
In Heck, the United States Supreme Court held that, in assessing a § 1983 claim, the
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.
Although Heck addressed only claims for monetary damages, the Supreme Court later made
clear that the Heck rule extends to any claim for relief that would necessarily call into question
the validity of a conviction or sentence. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)
Here, Plaintiff’s request for monetary relief, expungement, and release from community
control constitutes a collateral attack on his sentence. Under Heck, Plaintiff cannot proceed with
his § 1983 claim 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

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corpus . . . .” Heck, 512 U.S. at 486–87. Plaintiff has, therefore, failed to state a claim upon
which relief may be granted, and it is RECOMMENDED that the Court DISMISS Plaintiff’s
Complaint pursuant to § 1915(e)(2).
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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).
Plaintiff is specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review 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

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specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

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

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