Pettus-Brown v. Adult Parole Authority et al

Filing 62

ORDER and REPORT AND RECOMMENDATION: Magistrate Judge grants 47 Plaintiffs Request for Judicial Notice of Adjudicative Facts, RECOMMENDS granting 40 Motion for Judgment on the Pleadings and dismissing this case without prejudice. Objections to R&R due by 4/16/2019. Signed by Magistrate Judge Kimberly A. Jolson on 4/2/2019. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LA SHAWN PETTUS-BROWN,
Plaintiff,
Civil Action 2:18-cv-82
Judge George C. Smith
Magistrate Judge Jolson

v.
ADULT PAROLE AUTHORITY, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings (Doc.
40) and Plaintiff’s Request for Judicial Notice of Adjudicative Facts (Doc. 47). For the reasons
that follow, Plaintiff’s Request (Doc. 47) is GRANTED. It is Recommended that the Court
GRANT Defendants’ Motion (Doc. 40) and DISMISS without prejudice Plaintiff’s Amended
Complaint.
I.

BACKGROUND
The relevant background was previously summarized in the November 14, 2018 Report

and Recommendation and Order (Doc. 38 at 1–3). After being convicted on numerous counts of
theft and forgery in the Hamilton County Court of Common Pleas, on December 18, 2017, the trial
court sentenced Plaintiff to a five-year term of incarceration and up to three years of post-release
control after the conclusion of his term of imprisonment. (Doc. 29 at 1–4). 1
Plaintiff’s Amended Complaint (Doc. 11) challenges the constitutionality of Ohio’s post-

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The parties request that the Court take judicial notice that Plaintiff’s current sentence does not include a term of
imprisonment based on a post-release control violation. (See Docs. 47, 54). The Court takes judicial notice of this
fact because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned” and is therefore “not subject to reasonable dispute.” Fed. R. Evid. 201.

release control statute and requests declaratory and injunctive relief. His § 1983 claim alleges that
statute is unconstitutional because it permits the executive branch “to impose a second/new prison
term on releasees (those released from prison) for the same criminal offense from which the
releasee has already completed the judicially imposed definite prison sentence.” (Id., ¶ 1). In
Plaintiff’s view, the post-release control statute “is unconstitutional as the statute is a Bill of
Attainder; violates both the Double Jeopardy and Due Process Clauses; and violates the Separation
of Power Doctrine,” all “in violation of the Constitution of the United States of America.” (Id.,
¶¶ 39–40; see also id., ¶¶ 61–81). 2
Defendants filed a Motion for Judgment on the Pleadings (Doc. 40) on November 21, 2018.
Plaintiff filed his Request for Judicial Notice of Adjudicative Facts (Doc. 47) on December 13,
2018. Both motions are now ripe for resolution.
II.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish
that no material issue of fact remains to be resolved and that they are entitled to judgment as a
matter of law.” Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-292, 2010 WL 3769136, at *2
(S.D. Ohio Sept. 24, 2010) (citations omitted).
In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses the
same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999). Accordingly, the Court “must
construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual

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Plaintiff has voluntarily dismissed his separation of powers claim. (See Doc. 48 at 31 (“Pettus-Brown voluntarily
concedes to the dismissal of Count IV – Separation of Powers”)).

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allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts in
support of those allegations that would entitle them to relief.” Bishop v. Lucent Tech., Inc., 520
F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). To
survive a motion for judgment on the pleadings, the “complaint must contain either direct or
inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.” Bishop, 520 F.3d at 519 (internal quotation marks omitted). Consequently, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
III.

ANALYSIS
Defendants move for judgment on the pleadings on a number of grounds: (1) Plaintiff failed

to allege that Defendants individual conduct harmed him; (2) Plaintiff lacks standing to bring his
claims; (3) claims against Defendants in their official capacity are barred by the Eleventh
Amendment; (4) Plaintiff cannot bring his claims under § 1983; (5) Younger abstention prevents
the Court from ruling on Plaintiff’s claims; (6) Plaintiff’s separation of powers is non-cognizable
in § 1983; and (7) separation of power Plaintiff fails to state a claim upon which relief may be
granted. (Doc. 40 at 3–29). Defendants also contend that Plaintiff’s claims are moot. (Doc. 54 at
4–6).
Beginning with Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court “focused
on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when
they seek to invalidate the duration of their confinement—either directly through an injunction
compelling speedier release or indirectly through a judicial determination that necessarily implies
the unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Thus, a
prisoner was prohibited from seeking relief under § 1983 where the result would “necessarily

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imply the invalidity of [the] conviction or sentence.” Heck v. Humphey, 512 U.S. 477, 487 (1994).
The line of cases starting with Preiser:
taken together, indicate that a state prisoner’s § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or equitable relief), no matter
the target of the prisoner's suit (state conduct leading to conviction or internal prison
proceedings)—if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.
Dotson, 544 U.S. at 81–82.
Plaintiff is currently serving a sentence that includes a term of post-release control. (See
Doc. 29 at 4). He now brings a § 1983 action seeking to have Ohio’s post-release control statute
declared unconstitutional. (See generally Doc. 11). The upshot is that a ruling in his favor would
necessarily invalidate a portion of his sentence. Heck does not permit this. See 512 U.S. at 487;
see also Noel v. Grzesiak, 96 F. App’x 353, 354 (6th Cir. 2004) (“Heck ‘applies to proceedings
that call into question the fact or duration of parole or probation.’” (quoting Crow v. Penry, 102
F.3d 1086, 1087 (10th Cir. 1996)); Hurst v. Pribe, No. 2:14-CV-2552, 2016 WL 1444241, at *3–
4 (S.D. Ohio Apr. 13, 2016) (adopting Magistrate Judge’s Report and Recommendation and
finding that § 1983 claims challenging plaintiff’s terms of post-release control were barred by
Heck); Mate v. Ohio Rehab. & Corr., No. 2:12-CV-834, 2012 WL 5269193, at *2–3 (S.D. Ohio
Oct. 24, 2012) (adopting Magistrate Judge’s Report and Recommendation and finding that § 1983
claims challenging plaintiff’s sentence to post-release control and his subsequent incarceration for
violation of the same were barred by Heck). This is true even though Plaintiff seeks declaratory
and injunctive relief. See Dotson, 544 U.S. at 81–82 (“[A] state prisoner’s § 1983 action is barred
. . . no matter the relief sought (damages or equitable relief), . . . if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.” (emphasis added)); Ramzan

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v. Hares, No. 2:18-CV-219, 2019 WL 580797, at *3 (W.D. Mich. Feb. 13, 2019) (collecting cases)
(“The holding in Heck has been extended to actions seeking injunctive or declaratory relief.”).
Plaintiff insists that he is not challenging his current sentence or his underlying conviction.
(See, e.g., Doc. 48 at 3 (“Pettus-Brown is not challenging a state conviction; and Pettus-Brown is
not challenging the imposition of PRC.”); id. at 5 (“Pettus-Brown’s current incarceration on
Case# B1605805 has no relevance to the instant action before this Honorable Court regarding
the constitutionality of PRC.”); id. (“The mere inclusion of another case, and Pettus-Brown’s
current incarceration, by the Defendants in their pleadings is an attempt by the defense to
clutter Pettus-Brown’s argument in this action, as Case# Bl605805 [the case resulting in his
current conviction and sentence] was never mentioned nor presented by Pettus-Brown in his
Amended Complaint . . . This instant federal action is not pertaining to Pettus-Brown's current
incarceration for state Case# Bl605805 as it is currently under review by the Ohio Court of
Appeals for the First District (Cl 700712) . . .

Pettus­Brown is not challenging a state

conviction; he is not challenging the imposition of post-release control (PRC).”); id. at 19
(“Despite the Defendants’ attempt to reshape this civil action, Pettus-Brown is not challenging
a state conviction in this action; nor is Pettus-Brown currently incarcerated as a result of
PRC.”)). But repeating a factual assertion does not make it true. Plaintiff’s current sentence
includes a term of up to three years of post-release control, and a finding that Ohio’s postrelease control statute is unconstitutional would necessarily invalidate that portion of
Plaintiff’s sentence. The Court, therefore, cannot grant Plaintiff relief.
Courts in this circuit have held that when a prisoner’s civil rights claim is barred
by the Heck v. Humphrey doctrine, the appropriate course for a federal district
court is to dismiss the claim for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(h)(3), rather than to dismiss the complaint with prejudice as
being frivolous, because the former course of action is not an adjudication on

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the merits and would allow the prisoner to reassert his claims if his conviction
or sentence is latter invalidated.
Brown v. City of Columbus, No. 2:18-CV-521, 2018 WL 3105766, at *3 (S.D. Ohio June 25,
2018), report and recommendation adopted, No. 2:18-CV-521, 2018 WL 4654693 (S.D. Ohio
Sept. 27, 2018) (citations, internal quotation marks, and alteration omitted) (collecting cases).
It is, therefore, recommended that the Amended Complaint be dismissed without prejudice
for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3).
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s Request (Doc. 47) is GRANTED.

It is

RECOMMENDED that the Court GRANT Defendants’ Motion (Doc. 40) and DISMISS
without prejudice Plaintiff’s Amended Complaint.
Procedure on Objections
If any party objects to this Order and Report and Recommendation, that party may, within
fourteen (14) days of the date of this Report file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo determination
of those portions of the Report or specified proposed findings or recommendations to which
objection is made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made herein, may receive further evidence, or
may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo. Failure to object to the Report and Recommendation will result in
a waiver of the right to appeal the decision of the District Court adopting the Report and
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Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
IT IS SO ORDERED.

Date: April 2, 2019

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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