Pettus-Brown v. Adult Parole Authority et al

Filing 8

REPORT AND RECOMMENDATION: Magistrate Judge grants 1 Motion for Leave to proceed in forma pauperis; RECOMMENDS dismissing 7 Complaint, denying as moot 6 Motion for Leave to Exceed Allotted Discovery. Objections to R&R due by 3/22/2018. Signed b y Magistrate Judge Kimberly A. Jolson on 3/15/2018. (ew)(This document has been forwarded to the Court's financial office in Columbus and sent by regular mail to the prison cashier's office, the Ohio Attorney General, and 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,
v.

Civil Action 2:18-cv-82
Judge George C. Smith
Magistrate Judge Jolson

ADULT PAROLE
AUTHORITY, et al,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff La Shawn R. Pettus-Brown, an inmate at the Chillicothe Correctional Institution
proceeding without the assistance of counsel, brings this action under 42 U.S.C. § 1983,
generally challenging the constitutionality of O.R.C. § 2967.28. (See Doc. 1-2). 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); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). 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.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
This matter is also before the Court for consideration of Plaintiff’s Motion for Leave to

Proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (Doc. 1). Plaintiff’s Motion is

GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee. 28
U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he has an insufficient
amount to pay the full filing fee. (Doc. 3).
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at the
Chillicothe Correctional Institution is DIRECTED to submit to the Clerk of the United States
District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater
of either the average monthly deposits to the inmate trust account or the average monthly balance
in the inmate trust account, for the six-months immediately preceding the filing of the
Complaint. After full payment of the initial, partial filing fee, the custodian shall submit 20% of
the inmate’s preceding monthly income credited to the account, but only when the amount in the
account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28
U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks
should be made payable to Clerk, United States District Court and should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do
so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this
Order to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a
copy of this Order to the Court’s financial office in Columbus.

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II.

INITIAL SCREEN
A. Relevant Standard
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) 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; ....
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
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,’
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... [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 Cty. 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)).
B. Plaintiff’s Complaint
In this case, Plaintiff alleges that he completed “the judicially imposed maximum three
(3) years of confinement” for his conviction, but the Ohio Department of Rehabilitation and

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Corrections (“ODRC”) “is threatening, under the authority of O.R.C. § 2967.28, to impose a
second prison term.” (Doc. 1-1 at ¶ 7). Plaintiff sets forth the relevant facts as follows:
In November 2013, Plaintiff Pettus-Brown was arrested on an alleged probation
violation from a 2005 conviction in Hamilton County, on tampering with records,
a felony of the third-degree; the trial court sentenced Pettus-Brown to the
statutorily maximum period of three (3) years in prison. In March/April, 2016,
while at Pickaway Correctional Institution and still appealing the conviction,
Pettus-Brown received postal mail from the APA stating that Pettus-Brown was
not subject to any period of post-release control. After completing the three (3)
year prison sentence in November 2016, the APA personally attempted to have
Pettus-Brown sign paperwork which would subject Pettus-Brown to the
unconstitutional authority of the APA including its ability to impose a second/new
prison term.
(Id. at ¶¶ 42–44) (footnote omitted). Plaintiff explains that he sent an e-mail to the Adult Parole
Authority (“APA”) “to question the constitutionality of its actions and specifically O.R.C.
2967.28; however the APA refused to address the matter, nor comment on its performance of
unconstitutional functions, and maintained that [he] was still subject to [post-release control].”
(Id. at ¶ 46). Plaintiff attaches that email exchange to his Complaint. (See Doc. 1-1, Ex. 3).
Plaintiff seeks an injunction preventing the APA from enforcing Ohio Revised Code
§ 2967.28(F)(3). That portion of Ohio’s post-release control statute generally permits the parole
board to hold a hearing on any alleged violation of a post-release control sanction or conditions
of release. O.R.C. § 2967.28(F)(3). Following the hearing, if the board finds that the releasee
violated the sanction or condition, it “may increase the duration of the releasee’s post-release
control up to the maximum duration authorized by division (B) or (C) of this section or impose a
more restrictive post-release control sanction.” Id. Plaintiff also seeks declaratory relief that
O.R.C. § 2967.28(F)(3) unlawfully allows the APA to perform quasi-judicial functions in
violation of his constitutional rights. (Id. at ¶ 50).

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Specifically, Plaintiff alleges that O.R.C. § 2967.28 violates the constitutional
prohibitions against bills of attainder (Count I), the double jeopardy clause (Count II), his due
process rights (Count III), and the separation of powers doctrine (Count IV). Plaintiff names as
Defendants the State of Ohio, the ODRC, the Adult Parole Authority, the Ohio Parole Board as
Defendants. (Id. at ¶¶ 7–12).
C. Discussion
In this case, Plaintiff’s Complaint fails to state a claim because he has sued Defendants
incapable of being sued in federal court except in certain limited circumstances inapplicable
here.

That is, absent an express waiver, the Eleventh Amendment to the United States

Constitution bars suit against a State or its agencies in federal court regardless of the nature of
the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State
School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978);
Edelman v. Jordan, 415 U.S. 651, 663 (1974); see also Holson v. Good, 579 F. App’x 363, 364
(6th Cir. 2014) (noting that the Eleventh Amendment bars “suits brought in federal court against
a state and its agencies”).
Based upon the foregoing, the State of Ohio may not be sued in this case. Farkas v.
Kasich, No. 2:14-CV-1507, 2014 WL 4966021, at *2 (S.D. Ohio Oct. 3, 2014) (“The State of
Ohio is immune under the Eleventh Amendment from suits against it.”) (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 65–66 (1989); Foulks v. Ohio Dep’t of Rehab. and Corr., 713
F.2d 1229, 1232 (6th Cir. 1993)). The ODRC is likewise immune from liability under the
Eleventh Amendment. Perdue v. Ohio Dep’t of Rehab. and Corr., No. 2:16-cv-853, 2017 WL
4919223, at *1 (S.D. Ohio Oct. 30, 2017) (“Since the ODRC is a state agency, it is therefore
immune from suit”). Further, as the Sixth Circuit has explained, the Adult Parole Authority “is

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undisputedly a state agency, so the Eleventh Amendment indeed bars … claims against the
Authority.” Holson, 579 F. App’x at 364. Because the Ohio Parole Board is a section within the
Adult Parole Authority, it too is a state agency immune from relief. Mockbee v. Scioto Cty.
Adult Parole Auth., No. 1:17-cv-254, 2017 WL 2222322, at *3 (S.D. Ohio May 22, 2017) (citing
O.R.C. § 5149.02).
Neither the State of Ohio nor its agencies have waived their Eleventh Amendment
immunity for purposes of suits like this one, and the exceptions to immunity do not apply. See
Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Because the State of Ohio, the ORDC, the
Adult Parole Authority, and the Ohio Parole Board are immune from suit in this case, Plaintiff
claims must be DISMISSED.
III.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to Proceed in forma

pauperis is GRANTED. (Doc 1). Further, it is RECOMMENDED that the Court DISMISS
Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
Consequently, it is also RECOMMENDED that Plaintiff’s Motion for Leave to Exceed Allotted
Discovery be DENIED as MOOT. (Doc. 6).
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus. Finally, the Clerk is DIRECTED to send a copy of this Order to
the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
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

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

Date: March 15, 2018

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

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