Hertel v. Krueger et al
Filing
15
OPINION AND ORDER - vacating order #11, adopting the R & R #10, and denying motions #1 and #9. Signed by Judge James L. Graham on 10/2/2018. (ds)(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
Frank K.C. Hertel, Sr.,
Plaintiff,
v.
Case No. 2:18-cv-179
Judge Everett H. Krueger,
et al.,
Defendants.
OPINION AND ORDER
This is an action filed by plaintiff pursuant to 42 U.S.C.
§1983 against Delaware County, Ohio, and various state officials
and
judges
who
where
involved
in
plaintiff’s
state
criminal
prosecution and subsequent related proceedings. In a July 5, 2018,
report and recommendation on an initial screen under 28 U.S.C.
§1915(e), the magistrate judge recommended that plaintiff’s claims
be dismissed on several grounds, including Eleventh Amendment
immunity, judicial and prosecutorial immunity, the statute of
limitations bar, the unavailability under §1983 of the relief
sought, and waiver.
By order dated August 16, 2018, this court
adopted the report and recommendation and dismissed this action
pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a
claim for which relief may be granted.
On August 28, 2018, plaintiff filed a “MOTION TO AMEND OPINION
AND ORDER” which cited Fed. R. Civ. P. 52(b).
On August 29, 2018,
the magistrate judge issued a report and recommendation concerning
that motion.
The magistrate judge concluded that plaintiff failed
to state grounds for relief under Rule 52(b). The magistrate judge
also analyzed plaintiff’s motion as a motion to alter or amend
judgment under Fed. R. Civ. P. 59(e) and a motion for relief from
judgment under Rule 60(b), and concluded that no basis for relief
had been shown under those rules.
The magistrate judge found no
reason to reconsider this court’s earlier decision and recommended
that
the
motion
be
denied.
Objections
to
the
report
and
recommendation were due by September 12, 2018.
On September 20, 2018, this court issued an order adopting the
report and recommendation, noting that no objections had been
filed.
On September 21, 2018, objections from plaintiff were
received by the clerk’s office.
The envelope was post-marked
September 14, 2018, but plaintiff indicated in his certificate of
service that he mailed his objections on September 12, 2018.
Although there is no evidence as to when the objections were
tendered to the prison mail room, the court will give plaintiff the
benefit of the doubt in that regard, and will address plaintiff’s
objections. The order of September 20, 2018, (Doc. 11) is vacated.
I. Standard of Review
If a party objects to a report and recommendation within the
allotted time, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).
Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or
recommendations
made
by
the
magistrate
judge.”
28
U.S.C.
§636(b)(1).
II. Plaintiff’s Objections
Plaintiff
claims
that
this
court
made
erroneous
factual
findings relevant to his claims under the Interstate Agreement on
Detainers (“IAD”).
He is asking the court to include factual
2
findings in the order which further his claims.
However, as noted
by the magistrate judge, plaintiff’s motion to amend did not
challenge the facts upon which the grounds for dismissal of his
claims against the defendants in this case rest.
Plaintiff now
argues that the finding that he waived his IAD claims by pleading
guilty to the 2000 indictment is erroneous, and that there was no
waiver.
The court is not persuaded that the previous legal ruling
regarding
waiver
was
incorrect.
There
is
no
evidence
that
plaintiff’s conviction based on the 2000 indictment has been set
aside.
These objections are not well taken.
In the order of August 16, 2018, this court agreed with the
conclusion of the magistrate judge that, insofar as plaintiff’s
complaint could be construed as challenging his conviction on the
2000 indictment, a habeas
appropriate remedy.
petition under 28 U.S.C. §2254 was the
Plaintiff argues that this conclusion was
erroneous. He argues that, under the IAD, a final disposition must
be made, and that the dismissal of the 2014 indictment without
prejudice was not a final disposition.
However, he goes on to
repeat his argument that because of his conviction under the 2000
indictment, the dismissal of the 2014 indictment without prejudice
constitutes double jeopardy.
He also contends that if the 2014
indictment is dismissed with prejudice, that would also require
dismissal of the lesser included offenses in the 2000 indictment.
These arguments indicate that the court was correct construing
plaintiff’s complaint as potentially including an attack on his
conviction under the 2000 indictment. It was not error to note, as
an alternative ground for dismissal, that such an attack should be
made in a §2254 petition.
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In dismissing plaintiff’s claims against the defendant judges,
the court concluded that no claim for declaratory or injunctive
relief under §1983 had been stated against them.
The court noted
that the judges played an adjudicatory rather than an adversarial
role in ruling on plaintiff’s arguments concerning the IAD and the
dismissal of the 2014 indictment, and that no declaratory decree,
as required for injunctive relief under §1983, was alleged to have
been violated in this case.
Plaintiff now contends that the IAD
and Ohio Rev. Code §2963.30 are declaratory judgments or decrees,
as their enforcement depends on judicial action.
This court
disagrees, and finds no error in the previous dismissal of the
claims against the defendant judges.
This
court
plaintiff’s
held
claims
in
are
the
order
barred
by
of
August
the
16,
two-year
2018,
statute
that
of
limitations applicable to §1983 actions. Plaintiff now argues that
the statute of limitations has not accrued. As this court noted in
its order, the conduct of the individual defendants relative to
plaintiff’s
state
court
prosecution
and
conviction
and
the
dismissal of the 2014 indictment occurred in 2013 and 2014.
Plaintiff was aware of the acts of the defendants alleged in his
complaint long before the two-year limitations period began to run.
The dismissal of the complaint on statute of limitations grounds
was not error.
Plaintiff also disagrees with the court’s conclusion that
insofar as plaintiff was seeking to challenge the judgment of
conviction on the 2000 indictment and the judgment dismissing the
2014 indictment, his claims are barred under the Rooker-Feldman
doctrine.
He argues that because he was never convicted in the
4
2014 case, his claims concerning the 2014 indictment are cognizable
under
§1983.
previously
This
asserted
objection
his
IAD
is
without
arguments
in
merit.
his
Plaintiff
direct
appeal.
Plaintiff also filed a motion to dismiss with prejudice the 2014
indictment against him, which was denied by the Delaware County
court.
Plaintiff pursued various appeals from that ruling, which
were denied.
In the instant action, plaintiff alleges that the
defendants were involved in the dismissal of the 2014 indictment
and
his
subsequent
actions
challenging
the
dismissal
without
prejudice of the 2014 indictment, and he seeks an order finding
that the IAD was violated by the dismissal without prejudice of the
2014 indictment.
He clearly seeks to relitigate in this action
these previous rulings made by the state court concerning the 2014
indictment and his IAD claims. This court correctly concluded that
to the extent that plaintiff is seeking in this action to challenge
the order dismissing the 2014 indictment, this court has no
jurisdiction to entertain such claims.
Finally, plaintiff asserts that he only intended to file a
motion pursuant to Rule 52(b), not Rules 59 (e) or 60(b). However,
he also asks this court to afford him relief in the alternative
under Rules 59(e) and 60(b).
The magistrate judge did not err in
addressing these alternative theories of relief.
The court finds that plaintiff’s objections are not well
taken, and they are denied.
The court agrees with the report and
recommendation (Doc. 10), and it is hereby adopted.
motion (Doc. 9) is denied.
Plaintiff’s
Plaintiff’s motion (Doc. 1) for leave
to proceed in forma pauperis is denied as moot.
5
It is so ordered.
Date: October 2, 2018
s/James L. Graham
James L. Graham
United States District Judge
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