Brown v. City of Columbus et al

Filing 4

REPORT AND RECOMMENDATION AND ORDER: Magistrate Judge grants 3 Motion for Leave to Proceed in forma pauperis, denies Plaintiff's Motion to Appoint Counsel, RECOMMENDS dismissing 1 Complaint. Signed by Magistrate Judge Kimberly A. Jolson on 6/25/2018. (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
DYLAN MALONN BROWN,
Plaintiff,
v.

Civil Action 2:18-cv-521
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson

CITY OF COLUMBUS, et al.,
Defendants.
REPORT AND RECOMMENDATION
AND ORDER
Plaintiff Dylan Malonn Brown, a pro se prisoner, brings this action against the City of
Columbus and the Columbus Division of Police. (See Doc. 1). This matter is before the
undersigned for consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis
(Doc. 3) and the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).
For the reasons that follow, Plaintiff’s request to proceed in forma pauperis is
GRANTED. Furthermore, having performed an initial screen and for the reasons that follow, 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.
I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under

28 U.S.C. § 1915(a)(1) and (2) (Doc. 3), 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.
(Id.).

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.
II.

INITIAL SCREEN
A. Relevant Standard
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set
forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” In
reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all well-pleaded
factual allegations as true, and evaluate whether it contains “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a
complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se
complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic
pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
B. Plaintiff’s Complaint
Plaintiff states that he is bringing this action under 42 U.S.C. § 1983. (Doc. 1 at 1).
Although Plaintiff is currently incarcerated at Noble Correctional Institution, he makes clear that
his claims “do not involve any aspect of institutional life.” (Id. at 2). Instead, Plaintiff’s claims
appear to stem from events involving his arrest and preceding his incarceration. Plaintiff alleges
the following facts:
This case arises pursuant to the City of Columbus, Ohio failing to train its police
force in the areas of what constitutes unlawful “stalking horse” assistance, proper
termination of a doctor-patient relations, and custodial care of a mental health
patient.
On June 16, 2016, the Columbus Division of Police (“CDOP”) devised a scheme
that entailed unlawful termination of the doctor-patient relationship by coercing
thee staff at Riverside Methodist Hospital, Psychiatric Unit, to play as “stalking
horse” for their arrest warrant. Riverside created a hypocritical situation wherein
they declared having to transfer me to another unit for treatment, which,
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ironically, exposed me to public thoroughways. Even though I wasn’t released by
Riverside, the CDOP arrested me on a public thoroughway. Nonetheless, I had a
reasonable expectation of privacy during this voluntary commitment, because I
wasn’t there by order of the court and needed intervention. . . .
Based on this unlawful arrest, I was denied: benefit of an expert witness, for a
defense of not guilty by reason of insanity; referral to the court’s mental health
docket; and adequate medical care, for my serious mental health needs.
With the validity of my guilty pleas aside, thee [sic] psychiatric staff at Riverside
would have assisted a viable defense, had the 4th U.S.C.A. infraction not
occurred. This also translated into my case being heard on an improper forum.
Due to not being allowed adequate assessment by Riverside, I attempted suicide
while awaiting trial. These infractions, caused by the unreasonable seizure, are
unquantifiable and indeterminate, and don’t require and additional showing of
prejudice to make violation complete.
(Id. at 2–3).
In terms of relief, Plaintiff seeks ten million dollars “for the unlawful seizure, that
initiated a series of unfortunate perils,” as well as five million dollars in punitive damages. (Id.
at 3).
C. Discussion
Although the Complaint is difficult to decipher, it is clear that Plaintiff’s claims are not
cognizable claims under section 1983. See Laury v. Jevirell, No. 15-13365, 2015 WL 5771992,
at *2 (E.D. Mich. Oct. 2, 2015). “A claim under § 1983 is an appropriate remedy for a state
prisoner challenging a condition of his imprisonment, Preiser v. Rodriguez, 411 U.S. 475, 499
(1973), but not the validity continued confinement.” Id. (citing Heck v. Humphrey, 512 U.S.
477, 486-87 (1994) (holding that a state prisoner does not state a cognizable civil rights claim
challenging his imprisonment if a ruling on his claim would necessarily render his continuing
confinement invalid, until and unless the reason for his continued confinement has been reversed
on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has been
called into question by a federal court’s issuance of a writ of habeas corpus under 28 U.S.C.
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§ 2254). Further, Section 1983 “cannot serve as a basis to challenge the fact of a plaintiff’s
criminal conviction; the proper instrument for bringing such a challenge would be either on
direct appeal, a state post-conviction relief motion, or a petition for a federal writ of habeas
corpus.” Galka v. Cole, No. CIV. A. 08-13321, 2008 WL 4562077, at *2 (E.D. Mich. Oct. 9,
2008).
Here, Plaintiff’s claims concern the validity of his arrest and the nature of his criminal
proceedings. If he were to prevail, his conviction(s), sentence, and continued confinement would
be called into question. Laury, 2015 WL 5771992, at *2; see also Boyce v. Hobkirk, No. 2:16CV-14395, 2017 WL 445604, at *1 (E.D. Mich. Feb. 2, 2017) (“If Plaintiff were to prevail on his
claim concerning the validity of the investigation and criminal prosecution, his convictions and
continued confinement would be called into question.”). Although Plaintiff briefly mentions the
adequacy of his medical care, he also explicitly states his claims do not involve “any aspect of
institutional life.” Thus, Plaintiff’s Complaint is barred in its entirety by the Heck v. Humphrey
doctrine.
Courts in this circuit have held that “[w]hen 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 the merits and would allow the prisoner to reassert his claims if his
conviction or sentence is latter invalidated.” See, e.g., Bohannon v. Martin, No. 1:07-CV-784,
2007 WL 2891426, at *2–3 (S.D. Ohio Sept. 28, 2007) (citing Murphy v. Martin, 343 F.Supp.2d
603, 609 (E.D. Mich. 2004)).

Consequently, because the undersigned is recommending

dismissal of Plaintiff’s § 1983 Complaint under Heck, the dismissal should be without prejudice.

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Id. (citing Diehl v. Nelson, 198 F.3d 244, 1999 WL 1045076 (6th Cir. Nov. 12, 1999, citing to
Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996)).
Accordingly, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED
without prejudice for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3).
III.

REQUEST FOR APPOINTMENT OF COUNSEL

In his Complaint, Plaintiff states that he “respectfully request[s] the assistance of able
counsel to perfect [his] claims.” (Doc. 1 at 3). The undersigned construes the requests as a
Motion to Appoint Counsel. However, “[a]ppointed counsel in civil suits is a privilege only
justified in exceptional circumstances ....” Jennings v. Bradley, 419 F. App’x 594, 598 (6th Cir.
2011) (citing Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)). The record before the
Court does not show that exceptional circumstances exist in this case. Accordingly, Plaintiff's
Motion to Appoint Counsel is DENIED.
IV.

CONCLUSION
In sum, Plaintiff’s Motion for Leave to Proceed in forma pauperis is GRANTED;

Plaintiff’s Motion to Appoint Counsel is DENIED; and it is RECOMMENDED that the Court
DISMISS Plaintiff’s Complaint without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A.
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.

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Procedure on Objections
If any party objects to this 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, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and 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: June 25, 2018

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

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