Hill v. Rastatter et al

Filing 13

REPORT AND RECOMMENDATION THAT (1) PRO SE PLAINTIFFS POST-JUDGMENT MOTION (DOC. 12 ) BE DENIED; AND (2) THIS CASE REMAIN TERMINATED ON THE COURTS DOCKET. IT IS THEREFORE RECOMMENDED THAT: 1. Defendants pro se post-judgment motion (doc. 12 ) be DENIED; and 2. This case remain TERMINATED on the Courts docket. Signed by Magistrate Judge Michael J Newman on 10/17/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ALPHONZO H. HILL,

:

Case No. 3:12-cv-173

:

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Plaintiff,
vs.
:
DOUGLAS M. RASTATTER, et al.
Defendants.

:

REPORT AND RECOMMENDATION1 THAT (1) PRO SE PLAINTIFF’S
POST-JUDGMENT MOTION (DOC. 12) BE DENIED; AND (2) THIS CASE REMAIN
TERMINATED ON THE COURT’S DOCKET

This matter is before the Court upon pro se Plaintiff’s “objection and motion for relief
from the Court’s Orders of 9-25-2012.”

Doc. 12.

The Court liberally construes pro se

Plaintiff’s post-judgment motion as a Rule 59(e) motion to alter or amend judgment.2 See Hood
v. Hood, 59 F.3d 40, 43 n.1 (6th Cir. 1995). “A motion under Rule 59(e) is not an opportunity
to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998). The Court may alter a judgment based on (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th
Cir. 2010).

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
Plaintiff states, “The Federal Rules are not relied upon by the Plaintiff for relief from the Order of the
Court or to correct clerical errors by the Clerk.” Doc. 12 at PageID 38. As “[t]he Federal Rules of Civil
Procedure do not mention motions for reconsideration . . . [p]ost-trial motions seeking to review an earlier
judgment are filed pursuant to either Rule 59 or Rule 60.” Hood, 59 F.3d at 43 n.1. Generally, in a
situation such as this – when the post-judgment motion is ambiguous as to whether it is filed under Rule
59 or Rule 60, but is timely filed within the Rule 59(e) deadline (now 28 days) – the Court construes the
motion as a Rule 59 motion. See id. The Court further finds this is appropriate because “the standard
for granting a Rule 60(b) motion is higher than the standard for a Rule 59(e) motion.” CGH Transport,
Inc. v. Quebecor World, Inc., 261 F. App’x 817, 824 (6th Cir. 2008).

2

Plaintiff challenges the Court’s Decision and Entry adopting the undersigned’s Report
and Recommendation, dismissing his complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b) for failure to state a claim upon which relief can be granted, and terminating the case.
See docs. 3, 9. First, contrary to Plaintiff’s incorrect assertion, the undersigned had authority to
issue a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Second, because Plaintiff
failed to specify how the Court has jurisdiction over his case, in the interest of justice, it
carefully read his complaint and construed it as asserting claims against state officials pursuant
to 42 U.S.C. § 1983 and/or § 1985. (In his complaint, Plaintiff claims that he was prosecuted
“without lawful authority” in violation of the Fourth Amendment, and that the named defendants
(a Common Pleas Court judge, a prosecutor and public defender) “conspired . . . to convince
[him] that lawful charges were filed against him.” Doc. 2 at PageID 10.) As explained in the
Report and Recommendation, pursuant to the United States Supreme Court’s decision in Heck v.
Humphrey, 512 U.S. 477 (1994), Plaintiff is barred from bringing such § 1983 and § 1985 claims
challenging the lawfulness of his conviction. See doc. 3 at PageID 14. In his post-judgment
motion, Plaintiff has failed to show how the Court otherwise has jurisdiction over his case.3
Accordingly, his pro se post-judgment motion should be denied.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant’s pro se post-judgment motion (doc. 12) be DENIED; and

2.

This case remain TERMINATED on the Court’s docket.

s/ Michael J. Newman

October 17, 2012

United States Magistrate Judge

3

Plaintiff bears the burden of proving federal subject matter jurisdiction. Walburn v. Lockheed Martin
Corp., 431 F.3d 966, 970 (6th Cir. 2005).

2

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another party=s
objections within FOURTEEN days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See United States v.
Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

3