Hill v. Rastatter et al

Filing 3

REPORT AND RECOMMENDATIONS. Plaintiff's complaint is subject to dismissal, 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. The Court therefore RECOMMENDS that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE; and this case be CLOSED. Objections to R&R due by 7/2/2012. Signed by Magistrate Judge Michael J Newman on 6/13/2012. (mdf1)

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
____________________________________________________________________________
Plaintiff was granted leave to proceed in forma pauperis pursuant 28 U.S.C. § 1915. This
matter is before the Court for a sua sponte review of his complaint (doc. 2) to determine whether it
should be dismissed because it is frivolous or 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. See
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). It is appropriate for the Court to conduct this review sua
sponte prior to issuance of process “so as to spare prospective defendants the inconvenience and
expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A complaint has no
arguable factual basis when its allegations are “fantastic or delusional”; and no arguable legal basis
when it presents “indisputably meritless” legal theories -- for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly does not
exist. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (2000).

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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

Courts may also dismiss a complaint sua sponte for failure to state a claim upon which
relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). While pro se pleadings are
“to be liberally construed” and “held to less stringent standards than formal pleadings drafted by
lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se plaintiffs must still satisfy basic
pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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.” Id. (citing Twombly, 550 U.S. at 556); see also Hill v. Lappin, 630 F.3d
468, 470-71 (2010) (applying the Iqbal and Twombly dismissal standards to § 1915(e)(2)(B)(ii)).
Pro se Plaintiff, who is currently an inmate at the Chillicothe Correctional Institution after
being convicted in the Clark County, Ohio Common Pleas Court, brings this action pursuant to 42
U.S.C. § 1985 against Clark County Commons Pleas Judge David Rastatter, Clark County
Prosecutor David A. Wilson, and Clark County Public Defender Ronald E. Morris. Doc. 2 at
PageID 8-9. He claims these individuals conspired together to unlawfully convict him. His
complaint reads as follows:
Defendants Rastatter and Morris without lawful authority tried and prosecuted
Plaintiff for criminal charges not filed pursuant to Ohio law and the Fourth
Amendment of the U.S. Constitution. Thereby denying Plaintiff of all legal right
to appeal. Defendant Wilson conspired with Rastatter and Morris to convince
Plaintiff that lawful charges were filed against him. Defendant Wilson committed
fraud by not objecting to the pro forma procedures against Plaintiff as no
substantive law was invoked in the county courts. In the jurisprudence of Ohio,
nothing is more firmly settled than the principal that criminal law of the state is
statutory, and this applies to procedural as well as substantive law. There can be
no statutory remedial law imposed, tried, or decided without a substantive law
being first invoked.
Id. at PageID 10.
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Plaintiff then requests the following relief:
Plaintiff moves this Court to award him $2,000,000.00 from each named defendant,
$1,000,000.00 in punitive damages and $1,000,000.00 in compensatory damages.
Further injunctive relief for the true cause of his detention not shown in the record
and any other remedy which law and justice demand.
Id. at PageID 11.
Plaintiff has failed to state a cognizable § 1985 claim against Defendants. Under the
United States Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), a prisoner
cannot state a cognizable claim for damages under § 1983 or § 1985 “if a ruling on his claim would
necessarily imply the invalidity of his conviction and confinement until such time that the
conviction is reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal, or called into question by a federal court’s issuance of a writ habeas corpus.” Lanier v.
Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (citing Heck, 512 U.S. at 486-87).
In this action, Plaintiff is essentially attacking the lawfulness of his conviction. However,
he has not shown that his criminal conviction has been set aside. Therefore, under Heck, he is
barred from bringing an action under § 1983 or § 1985 at this time. See Lanier, 332 F.3d at
1005-06.
Further, Plaintiff’s claim for equitable relief fails because his sole federal remedy is in
habeas corpus under 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973);
Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985).
Accordingly, Plaintiff’s complaint is subject to dismissal, 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. The
Court therefore RECOMMENDS that Plaintiff’s complaint be DISMISSED WITHOUT
PREJUDICE; and this case be CLOSED.
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In addition, the Clerk of Courts is ORDERED to mail to Plaintiff the forms to file a
petition for a writ of habeas corpus under 28 U.S.C. § 2254.

s/ Michael J. Newman
United States Magistrate Judge

June 13, 2012

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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).

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