Finley v. Montgomery County Probation Department et al

Filing 2

REPORT AND RECOMMENDATIONS - re 1 - The Complaint should be dismissed without prejudice. Plaintiff states that he has a pending appeal in the Second District Court of Appeals. If that court overturns his conviction or probation revocation on either of the grounds on which he has sued, he can then return to this Court and refile his case. Objections to R&R due by 8/13/2012. Signed by Magistrate Judge Michael R Merz on 7/25/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARK FINLEY,
Plaintiff,

:

Case No. 3:12-cv-242
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
BRANDON HAYES, et al.,
Defendants.

REPORT AND RECOMMENDATIONS

This action is before the Court for review prior to issuance of process.

Plaintiff is a

prisoner within the meaning of 28 U.S.C. §1915A(c). §1915A was added to the Judicial Code by
the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April
26, 1996)(the "PLRA") and provides in pertinent part:

(a) Screening -- The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.
(b) Grounds for Dismissal -- On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint -(1) is frivolous, malicious, or fails to state a claim upon which relief
can be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.

The PLRA also amends 28 U.S.C. §1915(e)(2) to read as follows: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
(A) the allegation of poverty is untrue; or
(B) the action or appeal -(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from
such relief.
A district court must screen prisoner complaints under both §1915A and §1915(e)(2). McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir., 1997); In re Prison Litigation Reform Act, 105 F.3d 1131
(6th Cir. 1997)(Administrative Order 97-01 of Chief Judge Martin). The PLRA is constitutional.
Hampton v. Hobbs, 106 F.3d 1281 (6th Cir. 1997).
A complaint is frivolous under 28 U.S.C. §1915 if it lacks an arguable basis either in law or
in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989); the
language of §1915A suggests strongly that Congress intended to carry the same meaning over to
the new Act. The Court "is not bound, as it usually is when making a determination based solely
on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton, 118
L. Ed. 2d at 349.
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the
Supreme Court:

Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading
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must contain something more ... than ... a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action”),
on the assumption that all the allegations in the complaint are true
(even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989)(“ Rule 12(b)(6) does not countenance ... dismissals
based on a judge's disbelief of a complaint's factual allegations”);
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974) (a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise
a claim of entitlement to relief, “ ‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by
the parties and the court.’ ” 5 Wright & Miller § 1216, at 233-234
(quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645
(D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v.
Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005),, at
346, 125 S.Ct. 1627; Asahi Glass Co. v. Pentech Pharmaceuticals,
Inc ., 289 F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by
designation) (“[S]ome threshold of plausibility must be crossed at
the outset before a patent antitrust case should be permitted to go
into its inevitably costly and protracted discovery phase”).

Twombly, 550 U.S. at 558; see also Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545 (6th Cir. 2007).
Twombly and Iqbal apply to review of complaints for failure to state a claim under §§
1915A(b)(1) and 1915(e)(2)(B)(II). Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010).
As the Court reads the Complaint, Plaintiff is asking the Court to award him $40 million in
damages because (1) his probation was revoked on hearsay provided by Defendant Brandon
Hayes, a Montgomery County Adult Probation Officer, and (2) he pled guilty to tampering with
evidence at the request of some unidentified person in the Administrative Office of Montgomery

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County Sheriff Phil Plummer when he was promised he would receive no jail time for this new
conviction.
The Complaint should be dismissed without prejudice under the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994). That case holds
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a §1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. §2254. A claim for damages
bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under §1983.

Id. at 486-487. Plaintiff states that he has a pending appeal in the Second District Court of
Appeals. If that court overturns his conviction or probation revocation on either of the grounds on
which he has sued, he can then return to this Court and refile his case.
July 25, 2012.

s/ Michael R. Merz
United States Magistrate Judge

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(e), this period is automatically
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 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
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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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