Alahverdian v. State of Ohio et al

Filing 6

REPORT AND RECOMMENDATIONS re 5 MOTION for Temporary Restraining Order MOTION for Order to Show Cause MOTION for Preliminary Injunction MOTION to Stay filed by Nicholas Alahverdian. - Because the Court cannot in a § 1983 action grant the relief sought release from custody in a state criminal case the Emergency Ex Parte Application should be DENIED. Objections to R&R due by 5/16/2013. Signed by Magistrate Judge Michael R Merz on 04/28/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICHOLAS ALAHVERDIAN,
:
Plaintiff,

Case No. 3:13-cv-113
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsSTATE OF OHIO, et al.,
:
Defendants.

REPORT AND RECOMMENDATIONS ON MOTION FOR TEMPORARY
RESTRAINING ORDER
This case is before the Court on Plaintiff’s Emergency Ex Parte Application for
Temporary Restraining Order, Preliminary Injunction and/or Stay of Execution (Doc. No. 5).
The requested relief is an order restraining The Honorable Carl Henderson, Judge of the Dayton
Municipal Court, and probation officers of that court “from keeping Plaintiff in their custody,
that Plaintiff be released from the custody of Defendant Dayton Municipal Court et al.; and that
Plaintiff be removed from the Ohio Sex Offender Registry.” Id. at PageID 169-170.
The relevant facts alleged by Plaintiff are that he was convicted by Judge Henderson in
March 2008 of two sex-related misdemeanor offenses. According to the instant Motion, “[o]n
November 26, 2012, Defendant Henderson re-sentenced Mr. Alahverdian to be in the custody of
Dayton Probation and to register as a sex offender.” Id. at PageID 171. Pursuant to that
sentence, probation officers of the Dayton Municipal Court told Plaintiff that he would not be
permitted to leave Ohio to attend a settlement conference in Alahverdian v. Rhode Island Dept.
of Children, Youth and Families, Case No. 1:11-cv-075, on the docket of the United States
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District Court for the District of Rhode Island, initially set for April 18, 2013, and now re-set to
May 20, 2013. Id. at PageID 172. On April 17, 2013, Plaintiff’s counsel in the criminal case,
Eric Allen, filed a “Motion for Stay of Execution with the Dayton Municipal Court pending the
filing of a habeas action in both federal court and the Ohio Supreme Court.” Id. at PageID 173.
However, Judge Henderson denied that Motion on April 24, 2013. Id.
Plaintiff brought the instant action against Judge Henderson and twenty-eight others
seeking in part relief from the referenced conviction under 42 U.S.C. § 1983.1 The relief sought
by Plaintiff in the instant motion for temporary restraining order is not available in a § 1983
action. Rather, relief from custody in a state criminal case must be by way of habeas corpus
under 28 U.S.C. § 2254. Preiser v. Rodriquez, 411 U.S. 475 (1973). Plaintiff’s counsel in the
criminal case, Eric Allen, is an experienced criminal defense and habeas corpus attorney and
appears to have recognized this limitation in his request for stay to Judge Henderson.
Because the Court cannot in a § 1983 action grant the relief sought – release from
custody in a state criminal case – the Emergency Ex Parte Application should be DENIED.
April 28, 2013.
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(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.
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The Complaint contains forty purported causes of action under a number of different theories. The viability of the
Complaint under 28 U.S.C. § 1915(e)(2) awaits further analysis and perhaps amendment, as the Magistrate Judge
has suggested to Plaintiff. However, for present purposes, § 1983 plainly forms at least part of the basis of
Plaintiff’s claims against the Dayton Municipal Court and its officers.

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P. 5(b)(2)(C), (D), (E), or (F). 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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