Paul v. Aveni

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION DE’ANDRE E. PAUL, JR., : Case No. 2:23-cv-2081 : Plaintiff, : : District Judge Sarah D. Morrison vs. : Magistrate Judge Stephanie K. Bowman : CARL AVENI, et al., : REPORT AND : RECOMMENDATION Defendants. : : Plaintiff, a prisoner at the Pickaway Correctional Institution (see Doc. 9 at PageID 50), has filed a pro se civil rights complaint in this Court pursuant to 42 U.S.C. § 1983 . By separate Order plaintiff has been granted leave to proceed in forma pauperis. This matter is before the Court for a sua sponte review of the complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, 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 Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915 (e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Screening of Plaintiff’s Complaint A. Legal Standard Congress enacted 28 U.S.C. § 1915 , the federal in forma pauperis statute, seeking to “lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)(1) as part of the statute, which provides in pertinent part: (2) 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— * * * (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915 (e)(2)(B); Denton, 504 U.S. at 31 . See also § 1915A(b). Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted. To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v. Lappin, 630 F.3d 468 , 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013). Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause 1 Formerly 28 U.S.C. § 1915 (d). of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557 ). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570 ). Facial plausibility is established “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. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923 , at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975 , 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). B. Allegations in the Complaint Plaintiff brings this action in connection with his criminal case in the Franklin County Court of Common Pleas, Case No. 21-CR-1967. As defendants, plaintiff names Judge Carl A. Aveni and his defense attorney, Brandon Shroy. (Doc. 1, Complaint at PageID 2). Plaintiff alleges that he has been imprisoned since February 12, 2023 after having his bond revoked. Plaintiff claims that on May 15, 2023, he “was forced into a jury trial.” (Id. at PageID 12). Plaintiff claims that defendants threatened him to go to trial and violated his speedy trial rights. (Id. at PageID 3, 12). Plaintiff further alleges that defendant Judge Aveni was biased and argumentative. (Id. at PageID 6, 14). According to plaintiff, defendant Shroy told plaintiff “not to tell him what to do in regards to [plaintiff’s] case” and alleges that Shroy stated that Aveni “was paying him to take [plaintiff] to trial.” (Id. at PageID 14, 16). As relief, plaintiff seeks monetary damages and for the dismissal of the criminal charges against him. Based on review of the Franklin County, Ohio docket records, it appears that on July 19, 2023, following a jury trial, plaintiff was sentenced to a total aggregate prison sentence of twenty-four months in the Ohio Department of Rehabilitation and Corrections.2 C. Analysis Plaintiff’s complaint is subject to dismissal at the screening stage. See 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b). As to the defendant Judge Carl A. Aveni, the complaint must be dismissed because judges are afforded absolute immunity from damages for acts they commit while functioning within their judicial capacity. Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). Judges retain absolute immunity from liability even if they act maliciously or corruptly, as long as they are performing judicial acts and have jurisdiction over the subject matter giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). See also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962 (6th Cir.1985). Plaintiff’s complaint alleges no facts to plausibly suggest that defendant Aveni presided over a matter in which he was without subject matter jurisdiction or performed non-judicial acts. 2 Viewed at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/ under Case No. 21 CR 1967. This Court may take judicial notice of court records that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642 , 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327 , 332 n.3 (6th Cir. 1999)). In addition, plaintiff’s complaint fails to state a claim for relief under § 1983 against defendant Shroy, his defense attorney in his state criminal case, because Shroy is not a state actor. In order to maintain an action under § 1983, plaintiff must allege that the person engaging in the conduct complained of was acting under color of state law and that this conduct deprived plaintiff of some right secured by the Constitution or laws of the United States. Graham v. National Collegiate Athletic Ass’n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). As a lawyer representing a client, defendant Shroy was not a state actor within the meaning of § 1983. See Polk County v. Dodson, 454 U.S. 312 (1981) (holding that public defender does not act under color of state law for purposes of § 1983); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1979) (applying Polk County to retained criminal lawyers). See also Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998). Accordingly the named defendants should be dismissed as defendants to this action.3 Plaintiff’s complaint is also subject to dismissal to the extent that he challenges his state- court criminal conviction as violating his speedy trial rights and seeks dismissal of the charges/release from custody. (See Doc. 1 at PageID 13). Plaintiff’s sole remedy in this regard is a petition for a writ of habeas corpus under 28 U.S.C. § 2254 . See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Where a state prisoner challenges the validity of his criminal conviction and seeks relief which would result in his immediate release or a speedier release from imprisonment, 3 To the extent that plaintiff contends that defendants conspired against him, such a claim is also subject to dismissal. It is well-settled in the Sixth Circuit that conspiracy claims must be pleaded with “with some degree of specificity, and vague and conclusory allegations unsupported by material facts are not sufficient to state a claim.” Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of conspiracy claims under 42 U.S.C. § 1983 because the plaintiff failed to plead the claims with the “requisite specificity”). Here, construing the complaint liberally, plaintiff’s factual allegations are insufficient to plausibly suggest that the defendants shared a conspiratorial objective or otherwise planned together to deprive him of a constitutionally-protected right. his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, to the extent plaintiff seeks relief in the form of an immediate or speedier release from imprisonment, his sole federal remedy is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 after he has exhausted his state remedies. See Preiser, 411 U.S. at 500 ; Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985). To the extent that plaintiff seeks money damages for alleged constitutional violations stemming from his criminal conviction, his § 1983 claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). A judgment in plaintiff’s favor on any claim stemming from the state criminal proceedings against him would necessarily imply that his conviction and resulting imprisonment are invalid. See id., 512 U.S. at 487 . Because plaintiff has not alleged facts indicating that his conviction and resulting confinement have been invalidated by a federal or state court or other appropriate tribunal, he may not proceed with such a claim for damages in this § 1983 action. Accordingly, in sum, because plaintiff has failed to state an actionable claim against the named defendants, the complaint should be dismissed pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b). IT IS THEREFORE RECOMMENDED THAT: 1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915 (e)(2)(B) and 1915A(b). 2. The Court certify pursuant to 28 U.S.C. § 1915 (a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). NOTICE REGARDING OBJECTIONS Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served with a copy thereof. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). s/Stephanie K. Bowman Stephanie K. Bowman United States Magistrate Judge