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JosÈ Lisboa, Jr v. Judge Nancy Fuerst

October 31, 2011

JOSÈ LISBOA, JR.,
PLAINTIFF,
v.
JUDGE NANCY FUERST, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Solomon Oliver, Jr.

MEMORANDUM OF OPINION AND ORDER

Pro se plaintiff Jose Lisboa filed the above-captioned civil rights Complaint against Judge Nancy A. Fuerst, Judge Diane M. Palos, Judge Deena R. Calabrese, Judge Peter J. Corrigan, Judge Richard J. McMonagle, Judge Timothy J. McGuinty, Judge Nancy R. McDonnell, Ed Fitzgerald, Governor John R. Kasich, Judge Bridget McCafferty, and John & Jane Does 1-50. Mr. Lisboa alleges the Defendants have violated 42 U.S.C. §§ 1983, 1985, 1986, 18 U.S.C. § 241, 18 U.S.C. §§ 1961-62, as well as several state laws. He seeks compensatory and punitive damages totaling $100,000.000.00, as well as declaratory relief.

Defendants State of Ohio and Ohio Governor Kasich ("State Defendants") filed a Motion to Dismiss on October 5, 2011. A Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim on behalf of Deena R. Calabrese, Peter J. Corrigan, Nancy A. Fuerst, Bridgett McCafferty, Nancy R. McDonnell, Timothy J. McGuinty, Richard J. McMonagle, and Diane M. Palos ("Judicial Defendants") was also filed the same date.

On October 20, 2011, Mr. Lisboa filed a Motion for Extension of Time until November 8, 2011 to file a response to the State Defendants' Motion to Dismiss (Doc. No. 13). The next day, he filed a Memorandum of Law and Fact in Opposition to the State Defendants' Motion to Dismiss and a Motion to Convert Their 12(b)(6) Motion to a Rule 56 Motion for Summary Judgment and for Discovery pursuant to Rule 56(f). (Doc. No.14). Three days later, Defendant Ed Fitzgerald filed a Motion to Dismiss for Failure to State a Claim (Doc. No. 15). On October 27, 2011, Mr. Lisboa filed Memorandum of Law and Fact in Opposition to State Defendants' Motion to Dismiss (Doc. No. 16). Inasmuch as Mr. Lisboa has already filed a Memorandum of Law opposing the State Defendants' Motion to Dismiss, his Motion for Extension (Doc. No. 13) to oppose that Motion is denied as moot. In addition, the request to convert the Motions to Dismiss to Motions for Summary Judgment is denied, as well as the request for Discovery. (Doc. No. 14). For the reasons set forth below, the Defendants' Motions to Dismiss (Doc. Nos. 9, 10 & 15) are granted and this action is dismissed.

Background

Mr. Lisboa's claims stem from an indictment filed against him in the Cuyahoga County Court of Common Pleas in 2004. See State of Ohio v. Lisboa, No. CR-04-451451-ZA (Cuy. Ct. Com. Pl., filed May 6, 2004)(McCafferty, J.)("Indictment I").*fn1 The indictment charged him with aggravated assault in violation of ORC § 2903.12, domestic violence in violation of ORC § 2919.25, and possessing criminal tools in violation of ORC § 2923.24. Id.

Four months later, another indictment was issued. See State of Ohio v. Lisboa, CR-04-456885-A (Cuy. Ct. Com. Pl., filed Sep. 23, 2004)("Indictment II"). Indictment II charged Mr. Lisboa with conspiracy to engage in felonious assault, drug possession, possession of criminal tools, and two counts of witness or victim intimidation and retaliation. A nolle prosequi was entered on the indictment by the prosecuting attorney on October 1, 2004.*fn2

Mr. Lisboa pled guilty to aggravated assault and domestic violence on October 1, 2004 on Indictment I. See Lisboa, No. CR-04-451451 (JE of 10/1/04). As a condition of his guilty plea, Mr. Lisboa waived extradition and agreed to leave the United States within 45 days of the date of the plea agreement.*fn3 See id.

Mr. Lisboa was deported to Brazil on June 17, 2005, where he remains today. Almost two years after his departure, he challenged Indictment I by filing a Motion to Vacate and Allow Withdrawal of Plea in the Common Pleas Court under Criminal Rule 32.1 on April 21, 2006. Court records reveal:*fn4

The main evidence in support of appellant's motion for a new trial was an affidavit he received in March 2006 from witness, Bill Wilson (originally the state's informant). In the affidavit, Wilson indicated that appellant's wife, Kimberly, had paid him to set up appellant to commit a crime, but that appellant had eventually stated that he wanted to abandon the plan. In the motion for a new trial, appellant argued that the trial court lacked jurisdiction to agree to the 45-day time period to leave the country; that he did not enter into a knowing and voluntary plea because he thought he could prevent deportation under the agreement; that he was denied effective assistance of counsel because his attorney failed to tell him that he could be deported; that the state failed to reveal evidence that his wife had "set him up" to be deported by paying Wilson and that appellant had renounced the conspiracy; and that tapes, which revealed he had renounced the conspiracy, had been tampered with.

State of Ohio v. Lisboa, No. CR-04-89283, at *1 (Ohio 8th Dist. Ct. App., Feb. 14, 2008). After a full hearing on December 19, 2006, the trial court denied his motion. He then appealed his conviction and sentence to the Eighth Appellate District Court on January 11, 2007.*fn5 The Court of Appeals vacated his plea and sentence.*fn6 See State of Ohio v. Lisboa, No. CR-04-89283 (Ohio 8th Dist. Ct. App., Feb. 14, 2008). The appeals court determined that the ten-year period of community control sanction was in violation of O.R.C, 2929.15(A)(1). The case was remanded to the common pleas court on March 3, 2008. A pre-trial conference was scheduled for November 17, 2008.

On September 23, 2008, Mr. Lisboa filed Motions for Discharge and/or Dismissal of Charges in both cases.*fn7 During the pendency of review on these Motions, Judge McCafferty held the November 17, 2008 pre-trial conference to address the appellate court's remand. Mr. Lisboa appeared pro se via video conference along with the prosecutors. Judge McCafferty continued the conference until December 8, 2008, noting: "Defendant is unable to return to the United States pending a ruling of the Board of Immigration Appeals allowing him to do." Lisboa, No. 451451 (JE of 11/20/08). Judge McCafferty also denied Mr. Lisboa's motion requesting she disqualify or recuse herself.

On April 9, 2009, Mr. Lisboa was indicted a third time in the Cuyahoga County Court of Common Pleas. See State of Ohio v. Lisboa, No. CR-09-522757-A (Cuy. Ct. Com. Pl. 2009) ("Indictment III"). He was charged with felonious assault, telecommunications harassment, and aggravated menacing. Id. Judge Richard McMonagle issued a certified summons for his arraignment, which was returned "Signed by Other." Judge McMonagle then issued a capias for Mr. Lisboa on April 23, 2009. Mr. Lisboa moved to set aside the capias and requested permission to enter a not guilty plea in absentia on May 20, 2009. Judge Nancy McDonnell denied both requests on August 27, 2009.*fn8

During an August 21, 2009 pre-trial conference on Indictment I, Judge McCafferty questioned the prosecution's plans to extradite Mr. Lisboa. The prosecutor explained he was awaiting the results of a hearing allegedly pending "before U.S. Immigration." The pre-trial conference was continued until September 3, 2009.

On August 26, 2009, Mr. Lisboa appealed the trial court's denial of his Motion to Dismiss Indictment I. A rescheduled pre-trial hearing was held on September 9, 2009. The Judgment Entry from that hearing, filed on September 11, 2009, established:

A REVIEW OF THE DOCKET REVEALS THAT AT THE LAST PT, STATE INDICATED IT WOULD APPRISE THE COURT OF THE INTENT TO EXTRADITE DEFENDANT. STATE WAS AWAITING THE RESULTS OF A HEARING BEFORE US IMMIGRATION THAT DEFENDANT HAD APPRISED THE COURT AND COUNSEL WAS PENDING. THE COURT HAS NOT BEEN UPDATED AS TO EITHER THE STATUS OF SAID HEARING AND/OR EXTRADITION PROCEEDINGS PERTAINING TO THIS DEFENDANT. DEFENDANT INDICATED THAT ON JULY 7, 2008 AN IMMIGRATION JUDGE ORDERED HIS DEPORTATION REVERSED AND THE UNITED STATES GOVERNMENT APPEALED AND SAID APPEAL IS PENDING. AS SUCH, COURT CANNOT PROCEED WITH THE CASE UNTIL AND UNLESS DEFENDANT EITHER IS ABLE TO RETURN TO THE COUNTRY OR IS EXTRADITED BY THE STATE OF OHIO. COURT SETS A PRETRIAL ON 12-15-09 AT 9AM. TO RECEIVE AN UPDATE ON SAID ISSUES. THERE SHALL NOT BE ANY ACTIVITY ON THE CASE IN THE INTERIM, UNTIL THE COURT CAN CONFIRM THE DEFENDANT IS IN THE UNITED STATES OF AMERICA. THE CLERK IS ORDERED TO SERVE A COPY OF THIS ORDER TO MAXWELL MARTIN, ASSISTANT COUNTY PROSECUTOR, . . . AND JOSE LISBOA, DEFENDANT, AT: RUA MINISTRO FERREIRA ALVES 208-SL-01 SAO PAULO, SP, BRASIL 05009-060. MR. LISBOA MAY PARTICIPATE VIA TELECONFERENCE AND A COURT REPORTER SHALL BE PRESENT AT SAID PRETRIAL. DEFENDANT REQUESTS A TRANSCRIPT OF THESE PROCEEDINGS AND MAY ORDER SAME FROM THE COURT REPORTER'S DEPARTMENT, BY CONTACTING THAT DEPARTMENT AND ARRANGING SAME. IT IS SO ORDERED. 09/09/2009 CPBMM 09/10/2009 12:07:39 Lisboa, No. ...


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