United States District Court, N.D. Ohio
Anthony L. Viola, Plaintiff,
Mark S. Bennett, Defendant.
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN United States District Judge.
se plaintiff Anthony L. Viola, a federal prisoner
incarcerated in the McKean Correctional Institution in
Bradford, Pennsylvania, has filed this civil rights action
against Mark S. Bennett, the Assistant United States Attorney
who prosecuted him in United States v. Viola, Case
No. 08 CR 506 (N.D. Ohio) (Nugent, J.).
plaintiff was tried by a jury in Case No. 08 CR 506 and found
guilty of two counts of conspiracy to commit wire fraud and
thirty-three counts of wire fraud in violation of 18 U.S.C.
§§371 and 1343. The trial court denied the
plaintiff's motion for a new trial, in which he asserted
ineffective assistance of counsel and prosecutorial
misconduct, and sentenced him to 60 months imprisonment for
each of the conspiracy counts and 150 months of imprisonment
on each of the wire fraud counts, to be served concurrently
and to be followed by three years of supervised release. The
Sixth Circuit affirmed the district court's order denying
the motion for a new trial. United States v. Viola,
Case No. 12-3112 (6th Cir. Nov. 6, 2013).
district court denied a subsequent motion by the plaintiff to
vacate or set aside his sentence pursuant to 28 U.S.C.
§2255, in which the plaintiff asserted among other
things various forms of prosecutorial misconduct. The Sixth
Circuit denied his motion for a certificate of appealability
to pursue an appeal of the district court's order denying
this motion, and denied three other motions the plaintiff
filed. See United States v. Viola, Case No. 16-3023
(6th Cir. Nov. 23, 2016). The Sixth Circuit held
that jurists of reason could not disagree that the plaintiff
had not made a substantial showing of the denial of a federal
civil rights action, the plaintiff alleges that AUSA Bennett
violated his constitutional rights in his criminal case by
making representations to the Sixth Circuit that he waived
conflicts of interest regarding his counsel. He asks the
Court to declare Bennett's representations
“unconstitutional and issue an order enjoining
[Bennett] from falsely informing any court that the Plaintiff
waived any conflicts of interest.” (Doc. No. 1 at 5.)
The plaintiff further requests that “a Temporary
Restraining Order be issued, until such time as a hearing
concerning [the] matter can be held.” (Id.)
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982); Haines v.
Kerner, 404 U.S. 519, 520 (1972), federal district
courts are expressly required, under 28 U.S.C. §1915A,
to screen any complaint in a civil action in which a prisoner
seeks redress from an officer or employee of a governmental
entity, and to dismiss before service any such action that
the court determines is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. See 28 U.S.C. §1915A; Hill v.
Lappin, 630 F.3d 468, 471 (6th Cir. 2010).
plaintiff's complaint is frivolous, fails to state a
claim, and must be dismissed pursuant to §1915A.
Supreme Court's decision in Heck v. Humphrey,
512 U.S. 477, 487 (1994), bars a prisoner from raising
constitutional claims in a civil rights action if a judgment
on the merits of those claims would affect the validity of
the prisoner's conviction or sentence, unless the
prisoner shows that his “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.”
See also Edwards v. Balisok, 520 U.S. 641 (1997).
applies with equal force to a civil rights action brought
against federal officials pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). See Robinson v. Jones, 142 F.3d
905, 906-07 (6th Cir.1998). In addition, Heck
extends to actions seeking injunctive or declaratory relief.
See Edwards, 520 U.S. at 646-48 (declaratory
relief); Wilson v. Kinkela, No. 97-4035, 1998 WL
246401, at *1 (6th Cir. May 5, 1998) (injunctive relief).
allegations clearly call into question the validity of his
federal conviction. His alleged civil rights claims are,
therefore, barred under Heck because he has made no
allegation or showing that the conviction has been
invalidated in any of the ways articulated in Heck.
the Sixth Circuit and other courts in this district have
repeatedly rejected the plaintiff's allegations against
Bennett. See, e.g., United States v. Viola, Case No.
16-3023 (6thCir. Nov. 23, 2016); U.S. Bank
National Ass'n v. Viola, Case No. 16 CV 969, 2016 WL
7012303, at *2 and cases cited in footnote 16 (N.D. Ohio Dec.
for the reasons stated above, the plaintiff's motions for
a temporary restraining order (Doc. No. 2) and for service of
the complaint (Doc. No. 7) are denied, and this action is
dismissed pursuant to 28 U.S.C. §1915A.
Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that
an appeal from this decision ...