United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
an inmate at the Miami Correctional Institution, has filed a
civil rights complaint under 42 U.S.C. § 1983, naming as
defendants Frank Schiavone III, Frank Schiavone IV, Scioto
County Adult Parole Authorities, John Does, Ohio Parole
Board, and “Adult Parole.” (See Doc.
1-1, Complaint at PageID 17). Plaintiff has also filed an
amended complaint naming Frank Schiavone III, Frank Schiavone
IV, Scioto County Adult Parole Authorities, John Does, and
“Chillicothe Prison” as defendants. (Doc. 2-1,
Complaint at PageID 101).
separate Order issued this date, plaintiff has been granted
leave to proceed in forma pauperis. This matter is
before the Court for a sua sponte review of the
complaint, as amended, 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).
enacting the original in forma pauperis statute,
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.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C.
§§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint
may be dismissed as frivolous when the plaintiff cannot make
any claim with a rational or arguable basis in fact or law.
Neitzke v. Williams, 490 U.S. 319, 328-29 (1989);
see also Lawler v. Marshall, 898 F.2d 1196, 1198
(6th Cir. 1990). An action has no arguable legal basis when
the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or “wholly
incredible.” Denton, 504 U.S. at 32;
Lawler, 898 F.2d at 1199. The Court need not accept
as true factual allegations that are “fantastic or
delusional” in reviewing a complaint for frivolousness.
Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and
1915A(b)(1). A complaint filed by a pro se plaintiff
must be “liberally construed” and “held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Hill, 630 F.3d at 470-71 (“dismissal
standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim” under
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
“accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain “detailed factual
allegations, ” it must provide “more than an
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Erickson, 551 U.S. at 93 (citations omitted).
amended complaint, plaintiff claims that he was initially
sentenced to serve a prison sentence of twenty years,
following his criminal conviction in Scioto County, Ohio.
(See Doc. 2-1, Amended Complaint at PageID 102;
108-109). Plaintiff indicates that he was resentenced to an
eight year prison sentence upon successfully appealing to the
Court of Appeals. (Id. at PageID 102). Plaintiff
further indicates that he subsequently filed an application
to reopen his appeal, which resulted in his release from
claims that months after his release he was ordered by the
Adult Parole Authorities to report or he would be placed back
in prison. According to plaintiff, he was forced to move from
Scioto County to Cincinnati, “where my parole was
transferred.” (Id.). Plaintiff claims that the
trial court “made a[n] order that I was illegally
placed on parole and to terminate the void sanction.”
(Id.). Plaintiff has attached to the complaint the
June 9, 2016 Order, which vacated the post-release control
portion of plaintiff's sentence after finding that it was
not properly imposed in his case and was therefore void.
(Id. at PageID 106).
alleges that his attorneys, defendants Frank Schiavone III
and Frank Schiavone IV, provided ineffective assistance of
counsel during the state court proceedings. Specifically, he
claims that these defendants refused to file motions
requested by plaintiff challenging his post-release control.
(Id. at PageID 103). As a result of these factual
allegations plaintiff claims he was subjected to cruel and
unusual punishment “for being subjected bye (sic) an
illegal act of fraud upon the court.” (Id. at
relief, plaintiff requests that his “loss of time be
accounted for, ” an apology from his lawyers, and
monetary damages. (Id. at PageID 105).
complaint is subject to dismissal for failure to state a
claim upon which relief may be granted. First,
plaintiff's claims against his attorneys, defendants
Frank Schiavone III and Frank Schiavone IV, should be
dismissed because these individuals are not state actors
subject to liability under § 1983. “To state a
claim under § 1983, a plaintiff must allege the
violation of a right secured by the federal Constitution and
laws of the United States, and must show that the alleged
deprivation was committed by a person acting under the color
of state law.” West v. Atkins, 487 U.S. 42, 48
(1988); Street v. Corr. Corp. of America, 102 F.3d
810, 814 (6th Cir. 1996). A private actor acts under color of
state law when his conduct is “fairly attributable to
the state.” Lugar v. Edmondson Oil Co., 457
U.S. 922, 937 (1982). As plaintiff's attorneys,
defendants Schiavone III and Schiavone IV were not state
actors subject to liability under § 1983. See Brown
v. McCandless, No. 1:15cv381, 2015 WL 4476955, at *3
(N.D. Ohio July 22, 2015) (and cases cited therein)
(“[i]t is firmly established that a defense attorney,
regardless of whether he is a public defender or private
attorney, is not a state actor for purposes of §
1983”); Foster v. Ohio, No. 1:14cv668, 2014 WL
5589016, at *1, *4 (S.D. Ohio Nov. 3, 2014) (Beckwith, J.;
Litkovitz, M.J.) (and cases cited therein) (holding that
plaintiff's complaint against his attorney was subject to
dismissal at screening stage for failure to state a claim
under § 1983). Accordingly the complaint should be
dismissed as to the attorney defendants.
to the extent that plaintiff names the “Chillicothe
Prison” as a defendant in this action, he fails to
state a claim upon which relief may be granted because it is
not a legal entity that is capable of being sued. Only
“a person” acting under color of state law is
subject to suit or liability under 42 U.S.C. § 1983.
Parker v. Michigan Dept. of Corr., 65 F. App'x.
922, 923 (6th Cir. 2003) (Department of Corrections not a
“person” under § 1983). See McGlone v.
Warren Corr. Inst., No. 1:13cv126, 2013 WL 1563265, at
*3 (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report &
Recommendation) (and numerous cases cited therein) (holding
that the complaint against the ODRC and an Ohio prison was
subject to dismissal at the screening stage because
“neither the state prison facility nor the state