United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
se plaintiff Sakhu Maa Tem Heru aka Sekou Muata Imani
filed this action against the State of Ohio, the Tuscarawas
County Court of Common Pleas, the Tuscarawas County
Commissioners, the Tuscarawas County Prosecutor's Office,
and Judge Elizabeth L. Thomakos. Plaintiff contends that he
is removing this case from state court, citing diversity of
citizenship, the Alien Tort Claims Act 28 U.S.C. §1350,
and Federal Civil Procedure Rules 12(b) and 60(b), as the
basis for federal court jurisdiction. Plaintiff appears to
challenge a 2008 criminal conviction in the Tuscarawas County
Court of Common Pleas. He asserts claims for genocide,
denationalization, unlawful arrest, arbitrary detention,
false imprisonment, kidnaping, torture, and cruel and unusual
punishment, and seeks monetary damages.
filed an amended complaint on April 5, 2017, which appears to
supplement, rather than supersede, his original complaint.
(Doc. No. 4.) He continues to claim that this case is a
removed state court action, and cites the Alien Tort Claims
Act and diversity of citizenship as the basis for federal
court jurisdiction. He appears to continue to challenge his
2008 criminal conviction, and adds claims for violation of
his First Amendment right to Freedom of Religion by Belmont
Correctional Institution officials. In the amended complaint,
plaintiff adds defendants: Tuscarawas County Assistant
Prosecutor David Hipp, Tuscarawas County Prosecutor Ryan
Styer, Tuscarawas County Sheriff's Detective Scott
Ballentine, Tuscarawas County Court of Common Pleas Clerk of
Court Jeanne Stephens, Tuscarawas County Public Defender
Matthew Petit, Ohio Department of Rehabilitation and
Correction (“ODRC”) Religious Services
Administrator Michael Davis, the ODRC Chief Inspector, the
Belmont Correctional Institution Warden Mary Potter, and the
Belmont Correctional Institution Chaplain Berger.
complaint and amended complaint are largely incomprehensible.
They are composed almost entirely of meaningless rhetoric,
with random citations to various legal and non-legal sources.
Plaintiff states that he is an indigenous Native American
with Olmec, Ute, Cherokee, and Blackfoot ancestry, and also
claims “free Moorish” ancestry. Plaintiff claims
that he “declared his inalienable right as an
indigenous person to a status separate and distinct from the
14thAmendment corporate citizen.” (Doc. No.
1 at 5). He also indicates that he exercised his
right to expatriation by filing such a declaration with the
Tuscarawas County Court of Common Pleas Clerk of Court, the
Ohio Governor, the Ohio Secretary of State and the Ohio
Attorney General. He sent a document to some or all of the
defendants, and instructed them to rebut the document word
for word, or it will be considered to be admitted. The
defendants did not respond. Plaintiff appears to claim that,
based on his indigenous status and the defendants'
failure to respond to his document, the Tuscarawas County
Court of Common Pleas lacked subject matter jurisdiction to
proceed with his criminal prosecution in case no. “2007
01 0145” which he contends voids his conviction.
Plaintiff also alleges that: he was denied a fair trial and
appeal, the right to discovery, the right to counsel, the
right of self-representation, the right to a suppression
hearing, the right to compulsory process to obtain witnesses,
the right to be free of fraud on the court, the right to
Brady Evidence, the right to be free from unreasonable
searches and seizures, the right to be free of warrants or
indictments without probable cause, the right to a grand
jury, the right to contract rights under the Uniform
Commercial Code, the right to be free of genocide, the right
to travel, and the right to access to the courts.
amended complaint, plaintiff contends that Belmont
Correctional Institution officials interfered with the
practice of his religion. Plaintiff claims that he practices
Moorish Kemetism. He states that he originally received
permission by prison officials to wear a fez and wore it for
several months, but was not permitted to wear a fez on a
visit in December 2016, and was prohibited by Captain Rizzo
from wearing it to the dining hall in January 2017. Plaintiff
contends that inmates of other religions are permitted to
wear their religious headgear. He also alleges he was denied
kosher meals. Finally, plaintiff alleges the Belmont
Correctional Institution does not provide religions services
for Moorish Kemetic practitioners.
Standard of Review
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
Court is required to dismiss an in forma pauperis
action under 28 U.S.C. § 1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an
arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d
1196, 1198 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim
lacks an arguable basis in law or fact when it is premised on
an indisputably meritless legal theory or when the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327. A cause of action fails to state a claim upon which
relief may be granted when it lacks plausibility in the
complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
pleading must contain a short and plain statement of the
claim showing that the pleader is entitled to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The
factual allegations in the pleading must be sufficient to
raise the right to relief above the speculative level on the
assumption that all the allegations in the complaint are
true. Bell Atl. Corp., 550 U.S. at 555. The
plaintiff is not required to include detailed factual
allegations, but must provide more than an unadorned,
Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause
of action will not meet this pleading standard. Id.
In reviewing a complaint, the Court must construe the
pleading in the light most favorable to the plaintiff.
Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559,
561 (6th Cir. 1998).
initial matter, plaintiff did not (and could not) remove his
2007 criminal case from state court. A defendant may remove
“any civil action brought in a state court of which the
district courts of the United States have original
jurisdiction.” 28 U.S.C. § 1441(a). The notice of
removal of a civil action or proceeding must be filed within
thirty days after the receipt by the Defendant through
service or otherwise of a copy of the initial pleading
setting forth the claim for relief upon which such action or
proceeding is based. 28 U.S.C. § 1446 (b). First,
plaintiff did not file a notice of removal, he filed a new
civil action. Second, only civil cases are removable.
Plaintiff indicates he is attempting to remove a criminal
case. Finally, the criminal case plaintiff claims he is
removing is closed. In April 2008, a jury found him guilty of
two counts of trafficking in drugs and two counts of
aggravated trafficking in drugs. An Ohio appellate court
affirmed his conviction in May 2013. The Ohio Supreme Court
declined jurisdiction in January 2014. Even if the case were
removable, the time to do so would have expired.
action can only be described as a new civil rights action.
Plaintiff, however, cannot file a civil rights action to
attack his conviction. In order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, plaintiff must prove that
the 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 under 28 U.S.C. § 2254. Heck
v. Humphrey, 512 U.S. 477, 486 (1994). A claim for
damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable in a civil
rights action. Therefore, when a state prisoner seeks damages
in a civil rights action, the Court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence. If it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. If, however, the Court determines that the
plaintiff's action, even if successful, will not
demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed
to proceed, in the absence of some other bar to the suit.
case, plaintiff claims that his conviction is void, and
asserts that he was denied a fair trial and appeal, the right
to discovery, the right to counsel, the right of
self-representation, the right to a suppression hearing, the
right to compulsory process to obtain witnesses, the right to
be free of fraud on the court, the right to Brady
evidence, the right to be free from unreasonable searches and
seizures, the right to be free of warrants or indictments
without probable cause, and the right to a grand jury. These
claims, if found to have merit by this Court would call into
question the validity of his conviction. He has not alleged
that his conviction has been overturned. Indeed, he is
incarcerated at the Belmont Correctional Institution serving
a prison sentence for this conviction, and cannot assert
these claims in this civil rights action.
amended complaint adds claims pertaining to the practice of
his religion at the Belmont Correctional Institution. He
claims that he was denied the ability to wear his fez on two
occasions, was denied kosher meals, and was denied organized
religious services as a Moorish Kemetic. He names the Belmont
Correctional Institution warden and chaplain, as well as the
ODRC Chief Inspector and ODRC Religious Services
Administrator. While the Court conceivably may be able to
construe a possible claim against the institution's
warden and chaplain, plaintiff does not allege any facts to
suggest the basis for his claims against the ODRC officials.
Plaintiff cannot establish the liability of any defendant
absent a clear showing that the defendant was personally
involved in the activities that form the basis of the alleged
unconstitutional behavior. Rizzo v. Goode, 423 U.S.
362, 371 (1976); Mullins v. Hainesworth, No.
95-3186, 1995 WL 559381 (6th ...