United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice, District Judge
REPORT AND RECOMMENDATION  THAT: (1)
PRO SE PLAINTIFF'S COMPLAINT (DOC. 2) BE DISMISSED WITH
PREJUDICE; AND (2) THIS CASE BE TERMINATED ON THE COURT'S
Michael J. Newman, United States Magistrate Judge
pro se civil case is before the Court for a sua
sponte review -- pursuant to 28 U.S.C. § 1915(e)(2)
-- of the complaint filed by pro se Plaintiff David
Allen Farmer (“Farmer”). Farmer filed a motion
for leave to proceed in forma pauperis
(“IFP”) on August 25, 2017 (doc. 1), which the
Court granted. Doc. 2. The Court, however, held service of
the complaint pending a review under § 1915(e)(2).
Id. It is appropriate for the Court to conduct this
review sua sponte prior to issuance of process
“so as to spare prospective defendants the
inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S.
319, 324 (1989).
accordance with 28 U.S.C. §1915(e)(2), this Court must
perform an initial review of the instant action. McGore
v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997).
Upon review, the Court must dismiss any case it determines is
“frivolous or malicious, ” fails to state a claim
upon which relief can be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C.
complaint should be dismissed as frivolous if it lacks an
arguable basis in law or fact. Denton v. Hernandez,
504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A
plaintiff sets forth no arguable factual basis where the
allegations asserted are “fantastic or
delusional”; and presents no arguable legal basis when
advancing “indisputably meritless” legal
theories, i.e., when the defendant is immune from
suit, or when the plaintiff claims a violation of a legal
interest which clearly does not exist. Neitzke, 490
U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866
(6th Cir. 2000). Courts may also dismiss a complaint sua
sponte for failure to state a claim upon which relief
may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
conducting this initial review under § 1915, the Court
accepts pro se Plaintiff's allegations as true
and construes them liberally in his favor. See Donald v.
Marshall, No. 84-3231, 1985 WL 13183, at *1 (6th Cir.
Apr. 5, 1985) (stating that, “[w]hen considering a
pro se action for dismissal pursuant to 28 U.S.C.
§ 1915(d), the complaint should be liberally construed
and the allegations of the complaint must be taken as true
and construed in favor of the plaintiff”). However,
while pro se pleadings are “to be liberally
construed” and are “held to less stringent
standards than formal pleadings drafted by lawyers, ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), pro se plaintiffs must still satisfy
basic pleading requirements. Wells v. Brown, 891
F.2d 591, 594 (6th Cir. 1989).
was indicted on charges of rape and gross sexual imposition
by a grand jury in the Montgomery County, Ohio Court of
Common Pleas on October 22, 2007. Doc. 2 at PageID 12. The
criminal case was subsequently assigned to Montgomery County
Common Pleas Judge Dennis J. Langer. Id. Famer was
represented by Defendant Marshall Lachman in the criminal
proceedings. Id. Defendants Michele Henne, Steve
Abshire and Eric Michener were prosecuting attorneys
representing the State of Ohio. Id.
alleges unspecified errors in the grand jury proceedings and
contends that Defendants all subsequently conspired to
deprive him of due process of law by proceeding with
prosecution of the allegedly unlawfully instituted criminal
charges. Id. Farmer was ultimately convicted and, on
September 1, 2010, was sentenced to serve 20 years to life in
state prison. Id.
August 25, 2017, Farmer filed this action in federal court
purporting to assert civil rights and civil conspiracy claims
against Defendants under 42 U.S.C. §
1985(2). Id. at PageID 11. However,
because there are no specific factual allegations of witness
intimidation or discrimination against Farmer as a member of
a protected class, the undersigned liberally construes
Farmer's claims as alleging a civil conspiracy under 42
U.S.C. § 1983, not § 1985(2). See Fannon v.
Patterson, No. 3:13-CV-14, 2014 WL 4273337, at *6 n.9
(S.D. Ohio Aug. 29, 2014) (citing Fox v. Mich. State
Police Dep't, 173 F. App'x 372, 376 (6th Cir.
2006); Smithers ex rel. Norris v. City of Flint, 602
F.3d 758, 766 (6th Cir. 2010)).
the undersigned finds that all of Farmer's claims are
time-barred -- regardless of whether he pursues such claims
under § 1983 or § 1985. Civil rights claims brought
in Ohio courts are subject to the two-year limitations period
set forth in Ohio Rev. Code § 2305.11(A). See
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.
1989); see also Dotson v. Lane, 360 F. App'x
617, 620 (6th Cir. 2010); Savage v. Unknown F.B.I.
Agents, No. 96-4230, at *1 (6th Cir. Sept. 15, 1997).
“The accrual date of a § 1983 action is a question
of federal law[, ]” under which the limitations period
begins to run when “plaintiff [ ] knew or should have
known of the injury which forms the basis of their
claims.” Wallace v. Kato, 549 U.S. 384, 388
case, Farmer contends that the alleged due process violation
was known -- or should have been known -- at the time the
criminal charges were filed against him in October 2007, and
certainly no later than entry of his sentence on September 1,
2010. Doc. 2 at PageID 12. Farmer filed this action on August
25, 2017 -- almost seven years after his sentencing, and
almost 10 years after he was initially charged. See
doc. 1. Accordingly, ...