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Farmer v. Langer

United States District Court, S.D. Ohio, Western Division, Dayton

August 30, 2017

DAVID ALLEN FARMER, Plaintiff,
v.
DENNIS J. LANGER, et al., Defendants.

          Walter H. Rice, District Judge

          REPORT AND RECOMMENDATION [1] THAT: (1) PRO SE PLAINTIFF'S COMPLAINT (DOC. 2) BE DISMISSED WITH PREJUDICE; AND (2) THIS CASE BE TERMINATED ON THE COURT'S DOCKET

          Michael J. Newman, United States Magistrate Judge

         This 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).

         I.

         In 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. § 1915(e)(2)(B).

         A 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).

         In 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).

         II.

         Farmer 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.

         Farmer 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.

         On 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).[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)).

         III.

         Initially, 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 (2007).

         In this 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, ...


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