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Aliane v. McKee

United States District Court, S.D. Ohio, Eastern Division

December 13, 2017

MALEK BOUZID ALIANE, Plaintiff,
v.
CHRISTINE A. McKEE, et al., Defendants.

          MICHAEL H. WATSON JUDGE.

          ORDER AND REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Malek Bouzid Aliane, a pro se prisoner in federal custody, filed a Motion for Leave to Proceed in forma pauperis on November 15, 2017. (Doc. 1). Pursuant to 28 U.S.C. § 1915(a), that Motion is GRANTED. All judicial officers who render services in this action shall do so as if the costs had been prepaid. However, as explained below, the Court concludes this action cannot proceed.

         Because Plaintiff is a prisoner seeking redress from the government, this Court must conduct an initial screening pursuant to 28 U.S.C. § 1915A(a). The Court must dismiss the complaint if it determines that it is frivolous or 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. 28 U.S.C. § 1915(e)(2); see Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991) (“[T]he allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers....”); Thompson v. Kentucky, No. 86-5765, 1987 WL 36634, at *1 (6th Cir. 1987) (“Although pro se complaints are to be construed liberally, they still must set forth a cognizable federal claim.” (citation omitted)). In order to survive dismissal for failure to state a claim, “a 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 Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Applying those standards here, the Undersigned RECOMMENDS DISMISSAL.

         I. BACKGROUND

         Plaintiff has been a criminal defendant in several cases in this Court and has also initiated numerous civil lawsuits here. A review of some of those cases is relevant to the background of this matter, in which he alleges his confinement in a special housing unit based on a later-expunged disciplinary conviction violated his due process rights.

         A. Plaintiff's Relevant Criminal History

         On September 16, 2011, Plaintiff was sentenced in this Court to a 30-month term of imprisonment, followed by a one-year term of supervised release, for aggravated identity theft and bank fraud, in violation of 18 U.S.C. §§ 1028A(a)(1) and 1344. See Case No. 2:11-cr-59. Just over three months later, on December 20, 2012, Plaintiff was sentenced again in this Court to a 48-month term of imprisonment, followed by a three-year term of supervised release, for mail fraud, and aggravated identity theft, in violation of 18 U.S.C. §§ 1341 and 2, and 1028A(a)(1). See Case No. 2:12-cr-145.

         Plaintiff was serving time for those convictions in Alvis House, a residential re-entry center located in Columbus, Ohio, when a new criminal complaint charged him with identity theft, mail fraud, and wire fraud. See Case No. 2:15-cr-194. In other words, Plaintiff was charged with engaging in criminal conduct while still in custody. See id. Consequently, the United States Marshals Service arrested Plaintiff and took him into custody on July 21, 2015, when he was returning from his work assignment to Alvis House. See id. Plaintiff was then booked into the Franklin County jail. See id.

         Plaintiff ultimately pled guilty to mail fraud and false claims against the United States and was sentenced to thirty-six months on each count, to run concurrently to one another and consecutively to his sentence on the previous convictions, to be followed by a three-year term of supervised release. See Case No. 2:15-cr-194 (Doc. 40).

         B. The Relevant Incident Report

         Plaintiff's arrest on July 21, 2015, while serving time at Alvis House prompted its Operations Manager Christine McKee to issue an incident report nine days later on July 30, 2015. The incident report charged Plaintiff with technical “escape” in violation of Bureau of Prisons (“BOP”) Code 102. It stated:

Inmate Aliane is charged with the BOP Prohibited Act #102; Escape due to being arrested on [July 20, 2015 at 5:30 p.m.], by Marshal Stroh, on a criminal complaint of identity theft, mail fraud, and wire fraud. Inmate Aliane was apprehended in the parking lot of Alvis House for Men facility and then booked into the Franklin County Jail….

(Doc. 1-1, PAGEID #: 10). The report incorrectly stated that Plaintiff was arrested on July 20, 2015, not ...


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