United States District Court, S.D. Ohio, Western Division
CLIFFORD L. RUCKER, Plaintiffs,
JUDGE TOM HEEKIN, et. al, Defendants.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
separate Order issued this date, Plaintiff has been granted
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. The complaint itself is now before the
Court for a sua sponte review 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
28 U.S.C. § 1915(e)(2)(B). For the reasons that follow,
the undersigned recommends that the complaint be dismissed.
General Screening Authority
has authorized federal courts to dismiss an in forma
pauperis complaint if satisfied that the action is
frivolous or malicious. Denton v. Hernandez, 504
U.S. 25, 31 (1992); see also 28 U.S.C. §
1915(e)(2)(B)(i). 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).
has also authorized the sua sponte dismissal of
complaints which fail to state a claim upon which relief may
be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii).
Although a plaintiff's pro se complaint must be
“liberally construed” and “held to less
stringent standards than formal pleadings drafted by lawyers,
” the complaint must “give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citation and quotation omitted)). 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 Twombly, 550 U.S. at 570);
see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th
Cir. 2010)(“dismissal standard articulated in
Iqbal and Twombly governs dismissals for
failure to state a claim” under §§
1915(e)(2)(B)(ii) and 1915A(b)(1)).
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 (quoting
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.
Allegations Of Complaint
Rucker's pro se complaint identifies five individual
Defendants and two sets of agency/John or Jane Doe
Defendants: (1) Judge Tom Heekin c/o Judge John A. West; (2)
Judge Steven E. Martin; (3) Hamilton County Sex Offender
Unit/Administrator Ernest Lee; (4) Hamilton County Prosecutor
Scott Heenan; (5) Hamilton County Prosecutor Claye Thorpe;
(6) Cincinnati Adult Parole Authority Regional Supervisor,
Staff and Agents; and (7) Hamilton County Sheriffs
Registration Divisions Staff, supervisors, and agents.
Plaintiff's complaint spans 27 pages, and seeks
declaratory, injunctive and monetary relief relating to
alleged violations of Plaintiff's civil rights, and
alleged violation of the prohibition against double jeopardy.
As a basis for federal court jurisdiction, Plaintiff cites 42
U.S.C. §12203, 42 U.S.C. § 1983, and 18 U.S.C.
§§ 241 and 242.
is a former prisoner convicted in state court of unlawful
sexual conduct with a minor, who completed his sentence and
was released from incarceration on or about January 3, 2015.
In 2012, while Plaintiff was still incarcerated, the Ohio
Court of Appeals affirmed Plaintiff's initial conviction
but held that the trial court had incorrectly classified
Plaintiff as a “Tier III sex offender under Ohio's
version of the Adam Walsh Act.” Therefore, the Court of
Appeals remanded for the trial court “‘to amend
its judgment entry to reflect that Rucker is a Tier II sex
offender.'” State v. Rucker, 2016 WL
4063866 (Ohio Ct. App., July 27, 2016) (quoting State v.
Rucker, 1st Dist. Hamilton No. C-110082, 2012-Ohio-185).
The trial court failed to carry out the order on remand to
amend its judgment prior to Rucker's release from prison.
failed to obtain the reclassification prior to his release in
accordance with the 2012 remand, Rucker filed a pro se motion
for “re-sentencing” and/or to dismiss his sex
offender classification after his release; appointed
counsel subsequently filed an amended motion. The trial court
overruled the amended motion, finding that postrelease
control had been properly imposed and stating that the
“classification will be modified under a separate entry
to Tier II.” Id. Once again, however, the
trial court failed to enter an order actually modifying the
classification to Tier II. Id. Through counsel,
Plaintiff appealed a second time.
July 2016 opinion, the Ohio Court of Appeals overruled
Plaintiff's first two assignments of error but partially
granted relief. The court first rejected Rucker's
contention that he had not been properly notified that he
would be subject to five years of mandatory postrelease
control, holding that the sentencing transcript demonstrated
sufficient notification. Id. at *2. The Ohio Court
of Appeals also rejected Rucker's contention that the
trial court had erred by changing his sentence after his
release, when it had no authority to resentence him. The
appellate court denied this second assignment of error
because, even though the trial court indicated its
intention to modify Plaintiff's classification
by stating that “Rucker's classification will
be modified under a separate entry to Tier II, ”
the court had never actually journalized any such entry, and
“has never entered an order modifying Rucker's
sex-offender classification to Tier II.” Id.
(emphasis added). Despite the partial rejection of
Rucker's claims, the Ohio Court of Appeals specifically
reversed “that portion of the trial court's entry
overruling Rucker's motion for resentencing that states
that the trial court was bound by our [prior] order of remand
to classify Rucker as a Tier II sex offender, and
…remand[ed] this cause to the trial court for it to
determine whether it has authority to notify Rucker of and
imposed upon him Tier II sex-offender registration
requirements.” Id. at *3. The Ohio Supreme
Court denied further discretionary review. See State v.
Rucker, 2017-Ohio-573, 148 Ohio St.3d 1411, 69 N.E.3d
751 (Ohio Feb. 22, 2017).
federal complaint includes several allegations relating to
proceedings in the trial court after the last remand from the
Ohio Court of Appeals, including references to exhibits that
relate to post-remand motions filed in April and May of 2017.
Plaintiff also refers to a September 7, 2017 notice of appeal
to “district court, ” suggesting that he has
filed a third appeal to the Ohio Court of Appeals, since no
ongoing proceedings relating to the same allegations exist in
this federal district court. Unfortunately, Plaintiff failed
to attach any exhibits to the complaint filed in this Court.
Thus, in order to conduct meaningful review of the complaint,
the undersigned has reviewed electronic copies of records
maintained by the Hamilton County Clerk of Court to ascertain
the status of related ongoing state court proceedings,
denoted by Hamilton County Court of Common Pleas Case No.
completed that review, I conclude that Plaintiff's case
should be dismissed based upon Younger abstention
and/or the Rooker Feldman doctrine, a lack of
subject matter jurisdiction under three of the statutes cited
by Plaintiff, and for failure to state a claim against any
identified Defendant under 42 U.S.C. § 1983.
Dismissal Recommended ...