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Suber v. Maus

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

March 26, 2018

IRA SUBER, Plaintiff,
v.
JAMES F. MAUS, Defendant.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff, an inmate at the Federal Correctional Institute in Ashland, Kentucky (FPC Ashland), brings this “Verified Complaint for Declaratory Judgment, ” pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201. (Doc. 1). Plaintiff names James F. Maus, a federal public defender, who allegedly represented plaintiff in a criminal matter, as the sole defendant. (See id., at PageID 1-2). Plaintiff has paid the filing fee.

         This matter is before the Court for a sua sponte review of the complaint (Doc. 1) 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 Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). The screening procedures established by § 1915 apply to complaints filed by prisoners against governmental entities, officials or employees regardless of whether the plaintiff has paid the filing fee, as in this case, or is proceeding in forma pauperis. See 28 U.S.C. § 1915A(a); Hyland v. Clinton, 3 F. App'x 478, 479 (6th Cir. 2001); Bell v. Rowe, No. 97-4417, 1999 WL 196531, at *1 (6th Cir. Mar. 22, 1999) (citing McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997)); see also Fleming v. United States, 538 F. App'x 423, 426 (5th Cir. 2013) (per curiam) (citing Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998)); Miller v. Edminsten, 161 F. App'x 787, 788 (10th Cir. 2006); Lewis v. Estes, No. 00-1304, 2000 WL 1673382, at *1 (8th Cir. Nov. 8, 2000) (per curiam) (citing McGore and Seventh and Second Circuit Court decisions).

         I. Screening of Complaint

         A. Legal Standard

         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 v. Hernandez, 504 U.S. 25, 32 (1992); 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).

         Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

         “A 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 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing 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. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

         B. Plaintiff's Complaint

         Although styled as a declaratory judgment action, plaintiff's complaint raises claims concerning “a criminal matter in this court in Case No. 1:13-CR-019, ” in which plaintiff alleges that defendant represented him. (Doc. 1, at PageID 4). Plaintiff states that he pleaded guilty in that matter and was sentenced to “151 months.” (See id., at PageID 2-4).

         The Declaratory Judgment Act, 28 U.S.C. § 2201, cannot be used as a substitute for appeal, habeas corpus, coram nobis, or other remedial procedure. See Forsythe v. State of Ohio, 333 F.2d 678, 679 (6th Cir. 1964); see also, Rivera v. Michigan, No. 1:06-cv-783, 2007 WL 431025, at *1 (W.D. Mich. Feb. 5, 2007) (citing numerous cases).

         Because statements in plaintiff's complaint make it clear that he is challenging his conviction in Case No. 1:13-CR-019, [1] plaintiff's claim is not cognizable in this action and his complaint should be dismissed. See Forsythe, 333 F.2d at 679; see also Abdel-Whab v. United States, 175 F. App'x 528, 528 (3d Cir. 2006) (affirming the dismissal of a complaint where the plaintiff sought a ruling under the Declaratory Judgment Act that his conviction was invalid).

         Accordingly, in sum, the complaint (Doc. 1) should be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because plaintiff has failed ...


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