United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
an inmate at the Lebanon Correctional Institution, brings
this civil rights action against defendants Judge J. Metz and
Judge Beth A. Myers. By separate Order, plaintiff has been
granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. This matter is before the Court for
a sua sponte review of the complaint 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. §
enacting the original in forma pauperis statute,
Congress recognized that a "litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C. §§
1915(e)(2)(B)(i) and 1915A(b)(1). 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).
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)).
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 (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).
who is proceeding pro se, brings this § 1983 action
against defendants Judge J. Metz and Judge Beth A. Myers in
connection with his criminal case in the Hamilton County
Court of Common Pleas. (Doc. 1-1, Complaint at PagelD 13). In
the complaint, plaintiff alleges that prior to being
sentenced, he moved for a new trial on the basis that
"two of the jurors believed that [plaintiff] had
followed them one day after recess from deliberations in an
attempt to intimidate them." (Id. at PagelD
14). Plaintiff further alleges that the jurors did not
disclose their belief/concern until after the verdict had
been read and accepted by defendant Judge Metz. According to
plaintiff, Judge Metz was alerted to the situation and spoke
with the jurors. Plaintiff claims that although Judge Metz
recused himself from hearing the motion for a new trial
(see Id. at PagelD 26), Judge Metz subsequently
denied the motion before proceeding with sentencing.
(Id. at PagelD 14).
Ohio Court of Appeals vacated the entry denying the motion
for a new trial and remanded the case back to the trial
court. Specifically, the Ohio appeals court sustained
plaintiffs assignment of error regarding Judge Metz ruling on
the motion for a new trial, finding that "the trial
judge had 'disqualified himself from the case 'as to
Defendant's motion for a new trial'" and
"erred by ruling on the motion in contravention of the
recusal order." Plaintiff claims that "on remand, Mr.
Finnell's counsel filed a motion to disclose juror under
seal, under Evid. R. 606(B), " but that defendant Judge
Beth A Myers denied the motion upon finding that the record
did not reveal evidence of juror misconduct. (Id.,
). The trial court subsequently denied plaintiffs motion
for a new trial.
successfully appealed the ruling. Plaintiff has included a
portion of the February 14, 2018 opinion vacating the
judgment on the motion for a new trial and instructing the
trial court to release the juror information under seal.
(See Id. at PagelD 15). It appears from the Hamilton
County Online Docket Sheet that the trial court has not ruled
on plaintiffs motion following the remand from the Ohio Court
on the above facts, plaintiff claims that defendants'
actions constitute a continuing tort violation.
(Id.). Plaintiff also claims that his constitutional
right to be tried before a panel of fair and impartial jurors
was violated. (Id. at Page ID 17).
relief, plaintiff "asks this Honorable court to direct
the lower court to release the petitioner, and/or direct the
lower court to retrial (sic) him." (Id. at Page
ID 16). Plaintiff also seeks monetary damages for each year
in which he has been imprisoned, attorney fees, and for the
Court to certify that defendant Metz's judgment denying
his motion for a new trial is void. (Mat PagelD 16).
complaint is subject to dismissal at the screening stage for
failure to state a claim upon which relief may be granted by
to the extent that plaintiff seeks to challenge his
conviction and sentence, he must file a petition for a writ
of habeas corpus. Where a state prisoner challenges the
validity of his criminal conviction and seeks relief which
would result in his immediate release or a speedier release
from imprisonment, his sole federal remedy is a writ of
habeas corpus. Preiser v. Rodriguez, 411 U.S. 475,
500 (1973). Thus, to the extent plaintiff seeks relief in the
form of an immediate or speedier release from imprisonment,
his sole federal remedy is a petition for writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254 after he has
exhausted his state remedies. See Preiser, 411 U.S.
at 500; Hadley v. Werner, 753 F.2d 514, 516 (6th
Cir. 1985). Plaintiff may not pursue habeas corpus relief
through a civil rights action under Section 1983. Plaintiff
is therefore directed to file a petition for writ of habeas
corpus after he has exhausted his state court remedies if he
wishes to challenge the validity of his criminal conviction.
Hadley, 753 F.2d at 516.
complaint should also be dismissed because judges are
afforded absolute immunity from damages for acts they commit
while functioning within their judicial capacity. Mireles
v. Waco,502 U.S. 9, 11 (1991); Pierson v. Ray,386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d
246, 255 (6th Cir. 1997). Judges retain absolute immunity
from liability even if they act maliciously or corruptly, as
long as they are performing judicial acts and have
jurisdiction over the subject matter giving rise to the suit
against them. Stump v. Sparkman,435 U.S. 349,
356-57 (1978). See also Stern v. Mascio, 262 F.3d
600, 607 (6th Cir. 2001); King v. Love,766 F.2d 962
(6th Cir. 1985). It appears that the actions challenged by
plaintiff are functions normally performed by judges and are
therefore judicial acts. Stump, 435 U.S. at 362. In
addition, plaintiff has not alleged facts indicating that the
defendant acted "in the complete absence of all
jurisdiction." Stern, 262 F.3d at 607. Although
the Ohio Court of Appeals found that Judge Metz erred in
ruling on plaintiffs new trial motion, the trial judge
retained jurisdiction over his criminal proceedings for all
other purposes and therefore was not acting in the absence of
all jurisdiction. See Stump, 435 U.S. at 365
("A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in
excess of his authority; rather, he will be subject to
liability only when he has acted in the clear 'absence of
all jurisdiction."'); Johnson v. Turner,125 F.3d 324, 334 (6th Cir. 1997) ("A judge acts in the
clear absence of all jurisdiction only when the matter upon
which he acts is clearly outside the subject matter of the
court over which he presides."). Cf. Sibley v.
Lando, No. 03-21728-CIV, 2005 WL 6108991, at *8-9 (S.D.
Fla. Apr. 8, 2005) ...