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Carter v. Furmon

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

July 11, 2018

ORLANDO CARTER, Plaintiff,
v.
COMMISSIONER CHARLES FURMON, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff, an inmate at the Federal Correctional Institute in Ashland, Kentucky (FCI Ashland), has filed a twenty-four count complaint against defendants Commissioner Charles Furmon; Butler County Board of Commissioners; Fifth Third Bank; John Boehner; Senator William Coley; Kevin Gormley; Janel McBain; John Paul Reiser; Vince Rinaldi; Ralph Martinez; and Thomas Barnhart, III. (Doc. 1). In his complaint, plaintiff alleges constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. §§ 1981, 1983, 1985, and 1986. (Id.). Plaintiff also alleges ancillary state-law tort claims and a claim for declaratory relief under 28 U.S.C. § 2201. (Id.). Plaintiff has paid the filing fee.

         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. § 1915A(b). Although plaintiff has paid the filing fee, the Court is required by statute to screen the complaint to determine if it is frivolous, malicious, fails to state a claim upon which relief may be granted, or states a claim against a person who is immune from suit. See McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997) ("A district court is required to screen all civil cases brought by prisoners, regardless of whether the inmate paid the full filing fee, is a pauper, is pro se, or is represented by counsel as the statute does not differentiate between various civil actions brought by prisoners"), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206 (2007); see also LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).

         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 reliefmay 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. Plaintiffs Complaint

         In 2009, following a seventeen-day trial, plaintiff was convicted of eleven fraud and fraud-related counts and sentenced to fifteen years in prison. See United States v. Carter, No. 1:08-cr-51 (S.D. Ohio June 9, 2010).[1] (See also Doc. 1, at PagelD 3). As is relevant here, the government asserted that plaintiff defrauded Fifth Third Bank in part by knowingly concealing a guaranty that plaintiff and others had given to return a $4 million loan to National City Bank. See Carter, No. 1:08-cr-51 (Doc. 172, at PagelD 4198-99). (See also Carter, No. 18-400 (Doc. 1, at PagelD 40)).

         In the instant lawsuit, plaintiff alleges that the United States Attorney for the Southern District of Ohio conceded in a February 8, 2018 response to a request for admission that "the U.S. Department of Justice ... and the FBI received fake and bogus PNC Bank fka National City Bank ... documents from PNC executives purporting to show the existence of a $4, 000, 000 debt ... purportedly owed by [plaintiff] and/or Dynus [Corporation]." (Doc. 1, at PagelD 2).[2]Plaintiff further alleges that in his criminal case "Assistant United States Attorneys . .. referenced and emphasized the non-existent $4, 000, 000 debt over 72 times." (Id. at PagelD 19-20). He claims that "[t]o win their conviction against [plaintiff] for bank fraud, federal prosecutors relied on the fake $4, 000, 000 debt created and fraudulently concealed by Defendants." (Id. at PagelD 20). According to plaintiff, "[b]ut for the creation of the fake and bogus bank documents," he "would not be wrongfully incarcerated, 60 people would not have lost their jobs, and Dynus, a minority-owned, multi-million dollar business would still be running." (Id. at PagelD 11).

         For relief, plaintiff seeks monetary, injunctive, and declaratory relief.

         C. Analysis of Plaintiffs Complaint

         1. Plaintiffs Claims under Bivens (Claims One, Two, and Three), § 1981 (Claim Seventeen), § 1983 (Claims Four and Twenty), § 1985 (Claim Eight), and § 1986 (Claim Nine) Are Barred by the Statute of Limitations.

         Plaintiffs §§ 1981, 1983 and 1985 claims are governed by the two-year statute of limitations found in Ohio Rev. Code § 2305.10. See Tolbert v. Ohio Dep 't of Transp., 172 F.3d 934, 937, 939 (6th Cir. 1999) (stating that two-year statute of limitations applies to claims under §§ 1981 and 1983); see also Mickey v. McFaul, No. 1:10-cv-l350, 2010 WL 3221921, at *2 (N.D. Ohio Aug. 13, 2010) (stating that two-year statute of limitations applies to claims under § 1985). The same two-year statute of limitations governs plaintiff s Bivens claim. See McSurely v. Hutchison, 823 F.2d 1002, 1005 (6th Cir. 1987) (stating that Bivens actions are governed by the same personal injury statute of limitations that applies to § 1983). Section 1986 contains a one-year limitation period. 42 U.S.C. § 1986.

         Although the statute of limitations is normally an affirmative defense raised by defendants in an answer, "if a statute of limitations defense clearly appears on the face of a pleading, the district court can raise the issue sua sponte." Watson v. Wayne Cty., 90 Fed.Appx. 814, 815 (6th Cir. 2004) (citing Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995)); see also Alston v. Tenn. Dep't of Corr., 28 Fed.Appx. 475, 476 (6th Cir. 2002) ("Because the statute of limitations defect was obvious from the face of the complaint, sua sponte dismissal of the complaint was appropriate."). Moreover, "[w]here a particular claim is barred by the applicable statute of limitations, it does not present an arguable or rational basis in law or fact and therefore may be dismissed as frivolous under § 1915(e)(2)." Fraley v. Ohio Gallia Cty., No. 97-3564, 1998 WL 789385, at *1 (6th Cir. Oct. 30, 1998).

         The conduct underlying plaintiffs Bivens claims (Claims One, Two, and Three) as well as his claims under §§ 1981 (Claim Seventeen), 1983 (Claims Four[3] and Twenty), 1985 (Claim Eight) and 1986 (Claim Nine) occurred prior to or during his 2009 trial. Indeed, these claims are based upon plaintiffs assertion that in convicting him for bank fraud the government relied on a $4 million debt that did not exist. (See Doc. 1, at PagelD 48-50 (plaintiffs Bivens claims); 50-51, 61 (plaintiffs claims under § 1983); 53-54 (plaintiffs § 1985 claim); and 54-55 (plaintiffs § 1986 claim)). Plaintiff also appears to allege in Claim Two that defendants Gormley, McBain, and Reiser disclosed sensitive and private information regarding his financial matters without his consent. (See Doc. 1, at PagelD 49).

         Plaintiff claims that he could not have raised his claims based on the alleged nonexistence of the $4 million debt before he received the United States Attorney's February 8, 2018 response to his request for admission. (See Doc. 1 at PagelD 42). Plaintiffs complaint, however, contains as an exhibit a December 17, 2015 letter from the Warden at the Federal Correctional Institution in Elkton, Ohio, stating that plaintiff was claiming at that time that information in his Presentence Investigation Report was inaccurate because "PNC Bank certified records do not show an ...


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