United States District Court, N.D. Ohio, Eastern Division
L'DDARYL D. ELLIS, Plaintiff,
GOVERNOR MIKE DeWINE,  et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the Complaint (ECF No. 1) of
Pro Se Plaintiff L'Ddaryl Ellis against Governor John
Kasich (“Kasich”), Gary Mohr
(“Mohr”), Charmaine Bracy (“Bracy”),
Christopher LaRose (“LaRose”), Judge Janet R.
Burnside (“Judge Burnside”), and Cuyahoga County
“Defendants”). Plaintiff claims that Defendants
conspired to violate his rights under the Fifth and
Fourteenth Amendments of the United States Constitution, and
brings this action pursuant to 42 U.S.C. §§ 1983,
1985(2) and (3), and 1986, as well as 18 U.S.C. §§
241 and 242. ECF No. 1 at PageID #: 13, ¶ 24.
reasons that follow, this case is dismissed.
is a state prisoner in the custody of the Ohio Department of
Rehabilitation and Correction (“ODRC”), and is
currently confined in the Northeast Ohio Correctional
Center.Plaintiff alleges that Kasich was the
governor of the State of Ohio during all relevant times
herein (ECF No. 1 at PageID #: 2, ¶ 4), Mohr is the
Director of the ODRC (ECF No. 1 at PageID #: 2, ¶ 5),
Bracy was the warden at TCI as of 2015 (ECF No. 1 at PageID
#: 2, ¶ 6), LaRose is the former warden at TCI (ECF No.
1 at PageID #: 2, ¶ 7), Burnside is the judicial officer
in the Cuyahoga County Court of Common Pleas who presided
over the criminal matter underlying this action (ECF No. 1 at
PageID #: 2, ¶ 8), and Cuyahoga County is the county
where the criminal matter underlying this action transpired
(ECF No. 1 at PageID #: 2, ¶ 9).
events giving rise to this action began on October 28, 2012
when Ellis was arrested in Maple Heights and later indicted
on 14 counts related to two separate shooting incidents. ECF
No. 1 at PageID #: 2-3, ¶ 10; see State v.
Ellis, No. 99830, 2014 WL 197880, at *1 (Ohio App. 8th
Dist. Jan. 16, 2014). Plaintiff pleaded not guilty, waived
his right to a jury trial, and his case was tried to the
bench before Judge Burnside. Burnside found Plaintiff guilty
on counts 4, 6, 7, 8, 9, and 14 of the indictment. With
respect to count 5, Judge Burnside found Plaintiff not guilty
of aggravated murder, but guilty of the lesser included
offense of involuntary manslaughter. ECF No. 1 at PageID #:
2-3, ¶ 10.
On April 15, 2013, Ellis appeared for sentencing. The trial
court merged the involuntary manslaughter, felonious assault,
and aggravated riot counts with the murder count for
sentencing purposes. The trial court then imposed a prison
term of 15 years to life to be served after Ellis served
three years for the firearm specifications.
Ellis, 2014 WL 197880, at *3 ¶ 19.
direct appeal, Ellis raised eight assignments of error.
Id. at *1. The Ohio Eighth District Court of Appeals
affirmed all of Ellis's convictions except the aggravated
riot charge, and remanded the case to the trial court to
vacate the aggravated riot conviction. See id., at
*11; ECF No. 1 at PageID #: 5-6, ¶ 12.
brings the Court to the heart of Ellis's claim Ohio Rev.
Code § 2953.13. Plaintiff alleges that when the Ohio
Eighth District Court of Appeals remanded the case to the
trial court to vacate his conviction for aggravated riot,
§ 2953.13 was triggered. According to Ellis, the statute
required the TCI warden to transport him back to the Cuyahoga
County jail and place him in the custody of the Cuyahoga
County Sheriff. ECF No. 1 at PageID #: 7-8, ¶ 13.
the state Court of Appeals remanded the case, Judge Burnside
entered a Journal Entry (ECF No. 1-15) vacating Ellis's
conviction for aggravated riot Ellis's original sentence
was unchanged. Plaintiff was not transported from TCI to the
Cuyahoga County jail. ECF No. 1 at PageID #: 8, ¶¶
unsuccessfully moved Judge Burnside to be conveyed back to
the trial court pursuant to Ohio Rev. Code § 2953.13,
unsuccessfully sought a writ of mandamus from the Eighth
District Court of Appeals to be conveyed back to the trial
court,  and unsuccessfully sought a writ of
mandamus from the Ohio Supreme Court to require Burnside and
the TCI warden to comply with the statute. ECF No. 1 at
PageID #: 8-9, ¶¶ 16-17. Ellis also unsuccessfully
grieved the TCI warden's alleged failure to comply with
the statute (ECF No. 1 at PageID #: 9-10, ¶ 19), and
wrote Kasich concerning the alleged violation of §
2953.13 (ECF No. 1 at PageID #: 11, ¶ 21).
alleges that Defendants' failure to comply with the
statute violated his constitutional rights under the Fifth
and Fourteenth Amendments “to due course of
law[.]” ECF No. 1 at PageID #: 13, ¶ 24. He seeks
$125 million in compensatory damages and the same amount in
punitive damages. ECF No. 1 at PageID #: 13-14, ¶¶
Standard of Review
se pleadings are liberally construed by the Court.
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per
curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972).
Notwithstanding, the district court is required under 28
U.S.C. § 1915(e)(2)(B) to review all in forma
pauperis complaints, and to dismiss before service any
such complaint that the Court determines is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. See Hill v. Lappin, 630
F.3d 468, 470 (6th Cir. 2010). While some latitude must be
extended to pro se plaintiffs with respect to their
pleadings, the Court is not required to conjure unpleaded
facts or construct claims against defendants on behalf of a
pro se plaintiff. See Grinter v. Knight,
532 F.3d 567, 577 (6th Cir. 2008); Thomas v.
Brennan, No. 1:18 CV 1312, 2018 WL 3135939, at *1 (N.D.
Ohio June 26, 2018) (Gaughan, J.) (citing Beaudett v.
City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985) and
Erwin v. Edwards, 22 Fed.Appx. 579, 580 (6th Cir.
order to withstand scrutiny under § 1915(e)(2)(B) and
§ 1915A, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Hill, 630 F.3d at 471 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)) (holding that the
dismissal standard articulated in Iqbal and Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007) governs
dismissals for failure to state a claim under §
1915(e)(2)(B) and § 1915A). Thus, a complaint fails to
state a claim on which relief may be granted when it lacks
“sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”