Alahverdian v. Ohio

Decision Date10 May 2013
Docket NumberCase No. 3:13-cv-113
PartiesNICHOLAS ALAHVERDIAN, Plaintiff, v. STATE OF OHIO, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This case is before the Court for initial review pursuant to 28 U.S.C. § 1915. Plaintiff was granted leave to proceed in forma pauperis under that statute. 28 U.S.C. §1915(e)(2), as amended by the Prison Litigation Reform Act of 1995 Title VIII of P.L. 104-134, 110 Stat. 1321(effective April 26, 1996)(the "PLRA"), reads as follows:

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that
(A) the allegation of poverty is untrue; or
(B) the action or appeal --
(i) is frivolous or malicious;
(ii) fails to state a claim upon which relief can be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.

A complaint is frivolous under this statute if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319 (1989). In deciding whether a complaint is "frivolous," that is, the Court does not consider whether a plaintiff has good intentions or sincerely believes that he or she has suffered a legal wrong.

Rather the test is an objective one: does the complaint have an arguable basis in law or fact? The same analysis will be applied at the individual claim for relief level. In other words, there may be portions of a complaint which meet the PLRA tests and other which do not.

It is appropriate for a court to consider this question sua sponte prior to issuance of process "so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke, 490 U.S. at 324; McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984). The Court "is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the plaintiff's allegations." Denton v. Hernandez, 504 U.S. 25, 32 (1992). Dismissal is permitted under §1915(e) "if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), disagreed with by Walker v. Mintzes, 771 F.2d 920 (6th Cir. 1985); Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985).

As Plaintiff was previously advised, at the time the Court analyzes the Complaint under § 1915(e)(2), it will also analyze whether any of the claims are barred by lack of subject matter jurisdiction. Because federal courts are courts of limited jurisdiction, they are under an obligation to raise lack of subject matter jurisdiction sua sponte. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1935). Issuing process and commanding a defendant to answer constitutes some exercise of the Court's power which is inappropriate to do if there is no subject matter jurisdiction. Analysis of subject matter jurisdiction will include consideration whether any of the Defendants is immune from suit in federal court under the Eleventh Amendment.

The Named Defendants

The Complaint names as Defendants the following entities: the State of Ohio; the City of Dayton, Ohio; the Dayton Municipal Court; the Dayton Municipal Court Probation Services Department; the Warren County/Montgomery County Community College District ("WCMCCCD"); Sinclair Community College ("Sinclair"); David Roush & Associates, LLC; and the Law Office of the Montgomery County Public Defender. Individuals named as Defendants are The Honorable Carl S. Henderson, Judge of the Dayton Municipal ("Judge Henderson"); Kim M. DeMint, Judge Henderson's bailiff; Dayton prosecutors Deidre Logan, Stephanie Cook, and Andrew Sexton; Dayton Probation Officers Jennifer Alfaro and Dona Devoise-Pierce; Sinclair Community College President Steven Lee Johnson; Sinclair Community College Police Officers Charles J. Gift, Kenneth Quatman, Sean Miller, and Tom Hupp; Psychologists Lauren Cimperman and David Roush; Montgomery County Public defender D. K. Rudy Wehner and his assistant defender Julie Dubel; attorneys Lawrence J. Greger and Keith Fricker; Ohio Attorney General Richard Michael Dewine; and Montgomery County Sheriff Phil Plummer.

Factual Background

While rich in narrative, the Complaint is sparse on date and time allegations. As best the Court understands the timeline, however, this case arises out of a lunch date between Sinclair students Nicholas Rossi1 and Mary Jane Grebinski2 on January 30, 2008 (Complaint, Doc. No. 7,¶ 58, PageID 215.) After lunch, Plaintiff and Grebinski engaged in some sexual contact on the Sinclair campus which involved at least kissing.3 After whatever happened concluded, Ms. Grebinski reported the matter to the Sinclair Campus Police who questioned Plaintiff about the matter. Id. at ¶ 61, PageID 216.

In February, 2008, for conduct referenced above, Rossi was charged in the Dayton Municipal Court with one count of sexual imposition in violation of Ohio Revised Code § 2907.07 and one count of public indecency in violation of Ohio Revised Code § 2907.09. Id. at ¶ 63, PageID 217. He was appointed counsel, Assistant Montgomery County Public Defender Julie Dubel and entered a plea of not guilty. Id. at ¶ 64. Despite Rossi's alleged demand to Dubel for a jury trial, the case proceeded to bench trial before Judge Henderson on March 31, 2008, with Ms. Cook appearing on behalf of the State of Ohio. Id. at ¶ 66. Allegedly, Ms. Dubel refused to put Rossi on the stand and Judge Henderson prevented him from speaking in his own defense. Id.

Rossi was convicted, given a suspended jail sentence, and a three-year term of probation, as well as being ordered to perform community service and undergo a psychological assessment by Defendant Lauren Cimperman. Id. at ¶ 80, PageID 220-221. Rossie appealed to the Montgomery County Court of Appeals which affirmed the conviction. State v. Rossi, 2009 Ohio 1963, 2009 Ohio App. LEXIS 1641 (Ohio App. 2nd Dist. Apr. 17, 2009).

While the appeal was pending, Rossi filed a motion for new trial in the Dayton Municipal Court which Judge Henderson denied because of his apparent understanding that he lacked jurisdiction to consider the motion while an appeal was pending. State v. Rossi, 2010 Ohio 4534,¶ 5, 2010 Ohio App. LEXIS 3828 (Ohio App. 2nd Dist. Sept. 24, 2010). On April 24, 2009, after the conviction was affirmed, Rossi sought to have Judge Henderson vacate the denial of new trial. Id. at ¶ 19. Judge Henderson denied relief, Rossi appealed again, and the court of appeals remanded for consideration of the new trial motion on the merits. Id. at ¶ 27.

On remand, Judge Henderson held an evidentiary hearing and denied the motion for new trial on the merits. Rossi again appealed and the Second District Court of Appeals affirmed the denial. State v. Rossi, 2012 Ohio 2545, 2012 Ohio App. LEXIS 2236 (Ohio App. 2nd Dist. June 8, 2012).

Sometime after the completion of this third appeal, Alahverdian4 hired attorney Keith Fricker to represent him "in his absence, as being absent from Harvard classes is cause for dismissal from the University." (Complaint, Doc. No. 7, ¶ 89, PageID 223.) Fricker told Alahverdian that "it was not necessary to travel to Ohio for the hearing." Id. Alahverdian does not explain what sort of hearing was involved, but avers that afterwards Judge Henderson issued a "nationwide warrant" for Alahverdian's arrest. (Complaint, Doc. No. 7, ¶ 90, PageID 224). Alahverdian avers that he turned himself in to the Harvard University Police and then was transported back to Ohio by Sinclair Police Officers. Id. at ¶ 92. After what Alahverdian characterizes as a re-sentencing hearing, Judge Henderson refused Plaintiff's request to be able to return to New England. Id. at ¶ 97, PageID 226.

Alahverdian was assigned to supervision by Probation Officer Alfaro and met with her in December, 2012, and January, 2013, when she referred him to Defendant Roush for a psychosexual assessment. Id. at ¶ 100. Roush's assessment techniques, aside from the MMPI, are unacceptable to Alahverdian. Id. ¶¶ 101-102. In addition, Roush referred Alahverdian for apolygraph examination and reported to Alfaro that Plaintiff was not cooperating in treatment. Id. at ¶¶ 103-105. Alahverdian complains of attempts to collect Roush's fee. Id. at ¶ 103. Furthermore, Alfaro allegedly imposed some conditions on him which Alfaro's supervisor apologized for. Id. at ¶ 107, PageID 231.

Plaintiff summarizes his position as follows:

Plaintiff brings this action due to an outrageous and blatant disregard for basic constitutional rights: the right to a trial by jury, the right to testify in one's own defense, and the right to be free from cruel and unusual punishment. Plaintiff was injured on January 30, 2008 and the injury has continued until the present time. Plaintiff is being forced to live in Ohio, far from Harvard University, his friends, an active U.S. District Court case, and the little family he has left. Plaintiff also suffered the loss of Harvard. An incredibly obvious miscarriage of justice has taken place, and this civil action is the Plaintiff's last chance at asserting his desire for justice so that the truth of his innocence may be illuminated.

(Complaint, Doc. No. 7, ¶ 108, PageID 231-232.)

Based on these facts, Plaintiff asserts the following claims for relief:

Cause of Action 1: Malicious prosecution and seizure in violation of 42 U.S.C. § 1983 against the City of Dayton, Sinclair Community College, Logan Cook, Sexton, Gift, Quatman, and Hupp (Complaint, Doc. No. 7, ¶¶ 109-116, PageID 232-233.)

Cause of Action 2: Concealment of evidence in violation of 42 U.S.C. § 1983 against the City of Dayton, Logan, Cook, WMCCCD, Sinclair, Johnson, Gift, Miller, and Quatman. Id. at ¶¶...

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