Avery v. Wooten
| Decision Date | 30 April 2020 |
| Docket Number | Case No. 2:20-cv-357 |
| Parties | DAVID AVERY, Plaintiff, v. JOHN D. WOOTEN, JR, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff, a state inmate currently incarcerated at the Trousdale Turner Correctional Center in Hartsville, Tennessee, filed this action on December 30, 2019, in the Ohio Supreme Court. (ECF No. 1.) On January 23, 2020, several federal officers,1 identified in Plaintiff's filing as respondents, removed the action to this Court under 28 U.S.C. §§ 1442(a)2 and 1446. (Id.)
This matter is before the Court sua sponte for an initial screen of Plaintiff's Complaint, captioned as an "Original Writ of Error," as required by 28 U.S.C. § 1915A3 to identify cognizable claims and to recommend dismissal of Plaintiff's filing, or any portion of it, which 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. 28 U.S.C. § 1915A(b). Having performed the initial screen, for the reasons that follow, it is RECOMMENDED that the Court DISMISS Plaintiff's Complaint in its entirety.
Congress enacted 28 U.S.C. § 1915A, as part of the Prison Litigation Reform Act, Pub.L. 104-134, 110 Stat. 1321, enacted in April 1996, in order to "discourage prisoners from filing [frivolous] claims that are unlikely to succeed." Crawford-El v. Britton, 523 U.S. 574, 596 (1998). Congress directed the Courts to "review, before docketing, if feasible or in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). In particular, subsection (b) provides:
28 U.S.C. § 1915A(b). Thus, § 1915A requires sua sponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (). Under Rule 8(a)(2), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) "imposes legal and factual demands on the authors of complaints." 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require "'detailed factual allegations,' ... [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "a complaint must contain sufficient factual matter ... to 'state a claim to relief that is plausible on its face.' " Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct." Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,the Court holds pro se complaints " 'to less stringent standards than formal pleadings drafted by lawyers.' " Garrett v. Belmont Cnty. Sheriff's Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
The requirements of § 1915A are applicable in the removal context. See Duff v. Yount, 51 F. App'x 520, 521 (6th Cir.2002) (per curiam) (); see also Davis v. Goss, No. CIV.A.6:09-257-DCR, 2010 WL 1872871, at *2 (E.D. Ky. May 10, 2010) ().
In 2009, Plaintiff was convicted by a jury in Davidson County, Tennessee, of aggravated robbery, especially aggravated robbery, reckless endangerment, and attempted second degree murder because he robbed a couple in their home and slit their throats with a box cutter. He currently is serving "a total effective sentence of 49 years." State v. Avery, No. M200801809CCAR3CD, 2009 WL 4724430 (Tenn. Crim. App. Dec. 10, 2009). His conviction was affirmed on appeal. Id.
In 2018, Plaintiff filed a civil action in the Trousdale County Circuit Court captioned as D.A. Avery v. D. Ryals, Case No. 2018-cv-4690. (ECF No. 1-1 at 13, PAGEID #16.) As Plaintiff describes it in a hand-written notation, this civil action was filed "as a direct result of the erroneous judgment entered in Case No. 20060C-2451 by Cheryl A. Blackburn." Id.
Judge Wooten, the presiding judge, dismissed Case No. 2018-cv-4690 by order dated April 29, 2019. (ECF No. 1-1 at 13, PAGEID #16.) Petitioner explains that this dismissal was the impetus for filing the Writ. (Id. at 10, PAGEID #13.) Plaintiff seeks the deployment of "the county Sheriffs or the U.S. Marshals" to "immediately" relieve him from "false imprisonment."(Id.) He also seeks "equitable and just compensation" in the "negotiable sum of $333,333,000.00." (Id.)
Plaintiff names nearly 100 individuals as Respondents, the majority of whom appear to be Tennessee county, state or federal officials or employees. (ECF No. 1-1 at 6-8, PAGEID #9-11.) Plaintiff designates himself as the "Claimant at Law" filing in "The Superior Court of Common Law, Republic of Ohio. (Id. at 10, PAGEID #13.)
Plaintiff attaches an "Affidavit of Error-in-Fact" to his "Original Writ." (ECF No. 1-1 at 11, PAGEID #14.) Plaintiff asserts that he is not waiving his Native American birthrights, that he was not a party to his criminal action which he describes as a "commercial dispute," and that the "Federal Tort Claims Act removes immunity from actions arising in tort." (Id.) Further, he states that "all parties have been consciously made aware of this urgent and life-threatening situation via several notices and affidavits ... and have failed to act" and "each and every specifically named Respondent shall be jointly and severally liable." (Id.) He does not address the specific conduct of any Defendant other than Defendants Wooten and Blackburn.
Initially, Plaintiff's filing appears to be seeking mandamus relief from the Ohio Supreme Court seeking the deployment of either the "County Sheriffs or the U.S. Marshals" to secure his immediate release from his alleged false imprisonment in Tennessee. Aside from Plaintiff's decision to file his action in the Ohio Supreme Court, there is no indication that he seeks reliefdirected to any county sheriffs or U.S. Marshals located in Ohio. Regardless, his request for any such relief fails for several reasons.
First, as noted above, Plaintiff's action was removed to this Court by federal officials pursuant to 28 U.S.C. §1442.5 6 The derivative jurisdiction doctrine7 applies to cases removed by the federal government or federal officers pursuant to § 1442(a). Fed. Home Loan Mortg. Corp. v. Gilbert, 656 F. App'x 45, 53 (6th Cir. 2016); Ohio ex rel. Bristow v. Dir., No. 2:13-CV-614, 2013 WL 5408440, at *2 (S.D. Ohio Sept. 25, 2013). This doctrine has been explained as follows:
The derivative jurisdiction doctrine, properly understood, does not go to the federal courts' subject matter jurisdiction—their power—to review a case. Despite its "improvident name," the doctrine "is best understood as a procedural bar to the exercise of federal judicial power" rather than "an essential ingredient to federal subject matter jurisdiction." Rodas, 656 F.3d at 619. We have said as much. Morda v. Klein, 865 F.2d 782, 784 (6th Cir. 1989)
Gilbert, 656 F. App'x at 53 (Sutton, J. concurring) (quoting Rodas v. Seidlin, 656 F.3d 610, 618 (7th Cir. 2011)).
Clearly, a state court has no authority to issue a writ of mandamus against a federal officer. Bristow, 2013 WL 5408440, at *2; Ohio ex rel. Griffin v. Smith, No. 2:06CV1022, 2007WL 1114252 (S.D. Ohio Apr. 12, 2007). Further, Ohio courts have no authority to release a prisoner from confinement in another state. State ex rel. Hanshaw v. Parker, 2001-Ohio-2369 Mott v. Sheriff of Hamilton Cty., 48 Ohio App.3d 84, 548 N.E.2d 301 (1988). Because the Ohio Supreme Court lacked the authority to entertain a petition for a writ of mandamus against the federal officials, this Court likewise lacks such authority based on the derivative-jurisdiction doctrine as it relates to the federal officials.
Further, "'[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.'" Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th Cir. 2011) (quoting Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980)). Mandamus jurisdiction in federal courts is codified at 28 U.S.C. § 1361. That section provides that "[t]he district courts shall have...
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