Gutierrez v. Burchinal

• Decision Date: 17 June 2022
• Docket Number: 2:22-cv-2039
• Parties: OMAR GUTIERREZ, Plaintiff, v. CHRISTOPHER J. BURCHINAL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

OMAR GUTIERREZ, Plaintiff, v. CHRISTOPHER J. BURCHINAL, et al., Defendants.

No. 2:22-cv-2039

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 17, 2022

Algenon L. Marbley, Chief District Judge.

REPORT AND RECOMMENDATION

CAROLINE H. GENTRY, UNITED STATES MAGISTRATE JUDGE.

Omar Gutierrez, an Ohio prisoner proceeding in forma pauperis and without the assistance of counsel, has filed a civil rights action under 42 U.S.C. § 1983. (Doc. 1-1, 1-2). He asserts that his rights were violated by a state police detective and the attorney appointed to represent him on state criminal charges. (Doc. 1-1, PageID 11, 29, 47-48).

The matter is currently before the undersigned Magistrate Judge to conduct the initial screening of Gutierrez' Complaint as required by law. 28 U.S.C. § 1915A(a); 28 U.S.C § 1915(e)(2). For the reasons that follow, the Undersigned RECOMMENDS that the Court DISMISS the Complaint in its entirety for failure to state a claim on which relief may be granted.

I. Initial Screening Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental entity, ” and is proceeding in forma pauperis, the Court is required to conduct an initial screen of his Complaint. 28 U.S.C. §§ 1915A(a) and 1915(e)(2). The Court must dismiss the Complaint, or any portion of it, that 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) and 1915(e)(2).

To state a claim for relief, a complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court must construe the complaint in plaintiff's favor, accept all well-pleaded factual allegations as true, and evaluate whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

In the interest of justice, this Court is also required to construe a pro se complaint liberally and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing Fed.R.Civ.P. 8(f) [now (e)]). Even with such a liberal construction, a pro se complaint must still adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting all the material elements' to recover under some viable legal theory.” Barhite v. Caruso, 377 Fed.Appx. 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

II. Parties and Claims

Gutierrez sues two individuals involved in the state criminal matter(s) for which he is currently incarcerated: Detective Shawn Wade of the “Delaware County Task Force, ” who was involved in a drug investigation in 2012, and Christopher J. Burchinal, Gutierrez's court-appointed lawyer who was later permanently disbarred by the Supreme Court of Ohio. (Doc. 1-1 (hereinafter “Complaint”)). Documents attached to the Complaint reflect that Gutierrez was indicted in the Court of Common Pleas of Delaware County, Ohio in 2012. (Complaint, PageID 32, 43 (Case No. 12CR-I-10-0376)). The 2012 case was dismissed “without prejudice pursuant to re-indictment” in 2018. (Complaint, PageID 32, 44, 45 (Case No. 18CR-I-01-0046)). According to the Ohio Department of Rehabilitation and Correction, Gutierrez is serving a ten-year sentence for a felony drug trafficking offense imposed in the 2018 case. See https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A742262 (accessed June 13, 2022).

Gutierrez has raised issues concerning his Delaware County charges to this Court before. In 2019, the Sixth Circuit Court of Appeals described the history of his state (and federal) criminal cases as follows:

In November 2011, Gutierrez was charged in the United States District Court for the Eastern District of New York with conspiracy to distribute and possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(C). The information alleged that Gutierrez committed the charged offenses “[o]n or about and between January 1, 2007 and September 14, 2011, both dates being approximate and inclusive, within the Southern District of Ohio and elsewhere.” Pursuant to a plea agreement, Gutierrez pleaded guilty to the charged offenses and agreed to cooperate with the government's prosecution of other federal cases.

In October 2012, while Gutierrez was cooperating with the federal government, the Delaware County (Ohio) Grand Jury indicted Gutierrez on one count of possession of cocaine, in violation of Ohio Revised Code § 2925.11(A), and one count of complicity to traffic in cocaine, in violation of Ohio Revised Code §§ 2923.03(A)(2) and 2925.03(A)(2). Both charges carried an attendant major drug offender specification. The indictment alleged that Gutierrez committed the charged offenses on September 27, 2012. Gutierrez's state case was continued for several years while Gutierrez continued to cooperate with the federal government.

In January 2016, the federal district court held a change-of-plea hearing because Gutierrez and the government had reached a new superseding plea agreement, which provided that Gutierrez would plead guilty to a lesser-included offense in exchange for a reduced sentence. The district court permitted Gutierrez to withdraw his 2011 plea and plead guilty to the lesser charge before ultimately sentencing him to time served and five years of supervised release.

Gutierrez was subsequently taken into custody in Ohio, whereupon he moved to dismiss the indictment in his state case. Specifically, Gutierrez argued that Ohio Revised Code § 2925.50 barred his prosecution because he was previously convicted under federal drug abuse control laws for the same course of conduct that was at issue in his state case. The trial court denied Gutierrez's motion to dismiss, concluding that it was procedurally barred from ruling on the motion because Ohio law prohibits criminal defendants from seeking the dismissal of charges before trial. The trial court alternatively determined that section 2925.50 was inapplicable because Gutierrez “in his federal case was not prosecuted for, convicted of, or punished for the offenses that are at issue in” his state case. Gutierrez filed an interlocutory appeal, and the Ohio Court of Appeals affirmed the trial court's denial of Gutierrez's motion to dismiss. State v. Gutierrez, 87 N.E.3d 812, 819 (Ohio Ct. App. Mar. 28, 2017), perm. app. denied, 87 N.E.3d 222 (Ohio 2017) (table).

In January 2018, the Delaware County Grand Jury indicted Gutierrez on two counts of trafficking in drugs and one count of drug possession, with each count carrying a major drug offender specification. The indictment alleged that the first trafficking charge occurred between August 1, 2012, and September 15, 2012, whereas the second trafficking charge and the cocaine possession charge occurred on September 27, 2012. The trial court thereafter granted the State's motion to dismiss the 2012 indictment. The parties subsequently entered into an agreement pursuant to Rule 11(F) of the Ohio Rules of Criminal Procedure, whereby Gutierrez agreed to plead guilty to a lesser included offense on counts one and two in exchange for the State agreeing to dismiss count three and all the major drug offender specifications. The parties also agreed to jointly recommend a ten-year prison sentence. The trial court accepted Gutierrez's guilty pleas, dismissed count three and the drug specifications, and imposed the jointly recommended ten-year sentence.

Gutierrez v. Gray, No. 19-3514, 2019 WL 6445420, at *1-2 (6th Cir. Oct. 23, 2019).

In the § 1983 action currently before this Court, Gutierrez challenges the Ohio proceedings. He alleges that Detective Wade “initiated a[n] unlawful prosecution knowing his actions were not based upon actual evidence”; unlawfully obtained evidence from an unlawfully issued search warrant; knew that he and the State of Ohio had no jurisdiction because Homeland Security investigators had control and possession of the drugs for which he was charged; and knew that the drugs at issue had been in the possession of another person and not Gutierrez. (Complaint, PageID 29). Gutierrez also asserts that he was arrested in September 2012 and held but not charged until several days later in October 2012. (Id.). He seeks $25 million in damages from Detective Wade. (Id., PageID 47).

With respect to Attorney Burchinal, Gutierrez alleges that he took several actions that caused him to lose his family and freedom, including: failing to do an independent drug test tricking Gutierrez into a plea agreement by saying he would receive a sentence of “time served” in the state case (which did not happen); making a deal for a nine-year sentence without speaking to Gutierrez; conspiring with the state court judge and prosecutor; and failing to file a brief in his direct appeal, which led to its dismissal, and lying to Gutierrez and his family about it. (Complaint, PageID 11, 48). He points the Court to ...