Slone v. Dewine
| Decision Date | 28 April 2022 |
| Docket Number | 2:22-cv-144 |
| Parties | ALFIE SLONE aka ALFIE SLOANE, Plaintiff, v. MIKE DEWINE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Michael H. Watson Judge
ORDER AND REPORT AND RECOMMENDATION
Alfie Sloane, [1] an incarcerated person proceeding without the assistance of counsel, has filed a civil action pursuant to 42 U.S.C. § 1983. He has named as defendants Ohio Governor Mike DeWine, Ohio Attorney General Dave Yost Mahoning County Prosecutor Paul J. Gains, and “The County Prosecutor[s] of Each of Ohio's 88 Counties.” (ECF No. 1.)
The case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and General Order 22-05 regarding assignments and references to United States Magistrate Judges. The matter is currently before the Court for consideration of Plaintiff's Application to Proceed In Forma Pauperis (ECF No. 5), and to conduct the initial screen of his Complaint (ECF No. 1) as required by law. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). For the reasons that follow, the Undersigned GRANTS Plaintiff's Application to Proceed In Forma Pauperis, but RECOMMENDS that the Complaint be DISMISSED in its entirety for failure to state a claim on which relief can be granted.
Upon consideration, Plaintiff's Application to Proceed In Forma Pauperis (ECF No. 5) is GRANTED. It is ORDERED that Plaintiff be allowed to prosecute this action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.
Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1914. Plaintiff's Application, however, reflects that that he does not have sufficient funds available to pay the full filing fee at this time. The custodian of Plaintiff's inmate trust account at the institution of his residence is therefore DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six months immediately preceding the filing of the Complaint. 28 U.S.C. § 1915(b)(1). If Plaintiff does not currently possess the funds to pay the initial filing fee, the amount assessed shall be collected from Plaintiff's account when such funds become available. See 28 U.S.C. § 1915(b)(4) ().
Once the initial partial filing fee is paid, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account if, during that month, the balance of that account exceeds $10.00, until the full fee of $350 has been paid. 28 U.S.C. § 1915(b)(2); see McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). If Plaintiff is transferred to another institution, the current custodian should forward this Order to that institution so that the new custodian of Plaintiff's account can collect and remit the monthly partial payment.
Checks are to be made payable to “Clerk, U.S. District Court” and sent to:
The prisoner's name and this case number must be included on each remittance.
The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison cashier's office. The Clerk is further DIRECTED to forward a copy of this Order to the Court's financial office in Columbus.
Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or employee of a governmental entity, ” and is also proceeding in forma pauperis, the Court is required to conduct an initial screen of his Complaint. 28 U.S.C. § 1915A(a); 28 U.S.C. § 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 can 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 a 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.” BellAtl. 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) (). 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)). And, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986); see also Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (“[W]e need not accept as true legal conclusions or unwarranted factual inferences.”).
Plaintiff brings this action under 42 U.S.C. § 1983, which allows for relief where a plaintiff proves “(1) a deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted). He raises two claims in his pro se Complaint.[2] (ECF No. 1 (hereinafter cited as “Complaint”)). Both claims appear to stem from the premise that parents or those with an “authoritative parental relationship” with their victims face increased criminal penalties when convicted of rape of a person under the age of thirteen.
In his first claim, Plaintiff asserts that the Mahoning County Prosecutor, Paul J. Gains, “unconstitutionally charged [him] . . . with a violation of the general forcible rape statute of a person less than thirteen years of age, pursuant to 2907.02(A)(1)(b), of the Ohio Revised Code.” (Complaint, ¶ 11.) Plaintiff argues that Ohio Revised Code § 2907.023 is unconstitutional as applied to him and other criminal defendants in that it violates the Separation of Powers and Due Process Clauses of the United States and Ohio Constitutions. (Complaint, ¶¶ 15, 19.) He asserts that the statute “irrationally imposes stricter penalties on persons based solely on their authoritative parental relationship” with a victim, because the existence of such a relationship relieves the state of its burden to show force or a threat of force. (Complaint, ¶ 23.)
In his second claim, Plaintiff alleges that Defendants charged him and other persons under the statute based on the existence of a parental relationship with the victim(s). (Complaint, ¶ 25.) He argues that the statute, as applied, violates their equal protection and due process rights because the harsher punishment afforded to defendants in parental relationships with their[3] victims is not being equally applied to other, similarly authoritative relationships. (Complaint, ¶¶ 24-26, 29-30.)
The Complaint should be dismissed in its entirety, for several overlapping reasons. To the extent that Plaintiff is bringing claims on behalf of others, he lacks standing to do so. To the extent he is bringing claims on his own behalf and challenging his conviction and sentence, such a claim must be raised in a habeas corpus action and is otherwise barred in a § 1983 action. To the extent he is asking this Court to conduct appellate review and reverse state court decisions his claims are barred by the Rooker-Feldman doctrine. His claims are also barred by the two-year statute of limitations, and all of ...
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