UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CARLOS MONTEZ SMITH,

Plaintiff,

 Civil Action 2:10-cv-1066

v. Judge Michael H. Watson

 Magistrate Judge E.A. Preston Deavers

JUDGE WILLIAM J. CORZINE, et al.,

Defendants.

ORDER and INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Carlos Montez Smith, who is proceeding without the assistance of counsel,

brings this civil rights action under 42 U.S.C. § 1983 against the following Defendants in their

individual capacity: William J. Corzine, Ross County, Ohio Common Pleas Court Judge; Ty D.

Hinton, Clerk of Courts for the Ross County, Ohio Common Pleas Court; George Lavender, Jr.,

Ross County Sheriff; Officer Sebolt, a state trooper; and an unnamed officer. This matter is

before the Court for consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis

(ECF No. 1), which the Court GRANTS and Plaintiff’s Motion for Default Judgment (ECF No.

4), which the Court DENIES. This matter is also before the Court for the initial screen of

Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of Plaintiff’s Complaint, 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. § 1915(e)(2). Having performed the initial screen,

for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS

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Plaintiff’s claims against Defendants Lavender, Hinton, and Judge Corzine. Plaintiff may

proceed on the remainder of his claims. This action, however, is STAYED pending the

resolution of Plaintiff’s state court criminal case. 

I. BACKGROUND

Plaintiff, Carlos Montez Smith, alleges that “a ‘Carlos Montez Smith’ is a strawman, a

trademark, . . . and is not a real person.” (Compl. 3, ECF No. 1–2). He alleges that Mr. Smith’s

status as such is a result of two documents that the Iowa Secretary of State approved, UCC-1

Form # P5844472 and the Security Agreement # CMS-042991-SA (the “Agreements”). Plaintiff

attaches both of these documents to his Complaint. Plaintiff alleges that pursuant to the United

States Code Annotated and the Bill of Rights, the Agreements confer him with “Diplomatic

Status under the Uniform Commercial Code, Common Equity Laws, Laws of Admiralty,

Commercial Liens and Levies.” Id. Plaintiff consequently asserts that all courts lack jurisdiction

to pursue criminal cases against him. 

According to the Complaint, on August 19, 2010, Defendant Sebolt stopped Plaintiff’s

car and asked him to exit the vehicle. Defendant Sebolt proceeded to handcuff and pat-search

Plaintiff, finding nothing illegal on Plaintiff’s person or in his car. Defendant Sebolt then

searched the passenger in Plaintiff’s car, again finding nothing illegal. Defendant Sebolt then

read Plaintiff his Miranda rights and took Plaintiff and the passenger into custody. Once at the

police station, Defendants Sebolt and an unnamed officer (Defendant John Doe) proceeded to

perform a body cavity search of Plaintiff against his will and without a search warrant, finding

nothing illegal. Plaintiff alleges that Defendants Sebolt and Doe utilized excessive force in

performing the search. The search of Plaintiff’s passenger produced cocaine. 

Plaintiff was indicted in state court on October 1, 2010, for complicity to possession of

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cocaine. The court set Plaintiff’s bail at $75,000. Plaintiff filed his Agreements with Defendant

Hinton to cover this amount, but Defendant Hinton refused to accept the Agreements as legal

tender. At Plaintiff’s state court arraignment, Defendant Judge Corzine refused to recognize

Defendant’s diplomatic status and raised Plaintiff’s bond to $350,000. Plaintiff alleges that

Defendant Lavender also refuses to acknowledge his immunity and unlawfully continues to

detain him. Plaintiff is currently a pretrial detainee. His trial is scheduled for trial on July 6,

2011. 

Plaintiff asserts that Defendants Sebolt and Doe violated his Fourth Amendment rights

when they stopped his car, searched his person, and arrested and detained him, all without

probable cause. In addition, he asserts that Defendants Sebolt and Doe utilized excessive force

in performing the search. He brings his claims against Defendants Sebolt and Doe in their

individual capacities only, seeking monetary damages. He asserts Defendant Hinton violated his

constitutional rights by hiding Plaintiff’s Agreements and by failing to accept the Agreements as

bailment for Plaintiff’s bond. Plaintiff further asserts that Defendant Lavender is liable for his

continued, unlawful detention. Finally, Plaintiff asserts that Defendant Judge Corzine violated

his constitutional rights for failing to recognize his diplomatic status, immunity, and sovereignty

and also for setting excessive bail. 

II. STANDARD 

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the

statute, which provides in pertinent part:

(2) 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-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) 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 Fed. R. Civ. P. 8(a). See Hill v. Lappin, 630 F.3d

468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to

review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 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,

--- U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Furthermore, 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) of the Federal Rules

of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to

1

Formerly 28 U.S.C. § 1915(d). 

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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. 

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). Additionally, when considering a pro se plaintiff’s complaint, a court “must read [the

allegations] with less stringency . . . and accept the pro se plaintiff’s allegations as true, unless

they are clearly irrational or wholly incredible.” Reynosa v. Schultz, 282 F. App’x 386, 389 (6th

Cir. 2008) (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992) (internal citation omitted). A

court is also not required to accept as true mere legal conclusions unsupported by factual

allegations. Iqbal, 129 S.Ct. at 1949.

III. ANALYSIS

A. Initial Screen

1. Plaintiff’s Claims Against Defendants Lavender, Hinton, and Judge Corzine

The undersigned finds that the claims Plaintiff asserts against Defendants Lavender,

Hinton, and Judge Corzine are frivolous. A claim is frivolous if it lacks “an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The former occurs when

“indisputably meritless” legal theories underlie the complaint, and the latter when it relies on

“fantastic or delusional” allegations. Id. at 327–28. Here, Plaintiff’s claims against these

Defendants rely on “fantastic or delusional” allegations and are premised upon “indisputably

meritless” legal theories. Specifically, his claims against these Defendants are premised upon

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his irrational and delusional allegation that he “is a strawman, a trademark . . . and is not a real

person” and also his indisputably meritless legal conclusion that the Agreements confer him

“Diplomatic Status under the Uniform Commercial Code, Common Equity Laws, Laws of

Admiralty, Commercial Liens and Levies.” (Compl. 3, ECF No. 1–2). Because the undersigned

concludes that Plaintiff has failed to advance any arguable legal claims that are based upon

rational facts against Defendants Lavender, Hinton, and Judge Corzine, the undersigned

RECOMMENDS that the Court dismiss Plaintiff’s claims against these Defendants as frivolous

pursuant to Section 1915(e)(2)(B)(i). 

Moreover, Defendant Judge Corzine is entitled to immunity. It is well settled that a

judge acting in a judicial capacity has absolute immunity from civil suits for monetary damages. 

See, e.g., Mireles v. Waco, 502 U.S. 9, 9–12, (1991); Barnes v. Winchell, 105 F.3d 1111,

1115–16 (6th Cir. 1997). Here, Plaintiff complains of Judge Corzine’s judicial acts. Thus, the

undersigned RECOMMENDS that the Court dismiss Plaintiff’s claims against Defendant Judge

Corzine for this additional reason. 

2. Claims against Defendants Sebolt and John Doe

Plaintiff’s 42 U.S.C. § 1983 claims against Defendants Sebolt and Doe, including his

Eighth Amendment excessive force claim and his Fourth Amendment claims for unlawful search

and false arrest, survive the initial screen. For the reasons explained below, however, the Court

STAYS this action pending resolution of Plaintiff’s state court criminal proceedings.

If Plaintiff had already been convicted of the charged crime, his Fourth Amendment

claims would face a potential bar under Heck v. Humphrey, 512 U.S. 477 (1994). The Heck

Court held that “in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has

been [overturned].” Edwards v. Balisok, 520 U.S. 641, 646 (1997). Thus, if Plaintiff had been

convicted, and if his claims would imply the invalidity of his criminal conviction, those claims

would be Heck-barred. 

The Supreme Court, however, has declined to extend Heck to actions which would

impugn an anticipated future conviction. Wallace v. Kato, 549 U.S. 384, 393 (2007). Thus,

Heck imposes no bar where, as here, the plaintiff is a pre-trial detainee and there has been no

conviction. The Wallace Court explained why such an extension of Heck is impractical, using a

false arrest claim as an example: 

In an action for false arrest it would require the plaintiff (and if he brings suit

promptly, the court) to speculate about whether a prosecution will be brought,

whether it will result in conviction, and whether the pending civil action will

impugn the verdict, . . . all this at a time when it can hardly be known what

evidence the prosecution has in its possession. And what if the plaintiff (or the

court) guesses wrong, and the anticipated future conviction never occurs, because

of acquittal or dismissal? 

Id. (internal citation omitted). 

Instead, the Wallace Court advised that where a pretrial detainee’s § 1983 action may

impugn a future conviction, a stay of the civil proceeding pending the outcome of the parallel

state-court criminal proceeding may be appropriate: 

If a Plaintiff files a false-arrest claim before he has been convicted (or files any

other claim related to rulings that will likely be made in a pending or anticipated

criminal trial), it is within the power of the district court, and in accord with

common practice, to stay the civil action until the criminal case or the likelihood

of a criminal case is ended. 

Wallace, 549 U.S. at 393–94 (citations omitted). If a court decides to stay such an action, the

Wallace Court explained that “[i]f the plaintiff is ultimately convicted, and if the stayed civil suit

would impugn that conviction, Heck will require dismissal; otherwise, the civil action will

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proceed, absent some other bar to suit.” Id. at 394 (citations omitted). 

The Court finds that it is appropriate to stay this action pending the resolution of the state

court criminal proceeding. Plaintiff’s Fourth Amendment unlawful search and arrest claims, if

successful, could impugn a future conviction. See, e.g., Jacob v. Township of West Bloomfield,

192 F. App’x 330, 334 (6th Cir. 2006) (holding that any Fourth amendment claims arising out of

searches occurring prior to Plaintiff’s guilty plea an incarceration were precluded by Heck on the

grounds that a civil suit holding that these searches were improper would undermine the basis of

the guilty plea and sentence). The Court, therefore, STAYS the instant action pending the

outcome of Plaintiff’s criminal case. The parties are DIRECTED to file a written status report

following the resolution of Plaintiff’s state court criminal case. If Plaintiff is ultimately

convicted, the Court will “consider whether a judgment in favor of [Plaintiff] would necessarily

imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. If Plaintiff’s claims

would render his conviction or sentence invalid, the Court will dismiss the action pursuant to

Heck, subject to refiling if Plaintiff “can demonstrate that the conviction or sentence has . . . been

invalidated.” Id. If Plaintiff is acquitted, or if his claims would not impugn the validity of his

conviction, the Court will lift the stay, permitting Plaintiff to proceed.

B. Motion for Default Judgment

The Court DENIES Plaintiff’s Motion for Default Judgment. (ECF No. 4.) Plaintiff

incorrectly relies on Federal Rule of Civil Procedure 12 as a basis for his Motion, which has no

application at this stage of the proceeding. Instead, Federal Rule of Civil Procedure 55 sets forth

the two-step sequential procedure obtaining default judgment. Here, default judgment is

premature because Defendants have not yet been served with the Complaint. 

C. Motion for Leave to Proceed In Forma Pauperis

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The Court GRANTS Plaintiff’s Motion for Leave to Proceed In Forma Pauperis under

28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff is required to pay the full amount of the

Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). 

Plaintiff’s certified trust fund statement reveals that he currently possesses insufficient

funds to pay the full filing fee. Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s

inmate trust account (CIN: 0110004066) at Ross County Jail is 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. 

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the

inmate’s preceding monthly income credited to the account, but only when the amount in the

account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. See

28 U.S.C. § 1915(b)(2); McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). 

Checks should be made payable to: Clerk, United States District Court. The checks

should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner’s name and this case number must be included on each check. 

It is ORDERED that Plaintiff be allowed to prosecute his 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. 

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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. 

 

IV. CONCLUSION

For the above reasons, pursuant to the Court’s initial screen, it is ORDERED that

Plaintiff may proceed on his Eighth Amendment excessive force claim and his Fourth

Amendment unlawful search and arrest claims against Defendants Sebolt and Doe. This case is

STAYED, however, pending resolution of Plaintiff’s state court criminal case. In addition, the

parties are DIRECTED to file a written status report upon the conclusion of Plaintiff’s state

court criminal case. The undersigned RECOMMENDS, however, that the Court DISMISS

Plaintiff’s claims against Defendants Lavender, Hinton, and Judge Corzine as frivolous pursuant

to Section 1915(e)(2)(B)(i).

Additionally, the Court GRANTS Plaintiff’s Motion for Leave to Proceed In Forma

Pauperis. (ECF No. 1.) The United States Marshal is DIRECTED to serve by certified mail

upon Defendants a summons, a copy of the Complaint, and a copy of this Order and Initial

Screen Report and Recommendation. 

Finally, the Court DENIES Plaintiff’s Motion for Default Judgment as premature. (ECF

No. 4.) 

V. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

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question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: June 23, 2011 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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