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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Charles Robinette, III,

Plaintiff,

 v.

George Lavender, Jr., et al.,

Defendants.

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Civil Action 2:11-cv-174

Judge Watson

Magistrate Judge Abel

REPORT AND RECOMMENDATION

This matter is before the Magistrate Judge for an initial screening of the

complaint under 28 U.S.C. §1915(e)(2) to identify cognizable claims, and to dismiss

the 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. McGore v. Wrigglesworth, 114 F.3d 601, 608-09

(6th Cir. 1997).

The following allegations are taken from the complaint. On December 18,

2010, Plaintiff was drinking with several individuals, including Amber “Peaches”

Earles (“Earles”), when an argument ensued. Plaintiff left and returned to his

residence. Two hours later, Deputy Elward (“Elward”) showed up at the location of

the party and took statements from the individuals there, including Earles, who

were the under the influence of alcohol. Elward then apparently arrested Plaintiff

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for domestic violence. The next day, Earles went to the county prosecutor’s office,

and explained that she did not recall making any statements to Elward and that

she wished to drop all charges against Plaintiff. Nevertheless, Plaintiff continued

(at the time at which he filed his complaint) to be held in the Ross County Jail.

Plaintiff characterizes his complaint as one alleging that Elward committed

“dereliction of duty” by arresting him based upon statements by intoxicated

individuals and that he is being unlawfully detained, in violation of his

constitutional rights, even after the alleged victim requested that charges be

dropped. The Court determines that Plaintiff intends to bring a claim under 42

U.S.C. §1983 against Elward and Sheriff George Lavender, Jr. (“Lavender”) for

unconstitutional imprisonment. 

In Heck v. Humphrey, the United States Supreme 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 conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a

state tribunal author- ized to make such determination, or called into

question by a federal court's issuance of a writ of habeas corpus, 28

U.S.C. § 2254.

512 U.S. 477, 486-87 (1994). This necessarily implies that the lawsuit can only be

filed after the validity of the conviction sentence has been challenged by being

reversed on direct appeal, expunged, declared invalid, or called into question by a

writ of habeas corpus. Therefore, the Supreme Court held in Wallace v. Kato, 549

U.S. 384, 394 (2007), when a prisoner has prematurely filed a lawsuit alleging such

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wrongful imprisonment, the district court should “stay the civil action until the

criminal case or the likelihood of a criminal case is ended.”

Accordingly, it is RECOMMENDED that this case be STAYED pending the

trial, dismissal, or other adjudication of the charge or charges pending against

Plaintiff Charles Robinette, III. Such a stay would not bar Plaintiff from filing a

petition for writ of habeas corpus in this court.

If any party objects to this Report and Recommendation, that party may,

within fourteen (14) days, file and serve on all parties a motion for reconsideration

by the Court, specifically designating this Report and Recommendation, and the

party thereof in question, as well as the basis for objection thereto. 28 U.S.C.

§636(b)(1)(B); Rule 72(b), Fed. R. Civ. P.

The parties are specifically advised that 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. 

Thomas v. Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981). United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller

v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Willis v.

Sullivan, 931 F.2d 390, 401 (6th Cir. 1991). 

s/Mark R. Abel 

United States Magistrate Judge 

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