1

The full text of §1915A reads:

(a) Screening.--The court shall 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.

(b) Grounds for Dismissal.--On review the court shall

identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint--

(1) is frivolous, malicious, or fails to state a

claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who

is immune from such relief.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Henry N. Harper,

Plaintiff

 v.

Tribbie, Sott, Plummer & Padden

and Daniel G. Padden,

Defendants

:

:

:

:

:

Civil Action 2:11cv-01008

Judge Watson

Magistrate Judge Abel

INITIAL SCREENING

REPORT AND RECOMMENDATION

Plaintiff Henry N. Harper, an inmate at the Chillicothe Correctional Institution,

brings this prisoner civil rights action under 42 U.S.C. §1983. This matter is before the

Magistrate Judge for a Report and Recommendation on initial screening of the

complaint pursuant to 28 U.S.C. §1915A(a) and (b)1

 and 42 U.S.C. §1997e(c) to identify

Case: 2:11-cv-01008-MHW-MRA Doc #: 7 Filed: 11/17/11 Page: 1 of 3 PAGEID #: <pageID>
(c) Definition.--As used in this section, the term

"prisoner" means any person incarcerated or detained in any

facility who is accused of, convicted of, sentence for, or

adjudicated delinquent for, violations of criminal law or

terms and conditions of parole, probation, pretrial release, or

diversionary program.

2

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. The Magistrate Judge finds

that the complaint fails to state a claim under 42 U.S.C. § 1983 because it attacks a

criminal conviction that has not been set aside and, therefore, RECOMMENDS

dismissal of the complaint without prejudice.

The complaint alleges that the prosecutor, Daniel G. Padden, denied Harper a

fair trial. It further alleges that there was insufficient evidence to support the jury's

verdict of conviction. A civil rights action is not a substitute for habeas corpus. When a

prisoner challenges the fact or duration of his confinement, his sole federal remedy is

habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S.

477, 787 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). A convicted criminal defendant

cannot bring a claim under 42 U.S.C. § 1983 if a judgment on the claim “would necessarily imply the invalidity” of his criminal conviction and that conviction has not been

set aside. Heck, 512 U.S. at 487. Here a judgment for plaintiff would necessarily undermine his criminal convictions, and those convictions have not been set aside. 

Consequently, the complaint fails to state a claim for relief under 42 U.S.C. § 1983.

Case: 2:11-cv-01008-MHW-MRA Doc #: 7 Filed: 11/17/11 Page: 2 of 3 PAGEID #: <pageID>
3

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

without prejudice for failure to state a claim under 42 U.S.C. §1983.

IT IS FURTHER ORDERED that the United States Marshal serve upon each

defendant named in part III, B and C of the form civil rights complaint a summons, a

copy of the complaint, and a copy of this Order. Defendants are not required to answer

the complaint unless later ordered to do so by the Court.

The Clerk of Court is DIRECTED to mail a copy of the complaint to the Guernsey

County Prosecutor Daniel G. Padden, 139 West 8th Street, P. O. Box 640, Cambridge,

Ohio 43725.

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

ten (10) days, file and serve on all parties a motion for reconsideration by the Court,

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

question, as well as the basis for objection thereto. See 28 U.S.C. §636(b)(1)(B); Fed. R.

Civ. P. 72(b).

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, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

See also Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel 

United States Magistrate Judge

Case: 2:11-cv-01008-MHW-MRA Doc #: 7 Filed: 11/17/11 Page: 3 of 3 PAGEID #: <pageID>