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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Chad Kister,

Plaintiff

 v.

Chris Henry, et al.,

Defendant

:

:

:

:

:

Civil Action 2:12-cv-00119

Judge Graham

Magistrate Judge Abel

Report & Recommendation

Plaintiff tendered a complaint to the Clerk of Court on February 8, 2012. 

Plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. §1915(b) 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.

It is FURTHER ORDERED that the United States Marshal serve by certified mail

upon defendant a copy of the complaint and a copy of this Order.

This matter is now 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

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who is immune from such relief. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir.

1997).

The complaint alleges that defendant Chris Henry, a Tri-County mental health

counselor, wrote a pink slip based on false statements to have plaintiff evaluated for

psychiatric reasons. Ten deputies for the Athens County Sheriff kicked in his door with

their guns drawn and transported him to O'Bleness Memorial Hospital. Defendant Jeff

Beneseler took a blood sample from plaintiff against his will and informed him that he

had no rights. The blood sample taken by Beneseler was used as evidence in the

commitment hearing in probate court in violation of plaintiff's Fourth Amendment

rights. Plaintiff was forced to meet with defendant Anthony Derrico, a psychiatrist with

Appalachian Behavioral Healthcare, who requested that plaintiff be civilly committed.

Plaintiff maintains that these actions were taken by defendants in retaliation for his

successful lawsuits against police agencies. The complaint further alleges that he was

kept at Appalachian Behavioral Healthcare for 23 days, where he was subjected to

violations of his First, Second, Fourth, Eighth and Fourteenth Amendment rights.

Under Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff’s claims for damages

pursuant to 42 U.S.C. § 1983 are barred. Under Heck and its progeny, a state prisoner

cannot state a cognizable claim under sections 1983 “if a ruling on his claim would

necessarily imply the invalidity of his conviction and confinement until such time that

the conviction is reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal, or called into question by a federal court's issuance of a writ

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of habeas corpus.” Lanier v. Bryant, 332 F.3d 999, 1005-06 (6th Cir. 2003) (citing Heck, 512

U.S. at 486-87). The rule in Heck is not limited to claims challenging the validity of

criminal convictions. See Huftile v. Miccio–Fonseca, 410 F.3d 1136, 1137 (9th

Cir.2005)(applying Heck to a § 1983 claim challenging civil commitment under

California's Sexually Violent Predators Act); Von Flowers v. Wisconsin Dep't of Health &

Family Servs., 58 Fed.Appx. 649, 651, 2003 WL 352039, at 2 (7th Cir. 2003)(“[Plaintiff]

cannot sue for damages under § 1983 for his allegedly unconstitutional confinement, or

for other harm caused by actions whose unlawfulness would render his commitment

invalid, until that commitment has been declared invalid through the proper

channels.”)(citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Plaintiff seeks

monetary damages arising out of his civil commitment and claims no injury distinct

from his commitment. Since he essentially attacks the lawfulness of his commitment

without first having it set aside, his tendered complaint failed to state a claim under

Heck. See In re Kister, 955 N.E. 2d 1029 (4th Dist. Ct of App. 2011).

Accordingly, it is hereby RECOMMENDED that the complaint be DISMISSED

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 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.

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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 part 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, 150-152 (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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