UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DUANE P. GIBSON,

Plaintiff,

 Civil Action 2:12-cv-120

v. Judge James L. Graham

 Magistrate Judge E.A. Preston Deavers

CHIEF JUSTICE 

MAUREEN O’CONNOR, et al.,

Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Duane P. Gibson, 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: Maureen O’Connor, Chief Justice of the Ohio Supreme Court and former

Summit County Prosecutor; Sherri B. Walsh, Summit County Prosecutor; Richard S. Kasay,

Summit County Assistant Prosecutor; Tammy O’Brien, Summit County, Ohio Court of Common

Pleas; Paul E. Pfeifer, Ohio Supreme Court Justice; John R. Kasich, Ohio Governor; Robert

Blair, Ohio Department of Administrative Services (“DAS”) employee; Gary C. Mohr, Director

of the Ohio Department of Rehabilitation and Correction; Lora Heiss, Quality Assurance

Division employee at the Ohio Bureau of Sentence Computation (“BOSC”); John/Jane Doe,

BOSC Director; Robert Blair, DAS Director; Daniel H. Horrigan, Summit County Clerk of

Courts; Sheila R. Henderson, Cashier Supervisor at Richland Correctional Institution (“RCI”);

Kelly Roes, RCI employee; John/Jane Doe, Ohio Department of Rehabilitation and Correction

(“ODRC”) Office of the Chief Inspector employee; and John/Jane Doe, ODRC Assistant Chief

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Inspector. This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2) and 1915A 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, it is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its

entirety. 

I. BACKGROUND

 In March 2000, a Summit County Grand Jury indicted Plaintiff for arson and burglary. 

State v. Gibson, No. 21838, 2004 WL 1103943, at *1 (Ohio App. 9 Dist. May 19, 2004).1

Plaintiff initially pleaded not guilty to arson and burglary, and the matter proceeded to a jury

trial. Id. During the trial, with counsel, Plaintiff changed his plea to guilty for both charges. Id. 

The state trial court sentenced Plaintiff to a term of fourteen years imprisonment. Id. The state

court of appeals upheld Plaintiff’s convictions, but remanded the case for resentencing based

upon its determination that the trial court improperly imposed post-release control. State v.

Gibson, No. 25085, 2011 WL 441687, at *2–3 (Ohio App. 9 Dist. Feb. 9, 2011). Before the

resentencing hearing, Plaintiff moved to withdraw his guilty plea. Id. The trial court denied his

motion and resentenced him to fourteen years in prison. Id. Plaintiff again appealed. Id. The

appellate court affirmed the trial court’s denial of Plaintiff’s motion to withdraw his guilty plea,

but vacated the trial court’s resentencing entry to the extent it addressed anything other than

post-release control. Id. 

1

In conducting this Initial Screen, the Court takes judicial notice, pursuant to Rule 201 of

the Federal Rules of Evidence, of Plaintiff’s case history. 

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In the instant action, Plaintiff asserts that the “Direct Indictment Program” that Summit

County employs is unconstitutional because he had not obtained counsel or a copy of the

complaint prior to his indictment. (Compl. 5–6, ECF No. 1-3.) He also asserts that the Direct

Indictment Program violates his constitutional rights and also Ohio Revised Code Section

2937.02 because the state did not hold a preliminary hearing prior to his indictment. (Id.) 

Plaintiff also alleges that Defendants “maliciously” and “vindictively” prosecuted and

sentenced him and that the state court “maliciously” and “vindictively” sentenced him. (Id. at

6–8.) He further alleges that Defendants “illegally modified” his sentence. (Id. at 8.) It is

unclear whether he seeks to challenge his sentence through the instant action. 

Finally, Plaintiff alleges that “[D]efendants conspire[d] with each other steal [his] funds.” 

(Id.) He explains that his prison account was deducted $73.52 pursuant to the state appellate

court’s submission of a bill of costs to the prison. He argues the bill of costs that the state

appellate court submitted to the prison did not comply with Ohio law, which Plaintiff asserts

requires the submission of a certified copy of a court order. (Id. at 8–9.) Plaintiff also appears to

allege that he did not receive notice of a court-ordered debt. (See id. at 9 (“Defendants knew the

plaintiff [had] not received a court order ordering the plaintiff to pay a stated cost obligation of

$73.12.”)) Thus, he maintains that Defendants wilfully and unlawfully took monies from his

inmate account without due process. 

Plaintiff seeks injunctive and declaratory relief, “unspecified damages,” a Court order

enjoining Summit County from continuing to employ the Direct Indictment Program and

requiring a unspecified training, a Court order enjoining Defendants from stealing funds from

Plaintiff’s inmate account, and an order requiring the arrest of all Defendants. (Id. at 11.) 

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II.

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

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2 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 also 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

2

Formerly 28 U.S.C. § 1915(d). 

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient. 

Ashcroft v. Iqbal, 566 U.S. 662, 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 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

addition, the Court holds pro se complaints “‘to less stringent standards than formal pleadings

drafted by lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010 WL

1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). 

The Court is not required, however, to accept as true mere legal conclusions unsupported by

factual allegations. Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). 

III. 

Applying the foregoing, the undersigned recommends dismissal of Plaintiff’s Complaint

in its entirety. 

Although Plaintiff styles this case as a civil rights action under 42 U.S.C. § 1983, to the

extent he is challenging the fact or duration of his confinement, his sole remedy in federal court

is habeas corpus. See Skinner v. Switzer, 131 S.Ct. 1289, 1293 (2011) (“Habeas is the exclusive

remedy . . . for the prisoner who seeks immediate or speedier release from confinement.”

(internal quotation marks and citation omitted)). For example, any challenge to Plaintiff’s

sentence or the validity of his guilty plea must be brought in a habeas action. Thus, to the extent

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any of Plaintiff’s claims challenge the fact or duration of his confinement, it is recommended

that the Court dismiss those claims. 

In addition, the undersigned recommends dismissal of Plaintiff’s malicious prosecution

claims as “Heck-barred.” In Heck, the United States Supreme Court held that, in assessing a

§ 1983 claim, the Court “must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S.

477, 487 (1994). If the claim would render a conviction or sentence invalid, “the complaint must

be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already

been invalidated.” Id. The Supreme Court concluded in Heck that malicious prosecution claims

must be dismissed unless the criminal proceeding terminated in favor of the accused, reasoning

that “‘to permit a convicted criminal defendant to proceed with a malicious prosecution claim

would permit a collateral attack on the conviction through the vehicle of a civil suit.’” Id.

(quoting (8 S. Speiser, C. Krause, & A. Gans, American Law of Torts § 28:5, p. 24 (1991)). 

Thus, in the instant case, Plaintiff cannot proceed with his malicious prosecution claims because

he cannot “prove that [his] conviction or sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal authorized 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.” 

Id. at 486–87. 

To the extent that Plaintiff seeks to challenge the constitutionality of Summit County’s

Direct Indictment Program without challenging the fact or duration of his confinement and

without inviting the Court to review the state court’s rulings, he has failed to state a claim over

which this Court has jurisdiction. This Court has previously explained that direct indictment

does not violate the constitution:

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The constitutional purpose of an indictment is to give the defendant fair

notice of the criminal charge and to insure that a defendant is not held to answer

for a crime unless a grand jury has determined there is probable cause that he

committed the crime by returning the indictment. See, United States v. Pandilidis,

524 F.2d 644, 648 (6th Cir. 1975). Since petitioner’s criminal prosecution

proceeded by indictment, he was afforded the constitutional protections an

indictment provides.

The term direct indictment simply means that no criminal complaint was

first filed against a defendant. There is no constitutional or statutory requirement

that a criminal prosecution begin by complaint. It is lawful for a prosecutor to

bring a criminal charge initially by indictment.

Smith v. Miller, No. 2:09-cv-468, 2009 WL 2246157, *2 (S.D. Ohio July 23, 2009). Likewise,

any constitutional challenge to the state court’s failure to hold a preliminary hearing fails. See

Zaffino v. Konteh, No. 5:05-cv-1485, 2006 WL 2360902, at *3–5 (N.D. Ohio Aug. 15, 2006)

(concluding that no constitutional due process claim exists where a trial court fails to provide a

defendant with a preliminary hearing prior to indicting him). 

Further, Defendants O’Connor, Walsh, Kasay, O’Brien, and Pfeifer, all of whom are

either members of the judiciary or who prosecuted Plaintiff, are entitled to immunity. Judges

and judicial employees acting in a judicial capacity have absolute immunity from suits seeking

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). Similarly, a criminal prosecutor is fully protected by absolute

immunity when performing the traditional functions of an advocate. Imbler v. Pachtman, 424

U.S. 409, 410, 430–31 (1976). Here, Plaintiff complains of the official judicial and prosecutorial

acts of Defendants O’Connor, Walsh, Kasay, O’Brien, and Pfeifer. Thus, the undersigned

recommends that the Court dismiss Plaintiff’s claims against these Defendants for this additional

reason. 

Finally, the undersigned recommends dismissal of Plaintiff’s claim for a violation of his

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due process rights involving the taking of his inmate account fund monies. Even accepting

Plaintiff’s allegations as true, he has failed to state a claim upon which relief can be granted

because he has not alleged the inadequacy of the remedies available under Ohio law. See

Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327

(1986) and Hudson v. Palmer, 468 U.S. 517 (1984). In Paratt, the Supreme Court held that the

existence of adequate post-deprivation state remedies eliminates any due process claim arising

from the negligent deprivation of a prisoner’s property. 451 U.S. at 539–44. The Hudson Court

extended Parratt’s application to all § 1983 due process claims involving deprivation of

property, regardless of whether the deprivation is negligent or intentional. Hudson, 468 U.S. at

533–36. Cf. Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587–88 (6th Cir. 2004)

(“If satisfactory state procedures are provided in a procedural due process case, then no

constitutional deprivation has occurred despite the injury.”). Following Parratt and Hudson, the

United States Court of Appeals for the Sixth Circuit held that in a § 1983 case “claiming the

deprivation of a property interest without procedural due process of law, the plaintiff must plead

and prove that state remedies for redressing the wrong are inadequate.” Vicory v. Walton, 721

F.2d 1062, 1065–66 (6th Cir.1983). Where a plaintiff fails to do so, dismissal for failure to state

a claim is appropriate. See, e.g., Gibbs v. Hopkins, 10 F.3d 373, 377-78 (6th Cir. 1993)

(dismissal of procedural due process claim upheld where the plaintiff had “not pled or shown

that [the state] judicial remedies are inadequate . . .”); Ruiz v. Fisher, No. 96-4212, 1998 WL

661139, at *5 (6th Cir. Sept. 2, 1998) (concluding that the plaintiff had failed to state a claim of

either intentional or negligent deprivation of property where he had not pled “that state remedies

for redressing the wrong [were] inadequate”). 

In this instant case, Plaintiff has failed to pled that the post-deprivation tort remedies

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available to him under Ohio law are inadequate to adjudicate his claim as required under Parratt

and Vicory. See Fox v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999) (citing Hudson, 468

U.S. at 534–36) (“State tort remedies generally satisfy the postdeprivation process requirement

of the Due Process Clauses.”) Accordingly, the undersigned recommends that the Court dismiss

this claim on the ground that it fails to state a claim upon which relief may be granted under 42

U.S.C. § 1983. 

IV.

For the reasons set forth above, it is RECOMMENDED that the Court DISMISS

Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

Additionally, the Clerk is DIRECTED to send a copy of this order to the Ohio Attorney

General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215. 

 PROCEDURE ON OBJECTIONS

If Plaintiff seeks review by the District Judge of this Report and Recommendation, he

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

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).

Plaintiff is 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

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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: March 22, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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