IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Winner Dawan Mate, :

Plaintiff,

v. : Case No. 2:12-cv-834

Ohio Rehabilitation and

Correctional, et al., : JUDGE GREGORY L. FROST

Magistrate Judge Kemp

 Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, Winner Dawan Mate, has submitted a complaint and

a request for leave to proceed in forma pauperis. He qualifies

financially for a waiver of the required filing fee, so the Court

will grant his application to proceed. However, for the

following reasons, it will recommended that the complaint be

dismissed for failure to state a claim upon which relief can be

granted.

I. Factual Background

Mr. Mate’s complaint, which names a large number of

defendants, appears to be focused on one particular event: the

imposition of a sentence of post-conviction control by an Ohio

court back in 2006. According to the complaint, Mr. Mate was

originally sentenced to a prison term in March, 2002. At that

time, he claims that he was not sentenced to serve a term of

post-release control which would take effect after his release

from prison. However, when he was released in 2006, post-release

control was imposed. He claims that such a term was lawful only

if he had been given notice of a new sentencing hearing and only

if such a hearing had been held - and he says that never

happened, although he alleges that a new sentencing entry was

filed in March of 2006 which included a post-release control

term.

After that date, Mr. Mate claims that he has been subjected

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to continuous physical restraint for violations of post-release

control. Among other places, he alleges he has been sent to the

Lucas County Jail, a halfway house, mental health facilities, and

institutions under the control of the Ohio Department of

Rehabilitation and Correction. He seeks $100,000,000.00 in

damages for the alleged violation of his rights.

II. Legal Standard

The ability to proceed in forma pauperis was established by

Congress through 28 U.S.C. §1915 in order to provide greater

means of access to the judicial system for the indigent. Denton

v. Hernandez, 504 U.S. 25, 31 (1992). The statute allows, with

proper showing of financial need, a petitioner to proceed in an

action “without prepayment of fees or security thereof.” 28

U.S.C. §1915(a)(1). 

However, 28 U.S.C. §1915(e)(2) requires the Court “to

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 (iii) seeks

monetary relief against a defendant who is immune from such

relief.” A suit is frivolous if it lacks any arguable foundation

in either fact or law. Neitzke v. Williams, 490 U.S. 319, 325

(1989). A complaint fails to state a claim upon which relief can

be granted, if, after accepting as true all well-pleaded

allegations of the complaint, the allegations do not “raise a

right to relief above the speculative level.” Bell Atl. Corp v.

Twombly, 550 U.S. 544, 555 (2007). 

The Court is mindful that pro se complaints are to be

construed liberally in favor of the pro se party. Haines v.

Kerner, 404 U.S. 519 (1972); see also Jourdan v. Jabe, 951 F.2d

108, 110 (6th Cir. 1991). It is with these standards in mind

that the Court conducts its initial screening of the complaint

submitted by Mr. Mate.

III. Discussion

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There are a large number of legal problems with Mr. Mate’s

complaint. Some of the defendants, like the Ohio Department of

Rehabilitation and Correction and the Ohio Adult Parole

Authority, cannot be sued for damages in a federal court because

they are immune from such suits under the Eleventh Amendment to

the United States Constitution. See Foulks v. Ohio Dept. of

Rehabilitation and Correction, 713 F.2d 1229 (6th Cir. 1983),

and, as more fully discussed below, the statute of limitations

may have run on a number of his claims, including his primary

claim concerning the 2006 sentencing proceedings. However, the

most significant legal issue raised by the complaint is that Mr.

Mate cannot recover damages for either being placed illegally on

post-release control or for having been accused of violating that

control unless and until he obtains a decision either from a

state court or from this Court (which could only occur in a

habeas corpus case) that the post-release control is invalid. He

has not alleged that this has occurred, and his damage claims

cannot be decided by this court in an action brought under 42

U.S.C. §1983.

In Heck v. Humphrey, 512 U.S. 477 (1994), the United States

Supreme Court held that no §1983 cause of action for money

damages arising out of an allegedly unlawful incarceration exists

unless and until the underlying sentence or conviction is legally

eliminated. Under Heck, a §1983 plaintiff "must prove that a

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" before any

suit for money damages relating to that sentence or conviction

can be commenced. Id. at 486-87. If a judgment in favor of the

plaintiff would necessarily imply that a conviction or sentence

was invalid, the court is to dismiss the action unless the

conviction or sentence has been previously invalidated. Id. 

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Consistent with Heck, the Court, when faced with a complaint

like Mr. Mate’s must ask this question: if Mr. Mate won this case

by proving that he had been unconstitutionally placed on postrelease control or subjected to unlawful proceedings to revoke

that status, would that call into question the validity of either

his underlying conviction or his sentence? The answer to that

question is clearly yes.

There are really two parts to Mr. Mate’s claim, as the Court

reads the complaint. One type of governmental action which Mr.

Mate appears to be complaining about is a series of revocations

of his post-release control. Although his complaint is not

completely clear on this issue, he seems to be saying that false

charges have been filed against him, or that he was subjected to

improper procedures which led to his being sent back to jail or

to some other type of custodial facility such as a halfway house. 

The falsity of the charges appears to be based on the fact that,

in his view, Mr. Mate never was legally subject to post-release

control, so that any claim that he violated its restrictions

would necessarily be false. But Mr. Mate has not claimed that he

ever challenged, in state court or elsewhere, any of these

actions or the underlying sentence of post-release control. 

Additionally, he does not allege that, as result of any such

challenge, he has succeeded in getting any particular revocation

of post-release control, or the post-release control itself, set

aside. If this Court were to find that his post-release control

had ever been illegally revoked, that ruling would call into

question the validity of an underlying state criminal decision -

not a conviction, perhaps, but either a determination by the

Parole Authority which led to the imposition of a sentence, or

the sentencing entry filed in 2006 - and that is exactly the type

of decision which Heck v. Humphrey forbids. 

Other federal courts which have been faced with the same

issue have reached the same conclusion. For example, in Crow v.

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Penry, 102 F.3d 1086 (10th Cir. 1996), the plaintiff was serving

a parole term and, after he was arrested and sent to prison for a

parole violation, sued for damages under §1983. The Court of

Appeals dismissed that claim because the Supreme Court’s decision

in Heck “applies to proceedings that call into question the fact

or duration of parole or probation.” Crow v. Penry, 102 F.3d at

1087. The Court of Appeals for the Eleventh Circuit decided a

case, Vickers v. Donahue, 137 Fed. Appx. 285 (11th Cir. June 28,

2005) the same way. There, the plaintiff claimed that his

probation officer stated falsely that he had violated his

community control, and that those false statements led to his

being sent back to jail. The court noted the plaintiff’s claim,

“if successful, would completely invalidate two of the grounds

for which his community control was revoked in the first place

without first having had a ‘favorable termination’ as required

under Heck.” Vickers v. Donahue, 137 Fed. Appx. at 290. There

are many other decisions just like these. See, e.g., West v.

Eskes, 2008 WL 4283056, *6 (W.D.Wash. Sept. 17, 2008), which held

that a claim just like Mr. Mate’s had to be dismissed because

“plaintiff has not established that his probation revocations and

re-incarceration has been invalidated on appeal, by a habeas

petition, or through some similar, favorable proceeding.” 

Neither has Mr. Mate. Unless and until he obtains a ruling from

a state or federal court in a habeas-type proceeding that any of

his revocations were invalid (and there would be a host of

problems with any federal habeas corpus action he might file, not

the least of which would be the one-year statute of limitations

which applies in such cases, see 28 U.S.C. §2244(d)), he cannot

sue the people involved for damages on the grounds that they

violated his constitutional rights when they either imposed or

revoked his post-release control.

It may be, of course, that Mr. Mate is no longer serving any

of the sentences he received when his post-release control was

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revoked, and perhaps he is no longer subject to post-release

control. He might argue that, because he is no longer able to

ask to have those sentences invalidated because he has finished

serving them, Heck should not apply. However, the Court of

Appeals for the Sixth Circuit has rejected that exact argument. 

In Powers v. Hamilton Co. Public Defender Comm’n, 501 F.3d 592,

602-03 (6th Cir. 2007), the Court of Appeals concluded that while

“Heck's favorable-termination requirement cannot be imposed

against §1983 plaintiffs who lack a habeas option for the

vindication of their federal rights,” it could be imposed on

prisoners who “could have sought and obtained habeas review while

still in prison but failed to do so.” 

Ohio allows persons who have had their post-release control

revoked to challenge that action. As this Court has said,

“claims challenging parole revocations may be raised in a state

habeas corpus petition pursuant to Ohio Rev.Code §2725.01 et

seq., or in a state writ of mandamus pursuant to Ohio Rev.Code

§2731.01 et seq.” Boswell v. Warden, Lebanon Correctional Inst.,

2008 WL 4411416, *9 (S.D. Ohio Sept. 29, 2008). Mr. Mate could

have challenged any of the revocations he complains about, and,

if he was right about the falsity of the accusations which led to

his being sent back to jail, he could have had those revocations

set aside. Moreover, if his primary claim is that he never

should have been on post-release control in the first place, he

has had many opportunities since it was imposed back in 2006 to

challenge its legality, including directly appealing the

sentencing entry. Even if someone serves a short sentence for

violating post-release control and cannot reasonably challenge

that sentence, the fact that the person remains on such control

after being released from custody allows for a challenge to the

post-release control itself. As the court said in Williams v.

Caruso, 2009 WL 960198, *11 (E.D. Mich. April 6, 2009), about a

plaintiff who complained about having his parole revoked but who

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had finished serving his sentence for the violation, “[w]hile not

presently in custody as a result of the parole violation,

plaintiff is still subject to parole and presumably will be

subject to parole for a period of time. Applying that test to the

present situation, ... plaintiff would be eligible for habeas

jurisdiction and Heck... bars the present suit.” The same

reasoning applies here.

There are other reasons why Mr. Mate’s complaint fails to

state a claim. If Heck did not bar his challenge to the

imposition of post-release control in 2006, then that claim

accrued in 2006 when the allegedly illegal sentence was imposed. 

The statute of limitations for cases filed under 42 U.S.C. §1983

is two years. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir.

1989). Further, even though the allegedly illegal custody

continued beyond the date that the sentence was imposed, any

action taken by the defendants which was based on the fact that

Mr. Mate was on post-release control (even if that control was

not lawfully imposed) stemmed directly from the March, 2006

imposition of that sentence. When that is the case, the statute

of limitations runs from the date the sentence was imposed; “[a]

continuing violation in a §1983 action occurs [only] when there

are continued unlawful acts, not by continued ill effects from

the original violation.” Kovacic v. Cuyahoga County Dep't of

Children and Family Services, 606 F.3d 301, 308 (6th Cir. 2010).

From this discussion, it is evident that the complaint does

not state a plausible claim for relief. Because that is so, it

must be dismissed under 28 U.S.C. §1915(e)(2).

IV. Recommended Disposition and Order

Plaintiff’s application for leave to proceed in forma

pauperis (#1) is granted. Further, it is recommended that the

complaint be dismissed under 28 U.S.C. §1915(e)(2) for failure to

state a claim upon which relief can be granted.

V. Procedure on Objections

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If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver

of the right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

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

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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