UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CURTIS AL’SHAHID, 

Plaintiff, 

 Civil Action 2:18-cv-33 

 v. Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

GARY C. MOHR, et al.,

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, Thomas Albert, an Ohio citizen who is proceeding without the assistance of 

counsel, brings this action under 42 U.S.C. § 1983 against Gary C. Mohr, Director of the Ohio 

Department of Rehabilitation and Corrections, and Andre Imbrogno, Chairperson of the Ohio 

Adult Parole Board (collectively “Defendants”), all of whom are Ohio citizens. Plaintiff’s 

request to proceed in forma pauperis is GRANTED. All judicial officers who render services in 

this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This matter is 

before the United States Magistrate Judge for the initial screen of Plaintiff’s Complaint and 

Amended Complaint under 28 U.S.C. § 1915(e)(2) 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 this Plaintiff’s 

claims against Defendants for failure to assert any claim over which this Court has subject matter 

jurisdiction.
I.

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)1

 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. 

A federal court has limited subject matter jurisdiction. “The basic statutory grants of 

federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for 

‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship’ 

jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is 

invoked when a plaintiff pleads a claim “arising under” the federal laws, the Constitution, or 

treaties of the United States. Id. (citation omitted). For a federal court to have diversity 

1

Formerly 28 U.S.C. § 1915(d). 
jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means that 

each plaintiff must be a citizen of a different state than each defendant, and the amount in 

controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

II.

 According to the Complaint and Amended Complaint, Defendants were involved in 

various capacities with Plaintiff’s denial of parole. (ECF No. 1-1 at 2-3 & 1-6 at 2.) On May 1, 

2014, and March 1, 2017, Plaintiff was denied parole by the Ohio Adult Parole Board. (ECF No. 

1-1 at 3.) Plaintiff alleges that an intentionally inaccurate report of his previous convictions 

caused these denials and that Defendants are responsible for the inaccuracies. (Id. at 2-4.)

Plaintiff maintains that Defendants thereby violated his due process rights under the Fourteenth 

Amendment. (Id. At 4.) Plaintiff seeks declaratory and injunctive relief, including “immediate 

release” from prison, $80,000.00 in compensatory damages, and $80,000.00 in punitive 

damages. (Id. at 6; ECF No. 1-6 at 5.)1

III. 

 Plaintiff purports to bring this action under 42 U.S.C. § 1983. To the extent that Plaintiff 

seeks an order declaring that his parole denial was made in violation of his rights guaranteed 

under the United States Constitution, however, Plaintiff must proceed by filing a petition for writ 

of habeas corpus under 28 U.S.C. § 2254. 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. Heck v. Humphrey, 512 U.S. 477, 787 (1994); Skinner v. Switzer, 562 

U.S. 521, 525 (2011) (“Habeas is the exclusive remedy . . . for a prisoner who seeks immediate 

 

1

 Plaintiff’s Amended Complaint (ECF No. 1-6) is very similar to his original complaint except 

to the extent that he removes his request for injunctive relief and his request to be immediately 

released, and provides additional information about the purported fabrication of the reports of his 

previous convictions. 
or speedier release from confinement.”). 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, 

Plaintiff seeks monetary damages for denial of “a meaningful parole board hearing,” which 

necessarily implicates the length of his confinement, and a judgment for plaintiff would 

necessarily undermine his criminal conviction. (ECF No. 1-6 at 5.) Consequently, the 

Complaint fails to state a claim for relief under 42 U.S.C. § 1983. 

 If, alternatively, the “due process” which Plaintiff seeks consists of monetary damages 

from Defendants, he cannot recover damages in a § 1983 proceeding, based on the doctrine set 

forth in Heck. Plaintiff’s allegations that Defendants violated his constitutional rights during 

various stages of the parole application process amount to no more than a collateral challenge of 

his imprisonment. “[I]n 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 [overturned].” Heck, 512 U.S. at 486–87. In other words, before Plaintiff may seek money 

damages in a federal civil rights proceeding in which he appears to claim that his conditional 

release on parole was unlawfully denied, he must first show that the Ohio Adult Parole 

Authority’s decision to deny his parole has been overturned or set aside. 

IV.

 For the reasons explained above, Plaintiff’s Complaint fails to assert any claim over 

which this Court has subject matter jurisdiction. Accordingly, the Undersigned finds that 

Plaintiff has not made out viable claims upon which relief may be granted against any of the 

named defendants. It is therefore RECOMMENDED that the Court dismiss Plaintiff’s claims 
pursuant to Section 1915(e)(2). Accordingly, it is also recommended that the Court dismiss 

Plaintiff’s Motion to Appoint Counsel. (ECF No. 4.) 

PROCEDURE ON OBJECTIONS

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party 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). 

 The parties are specifically advised that the failure to object to the Report and 

Recommendation will result in a waiver of the right to de novo review of 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 [th defendant’s] ability to appeal the 

district 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)). 
IT IS SO ORDERED. 

Date: April 4, 2018 /s/ Elizabeth A. Preston Deavers

 ELIZABETH A. PRESTON DEAVERS 

UNITED STATES MAGISTRATE JUDGE