IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Frank K.C. Hertel, Sr.,

Plaintiff,

v. Case No. 2:18-cv-179

Judge Everett H. Krueger,

et al.,

Defendants.

OPINION AND ORDER

This is an action filed by plaintiff pursuant to 42 U.S.C.

§1983 against Delaware County, Ohio, and various state officials

and judges who where involved in plaintiff’s state criminal

prosecution and subsequent related proceedings. In a July 5, 2018,

report and recommendation on an initial screen under 28 U.S.C.

§1915(e), the magistrate judge recommended that plaintiff’s claims

be dismissed on several grounds, including Eleventh Amendment

immunity, judicial and prosecutorial immunity, the statute of

limitations bar, the unavailability under §1983 of the relief

sought, and waiver. By order dated August 16, 2018, this court

adopted the report and recommendation and dismissed this action

pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a

claim for which relief may be granted.

On August 28, 2018, plaintiff filed a “MOTION TO AMEND OPINION

AND ORDER” which cited Fed. R. Civ. P. 52(b). On August 29, 2018,

the magistrate judge issued a report and recommendation concerning

that motion. The magistrate judge concluded that plaintiff failed

to state grounds for relief under Rule 52(b). The magistrate judge

also analyzed plaintiff’s motion as a motion to alter or amend

judgment under Fed. R. Civ. P. 59(e) and a motion for relief from
judgment under Rule 60(b), and concluded that no basis for relief

had been shown under those rules. The magistrate judge found no

reason to reconsider this court’s earlier decision and recommended

that the motion be denied. Objections to the report and

recommendation were due by September 12, 2018.

On September 20, 2018, this court issued an order adopting the

report and recommendation, noting that no objections had been

filed. On September 21, 2018, objections from plaintiff were

received by the clerk’s office. The envelope was post-marked

September 14, 2018, but plaintiff indicated in his certificate of

service that he mailed his objections on September 12, 2018. 

Although there is no evidence as to when the objections were

tendered to the prison mail room, the court will give plaintiff the

benefit of the doubt in that regard, and will address plaintiff’s

objections. The order of September 20, 2018, (Doc. 11) is vacated.

I. Standard of Review

If a party objects to a report and recommendation within the

allotted time, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1).

II. Plaintiff’s Objections

Plaintiff claims that this court made erroneous factual

findings relevant to his claims under the Interstate Agreement on

Detainers (“IAD”). He is asking the court to include factual

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findings in the order which further his claims. However, as noted

by the magistrate judge, plaintiff’s motion to amend did not

challenge the facts upon which the grounds for dismissal of his

claims against the defendants in this case rest. Plaintiff now

argues that the finding that he waived his IAD claims by pleading

guilty to the 2000 indictment is erroneous, and that there was no

waiver. The court is not persuaded that the previous legal ruling

regarding waiver was incorrect. There is no evidence that

plaintiff’s conviction based on the 2000 indictment has been set

aside. These objections are not well taken.

In the order of August 16, 2018, this court agreed with the

conclusion of the magistrate judge that, insofar as plaintiff’s

complaint could be construed as challenging his conviction on the

2000 indictment, a habeas petition under 28 U.S.C. §2254 was the

appropriate remedy. Plaintiff argues that this conclusion was

erroneous. He argues that, under the IAD, a final disposition must

be made, and that the dismissal of the 2014 indictment without

prejudice was not a final disposition. However, he goes on to

repeat his argument that because of his conviction under the 2000

indictment, the dismissal of the 2014 indictment without prejudice

constitutes double jeopardy. He also contends that if the 2014

indictment is dismissed with prejudice, that would also require

dismissal of the lesser included offenses in the 2000 indictment. 

These arguments indicate that the court was correct construing

plaintiff’s complaint as potentially including an attack on his

conviction under the 2000 indictment. It was not error to note, as

an alternative ground for dismissal, that such an attack should be

made in a §2254 petition.

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In dismissing plaintiff’s claims against the defendant judges,

the court concluded that no claim for declaratory or injunctive

relief under §1983 had been stated against them. The court noted

that the judges played an adjudicatory rather than an adversarial

role in ruling on plaintiff’s arguments concerning the IAD and the

dismissal of the 2014 indictment, and that no declaratory decree,

as required for injunctive relief under §1983, was alleged to have

been violated in this case. Plaintiff now contends that the IAD

and Ohio Rev. Code §2963.30 are declaratory judgments or decrees,

as their enforcement depends on judicial action. This court

disagrees, and finds no error in the previous dismissal of the

claims against the defendant judges.

This court held in the order of August 16, 2018, that

plaintiff’s claims are barred by the two-year statute of

limitations applicable to §1983 actions. Plaintiff now argues that

the statute of limitations has not accrued. As this court noted in

its order, the conduct of the individual defendants relative to

plaintiff’s state court prosecution and conviction and the

dismissal of the 2014 indictment occurred in 2013 and 2014. 

Plaintiff was aware of the acts of the defendants alleged in his

complaint long before the two-year limitations period began to run. 

The dismissal of the complaint on statute of limitations grounds

was not error.

Plaintiff also disagrees with the court’s conclusion that

insofar as plaintiff was seeking to challenge the judgment of

conviction on the 2000 indictment and the judgment dismissing the

2014 indictment, his claims are barred under the Rooker-Feldman

doctrine. He argues that because he was never convicted in the

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2014 case, his claims concerning the 2014 indictment are cognizable

under §1983. This objection is without merit. Plaintiff

previously asserted his IAD arguments in his direct appeal. 

Plaintiff also filed a motion to dismiss with prejudice the 2014

indictment against him, which was denied by the Delaware County

court. Plaintiff pursued various appeals from that ruling, which

were denied. In the instant action, plaintiff alleges that the

defendants were involved in the dismissal of the 2014 indictment

and his subsequent actions challenging the dismissal without

prejudice of the 2014 indictment, and he seeks an order finding

that the IAD was violated by the dismissal without prejudice of the

2014 indictment. He clearly seeks to relitigate in this action

these previous rulings made by the state court concerning the 2014

indictment and his IAD claims. This court correctly concluded that

to the extent that plaintiff is seeking in this action to challenge

the order dismissing the 2014 indictment, this court has no

jurisdiction to entertain such claims.

Finally, plaintiff asserts that he only intended to file a

motion pursuant to Rule 52(b), not Rules 59 (e) or 60(b). However,

he also asks this court to afford him relief in the alternative

under Rules 59(e) and 60(b). The magistrate judge did not err in

addressing these alternative theories of relief.

The court finds that plaintiff’s objections are not well

taken, and they are denied. The court agrees with the report and

recommendation (Doc. 10), and it is hereby adopted. Plaintiff’s

motion (Doc. 9) is denied. Plaintiff’s motion (Doc. 1) for leave

to proceed in forma pauperis is denied as moot.

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It is so ordered.

Date: October 2, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge

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