IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LA SHAWN PETTUS-BROWN,

Plaintiff,

Civil Action 2:18-cv-82

v. Judge George C. Smith

Magistrate Judge Jolson

ADULT PAROLE AUTHORITY, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings (Doc. 

40) and Plaintiff’s Request for Judicial Notice of Adjudicative Facts (Doc. 47). For the reasons 

that follow, Plaintiff’s Request (Doc. 47) is GRANTED. It is Recommended that the Court 

GRANT Defendants’ Motion (Doc. 40) and DISMISS without prejudice Plaintiff’s Amended 

Complaint.

I. BACKGROUND

The relevant background was previously summarized in the November 14, 2018 Report 

and Recommendation and Order (Doc. 38 at 1–3). After being convicted on numerous counts of 

theft and forgery in the Hamilton County Court of Common Pleas, on December 18, 2017, the trial 

court sentenced Plaintiff to a five-year term of incarceration and up to three years of post-release 

control after the conclusion of his term of imprisonment. (Doc. 29 at 1–4).1

 

Plaintiff’s Amended Complaint (Doc. 11) challenges the constitutionality of Ohio’s post-

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 The parties request that the Court take judicial notice that Plaintiff’s current sentence does not include a term of 

imprisonment based on a post-release control violation. (See Docs. 47, 54). The Court takes judicial notice of this 

fact because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be 

questioned” and is therefore “not subject to reasonable dispute.” Fed. R. Evid. 201.
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release control statute and requests declaratory and injunctive relief. His § 1983 claim alleges that 

statute is unconstitutional because it permits the executive branch “to impose a second/new prison 

term on releasees (those released from prison) for the same criminal offense from which the 

releasee has already completed the judicially imposed definite prison sentence.” (Id., ¶ 1). In 

Plaintiff’s view, the post-release control statute “is unconstitutional as the statute is a Bill of 

Attainder; violates both the Double Jeopardy and Due Process Clauses; and violates the Separation 

of Power Doctrine,” all “in violation of the Constitution of the United States of America.” (Id., 

¶¶ 39–40; see also id., ¶¶ 61–81).2

Defendants filed a Motion for Judgment on the Pleadings (Doc. 40) on November 21, 2018. 

Plaintiff filed his Request for Judicial Notice of Adjudicative Facts (Doc. 47) on December 13, 

2018. Both motions are now ripe for resolution. 

II. STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but 

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. 

P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish 

that no material issue of fact remains to be resolved and that they are entitled to judgment as a 

matter of law.” Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-292, 2010 WL 3769136, at *2 

(S.D. Ohio Sept. 24, 2010) (citations omitted).

In examining a motion for judgment on the pleadings under Rule 12(c), the Court uses the 

same standard of review applied to a Rule 12(b)(6) motion to dismiss for failure to state a claim. 

Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999). Accordingly, the Court “must 

construe the complaint in a light most favorable to plaintiffs, accept all well-pled factual 

 2 Plaintiff has voluntarily dismissed his separation of powers claim. (See Doc. 48 at 31 (“Pettus-Brown voluntarily 

concedes to the dismissal of Count IV – Separation of Powers”)). 
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allegations as true, and determine whether plaintiffs undoubtedly can prove no set of facts in 

support of those allegations that would entitle them to relief.” Bishop v. Lucent Tech., Inc., 520 

F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). To 

survive a motion for judgment on the pleadings, the “complaint must contain either direct or 

inferential allegations respecting all material elements to sustain a recovery under some viable 

legal theory.” Bishop, 520 F.3d at 519 (internal quotation marks omitted). Consequently, a 

complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a 

cause of action” is insufficient. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. ANALYSIS

Defendants move for judgment on the pleadings on a number of grounds: (1) Plaintiff failed 

to allege that Defendants individual conduct harmed him; (2) Plaintiff lacks standing to bring his 

claims; (3) claims against Defendants in their official capacity are barred by the Eleventh 

Amendment; (4) Plaintiff cannot bring his claims under § 1983; (5) Younger abstention prevents 

the Court from ruling on Plaintiff’s claims; (6) Plaintiff’s separation of powers is non-cognizable 

in § 1983; and (7) separation of power Plaintiff fails to state a claim upon which relief may be 

granted. (Doc. 40 at 3–29). Defendants also contend that Plaintiff’s claims are moot. (Doc. 54 at 

4–6).

Beginning with Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court “focused 

on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when 

they seek to invalidate the duration of their confinement—either directly through an injunction 

compelling speedier release or indirectly through a judicial determination that necessarily implies 

the unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Thus, a 

prisoner was prohibited from seeking relief under § 1983 where the result would “necessarily 
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imply the invalidity of [the] conviction or sentence.” Heck v. Humphey, 512 U.S. 477, 487 (1994). 

The line of cases starting with Preiser:

taken together, indicate that a state prisoner’s § 1983 action is barred (absent prior 

invalidation)—no matter the relief sought (damages or equitable relief), no matter 

the target of the prisoner's suit (state conduct leading to conviction or internal prison 

proceedings)—if success in that action would necessarily demonstrate the 

invalidity of confinement or its duration.

Dotson, 544 U.S. at 81–82.

Plaintiff is currently serving a sentence that includes a term of post-release control. (See 

Doc. 29 at 4). He now brings a § 1983 action seeking to have Ohio’s post-release control statute 

declared unconstitutional. (See generally Doc. 11). The upshot is that a ruling in his favor would 

necessarily invalidate a portion of his sentence. Heck does not permit this. See 512 U.S. at 487;

see also Noel v. Grzesiak, 96 F. App’x 353, 354 (6th Cir. 2004) (“Heck ‘applies to proceedings 

that call into question the fact or duration of parole or probation.’” (quoting Crow v. Penry, 102 

F.3d 1086, 1087 (10th Cir. 1996)); Hurst v. Pribe, No. 2:14-CV-2552, 2016 WL 1444241, at *3–

4 (S.D. Ohio Apr. 13, 2016) (adopting Magistrate Judge’s Report and Recommendation and 

finding that § 1983 claims challenging plaintiff’s terms of post-release control were barred by 

Heck); Mate v. Ohio Rehab. & Corr., No. 2:12-CV-834, 2012 WL 5269193, at *2–3 (S.D. Ohio 

Oct. 24, 2012) (adopting Magistrate Judge’s Report and Recommendation and finding that § 1983

claims challenging plaintiff’s sentence to post-release control and his subsequent incarceration for 

violation of the same were barred by Heck). This is true even though Plaintiff seeks declaratory 

and injunctive relief. See Dotson, 544 U.S. at 81–82 (“[A] state prisoner’s § 1983 action is barred 

. . . no matter the relief sought (damages or equitable relief), . . . if success in that action would 

necessarily demonstrate the invalidity of confinement or its duration.” (emphasis added)); Ramzan 
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v. Hares, No. 2:18-CV-219, 2019 WL 580797, at *3 (W.D. Mich. Feb. 13, 2019) (collecting cases) 

(“The holding in Heck has been extended to actions seeking injunctive or declaratory relief.”).

Plaintiff insists that he is not challenging his current sentence or his underlying conviction. 

(See, e.g., Doc. 48 at 3 (“Pettus-Brown is not challenging a state conviction; and Pettus-Brown is 

not challenging the imposition of PRC.”); id. at 5 (“Pettus-Brown’s current incarceration on

Case# B1605805 has no relevance to the instant action before this Honorable Court regarding

the constitutionality of PRC.”); id. (“The mere inclusion of another case, and Pettus-Brown’s

current incarceration, by the Defendants in their pleadings is an attempt by the defense to

clutter Pettus-Brown’s argument in this action, as Case# Bl605805 [the case resulting in his 

current conviction and sentence] was never mentioned nor presented by Pettus-Brown in his

Amended Complaint . . . Thisinstant federal action is not pertaining to Pettus-Brown's current

incarceration for state Case# Bl605805 as it is currently under review by the Ohio Court of

Appeals for the First District (Cl 700712) . . . Pettus-Brown is not challenging a state

conviction; he is not challenging the imposition of post-release control (PRC).”); id. at 19 

(“Despite the Defendants’ attempt to reshape this civil action, Pettus-Brown isnot challenging

a state conviction in this action; nor is Pettus-Brown currently incarcerated as a result of

PRC.”)). But repeating a factual assertion does not make it true. Plaintiff’s current sentence 

includes a term of up to three years of post-release control, and a finding that Ohio’s postrelease control statute is unconstitutional would necessarily invalidate that portion of 

Plaintiff’s sentence. The Court, therefore, cannot grant Plaintiff relief.

Courts in this circuit have held that when a prisoner’s civil rights claim is barred 

by the Heck v. Humphrey doctrine, the appropriate course for a federal district 

court is to dismiss the claim for lack of subject matter jurisdiction pursuant to 

Fed. R. Civ. P. 12(h)(3), rather than to dismiss the complaint with prejudice as 

being frivolous, because the former course of action is not an adjudication on 
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the merits and would allow the prisoner to reassert his claims if his conviction 

or sentence is latter invalidated.

Brown v. City of Columbus, No. 2:18-CV-521, 2018 WL 3105766, at *3 (S.D. Ohio June 25, 

2018), report and recommendation adopted, No. 2:18-CV-521, 2018 WL 4654693 (S.D. Ohio 

Sept. 27, 2018) (citations, internal quotation marks, and alteration omitted) (collecting cases). 

It is, therefore, recommended that the Amended Complaint be dismissed without prejudice

for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(h)(3).

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Request (Doc. 47) is GRANTED. It is 

RECOMMENDED that the Court GRANT Defendants’ Motion (Doc. 40) and DISMISS 

without prejudice Plaintiff’s Amended Complaint.

Procedure on Objections

If any party objects to this Order and Report and Recommendation, that party may, within 

fourteen (14) 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. Failure to object to the Report and Recommendation will result in 

a waiver of the right to appeal the decision of the District Court adopting the Report and 
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Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 

947 (6th Cir. 1981). 

IT IS SO ORDERED.

Date: April 2, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE