that Plaintiff filed after the Report and Recommendation issued, in which Plaintiff maintains that
he is being detained in a name other than his own, and therefore Defendants are “failing to
recognize the legal existence and rights of Sakhu Maa Tem Heru.” (Supp. at 3, ECF No. 9).

First, with regard to Plaintiff's claims under the Treaty of Guadalupe Hidalgo, the
Magistrate Judge accurately assessed that they are premised on his sovereign citizen beliefs.
Further, she applied the facts presented by Plaintiff to the appropriate law and correctly
concluded as follows:

While Plaintiff’s precise claims pursuant to the treaty are unclear, Plaintiff's
main argument seems to be that Defendants do not have “the legal authority to
continue to detain Plaintiff.” [(citing Compl.] at 8, 10). But Plaintiff's claims
regarding his ancestry do not place him beyond the jurisdiction of this Court or
preclude his underlying conviction and detention. See U.S. v, Amir, 2010 WL
5014451 (N.D. Ohio Dec. 3, 2010) (rejecting sovereign immunity argument as
frivolous and “warrant[ing] no further discussion.”). See also Payne v. Kida, 2016
WL 491847 at *4 (E.D. Mich. Jan. 6, 2016) (noting that sovereign citizen
arguments “have been recognized as frivolous and a waste of court Tesources.”)
(citations omitted). Consequently, the Court concludes that Plaintiffs sovereign
citizenship claims concerning the Treaty of Guadalupe Hidalgo are frivolous.

(Report and Recommendation at 4, ECF No. 5.) In his Objection, Plaintiff does nothing more
that disagree with the Magistrate Judge’s assessment and then he reiterates the allegations he
made in the Complaint.

Second, as to Plaintiff's conviction and habeas proceedings, he specifically alleged “that
Defendants violated Plaintiff's Fifth, Sixth, and Fourteenth Amendment tights by the ongoing
denial of Plaintiff's right not to be held to answer in punishment for a crime absent a lawful
Indictment found by proper Grand Jury.” (Compl. at 9-10, ECF No. 1-1.) Inher Report and
Recommendation, the Magistrate Judge appropriately framed the issue and reached the proper

conclusion:

To the extent that Plaintiff may be attempting to challenge the lawfulness
of his state court conviction, he may not do so in this civil rights case. As the United


“Furthermore, Ohio Court[s] have held that the Ohio Administrative Code sections

outlining prison grievance procedures do not confer a legal right on inmates.” Jd,

(citing State ex rel. Wickensimer v. Bartleson, No. L-09-1049, 2009 WL 5174167,

at *3 (Ohio Ct. App. Dec. 28, 2009)). Accordingly, since a violation of a

constitutional right is required to obtain relief under § 1983, and there is no

constitutional right to an effective grievance procedure, Plaintiff has failed to state

a claim to relief. See Walker v. Michigan Dep't of Corr., 128 F. App’x 441, 445

(6th Cir. 2005).

(Report and Recommendation at 5-7, ECF No. 5.)

In his Objection, Plaintiff offers no argument to call into question the Magistrate Judge’s
recommendation related to dismissal of his claim alleging constitutional injuries. The Court
finds the Magistrate Judge’s assessment of these claims well-reasoned and her conclusion
correct.

Iv.

Based on the foregoing, the Court OVERRULES Plaintiff's Objection (ECF No. 10),
ADOPTS the Report and Recommendation (ECF No. 5), and DISMISSES this action pursuant
to 28 U.S.C. § 1915(c)(2) for failure to state a claim and frivolousness. The Clerk is

DIRECTED to ENTER JUDGMENT accordingly.

IT IS SO ORDERED.
4-15-4014 Vaal
DATE EDMURD). SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE


findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the
Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2). “Dismissal of a complaint for the failure to state a claim on which relief
may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief” Brown v. Bargery, 207 F.3d
863, 867 (6th Cir. 2000). The Court must “construe the complaint in the light most favorable to
the plaintiff [and] accept all well-pleaded factual allegations as true.” Trzebuckowski v. City of
Cleveland, 319 F.3d 853, 855 (6th Cir. 2003).

Further, the Court holds pleadings by a pro se litigant “to less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), and may not
uphold the dismissal of such a pleading “simply because the court finds the plaintiff's allegations
unlikely.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). A pro se litigant’s pleadings must be,
and in this instance are, construed liberally. Haines, 404 U.S. at 520-21.

Ill.

Having conducted a de novo review, the Court finds Plaintiff's objections to the Report
and Recommendation to be unpersuasive. As did the Magistrate Judge, this Court finds
Plaintiff's Complaint difficult to decipher. The Court agrees with the Magistrate Judge that the
Complaint primarily involves the following three issues: (1) Plaintiff's status and rights under
Articles 8—9 of the Treaty of Guadalupe Hidalgo; (2) various issues related to Plaintiff's
underlying conviction and habeas proceedings; and (3) alleged injuries committed by state

officials against Plaintiff while in custody. The Court has additionally reviewed the Supplement


States Supreme Court made clear in Heck v. Humphrey, 512 U.S. 477, 480 (1994),
“habeas corpus is the exclusive remedy for a state prisoner who challenges the fact
or duration of his confinement and seeks immediate or speedier release... .”
Indeed, much of the Complaint alleges wrongful detention and accordingly cannot
be brought in a civil rights action. (See, e.g., Doc. 1-1 at 4 (alleging “unlawful
confinement”); id. at 9 (alleging incarceration in violation of the U.S. Constitution);
id. at 10 (alleging incarceration in violation of “Rights pursuant to Customary
International law”)). Further, as the Northern District of Ohio noted when
dismissing much of Plaintiff's previous complaint, allegations concerning wrongful
detention cannot proceed under §§ 1983 or 1985 unless and until Plaintiff's
conviction has been “reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal, or have otherwise been called into question by
a federal court’s issuance of a writ of habeas corpus.” Lanier v. Bryant, 332 F.3d
999, 1005-06 (6th Cir. 2003) (citing Heck, 512 U.S. at 480). Thus, challenges to
the fact or duration of one’s confinement, ie., challenges falling “within the
traditional scope of habeas corpus,” are not cognizable under either §§ 1983
or1985. Lanier, 332 F.3d at 1005-06 (extending Heck to claims under § 1985). See
also Thomas v. Eby,481 F.23d 434, 438 (6th Cir. 2007). In sum, Plaintiff's claims
related to his confinement are Heck-barred.

(Report and Recommendation at 4-5, ECF No. 5.)

In his Objection and Supplement, Plaintiff contends that his “arbitrary detention” can be
proven from this Court’s docket where mail was returned because he filed this lawsuit under a
name that is not his legal name. (Supp. at 2, 4, ECF No. 9; Obj. at 3, ECF No. 10.) This
argument was addressed by this Court in Heru J. In Heru 1, Plaintiff alleged that the state court
in which he was convicted lacked jurisdiction over him in the underlying criminal case because
there was no case pending against him using his proper name, Saku Maa Tem Heru. As this
Court explained, the “argument appears at least in part to relate to his name change from Sekou
Muata Imani (the name under which he was prosecuted) to Saku Maa Tem Heru, his indigenous
Native American name.” (Heru 1, Report and Recommendation at 4, ECF No. 13; adopted at
ECF No. 26.) However, the Magistrate Judge explained that, “[d]espite Plaintiffs arguments to
the contrary, Judge Lioi examined his claims and found them to constitute an improper attack on

his conviction and subject to dismissal under 28 U.S.C. § 1915(e).” Jd. In Plaintiff's Objection


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SAKHU MAA HERU,

Plaintiff, Case No. 2:18-cv-686

CHIEF JUDGE EDMUND A. SARGUS, JR.

v. Magistrate Judge Kimberly A. Jolson
STATE OF OHIO, et al.,

Defendants,

OPINION AND ORDER

Plaintiff, a state inmate who is proceeding without the assistance of counsel, brought this
action against the State of Ohio, the Ohio Supreme Court, Judge John A. Vavra of Belmont
County Common Pleas Court, Warden Gray, of Belmont Correctional Institution, the Ohio
Department of Rehabilitation and Correction, the Tuscarawas County Common Pleas Court, and
various unnamed state officials. (ECF No. 1-1.) The Magistrate Judge issued a Report and
Recommendation in which she granted Plaintiff's Motion for Leave to Proceed In Forma
Pauperis and recommended dismissal for failure to state a claim on which relief. may be granted
on two of Plaintiff's claims and dismissal for frivolousness on the other claim. This matter is
before the Court for consideration of the Report and Recommendation (ECF No. 5), Plaintiff's
Supplemental Pleading (ECF No. 9), and Plaintiff's Objection to the Report and
Recommendation (ECF No. 10). For the reasons that follow, the Court OVERRULES
Plaintiff's Objection, ADOPTS the Report and Recommendation, and DISMISSES this action

pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim and frivolousness.


under consideration here, he only repeats his arguments that this Court, and the Norther District
of Ohio, have already properly addressed,

Finally, in her Report and Recommendation, the Magistrate Judge addressed Plaintiff's
alleged constitutional injuries. She stated:

First, Plaintiff alleges he suffered retaliation in the form of segregated
confinement and conduct violation reports after attempting to change his name.
(oc 1-1 at 15, 17-19). He also alleges that his due process tights were violated
“by not being able to defend himself on his own behalf” as to a number of conduct
violations he received from prison officials. (/d. at 17).

Turning first to Plaintiff's retaliation claim, “(rJetaliation based upon a
prisoner’s exercise of his or her constitutional rights violates the Constitution.”
Flakes v. Brown, No. 1:16-cv-418, 2016 WL 3536671, at *11 (W.D. Mich. June
29, 2016) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en
banc). In order to set forth a First Amendment retaliation claim, a plaintiff must
establish that:

(1) he was engaged in protected conduct; (2) an adverse action was
taken against him that would deter a person of ordinary firmness
from engaging in that conduct; and (3) the adverse action was
motivated, at least in part, by the protected conduct. Id. Moreover,
a plaintiff must be able to prove that the exercise of the protected
right was a substantial or motivating factor in the defendant’s
alleged retaliatory conduct.

Id. at *11 (citing Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001)).
Even assuming Plaintiff has pled the first two tequired elements, he has not
adequately pled the third element, as he has failed to allege that his imposed
punishments were motivated, at least in part, by his attempts to change his name,
For example, Plaintiff alleges he was punished “in retaliation for exercising my
constitutional and treaty right of election” but provides no support for his
conclusory argument that his punishment was related to his efforts to change his
name. (Doc. 1-1 at 19). See Twombly, 550 U.S. at 555.

As to Plaintiff's due process claims, it appears that Plaintiff takes issue with
his inability to appeal or otherwise “defend himself” as to the numerous conduct
violation reports he received. (/d. at 17). “As this Court has recognized, however,
‘a prison inmate does not have an inherent constitutional right to an effective prison
grievance procedure.’” Pollock v. Lavender, No. 2:11-cy-00114, 2011 WL
2148584, at *6 (S.D. Ohio May 31, 2011), report and recommendation adopted,
No. 2:11-cv-00114, 2011 WL 2637329 (S.D. Ohio July 6, 2011) (quoting Israfil v,
Parks, No. 2:10-cy-132, 2010 WL 4642978, at *1 (S.D. Ohio Aug. 18, 2010)).


I

On February 6, 2017, Plaintiff initiated an action in the United States District Court for
the Northem District of Ohio, Sakhu Maa Tem Heru Ex. Rel. Sekou Mauta Imani v. State of Ohio
et al., N.D. Ohio Case No. 5:17-cv-247 (“Heru 1”). In that action, Plaintiff claimed to be “an
indigenous Native American with Olemn, Ute, Cherokee, and Blackfoot ancestry, and also
claimed “free Moorish” ancestry. (Heru 1, Compl., ECF No. 1 at 5.) He also “declared his
inalienable right as an indigenous person to a status separate and distinct from the 14th
Amendment corporate citizen.” Jd. The Honorable Sarah E. Lioi, United States District Judge
for the Northern District of Ohio, found Plaintiff's complaint and amended complaint to be
“largely incomprehensible” and “composed almost entirely of meaningless rhetoric with random
citations to various legal and non-legal sources.” Heru 1, 5:17CV00247, 2017 WL 2402461, at
*1 (N.D. Ohio June 2, 2017), appeal dismissed sub nom. Sakhu Maa Tem Heru y, State, 17-3792,
2018 WL 3648279 (6th Cir. Apr. 24, 2018).

Acknowledging the difficulty in interpreting Plaintiff's claims, Judge Lioi identified
claims related to Plaintiff's 2008 criminal conviction in the Tuscarawas County Ohio Court of
Common Pleas, including claims for genocide, denationalization, unlawful arrest, arbitrary
detention, false imprisonment, kidnaping, torture, and cruel and unusual punishment, as well as
claims under the Alien Torts Claims Act, and the First Amendment right to freedom of religion.
Having examined all claims on an initial screen under 28 U.S.C. § 1915(e), Judge Lioi dismissed
Plaintiff's claims related to his 2008 criminal conviction and his freedom of religion claims
against all Defendants except BCI Warden and Chaplain. Heru J, 2017 WL 2402461, at *3. In
her decision, Judge Lioi found the proper venue for the claims against BCI Warden and Chaplain

was in this Court and transferred those claims on July 28, 2017, Case No. 2:17-cv-658. Id.


The same month Heru 1 was transferred to this Court, Plaintiff filed a Motion for a
Preliminary Injunction, Motion for Bond, and Motion for Reconsideration of Judge Lioi’s
Opinion and Order. (Heru 1, ECF Nos. 7-9.) Magistrate Judge Kimberly A. Jolson issued a
Report and Recommendation, finding first that Plaintiff failed to provide a valid basis for
reconsidering Judge Lioi’s Opinion and Order. (Heru 1, ECF No. 13.) Judge Jolson then
reviewed Plaintiff's Motions for Preliminary Injunction and Bond and recommended denial of
both. (Heru 1, ECF No. 13.) Plaintiff filed an Objection to the Report and Recommendation
(Heru 1, ECF No. 15), and this Court overruled the Objection and Adopted the Report and
Recommendation (Heru 1, ECF No. 26).

On July 13, 2018, Plaintiff filed the instant action, making similar allegations that he
made in Heru 1. Because under our Local Rules the instant action is considered a related case to
Heru 1, Chief Judge Sargus and Magistrate Judge Jolson were also assigned to this case,
(Related Case Memo., ECF No. 3.)

On her initial review of the Complaint under 28 U.S.C. § 1915(e)(2), Judge Jolson issued
a Report and Recommendation in which she granted Plaintiffs motion for leave to proceed in
forma pauperis and recommended dismissal of two of Plaintiff's claims for failure to state a
claim on which relief may be granted and one claim for frivolousness. Plaintiff has filed an
Objection to the Report and Recommendation, which is tipe for review.

116

If a party objects within the allotted time to a Report and Recommendation, 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