Opinion
Civil Action 2:14-cv-453
06-24-2014
OTIS LEE RODGERS, Petitioner, v. STATE OF OHIO, et al., Respondents.
Judge Frost
Magistrate Judge King
OPINION & ORDER
Petitioner, who is currently incarcerated in California, filed an action in the United States District Court for the Central District of California asserting claims for damages under 42 U.S.C. § 1983 in connection with a detainer lodged against him by the Ohio Adult Parole Authority. ECF 1. The action was thereafter transferred to the Eastern District of California, Order, ECF 4, and petitioner's application for leave to proceed in forma pauperis was granted. Order, ECF 8. Petitioner's request to transfer the case to this Court, ECF 23, was also granted. Order, ECF 24.
On May 21, 2014, the United States Magistrate Judge recommended that petitioner's claims for monetary damages under 42 U.S.C. § 1983 be dismissed. Report and Recommendation, ECF 27 (citing Heck v. Humphrey, 512 U.S. 477 (1994)). The Magistrate Judge also commented, "[S]hould plaintiff decide to pursue in this action a claim for habeas corpus relief under 28 U.S.C. § 2254, he [should] file a petition for a writ of habeas corpus consistent with the provisions of Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. Id. at PAGEID #184. Petitioner thereafter filed a Petition for a Writ of Habeas Corpus, ECF 32. This matter is now before the Court on petitioner's objection to the Report and Recommendation. Objection, ECF 33. The Court will consider the matter de novo. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Petitioner asks that he be permitted to pursue in this action claims under both 42 U.S.C. § 1983 and 28 U.S.C. § 2254. He does not appear to disagree with the Magistrate Judge's conclusion that this Court lacks subject matter jurisdiction over his claims under § 1983 because he has not yet successfully challenged the parole detainer through habeas corpus proceedings or other appropriate means. See Munofo v. Alexander, 47 Fed. Appx. 329 (6th Cir. Sept. 20 2002). Rather, petitioner appears to base his objection entirely on the fact that he was assessed a $350.00 filing fee when his application for leave to proceed in forma pauperis was granted.
It was petitioner who filed a civil complaint asserting claims under § 1983. The Prison Litigation Reform Act ("PLRA") requires that a prisoner who asserts such claims be assessed the full filing fee. 28 U.S.C. § 1915(b). That is true even where, as here, the Court concludes that the claims originally asserted cannot proceed. The fact that petitioner was permitted to transform this action into a habeas corpus action under § 2254, which is not governed by the PLRA, see Smith v. Angelone, 111 F.3d 1126, 1130 (4th Cir. 1997)(and cases cited therein), does not require that this Court exercise jurisdiction over plaintiff's claims under § 1983.
Having considered de novo petitioner's objections and the record in this action, the Court DENIES petitioner's objections to the Report and Recommendation. The Report and Recommendation, ECF 27, is ADOPTED AND AFFIRMED. Petitioner's claims under 42 U.S.C. § 1983 are DISMISSED. The action may proceed as an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the reasons set forth above and in the Report and Recommendation, ECF 27, the Court hereby CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Opinion & Order is not taken in good faith.
IT IS SO ORDERED.
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GREGORY L. FROST
UNITED STATES DISTRICT JUDGE