Opinion
5:23-cv-00468-FL
01-26-2024
JEREMY GERALD Plaintiff, v. TAMMY O'BRIEN and OHIO ADULT PAROLE AUTHORITY, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court on the application by plaintiff Jeremy Gerald (“plaintiff”) to proceed in forma pauperis [D.E. 2] pursuant to 28 U.S.C. § 1915(a)(1) (“application”) and for a frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B), respectively. These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), respectively. The court finds that plaintiff has demonstrated appropriate evidence of inability to pay the required court costs, and the application to proceed in forma pauperis will be ALLOWED. However, for the reasons set forth below, it is RECOMMENDED that plaintiff's complaint be DISMISSED for lack of jurisdiction, and it is further RECOMMENDED that even if the court had jurisdiction, that the complaint be DISMISSED as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). The court has reviewed plaintiff's application and finds that he has adequately demonstrated his inability to prepay the required court costs. His application to proceed in forma pauperis [D.E. 2] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. PLAINTIFF'S ALLEGATIONS AND CLAIMS
Plaintiff, a resident of North Carolina, brings this action against two named defendants (“defendants”) Tammy O'Brien, Judge in the Common Pleas Court of Summit County, Ohio (“Judge O'Brien”) and the Ohio Adult Parole Authority, asserting claims that arise from plaintiff's conviction of crimes in the state of Ohio, and his related criminal proceedings, incarceration, and Post Release Control (“PRC”). See generally Compl. [D.E. 1]. Plaintiff seeks “an injunction or declaratory judgment against the [d]efendants” and asserts that the court has jurisdiction pursuant to 42 U.S.C. § 1983 and Pulliam v. Allen, 466 U.S. 522 (1984). Compl. [D.E. 1] at 1.
Plaintiff's nine-page complaint [D.E. 1] is accompanied by multiple exhibits ([D.E. 1-1] to [D.E. 1-7]) including portions of Ohio criminal procedural rules and statutes ([DEs-1-1; 1-3; 16]); plaintiff's “violation notice” and “PRC Result Notifications”; documents from the Ohio Department of Rehabilitation and Correction and its website ([DEs-1-2; 1-5); and two court documents from plaintiff's criminal case in Ohio, a nunc-pro-tunc order [D.E. 1-4] and a defendant's voluntary waiver of right to counsel form [D.E. 1-7].
Plaintiff alleges a long list of grievances against numerous individuals and entities in his complaint, as well as against numerous aspects of Ohio's criminal justice system, including:
1) The lack of a state recognized mailbox rule
2) The direct and clear prohibition for the incarcerated to benefit from the state's law under the Public Records Request R.C. 149.01 et seq.
3) The creation of a procedure which allows defense counsel to withhold disclosure of Discovery to a defendant and label it ‘Counsel only'.
4) The persistence of law enforcement to redundantly charge a defendant
duplicitously in spite of a statute against ‘shotgun offenses/convictions'
5) The lack of a state constitutional counterpart to the 14th Amendment to the U.S. Constitution making discrimination rampant and Due Process a scarcity.Compl. [D.E. 1] at 1.
Ultimately, the core of plaintiff's instant claims appears to be the circumstances and process underlying a pending state arrest warrant issued in Summit County, Ohio, as a result of plaintiff's alleged violation of his PRC. In sum, plaintiff alleges that while serving a six and a half year jail sentence imposed by Judge O'Brien following his August 2016 conviction in Ohio, Judge O'Brien improperly imposed a term of PRC by means of a nunc-pro-tunc order [D.E. 1-4] filed on June 27, 2021 (Compl. [D.E. 1] at 7; [D.E. 1-4]). Plaintiff contends that this court should, therefore, issue an order “directing the [d]efendants to remove the warrant issued against the [p]laintiff[,]” as the pending state arrest warrant is for his violation of the improperly imposed PRC. See Compl. [D.E. 1] at 7-9. Plaintiff states that he “is not disputing the existence of a warrant, he is only disputing the underlying process which lead to the warrant which runs afoul of the 14th Amendment's prohibition against unequal application of law.” Compl. [D.E. 1] at 9.
Plaintiff alleges, in his complaint, that his arrest in 2016 arose from his:
having the audacity to travel on the public roads of Ohio - as a black in a predominantly white neighborhood (Peninsula, OH) and to comply with a racist traffic stop; refus[ing] to cooperate with an investigation by not only asking for his lawyer but in response to police questioning “Why aren't there any black officers in your police department?”Id. at 2. Plaintiff's counsel then tried to “encourage/trick” plaintiff into waiving his preliminary hearing, and plaintiff decided to proceed pro se when his counsel refused to cross-examine the state's witness. Id. At his Faretta hearing on January 8, 2016, Judge O'Brien failed to discuss whether plaintiff's sentences could be merged, and, further, plaintiff's waiver form did not include “any possibility of a period of PRC supervision upon release.” Id. On January 21, 2016, plaintiff submitted a motion to Judge O'Brien complaining about various conditions of his incarceration, including, lack of access to writing materials and Islamic services; “unreasonable force”; inadequate food options in disciplinary confinement and otherwise; “[a] reviewable disciplinary process”; inadequate recreation space, phone options and climate control; as well as “14 hours per day lock-down status.” Id. at 3. Judge O'Brien allegedly dismissed all of plaintiff's complaints, except for one relating to insufficient writing materials, as “not proper before her court.” Id.
Plaintiff alleged that he rejected the state's plea deal that was offered to him just minutes before a hearing because he felt “like he was being bullied into a plea with the jail conditions.” Id. at 3-4. Instead, plaintiff made an oral motion for bond reduction on May 2, 2016, which Judge O'Brien denied. Id. at 4.
Plaintiff proceeded to a jury trial in August 2016, at which he was acquitted on an assault count and one count of receiving stolen property, but was found guilty on all remaining charges. Id. He was sentenced by Judge O'Brien to six and a half years in prison. Id. Plaintiff alleges that he “did not argue for merger or PRC dismissal as he was not made aware of merger or PRC laws or given notice at his Faretta hearing.” Id.
Plaintiff was appointed a new lawyer on appeal, however this lawyer asked to be removed from representing plaintiff, because counsel did not agree with plaintiff's appeal strategy. Id. While Judge O'Brien approved the counsel's request to be removed from representing plaintiff on September 2, 2016, plaintiff alleges that he was not informed of such. Id. Plaintiff alleges that he mailed his pro se notice of appeal to the Summit County Clerk within 30 days, but the Summit County Clerk refused to timely file it, leading to plaintiff's initial direct appeal being denied for lack of jurisdiction. Id. at 5.
Plaintiff's complaint further summarizes various aspects of his attempts to secure post-conviction relief, but as none of these circumstances relate to the two named defendants, the undersigned will not discuss them further. Id. at 5-7.
On July 26, 2021, Judge O'Brien allegedly issued a nunc-pro-tunc order modifying plaintiff's sentence to require plaintiff to complete a period of PRC upon release. Id. at 7; Compl. [D.E. 1-4] at 2. Plaintiff did not receive a copy of this order, but learned about it through an Ohio Department of Rehabilitation and Corrections computer system kiosk. Compl. [D.E. 1] at 7. Plaintiff alleges that this nunc-pro-tunc order was issued in response to plaintiff pursuing protective custody status. Id. Plaintiff also received a notice from the Ohio Adult Parole Authority that he was required to complete three years of PRC upon his release. Id. Plaintiff contends that his sentence did not qualify for a PRC under Ohio Revised Criminal Code § 2967.28 (“R.C. 2967.28”). Id.
Plaintiff alleges that his official release date was May 5, 2021, and that he left Ohio on that date and returned to his state of origin, North Carolina. Id. at 9. Since that time, the Ohio Adult Parole Authority allegedly sought and received a warrant for plaintiff's arrest, but did not seek plaintiff's extradition. Id. Plaintiff contends that the underlying process which lead to the warrant “runs afoul of the 14th Amendment's prohibition against unequal application of law.” Id.
Plaintiff specifically seeks the following relief in this action:
1. That an order be issued directing the [d]efendants to remove the warrant issued against the [p]laintiff.
2. That the [d]efendant[s] pay all costs associated with this action.
3. That the State of Ohio be directed to revise its interpretation of the rights of a pro se litigant to be consistent with the 6th and 14th Amendments of the U.S. Constitution.Id. at 8.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Criminal Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
The court may also sua sponte raise the issue of personal jurisdiction when conducting a frivolity review under § 1915. See Hall v. Herman, 896 F.Supp. 588 (N.D.W.Va. 1995).
IV. DISCUSSION
Having found that plaintiff is financially eligible to proceed in forma pauperis, the court must now undertake a frivolity review of this case, pursuant to 28 U.S.C. § 1915(e)(2)(B).
A. No personal jurisdiction
This court has dismissed cases in frivolity reviews due to lack of personal jurisdiction over a defendant. See, e.g., Witham v. Boyle, No. 5:19-CV-260-BR, 2019 WL 5483723, at *1 (E.D. N.C. July 30, 2019), report and recommendation adopted, No. 5:19-CV-260-BR, 2019 WL 5444793 (E.D. N.C. Oct. 23, 2019). To satisfy due process, a defendant outside the forum state must “have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). “First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and second, the exercise of personal jurisdiction must also comport with Fourteenth Amendment due process requirements.” Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). North Carolina's long-arm statute is construed to extend jurisdiction over nonresident defendants to the full extent permitted by the Due Process Clause. Id. (citing Century Data Systems, Inc. v. McDonald, 109 N.C.App. 425, 428 S.E.2d 190, 191 (1993)). There are two types of extraterritorial personal jurisdiction: specific and general. ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir. 2002).
Jurisdiction is specific if a defendant's contacts with the state are also the basis for the suit. Id. at 712. “In determining specific jurisdiction, we consider (1) the extent to which the defendant ‘purposefully avail[ed]' itself of the privilege of conducting activities in the State; (2) whether the plaintiffs' claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally ‘reasonable.'” Id. (quoting Christian Science Bd. of Dirs. of the First Church of Christ, Scientist, 259 F.3d at 215); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 476-77 (1985).
Jurisdiction is general if a defendant's contacts with the forum state are not also the basis for suit and jurisdiction arises from the defendant's general, more persistent, but unrelated contacts with the state. Id. “To establish general jurisdiction over the defendant, the defendant's activities in the State must have been ‘continuous and systematic,' a more demanding standard than is necessary for establishing specific jurisdiction.” Id. (citing Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414 & n. 9 (1984)).
Relevant contacts with the forum state for purposes of personal jurisdiction can include dealings with a corporation having a place of business in the forum state or a corporation organized under the laws of the forum state. See, e.g., Hardee's Food Systems, Inc. v. Rosenblatt, 44 F.Supp.2d 767, 769 (E.D. N.C. 1998). In addition, “the place that the plaintiff feels the alleged injury is plainly relevant to the inquiry [although] it must ultimately be accompanied by the defendant's own contacts with the state.” ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir. 1997) (discussing Calder v. Jones, 465 U.S. 783, 789 (1984)).
Plaintiff has not alleged any facts to show that defendants conducted any activity in or directed at North Carolina or that defendants have any “continuous and systematic” contacts with the state. ALS Scan, Inc., 293 F.3d at 711-12 (citing Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 414 & n. 9). Plaintiff is not even alleging that he faces danger of extradition from North Carolina to Ohio, but rather that he faces risk of arrest if he ever returns to Ohio. Compl. [D.E. 1] at 9 (alleging that Ohio is not seeking extradition of plaintiff, but “it is obvious if plaintiff was driving a truck in Ohio and was stopped that he would be arrested”). In short, “[t]he complaint is bare of any facts establishing the ‘minimum contacts' necessary for defendants [to] have with this forum state so that the exercise of personal jurisdiction comports with due process.” Witham v. New York, No. 5:17-CV-171-BO, 2017 WL 4484237, at *2 (E.D. N.C. May 31, 2017), aff'd sub nom. Witham v. DEC New York, 699 Fed.Appx. 233 (4th Cir. 2017) (quoting International Shoe Co., 326 U.S. at 316).
Accordingly, plaintiff has failed to show that the court may exercise general or specific jurisdiction over defendants, and the undersigned RECOMMENDS that this court DISMISS plaintiff's complaint.
B. Failure to state a claim
Even if this court had personal jurisdiction over the defendants, plaintiff's claims would still fail for the reasons discussed below.
Plaintiff requests that: (i) “an order be issued directing . . . [d]efendants to remove the warrant issued against the [p]laintiff”; (ii) “[d]efendant[s] pay all costs associated with this action”; and (iii) “the State of Ohio be directed to revise its interpretation of the rights of a pro se litigant to be consistent with the 6th and 14th Amendments of the U.S. Constitution.” Compl. [D.E. 1] at 8.
1. Validity of warrant and PRC
With respect to plaintiff's initial claim for relief, challenges to the validity of an arrest warrant are not clearly barred by the Rooker-Feldman doctrine. Marshall v. Marshall, 523 F.Supp.3d 802, 833 (E.D. Va. 2021) (“[I]n the . . . context of search and arrest warrants, the Rooker-Feldman doctrine does not act as a bar to defendants wishing to assert constitutional claims based on state-issued warrants). However, here, plaintiff's challenges to his arrest warrant appear to be exclusively based on his contentions that his PRC was not in accordance with due process. See Compl. [D.E. 1] at 9 (“Plaintiff is not disputing the existence of a warrant, he is only disputing the underlying process which lead to the warrant which runs afoul of the 14th Amendment's prohibition against unequal application of law.”).
The specifics of plaintiff's claims are similar to those in French v. Chambers-Smith where a plaintiff in Ohio also challenged the constitutionality of his PRC under R.C. 2967.28. No. 2:22-CV-2760, 2023 WL 2615835, at *2 (S.D. Ohio Mar. 23, 2023), report and recommendation adopted, No. 2:22-CV-2760, 2023 WL 5029176 (S.D. Ohio Aug. 8, 2023) (“Plaintiff claims that the common pleas court judge in his case failed to properly notify him of or otherwise impose post-release control . . . [and] that failure to properly journalize the post-release control advisements resulted in fraud and wrongful imprisonment.”)
That court found that “to the extent that [the p]laintiff seeks relief in the form of termination of post release control and/or release (the only relief explicitly stated in the complaint), his sole remedy is a petition for a writ of habeas corpus after exhausting his state court remedies.” Id. (citing Williams v. Ohio, No. 1:21-cv-1018, 2021 WL 4060383, at *2 (N.D. Ohio Sept. 7, 2021) (“To the extent [p]laintiff seeks release from the post release control portion of his sentence, he cannot proceed with a civil rights action. When the Plaintiff is essentially challenging the validity of his sentence, his sole remedy is habeas corpus.”); see also Thoerig v. Lightfoot, No. 5:22-cv-1565, 2022 WL 17067463, at *3 (N.D. Ohio Nov. 17, 2022) (“Because [Plaintiff] is challenging the post release control portion of his sentence and is seeking to have that portion of his sentence terminated, his sole federal remedy is a writ of habeas corpus.”).
The undersigned finds the reasoning in the above cases to be persuasive. Plaintiff's PRC places significant restrictions on his freedoms and is therefore properly considered a part of his sentence. See United States v. Toolasprashad, No. 3:85-CR-45-BO-1, 2012 WL 482305, at *1 (E.D. N.C. Feb. 14, 2012), aff'd, 474 Fed.Appx. 408 (4th Cir. 2012) (“‘[T]he federal courts have held that the conditions of parole and probation sufficiently restrain the individual to constitute . . . custody.'” (quoting Coronado v. U.S. Bd. of Parole, 540 F.2d 216, 217 (5th Cir.1976))).
Because plaintiff is essentially contesting the length of his sentence, including his P.R.C, the proper legal mechanism is a habeas corpus petition, not a civil action under 42 U.S.C. § 1983. El-Bey v. North Carolina, No. 5:11-CV-00423-FL, 2012 WL 368374, at *2 (E.D. N.C. Jan. 9, 2012), report and recommendation adopted, No. 5:11-CV-423-FL, 2012 WL 368369 (E.D. N.C. Feb. 3, 2012) (“With respect to [plaintiff's] request for early termination of his probation, habeas corpus is the exclusive remedy) (citing United States v. Pregent, 190 F.3d 279, 283 (4th Cir.1999)). Additionally, under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court held that a convicted criminal defendant cannot bring a § 1983 action that would “necessarily imply the invalidity of his conviction or sentence” unless he proves that his “conviction or sentence has already been invalidated.” Heck, 512 U.S. at 486-87, 114 S.Ct. This rationale also applies “in a situation [such as the case here] where a criminal defendant seeks injunctive relief that necessarily implies the invalidity of his conviction.” Harvey v. Horan, 278 F.3d 370, 375 (4th Cir. 2002), abrogated on other grounds by Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011); see also Eubank v. Ghee, 202 F.3d 268 (6th Cir. 1999) (“The holding in Heck applies regardless of whether the plaintiff seeks injunctive or monetary relief.” (citing Heck, 512 U.S. at 487)).
Additionally, a petitioner must exhaust the available state remedies as “a condition precedent to a federal [habeas corpus] action.” El-Bey, 2012 WL 368374, at *2 (citing Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Plaintiff's action is brought under 42 U.S.C. § 1983, not a habeas corpus petition. Additionally, plaintiff has not shown that he has exhausted state court remedies with respect to the circumstances that gave rise to his allegedly invalid period of PRC. Accordingly, the undersigned RECOMMENDS that plaintiff's first request for relief be DISMISSED.
2. Request for costs associated with this action
Plaintiff references Pulliam ostensibly in support of his request for all costs associated with this action. Compl. [D.E. 1] at 1, 8. In Pulliam, the United States Supreme Court found that costs, including reasonable attorney's fees, incurred in combatting a judge's unconstitutional practice of jailing defendants who had failed to meet bail imposed in non-jailable misdemeanors were not barred by judicial immunity. 466 U.S. 522, 524-25, 104 S.Ct. 1970, 1972, 80 L.Ed.2d 565 (1984)). However, here, plaintiff has alleged that he proceeded pro se or had counsel appointed for him in his criminal proceedings. See Compl. [D.E. 1] at 2, 4-5. Moreover, in the current action, he is proceeding pro se, and the court has granted his application to proceed in forma pauperis [D.E. 2], as discussed above. Even if plaintiff's action were not frivolous, plaintiff has not pointed to any costs that he has incurred or is expected to incur in this action. Accordingly, plaintiff's second claim for relief should be DISMISSED for failure to state a claim.
3. Directing the Ohio state government to revise its legislation
As his final request for relief, plaintiff requests “[t]hat the State of Ohio be directed to revise its interpretation of the rights of a pro se litigant to be consistent with the 6th and 14th Amendments of the U.S. Constitution.” Compl. [D.E. 1] at 8. Plaintiff is essentially asking for this court to issue broad legislative guidance to another state. As discussed above, there are available mechanisms, including habeas corpus petitions, for challenging the constitutionality of laws enacted by a state, including with respect to allegedly unconstitutional criminal sentences. However, courts are tasked with interpreting laws made by legislatures, not in creating them. See Manikowske v. N. Dakota Workmen's Comp. Bureau, 338 N.W.2d 823, 825 (N.D. 1983) (“The justice, wisdom, necessity, utility and expediency of legislation are questions for legislative, and not for judicial determination.”) (citations omitted).
For this reason, plaintiff's third claim for relief should also be DISMISSED for failure to state a claim.
V. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED for lack of jurisdiction. For the reasons also set forth above, even if the court had jurisdiction, the undersigned recommends that the complaint be dismissed as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until February 12, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).