Byerly v. DeWeese

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHEN W. BYERLY, ) Case No. 1: 19 CV 912

)

Plaintiff, )

) JUDGE SOLOMON OLIVER, JR.

v. )

)

JAMES L. DeWEESE, et al., ) MEMORANDUM OF OPINION

) AND ORDER

Defendants. )

Plaintiff’s pro se complaint arises from a 2002 conviction for aggravated murder in an

Ohio state court. As best this court can discern, Plaintiff claims that the Defendants – James

DeWeese, the judge who presided over the case in the Richland County Court of Common Pleas;

Bambi Couch-Page, who prosecuted the case; Terry Hitchman, his appointed counsel in the

matter; and Robert Whitney, whose connection to this suit is unclear – conspired together to

violate his civil rights under 42 U.S.C. § 1983 by permitting his conviction without a valid

indictment. (Doc. 1 at 4.) He seeks $10 million in compensatory and punitive damages. (Id. at

3.) Plaintiff also has moved to proceed in forma pauperis (Doc. 2); that motion is granted. For

the following reasons, Plaintiff’s complaint is dismissed.

STANDARD OF REVIEW

Pro se pleadings are held to “less stringent standards than formal pleadings drafted by

lawyers” and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per

curiam). Nevertheless, district courts are required to screen all in forma pauperis actions and

dismiss before service any action the court determines is frivolous or malicious, fails to state a

claim on which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th

Cir. 2010).

In order to state a claim for relief, a complaint must set forth “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Id. at 471 (applying the

dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007), to dismissals for failure to state a claim under §1915(e)(2)(B)).

The “allegations must be enough to raise a right to relief above the speculative level . . . .”

Twombly, 550 U.S. at 555. And they must be sufficient to give defendants “fair notice of what

[the plaintiff’s] claims are and the grounds upon which they rest.” Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 514 (2002).

DISCUSSION

To establish a violation under § 1983, a plaintiff must show that a person acting under

color of state law deprived him or her of rights, privileges, or immunities secured by the

Constitution or laws of the United States. 42 U.S.C. § 1983; see also Parratt v. Taylor, 451 U.S.

527, 535 (1981). Here, Plaintiff has failed to meet this burden, and his complaint must be

dismissed for three reasons.

A. Each Defendant is Subject to Dismissal

First, none of the Defendants is individually liable. Two of them, former Richland

County Common Pleas Court Judge James DeWeese and former Richland County Prosecutor

Bambi Couch-Page, are immune from this action. Judicial officers generally are absolutely

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immune from civil suits for money damages relating to actions taken in their judicial capacity.

E.g., Mireles v. Waco, 502 U.S. 9, 9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir.

1997). They are accorded this broad protection to ensure that the independent and impartial

exercise of their judgment in a case is not impaired by the exposure to damages by dissatisfied

litigants. Barnes, 105 F.3d at 1115. For this reason, absolute immunity is overcome only in two

situations: (1) when the conduct alleged is performed at a time when the defendant is not acting

as a judge; or (2) when the conduct alleged, although judicial in nature, is taken in complete

absence of all subject matter jurisdiction of the court over which he or she presides. Mireles, 502

U.S. at 11-12; Barnes, 105 F.3d at 1116. A judge will be not deprived of immunity even if the

action at issue was performed in error, done maliciously, or was in excess of his or her authority.

Stump v. Sparkman, 435 U.S. 349, 356 (1978). Neither exception to judicial immunity applies

here, and Defendant DeWeese is immune from Plaintiff’s claims against him.

Similarly, prosecutors are entitled to absolute immunity from damages for initiating a

prosecution and presenting the state’s case. E.g., Imbler v. Pachtman, 424 U.S. 409, 431 (1976);

Pusey v. Youngstown, 11 F.3d 652, 658 (6th Cir. 1993). A prosecutor must exercise his or her

best professional judgment both in deciding which suits to bring and in prosecuting them in

court. Imbler, 424 U.S. at 424. This duty could not properly be performed if the prosecutor is

constrained in making every decision by the potential consequences of personal liability in a suit

for damages. Id. at 424-25. These suits could be expected with some frequency, for a defendant

often will transform his resentment at being prosecuted into the ascription of improper and

malicious actions to the state’s advocate. Id. at 425. Defendant Couch-Page, therefore, also is

immune from this suit.

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Plaintiff’s sole allegation against Defendant Hitchman, his appointed counsel in the 2002

case, is that he failed to object to the allegedly defective indictment. Generally, however, to be

considered to have acted “under color of state law” for purposes of § 1983, a person must be a

state or local government official or employee. A private party may be found to have acted under

color of state law only when the party “acted together with or . . . obtained significant aid from

state officials” and did so to such a degree that its actions may properly be characterized as “state

action.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). An individual also may be

considered a state actor if he or she exercises powers traditionally reserved to a state. Jackson v.

Metropolitan Edison Co., 419 U.S. 345, 352 (1974). Plaintiff’s only specific allegation against

Hitchman –that he failed to object to the indictment – does not support his assertion that

Hitchman conspired with DeWeese or Couch-Page to convict him under an invalid indictment or

otherwise reasonably suggest that he acted “under color of state law.” Hitchman, too, is

dismissed.

And Defendant Whitney must be dismissed because Plaintiff does not assert any

allegations against him whatsoever. A plaintiff cannot establish the liability of any defendant

absent a clear showing that the defendant was personally involved in the activities that form the

basis of the alleged unconstitutional behavior. See, e.g., Rizzo v. Goode, 423 U.S. 362, 371

(1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995).

B. Plaintiff’s Complaint Fails to State a Plausible Constitutional Claim

under § 1983

The complaint also must be dismissed because it fails to allege any plausible

constitutional claim upon which Plaintiff may be granted relief under § 1983. First, a plaintiff

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cannot bring a § 1983 action if a ruling on his claims would necessarily imply the invalidity of

his conviction, unless his conviction has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a

writ of habeas corpus. Heck v. Humphry, 512 U.S. 477, 486-87 (1994). “This ensures that

habeas corpus remains the exclusive remedy for criminal defendants who have not obtained a

favorable termination in their criminal proceedings and does not allow duplicative, collateral

attack of convictions or sentences through § 1983 actions.” S.E. v. Grant Cty. Bd. of Educ., 544

F.3d 633, 637 (6th Cir. 2008). Plaintiff does not allege that his 2002 case has been overturned or

called into question through other processes. Therefore, to the extent that Plaintiff alleges that

the Richland County Court of Common Please should have set aside the 2002 conviction because

of an allegedly invalid indictment, his § 1983 claims are barred by Heck.

Second, it is well settled that there is no federal constitutional right to an indictment in

state criminal proceedings. See, e.g., Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984) (citing

Brazenberg v. Hayes, 408 U.S. 665 (1972)). Indeed, “the Constitutional does not require any

particular state indictment rule. In fact, it does not require an indictment at all if sufficient notice

of the charges is given in some other manner.” Id. Plaintiff does not allege that he did not

receive notice of, or did not understand the basis for, the charges against him in his 2002 criminal

case. His assertions regarding the allegedly defective indictment, therefore, do not state plausible

constitutional claims under § 1983.

C. Plaintiff's Claims are Time-Barred

Finally, Plaintiff’s complaint must be dismissed because it is clear on its face that the

statute of limitations on Plaintiff’s claims expired long before he filed this action. There is a

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two-year statute of limitations on claims raised under § 1983. See Wilson v. Garcia, 471 U.S.

261, 275-276 (1985) (holding that federal courts must apply the state statute of limitations for

personal injury actions to § 1983 claims); Browning v. Pendleton, 869 F.2d 989, 991 (6th Cir.

1989) (Ohio's two-year statute of limitations for personal injury claims applies to § 1983 actions).

Plaintiff alleges the constitutional violations at issue here occurred in 2002. Yet he did

not file this complaint until April 23, 2019, several years after the two-year limitations period

expired on his claims. Plaintiff’s claims, therefore, are time-barred, and the complaint must be

dismissed for that reason as well. See Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL

789385, at *1 (6th Cir. Oct. 30, 1998) (affirming sua sponte dismissal of pro se §1983 action

filed after two-year statute of limitations for bringing such an action had expired).

CONCLUSION

Accordingly, Plaintiff’s complaint is dismissed under 28 U.S.C. § 1915(e)(2)(B) as

time-barred and for failure to state a claim upon which relief may be granted. This court further

certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken

in good faith.

IT IS SO ORDERED.

/s/ Solomon Oliver, Jr.

SOLOMON OLIVER, JR.

UNITED STATES DISTRICT JUDGE

September 13, 2019

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