Foster v. Portage County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MATTHEW S. FOSTER ) CASE NO. 5:21-cv-1983

)

PLAINTIFF, ) JUDGE SARA LIOI

)

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vs. ) MEMORANDUM OPINION

) AND ORDER

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PORTAGE COUNTY, et al. )

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DEFENDANTS. )

Pro se plaintiff Matthew S. Foster (“Foster”) filed this civil rights action under 42 U.S.C.

§ 1983 against Portage County, Portage County Public Defender Leonard Hazelett (“Hazelett”),

Attorney Don P. Mitchell (“Mitchell”), and Judge Rebecca L. Doherty (“Judge Doherty”)

(collectively, “defendants”). (Doc. No. 1.) Also before the Court is Foster’s motion to proceed in

forma pauperis (Doc. Nos. 2, 4), which the Court will grant by separate order.

For the following reasons, this action is dismissed.

I. Background

For his complaint, Foster alleges that defendants violated his constitutional rights by failing

to provide him with medical care. He also asserts a claim under Ohio Rev. Code § 2921.44 for

dereliction of duty and claims that he was tased by a police officer who is not named as a defendant

in this action. (See Doc. No. 1 at 4.1)

1 Page number references are to the consecutive page numbers assigned to each document by the Court’s electronic

filing system.

Foster’s brief complaint contains few factual allegations, and the details are difficult to

discern. It appears that all of Foster’s claims are related to his arrest by Kent Police officers on

April 22, 2019. According to the complaint, Foster “told every Kent police officer” that he could

not breathe and that he was experiencing extreme chest pain. (Id. at 4.) Foster claims that he was

in a holding cell at the Kent Police Department for twelve hours “hitting or pushing a nonworking

emergency button.” (Id. at 6). On the morning of his arraignment, Foster states that he was rushed

to the hospital where he was treated for a collapsed lung. (Id. at 3). He alleges that following his

surgery, he “had to recover in Portage County Jail” with no pain medication, “no vitals,” and no

breathing treatments. (Id. at 5). Foster states that Judge Doherty “denied Plaintiff medical doctor’s

appointment.” (Id.) Foster seeks monetary relief.

II. Discussion

A. Standard of Review

1. 28 U.S.C. § 1915(e)

Pro se pleadings are liberally construed. Boag v. MacDougall, 454 U.S. 364, 365, 102 S.

Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,

30 L. Ed. 2d 652 (1972). The Court, however, is required to dismiss an in forma pauperis action

under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, lacks an

arguable basis in law or fact, or seeks monetary relief against a defendant who is immune from

such relief. See Neitzke v. Williams, 490 U.S. 319, 327–28, 109 S. Ct. 1827, 104 L. Ed. 2d 338

(1989); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable

basis in law or fact when it is premised upon an indisputably meritless legal theory or when the

factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.

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The dismissal standard for Fed. R. Civ. P. 12(b)(6) articulated in Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S.

662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) governs dismissal for failure to state a claim under

§ 1915(e)(2)(B). Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). To state a plausible claim,

a pleading must contain a short and plain statement of the claim showing that the pleader is entitled

to relief. Iqbal, 556 U.S. at 677–78; Fed. R. Civ. P. 8(a)(2). The plaintiff is not required to include

detailed factual allegations, but he or she must provide more than an unadorned, the defendant-

unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678.

In reviewing the complaint, the Court must construe the pleading in the light most favorable

to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998) (citing

Sistrunk, 99 F.3d at 197).

2. 42 U.S.C. § 1983

Section 1983 creates a cause of action against “persons” who, under color of state law, act

to deprive a plaintiff of a constitutional right. 42 U.S.C. § 1983 (“Every person who under color

of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in equity, or other proper proceeding for

redress....”).

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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. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

Liberally construing the complaint, Foster appears to allege that the defendants violated his

constitutional rights by denying him medical treatment when he was arrested, detained, and later

incarcerated.

B. Analysis

1. Statute of limitations

As an initial matter, it appears that Foster’s § 1983 claims are barred by the statute of

limitations. As best the Court can discern, Foster’s claims accrued on or about April 22, 2019. This

action was filed on October 20, 2021. The statute of limitations for § 1983 claims brought in Ohio

is two years. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (“[W]e hold that the

appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is

contained in Ohio Rev. Code § 2305.10, which requires that actions for bodily injury be filed

within two years after their accrual.”).

To the extent that Foster’s claims are barred by the two-year statute of limitations, they are

dismissed. To the extent Foster’s claims are not time-barred, his § 1983 claims are nevertheless

subject to dismissal for the reasons that follow.

2. Judge Doherty is immune from suit

It is well established that judges are generally entitled to absolute immunity from civil suits

for money damages. Mireles v. Waco, 502 U.S. 9, 9, 112 S. Ct. 286, 116 L. Ed. 2d 9 (1991); Barnes

v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Judges are accorded this broad protection to

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ensure that the independent and impartial exercise of their judgment in a case is not impaired by

exposure to damages from actions brought by dissatisfied litigants. Barnes, 105 F.3d at 1115. For

this reason, absolute immunity is overcome only when (1) the conduct alleged is performed at a

time when the defendant is not acting as a judge; or (2) 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 not be deprived

of immunity even if the action at issue was performed in error, done maliciously, or exceeded his

or her authority. Stump v. Sparkman, 435 U.S. 349, 356, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978);

Sevier v. Turner, 742 F.2d 262, 271 (6th Cir. 1984) (merely acting in excess of authority does not

preclude immunity).

Here, Foster appears to object to Judge Doherty’s decisions regarding his detention and

custody rendered in connection with his case before her. The manner in which a judge conducts

the proceedings in her courtroom, and the decisions she renders in a case before her, are clearly

judicial actions. Foster alleges no facts plausibly suggesting that Judge Doherty’s alleged conduct

at issue was performed at a time when she was not acting as a judge or that she completely lacked

subject matter jurisdiction over Foster’s case before her. See Mireles, 502 U.S. at 11–12.

Accordingly, Judge Doherty is absolutely immune from suit, and Foster’s claims against

Judge Doherty are dismissed.

3. Attorneys Mitchell and Hazelett did not act under color of state law

Additionally, private attorney Mitchell and public defender Hazelett are not subject to suit

in a § 1983 action. Generally, to be considered to have acted “under color of state law,” the

individual must be a state or local government official or employee. Public defenders and privately

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retained defense attorneys are not “state actors” if the claim against them is based solely on the

fact that they participated in the litigation process. See Polk County v. Dodson, 454 U.S. 312, 318–

21, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981); Flagg Bros. v. Brooks, 436 U.S. 149, 155–57, 98 S.

Ct. 1729, 56 L. Ed. 2d 185 (1978); Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998). Nor does

such participation convert a private party into a co-conspirator or joint actor with the state. Dennis

v. Sparks, 449 U.S. 24, 27–28, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980).

Moreover, Foster’s complaint contains no factual allegations against attorney Mitchell or

public defender Hazelett. Rather, the complaint merely lists the attorneys as defendants in the

caption of the complaint. Simply listing a defendant in the caption of the complaint, but raising no

specific factual allegations against the defendant, is insufficient to raise a plausible claim. See

Gilmore v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (citing Flagg Bros., 436 at

155-57).

For all of these reasons, Foster fails to state a plausible § 1983 claim against attorneys

Mitchell and Hazelett, and they are dismissed from this action.

4. Portage County is not liable under § 1983

Foster’s claims against Portage County also fail. Local governments may not be sued under

§ 1983 under a respondeat superior theory of liability. See Monell v. Department of Soc. Servs.,

436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611(1978). “[A] local government may not be

sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when

execution of a government’s policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury that the government

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as an entity is responsible under § 1983.” Id. 436 U.S. at 694; DePiero v. City of Macedonia, 180

F.3d 770, 786 (6th Cir. 1999) (same).

Here, Foster has not pleaded any facts suggesting a policy or custom of Portage County

that may have caused the constitutional deprivation he alleges. Therefore, Foster fails to state a

plausible claim against Portage County, and those claims are dismissed.

To the extent Foster is attempting to assert a claim against the Kent Police Department,

that claim also fails. It is well-settled that police departments are not sui juris, meaning they are

not separate legal entities under Ohio law that can sue or be sued. See Carmichael v. City of

Cleveland, 571 F. App’x 426, 435 (6th Cir. 2014) (finding that “under Ohio law, a county sheriff’s

office is not a legal entity that is capable of being sued”); Taylor v. Ross, No. 1:21-cv-600, 2021

WL 3930366, at *3 (N.D. Ohio Sep. 2, 2021) (finding that Akron Police Department is not sui

juris); see also Lawson v. City of Youngstown, 912 F. Supp. 2d 527, 531 (N.D. Ohio 2012) (same)

(collecting cases).

5. Ohio Rev. Code § 2921.44 does not provide a private cause of action

Finally, to the extent Foster asserts a claim of dereliction of duty under Ohio Rev. Code §

2921.44, that claim is dismissed. The State of Ohio has codified dereliction of duty in a criminal

statute and § 2921.44 does not provide a separate civil cause of action. See DeCosta v. Medina

County, No. 1:04-cv-1118, 2006 WL 1473256, at *6 (N.D. Ohio May 22, 2006); White v. Stafford,

No. 61838, 1993 Ohio App. LEXIS 82, at *3, 1993 WL 7926, at *2 (Ohio Ct. App. Jan. 14, 1993)

(“The dereliction of duty claim is a criminal statute, not a civil claim for relief[.]”); see also Lloyd

v. Pokorny, No. 2:20-cv-2928, 2020 WL 4455547, at *9 n.14 (S.D. Ohio Aug. 3, 2020) (“Plaintiff

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sues for Dereliction of Duties under Ohio Revised Code 2921.44, another criminal statute without

a private cause of action and thus, this claim is also dismissed.”) (citation omitted).

Accordingly, Foster cannot bring a civil claim against defendants pursuant to Ohio Rev.

Code § 2921.44, and his claim for dereliction of duty is dismissed.

III. Conclusion

For the foregoing reasons, this action is dismissed pursuant to 28 U.S.C. § 1915(e). The

Court 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.

Dated: July 15, 2022 oi oe

HONORABLE SARA LIOI

UNITED STATES DISTRICT JUDGE