The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DESTIN DEZWYN REESE,
Case No. 2:19-cv-5338
Plaintiff, Chief Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson
v.
DAVID A. TRIMMER, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on Plaintiff’s Motions for Leave to Proceed in forma
pauperis (Docs. 1, 7). Plaintiff’s request to proceed in forma pauperis is GRANTED. All
judicial officers who render services in this action shall do so as if the costs had been prepaid. 28
U.S.C . § 1915(a). Furthermore, having performed an initial screen and for the reasons that
follow, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims.
I. LEGAL STANDARD
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). In reviewing a complaint, the Court must construe it in Plaintiff’s favor, accept all
well-pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). In sum, although
pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972),
“basic pleading essentials” are still required, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
II. DISCUSSION
Plaintiff, a resident of Columbus, purports to sue his former criminal defense counsel,
Jesse Atkins; the prosecutor responsible for his criminal conviction, Andrea Green Boyd; and the
judge presiding over his criminal case, David. A. Trimmer. (See generally Doc. 1-1). According
to Plaintiff, in 2015, Defendants deprived him of due process and inflicted cruel and unusual
punishment on him by permitting him to plead guilty to an unspecified crime without conducting
a proper competency hearing. (Id. at 3–5).
Plaintiff’s Complaint fails to state a claim upon which relief may be granted for several
reasons. First, Defendant Trimmer is protected by judicial immunity. Judicial immunity shields
judges and other public officers “from undue interference with their duties and from potentially
disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). “Like other
forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate
assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity is
overcome only if the actions taken were not in the judge’s judicial capacity and if the actions
taken were in absence of all jurisdiction. Id. at 11–12. Plaintiff has not alleged facts that would
show that Defendant Trimmer acted outside the scope of his judicial capacity. Defendant
Trimmer is entitled to judicial immunity as a result.
Second, Defendant Boyd is protected by prosecutorial immunity. Prosecutors are
“absolutely immune from liability” for their actions that are “intimately associated with the
judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009)
(citation and quotations omitted). “[A]bsolute immunity,” however, “may not apply when a
prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in other tasks, say,
investigative or administrative tasks.” Id. at 342 (quoting Imbler v. Pachtman, 424 U.S. 409, 433
n.33 (1976)). Plaintiff has not alleged facts that would show that Defendant Boyd was not acting
as an officer of the court at the time of her alleged misconduct. Defendant Boyd is entitled to
prosecutorial immunity as a result.
Third, Plaintiff has failed to state a claim against Defendant Atkins. He has offered no
allegations that show Defendant Atkins violated his due process rights or his right to be free from
cruel and unusual punishment. Instead, Plaintiff’s claim is best understood as a state law
malpractice claim against Defendant Atkins. Even assuming the Court would exercise
supplemental jurisdiction over that state law claim, it is barred by Ohio’s one-year statute of
limitations. See Ohio. Rev. Code § 2305.11(A) (“An action for ... malpractice other than an
action upon a medical, dental, optometric, or chiropractic claim ... shall be commenced within
one year after the cause of action accrued.”). Here, because Plaintiff was convicted in 2015, the
statute of limitations would have started to run prior to December 6, 2018, one year prior to the
filing of this action. See Hustler Cincinnati, Inc. v. Cambria, 625 F. App’x 712, 719 (6th Cir.
2015) (citation and internal quotation marks omitted) (“The limitations clock starts (1) when the
client discovers or should have discovered that his injury was related to the attorney’s
malpractice (the discovery rule) or (2) when the attorney-client relationship for that particular
transaction or undertaking terminates (the termination rule), whichever occurs later.”). Plaintiff
has failed to state a claim against Defendant Atkins accordingly.
III. CONCLUSION
For the foregoing reasons, the Undersigned GRANTS the Motions for Leave to Proceed
in forma pauperis (Doc. 1, 7), and RECOMMENDS that the Court DISMISS Plaintiff’s
Complaint.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C.
§ 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and Recommendation de novo, and also
operates as a waiver of the right to appeal the decision of the District Court adopting the Report
and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152–53 (1985).
IT IS SO ORDERED.
Date: February 27, 2020 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE