The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GERALD D. FIELDS,
Plaintiff,
Case No. 2:21-cv-160
v. Judge Michael H. Watson
Magistrate Judge Jolson
MUSKINGUM COUNTY ADULT
PAROLE AUTHORITY, et al.,
Defendants.
REPORT AND RECOMMENDATION AND ORDER
Plaintiff Gerald D. Fields is an inmate at Noble Correctional Institution who is proceeding
pro se against Defendants Muskingum County Adult Parole Authority, Zanesville Police
Department, the City of Zanesville, Michael Haddox and Judge Kelly Cottrill. (Doc. 1-1). This
matter is before the Undersigned for consideration of Plaintiff’s Motion for Leave to Proceed in
forma pauperis (Doc. 1) and the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915A,
1915(e)(2).
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, the Undersigned
RECOMMENDS Plaintiff’s Complaint be DISMISSED.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Upon consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis under 28
U.S.C. § 1915(a)(1)–(2) (Doc. 1), the Motion is GRANTED. Plaintiff is required to pay the full
amount of the Court’s $350 filing fee. 28 U.S.C. § 1915(b)(1). Plaintiff’s Motion reveals that he
has an insufficient amount to pay the full filing fee.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at the
Noble Correctional Institution is DIRECTED to submit to the Clerk of the United States District
Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either
the average monthly deposits to the inmate trust account or the average monthly balance in the
inmate trust account, for the six-months immediately preceding the filing of the Complaint. After
full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account, but only when the amount in the account
exceeds $10.00, until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. §
1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be made
payable to Clerk, United States District Court and should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
The prisoner’s name and this case number must be included on each check.
Consequently, it is ORDERED that Plaintiff be allowed to prosecute his action without
prepayment of fees or costs and that judicial officers who render services in this action shall do so
as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order
to Plaintiff and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of
this Order to the Court’s financial office in Columbus.
II. 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). “A claim is frivolous if it lacks ‘an arguable basis either in law or in fact.’” Flores
v. U.S. Atty. Gen., No. 2:14-CV-84, 2014 WL 358460, at *2 (S.D. Ohio Jan. 31, 2014) (quoting
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This occurs when “indisputably meritless” legal
theories underlie the complaint, or when a complaint relies on “fantastic or delusional” allegations.
Flores, 2014 WL 358460, at *2 (citing Neitzke, 490 U.S. at 327–28).
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).
However, a court is not required to accept factual allegations set forth in a complaint as true when
such factual allegations are “clearly irrational or wholly incredible.” Ruiz v. Hofbauer, 325 F.
App’x 427, 429–30 (6th Cir. 2009). “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).
III. DISCUSSION
Plaintiff brings this § 1983 action claiming a violation of procedural due process. (Doc.
1-1 at ¶¶ 3, 7). Plaintiff alleges that following his criminal conviction and sentencing,
“[Defendants] all refused to return the seven thousand, seven hundred dollars in U.S. currency
taken from Plaintiff’s house on February 8, 2019 . . .” (Id., ¶ 6). He contends that that because
the jury in his criminal case “clearly declined to forfeit [the property] to the state[,]” he is entitled
to that property. (Id., ¶ 7). Furthermore, Plaintiff represents that he “has filed several motions to
the trial court for the return of the property at issue, and without cause, the trial court [has] fail[ed]
to give any clear reason why the [property] has yet to be returned.” (Id., ¶ 8). For the forthcoming
reasons, the Undersigned recommends dismissing the Complaint in its entirety.
A. State Post-deprivation Remedies
“[U]nauthorized intentional deprivation of property by a state employee does not constitute
a violation of the procedural requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful [state] postdeprivation remedy for the loss is available.” Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Accordingly, in order to bring a procedural due process claim
under § 1983, Plaintiff must “first plead[] and prov[e] the inadequacy of state or administrative
processes and remedies to redress [a] due process violation[].” Jefferson v. Jefferson County Pub.
Sch. Sys., 360 F. 3d 583, 587–88 (6th Cir. 2004).
Here, “Plaintiff has failed to state a deprivation of due process claim because he has not
alleged the inadequacy of state post-deprivation remedies.” Roller v. Matheny, No. 1:12-cv-262,
2012 WL 5451527, at *4 (E.D. Tenn. Nov. 7, 2012). While Plaintiff asserts that he has “filed
several motions to the trial court for the return of the property at issue[,]” nowhere in his Complaint
does he allege the inadequacy of state post-deprivation remedies. (See generally Doc. 1-1). In
fact, Plaintiff has already been notified of the appropriate post-deprivation remedy for the return
of this property.
In November 2020, Plaintiff filed a Writ of Mandamus with the Fifth District Ohio Court
of Appeals requesting that the court “order [Defendants] [] release $7,700.00 in cash to his
brother.” Fields v. Cottrill, No. CT2020-0046, 2020 WL 6482754, at *1 (Ohio Ct. App. Nov. 4,
2020). At the outset, that Court noted that each of the motions Plaintiff filed attempting to secure
the return of the $7,700.00 were denied, and Plaintiff never appealed the denial of these motions.
Id. Furthermore, in denying his claim, that Court held that “[Plaintiff] has an adequate remedy at
law and cannot state a claim for mandamus relief.” Id. at 2. “This adequate remedy is an action
in replevin.” Id. There is nothing in Plaintiff’s Complaint suggesting that he has filed such an
action.
Accordingly, as this is his only cause of action, Plaintiff’s Complaint fails to state a claim
upon which relief may be granted as he has not alleged the inadequacy of state post-deprivation
remedies. Roller, 2012 WL 5451527, at *5; see also See Keenan v. Marker, 23 Fed. App’x. 405,
407 (6th Cir. 2001) (“Because Michigan provides [Plaintiff] with adequate postdeprivation
remedies for the loss of his property, the unauthorized negligent or intentional deprivation of
[Plaintiff]’s property does not rise to the level of a violation of due process.”).
B. Immunity
While immunity need not be considered here because the Complaint fails on its face, the
Undersigned notes that Defendants Haddox and Cottrill would be immune from suit because of
prosecutorial and judicial immunity.
First, Defendant Haddox 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 any facts that would show Defendant Haddox was not acting as an officer
of the court at the time of his alleged misconduct. Defendant Haddox is entitled to prosecutorial
immunity as a result.
Second, Defendant Cottrill 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 any facts that would show Defendant Cottrill
acted outside the scope of her judicial capacity, or that she acted in the absence of all jurisdiction.
As a result, Defendant Cottrill is entitled to judicial immunity.
IV. CONCLUSION
Plaintiff’s request to proceed in forma pauperis is GRANTED. However, having
performed an initial screen and for the reasons set forth above, the Undersigned RECOMMENDS
Plaintiff’s Complaint be DISMISSED.
Procedure on Objections to Report and Recommendation
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).
The parties are specifically advised that 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
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: February 24, 2021 /s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE