Kolle v. Kyle

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN LAMAR KOLLE,

Plaintiff,

v. Civil Action 2:21-cv-984

Judge James L. Graham

Magistrate Judge Kimberly A. Jolson

CHARLES KYLE, et. al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

Plaintiff John Lamar Kolle, an inmate at Franklin County Corrections Center (“FCCC”),

who is proceeding pro se, filed his Complaint on March 2, 2021 (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 to conduct the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).

Additionally, the Undersigned evaluates Plaintiff’s Motion for Temporary Restraining Order.

(Doc. 2).

Plaintiff’s Motion to proceed in forma pauperis (Doc. 1) 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). Having performed an initial screen and for the reasons that follow, the Undersigned

RECOMMENDS that Defendants Beathard, Bender, S. Smith, Munson, Plymale, Priece,

Wolford, Carnely and Weade be DISMISSED. Further, consistent with this Report and

Recommendation, the Undersigned RECOMMENDS Plaintiff be permitted to proceed with his

remaining claims against the remaining Defendants. The Undersigned also RECOMMENDS that

Plaintiff’s Motion for Temporary Restraining Order (Doc. 2) be DENIED.

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

FCCC 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.

Additionally, the United States Marshals Service is DIRECTED to effect service of

process by certified mail.

I. BACKGROUND

Plaintiff’s Complaint asserts ten (10) causes of action against twenty-eight (28)

Defendants. (See Doc. 1-1). These Defendants include: (1) Detective Sargent Charles Kyle;

Detective Larry McGarvey; (3) Detective Trey Brown; (4) Detective Larry Witherspoon; (5)

Sargent Ward; (6) Sargent Faughsnaugh; (7) Judge Steven Beathard; (8) Judge David Bender; (9)

Detective Terry Phillips; (10) Detective Joseph Smith; (11) Detective J. Dillon; (12) Asst.

Prosecuting Attorney Scott Smith; (13) Asst. Public Defender Sheryl Munson; (14) Prosecuting

Attorney Thomas Plymale; (15) Corporal Nathan Triplett; (16) Sargent Wade Wellman; (17)

Corporal Terry; (18) Asst. Public Defender Deborah Priece; (19) Detective Al Lewis; (20)

Detective Strawser; (21) Prosecuting Attorney Judy Wolford; (22) Public Defender John Carnely;

(23) Investigator Matt Cogleton; (24) Investigator Larel Anne Heinig; (25) Contract Employee

Jason Nevel; (26) Sheriff Dallas Baldwin; (27) Major Turner; and (28) Prosecuting Attorney Jesse

Weade. (See Doc. 1-2).

Against these Defendants, Plaintiff asserts the following claims: (1) 1st Amendment

Retaliation; (2) Ineffective Assistance of Counsel; (3) Due Process; (4) Equal Protection; (5)

Abuse of Process; (6) Abuse of Prosecutorial Discretion; (7) False Arrest; (8) Access to the Court;

(9) Bad Faith Prosecution; and (10) Retaliatory Prosecution. (See Doc. 1-1).

Plaintiff alleges that after he exposed Defendant Nevel as a “confidential informant . . . on

social media” he was subject to a number of retaliatory actions which lead to his allegedly false

arrest and detainment. (See Doc. 1 at 5; see also Doc. 1-3 at 1). Specifically, Plaintiff asserts that

Defendant Kyle and others “made an illegal[,] warrantless entry into [his] residence . . . and

unlawfully arrested [him].” (Doc. 1-1 at 5). Thereafter, Defendants allegedly “undertook a

criminal prosecution in bad faith to harass [Plaintiff] and deprive [him] of [his] liberty in retaliation

[for] the exercise of [his right] to free speech.” (Id.). The Complaint goes on to detail two years

of allegations wherein which the named Defendants engaged in a conspiracy which included:

warrantless searches of Plaintiff’s residence and property; perjured official statements;

harassment; police misconduct; evidence tampering; and judicial and prosecutorial misconduct.

(See generally Docs. 1-4, 1-5). Furthermore, Plaintiff alleges that he has filed numerous

grievances during his detention at FCCC regarding the conditions of his confinement, all of which

have allegedly been ignored. (Doc. 1-4 at 43). Similarly, Plaintiff alleges he been “denied access

to the law library[,]” during his detention. (Id. at 44). The Complaint seeks monetary and

injunctive relief. (See Doc. 1-2).

In a separate Motion, Plaintiff seeks a temporary restraining order. (Doc. 2). Plaintiff

alleges such relief is warranted “due to [] continual and ongoing harassment and impedance of

[his] access to the Courts.” (Id. at 1). Based on this, and the allegations “clearly and concisely set

forth in [his] § 1983 pleading[,]” Plaintiff requests “a temporary restraining order restricting [him]

from being held in [FCCC]” and that the Court order him be “placed in the custody of the Fayette

County Jail.” (Id. at 4). Plaintiff’s Motion is ripe for review.

II. 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

A. Immunity

As established, the Court must dismiss the complaint, or any portion of it, that seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Judge

Beathard, Judge Bender and Prosecuting Attorneys Scott Smith, Thomas Plymale, Judy Wolford

and Jesse Weade are so immune.

1. Judicial Immunity

Taking the factual allegations in the Complaint as true, Plaintiff’s claims against Defendant

Judges Bender and Beathard are barred 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 alleges that Defendant Judge Bender “knowingly and intentionally conspired” in

issuing “an electronic communications interception search warrant . . . with the intention to harass

Plaintiff and deprive him of his liberty . . . ” (Doc. 1-5 at 3). But this allegation, does not lead to

an inference that Defendant Judge Bender was acting outside of his judicial capacity when he

issued the warrant. See, e.g., Nali v. Grosse Pointe Woods, No. CIV. 04-10235-BC, 2005 WL

1050773, at *1 (E.D. Mich. Apr. 19, 2005) (holding that a municipal judge was immune from

plaintiff’s allegations that she conspired to and violated his civil rights when she signed a search

warrant).

The same is true regarding Plaintiff’s allegation of Defendant Judge Beathard’s “bias” and

his alleged “direct participation in the conspiracy to undertake a criminal prosecution in bad faith

with the intent to harass [] Plaintiff and deprive him of his liberty . . .” (Doc. 1-5 at 25). Again,

there are no facts in the Complaint from which the Court could infer that Defendant Judge Beathard

acted in the absence of his jurisdiction. See, e.g., King v. McCree, 573 F. App’x 430, 441 (6th Cir.

2014) (“To the extent plaintiff may be alleging bias on the part of defendants that infected the

fairness of their rulings and proceedings, plaintiff’s allegations of bias or misconduct do not render

the actions of defendants non-judicial.”).

In sum, even construing the complaint in the light most favorable to Plaintiff, judicial

immunity bars his claims against Defendant Judges Bender and Beathard. Accordingly, the

Undersigned RECOMMENDS Defendants Bender and Beathard be DISMISSED.

2. Prosecutorial Immunity

Relatedly, Plaintiff’s claims against Defendant Prosecuting Attorneys Scott Smith, Thomas

Plymale, Judy Wolford and Jesse Weade are barred 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

quotation marks 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)).

“The analytical key to prosecutorial immunity is whether the actions in question are those of an

advocate.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 514 (6th Cir. 2019)

(alteration, quotation marks, and citation omitted). “Whether the prosecutor has an improper

motive, acts in bad faith, or even acts in an unquestionably illegal manner is irrelevant.” Id.

(citations omitted).

Upon review, there are no factual allegations in the Complaint from which the Court could

draw the reasonable inference that Defendants S. Smith, Plymale, Wolford and Weade acted as

anything other than “advocates” for the State. See Red Zone 12 LLC, 758 F. App’x at 514; see

also Huffer v. Bogen, No. 1:10-CV-312-HJW, 2011 WL 5037209, at *5 (S.D. Ohio Oct. 24, 2011),

aff’d, 503 F. App’x 455 (6th Cir. 2012) (quotation marks and citation omitted) (dismissing

plaintiff’s claims against prosecutors where allegations “fail[ed] to allege any facts outside of

traditional prosecutorial functions”). Further, in so much as Plaintiff is alleging these Defendants

acted improperly or in bad faith (see Doc. 1-5), any such allegation is irrelevant. See Red Zone 12

LLC, 758 F. App’x at 514. Therefore, Plaintiff’s claims against these Defendants are barred, and

the Undersigned RECOMMENDS Defendants S. Smith, Plymale, Wolford and Weade be

DISMISSED.

B. Defendant Public Defenders

While they are not immune from suit, Plaintiff’s claims against Sheryl Munson, Deborah

Priece, and John Carnely must also be dismissed as they “fail to state a claim upon which relief

can be granted.” 28 U.S.C. § 1915(e)(2). To state a cause of action under § 1983, a plaintiff must

allege: “(1) a deprivation of a right secured by the Constitution or law of the United States (2)

caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of

Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted).

“Public defenders are not liable to suit under § 1983 because public defenders do not act

under color of state law when representing indigent clients in criminal proceedings.” Warren v.

Holland, No. 4:08-cv-56-M, 2009 WL 1362296, at *4 (W.D. Ky. May 14, 2009) (citing Polk

County v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of

state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal

proceeding.”). As Defendants Munson, Priece, and Carnely cannot have been “acting under the

color of state law[,]” Plaintiff’s § 1983 claims against them must be dismissed.

To the extent Plaintiff is challenging his current detention due to the alleged ineffectiveness

of his public defender(s), such a claim is not cognizable under § 1983. Warren, 2009 WL 1362296,

at *4. “If Plaintiff desires to raise such a claim in federal court, he may do so by bringing a habeas

action under 28 U.S.C. § 2254 after exhaustion of his state-court remedies.” Id.

Accordingly, the Undersigned RECOMMENDS Defendants Munson, Priece, and Carnely

be DISMISSED.

C. Remaining Defendants

Given the foregoing recommendation dismissing the aforementioned Defendants, only six

of Plaintiff’s § 1983 claims remain. These claims include: (1) 1st Amendment Retaliation; (2)

Due Process; (4) Equal Protection; (5) Abuse of Process; (6) False Arrest; and (7) Access to the

Court. (See Doc. 1-1).

Accepting all well-pleaded factual allegations against the remaining Defendants as true,

the Undersigned finds that Plaintiff’s Complaint alleges “enough facts to state a claim to relief that

is plausible on its face.” Twombly, 550 U.S. 544, 570 (2007). Accordingly, the Undersigned

RECOMMENDS Plaintiff be permitted to proceed with his remaining claims against the

remaining Defendants.

D. Temporary Restraining Order

“The standard for addressing a motion for a temporary restraining order is the same as the

standard applied to a motion for a preliminary injunction.” Ferron v. Search Cactus, L.L.C., No.

2:06-CV-327, 2007 WL 2110497, at *1 (S.D. Ohio July 13, 2007) (citation omitted). More

specifically, the Court considers the following:

(1) whether the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury without the injunction; (3) whether

issuance of the injunction would cause substantial harm to others; and (4) whether

the public interest would be served by issuance of the injunction.

City of Pontiac Retired Employees Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)

(citation and internal quotation marks omitted). “‘While as a general matter, none of these four

factors are given controlling weight, a preliminary injunction where there is simply no likelihood

of success on the merits must be reversed.’” Farnsworth v. Nationstar Mortg., LLC, 569 F. App’x.

421, 425 (6th Cir. 2014) (quoting Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.

1997) ); see also Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000) (noting

that “a finding that there is simply no likelihood of success on the merits is usually fatal”). Further,

the “proof required” to obtain a temporary restraining order “is much more stringent than the proof

required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th

Cir. 2000).

The gravamen of Plaintiff’s Motion appears to relate to his allegedly unlawful arrest and

detainment, as well as the denial of his “right . . . to access the law library and legal materials”

(See Doc. 2 at 2, 4). Based on the facts alleged, which generally mirror those in his Complaint,

Plaintiff is “requesting a Temporary Restraining Order restricting [him] from being held in

[FCCC]” and that the Court order him be “placed in the custody of the Fayette County Jail.” (Id.

at 4).

In so much as Plaintiff is seeking to be transferred from FCCC to the Fayette County Jail,

he has not alleged facts sufficient to warrant such relief. As a general matter, a plaintiff “ha[s] no

constitutional right to remain in a particular institution, and prison officials are afforded broad

discretion in transferring inmates.” Rouse v. Caruso, No. CIV 06-10961, 2007 WL 909583, at *5

(E.D. Mich. Mar. 23, 2007) (citation omitted); see also Beard v. Livesay, 798 F.2d 874, 876 (6th

Cir. 1986) (“A prisoner has no inherent constitutional right to be housed in a particular institution

or to enjoy a particular security classification.”). The deference afforded to prison officials,

counsels against the issuance of a temporary restraining order in this case.

Plaintiff has not established irreparable harm. “A temporary restraining order is an

extraordinary remedy that generally is reserved for emergency situations in which a party may

suffer irreparable harm during the time required to give notice to the opposite party or where notice

itself may precipitate the harm.” Hacker v. Fed. Bureau of Pris., 450 F. Supp.2d 705, 710. While

Plaintiff may be entitled to equitable relief at some point, at this juncture “the drastic remedy of

granting a temporary restraining order without reasonable notice and a response from the [State]

is not justified.” Id.

At base, considering that he has no right to be housed in a particular institution and the

absence of irreparable harm, Plaintiff has not shown a likelihood of success on the merits. Rouse,

2007 WL 909583, at *6. And, “[a]lthough nothing in the record suggests that granting [injunctive

relief] would cause substantial harm to others, the Court must be mindful of the cautions that apply

to issuing an injunction that affects the operation of the prison system . . .” Carter v. Mich. Dept.

of Corrs., No. 12-cv-12621, WL 5291567, at *6 (E.D. Mich. Sept. 19, 2013). These cautions “also

show[] that the public interest would not be served by issuing the [temporary restraining order].”

Id. Accordingly, balancing all the applicable factors, the Undersigned RECOMMENDS

Plaintiff’s Motion for Temporary Restraining Order (Doc. 2) be DENIED.

IV. CONCLUSION

Plaintiff’s Motion to proceed in forma pauperis (Doc. 1) 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). Having performed an initial screen and for the reasons that follow, the Undersigned

RECOMMENDS that Defendants Beathard, Bender, S. Smith, Munson, Plymale, Priece,

Wolford, Carnely and Weade be DISMISSED. Furthermore, in line with this Report and

Recommendation, the Undersigned RECOMMENDS Plaintiff be permitted to proceed with his

remaining claims against the remaining Defendants. The Undersigned further RECOMMENDS

that Plaintiff’s Motion for Temporary Restraining Order (Doc. 2) be DENIED.

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).

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: April 20, 2021 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE