# Kolle v. Kyle

> District Court, S.D. Ohio · August 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10378325

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** August 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378325

## How later opinions describe it (automated extraction)

- holding that a public defender acts under color of state law when conspiring with state actors
- finding that “Congress was clear that it intends to allow [] courts to permit searches under § 2703 beyond the courts’ usual geographic jurisdictions.”
- applying Fed. R. Civ. P. 12(b)(6) standards to review under 28 U.S.C. §§1915A and 1915(e)(2)(B)(ii)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOHN LAMAR KOLLE,
Case No. 2:21-cv-984
Plaintiff,
v. Judge James L. Graham

CHARLES KYLE, et al., Magistrate Judge Kimberly A. Jolson

Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Plaintiff John Lamar Kolle’s objections
(ECF No. 6) to the Report and Recommendation issued by Magistrate Judge Jolson on April 20,
2021 (ECF No. 3). Magistrate Judge Jolson recommends that Defendants Beathard, Bender, S.
Smith, Munson, Plymale, Priece, Wolford, Carnely and Weade be dismissed. Magistrate Judge
Jolson also recommends that Plaintiff be permitted to proceed with his remaining claims against
the remaining Defendants. Magistrate Judge Jolson further recommends that Plaintiff’s Motion
for Temporary Restraining Order (ECF No. 2) be denied.
For the reasons set forth below, the Court OVERRULES Plaintiff’s objections (ECF No.
6) and ADOPTS the Report and Recommendation issued by Magistrate Judge Jolson (ECF No.
3).
I. BACKGROUND
On March 9, 2021 Plaintiff, an inmate at the Franklin County Corrections Center (“FCCC”)
and proceeding without the assistance of counsel, filed his Complaint, asserting ten causes of
action against twenty-eight Defendants. (ECF No. 1-1.) Plaintiff’s numerous claims stem from his
allegation that after publicly exposing Defendant Jason Nevel as a confidential informant and as
someone who had threatened him, Plaintiff was subjected to an illegal entry into his residence, an
unlawful arrest, and bad faith prosecution to deprive him of his liberty in exercise of his free
speech. (Id. at 12.) Plaintiff seeks monetary and injunctive relief
On March 29, 2021, Plaintiff filed a Motion for a Temporary Restraining Order (ECF No.
2), seeking relief “due to [] continual and ongoing harassment and impedance of [his] access to
the Courts.” (Id. at 122.) Plaintiff claims that because of this, and the allegations “clearly and

concisely set forth in [his] § 1983 pleading[,]” he is pursuing “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 125.)
On April 20, 2021, Magistrate Judge Jolson performed an initial screen of Plaintiff’s
Complaint under 28 U.S.C. § 1915(e)(2) and evaluated Plaintiff’s Motion for Temporary
Restraining Order. (ECF No. 3.) In her Report and Recommendation, Magistrate Judge Jolson
recommended dismissal of several Defendants and the associated claims against them and denial
of Plaintiff’s Motion for Temporary Restraining Order.
Plaintiff timely filed his objections on May 10, 2021. (ECF No. 6.)

II. STANDARD OF REVIEW
If a party objects within the allotted time to a report and recommendation, the Court “shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P.
72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). As required by 28
U.S.C. § 636(b)(1)(C), the Court will make a de novo review of those portions of the Report and
Recommendation to which Plaintiff specifically objects.
III. DISCUSSION
Title 28 U.S.C. §1915(e) requires the sua sponte dismissal of an action upon the court’s
determination that the action fails to state a claim upon which relief may be granted. Grinter v.
Knight, 532 F.3d 567, 572 (6th Cir. 2008). Courts conducting initial screens under §1915(e) apply
the motion to dismiss standard. See, e.g., Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010)

(applying Fed. R. Civ. P. 12(b)(6) standards to review under 28 U.S.C. §§1915A and
1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6) construe the complaint in a light
most favorable to the plaintiff, accepting all well-pleaded allegations in the complaint as true, and
determining whether plaintiff undoubtedly can prove no set of facts in support of those allegations
that would entitle him to relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent
Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive a motion to dismiss, the “complaint
must contain either direct or inferential allegations with respect to all material elements necessary
to sustain a recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th

Cir. 2005).
A. Plaintiff’s Objections
Plaintiff objects to Magistrate Judge Jolson’s Report and Recommendation as follows: 1)
Magistrate Judge Jolson’s recommendation that Defendant Judge David Bender be dismissed, as
Plaintiff’s claims against him are barred by judicial immunity; 2) Magistrate Judge Jolson’s
recommendation that Defendant Assistant Prosecuting Attorney Scott Smith be dismissed, as
Plaintiff’s claims against him are barred by prosecutorial immunity; 3) Magistrate Judge Jolson’s
recommendation that Defendant Assistant Public Defender Sheryl Munson be dismissed as a
defendant, as Plaintiff’s claims against her fail to state a claim upon which relief can be granted;
4) Magistrate Judge Jolson’s recommendation that Defendant Prosecuting Attorney Jesse Weade
be dismissed due to prosecutorial immunity; and 5) Magistrate Judge Jolson’s recommendation
that Defendant Prosecuting Attorney Jody Wolford also be dismissed due to prosecutorial
immunity.
Plaintiff simultaneously moves the Court to accept his objections as an amendment to his

original Complaint. (ECF No. 6 at 286.)
Plaintiff states that he accepts and concurs with all other recommendations and orders
contained within Magistrate Judge Jolson’s Report and Recommendation. (Id.)
1. Judge Bender
Plaintiff’s Complaint alleges that Judge Bender of the Fayette County Court of Common
Pleas “unlawfully issued an electronic communications interception warrant pursuant to 18 U.S.C.
[§] 2703(d),” because as a state court judge, he lacks jurisdiction or authority to issue such a
warrant. (ECF No. 1-4 at 36.) Plaintiff further alleges that Judge Bender conspired with Defendant
Detective Treg Brown to illegally obtain electronic communications evidence. (Id.)

Well-established Supreme Court precedent “acknowledges that, generally, a judge is
immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991) (collecting cases).
Judicial immunity is not only immunity from the “ultimate assessment of damages,” but it is also
immunity from suit itself. Id. at 11 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). A
plaintiff may only overcome judicial immunity in two instances: 1) for actions taken outside of the
judge’s judicial capacity and 2) for actions, although “judicial in nature, taken in the complete
absence of all jurisdiction.” Id. at 11–12.
Based on her initial screen of Plaintiff’s Complaint, Magistrate Judge Jolson determined
that even taking Plaintiff’s alleged facts as true, Plaintiff has not alleged sufficient facts from which
the Court could infer that Judge Bender was acting outside of his judicial capacity when he issued
the electronic communications search warrant. Magistrate Judge Jolson also determined that
Plaintiff’s allegations concerning Judge Bender’s alleged “bias” and “conspiracy” do not support
the inference that Judge Bender was acting in the absence of jurisdiction.
In his first objection, Plaintiff argues that Judge Bender lacked judicial capacity to issue an

electronic communications warrant pursuant to 18 U.S.C. § 2703(d), as it is “a federal statute
which specifically bars state court judges from issuing electronic communications interception
warrant[s].” (ECF No. 6 at 281.) Plaintiff also argues that Detective Brown did not request the
issued warrant pursuant to 18 U.S.C. § 2703(d) but instead requested the warrant be issued by
Judge Bender pursuant to Ohio Rev. Code § 2933.21, and Judge Bender therefore could not fulfill
the requested warrant, as Ohio Rev. Code § 2933.21 does not cover electronic communications
content. (Id.) Plaintiff further objects that Judge Bender lacks jurisdiction to issue an electronic
communications interception warrant in Overland Park, Kansas.
Section 2703 of the Stored Communications Act regulates government access to stored

electronic communications. See 18 U.S.C. § 2703. Under § 2703(a), “A governmental authority
may require the disclosure by a provider of electronic communication service of the contents of a
wire or electronic communication . . . pursuant to a warrant issued using the procedures described
in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State
warrant procedures) by a court of competent jurisdiction.” Third-party service provider records
are accessible by a court order upon proof of “specific and articulable facts showing . . . reasonable
grounds to believe . . . the records or other information sought, are relevant and material to an
ongoing criminal investigation.” Id. § 2703(d). Section 2703(d) permits a state court to issue an
order if it is not prohibited by state law. (“In the case of a State governmental authority, such a
court order shall not issue if prohibited by the law of such State.”)
Even construing Plaintiff’s objections as an amendment to his Complaint and taking his
allegations as true, Plaintiff still fails to allege sufficient facts to overcome judicial immunity.
According to the search warrant attached to Plaintiff’s objections, which will be treated as an

attachment to Plaintiff’s amended Complaint, Judge Bender issued the search warrant for
electronic communications “pursuant to 18 U.S.C. section 2703(d).” (ECF No. 6-1 at 301.)
Plaintiff, citing Ohio Rev. Code § 2933.21 and Detective Brown’s attached affidavit submitted in
support of his warrant application, states that an electronic communications search warrant falls
outside § 2933.21 and therefore could not be fulfilled by Judge Bender. But this argument is
irrelevant, as Judge Bender did not issue the search warrant pursuant to Ohio Rev. Code § 2933.21.
Instead, Judge Bender issued the warrant pursuant to 18 U.S.C. § 2703(d), which grants
state court judges the authority to issue an order for disclosure of electronic communication
relevant and material to an ongoing criminal investigation.1 Id. Furthermore, there is nothing in

Ohio Rev. Code § 2933.21, or Ohio law, which prohibits Judge Bender from issuing the warrant.
See United States v. Evans, 2018 U.S. Dist. LEXIS 219506, *8–9 (“[T]he SCA does not require a
grant of authority under state law but rather allows a state court to issue an order under § 2703
unless prohibited by state law.”) (emphasis in original).
Lastly, Plaintiff also argues that as an Ohio state court judge, Judge Bender lacks
jurisdiction to issue a warrant for electronic data located in Overland Park, Kansas. The Court
disagrees, as the Stored Communications Act contemplates issuance of warrants for electronic

1 The warrant was issued in the Court of Common Pleas, Fayette County, Ohio, which is a court of competent
jurisdiction within the Stored Communications Act. See id. § 2703(b) (defining “court of competent jurisdiction” as
“a court of general criminal jurisdiction of a State authorized by the law of that State to issue search warrants”).
communication outside of the issuing judge’s geographic jurisdiction. See United States v. Ackies,
918 F.3d 190, 202 (1st Cir. 2019) (finding that “Congress was clear that it intends to allow [] courts
to permit searches under § 2703 beyond the courts’ usual geographic jurisdictions.”) Judge Bender
therefore did not lack jurisdiction to issue such a warrant.
As Plaintiff alleges no facts sufficient for the Court to infer that Judge Bender violated state

warrant procedures, or that his actions did not comply with the Stored Communications Act, the
Court finds that he was acting well within his judicial capacity when he issued the search warrant
for electronic communications and is therefore entitled to judicial immunity. Accordingly,
Plaintiff’s first objection is overruled.
2. Prosecuting Attorneys S. Smith, Weade, and Wolford
Plaintiff’s second, fourth, and fifth objections all center on the argument that Prosecuting
Attorneys S. Smith, Weade, and Wolford are not entitled to prosecutorial immunity for their
actions, because they conspired to withhold evidence, and such actions bar their absolute immunity
from suit.

“Absolute prosecutorial immunity . . . is a common law principle that shields a prosecutor
from § 1983 liability.” Cooper v. Parrish, 203 F.3d 937, 946 (6th Cir. 2000) (citing Imbler v.
Pachtman, 424 U.S. 409, 430–31 (1976)). If prosecutors perform functions that are “intimately
associated with the judicial phase of the criminal process,” they are absolutely immune from civil
suits. Imbler, 424 U.S. at 430. Whereas “investigative” or “administrative” functions are further
removed from the judicial process and do not afford a prosecutor the protection of qualified
immunity. Burns v. Reed, 500 U.S. 478, 486 (1991). The determining factor is “whether the
actions in question are those of an advocate.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.
2000). Allegations of a prosecutor’s “improper motive, acts in bad faith, or even acts in an
unquestionably illegal manner is irrelevant.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x
508, 513-14 (6th Cir. 2019) (citing Cady v. Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009)).
Magistrate Judge Jolson determined that Plaintiff’s Complaint contains no factual
allegations from which the Court could draw the reasonable inference that S. Smith, Weade, and
Wolford and Weade acted as anything other than “advocates” for the State. (ECF No. 3 at 133.)

In his second, fourth, and fifth objections, Plaintiff argues that each of these Defendants
willfully conspired to withhold and destroy evidence and were therefore not acting as “advocates”
for the State. Even accepting Plaintiff’s allegations as true, these allegations remain irrelevant, as
Plaintiff continues to allege that these Defendants acted improperly or in bad faith and such
allegations are not sufficient to overcome their entitlement to prosecutorial immunity from suit.
See Red Zone 12 LLC, 758 F. App’x at 514 (citing Imbler, 424 U.S. at 431 & n.34 (holding that a
prosecutor still enjoys immunity, even after presenting false evidence at trial); Beckett v. Ford,
384 F. App’x 435, 452 (6th Cir. 2010) (finding immunity applied to a prosecutor who threatened
witnesses); Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986) (determining that failing to

disclose exculpatory information does not preclude a prosecutor from absolute immunity)).
Plaintiff’s second, fourth, and fifth objections are therefore overruled.
3. Assistant Public Defender Munson
Similarly, in his third objection, Plaintiff claims that Assistant Public Defender Munson
conspired to destroy and fabricate evidence and is involved in an active conspiracy against him,
and that he has therefore stated a plausible § 1983 claim for relief against her.
To state a plausible 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 Cnty. 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.”). But see Tower v. Glover, 467 U.S. 914, 920 (1984) (holding
that a public defender acts under color of state law when conspiring with state actors).
Upon review of Plaintiff’s original Complaint, Magistrate Judge Jolson determined that
absent any alleged facts that Defendant Munson was acting outside of her role as a public defender,
Defendant Munson could not have been “acting under the color of state law,” and Plaintiff’s §
1983 claim against her must therefore be dismissed. But in Plaintiff’s objections, which he moves
the Court to accept as an amended Complaint, Plaintiff now alleges that Munson conspired with
state actors to violate his constitutional rights.
The Court nonetheless finds that Plaintiff’s § 1983 claim against Munson fails, as Plaintiff

has made only conclusory statements absent substantiating facts, such as what Munson allegedly
did to further the conspiracy, and how this deprived Plaintiff of his constitutional rights.
See Twombly, 550 U.S. at 556–57 (holding that, at the pleading stage, “an allegation of parallel
conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does
not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does
not supply facts adequate to show illegality”); see also Great Western Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F. 3d 159, 178 (3d Cir. 2010) (“[T]o properly plead an unconstitutional
conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred.”).2

2 Although the filings of a pro se litigant are construed liberally, a pro se party will not be relieved of the responsibility
to comply with the basic rules of court. McNeil v. United States, 508 U.S. 106, 113 (1993).
As Plaintiff has failed to state a claim upon which relief can be granted, the Court agrees
with Magistrate Judge Jolson’s recommendation and overrules Plaintiff’s third objection.
IV. CONCLUSION
Upon de novo review, the Court OVERRULES Plaintiff’s objections (ECF No. 6) and
ADOPTS the Report and Recommendation issued by Magistrate Judge Jolson on April 20, 2021

(ECF No. 3).
Defendants Beathard, Bender, S. Smith, Munson, Plymale, Priece, Wolford, Carnely and
Weade are DISMISSED, and Plaintiff is permitted to proceed with his remaining claims against
the remaining Defendants. Plaintiff’s Motion for Temporary Restraining Order (ECF No. 2) is
DENIED.

IT IS SO ORDERED.

/s/ James L. Graham
JAMES L. GRAHAM
United States District Judge

DATE: August 9, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378325. Public record. Not legal advice.