Glowka v. Marit

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ADAM M. GLOWKA, :

Plaintiff, Case No. 3:22-cv-49

v. Judge Thomas M. Rose

ERIC E. MARIT, Magistrate Judge Caroline H. Gentry

Defendant.

ENTRY AND ORDER STRIKING PLAINTIFF’S SUR-REPLY (DOC. NO. 11);

DENYING PLAINTIFF’S RENEWED REQUEST FOR COUNSEL (WITHIN

DOC. NO. 9); GRANTING DEFENDANT’S MOTION TO DISMISS (DOC. NO.

6); AND TERMINATING THIS CASE

This is a case brought pro se by Plaintiff Adam M. Glowka (“Glowka”) against Defendant

Eric E. Marit (“Marit”) that was originally filed in state court and removed to federal court by

Marit. In his Complaint, Glowka brings two causes of action: (1) Claim for Malicious Prosecution;

and (2) Claim for Outrageous Government Conduct. (Doc. No. 4.) Currently pending before the

Court is Defendant’s Motion to Dismiss (Doc. No. 6) (the “Motion”), brought pursuant to Federal

Rule of Civil Procedure 12(b)(6). For the reasons discussed below, the Court GRANTS the

Motion, DISMISSES the claims with prejudice, and TERMINATES this case.

I. BACKGROUND

On January 18, 2022, Glowka filed his complaint in the Court of Common Pleas for Preble

County, Ohio. (See Doc. No. 3; Doc. No. 4.) Marit is the sole defendant in this case. Glowka and

Marit are the only parties listed in the case caption; the docket from the Court of Common Pleas

for Preble County, Ohio indicates that there is only one defendant (Marit); and, that court only

issued a summons with a copy of the complaint to Marit. (Doc. No. 4 at PageID 90; Court of

Common Pleas, Preble County, Ohio, Docket for Case No. 22CV032383; Doc. No. 3-7

(summons); see also Doc. No. 9 (Glowka referencing Marit as “[t]he Defendant in this matter”).)

On February 16, 2022, Marit filed a Notice of Removal and removed the case from state court to

federal court. (Doc. No. 3.) No motion to remand was filed, and the time to do so has passed. See

28 U.S.C. § 1447(c).

Glowka acknowledges that Marit “was at all times relevant to this action a prosecuting

attorney for the State of Ohio.” (Doc. No. 4 at PageID 91.) In the Complaint, Glowka alleges that

Marit received a report from “the Eaton Police Division” and “convened a Grand Jury” concerning

statements made by Glowka’s ex-girlfriend, with whom Glowka was engaged in a custody battle.

(Id. at PageID 97-98.) Glowka alleges that the statements “were fruits of several videos that [his

ex-girlfriend] instructed her daughter ... to take, in an attempt to gain custodial status,” social

security payments, and child support payments. (/d.) A grand jury indicted Glowka on four felony

charges. Ud. at PageID 99.)

Glowka alleges that Marit “failed to consider the veracity of the statements made to the

Eaton Police Division”; “[d]ue to Mr. Glowka’s prior criminal record, ... Marit still pursued an

indictment and knew of the potential false statements, preplanned attack or misleading

information, or dutifully should have known”; that “[a]n Indictment was returned without any

scientific evidence to prove guilt”; and Glowka’s “rights to due process of law were violated” and

he suffered injuries. (Ud. at PageID 98-99.) Glowka also alleges that his fiancé and two of his

children “were ‘Selectively’ never charged for a felony for [sic] misdemeanor”; Glowka’s “record

was used for selective prosecution to become the underlying basis for the Malice in the

Prosecution”; Marit “either failed to properly investigate the veracity of the complaints,

misrepresented facts or had reckless disregard for the truth when [Glowka’s criminal case] was

presented to the Grand Jury”; Marit “failed to find probable cause to effectuate a constitutional

prosecution”; Marit “never offered a better plea deal, even after exculpatory BRADY evidence was

submitted and, due to Mr. Glowka’s record, maliciously continued to pursue a conviction”; and

Marit “initiated, procured and continued a Malicious Prosecution that was causing an undue

hardship on Mr. Glowka in many facets.” (/d. at PageID 105, 107-08 (emphasis in original).)

The Complaint contains two causes of action: (1) Claim for Malicious Prosecution; and (2)

Claim for Outrageous Government Conduct. (Doc. No. 4 at PageID 112.) Glowka alleges that

Marit “intentionally and maliciously violated the Fourth Amendment of the US Const.,” as well

as his “rights to due process of law.” (/d. at PageID 99, 107, 112.) Glowka sues Marit in Marit’s

individual and official capacities. (id. at PageID 91.)

On February 23, 2022, Marit filed the Motion, which seeks dismissal of the Complaint in

its entirety and with prejudice. (Doc. No. 6.) On March 28, 2022, Glowka filed his Response to

the Motion (Doc. No. 9) (the “Response”).! On April 4, 2022, Marit filed a Reply in support of

the Motion (Doc. No. 10) (the “Reply”). The Motion is fully briefed and ripe for review and

decision.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” While this rule “does not

require ‘detailed factual allegations’ ... it demands more than an unadorned, the-defendant-

' Glowka did not timely file his Response, despite Magistrate Judge Caroline H. Gentry issuing a Notice to Glowka,

informing him that a motion to dismiss had been filed and that his response must be filed with the Court not later than

March 21, 2022 (see Doc. No. 8). S.D. Ohio Civ. R. 7.2(a)(2) (“Any memorandum in opposition shall be filed within

twenty-one days after the date of service of the motion.”). Glowka requested in his Response that “this Honorable

Court to [sic] understand his current medical condition, and his inability to make a timely response, and accept this

[Response] as timely for good cause shown.” (Doc. No. 9 at PageID 136.) The Court informs Glowka that he must

abide by the Court’s rules, but on this occasion, and in ruling on the merits of the Motion, the Court will accept and

consider the Response in ruling on the Motion.

unlawfully-harmed-me accusation.” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint. Fed. R. Civ. P. 12(b)(6) (providing for motions to assert a “failure

to state a claim upon which relief can be granted”). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Igbal, 556 U.S. at 678. A claim is facially plausible when it includes “factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Jd. This standard is not the same as a probability standard, but “asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Jd. (internal quotation marks omitted). Thus, if a plaintiff

has “not nudged [its] claims across the line from conceivable to plausible, [the] complaint must be

dismissed.” Twombly, 550 U.S. at 570.

When ruling on a motion to dismiss, the Court must accept the factual allegations of the

complaint as true and construe them in a light most favorable to the non-moving party. Twombly,

550 U.S. at 554-55. However, the Court is not bound to accept as true a legal conclusion couched

as a factual allegation. Id. at 555-56. “In evaluating a motion to dismiss [a court] may consider

the complaint and any exhibits attached thereto, public records, items appearing in the record of

the case and exhibits attached to the defendant’s motion to dismiss so long as they are referred to

in the complaint and are central to the claims contained therein.” Luis v. Zang, 833 F.3d 619, 626

(6th Cir. 2016) (internal quotation marks omitted).

Even in cases where the plaintiff is a pro se party, basic pleading requirements must be

satisfied. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Despite the fact that pro se

complaints are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines

v. Kerner, 404 U.S. 519, 520 (1972), and a document filed pro se is “to be liberally construed,”

Erickson v. Pardus, 551 U.S. 89, 94 (2007), a pro se complaint still “must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

678 (internal quotation marks omitted); see also Ogle v. Columbia Gas Transmission, LLC, 513

F. App’x 520, 522 (6th Cir. 2013).

i. ANALYSIS

Marit asks the Court to dismiss Glowka’s claims, pursuant to Federal Rule of Civil

Procedure 12(b)(6). Marit argues that he is entitled to absolute immunity in his personal capacity

and sovereign immunity in his official capacity. (Doc. No. 6 at PageID 117.) He also argues that

the Complaint fails to meet the pleading requirements of Federal Rule of Civil Procedure 8(a) and

that there is no cause of action available to Glowka for “outrageous government conduct.” (/d.)

In response, Glowka asserts:

Marit chose to put a Felony warrant out for Glowka’s arrest, cause numerous

situations, affected Mr. Glowka’s status in the Community and Employment,

caused the arrest and voluntary surrender of Mr. Glowka, to be booked into jail,

and many other harms, all without conducting NO INVESTIGATION, TESTING,

CORROBORATING and even failed to consider the source. From the onset there

was pressure from the Police, and because Glowka did not say I [d]idn’t do it, [t]he

prosecutor figured with maliciousness and Selectivity that Glowka would cop to a

plea, as so many others facing four felonies.

(Doc. No. 9 at PageID 137.) He argues that “[a]bsolute [iJmmunity and [q]ualified [1]mmunity are

clear shields to protect Officials when ruining peoples [sic] lives, if a few months later they just

decide, ‘ahhh, this guy wants a trial, drop it.’” (/d.)

A. The Sur-Reply is Stricken

On April 4, 2022, Glowka filed a sur-reply (Doc. No. 11) (the “Sur-Reply”). Glowka

neither sought, nor received, leave of court to make that filing. The filing violated this Court’s

tules. S.D. Ohio Civ. R. 7.2(a)(2) (“No additional memoranda beyond those enumerated [i.e.,

memorandum in support of a motion, memorandum in opposition, and reply memorandum] are

permitted except upon leave of court for good cause shown.”). Therefore, the Court strikes the

Sur-Reply.

B. Glowka’s Renewed Request for Appointment of Counsel is Denied

Embedded within his Response is a request by Glowka for the Court to appoint counsel to

represent him in this case. (Doc. No. 9 at PageID 136.) He acknowledges that this is a renewed

request for counsel. (/d.) On January 19, 2022, prior to removal of the case to federal court, Judge

Stephen R. Burns of the Court of Common Pleas for Preble County, Ohio denied Glowka’s earlier

motion asking that court to appoint counsel to represent him in this civil action. (Doc. No. 3-6.)

“Appointment of counsel in a civil case is not a constitutional right.” Lavado v. Keohane,

992 F.2d 601, 605-06 (6th Cir. 1993) (internal quotation marks omitted). “It is a privilege that is

justified only by exceptional circumstances.” Jd. “In determining whether exceptional

circumstances exist, courts have examined the type of case and the abilities of the plaintiff to

represent himself.” Jd. (internal quotation marks omitted). “This generally involves a

determination of the complexity of the factual and legal issues involved.” Jd. (internal quotation

marks omitted). Appointment of counsel is not appropriate when a pro se litigant’s claims are

frivolous or have only an extremely slim chance of success. Jd.; Vartinelli v. Shanklin, No. 98-

2018, 205 F.3d 1343 (Table), 2000 WL 145360, at *3 (6th Cir. Feb. 1, 2000).

Having considered the type of case, the nature of the case, the complexity of the facts and

the legal issues involved, and Glowka’s ability to prosecute his claim, the Court finds that

exceptional circumstances do not exist at this time. Additionally, as shown below, the Court finds

that Glowka has no chance of success. Therefore, the Court denies Glowka’s renewed request for

appointment of counsel. See, e.g., Vartinelli, 2000 WL 145360, at *3 (affirming decision to deny

motion for appointment of counsel where plaintiffs claims had only an extremely slim chance of

success); Robinette v. Columbus Police Dept., No. 2:09-cv-629, 2010 WL 348297, at *2 (S.D.

Ohio Jan. 25, 2010) (denying motion to appoint counsel where the case did not present the

exceptional circumstances necessary for the appointment of counsel because plaintiffs claims had

no chance of success).

C. The Motion to Dismiss is Granted

1) First Cause of Action: Claim for Malicious Prosecution

Marit argues that the malicious prosecution claim against him in his individual capacity

fails because he is entitled to absolute immunity, and it fails against him in his official capacity

because it is precluded by sovereign immunity. (Doc. No. 6 at PageID 123-27.) The Court agrees.

It is not entirely clear whether the malicious prosecution claim is brought under federal law or state

law or both. See Gillispie v. City of Miami Twp., No. 3:13-cv-416, 2020 WL 5629677, at *19, 45

(S.D. Ohio Sept. 21, 2020) (setting forth elements of malicious prosecution under federal law and

under Ohio law). Regardless, the outcome is the same: the claim must be dismissed.

Regarding the claim against Marit in his personal capacity, “[s]tate prosecutors are

absolutely immune from civil liability when acting within the scope of their prosecutorial duties.”

Howell vy. Sanders, 668 F.3d 344, 349 (6th Cir. 2012). “[U]nder federal law, prosecutors are

entitled to absolute immunity from lawsuits arising from ‘the duties of the prosecutor in his role

as advocate for the state’ as well as ‘actions preliminary to the initiation of a prosecution and

actions apart from the courtroom.’” Lower v. City of Columbus, No. 2:16-cv-394, 2016 WL

7230853, at *3 (S.D. Ohio Dec. 14, 2016) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 272

(1993)); see also Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2003) (among other types of

claims, absolute immunity is appropriate for claims based on a prosecutor’s appearance at a

probable cause hearing, appearance before a grand jury, evaluation of evidence assembled by the

police, preparation for presentation of evidence at trial or before a grand jury, preparation of

witnesses for trial, and “even the knowing presentation of false testimony at trial”); Cady v. Arenac

Cnty., 574 F.3d 334, 341 (6th Cir. 2009) (“[c]onduct associated with plea bargains has long been

held by this court to be so intimately associated with the prosecutor’s role as an advocate of the

State in the judicial process as to warrant absolute immunity”) (internal quotation marks omitted).

Prosecutors do “not enjoy absolute immunity for ‘administrative duties and those investigatory

functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for

judicial proceedings,” although they still may be entitled to qualified immunity. (quoting

Buckley, 509 U.S. at 273). “Absolute prosecutorial immunity is not defeated by showing that the

prosecutor acted wrongfully or even maliciously.” Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th

Cir. 1989) (internal quotation marks omitted). “The decision to prosecute, ... even if malicious

and founded in bad faith, is unquestionably advocatory.” Jd. (internal quotation marks omitted);

see also Howell, 668 F.3d at 350 (“[t]he existence or nonexistence of probable cause ... is not

determinative of whether absolute immunity applies”); see also Bowman v. Warren Cnty. Regional

Jail, No. 95-6241, 89 F.3d 832 (Table), 1996 WL 343520, at *1 (6th Cir. June 20, 1996)

(“[d]etermining to bring a prosecution against one person and not to charge others is the

quintessential prosecutorial function, and the claim against [the commonwealth attorney] thus falls

squarely within” absolute immunity). While this immunity “leave[s] the genuinely wronged

defendant without civil redress against a prosecutor whose malicious or dishonest action deprives

him of liberty,” “the alternative of qualifying a prosecutor’s immunity would disserve the broader

public interest.” Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976).

“Like federal law, Ohio law also provides for absolute immunity to prosecutors doing their

jobs.” Lower, 2016 WL 7230853, at *4. Ohio Revised Code § 2744.03(A)(7) states that “[t]he

political subdivision, and an employee who is a county prosecuting attorney, ... is entitled to any

defense or immunity available at common law or established by the Revised Code.” The Ohio

Supreme Court has held that “prosecutors are considered quasi-judicial officers entitled to absolute

immunity granted judges, when their activities are ‘intimately associated with the judicial phase

of the criminal process.’” Willitzer v. McCloud, 6 Ohio St. 3d 447, 453 N.E.2d 693, 695 (Ohio

1983) (quoting Imbler, 424 US. at 430). Initiating a prosecution and presenting the State’s case

are among those activities entitled to absolute immunity. Jd.

“The party seeking the benefit of a claim of absolute immunity has the burden of

establishing it,” and Marit has met that burden here. Howell, 668 F.3d at 350. The allegations

against Marit in the Complaint involve duties in his prosecutorial role as an advocate for the state.

(Doc. No. 4 at PageID 90-91, 97-99, 105-10, 112.) The allegations relate to preparation for the

initiation of Glowka’s prosecution or judicial proceedings and are intimately associated with the

judicial phase of the criminal process. Buckley, 509 U.S. at 272-73; Imbler, 424 U.S. at 430;

Willitzer, 453 N.E.2d at 695. Therefore, Marit is immune from the claim against him in his

personal capacity. Cady, 574 F.3d at 342 (“[a]bsolute immunity defeats the suit at the outset”)

(internal quotation marks omitted).

Regarding the claim against Marit in his official capacity, “claims against prosecutors in

their official capacity are claims against the state and are barred by the Eleventh Amendment.”

Smith v. Rybek, No. 2:11-cv-777, 2012 WL 3025102, at *3 (S.D. Ohio July 24, 2012); see also

Cady, 574 F.3d at 342 (explaining that, “[1]n an official capacity action, the plaintiff seeks damages

not from the individual officer, but from the entity for which the officer is an agent,” and “[a]n

official capacity suit is, in all respects other than name, to be treated as a suit against the entity”).

As the Sixth Circuit has explained, although “[a]bsolute immunity is a personal defense that is

unavailable in an official-capacity action,” “immunities that can be claimed in an official-capacity

action are forms of sovereign immunity that the entity, gua entity, may possess, such as the

Eleventh Amendment.” Cady, 574 F.3d at 342. Here, Marit was “acting as an agent of the state”

and the “suit against him in his official capacity is barred by the Eleventh Amendment.” □□□

Therefore, the malicious prosecution claim against Marit, both in his individual and his official

capacity, must be dismissed.

2) Second Cause of Action: Claim for Outrageous Government Conduct

Glowka’s second cause of action is for “outrageous government conduct.” The Court tends

to agree with Marit’s assertion in the Motion that “there is no cause of action available to Plaintiff

for ‘outrageous government conduct’” in this civil case; it “is not a legitimate claim.” (Doc. No.

6 at PageID 117, 122.) “Outrageous government conduct” may be a defense in a criminal case,

where “a defendant argues that the government’s involvement in creating his crime (i.e., the means

and degrees of inducement) was so great ‘that a criminal prosecution for the [crime] violates the

fundamental principles of due process.’” United States v. Warwick, 167 F.3d 965, 974 (6th Cir.

1999) (quoting United States v. Russell, 411 U.S. 423, 430 (1973)). To succeed in the defense,

there at least must be “outrageous police conduct that shocks the conscience.” Id. at 975; Monea

v. United States, 914 F.3d 414, 419 (6th Cir. 2019) (the defense of outrageous government conduct

is “rarely—if ever—found” and “arises when the government acts so outrageously that it shocks

the conscience”). In Warwick, the Sixth Circuit Court of Appeals reiterated that outrageous

government conduct in a criminal investigation may violate the Due Process Clause of the Fifth

Amendment, while recognizing that the proper remedy would be dismissal of the resulting

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indictment. Warwick, 167 F.3d at 973 n. 5, 974.

Yet, even if “outrageous government conduct” is a recognized cause of action, the claim

here fails.? As an initial matter, it would fail for the same reasons that the malicious prosecution

claim fails, as set forth above. Moreover, the factual allegations underlying the alleged

“outrageous government conduct” rarely involve Marit. (See Doc. No. 4.) Even accepting the

factual allegations of the Complaint as true and construing them in a light most favorable to

Glowka, they do not rise to the level of demonstrating that Marit acted “so outrageously that it

shocks the conscience.” Monea, 914 F.3d at 419; see also Kroemer v. Tantillo, No. 1:17-cv-67,

2017 WL 6409148, at *7 (W.D.N.Y. Sept. 21, 2017) (in an action filed under 42 U.S.C. § 1983,

finding that a potential outrageous-government-conduct claim would have failed because the

alleged conduct did not rise to the level of shocking the conscience). Therefore, Glowka’s other

claim must be dismissed as well.

IV. CONCLUSION

For the reasons stated above, the Court STRIKES the Plaintiff's Sur-Reply (Doc. No. 11);

the Court DENIES Plaintiff's renewed request for appointment of counsel (within Doc. No. 9);

the Court GRANTS Defendant’s Motion to Dismiss (Doc. No. 6); the Court DISMISSES, WITH

PREJUDICE, claims brought against Marit; and the Court TERMINATES this case. The Clerk

of Court is instructed to terminate the case on the Court’s docket. The Court notes for Glowka

that this Order, by itself, does not preclude him from attempting to pursue a claim or claims in a

separate lawsuit against anyone other than Marit.

2 The Court has been unable to find a Sixth Circuit case that either recognizes such a claim or holds that such a claim

is not a recognized cause of action.

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DONE and ORDERED in Dayton, Ohio, this Friday, April 8, 2022.

s/Thomas M. Rose

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE

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