Morris Sr. v. Huffman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

LEON A. MORRIS, SR., : Case No. 3:22-cv-278

:

Plaintiff, :

: Judge Michael J. Newman

vs. :

Magistrate Judge Caroline H. Gentry

:

MARY KATHERINE HUFFMAN, JUDGE, :

et al., :

:

Defendants. :

ORDER and

REPORT AND RECOMMENDATIONS

Leon A. Morris, Sr., a state prisoner proceeding in forma pauperis and without the

assistance of counsel, has filed a civil rights complaint with this Court. (Doc. 1-1). He alleges

that his rights were violated during criminal proceedings against him in the Montgomery County,

Ohio, Court of Common Pleas. (Id., PageID 6).

The matter is currently before the Court to conduct the initial screening of the Complaint

as required by law. 28 U.S.C. § 1915A(a); 28 U.S.C. § 1915(e)(2). For the reasons that follow,

the Undersigned RECOMMENDS that the Court DISMISS the Complaint in its entirety.

I. Initial Screening Standard

Because Plaintiff is a prisoner seeking “redress from a governmental entity or officer or

employee of a governmental entity,” and is proceeding in forma pauperis, the Court is required

to conduct an initial screening of his Complaint. 28 U.S.C. § 1915A(a) and 28 U.S.C. §

1915(e)(2). The Court must dismiss the Complaint, or any portion of it, that is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from

a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

A complaint may be dismissed as frivolous when the plaintiff cannot make any claim

with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29

(1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no

arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation

of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no

arguable factual basis when the allegations are delusional or rise to the level of the irrational or

“wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at 1199.

The Court need not accept as true factual allegations that are “fantastic or delusional” in

reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)

(quoting Neitzke, 490 U.S. at 328).

A complaint must also be dismissed if it fails to state a claim on which relief may be

granted. 28 U.S.C. § 1915A(b)(1). To state a claim for relief, a complaint must set forth “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The Court must construe the complaint in plaintiff’s favor, accept all well-pleaded

factual allegations as true, and evaluate whether the complaint 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). However, a

complaint that consists of “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).

In the interest of justice, this Court is also required to construe a pro se complaint

liberally and to hold it “to less stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)

and citing Fed. R. Civ. P. 8(f) [now (e)]). Even with such a liberal construction, a pro se

complaint must still adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989). Specifically, a pro se “complaint ‘must contain either direct or inferential

allegations respecting all the material elements’ to recover under some viable legal theory.”

Barhite v. Caruso, 377 F. App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d

712, 716 (6th Cir. 2005)).

II. Parties and Claims

Plaintiff Morris sues Mary Katherine Huffman, a judge of the Montgomery County,

Ohio, Court of Common Pleas. It appears that Judge Huffman is or was presiding over two

criminal cases against Plaintiff in that court. Plaintiff identifies one case by case number in the

Complaint. (Doc. 1-1, PageID 6). See State of Ohio v. Leon Morris, C.P. No. 2020 CR 03962.

It appears that Plaintiff was convicted and sentenced to community control in 2021 in this First

Case, but the court terminated his probationary status because of a subsequent offense.1 It also

appears that Plaintiff was sentenced to a term of incarceration on that subsequent offense in a

1 According to an Entry issued on July 22, 2022 in the First Case, captioned “REINSTATEMENT/

WITHDRAWAL OF CAPIAS ISSUED ON 3/4/2022/TERMINATION OF COMMUNITY CONTROL

(ADMINISTRATIVE) (SUBSEQUENT OFFENSE),” that court in the First Case:

reinstate[d] the defendant to active community control for up to five (5) years on July 21, 2022. The

Court ORDERS the probationary status of the defendant be terminated in view of a commitment on

a subsequent offense, the Defendant be discharged, and this case be closed. All financial obligations

outstanding are suspended. The capias issued and outstanding in this case is dismissed.

The “subsequent offense” appears to be the Second Case, C.P. Case No. 2022 CR 01403.

Second Case.2 See State of Ohio v. Leon Aaron Morris, C.P. No. 2022 CR 01403. These cases,

referred to together as the Criminal Cases, are available by name or case number search at

https://pro.mcohio.org/ (accessed Dec. 28, 2022).3

Plaintiff also names as defendants David Merrell, who appears to have been an assistant

prosecuting attorney for a time in the First Case; Christopher Thompson, who appears to have

been an assistant public defender representing Plaintiff for a time in the First Case; and Poloa

Kinsey,4 a probation officer who allegedly provided a “falsified Report” to Judge Huffman in the

First Case. (Doc. 1-1, PageID 4, 6).

Plaintiff’s claims center on Judge Huffman’s decisions to deny him bond/bail in the First

Case in early 2022, allegedly on the basis of someone else’s record. (Doc. 1-1, PageID 6). This

appears to have been in the context of an alleged violation of community control sanctions. See

January 28, 2022 “Notice of CCS Revocation Hearing and Order” in the First Case. Plaintiff

alleges that the denial of bond/bail deprived him of the opportunity to bury his son. (Doc. 1-1,

PageID 6). Plaintiff also contends that his rights were violated by sentences imposed by Judge

Huffman.5 (Id.). He seeks damages in the amount of $4 billion, plus punitive damages of $2

billion, and attorney fees of $60,000. (Doc. 1-1, PageID 7).

Plaintiff raises these claims under 42 U.S.C. § 1983. (Doc. 1-1, PageID 5; Civil Cover

Sheet, Doc. 1-2, PageID 8; Doc. 6, PageID 40). This statute allows a plaintiff to seek redress

2 See Ohio Department of Rehabilitation and Correction Website, available at https://appgateway.drc.ohio.gov/

OffenderSearch/Search/Details/A805551 (accessed Dec. 28, 2022) (indicating Plaintiff is incarcerated on case

number 2022 CR 01403).

3 This Court may take judicial notice of court records that are available online to members of the public. See Lynch

v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

4 Documents in the First Case refer to a probation officer named Paola Kinsey.

5 It appears that the 12-month sentences mentioned in the Complaint were imposed in the Second Case, C.P. No.

2022 CR 01403. See fn.2. (Doc. 1-1, PageID 6).

from state actors for “the deprivation of any rights, privileges, or immunities secured by the

Constitution.” Nelson v. Campbell, 541 U.S. 637, 643 (2004). To state a cause of action under

Section 1983, a plaintiff must allege: “(1) a deprivation of a right secured by the Constitution or

laws 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).

III. Application for Default and Motions to Amend the Complaint

Plaintiff has filed an application for default judgment. (Doc. 5). He withdrew this

Application on December 7, 2022. (See Doc. 8, PageID 52). As Plaintiff notes, Defendants

have not yet been served, so default judgment would not be appropriate. (Id.) His request to

withdraw the application is GRANTED. The application (Doc. 5) is considered

WITHDRAWN.

Plaintiff has also filed three motions to amend the Complaint. First, on November 22,

2022, he filed two documents that include argument and “evidence” in support of his claims.

(Doc. 6-7). Three new allegations are included in these materials. First, Plaintiff asserts that

Judge Huffman knew that Plaintiff had violated his probation, but she “failed to violate my

probation and sentence[] me to prison for the violation. Instead [Judge]Huffman Re-enstated my

probation and Terminated it in order to Deny me my Jail-Time Credit of 81 days.” (Doc. 6,

PageID 39-40). With respect to Prosecutor Merrell, Plaintiff asserts that “he failed to do his

work he’s paid to do. On sidebar Merrell admits to NOT knowing what was going on in this

Court hearing where had he been doing his Job that the STATE OF OHIO pays him to do he

could have protected my rights . . .” (Doc. 6, PageID 41). Finally, Plaintiff asserts that

Defendants are not entitled to any immunity “because they acted in the CLEAR ABSENCE OF

ALL JURISDICTION when they committed these offenses.” (Doc. 6, PageID 41). There is no

information about why jurisdiction was lacking.

The Undersigned CONSTRUES these two documents (Doc. 6-7) together as a First

Motion to Amend the Complaint and GRANTS the motion. Fed. R. Civ. P. 15(a)(1).

On December 7, 2022, Plaintiff filed a second motion to amend the Complaint. (Doc. 8).

In this motion, Plaintiff withdraws his application for default judgment (as discussed above) and

clarifies that he sues Defendants only in their official capacities. (Id.) The Undersigned

GRANTS this motion to amend. Fed. R. Civ. P. 15(a)(2).

On December 27, 2022, Plaintiff filed a third motion to amend the Complaint. (Doc. 10).

In this motion, Plaintiff asserts that the allegations in the Complaint are true and accurate. (Id.)

The Undersigned GRANTS this motion to amend as well. Fed. R. Civ. P. 15(a)(2). These

materials (Doc. 6-7, 8, 10) will be considered as part of the Court’s initial screening of the

Complaint (Doc. 1-1).

The Undersigned cautions Plaintiff that he is not entitled to amend his Complaint as often

as he likes. He will be required to ask for, and obtain, permission from this Court to file any

further amendments. See Fed. R. Civ. P. 15(a)(2).

IV. Discussion

Plaintiff’s Complaint should be dismissed for several overlapping reasons. He seeks to

undermine his criminal convictions, seeks monetary relief from defendants who are immune

from such relief, or who are otherwise immune, or who are not state actors.

A. Some Claims Cannot be Raised in a § 1983 Action

It is well-established that a federal-court challenge to the validity of a state criminal

conviction and sentence must be raised in a petition for a writ of habeas corpus. Hill v.

McDonough, 547 U.S. 573, 579 (2006); Mohammad v. Close, 540 U.S. 749, 750 (2004)

(“Challenges to the validity of any confinement or to particulars affecting its duration are the

province of habeas corpus”). The Supreme Court of the United States has said that “habeas

corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his

confinement and seeks immediate or speedier release, even though such a claim may come

within the literal terms of § 1983.”6 Heck v. Humphrey, 512 U.S. 477, 481 (1994) (citing Preiser

v. Rodriguez, 411 U.S. 475, 488-90 (1973)).

Here, Plaintiff seeks monetary damages for what he sees as errors or constitutional

violations that occurred in the Criminal Cases against him.

[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas corpus[.]

Heck, 512 U.S. at 486-87.

Plaintiff directly challenges his sentence when he argues that Judge Huffman violated the

law by unlawfully sentencing him to 12 months in prison on each of two separate charges, and

by claiming that he was denied jail time credit that would have reduced his sentence. (Doc. 1-1,

PageID 6; Doc. 6, PageID 39-40). His claims alleging prosecutorial misconduct and the

ineffective assistance of counsel, if successful, would necessarily imply the invalidity of his

convictions or sentences. See Hann v. Michigan, No. 05-cv-71347, 2006 WL 1698967, at *4

(E.D. Mich. June 14, 2006) (“a finding that Plaintiff’s current imprisonment is a result of

ineffective assistance of counsel which would necessarily imply the invalidity of his

imprisonment”); Thompson v. O’Malley, No. 1:22-cv-649, 2022 WL 2803194, at *2 (N.D. Ohio

6 The Undersigned expresses no opinion on whether Plaintiff may or should bring such an action, or whether he has

met the statutory prerequisites for filing such an action, such as exhausting his state-court remedies. 28 U.S.C. §

2254(b).

July 18, 2022) (“A judgment in Plaintiff’s favor on his claims of prosecutorial misconduct would

necessarily imply the invalidity of his conviction”). Thus, Plaintiff cannot challenge these issues

in a § 1983 action unless he can show that his convictions or sentences have already been

invalidated. Heck, 512 U.S. at 486-87.

Plaintiff has not made such a showing. He appears to want to invalidate his convictions

or sentences in this § 1983 action. Heck prohibits him from doing so.

Not all of Plaintiff’s claims appear to be barred by Heck, however. His claims that Judge

Huffman denied him bond/bail in the First Case after he violated his community control, and this

claim that Probation Officer Kinsey provided a false report to Judge Huffman on which she

based her decision, do not appear to necessarily imply the invalidity of Plaintiff’s conviction or

sentence in the First Case. However, these claims fail for other reasons, as discussed below.

B. Claims against Judge Huffman, Prosecutor Merrell, and Probation Officer

Kinsey in their Official Capacities

As noted above, Plaintiff has expressly limited his suit to claims against Defendants in their

official capacities. (Doc. 8, PageID 52 (requesting to amend his “Complaint from Both Official

Capacity & Individual Capacity to Official Capacity ONLY”)).

Claims against state officials or employees in their official capacities are the same as

claims against the state itself. “While ‘[p]ersonal-capacity suits seek to impose personal liability

upon a government official for actions he takes under color of state law,’ individuals sued in

their official capacities stand in the shoes of the entity they represent.” Alkire v. Irving, 330 F.3d

802, 810 (6th Cir. 2003) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Thus, “[a]

suit against an individual in his official capacity is the equivalent of a suit against the

governmental entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v.

Michigan Dept. of State Police, 491 U.S. 58, 68 (1989)).

Here, claims against Judge Huffman, Prosecutor Merrell, and Probation Officer Kinsey in

their official capacities are the same as claims against the State of Ohio. See Mumford v.

Basinski, 105 F.3d 264, 269 (6th Cir. 1997) (concluding that an Ohio Common Pleas Court was

an arm of the state and a claim against a judge of that court was a claim against the state); Cady

v. Arenac Cnty., 574 F.3d 334, 342 (6th Cir. 2009) (citing Pusey v. City of Youngstown, 11 F.3d

652, 657 (6th Cir. 1993)) (“prosecutors are considered state officials under Ohio law when they

‘are responsible for prosecuting state criminal charges.’”); Michelle R. v. Vill. of Middleport

Ohio, No. 2:19-cv-2272, 2020 WL 1275686, at *3 (S.D. Ohio Mar. 17, 2020) (agreeing that

claims against a probation officer/clerk/bailiff of a Common Pleas Court was essentially a suit

against that court, a state entity).

Claims for damages against the State of Ohio are barred by the Eleventh Amendment to

the United States Constitution, which “‘denies to the federal courts authority to entertain a suit

brought by private parties against a state without its consent.’” Maben v. Thelen, 887 F.3d 252,

270 (6th Cir. 2018) (quoting Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 464

(1945)). “The [United States Supreme] Court has held that, absent waiver by the State or valid

congressional override, the Eleventh Amendment bars a damages action against a State in federal

court.” Maben, 887 F.3d. at 270, (quoting Kentucky v. Graham, 473 U.S. at 169). Here,

“because Ohio has not consented to suits in federal court nor has Congress abrogated Ohio’s

immunity under § 1983,” the State of Ohio has immunity for claims against it. Smith v. DeWine,

476 F. Supp. 3d 635, 652 (S.D. Ohio 2020) (citing Ohio v. Madeline Marie Nursing Homes # 1

& # 2, 694 F.2d 449, 460 (6th Cir. 1984) and Giles v. Univ. of Toledo, 478 F. Supp. 2d 924, 960-

61 (N.D. Ohio 2007)).

This Eleventh Amendment immunity “extends to state officials sued in their official

capacity” for damages, such as is pursued here. (Doc. 1-1, PageID 7). Smith, 476 F. Supp. 3d at

650-51. Again, this is because “‘a suit against a state official in his or her official capacity is not

a suit against the official but rather is a suit against the official’s office,’ which is ‘no different

from a suit against the State.’” McCoy v. Michigan, 369 Fed. App’x. 646, 654 (6th Cir. 2010)

(quoting Will, 491 U.S. at 71). Accordingly, Plaintiff’s claims for damages against Judge

Huffman, Prosecutor Merrell, and Probation Officer Kinsey in their official capacities are barred

by the Eleventh Amendment and cannot proceed.

The Undersigned notes for completeness that had Plaintiff not limited his suit to claims

against these Defendants in their official capacities, his claims against them in their individual

capacities would also fail. See generally Pettus-Brown v. Cooper, No. 1:15-cv-539, 2015 WL

13739353, at *12 (S.D. Ohio Sept. 1, 2015), report and recommendation adopted, 2015 WL

5954582 (S.D. Ohio Oct. 14, 2015) (and cases cited therein) (recommending dismissal of claims

against a judge, prosecutor, and probation officer because they are immune from suit in their

individual capacities). And, the Undersigned notes that this official-capacity analysis does not

apply to does not apply to Public Defender Thompson. These issues are addressed further in the

following sections.

C. Claims against Judge Huffman and Probation Officer Kinsey in their

Individual Capacities

Plaintiff’s claims against Judge Huffman in her individual capacity are barred by the

doctrine of judicial immunity. “It is well established that judges are entitled to absolute judicial

immunity from suits for money damages for all actions taken in the judge’s judicial capacity,

unless these actions are taken in the complete absence of any jurisdiction.” Bush v. Rauch, 38

F.3d 842, 847 (6th Cir. 1994) (citing Mireles v. Waco, 502 U.S. 9 (1991)) (emphasis added);

Foster v. Walsh, 864 F.2d 416 (6th Cir. 1988)). Judicial immunity shields judges “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, 502 U.S. at

11.

The Complaint here targets only Judge Huffman’s actions as the judge in the Criminal

Cases against Plaintiff. These actions were taken in Judge Huffman’s judicial capacity and

constitute “judicial acts.” See Mann v. Conlin, 22 F.3d 100, 104 (6th Cir. 1994) (“those [acts]

that involve resolution of disputes between parties who have invoked the jurisdiction of a court”

are judicial acts) (cleaned up); Brown v. Hamilton Cnty., Ohio/Hamilton Cnty. Prosecutor’s Off.,

No. 1:19-cv-969, 2021 WL 4451563, at *2-3 (S.D. Ohio Sept. 29, 2021) (where “each of the

alleged actions about which Plaintiff complains occurred in the context of the criminal case

brought against him,” the defendant judge was immune and the claims against him dismissed).

Judges performing judicial acts have immunity as long as they have jurisdiction over the

subject matter before them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Here, the

Complaint alleges no facts to plausibly suggest that Judge Huffman entirely lacked subject

matter jurisdiction over the Criminal Cases against Plaintiff. (See Doc. 1-1, PageID 6).

Although Plaintiff argues that Judge Huffman “acted in the CLEAR ABSENCE OF ALL

JURISDICTION” (Doc.6, PageID 41), he provides no facts to demonstrate why that might be so.

Cf. Leech v. DeWeese, 689 F.3d 538, 543 (6th Cir. 2012) (finding that an Ohio Common Pleas

Court Judge had jurisdiction over a defendant’s community control sanctions under Ohio Const.

art. IV, § 4(B) and Ohio Revised Code § 2929.15); State v. Heinz, 146 Ohio St. 3d 374, 2016-

Ohio-2814, 56 N.E.3d 965, ¶ 15 (“The revocation of community control is an exercise of the

sentencing court’s criminal jurisdiction, and pursuant to R.C. 2929.15(B)(1), the court may

extend the term of the offender’s community control or impose a more restrictive sanction or a

prison term if the conditions of community control are violated.”). This exception, therefore,

does not apply.

Finally, with respect to Plaintiff’s allegation that Judge Huffman acted with malice or

erred in her decisions, the Undersigned notes that “[j]udicial immunity is not overcome by

allegations of bad faith or malice.” Mireles, 502 U.S. at 11 (citing Pierson v. Ray, 386 U.S. 547,

554 (1967)) (“[I]mmunity applies even when the judge is accused of acting maliciously and

corruptly”). And, “[a] judge will not be deprived of immunity because the action he took was in

error, was done maliciously, or was in excess of his authority.” Stump, 435 U.S. at 356.

Because the allegations in the Complaint show that Judge Huffman was acting within her

judicial capacity and there is no plausible reason articulated why she entirely lacked jurisdiction

over the Criminal Cases against Plaintiff, Judge Huffman is immune from suit in her individual

capacity.

The claims against Probation Officer Kinsey should be dismissed for similar reasons.

Plaintiff alleges that, according to Judge Huffman, Kinsey “gave the Court a falsified Report on

Plaintiff so she also chose to aid & [abet] in these violations of my rights.” (Doc. 1-1, PageID

6). No further details are provided about the alleged error. It may be that this assertion is

connected to Plaintiff’s allegation that Judge Huffman used another person’s record or file to

deny him bond/bail. (Id.). Although this claim is not clear, the record of the First Case appears

to reflect that Kinsey may have been involved with providing Judge Huffman information about

Plaintiff violating his community control sanctions, after which Judge Huffman denied him

bond/bail. See January 28, 2022 “Notice of CCS Revocation Hearing and Order” in the First

Case.

Probation Officer Kinsey is entitled to quasi-judicial immunity because she was

performing duties to ensure the Judge Huffman had information about Plaintiff’s behavior to

make decisions about bond/bail. See Loggins v. Franklin Cnty., Ohio, 218 F. App’x 466, 476

(6th Cir. 2007) (quoting Balas v. Leishman-Donaldson, No. 91-4073, 1992 WL 217735 (6th Cir.

Sept. 9, 1992)) (“[W]hen a judge seeks to determine whether a defendant is complying with the

terms of probation, the judge is performing a judicial function. To the extent court personnel

were investigating whether [a defendant] was complying with the terms of his probation, they

were performing a quasi-judicial function. To the extent [probation officers] were performing

that function at the direction of the judge, they are entitled to quasi-judicial immunity. All of the

same considerations that would apply to the judge apply to the probation officer.”). In other

words, “[q]uasi-judicial immunity ‘extends to those persons performing tasks so integral or

intertwined with the judicial process that these persons are considered an arm of the judicial

officer who is immune.’” Norman v. Warren Cnty. Ct., 279 F. Supp. 3d 752, 758 (S.D. Ohio

2017) (quoting Draine v. Leavy, 504 F. App’x. 494, 495 (6th Cir. 2012)).

“When a probation officer evaluates an individual to determine whether he has violated

the conditions of his probation, the officer is entitled to absolute judicial immunity from suit

under Section 1983.” Warick v. Kentucky Just. & Pub. Safety Cabinet, No. CIV. A. 08-146,

2008 WL 4443056, at *5 (E.D. Ky. Sept. 26, 2008) (citing Timson v. Wright, 532 F.2d 552, 553

(6th Cir. 1976)). Here, it appears that Plaintiff was on community control sanctions rather than

probation, but the same analysis applies. See generally State v. Heinz, 146 Ohio St. 3d 374,

2016-Ohio-2814, 56 N.E.3d 965, ¶ 14 (quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-

4888, 814 N.E.2d 1201, ¶ 16) (noting that “community control replaced probation as a possible

sentence under Ohio’s felony sentencing law” in 1996).

The Sixth Circuit rejected a similar claim that a probation officer gave false information

to a judge in Loggins:

Accepting all of [plaintiff’s] allegations against Brooks as true, he fails to state a

claim upon which relief can be granted because Brooks is entitled to immunity. All

of Brooks’ actions were related to ensuring [plaintiff] was complying with the terms

of his probation. At all relevant times Brooks was working for Judge Froehlich in

the context of a judicial proceeding, unlike, for example, an independent

complaining witness or investigating officer. See Kalina v. Fletcher, 522 U.S. 118,

126-28, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). All statements made by Brooks

were during the judicial decision making process considering whether to revoke

[plaintiff’s] probation. All adverse actions [plaintiff] complains of were done by

Judge Froehlich aided by the recommendation of Brooks. As all of Brooks’ actions

were intimately associated with judicial proceedings, the district court did not err

in granting Brooks’ motion to dismiss.

Loggins, 218 F. App’x at 477. For the same reasons, the claims against Probation Officer Kinsey

in her individual capacity should be dismissed.

D. Claims against Prosecutor Merrell in his Individual Capacity

Plaintiff’s claims against Prosecutor Merrell in his individual capacity are also barred.

(Doc. 1-1, PageID 6). Like judges, prosecutors are “absolutely immune from liability” for

actions they take 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); see

also Cady v. Arenac Cnty., 574 F.3d 334, 339 (6th Cir. 2009) (citing Imbler v. Pachtman, 424

U.S. 409, 410 (1976)) (“The Supreme Court in Imbler held that ‘a state prosecuting attorney who

acted within the scope of his duties in initiating and pursuing a criminal prosecution’ was not

amenable to suit under § 1983.”). There are some narrow exceptions to this immunity, see Van

de Kamp, 555 U.S. at 343, but nothing in the Complaint implicates them. “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) (cleaned up). In other

words, a prosecutor is immune if their “conduct was ‘undertaken in connection with [his or her]

duties in functioning as a prosecutor.’” Id. at 513 (quoting Skinner v. Govorchin, 463 F.3d 518,

525 (6th Cir. 2006)).

Here, the only allegation in the Complaint against Prosecutor Merrell is that he “failed to

protect Plaintiff’s Rights and chose to aid and abbed [sic] in Violation of my Rights,” perhaps

with respect to the denial of bond/bail. (Doc. 1-1, PageID 6). Plaintiff later alleged that

Prosecutor Merrell failed to do his job during a court hearing. (Doc. 6, PageID 41). Prosecutor

Merrell’s actions with respect to the Criminal Cases, such as advocating for a particular outcome,

are, definitionally, undertaken in connection with his duties as a prosecutor. Thus, Prosecutor

Merrell is absolutely immune from suit and all the claims against him in his individual capacity

should be dismissed.

E. Claims against Public Defender Thompson

The claims against Public Defender Thompson should also be dismissed, but for a

different reason than those identified above: Thompson is not a “state actor” that can be sued

under Section 1983. As noted above, to state a claim under § 1983, “a plaintiff must allege a

violation of a right secured by the federal Constitution or laws and must show that the violation

was committed by a person acting under color of state law.” Flanory v. Bonn, 604 F.3d 249,

253 (6th Cir. 2010) (emphasis added). “It is firmly established that a public defender or a court-

appointed defense counsel, while acting in that capacity, is not a state actor for purposes of §

1983”; that is, they are not “a person acting under color of state law.” White v. Robertson-

Deming, 9 F. App’x 418, 419-20 (6th Cir. 2001) (citing Polk County v. Dodson, 454 U.S. 312,

321 (1981)); see also Whisnant v. Stokes, No. 1:08-cv-229, 2008 WL 4763853, at *5 (E.D. Tenn.

Oct. 28, 2008) (and the cases cited therein) (“courts have uniformly held [that] an attorney,

whether appointed or retained, whether in state court or federal court, is not acting under color of

law.”).

There are some narrow exceptions to this rule. For example, “[a] person may be a state

actor if he or she ‘acted together with or has obtained significant aid from state officials, or

because his conduct is otherwise chargeable to the State.’” Ayers v. Gabis, No. 20-11735, 2021

WL 4316853, at *4 (E.D. Mich. Sept. 23, 2021) (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982)). “But without some plausible and specific factual showing that the person

acted in concert with state officials to deprive the plaintiff of some constitutional right, a criminal

defense attorney is not a ‘state actor’ and is not subject to suit under 42 U.S.C. § 1983.” Ayers,

2021 WL 4316853, at *4 (citing Elrod v. Michigan Supreme Court, 104 F. App’x 506, 508 (6th

Cir. 2004)). Even alleging “that [a] court-appointed attorneys conspired with the trial judge to

deprive him of a fair trial,” without pleading any facts to support the conclusionary label, is

insufficient. Ayers, 2021 WL 4316853, at *5.

Here, Plaintiff asserts that Public Defender Thompson knew that Judge Huffman was

using someone else’s file to deny him bail and “chose to aid and [abet] in this illegal conduct” in

some unspecified way. (Doc. 1-1, PageID 6). He also claimed that Thompson failed to uphold

his constitutional rights. (Doc. 6, PageID 42). There are no other facts pled with respect to

Thompson, and no facts that would allow the Undersigned to conclude that the described

exception would apply. Accordingly, the general rule—that a public defender is not subject to

suit under § 1983—applies, and all of the claims against Public Defender Thompson in both his

official and his individual capacity should be dismissed.

F. Comments on the Substance of the Claims

As discussed in the preceding sections, Plaintiff’s claims cannot proceed against

Defendants. In the interest of completeness, the Undersigned includes the following comments

about the substance of two of the claims.

Plaintiff’s main claim against Judge Huffman—and against the Defendants who allegedly

aided and abetted—appears to be premised on Plaintiff’s understanding that he was absolutely

entitled to bond/bail in the First Case. (Doc. 1-1, PageID 6 (alleging that Judge Huffman

“den[ied] my bond or bail which I have a RIGHT TOO.”); Doc. 6, PageID 39 (alleging that

Judge Huffman denied him his “right to bond, a Gauranteed Right”) and PageID 42 (referring to

a “GAURANTEED Right to Bail”); Doc. 1-1, PageID 6 (alleging that the other Defendants aided

and abetted this violation)).

There is no absolute federal constitutional right to bond or bail, particularly after

conviction. Armengau v. Bradley, No. 16-3977, 2018 WL 4008371, at *2 (6th Cir. Mar. 22,

2018) (citing Bloss v. Michigan, 421 F.2d 903, 905 (6th Cir. 1970)) (“there is no federal

constitutional right to bail pending appeal.”). In the First Case, Plaintiff had been convicted in

2021, and was before Judge Huffman in early 2022 because he (admittedly) violated the terms of

his community control sanctions. (See Doc. 6, PageID 39 (“…I violated my probation…”); Doc.

7 (transcript showing that Plaintiff acknowledged he was ordered to get an assessment, but “it

took a little long, and you know, I didn’t get it. So I didn’t want to go to jail. So this is why I

didn’t show up.”)). Whatever entitlement Plaintiff may have to bond/bail under Ohio law, he did

not have an absolute federal constitutional right to it.

An action under § 1983 cannot be based on an alleged violation of state law. See

Williams v. Burgess, No. 5:21-cv-99, 2021 WL 5816830, at *4 (W.D. Ky. Dec. 7, 2021) (citing

Laney v. Farley, 501 F.3d 577, 580 n.2 (6th Cir. 2007)) (“The purpose of § 1983 is to remedy

violations of federal law, not state law.”); Lewellen v. Metro. Gov’t of Nashville, 34 F.3d 345,

347 (6th Cir. 1994) (“Unless a deprivation of some federal constitutional or statutory right has

occurred, § 1983 provides no redress even if the plaintiff’s common law rights have been

violated and even if the remedies available under state law are inadequate”). While Plaintiff’s

frustration at being unable to attend his son’s burial is understandable, the matter does not

present a federal constitutional issue that this Court can consider under § 1983.

Finally, with respect to Plaintiff’s claim that Probation Officer Kinsey included false

information in a report to Judge Huffman, the Undersigned notes that “the mere presence of

hearsay or inaccurate information in a pre-sentence report [provided by a probation officer] does

not constitute a denial of due process.” Jamison v. Holly, No. 2:14-cv-13394, 2015 WL 163995,

at *4 (E.D. Mich. Jan. 13, 2015) (citing Hili v. Sciarrotta, 140 F.3d 210, 216 (2d Cir. 1998)).

Were the Court to move past the issues discussed above and examine the merits of these claims,

or to address the conclusionary statements in the Complaint about violations of rights, it is

unlikely that they would be found to state a claim upon which relief may be granted.

V. Request for Issuance of Summons

Plaintiff has requested that Summons be issued to Defendants so that the case can proceed.

(Doc. 9). Because the Undersigned is recommending that the Complaint be dismissed in its

entirety, the Undersigned RECOMMENDS that the Court DENY this request as moot.

VI. Conclusion and Recommended Disposition

The Undersigned GRANTS Plaintiff’s three motions to amend the Complaint (Doc. 6-7,

8, 10). Plaintiff’s application for default judgment (Doc. 5) is considered WITHDRAWN

pursuant to Doc. 8.

Having screened the Complaint as required by law, the Undersigned concludes that none

of Plaintiff’s claims for damages against Judge Huffman, Prosecutor Merrell, Public Defender

Thompson, or Probation Officer Kinsey should proceed, as these Defendants are either immune

or not state actors against whom a § 1983 claim can be raised, and because Plaintiff cannot

undermine his criminal convictions or sentences in this civil action. The Undersigned therefore

RECOMMENDS that:

1. The Court DISMISS the Complaint, as amended, in its entirety with prejudice

pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2).

2. The Court DENY Plaintiff’s Request for Issuance of Summons (Doc. 9).

3. The Court CERTIFY pursuant to 28 U.S.C. § 1915(a)(3) that, for the reasons

discussed above, an appeal of any Order adopting this Report and

Recommendation would not be taken in good faith, and therefore, deny Plaintiff

leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601

(6th Cir. 1997).

VII. Notice Regarding Objections to this Report and Recommendations

If any party objects to this Report and Recommendations (“R&R”), the party may serve

and file specific, written objections to it within FOURTEEN DAYS after being served with a

copy thereof. Fed. R. Civ. P. 72(b). All objections shall specify the portion(s) of the R&R objected

to and shall be accompanied by a memorandum of law in support of the objections. The Court

may extend the 14-day objections period if a timely motion for an extension of time is filed.

A Judge of this Court will make a de novo determination of those portions of the R&R to

which objection is made. Upon proper objection, 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 R&R will result in a

waiver of the right to have the District Judge review the R&R de novo, and will also operate as a

waiver of the right to appeal the decision of the District Court adopting the R&R. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

December 28, 2022 /s/ Caroline H. Gentry

Caroline H. Gentry

UNITED STATES MAGISTRATE JUDGE