Davenport v. Miller

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

AUSTIN R. DAVENPORT, : Case No. 2:24-cv-2838

:

Plaintiff, : District Judge Sarah D. Morrison

: Magistrate Judge Caroline H. Gentry

vs. :

:

ANDY D. MILLER, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the Franklin County Correction Center, filed a prisoner civil rights

complaint in this Court.1 (Doc. 1). By separate Order, Plaintiff has been granted leave to proceed

in forma pauperis. This matter is now before the Court for a sua sponte review of the complaint to

determine whether the complaint, or any portion of it, should be dismissed because it 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. See Prison Litigation Reform Act of 1995 § 804, 28

U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Also before the Court are Plaintiff’s motions

seeking de novo review of his state-court criminal proceedings. (See Doc. 9, 10).

Screening of Plaintiff’s Complaint

A. Legal Standard

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower

judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing

so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed

1 The complaint was originally filed in the United States District Court for the District of Columbia, and was

transferred to this Court on May 22, 2024. (Doc. 6).

by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,

malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324

(1989)). To address this concern, Congress included subsection (e)(2) as part of the statute, which

provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). Thus, § 1915(e) requires

sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or

malicious, or upon determination that the action fails to state a claim upon which relief may be

granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill

v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands

on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d

502, 503 (6th Cir. 2013).

2 Formerly 28 U.S.C. § 1915(d).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint

must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”

Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “The plausibility of an inference depends on a host of

considerations, including common sense and the strength of competing explanations for the

defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds

pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett

v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits;

“‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors,

482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.

1989)).

B. Allegations in the Complaint

Plaintiff brings this action in connection with his pending criminal case in the Franklin

County Court of Common Pleas, Case No. 21-CR-5077.3 Plaintiff sues the following Defendants:

3 Viewed at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/ under Case No. 21-CR-5077. 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).

Judge Andy D. Miller, Prosecutors Daniel J. Cable and George Wharton, Defense Attorneys Esra

Betul Ozturk and Jeffrey M. Blosser, Detective Bradley M. Thomas, and Jeffrey M. Murphy.

(Doc. 1 at PageID 4, 8; see also Doc. 13).

Plaintiff alleges that on June 25, 2021, he was arrested in Fairfield County, Ohio on charges

of obstruction of justice and resisting arrest. According to Plaintiff, Defendant Detective Thomas

“came to see me at the Fairfield County Jail with a[n] unsworn affidavit for my DNA in displayed

the name of a[n] unknown judge.” [sic] (Id. at PageID 5). On November 9, 2021, Plaintiff alleges

that he was brought to Franklin County, Ohio on an unrelated charge of aggravated robbery.

Plaintiff claims that in both cases the charges were supported with unsworn affidavits, there was

no criminal complaint, and he had no preliminary hearing. (Id. at PageID 5). On December 8,

2021, Plaintiff claims he was arraigned on felony charges.

On January 18, 2022, Plaintiff alleges he was taken to the Franklin County Common Pleas

Court and placed in a holding cell for three to four hours, before being informed that his case had

been continued. (Id. at PageID 7). Plaintiff claims that the same events occurred on several

occasions between April 26, 2022 and April 15, 2024.

According to Plaintiff, he was subjected to excessive bond in connection with his state-

court criminal case. (Id. at PageID 6). Plaintiff claims that he asked his defense attorneys,

Defendants Esra B. Oturk and Jeffrey M. Blosser, to file a request for a bond hearing. (Id. at

PageID 6, 7). Plaintiff asserts that “the record simply does not support the imposition of a bail-

bond amount” in his case, and that his attorneys did not effectively challenge his bond.

Based on the factual allegations in the complaint, Plaintiff claims that his constitutional

rights to a speedy trial and against excessive bail were violated, in addition to several provisions

of Ohio law. (See id. at PageID 6, 7). Plaintiff claims that his defense attorneys violated provisions

of the Ohio Code of Professional Responsibility. He also alleges a violation of Ohio Rev. Code

§ 2913.01, which is Ohio’s Theft and Fraud criminal statute. (Id. at PageID 6). In his pending

motions, Plaintiff also alleges violations of other Ohio statutes regarding the time for trial, delays,

and defects in indictments. (See Doc. 10 at PageID 39-40). Plaintiff seeks immediate release from

custody and monetary damages based on his imprisonment pending trial. (Id. at PageID 5).

C. Analysis

For the reasons set forth below, Plaintiff’s complaint should be dismissed in its entirety.

See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).

As an initial matter, to the extent that Plaintiff seeks release from custody or asserts

violations of his speedy trial rights and/or excessive bail, the proper mechanism is a petition for a

writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (“This Court has held that a

prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration of his

confinement.’”) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). See also Braden v. 30th

Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-90 (1973) (a pretrial detainee who has

exhausted all available state remedies as a prelude to seeking federal habeas relief may file a

pretrial petition under § 2241 to the extent he seeks “to demand enforcement of the [State’s]

affirmative constitutional obligation to bring him promptly to trial.”); Lucas v. Lewis, No. 1:22-

cv-741, 2023 WL 2154680, at *2 (S.D. Ohio Feb. 22, 2023) (dismissing an excessive bail claim

without prejudice, noting that the claim the plaintiff “may press that claim in habeas but not

through § 1983”). To the extent that Plaintiff seeks relief in the form of an immediate or speedier

release from imprisonment, his sole federal remedy is a petition for writ of habeas corpus brought

pursuant to 28 U.S.C. § 2254 after he has exhausted his state remedies. See Preiser, 411 U.S. at

500; Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985).

To the extent that Plaintiff seeks monetary damages, his federal Section 1983 claims should

be dismissed for failure to state a claim upon which relief may be granted, and the Court should

decline to exercise its supplemental jurisdiction over his state-law claims.

Plaintiff’s Section 1983 claim against Defendant Judge Andy Miller should be dismissed

with prejudice because judges have absolute immunity for acts committed while acting in their

judicial capacity. Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d 246, 255

(6th Cir. 1997). Judges retain absolute immunity from liability even if they act maliciously or

corruptly, as long as they are performing judicial acts and have jurisdiction over the subject matter

giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). See also

Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962 (6th Cir.1985).

Plaintiff’s complaint alleges no facts to plausibly suggest that Defendant Miller presided over a

matter in which he was without subject matter jurisdiction, or performed non-judicial acts.

Similarly, Plaintiff’s Section 1983 claims against Defendant Prosecutors Cable and

Wharton should be dismissed with prejudice because they are also immune from suit. “Prosecutors

are entitled to absolute immunity for conduct ‘intimately associated with the judicial phase of the

criminal process.’” Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir.

1998) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This includes a county

prosecutor’s initiation of a prosecution and presentation of the State’s case at trial. Imbler, 424

U.S. at 431. Such “absolute prosecutorial immunity is not defeated by a showing that a prosecutor

acted wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498 n. 7 (6th Cir. 1998).

Because Plaintiff seeks to hold the Defendant Prosecutors liable based on conduct intimately

associated with the judicial phase of the criminal process, they have absolute immunity.

Plaintiff’s Section 1983 claims against Defendants Ozturk and Blosser, who were his

defense attorneys, should be dismissed with prejudice because they are not state actors. In order to

bring suit under Section 1983, Plaintiff must allege that the defendant was acting under color of

state law and that his or her conduct deprived plaintiff of a right secured by the Constitution or

laws of the United States. Graham v. National Collegiate Athletic Ass’n, 804 F.2d 953, 957 (6th

Cir. 1986) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986)). As lawyers representing a client, Defendants Ozturk

and Blosser were not state actors within the meaning of § 1983. See Polk County v. Dodson, 454

U.S. 312 (1981) (holding that public defender does not act under color of state law for purposes of

§ 1983); McCord v. Bailey, 636 F.2d 606, 613 (D.C. Cir. 1979) (applying Polk County to retained

criminal lawyers). See also Catz v. Chalker, 142 F.3d 279, 289 (6th Cir. 1998).

Finally, Plaintiff’s Section 1983 claims against the remaining Defendants, Detective

Bradley M. Thomas and Jeffrey M. Murphy, should be dismissed without prejudice. Plaintiff’s

complaint includes no factual allegations against Defendant Murphy. His only allegation against

Defendant Thomas is that Thomas showed him an unsworn affidavit at the Fairfield County, Ohio

Jail.4 (See Doc. 1 at PageID 5). Plaintiff’s “naked assertion[s] devoid of further factual

enhancement” fail to meet the basic pleading standard under Twombly and Iqbal.

Because the undersigned recommends dismissal of Plaintiff’s federal claims, the Court

should decline to exercise jurisdiction over Plaintiff’s state-law claims and dismiss such claims

without prejudice. See Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 210 (6th Cir. 2004)

(although the exercise of supplemental jurisdiction under 28 U.S.C. § 1367 is a matter of

4 In his pending motion for de novo review, Plaintiff asserts that the affidavit did not comply with various provisions

of Ohio law. (See Doc. 10-1 at PageID 63-65). As noted below, it is recommended that the Court dismiss Plaintiff’s

state-law claims without prejudice.

discretion, when a court dismisses all federal claims before trial, it generally should dismiss the

state law claims as well). Finally, because it is recommended that this case be dismissed, Plaintiff’s

pending motions for de novo review (Doc. 9, 10) should be denied.

IT IS THEREFORE RECOMMENDED THAT:

1. The Court DISMISS Plaintiff’s federal claims against Defendants Miller, Cable,

Wharton, Ozturk and Blosser with prejudice.

2. The Court DISMISS Plaintiff’s federal claims against Defendants Thomas and

Murphy without prejudice.

3. The Court DECLINE to exercise supplemental jurisdiction over Plaintiff’s

remaining state-law claims and DISMISS such claims without prejudice.

4. The Court DENY Plaintiff’s motions for de novo review (Doc. 9, 10) as moot.

5. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons

an appeal of any Order adopting this Report and Recommendation would not be taken in good

faith. See McGore v. 114 F.3d 601 (6th Cir. 1997).

Date: October 7, 2024 /s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

side for an extension of time. 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. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit rights

on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981).