Nix v. Franklin County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DELSHAUN R. NIX,

Plaintiff,

v. Civil Action 2:25-cv-327

Chief Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

RON O’BRIEN, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Delshaun R. Nix, an Ohio inmate who is proceeding without the assistance of

counsel, sues several prosecuting attorneys and his former criminal defense attorney under 42

U.S.C. § 1983, alleging that Defendants violated his constitutional rights in connection with his

2009 criminal prosecution and subsequent prison sentence. This matter is before the Court for

the initial screen of Plaintiff’s Amended Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to

identify cognizable claims and to recommend dismissal of Plaintiff’s Amended Complaint, or

any portion of it, which 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.

§§ 1915(e)(2), 1915A(b)(1)–(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir.

1997). Having performed the initial screen, it is RECOMMENDED that the Court DISMISS

Plaintiff’s claims against the Defendants Ron O’Brien, James Lowe, David Zeyen, George

Tyack, Taylor Mick, Shayla Favor, and Benjamin Tracey, and Plaintiff’s § 1983 claim against

Defendant Mark Collins, for failure to state a claim on which relief can be granted. It is further

RECOMMENDED that Plaintiff’s remaining state-law claim against Defendant Mark Collins

be DISMISSED WITHOUT PREJUDICE to re-filing in state court.

As a result, it is further RECOMMENDED that the Court DENY AS MOOT Plaintiff’s

Motion for Summary Judgment (ECF No. 8) and Motion for Appointment of Counsel (ECF No.

9).

I. BACKGROUND

In 2009, Plaintiff (then a juvenile) pleaded guilty to three counts of aggravated robbery

and one count of involuntary manslaughter, resulting in a prison sentence of 20 years. Plaintiff

pleaded guilty on the advice of his court-appointed attorney, Defendant Mark Collins. Plaintiff

alleges that the charging information, prepared by Defendant, former Franklin County

Prosecuting Attorney Ron O’Brien, contained false statements of fact. Plaintiff further alleges

that his co-defendant received a lighter sentence even though the two were identically situated.

Plaintiff thus alleges that Mr. Collins provided ineffective assistance of counsel when advising

Plaintiff to plead guilty. (Am. Compl. 3–8, ECF No. 7.)

During Plaintiff’s eighteen subsequent years of incarceration, Plaintiff filed six motions

for judicial release, all of which were opposed by various Franklin County prosecuting attorneys,

including Defendants Ron O’Brien, James Lowe, David Zeyen, George Tyack, Taylor Mick,

Shayla Favor, and Benjamin Tracey (the “Prosecutor Defendants”). Plaintiff alleges that the

Prosecutor Defendants’ opposition memos to his motions for judicial release all contain the same

misstatements of fact, resulting in his motions for judicial release being unfairly denied. (Id. at

9–31.)

Plaintiff sues Mr. Collins for ineffective assistance of counsel and sues the Prosecutor

Defendants for violations of his Fifth and Fourteenth Amendment rights to due process, his

Fourteenth Amendment right to equal protection, his Eighth Amendment right to be free from

cruel and unusual punishment, and his Fourth Amendment right to be free of malicious

prosecution. Plaintiff sues each of the Defendants in their individual capacities and seeks $20

million in damages. (Id. at 3, 32.)

II. STANDARD OF REVIEW

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 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) 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; [or]

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

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. 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. See

also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion

of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).

Further, to 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).

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) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, to state a claim upon which relief may be granted, “a complaint must contain sufficient

factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up). 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 Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 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)).

III. ANALYSIS

All of Plaintiff’s claims must be dismissed. First, the Prosecutor Defendants are entitled

to absolute immunity from a civil suit for damages under § 1983. Imbler v. Pachtman, 424 U.S.

409, 431 (1976). This immunity is overcome only when the prosecutor’s challenged conduct was

taken as an administrator or investigator, rather than as an advocate. See Holloway v. Brush, 220

F.3d 767, 775 (6th Cir. 2000). Despite Plaintiff’s conclusory allegations to the contrary, the

Amended Complaint contains no plausible allegations on which this Court could rely to conclude

that any exception to prosecutorial immunity applies to exempt the prosecutors he names. To the

contrary, the Prosecutor Defendants’ actions in filing charging documents and opposing

Plaintiff’s motions for judicial release are quintessential acts of advocacy on behalf of the State.

Accordingly, Plaintiff’s individual-capacity claims against the Prosecutor Defendants must be

dismissed.

Second, to the extent that Plaintiff sues the Prosecutor Defendants in their official

capacity, those claims must be dismissed. A suit against a government official in his or her

official capacity is “not a suit against the official but rather is a suit against the official’s office.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Thus, “an official-capacity suit is, in

all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham, 473

U.S. 159, 166 (1985). The relevant entity under these circumstances is the State of Ohio. Even if

employed by the County, “Ohio prosecutors act as arms of the state—not of a municipality—

when prosecuting state criminal charges.” D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir.

2014); see also Cady v. Arenac Cnty., 574 F.3d 334, 345 (6th Cir. 2009) (“when County

Prosecutor Broughton made the decisions related to the issuance of state criminal charges against

Cady, the entry of the [deferred prosecution agreement], and the prosecution of Cady, he was

acting as an agent of the state rather than of Arenac County”). Because Plaintiff’s official-

capacity claims against the Prosecutor Defendants arise out of their prosecution of state criminal

charges of aggravated robbery and involuntary manslaughter, they are “no different from a suit

against the State itself.” Will, 491 U.S. at 71.

But any claims against the State of Ohio must be dismissed under the doctrine of

sovereign immunity. The Eleventh Amendment operates as a bar to federal-court jurisdiction

when a private citizen sues a state or its instrumentalities unless the state has given express

consent. Pennhurst St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1983); Lawson v. Shelby

Cty., 211 F.3d 331, 334 (6th Cir. 2000). “There are three exceptions to sovereign immunity:

(1) when the state has waived immunity by consenting to the suit, (2) when Congress has

expressly abrogated the states’ sovereign immunity, and (3) when the doctrine set forth in Ex

Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), applies.” Boler v. Earley, 865

F.3d 391, 410 (6th Cir. 2017) (citation omitted). None of these exceptions apply to Plaintiff’s

Complaint. First, “Ohio has not waived sovereign immunity in federal court.” Mixon v. State of

Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Second, “Section 1983 does not abrogate Eleventh

Amendment immunity.” Boler, 865 F.3d at 410 (citing Will, 491 U.S. at 66). Third, the Ex Parte

Young doctrine applies only when a plaintiff brings “claims for prospective relief against state

officials sued in their official capacity to prevent future federal constitutional or statutory

violations.” Boler, 865 F.3d at 412. Here, Plaintiff seeks only money damages, not prospective

injunctive relief. Accordingly, Plaintiff’s official-capacity claims against the Prosecutor

Defendants, which are in essence claims against the State of Ohio, must be dismissed.

Finally, Plaintiff has not stated a claim under 42 U.S.C. § 1983 against Defendant Collins

for violation of Plaintiff’s Sixth Amendment right to effective assistance of counsel. A § 1983

plaintiff must establish two elements: that he was (1) “deprived of a right secured by the

Constitution or laws of the United States,” and (2) “that such deprivation was caused by a person

acting under color of state law.” Littler v. Ohio Ass’n of Pub. Sch. Emps., 88 F.4th 1176, 1180

(6th Cir. 2023) (cleaned up). Plaintiff’s § 1983 claim against Collins fails on the second element,

because “[d]efense attorneys, whether compensated by the State or retained by a client, do not

act under color of state law when they perform a lawyer’s traditional functions as counsel to the

accused in a criminal proceeding.” Floyd v. Cnty. of Kent, 454 F. App’x 493, 497 (6th Cir. 2012)

(citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)). Indeed, Plaintiff’s Amended Complaint

states that “this Amended Complaint does not include Mark C. Collins as an individual acting

under color of state law, Mr. Collins is also being sued in his individual capacity.” (Am. Compl.

7, ECF No. 7.) Plaintiff’s constitutional claim against Defendant Collins must therefore be

dismissed.

To the extent that Plaintiff sues Mr. Collins for ineffective assistance of counsel outside

of the framework of the United States Constitution and § 1983, that claim could only be one for

legal malpractice under Ohio law. The undersigned recommends that the Court decline to

exercise jurisdiction over this remaining state-law claim. Under 28 U.S.C. § 1367(c)(3), the

Court may decline to exercise supplemental jurisdiction when the Court “has dismissed all

claims over which it has original jurisdiction.” The United States Court of Appeals for the Sixth

Circuit has held that “[i]f the federal claims are dismissed before trial, the state claims generally

should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (citations

omitted).

Here, Plaintiff’s legal malpractice allegations fail to provide a basis for a claim over

which this Court has original jurisdiction. “The basic statutory grants of federal court subject-

matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for federal-question

jurisdiction, and § 1332, which provides for diversity of citizenship jurisdiction.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 501 (2006) (cleaned up). Federal-question jurisdiction is implicated

when a plaintiff pleads a claim “arising under” the federal laws or the United States Constitution.

Id. (citation omitted). For a federal court to have diversity jurisdiction under § 1332(a), there

must be complete diversity, meaning that each plaintiff must be a citizen of a different state than

each defendant, and the amount in controversy must exceed $75,000. Caterpillar, Inc. v. Lewis,

519 U.S. 61, 68 (1996).

Plaintiff’s malpractice claim arises under state law, not federal statutes or the United

States Constitution. Nor has Plaintiff alleged that he and Defendant Collins are citizens of

different states. Thus, Plaintiff has failed to plausibly allege facts on which the Court could rely

to conclude that this Court has original subject-matter jurisdiction over his malpractice claim.

Because the undersigned recommends dismissal of all of Plaintiff’s federal claims, it is further

recommended that the Court decline to exercise supplemental jurisdiction over any remaining

state-law claims and that it dismiss any such claims without prejudice to re-filing in state court.

IV. DISPOSITION

It is RECOMMENDED that the Court DISMISS Plaintiff’s claims against the

Defendants Ron O’Brien, James Lowe, David Zeyen, George Tyack, Taylor Mick, Shayla Favor,

and Benjamin Tracey, and Plaintiff’s § 1983 claim against Defendant Mark Collins, for failure to

state a claim on which relief can be granted. It is further RECOMMENDED that Plaintiff’s

remaining state-law claim against Defendant Mark Collins be DISMISSED WITHOUT

PREJUDICE to re-filing in state court.

As a result, it is further RECOMMENDED that the Court DENY AS MOOT Plaintiff’s

Motion for Summary Judgment (ECF No. 8) and Motion for Appointment of Counsel (ECF No.

9).

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A District Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a District Judge of this Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made herein, may receive

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28

U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE