# Nix v. Franklin County

> District Court, S.D. Ohio · June 13, 2025

URL: https://www.frixlaw.com/law-library/cases/11071436

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 13, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11071436

## How later opinions describe it (automated extraction)

- applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11071436. Public record. Not legal advice.