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Mark E. Huffer v. Mark R. Bogen

October 24, 2011

MARK E. HUFFER, PLAINTIFF
v.
MARK R. BOGEN, ET AL., DEFENDANTS



The opinion of the court was delivered by: Herman J. Weber United States District Court

ORDER

This matter is before the Court upon the "Motion to Dismiss" (doc. no. 29) by Mel Planas, Kristy Sommers, and Warren County, Ohio (collectively the "Warren County defendants"). Also pending is the "Motion for Judgment on the Pleadings, or in the Alternative, to Dismiss" (doc. no. 30) by James Burns, Matthew Graber, Andrea Hicks, Michael McCutchan, Brenda Morgan, Kristy Whaley, and the City of Lebanon (collectively the "Lebanon defendants"). Plaintiff opposes both motions. Having fully considered the record, including the pleadings and the parties' briefs, the Court will grant both motions for the following reasons:

I. Background and Factual Allegations

In his complaint, plaintiff indicates he was arrested for domestic violence on January 6, 2007 (doc. no. 1 at ¶ 2) while on diversion from a previous domestic violence case (¶ 6). On January 8, 2007, he pleaded not guilty (¶ 4), was "held without bond," and was incarcerated for an unspecified period of time (¶ 5). He was released but then re-arrested for violating a "Temporary Protection Order" (¶ 5). Plaintiff was incarcerated until March 5, 2007, when his counsel moved to set aside or reduce plaintiff's bond. On March 5, 2007, plaintiff pleaded guilty in two of his criminal cases (referred to as "CRB 0700196 and CRB 0600914"), and he indicates the remaining criminal charges against him were "nolled" or dismissed (¶¶ 6-7, 19).

Approximately one year later, in February of 2008, plaintiff moved to withdraw his guilty pleas (¶ 19). On April 3, 2008, Lebanon Municipal Judge Mark E. Bogen found that plaintiff had entered his guilty pleas voluntarily and knowingly, and denied the motion (¶ 20). Plaintiff appealed (¶ 21). On May 18, 2009, the Court of Appeals for the Twelfth District of Ohio issued a decision finding that the partially-inaudible tape recording of the plea proceeding was not sufficient for the appellate court to ascertain that a proper Rule 11 colloquy had taken place (doc. no. 1, Ex. 1 "Opinion" at ¶¶ 15, 19, 24). The Court of Appeals therefore granted plaintiff's motion to withdraw his guilty pleas, and reversed and remanded the case for further proceedings. Neither plaintiff's present complaint nor his subsequent briefs indicate the results of those further proceedings, although he complains that the prosecutor "continued to pursue the alleged felony offenses" against him (doc. no. 1 at ¶ 37).

The following year on May 17, 2010, plaintiff filed a lengthy seven-count federal complaint against thirteen defendants, including several prosecutors, probation officers, police officers, Lebanon Municipal Judge Mark E. Bogan, the Clerk of the Lebanon Municipal Court, Warren County (Ohio), the City of Lebanon, plaintiff's ex-wife Vivian Huffer, and her sister Danielle Bishop. Essentially, plaintiff has sued anyone with a perceived role in his arrest and prosecution for domestic violence. In his complaint, plaintiff makes the following claims: Count One asks for a "declaration" that Judge Bogen violated plaintiff's due process rights under the Fifth Amendment (doc. no. 1 at ¶¶ 25-28). Judge Bogen has been dismissed from this action by separate order (doc. no. 28).

In Count Two, plaintiff alleges violation of 42 U.S.C. § 1983 based on wrongful imprisonment (¶¶ 28-33). He alleges that the City of Lebanon "ratified and adopted" Judge Bogen's actions, and that the individual Lebanon defendants "took actions" which violated his civil rights. With respect to the Warren County defendants, he complains that the probation officer Sommers "participated in the efforts to incarcerate . . . . and/or prosecute Mr. Huffer, in the absence of probable cause, for impermissible periods of time, without bond" (¶ 32). Plaintiff recites that the defendants deprived him of his civil rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments.

In Count Three, plaintiff alleges that the defendants "conspired to violate 42 U.S.C. § 1983" (¶¶ 34-46). Plaintiff alleges that Hicks and Graber, as prosecutors for the City of Lebanon, "assisted" Judge Bogen in the violation of plaintiff's civil rights and "took actions" which furthered the conspiracy (¶¶ 35, 43). He alleges that probation officer Sommers "took actions" which violated his civil rights "by arresting and/or detaining and/or conducting an unreasonable search and seizure of Mr. Huffer's person and/or property" (¶ 40). Plaintiff also contends that:

Warren County, Ohio, acting through its prosecutor Mel Planas, furthered the conspiracy . . . by having [an] indictment issued against Mr. Huffer based upon materially false information and upon the same facts, which Mr. Huffer had been prosecuted for in the Lebanon Municipal Court. Defendant Planas, as a policy maker and the moving force behind this unconstitutional misconduct has continued to assert the felony offenses, which were based upon the same alleged conduct for which the misdemeanor charges were brought (¶ 36).

Plaintiff complains that although his guilty pleas were withdrawn, the prosecutor (Planas) "continued to pursue the alleged felony offenses" against him (¶ 37).

In Count Four, plaintiff alleges violation of 42 U.S.C. § 1983 based on malicious prosecution (¶¶ 47-52). Plaintiff contends in conclusory fashion that his ex-wife and unspecified "others" initiated his prosecution "with malice" which resulted in "the malicious prosecution of Mr. Huffer, in the absence of probable case for the alleged Domestic Violence offense and the alleged Violation of a Temporary Protection Order" (¶ 48). Plaintiff complains that the police officers (McCutchan and Burns) "participated" by filing criminal charges against him (¶ 49).

In Counts Five and Six, plaintiff generally alleges deprivation of his substantive and procedural due process rights because the defendants "each took actions" based on his ex-wife's allegedly "spurious and false" allegations of domestic violence which led to his "false arrest, wrongful detention, and malicious prosecution" (¶¶ 53-60). By previous order, this Court has already held that plaintiff has not pleaded a cognizable deprivation of any constitutional due process rights (doc. no. 28 at 9- 10).

The next count is incorrectly numbered as another Count Six (¶¶ 61-66) and is captioned as a state law claim of "malicious prosecution." Plaintiff alleges that police officers (McCutchan and Burns) maliciously "initiated the criminal proceedings against each Plaintiff (sic) without probable cause" and that the probation officers (Sommers and Whaley) "participated in the malicious prosecution of Mr. Huffer by pursuing probation violations and/or by engaging in other misconduct" (¶ 64).*fn1 The "other misconduct" is not specified.

The next count (labeled as "Sixth Claim: Tort of False Arrest" at ¶¶ 67-70) and Count Seven ("False Imprisonment" at ¶¶ 71-74) allege that plaintiff was "arrested and detained without probable cause, for alleged Domestic Violence and Violation of Temporary Protection Order" (¶ 68), and that the "unlawful imprisonment of Mark E. Huffer was done without probable cause" (¶ 72). Plaintiff seeks compensatory damages of over $250,000, punitive damages over $1,000,000, attorneys fees, costs, and other available relief.

The Lebanon defendants answered and asserted defenses, including that the defendants' actions were based on probable cause, that their actions did not violate any of plaintiff's constitutional rights, that they are entitled to qualified and/or absolute immunity, that the complaint fails to state any claims for relief against them, and that plaintiff's claims for false arrest and violation of § 1983 based on false imprisonment are time-barred (doc. no. 15).

The Warren County defendants also answered and asserted similar defenses (doc. no. 17). Both sets of defendants moved to dismiss and/or for judgment on the pleadings (doc. nos. 29, 30). Plaintiff responded (doc. nos. 34, 41), and defendants replied (doc. nos. 40, 42). Defendants have jointly moved to stay discovery (doc. no. 42), and plaintiff has not opposed such request. These motions are ripe for consideration.

II. Issues Presented

Defendants assert that: 1) the prosecutors (Planas, Graber, and Hicks) are entitled to absolute prosecutorial immunity; 2) the probation officers (Sommers and Whaley) and the Clerk of the Lebanon Municipal Court (Morgan) are entitled to absolute quasi-judicial immunity; 3) the police officers (McCutchan and Burns) are entitled to qualified immunity; 4) the complaint fails to state a claim for conspiracy, malicious prosecution, or violation of § 1983 based on malicious prosecution; 5) Warren County and the City of Lebanon are not liable on a respondeat superior basis; 6) the state claims for false arrest and false imprisonment, and the § 1983 claim based on "wrongful imprisonment" are time-barred. Both motions present similar arguments and will be considered together.

III. Analysis A. Introduction

Plaintiff's case is premised on his notion that the victim's report of domestic abuse was "false" or "unsubstantiated." He then complains in attenuated fashion that the subsequent determination of his probation violation, arrest, detention, and prosecution were therefore not based on probable cause and were unlawful, and therefore, violated his constitutional rights and also amounted to a conspiracy against him as well as various torts under state law.

B. Whether the Defendant Prosecutors are Entitled to Prosecutorial Immunity

Plaintiff sues three prosecutors: Planas, Graber and Hicks. Although plaintiff alleges that Planas was responsible for having an indictment issued against him based upon the victim's allegedly "false" information (doc. no. 1 at ΒΆ 36), the prosecutor's decision to initiate and pursue criminal charges against plaintiff was fully protected by absolute immunity. It is well-settled that prosecutors are entitled to absolute prosecutorial immunity for the initiation and ...


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