United States District Court, S.D. Ohio
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
a resident of Cincinnati, Ohio, brings this pro se civil
action against the Hamilton County Prosecutor and David
Hamilton Mcllwain, an assistant Hamilton County prosecutor.
By separate, plaintiff has been granted leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is before the Court for a sua sponte review of
plaintiffs 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 28 U.S.C. §
enacting the original in forma pauperis statute,
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."
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C.
§§ 1915(e)(2)(B)(i). 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, 504 U.S. at 32; 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).
also has authorized the sua sponte dismissal of complaints
that fail to state a claim upon which relief may be granted.
28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be "liberally
construed" and "held to less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the
same token, however, the complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Hill, 630 F.3d at 470-71
("dismissal standard articulated in Iqbal and
Twombly governs dismissals for failure to state a
claim" under §§ 1915A(b)(1)and
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." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
"accept as true a legal conclusion couched as a factual
allegation." Twombly, 550 U.S. at 555 (quoting
Papasan v. Attain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain "detailed factual
allegations, " it must provide "more than an
accusation." Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
"labels and conclusions" or "a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders "naked
assertion[s]" devoid of "further factual
enhancement." Id. at 557. The complaint must
"give the defendant fair notice of what the .. . claim
is and the grounds upon which it rests."
Erickson, 551 U.S. at 93 (citations omitted).
pro se complaint alleges that during a court proceeding on
September 20, 2016 in Hamilton County Case No. B 1502231, he
was "slandered ... in relation to his religious
beliefs." (Doc. 1-2 at 2). He alleges that defendant
Mcllwain made false and fabricated statements to attack
plaintiffs religious beliefs and stated that plaintiffs
religious beliefs made him a threat to society. Plaintiff
alleges that "[v]erbal slander and reports by co
defendant were dismissed by the presiding judge as having
nothing to do with the case." (Doc. 1-2 at 3). Plaintiff
also alleges that defendant Mcllwain "falsified
information against the plaintiff through religious slander
with which attempted to create government interference to
persecute the plaintiffs Freedom of Religion."
(Id.). Plaintiff alleges that defendant
Mcllwain's actions have caused him harm and he seeks $2
million in damages. (Doc. 12 at 3).
allegations are insufficient to state a claim with an
arguable basis in law over which this federal Court has
subject matter jurisdiction.
to the extent plaintiff may be invoking the diversity
jurisdiction of the Court under 28 U.S.C. § 1332(a), the
complaint reveals such jurisdiction is lacking. In order for
diversity jurisdiction pursuant to § 1332(a) to lie, the
citizenship of the plaintiff must be "diverse from the
citizenship of each defendant" thereby ensuring
"complete diversity." Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996) (citing State Farm
Fire <£ Cas. Co. v. Tashire, 386 U.S. 523, 531
(1967)); see also Napletana v. Hillsdale College,
385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North
American Res. Corp., 809 F.Supp. 546, 551 (S.D. Ohio
1992). In this case, both plaintiff and the named defendants
are domiciled in Ohio. Therefore, this Court lacks subject
matter jurisdiction on the basis of diversity of citizenship
over any state law claims plaintiff may be alleging.
plaintiffs complaint seeks relief from defendants who are
immune from such relief or fails to state a claim upon which
relief may be granted. Plaintiffs complaint against defendant
Mcllwain must be dismissed because it seeks relief from a
defendant who is immune from such relief. "Prosecutors
are entitled to absolute immunity for conduct 'intimately
associated with the judicial phase of the criminal
process.'" Marietta 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. See also Jones
v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). A
prosecutor's initiation and presentation of a case to a
grand jury falls within the traditional functions of the
prosecutor and is shielded by absolute immunity. Grant v.
Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989). Courts
have consistently recognized that even the knowing
presentation of false testimony to a grand jury or a trial
jury is protected by absolute immunity. See Spurlock v.
Thompson, 330 F.3d 791, 797-98 (6th Cir. 2004).
See also Imbler, 424 U.S. at 413, 430;
Buckley v. FUzsimmons, 509 U.S. 259, 267 n. 3
(1993). Likewise, "prosecutors do not forfeit their
absolute immunity when they knowingly make false statements
while advocating before the court." Pittman v.
Cuyahoga Cty Dep 7 of Children & Family
Servs., 640 F.3d 716, 725-26 (6th Cir. 2011) (citing
Burns v. Reed, 500 U.S. 478, 489-90 (1991)
("Like witnesses, prosecutors and other lawyers were
absolutely immune from damages liability at common law for
making false or defamatory statements injudicial proceedings
(at least so long as the statements were related to the
proceeding), and also for eliciting false and defamatory
testimony from witnesses."). 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.
claim that defendant Mcllwain made false or fabricated
statements during court proceedings is barred by absolute
immunity. Imbler, 424 U.S. at 430. Defendant
Mcllwain's alleged conduct falls squarely under the
prosecutorial absolute immunity recognized in Imbler
and Pittman. Therefore, defendant Mcllwain is immune
from a civil suit for damages under § 1983.
extent plaintiff alleges that the Hamilton County Prosecutor
violated his rights, plaintiffs complaint fails to state a
claim for relief. Plaintiffs complaint against the Hamilton
County Prosecutor is in reality an official capacity suit
against Hamilton County, the entity of which the defendant is
an agent. Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690 (1978). See also Wells
v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Plaintiffs
complaint fails to state a claim for relief under § 1983
against Hamilton County because municipalities and counties
are not vicariously liable for the actions of their employees
under § 1983. "It is firmly established that a
municipality, or as in this case a county, cannot be held
liable under § 1983 for an injury inflicted solely by
its employees or agents." Gregory v. Shelby County,
Tenn., 220 F.3d 433, 441 (6th Cir. 2000), citing
Monell, 436 U.S. at 694. To state a claim for relief
under § 1983 against a municipality, the plaintiff must
allege that his "injuries were the result of an
unconstitutional policy or custom" of the county.
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994); see also Monell, 436 U.S. at 694; Doe v.
Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996).
Cf. Polk County v. Dodson, 454 U.S. 312 (1981)
(municipal policy must be "moving force" behind
constitutional deprivation). Counties and other governmental
entities cannot be held responsible for a constitutional
deprivation unless there is a direct causal link between a
policy or custom and the alleged deprivation.
Monell, 436 U.S. at 691; Beaton v. Montgomery
Cnty, Ohio, 989 F.2d 885, 889 (6th Cir. 1993).
case, plaintiff has alleged no facts indicating that Hamilton
County violated his constitutional rights pursuant to a
policy or custom of the County. In the absence of such
allegations, plaintiff has failed to state an actionable
claim for relief based on the theory of municipal liability.
See Monell, 436 U.S. at 693-94.
the complaint provides no factual content or context from
which the Court may reasonably infer that the defendants
violated plaintiffs federal rights. Iqbal, 556 U.S.
at 678. Accordingly, plaintiffs complaint should be dismissed
for lack of federal ...