United States District Court, S.D. Ohio, Eastern Division
Chelsey M. Vascura Magistrate Judge.
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court for consideration of Plaintiff s
Objection to the Magistrate Judge's November 20, 2017
Order and Report and Recommendation. The Magistrate Judge
recommended dismissal of Plaintiff s Complaint upon an
initial screen pursuant to 28 U.S.C. § 1915(e)(2) for
failure to state a claim on which relief may be granted. (ECF
No. 19.) For the reasons below, the Court
OVERRULES Plaintiffs Objection (ECF No. 21)
and ADOPTS the Order and Report
and Recommendation. (ECF No. 19.) Plaintiffs
Complaint is DISMISSED and his Motion to
Appoint Counsel (ECF No. 2), Motion to Amend the Complaint
(ECF No. 4), and Motion for Clerk to Make Copies (ECF No. 7)
are therefore DENIED as moot.
proceeding pro se, initiated this action on March
28, 2017, claiming Defendants, the Franklin County Court of
Common Pleas of the City of Columbus, the Franklin Public
Defender's Office, and the Franklin County
Prosecutor's Office violated rights guaranteed to him by
the Fifth, Sixth, Eighth, Thirteenth, and Fourteenth
Amendments to the United States Constitution and
intentionally inflicted emotional distress upon him by
participating in his arraignment without him.
asserts that on April 5, 2017, he verbally informed the
Franklin County Public Defender's office that he elected
to represent himself pro se. Then, later the same
day, Plaintiff alleges that his arraignment on indicted
charges took place without him present and that his appointed
counsel entered a plea of not guilty on his behalf. (Compl.
¶ ¶ 6, 7.) Plaintiff asserts he called the Franklin
County Public Defender's Office after learning that the
plea had been entered without him and was informed that he
needed to sign a written waiver of representation. which he
had not done prior to the arraignment, to proceed without
counsel. (Id. ¶ 11.)
Judge Vascura granted Plaintiffs Motion for Leave to Proceed
in forma pauperis (ECF No. 1) and summarily
recommended dismissing the Complaint after performing an
initial screen pursuant to 28 U.S.C. § 1915(e)(2) for
failure to state a claim on which relief may be granted and
because two of the Defendants are immune from suit. (Order
and Report and Recommendation ("Rep. & Rec") at
1-2, ECF No. 19.)
party objects within the allotted time to a report and
recommendation, 28 U.S.C. § 636(b)(1) provides that a
district court "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate." Additionally, a pro se
litigant's pleadings are to be construed liberally and
have been held to less stringent standards than formal
pleadings drafted by attorneys. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). Even so, prose
plaintiffs must still comply with the procedural rules that
govern civil cases. McNeil v. United States, 508
U.S. 106, 113(1993).
objects to the Magistrate Judge's determination that he
failed to state a claim on which relief may be granted. In
his Objection, Plaintiff asserts that by waiving his
appearance verbally, the Franklin County Public
Defender's Office violated his constitutional rights.
it does not appear Plaintiff challenges the Magistrate
Judge's holding to the extent she determined the Eleventh
Amendment to the United States Constitution bars suit against
the Franklin County Court of Common Pleas and that the
Franklin County Prosecutor's Office is similarly immune
from civil liability for acting within the scope of its
prosecutorial duties, the Court agrees with the Magistrate
Judge's findings of immunity. As an arm of the state the
Franklin County Court of Common Pleas "is not an entity
capable of being sued." Fields v. Doe, No.
07-cv-4217, 2008 U.S. App. LEXIS 28481, at *4 (6th Cir. Dec.
11, 2008) (citation omitted)). Prosecutors are immune from
civil liability when acting within the scope of their
prosecutorial duties. Imber v. Pachtman, 424 U.S.
409, 427 (1976). As the Magistrate Judge correctly found,
"Plaintiff Hairston has not alleged any conduct
whatsoever by the Franklin County Prosecutor's Office
and, therefore, has failed to allege activity outside the
scope of prosecutorial duties." (Rep. & Rec. at 6.)
more apparent that Plaintiff challenges dismissal of the
Franklin County Public Defender's office. Construing his
Objection liberally, Plaintiff asserts he has pled violations
of his constitutional rights resulting from the waiver of his
appearance at the April 5, 2017 arraignment. He points to
Federal Rule of Criminal Procedure 10(b) in argument that the
Magistrate Judge erred in finding he did not state a
Constitutional claim for which relief can be granted. (Obj.
at 6.) Indeed, even if a waiver of Plaintiff s appearance at
his arraignment violated Federal Rule of Criminal Procedure
10(b), such violation is not constitutional but procedural
and is therefore incorrectly asserted under 42 U.S.C. §
1983. As the Magistrate Judge correctly reasoned,
A criminal defendant has a constitutional right to be
"present at all stages of the trial where his absence
might frustrate the fairness of the proceedings."
Farretta v. California,422 U.S. 806, 819 n.15
(1975). The right derives from the Due Process Clause and the
Confrontation Clause. See United States v. Shepherd,284 F.3d 965, 968 n.1 (8th Cir. 2002). An arraignment is not
required by the Due Process Clause. Garland v.
Washington,232 U.S. 642, 645 (1914). Moreover, it is
not a stage of the litigation at which witnesses testify
against the defendant, so Confrontation Clause concerns are
not implicated. ...