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Mavrakis v. Kurt

United States District Court, N.D. Ohio, Eastern Division

February 23, 2018

SANDRA KURT, Defendant.



         Pro se Plaintiff Tony A. Mavrakis filed this action against Summit County Court of Common Clerk Sandra Kurt. In the Complaint, Plaintiff alleges Defendant has not yet complied with a Magistrate's order to strike Plaintiff's Motion from the Court of Appeals docket and enter it on the Common Pleas Court docket. He contends the Court Clerk is denying him access to the courts and due process. He seeks an Order from this Court directing her to correct the filing and awarding him monetary damages.

         I. Background

         The events giving rise to this Complaint occurred in the course of Plaintiff's criminal case, after he exhausted his direct appeals and post conviction remedies. The criminal case arose from a dispute Plaintiff and Robert G. Fye had over the ownership of a car. State v. Mavrakis, No. 27457, 2015 WL 7572381, at *1-2 (Ohio Ct. App. Nov. 25, 2015). Plaintiff was pulled over while driving the car under a lifetime license suspension, and as a result, the car was towed. Id. Fye received police assistance to retrieve the keys from Plaintiff and claim the car from the tow yard. Id. Later that day, Plaintiff went to Fye's apartment with a bayonet demanding that the car be returned to him. Id. Fye was not home, but his grandmother and uncle were. Id. Plaintiff beat on the door with the bayonet, pushed his way in, threatened Fye's relatives, demanded they summon Fye, and smashed personal belongings in the apartment. Id. He left before police arrived. From there, he went to a muffler shop where Fye's father worked. Fye was not there either, but Fye's father and sister were present. Plaintiff began to engage in disruptive behavior; however, Fye's father pulled out a gun and fired a warning shot. Id. Plaintiff immediately left the premises. Id.

         Plaintiff was arrested and charged with aggravated burglary, vandalism, and two counts of aggravated menacing for his actions at the apartment. Id. He was charged with felonious assault and breaking and entering for his conduct at the muffler shop. Id. Following a jury trial, Plaintiff was found guilty of the charges arising out of his actions at the apartment. Id. He was found not guilty of the charges relating to the muffler shop. Id. The presentence investigation report indicated Plaintiff had prior convictions for felonious assault and aggravated vehicular homicide. Id. The trial court merged the vandalism and aggravated menacing convictions into the aggravated burglary conviction and sentenced Plaintiff to a mandatory term of seven years in prison on July 9, 2014. Id.

         Plaintiff appealed his conviction to the Ohio Ninth District Court of Appeals. The Appellate Court upheld his conviction on November 25, 2015. Plaintiff appealed that decision to the Supreme Court of Ohio on January 6, 2016. The Supreme Court declined to accept jurisdiction on March 23, 2016.

         Plaintiff alleges a state public defender informed him on May 2, 2016 that his habeas corpus petition had to be filed on or before June 21, 2017. Plaintiff contends that reminded him of statements the judge made during his sentencing in 2014 and discovered these statements were not on the transcript of the proceedings. Plaintiff waited an additional nine months, and then on February 6, 2017, filed a Motion to Modify or Correct the Record under Ohio Appellate Rule 9(E). In the case caption, he stated, “In the Court of Common Pleas, in the Court of Appeals.” The Court Clerk filed it on the Ohio Appellate Court docket. Plaintiff protested that he intended the Motion to be filed in the Common Pleas Court. On March 2, 2017, an Appellate Court magistrate judge ordered the Motion to be stricken from the Appellate Court docket and entered on the Common Pleas Court docket. Plaintiff indicates the Defendant removed the Motion from the Appellate docket, but did not enter it on the Common Pleas Court docket. As a result, the Motion has not yet received a ruling. He asserts this denied him access to the courts and due process.

         II. Standard of Review

         Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted when it lacks “plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007).

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true. Twombly, 550 U.S. at 555. The Plaintiff is not required to include detailed factual allegations, but must provide more than “an unadorned, the Defendant unlawfully harmed me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

         III. Analysis

         As a threshold matter, Court Clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process. Foster v. Walsh, 864 F.2d 416, 417 (6th Cir. 1988). Whether an act is judicial in character does not depend on whether it is discretionary. Id. Rather, immunity applies to all acts of auxiliary court personnel that are “basic and integral parts of the judicial function, ” unless those acts are done in the clear absence of all subject matter jurisdiction of the court. Mullis v. U.S. Bankruptcy Court, Dist of Nevada, 828 F.2d 1385, 1390 (9th Cir. 1987). Acts committed in error or in excess of jurisdiction will not abrogate immunity, even if it results in “grave procedural errors.” Id. The acts of the Court Clerk about which Plaintiff complains - deciding where to docket a Motion and interpreting and following the orders of judicial officers - are all integral parts of the judicial process and within the subject matter jurisdiction of her Court. Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993)(citing the Sixth Circuit's decision in Foster).[1] Sandra Kurt is therefore entitled to absolute immunity.

         Furthermore, even if the Defendant were not absolutely immune from suit, Plaintiff has failed to state a claim upon which relief may be granted. First, Plaintiff was not denied access to the courts. To state a claim for denial of access to the courts, Plaintiff must allege that particular actions of the Defendants prevented him from pursuing or caused the rejection of a specific non-frivolous direct appeal, habeas corpus petition, or civil rights action. Lewis v. Casey, 518 U.S. 343, 351 (1996). The right of access to the courts is directly related to an underlying claim, without which a Plaintiff cannot have suffered injury by being shut out of court. Christopher v. Harbury, 536 U.S. 403, 415 (2002). Plaintiff must therefore “plead and prove prejudice stemming from the asserted violation.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996). In order words, he must demonstrate “actual injury” by showing that his underlying claim was non-frivolous, and that it was frustrated or impeded by Defendants. Lewis, 518 U.S. at 353. “It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the Complaint....” Christopher, 536 U.S. at 415.

         In this case, Plaintiff has not demonstrated actual injury. He exhausted his direct appeals and filed an unsuccessful post conviction petition. See State v. Mavrakis, No. CR-2013-10-2872 (Summit Cty Ct. Comm. Pl. filed Oct. 17, 2013). Both his appeals and his post conviction petition were denied in 2015. He claims to have remembered in 2017, statements the judge allegedly made during 2014 sentencing hearing which were not on the transcript of his sentencing hearing. He contends this would demonstrate the judge relied on testimony from deceptive witnesses, made reference to a plea bargain, and took into consideration the muffler shop incident when sentencing him. Plaintiff was represented by counsel at sentencing and on appeal. His attorney could have raised these issues on appeal. Plaintiff attempted to reopen his appeal to assert his underlying claims of bias and ineffective assistance of counsel, which he believes this altered transcript would demonstrate, but that application was ...

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