[Cite as Henderson v. DeWine , 2022
- Ohio
- 1025.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

JEROME HENDERSON , Plaintiff

- Appell ant ,

vs. MIKE DEWINE,
ANNETTE CHAMBERS

- SMITH, STEPHEN GRAY, RONALD ERDOS, and DAVID C. STEBBINS, Defe ndants , and SHIRLEY ADELE SHANK, Defendant

- Appellee

. :

:

:

:

:

:

:

:

:

:

:

:

: APPEAL NO

. C

- 210201 TRIAL NO. A

- 2001111 O P I N I O N

.

Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is : Affirmed Date of Judgment Entry on Appeal: March 30, 2022

Jerome Henderson , p ro s e , Law Office of S. Adele Shank and S. Adele Shank , for Defendant

- Appellee

.OHIO FIRST DISTRICT COURT OF APPEALS

2 M YERS , Presiding Judge. 

### {¶1} Jerome Henderson appeals the trial court’s entry granting d efendant

appellee Shirley Adele Shank’s motion t o dismiss his 42 U.S.C. 1983 (“Section 1983”) civil

- rights action. He challenges the trial court’s dismissal of his complaint as well as the trial court’s denial of h is motion for leave to file an amended co mplaint. Finding no merit to Henderson’s arguments, we affirm the trial court’s judgment.
Factual and Procedural Background


### {¶2} Henderson , who was convicted of aggravated murder and sentenced to death, filed a Section 1983 action against Shank, as well as a gainst Mike DeWine, Governor of Ohio, Annette Chambers

- Smith, Director of the Ohio Department of Rehabilitation and Correction (“ODRC”), Stephen Gray, Chief Counsel for ODRC, Ronald Erdos, Warden of the Southern Ohio Correctional Facility, and David Stebbi ns, former counsel for Henderson. Service was never obtained on Stebbins. 

### {¶3} The complaint alleged that Shank , the only appellee to this appeal, violated Henderson’s civil rights with respect to her representation of him in state clemency and other proceed ings. 

### {¶4} Henderson filed a motion to amend the complaint, which the trial court denied. The trial court subsequently granted a motion to dismiss filed by Governor
De W ine and a motion to dismiss collectively filed by Chambers

- Smith, Gray, and Erdos. These latter motions are not before us. 

### {¶5} Shank also filed a motio n to dismiss Henderson’s complaint pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted , arguing that Henderson’s Section 1983 action was barred by the appli cable statute of limitations, that the complaint failed to allege any action under color of law by Shank ,OHIO FIRST DISTRICT COURT OF APPEALS

3 and that res judicata barred relief because Henderson’s claims were previously raised and rejected in federal court. Shank further argued that Hender son’s complaint should be dismissed pursuant to Civ.R. 12(B)(1) for lack of subject

- matter jurisdi ction because federal courts had already adjudicated the claims raised in Henderson’s complaint. 

### {¶6} The trial court found all arguments made by Shank to be mer itorious, and it granted the motion to dismiss. 

### {¶7} Henderson appeals, arguing in two assignments of error that that the trial court erred in denying his motion for leave to file an amended complaint and that the trial court erred in granting Shank’s motion to dismiss . We address these assignments of error out of order.

No Action Under Color of Law


### {¶8} In his second assignment of error, Henderson challenges the trial court’s granting of Shank’s Civ.R. 12(B)(6) motion to dismiss , arguing that the court’s findin gs with respect to the statute of limitations, Shank’s lack of action under color of law, res judicata, and his failure to meet the pleading requirements were erroneous

. We need not address all of these, because we find one dispositive, lack of action und er state law. 

### {¶9} We review de novo a trial court’s ruling on a Civ.R. 12(B)(6) motion to dismiss. Elliot v. Durrani , 1 st Dist. Hamilton No. C

- 180555, 2021

- Ohio

- 3055, ¶ 7. We must take all factual allegations in the complaint as true and make all reasonabl e inferences in favor of the nonmoving party. ISCO Industries, Inc. v. Great Am. Ins.
Co. , 2019
- Ohio

- 4852, 148 N.E.3d 1279, ¶ 10 (1 st Dist.). “ A complaint should not be dismissed for failure to state an actionable claim unless it appears beyond doubt fro mOHIO FIRST DISTRICT COURT OF APPEALS

4 the complaint that the plaintiff can prove no set of facts entitling him to recovery .” Thomas v. Othman , 2017
- Ohio

- 8449, 99 N.E.3d 1189, ¶ 19 (1 st Dist.). 

### {¶10} Henderson’s claims are al l brought pursuant to Section 1983. He argues that that the trial cour t erred in finding that Shank did not act under color of law. Section 1983 provides in relevant part that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjec ts, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an act ion at law, suit in equity, or other proper proceeding for redress

. 

### {¶11} To maintain a Section 1983 cause of action, “ two elements are required: (1) the conduct in controversy must be committed by a person acting under color of state law, and (2) the conduct must deprive the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States .” Crosset v. Marquette , 1 st Dist. Hamilton Nos. C

- 060148 and C

- 060180, 2007

- Ohio

- 550, ¶ 14, quoting 1946 St. Clair Corp. v. Cleveland , 49 Ohio St.3d 33, 34, 550 N.E.2d 456 (1990). 

### {¶12} The law is well

- settled that private attorneys assigned to represent indigent defendants do not act under color of state law. Jones v. Dodge , 798 F.2d 1414 (6th Cir.1986) ; See Gillespie v. Madison , N.D.Ohio No. 5:10cv1989, 2010 U.S. Dist. LEXIS 109809 (Oct. 15, 2010), quoting Deal v. Massey & Associates, E.D.Tenn. No.

1:10
- CV

- 18, 2010 U.S. Dist. LEXIS 88597 , *4 (Aug. 26, 2010) (“An attorney, whetherOHIO FIRST DISTRICT COURT OF APPEALS

5 appointed or retained, whether in state court or federal cou rt, is not acting under color of law.”)

. 

### {¶13} Because Shank was not acting under color of state law when representing H enderson, Henderson’s Section 1983 complaint failed to state a claim upon which relief could be granted, and the trial court did not err in gr anting Shank’s motion to dismiss. Henderson’s second assignment of error is overruled. As our holding with respect to the lack of action under color of state law is dispositive of this assignment of error, we need not consider Henderson’s additional chal lenges to the trial court’s granting of the motion to dismiss.

Denial of Motion for Leave to Amend Complaint


### {¶14} In his first assignment of error, Henderson argues that the trial court erred in denying his motion for leave to file an amended complaint. 

### {¶15} We review the trial court’s ruling on Henderson’s motion for an abuse of discretion. Maas v. Maas , 2020
- Ohio

- 5160, 161 N.E.3d 863, ¶ 84 (1 st Dist.). A trial court should freely give leave to amend a complaint “ when justice so requires. ” Id

. When ruling on a motion to amend, the trial court should consider “ whether the movant made a prima facie showing of support for the new matters sought to be pleaded, the timeliness of the motion, and whether the proposed amendment would prejudice the opposing party. ” I d . at ¶ 85. A trial court properly denies a motion to amend the complaint when the amendment sought would be futile. Id

. 

### {¶16} Here, Henderson sought to amend the complaint to add “the required ‘concurrent’ jurisdiction for this state court to entertain such a ctions under 42 U.S.C.S. Section 1983 provided by 28 U.S.C.S. Section 1343(3).” Such an amendment w as
unnecessary to trigger the trial court’s jurisdiction , as the trial court exercise d itsOHIO FIRST DISTRICT COURT OF APPEALS

6 concurrent jurisdiction over Henderson’s complaint

. We therefore find no abuse of discretion in the trial court’s denial of Henderson’s motion for leave to amend the complaint. 

### {¶17} Henderson’s first assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed

.

B ERGERON and C ROUS E , JJ. , concur .

Please n ote: The court has recorded its own entry on the date of the release of this opinion

.