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

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

JEROME HENDERSON,

 Plaintiff-Appellant,

 vs.

MIKE DEWINE,

ANNETTE CHAMBERS-SMITH,

STEPHEN GRAY,

RONALD ERDOS,

 and

DAVID C. STEBBINS,

 Defendants,

 and

SHIRLEY ADELE SHANK,

 Defendant-Appellee.

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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, pro se,

Law Office of S. Adele Shank and S. Adele Shank, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS

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MYERS, Presiding Judge.

{¶1} Jerome Henderson appeals the trial court’s entry granting defendantappellee Shirley Adele Shank’s motion to 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 his motion for leave to file an amended complaint. 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 against 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 Stebbins, 

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 proceedings. 

{¶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 

DeWine 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 motion 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 applicable statute of 

limitations, that the complaint failed to allege any action under color of law by Shank, 
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and that res judicata barred relief because Henderson’s claims were previously raised 

and rejected in federal court. Shank further argued that Henderson’s complaint 

should be dismissed pursuant to Civ.R. 12(B)(1) for lack of subject-matter jurisdiction 

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 meritorious, 

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 

findings 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 under 

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, 1st Dist. Hamilton No. C-180555, 2021-Ohio-3055, ¶ 7. We 

must take all factual allegations in the complaint as true and make all reasonable 

inferences in favor of the nonmoving party. ISCO Industries, Inc. v. Great Am. Ins. 

Co., 2019-Ohio-4852, 148 N.E.3d 1279, ¶ 10 (1st Dist.). “A complaint should not be 

dismissed for failure to state an actionable claim unless it appears beyond doubt from 
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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 (1st Dist.). 

{¶10} Henderson’s claims are all brought pursuant to Section 1983. He argues 

that that the trial court 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, 

subjects, 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 action 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, 1st 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, whether 
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appointed or retained, whether in state court or federal court, is not acting under color 

of law.”).

{¶13} Because Shank was not acting under color of state law when 

representing Henderson, Henderson’s Section 1983 complaint failed to state a claim 

upon which relief could be granted, and the trial court did not err in granting 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 challenges 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 (1st 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.” Id. 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 actions under 42 U.S.C.S. 

Section 1983 provided by 28 U.S.C.S. Section 1343(3).” Such an amendment was

unnecessary to trigger the trial court’s jurisdiction, as the trial court exercised its 
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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.

BERGERON and CROUSE, JJ., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.