UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CLIFFORD L. RUCKER,

Case No. 1:18-cv-05

Plaintiffs,

Black, J.

v. Bowman, M.J.

JUDGE TOM HEEKIN, et. al,

Defendants.

REPORT AND RECOMMENDATION

By separate Order issued this date, Plaintiff has been granted leave to 

proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The complaint itself is now 

before the Court for a sua sponte review 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. See 28 U.S.C. § 1915(e)(2)(B). For the reasons that follow, 

the undersigned recommends that the complaint be dismissed.

I. General Screening Authority

Congress has authorized federal courts to dismiss an in forma 

pauperis complaint if satisfied that the action is frivolous or malicious. Denton v. 

Hernandez, 504 U.S. 25, 31 (1992); 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 
2

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).

Congress has also authorized the sua sponte dismissal of complaints which fail 

to state a claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii). 

Although a plaintiff's pro se complaint must be “liberally construed” and “held to less 

stringent standards than formal pleadings drafted by lawyers,” the complaint must “give 

the defendant fair notice of what the ... claim is and the grounds upon which it 

rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. 

Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal citation and quotation omitted)). 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 Twombly, 550 U.S. at 

570); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)(“dismissal standard 

articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under 

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1)).

“A 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 
3

true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not 

contain “detailed factual allegations,” it must provide “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting 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.

II. Analysis

A. Allegations Of Complaint

Plaintiff Rucker’s pro se complaint identifies five individual Defendants and two

sets of agency/John or Jane Doe Defendants: (1) Judge Tom Heekin c/o Judge John 

A. West; (2) Judge Steven E. Martin; (3) Hamilton County Sex Offender 

Unit/Administrator Ernest Lee; (4) Hamilton County Prosecutor Scott Heenan; (5) 

Hamilton County Prosecutor Claye Thorpe; (6) Cincinnati Adult Parole Authority 

Regional Supervisor, Staff and Agents; and (7) Hamilton County Sheriffs Registration 

Divisions Staff, supervisors, and agents. Plaintiff’s complaint spans 27 pages, and 

seeks declaratory, injunctive and monetary relief relating to alleged violations of 

Plaintiff’s civil rights, and alleged violation of the prohibition against double jeopardy. As 

a basis for federal court jurisdiction, Plaintiff cites 42 U.S.C. §12203, 42 U.S.C. § 1983, 

and 18 U.S.C. §§ 241 and 242.

Plaintiff is a former prisoner convicted in state court of unlawful sexual conduct 

with a minor, who completed his sentence and was released from incarceration on or 
4

about January 3, 2015. In 2012, while Plaintiff was still incarcerated, the Ohio Court of 

Appeals affirmed Plaintiff’s initial conviction but held that the trial court had incorrectly 

classified Plaintiff as a “Tier III sex offender under Ohio’s version of the Adam Walsh 

Act.” Therefore, the Court of Appeals remanded for the trial court “‘to amend its 

judgment entry to reflect that Rucker is a Tier II sex offender.’” State v. Rucker, 2016

WL 4063866 (Ohio Ct. App., July 27, 2016) (quoting State v. Rucker, 1st Dist. Hamilton 

No. C-110082, 2012-Ohio-185). The trial court failed to carry out the order on remand 

to amend its judgment prior to Rucker’s release from prison. Id. 

Having failed to obtain the reclassification prior to his release in accordance with 

the 2012 remand, Rucker filed a pro se motion for “re-sentencing” and/or to dismiss his 

sex offender classification after his release; appointed counsel subsequently filed an 

amended motion. The trial court overruled the amended motion, finding that 

postrelease control had been properly imposed and stating that the “classification will be 

modified under a separate entry to Tier II.” Id. Once again, however, the trial court 

failed to enter an order actually modifying the classification to Tier II. Id. Through 

counsel, Plaintiff appealed a second time.

In its July 2016 opinion, the Ohio Court of Appeals overruled Plaintiff’s first two 

assignments of error but partially granted relief. The court first rejected Rucker’s 

contention that he had not been properly notified that he would be subject to five years 

of mandatory postrelease control, holding that the sentencing transcript demonstrated 

sufficient notification. Id. at *2. The Ohio Court of Appeals also rejected Rucker’s 

contention that the trial court had erred by changing his sentence after his release, 

when it had no authority to resentence him. The appellate court denied this second
5

assignment of error because, even though the trial court indicated its intention to modify 

Plaintiff’s classification by stating that “Rucker’s classification will be modified under a 

separate entry to Tier II,” the court had never actually journalized any such entry, and 

“has never entered an order modifying Rucker’s sex-offender classification to Tier 

II.” Id. (emphasis added). Despite the partial rejection of Rucker’s claims, the Ohio 

Court of Appeals specifically reversed “that portion of the trial court’s entry overruling 

Rucker’s motion for resentencing that states that the trial court was bound by our [prior] 

order of remand to classify Rucker as a Tier II sex offender, and ...remand[ed] this 

cause to the trial court for it to determine whether it has authority to notify Rucker of and 

imposed upon him Tier II sex-offender registration requirements.” Id. at *3. The Ohio 

Supreme Court denied further discretionary review. See State v. Rucker, 2017-Ohio573, 148 Ohio St. 3d 1411, 69 N.E.3d 751 (Ohio Feb. 22, 2017).

Plaintiff’s federal complaint includes several allegations relating to proceedings in 

the trial court after the last remand from the Ohio Court of Appeals, including references 

to exhibits that relate to post-remand motions filed in April and May of 2017. Plaintiff 

also refers to a September 7, 2017 notice of appeal to “district court,” suggesting that he 

has filed a third appeal to the Ohio Court of Appeals, since no ongoing proceedings 

relating to the same allegations exist in this federal district court. Unfortunately, Plaintiff 

failed to attach any exhibits to the complaint filed in this Court. Thus, in order to 

conduct meaningful review of the complaint, the undersigned has reviewed electronic 

copies of records maintained by the Hamilton County Clerk of Court to ascertain the 
6

status of related ongoing state court proceedings, denoted by Hamilton County Court of 

Common Pleas Case No. B095355.1

 

Having completed that review, I conclude that Plaintiff’s case should be 

dismissed based upon Younger abstention and/or the Rooker Feldman doctrine, a lack 

of subject matter jurisdiction under three of the statutes cited by Plaintiff, and for failure 

to state a claim against any identified Defendant under 42 U.S.C. § 1983.

B. Dismissal Recommended on Multiple Grounds

1. The Extent to Which Plaintiff’s Complaint Seeks Relief in the 

Nature of Habeas Corpus

Despite being filed as a complaint seeking redress for alleged violations of his 

civil rights, the heart of Plaintiff’s complaint seeks to overturn a portion of his state 

criminal sentence. For relief, Plaintiff’s complaint seeks an award of “such civil 

penalties[,] declaratory, injunctive, and other relief” as this Court deems proper, 

including an “order that all subsequent orders and acts [by the state court] that are void, 

[and] that Judge Martin and other defendants relied on be declared void with prejudice 

and that the court take Judicial Notice of both ...Judgment entries [of the Ohio Court of 

Appeals] to reverse dated January 20, 2012 and July 27, 2016 and act accordingly to 

protect the interest and rights of Mr. Rucker....” (Doc. 1-1 at 26). 

When a plaintiff seeks relief in the form of an alteration of his criminal sentence, 

his sole federal remedy is typically obtained through a petition for writ of habeas corpus 

brought pursuant to 28 U.S.C. § 2254 after he has exhausted his state remedies. 

 1

Ascertaining the correct associated case number was no small task given the lack of exhibits included by 

Plaintiff and the fact that the Westlaw version of the July 2016 Ohio Court of Appeals opinion does not 

include reference to the trial court’s docket number. As of January 9, 2018, a search for records bearing 

Plaintiff’s name on the Hamilton County Clerk of Courts website brought up 38 separate cases filed in 

Municipal Court, 7 additional cases in the Ohio First District Court of Appeals, and 17 cases in the 

Hamilton County Court of Common Pleas. Nearly all of the latter relate to felony criminal proceedings, 

ranging from decades old drug-related offenses to the offense at issue in this case. 
7

However, habeas corpus relief is available only to those “in custody.” When those 

subjected to similar sex offender classifications have sought similar habeas corpus relief 

following their release from prison, courts have held that such relief is not available 

unless the former prisoner remains subject to some sort of supervisory control, along 

with the imminent possibility of incarceration without a formal trial. Thomas v. Morgan, 

109 F. Supp.2d 763 (N.D. Ohio) (holding that the classification of a sex offender as a 

sexual predator is a collateral disability resulting from a conviction and thus does not 

satisfy the “in custody” requirement of federal habeas corpus).

Due to the complexity of the facts and the limitations of the record presented,2 a

determination of whether Plaintiff’s current post-release control status constitutes a 

sufficient restraint on his freedom to allow him relief under the habeas corpus statute is 

not amenable to complete review under 28 U.S.C. § 1915. Therefore, the undersigned 

merely notes that this case may be subject to dismissal to the extent that it improperly 

was filed as a civil complaint in lieu of seeking habeas corpus relief. See generally 

Foster v. City of Cincinnati, Case No. 1:14-cv-617, 2014 WL 4243759 (S.D. Ohio Aug. 

26, 2014)(dismissing case improperly filed as civil rights action rather than under 28 

U.S.C. § 2254); see also generally Bates v. Jenkins, 2017 WL 5483331 (S.D. Ohio, 

2017) (holding that § 2254 petition challenging correction of sex offender classification 

related only to trial court’s correction of a clerical error and therefore was a “successive” 

petition for which Sixth Circuit approval was required, but noting that in other cases in 

which “a court alters a sentence to include a post-release control, it substantially and 

substantively changes the terms under which an individual is held ‘in custody”)(internal 

 2

Although the undersigned has taken judicial notice of documents filed in the state court record elsewhere 

in this Report and Recommendation, Plaintiff’s classification status and the time frame of any restraints 

imposed upon him remain unclear and potentially subject to further alteration by the state courts. 
8

quotation marks omitted); Graves v. Bradshaw, 2016 WL 8846557 (N.D. Ohio June 30, 

2016)(holding that former prisoner whose post-release control term had expired was no 

longer “in custody” for purposes of § 2254, because Ohio’s sexual predator provisions 

that require classification, registration, and community notification did not sufficiently 

restrain petitioner’s freedom of movement following the expiration of his term of postrelease control); Denoma v. Kasich, 2015 WL 9906255 (S.D. Ohio Nov. 2, 

2015)(describing complaint in which plaintiff challenged sexual predator 

conviction/classification as “hybrid action”); Culgan v. Tibbles, 2012 WL 7752456 (N.D. 

Ohio Sept. 25, 2012) (holding that petitioner released from prison was still “in the 

custody of the parole board” given the significant restraints on the petitioner’s liberty in 

light of his sex offender classification).

2. Dismissal Required Under Younger Abstention

Assuming that Plaintiff has properly filed this complaint under civil statutes rather 

than under 28 U.S.C. § 2254, due to the type of relief sought and his release from 

custody, see, e.g., Doe v. Dewine, 2017 WL 3085642 (S.D. Ohio July 20, 2017)(case 

filed under 42 U.S.C. § 1983 to challenge Ohio sex offender registration law),

3 the case 

still should be dismissed due to the existence of Plaintiff’s ongoing appeal of identical 

issues in state court. Plaintiff seeks prospective declaratory and injunctive relief in the 

form of a federal court order to declare “all subsequent orders and acts” of the state 

court in his criminal case to be “void,” “and that the court take Judicial Notice of both 

 3

The undersigned makes this assumption solely for purposes of initial screening, without the benefit of 

briefing or full analysis. In so doing, the undersigned recognizes the potential additional bar of Heck v. 

Humphrey, 512 U.S. 477, 487 (1994)(holding that a § 1983 civil rights action seeking money damages on 

the basis of an allegedly unconstitutional conviction will not lie unless the plaintiff has already succeeded 

in having the conviction or sentence invalidated), to the extent that granting relief could suggest the 

invalidity of the correction of Plaintiff’s state court sentence classifying him as a “Tier II” sex offender.
9

attached Judgment entries to reverse dated January 20, 2012 and July 27, 2016 and 

act accordingly to protect the interest and rights of Mr. Rucker....” (Doc. 1-1 at 26). 

Absent extraordinary circumstances not present here, federal courts should not 

interfere with pending state proceedings in order to entertain constitutional challenges to 

the state proceedings. Younger v. Harris, 401 U.S. 37 (1971). Under the Younger

doctrine, the federal court must abstain where “(1) state proceedings are pending; (2)

the state proceedings involve an important state interest; and (3) the state proceeding 

will afford the plaintiff an adequate opportunity to raise his constitutional claims.” Kelm v. 

Hyatt, 44 F.3d 415, 419 (6th Cir. 1995) (citing Nilsson v. Ruppert, Bronson & Chicarelli 

Co., 888 F.2d 452, 454 (6th Cir. 1989)); see also Ohio Civil Rights Commission v. 

Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718 (1986) (applying the 

abstention defined in Younger, a criminal case, to civil proceedings and cases); 

Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 102 S.Ct. 

2515 (1982) (same). 

The concerns that gave rise to Younger all apply directly to this case, and no 

extraordinary circumstance require this Court to assume jurisdiction. As suggested by 

Plaintiff’s complaint, Hamilton County Case No. B-0905355 reflects that following the 

July 2016 remand, on April 25, 2017, Plaintiff’s appointed counsel filed an objection to 

reclassification as a Tier II sex offender, arguing that the trial court lacked jurisdiction to 

reclassify Rucker following his release from incarceration, because under state law, 

jurisdiction to correct sentencing errors ends with a prisoner’s release. Plaintiff’s 

counsel additionally argued that classifying Plaintiff after release from imprisonment 

would amount to a violation of Plaintiff’s federal constitutional right against double 
10

jeopardy. An assistant prosecuting attorney (a named defendant in Plaintiff’s federal 

complaint) filed an opposing memorandum, arguing that double jeopardy does not 

apply, and that other principles of controlling state law (including res judicata on the 

jurisdictional issue) required the trial court to comply with the original 2012 Court of 

Appeals mandate to correct the sentence. 

On May 10, 2017 and again on May 23, 2017, Plaintiff filed pro se motions in 

state court raising many of the same arguments presented to this Court, and arguing 

that the state trial court should “dismiss/lop off/vacate with prejudice” any further Tier II 

sex offender classification. On July 14, 2017, Hamilton County Court of Common Pleas 

Judge Steven E. Martin overruled both Plaintiff’s pro se motions and the objection filed 

by his attorney to Tier II classification. On August 4, 2017, Judge Martin filed an entry 

denying the same motions and objection. On August 21, 2017, Judge Martin filed an 

entry on remand, formally vacating “the defendant’s Tier III designation from the court’s 

sentencing entry January 31, 2011,” and classifying Rucker as “a Tier II offender.” 

On September 7, 2017, Plaintiff’s criminal defense attorney filed a third appeal to 

the Court of Appeals, First District of Ohio, docketed as Case No. C 1700488. On 

November 20, 2017, the sixteen page transcript of all previous docket and journal 

entries was filed. On December 18, 2017, Plaintiff’s criminal defense counsel filed a 

brief before the Ohio Court of Appeals. According to the calendar order filed on 

September 14, 2017 by the appellate court, the State’s corresponding brief in opposition 

is due on or before January 19, 2018. Oral argument has not yet been scheduled.

To the extent that Plaintiff’s appeal of his sex offender classification following his 

release from prison remains pending, the state court is where he must seek his remedy. 
11

This Court has no jurisdiction to overturn a state court judgment or to intervene in any 

state appellate process. Under Younger, if litigation remains pending in state court, 

then this Court must abstain until all appeals have been exhausted absent the existence 

of extraordinary circumstances, such as a risk of “great and immediate” irreparable 

injury, state law that is “flagrantly and patently violative of express constitutional 

prohibitions,” or “bad faith, harassment, or any other unusual circumstance that would 

call for equitable relief.” Younger, 401 U.S. at 46, 53, 54; see also Fieger v. Thomas, 74 

F.3d 740, 750 (6th Cir.1996).

The Sixth Circuit has recognized exceptions to the Younger abstention doctrine 

in only three scenarios: (1) when the petitioner seeks a speedy trial; (2) when the 

petitioner seeks to avoid a second trial on the ground that it would violate the Double 

Jeopardy Clause, Delk v. Atkinson, 665 F.2d 90, 93 (6th Cir.1981); and (3) when the 

petitioner seeks to challenge the State's attempt to retry him rather than permit him to 

accept an initial plea offer originally rejected due to ineffective assistance of counsel, 

Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir.1988), vacated on other grounds, 

492 U.S. 902, 109 S.Ct. 3208, 106 L.Ed.2d 559 (1989). To the extent that Plaintiff 

attempts to skirt Younger by inviting review of a “double jeopardy” claim, he still fails to 

show the existence of extraordinary circumstances because the same constitutional 

claim has been presented to the state court in his pending appeal. A federal court must 

presume that the state courts are able to protect the interests of a federal plaintiff. Kelm 

v. Hyatt, 44 F.3d at 420 (additional citation omitted). Therefore, abstention under 

Younger and dismissal of this federal case is appropriate.
12

When abstention is appropriate, a federal court should not exercise jurisdiction 

but instead should either hold the case in abeyance or dismiss it without prejudice. On 

the record presented, where Plaintiff generally attacks his ongoing state criminal 

proceeding and seeks the type of prospective injunctive and declaratory relief that was 

at issue in Younger, dismissal is appropriate. See Loch v. Watkins, 337 F.3d 574 (6th 

Cir. 2003) (affirming dismissal of claims under state law and under 42 I/S// § 1983 on 

the ground of abstention). Although claims for monetary damages may be stayed in lieu 

of dismissal, see Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir.1998), 

and Plaintiff includes a cursory reference to monetary damages or “civil penalties” (see 

Doc. 1-1 at 26), dismissal of the entire complaint is appropriate in this case because

Plaintiff’s claims also fail to state a claim for relief against any identified Defendant, and 

at least arguably would be barred by the Rooker-Feldman doctrine. See Denoma v. 

Kasich, 2015 WL 9906255 at *11 (S.D. Ohio Nov. 2, 2015) (holding under RookerFeldman doctrine that “this Court lacks subject matter jurisdiction to consider plaintiff’s 

claims challenging the state-court proceedings that resulted in the trial judge’s rulings in 

2008 reclassifying plaintiff as a ‘sexually oriented offender’ subject to certain registration 

requirements.”)4

3. Dismissal of Claim Under the Americans With Disabilities Act

Citing 42 U.S.C. §12203, a provision of the Americans With Disabilities Act, 

Plaintiff alleges retaliation and discrimination. However, aside from a handful of broad 

and wholly conclusory allegations that the Defendants violated Plaintiff’s rights “by 

 4

The Rooker-Feldman doctrine contains exceptions for cases in which a plaintiff presents a general 

constitutional challenge to the governing state law, which exceptions have not been closely examined 

here in the interest of judicial economy. See generally Coles v. Granville, 448 F.3d 853, 857-850 (6th Cir. 

2006).
13

retaliating and discriminating” against Plaintiff (Doc. 1-1 at 22), no factual basis has 

been included to support such a claim. Among other defects, Plaintiff has failed to 

allege that he engaged in any protected conduct. Under the ADA, protected conduct is 

defined as either opposing any practice made unlawful by the Act, or making a charge, 

testifying, assisting, or participating in an investigation under the statutes. 42 U.S.C. 

§ 12203(a). Plaintiff’s vague references to some unspecified retaliation and 

discrimination, devoid of any factual detail, are insufficient to state any claim for relief

against any Defendant. 

4. Dismissal of Claims Under 18 U.S.C. § 241 and 242

Plaintiff’s citation to these criminal statutes also fails to state any claim against 

any Defendant. Plaintiff has filed his complaint as a civil action. Absent a private right 

of action, a plaintiff cannot recover civilly for violation of a criminal statute. See also 

generally Easterling v. Crawford, Case No. 3:13-cv-430, 2014 WL 428931 (S.D. Ohio 

Feb. 4, 2014) (recommending dismissal of complaint based upon same statutes).

5. Dismissal of Claims Under 42 U.S.C. § 1983

Plaintiff’s 27 page complaint includes a potpourri of theories to support relief 

under 42 U.S.C. § 1983, ranging from alleged violations of his due process and equal 

protection rights, to res judicata, to equal protection, double jeopardy, “illegal seizure”

under the Fourth Amendment, conspiracy, collusion, failure to prevent conspiracy, false 

imprisonment/arrest, and “trespassers engaged in treason.” At the same time, the 

complaint remains remarkably short on factual detail, giving few clues as to the basis for 

liability under 42 U.S.C. § 1983 against any of the identified Defendants. 
14

Four of the five identified individuals are clearly identified as judges or 

prosecutors. Although Plaintiff identifies a fifth individual Defendant as a “Hamilton 

County Sex Offender Unit/Administrator Ernest Lee,” reference to the state court record 

confirms that Ernest Lee is actually employed as a Hamilton County Assistant 

Prosecuting Attorney. Because all are judges or prosecutors, all five individual 

Defendants are entitled to absolute immunity from Plaintiff’s suit.

The referenced state court judges enjoy absolute judicial immunity from damages 

for acts they commit while functioning within their judicial capacity. Pierson v. Ray, 386 

U.S. 547, 87 S.Ct. 1213 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir.1997). 

Judges retain absolute immunity from liability even if they act maliciously or corruptly, as 

long as they are performing judicial acts and have jurisdiction over the subject matter 

giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356–57, 98 S.Ct. 

1099 (1978); see also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. 

Love, 766 F.2d 962 (6th Cir.1985); cf. Hurst v. Ohio Gen. Assembly, Case No. 2:14-cv2594, 2015 WL 401250, at *4 (S.D. Ohio Jan. 28, 2015) (Kemp, M.J.) (Report & 

Recommendation) (holding that judges responsible for rulings in sex offender 

classification proceedings were “entitled to absolute immunity from civil liability 

regardless of the consequences which follow from their judicial acts”), adopted, 2014 

WL 1291152 (S.D. Ohio Mar. 20, 2015) (Sargus, J.). 

Similarly, the three prosecutors “have immunity for acts taken in their capacity as 

prosecutors.” Id. (and cases cited therein); Manetta v. Macomb County Enforcement 

Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424 U.S. 409, 

430, 96 S.Ct. 984 (1976)). “Absolute prosecutorial immunity is not defeated by a 
15

showing that a prosecutor acted wrongfully or even maliciously.” Lomaz v. 

Hennosy, 151 F.3d 493, 498 n. 7 (6th Cir. 1998)(internal quotation marks and citation 

omitted).

Plaintiff baldly asserts that the judges and prosecutors acted without authority to 

impose Tier II sex offender status. Although an exception to immunity exists where a 

defendant lacks any authority at all or performs non-judicial acts, the exception is 

narrowly drawn and inapplicable on the facts presented. Here, all of Plaintiff’s claims 

clearly arise from the roles of the Defendant prosecutors and judges in his underlying 

(and ongoing) state court criminal proceedings; roles that insulate those Defendants 

from Plaintiff’s suit against them. 

Last, Plaintiff’s claims against the Defendant or Defendants identified only as the 

“Cincinnati Adult Parole Authority Regional Supervisor, Unidentified Staff and Agents” 

and the “Hamilton County Sheriff’s Registration Divisions Staff, supervisors, and agents” 

are subject to dismissal for failure to state any claim. Regardless of whether Plaintiff 

intended to name John/Jane individuals or whether he intended to name city/county 

entities, he fails to identify any specific conduct by any individual associated with the 

referenced Parole Authority or Sheriff’s Division, or actions or policies by the entities 

themselves, that would amount to a constitutional violation, even assuming that the 

entities would be subject to suit. See also generally, Hawk v. Richland Cnty. Jail, No. 

1:12–cv–326, 2012 WL 2742550, at *3 (N.D. Ohio July 9, 2012) (dismissing complaint 

against the county jail and sheriff's department).
16

III. Conclusion and Recommendation

For the reasons explained above, IT IS RECOMMENDED THAT this case be

DISMISSED. Although dismissal without prejudice would be appropriate if dismissal 

were based solely upon Younger abstention, the undersigned instead recommends 

dismissal with prejudice based upon a lack of subject matter jurisdiction under the 

ADA and criminal statutes relied upon, and Plaintiff’s failure to state any claim against 

any Defendant under 42 U.S.C. § 1983. 

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge
17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CLIFFORD I. RUCKER,

Case No. 1:18-cv-05

Plaintiffs,

Black, J.

v. Bowman, M.J.

JUDGE TOM HEEKIN, et. al,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make 

objections in accordance with this procedure may forfeit rights on appeal. See Thomas 

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).