IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Frank K.C. Hertel, Sr.,

Plaintiff,

v. Case No. 2:18-cv-179

Judge Everett H. Krueger,

et al.,

Defendants.

OPINION AND ORDER

This is an action filed by plaintiff pursuant to 42 U.S.C.

§1983 against Delaware County, Ohio, Court of Common Pleas Judge

Everett H. Krueger; Delaware County Prosecuting Attorney Carol

Hamilton O’Brien; various judges of the Ohio Fifth Appellate

District, specifically naming Judges Craig R. Baldwin and William

B. Hoffman; Ohio Supreme Court Justice Maureen O’Connor; Ohio

Attorney General Mike DeWine; and the State of Ohio. The above

defendants were allegedly involved at various stages of a criminal

prosecution which was first filed against plaintiff in the Court of

Common Pleas of Delaware County, Ohio, in 2000. 

Documents relevant to the history of plaintiff’s state

prosecution are contained in the record of an earlier habeas action

filed by plaintiff in this court pursuant to 28 U.S.C. §2254. See

Hertel v. State of Ohio, Case No. 2:16-cv-435, Doc. 10,

attachments. Plaintiff was indicted in Delaware County, Ohio, in

2000 for rape and gross sexual imposition. Before trial, he moved

to Arizona, where he was indicted for sexual conduct with a child. 

Plaintiff fled to Germany to avoid these prosecutions. He was

convicted in Arizona in absentia.

In 2013, plaintiff was extradited to Ohio to face the Delaware
County indictment. Plaintiff pleaded guilty to the 2000 Delaware

County indictment, but was later permitted to withdraw his guilty

plea. A new indictment was then returned by a Delaware County

grand jury in 2014, alleging the same charges as the 2000

indictment, but adding force specifications which increased the

potential penalties. On March 3, 2014, plaintiff again pleaded

guilty to the original 2000 indictment. On March 5, 2014,

plaintiff was sentenced by Judge Krueger to a term of incarceration

to be served concurrently with his Arizona sentence. On March 18,

2014, the 2014 indictment was dismissed without prejudice

(presumably so that those charges could be re-indicted if plaintiff

again successfully challenged his guilty plea). Plaintiff’s

conviction was affirmed on direct appeal, see State v. Hertel, No.

14 CAA 04 0019 (Fifth District), 2015 WL 1403147 (Ohio App. March

26, 2015), and the Ohio Supreme Court declined to accept review,

see State v. Hertel, 143 Ohio St.3d 1355 (2015).

On August 18, 2014, plaintiff filed a motion to dismiss with

prejudice the 2014 indictment against him. The Delaware County

court denied the motion on September 3, 2014. Plaintiff’s motion

for a delayed appeal was denied on October 17, 2014, and the Ohio

Supreme Court declined to review on April 29, 2015. On January 5,

2015, plaintiff filed an application to re-open the appeal. The

court of appeals denied the application. Plaintiff filed a second

application to re-open on June 22, 2015. The court of appeals

denied the second application, and on February 10, 2016, the Ohio

Supreme Court declined to accept jurisdiction of the appeal.

In his habeas case, petitioner asserted claims relating to the

2014 indictment, including the claim that he was denied his speedy

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trial rights under the Interstate Agreement on Detainers (“IAD”). 

On May 5, 2017, the petition was dismissed because plaintiff’s

claims only addressed the 2014 indictment and he was not in custody

based on the 2014 indictment. See 2:16-cv-435, Doc. 14.

In the instant case, plaintiff alleges that the defendants

were involved in various capacities in his criminal prosecution,

including his conviction in the 2000 case, the dismissal of the

2014 indictment and his subsequent actions challenging the

dismissal without prejudice of the 2014 indictment. Plaintiff

alleges that defendants’ actions violated the IAD’s 180-day speedy

trial requirement, that both the 2000 and the 2014 indictment

should be dismissed based on the alleged failure to comply with the

IAD’s speedy trial requirements, and that under the IAD, the 2014

indictment should have been dismissed with prejudice rather than

without prejudice. He alleges that because the 2014 indictment was

dismissed without prejudice, it is still valid. He alleges that

the 2000 indictment and his guilty plea should be set aside under

the theory that the continued validity of both the 2000 and 2014

indictments constitutes double jeopardy. Plaintiff seeks an order

finding that the IAD was violated by the dismissal without

prejudice of the 2014 indictment, an order directing Judge Krueger

to dismiss the 2014 indictment with prejudice, compensatory damages

in the amount of $250,000, and an award of punitive damages in the

amount of $5 million against defendant O’Brien. Plaintiff

indicates in his objection that it is his intention to sue the

defendants in their official and individual capacities.

I. Standard of Review

This matter is before the court for consideration of

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plaintiff’s objection (Doc. 6) to the magistrate judge’s July 5,

2018, report and recommendation (Doc 5). If a party objects to a

report and recommendation within the allotted time, the court

“shall make a de novo determination of those portions of the report

or specified proposed findings or recommendations to which

objection is made.” 28 U.S.C. §636(b)(1); see also Fed. R. Civ. P.

72(b). Upon review, the Court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. §636(b)(1).

As the magistrate judge correctly explained, 28 U.S.C.

§1915(e) requires sua sponte dismissal of an action upon the

court’s determination that the action fails to state a claim upon

which relief may be granted. Grinter v. Knight, 532 F.3d 567, 572

(6th Cir. 2008). Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard. See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.

12(b)(6) standards to review under 28 U.S.C. §§1915A and

1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6)

construe the complaint in a light most favorable to the plaintiff,

accepting all well-pleaded allegations in the complaint as true,

and determining whether plaintiff undoubtedly can prove no set of

facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

necessary to sustain a recovery under some viable legal theory.” 

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Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). While the

complaint need not contain detailed factual allegations, the

“[f]actual allegations must be enough to raise the claimed right to

relief above the speculative level” and “state a claim that to

relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007). Although the filings of a

pro se litigant are construed liberally, a pro se party will not be

relieved of the responsibility to comply with basic rules of court. 

McNeil v. United States, 508 U.S. 106, 113 (1993).

II. State of Ohio

Plaintiff has named the State of Ohio as a defendant. The

magistrate judge correctly concluded that plaintiff’s claims

against the State of Ohio are precluded by the doctrine of Eleventh

Amendment immunity. The Eleventh Amendment bars federal courts

from exercising jurisdiction over actions brought against a state. 

Papasan v. Allain, 478 U.S. 265, 276 (1986). Unless the state has

waived its Eleventh Amendment immunity or Congress has overridden

it, a state cannot be sued directly in its own name regardless of

the relief sought. Kentucky v. Graham, 473 U.S. 159, 167 n. 14

(1985). Ohio has not waived its sovereign immunity in federal

court. Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). The

court agrees that dismissal of the State of Ohio as a named

defendant is appropriate in this case.

A suit brought against a defendant in his official capacity as

a state officer or agent is treated as a suit against the state. 

Graham, 473 U.S. at 167. However, the Eleventh Amendment does not

automatically preclude a claim against a state official acting in

his or her official capacity if plaintiff seeks only prospective

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injunctive or declaratory relief. Papasan, 478 U.S. at 276-78. 

Plaintiff’s claims against the individual state officers are

addressed below. 

III. Judicial Defendants

The magistrate judge correctly found that plaintiff’s claims

against Justice O’Connor and Judges Krueger, Baldwin, and Hoffman

are barred by the doctrine of judicial immunity. Generally, a

judge is immune from a suit for money damages. Mireles v. Waco,

502 U.S. 9, 9 (1991). Judicial immunity is overcome in only two

circumstances: (1) when a judge performs nonjudicial actions, that

is, actions not taken in the judge’s judicial capacity; and (2)

when a judge’s actions are taken in the complete absence of all

jurisdiction. Id. at 11-12. The complaint in this case pleads no

facts which would suggest that either of these exceptions is

applicable. Rather, the alleged acts by the named judges involved

judicial acts performed during the criminal prosecution of the

plaintiff at the trial and appellate stages of the case. 

Plaintiff argues that judicial immunity does not bar claims

for declaratory and injunctive relief. He has requested a

declaration that the dismissal without prejudice of the 2014

indictment violated the IAD, and injunctive relief directing Judge

Krueger to dismiss that indictment with prejudice. In regard to

the claim for declaratory relief, the Sixth Circuit has held that

where a judge was not an adversary of the plaintiff in the state

court proceedings or an enforcer or administrator of a statute, but

rather acted as a disinterested judicial adjudicator who was bound

to decide the issues before him, the judge is not amenable to a

suit for declaratory relief under §1983 because no case or

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controversy exists between the plaintiff and the judge. See Cooper

v. Rapp, 702 F. App’x 328, 333-34 (6th Cir. 2017). The judicial

defendants in this case acted as adjudicators in plaintiff’s case,

and no claim for declaratory relief has been stated against them.

Plaintiff’s claim for injunctive relief against the judicial

defendants also fails. Section 1983 provides that

in any action brought against a judicial officer for an

act or omission taken in such officer’s judicial

capacity, injunctive relief shall not be granted unless

a declaratory decree was violated or declaratory relief

was unavailable.

§1983. No declaratory decree is alleged to have been violated in

this case. Plaintiff has also failed to demonstrate that

declaratory relief was “unavailable.” The fact that plaintiff’s

claim for declaratory relief cannot be pursued against the judicial

defendants does not mean that it could not have been pursued

against some other party. See Cooper, 702 F. App’x at 334 (holding

judge was immune from plaintiffs’ claims for injunctive relief even

though they were not entitled to declaratory relief against the

judge).

Insofar as plaintiff has sued the judicial defendants in their

official capacities for damages, his claims are also barred by the

doctrine of Eleventh Amendment immunity. An official capacity suit

is treated as a suit against the governmental entity. Graham, 473

U.S. at 166. The Eleventh Amendment bars §1983 actions against a

state and its officials sued in their official capacities for money

damages. Id. at 169. Ohio common pleas and appellate courts are

arms of the State of Ohio for purposes of the Eleventh Amendment

analysis. See Mumford v. Basinski, 105 F.3d 264, 269 (6th Cir.

1997). The Eleventh Amendment does not preclude a claim against a

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state official acting in his or her official capacity if plaintiff

seeks only prospective injunctive or declaratory relief. Papasan,

478 U.S. at 276-78. However, as discussed above, the complaint

fails to state a claim against the judicial defendants for

declaratory and injunctive relief. 

Plaintiff’s claims against the judicial defendants do not

state a claim for relief.

IV. Prosecutorial Immunity

Plaintiff has also asserted claims against defendants O’Brien

and DeWine. The magistrate judge correctly concluded that

defendant O’Brien is entitled to absolute prosecutorial immunity on

plaintiff’s claims for money damages. A state prosecutor acting

within the scope of his or her duties in initiating and pursuing a

criminal prosecution is not amenable to suit under §1983. Imbler

v. Pachtman, 424 U.S. 409, 410 (1976); see also Burns v. Reed, 500

U.S. 478, 486 (1991)(prosecutors are absolutely immune from

liability under §1983 for their conduct insofar as that conduct is

intimately associated with the judicial phase of the criminal

process). Courts will bar §1983 suits arising out of even illegal

or improper conduct by the prosecutor so long as the general nature

of the action in question is part of the normal duties of a

prosecutor. Imbler, 424 U.S. at 413. Plaintiff’s allegations

against defendant O’Brien concern her role as an advocate in the

prosecution of the Delaware County criminal proceedings against

plaintiff. These acts of initiating and pursuing a criminal

prosecution were within the scope of her duties as an advocate, and

they are shielded by absolute immunity from plaintiff’s claims for

money damages. Id. at 410.

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Plaintiff’s claims against defendant O’Brien in her official

capacity for money damages are also barred by the doctrine of

Eleventh Amendment immunity. Because defendant O’Brien acted as a

state agent when prosecuting state criminal charges against

plaintiff, his claims against her in her official capacity are

treated as a suit against the State of Ohio for purposes of

Eleventh Amendment immunity. See Pusey v. City of Youngstown, 11

F.3d 652, 657-58 (6th Cir. 1993).

Plaintiff correctly notes that the magistrate judge did not

specifically discuss his claims against Attorney General DeWine. 

However, the same absolute prosecutorial immunity analysis applies

to plaintiff’s claim against him. The only alleged involvement of

defendant DeWine in this case is that an assistant attorney general

in his office filed a motion to dismiss the habeas petition filed

by plaintiff in Case No. 2:16-cv-435. This act was that of an

advocate in judicial proceedings, and plaintiff’s claim against

defendant DeWine is barred by absolute immunity. Likewise, any

claim for money damages asserted by plaintiff against defendant

DeWine in his official capacity as an officer of the State of Ohio

is barred by the Eleventh Amendment. The complaint fails to state

a claim for money damages against defendant DeWine. Plaintiff’s

claim for declaratory relief is also not addressed to defendant

DeWine, as that claim addresses relief sought in regard to the

Delaware County criminal prosecution, not the federal habeas action

in which defendant DeWine appeared as counsel for the State of

Ohio.

Insofar as the complaint is read as asserting claims for

declaratory relief against defendant O’Brien concerning the alleged

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violations of the IAD, plaintiff’s conviction on the 2000

indictment, and the alleged illegality of the dismissal of the 2014

indictment without prejudice, the magistrate judge identified other

obstacles to plaintiff’s pursuit of these IAD claims which are

discussed below.

V. Statute of Limitations

The magistrate judge concluded that plaintiff’s claims are

barred by the two-year statute of limitations applicable to §1983

actions. See Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989). 

A complaint showing on its face that relief is barred by an

affirmative defense is properly subject to dismissal for failure to

state a claim upon which relief can be granted. Rauch v. Day and

Night Manuf. Corp., 576 F.2d 697, 702 (6th Cir. 1978)(holding that

a limitations defense may be raised by a Rule 12 motion); see also

New England Health Care Employees Pension Fund v. Ernst & Young,

LLP, 336 F.3d 495, 501 (6th Cir. 2003)(dismissal on limitations

ground).

The conduct of the individual defendants relative to

plaintiff’s state court prosecution and conviction and the

dismissal of the 2014 indictment occurred in 2013 and 2014. The

Ohio Supreme Court declined to exercise jurisdiction over

plaintiff’s final appeal on February 10, 2016. The instant action

was filed on March 1, 2018. The fact that plaintiff filed a habeas

action in this court in 2016 seeking to have the 2014 indictment

dismissed with prejudice did not serve to toll the running of the

statute of limitations against the State of Ohio and the individual

defendants for purposes of the instant §1983 action. The court

agrees that plaintiff’s claims are barred by the statute of

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limitations.

VI. Habeas Corpus Relief

To the extent that plaintiff seeks an order declaring that his

state court conviction was obtained in violation of his federal

constitutional rights, the magistrate judge found that his sole

remedy is habeas corpus. See Skinner v. Switzer, 562 U.S. 521, 525

(2011); Heck v. Humphrey, 512 U.S. 477, 487 (1994). A convicted

criminal defendant cannot bring a §1983 claim if a judgment on the

claim would necessarily imply the invalidity of his criminal

conviction and that conviction has not been set aside. Heck, 512

U.S. at 487.

Plaintiff’s previous habeas petition contained only claims 

challenging the dismissal without prejudice of the 2014 indictment. 

This petition was dismissed because plaintiff was not in custody

based on that indictment. Of interest is the fact that plaintiff

objected to the dismissal of the habeas petition on this ground,

arguing that if his challenge to the 2014 indictment was

successful, this would also result in the dismissal of the charges

against him on the 2000 indictment to which he pleaded guilty. See

Case No. 2:16-cv-435, Doc. 16, pp. 2-3. In the instant case, the

magistrate judge concluded that plaintiff was seeking relief from

the 2014 indictment only as a means to fatally undermine the

constitutionality of his guilty plea to the 2000 indictment. See

Doc. 5, p. 10. The magistrate judge also noted that plaintiff is

seeking a declaratory judgment that the various continuances

granted by the Ohio trial judge violated the speedy trial

provisions of his IAD detainer agreement. The magistrate judge

observed that this relief would necessarily implicate the validity

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of his plea to the 2000 indictment and his criminal conviction. 

In his objection, plaintiff states that he did not intend for

this court to provide relief of any sort for the 2000 case, which

he says he is still litigating in state courts. Doc. 6, p. 3. He

also asks this court not to make any findings concerning the 2000

case. Doc. 6, p. 6. However, in his complaint, plaintiff alleges

that the 2000 case violated the IAD’s 180-day speedy trial time. 

Doc. 1-2, p. 9. Plaintiff further alleges that if the 2014 case

had been dismissed with prejudice, that would have made his

conviction and sentence in the 2000 case impossible on double

jeopardy grounds, and he would not have entered his guilty plea. 

Doc. 1-2, pp. 10-11. Plaintiff also requests a declaration that

the trial judge violated the IAD by dismissing the 2014 case

without prejudice. Doc. 1-2, p. 20. Thus, it appears that

plaintiff’s IAD claims with respect to the 2014 indictment may also

impact the validity of his 2000 conviction. The court agrees with

the magistrate judge that to the extent that plaintiff’s claims

would also implicate the validity of his 2000 conviction, his

appropriate remedy would be to file a habeas petition.

VII. Waiver of IAD Claim

The magistrate judge also found that plaintiff’s claim that

the dismissal without prejudice of the 2014 indictment violated the

IAD was waived by plaintiff’s entry of an unconditional guilty

plea. The same can be said in regard to any claim that plaintiff’s

conviction under the 2000 indictment is invalid due to alleged IAD

speedy trial violations. The Sixth Circuit has held that

violations of the IAD speedy trial provisions are waived by the

entry of a guilty plea. See Kowalak v. United States, 645 F.2d

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534, 537 (6th Cir. 1981). Further, as the magistrate judge noted,

plaintiff has not alleged any prejudice resulting from the

dismissal without prejudice of the 2014 indictment. The complaint

does not allege that the State of Ohio has taken any steps to

revive this indictment or to re-indict plaintiff on those charges. 

Because plaintiff’s alleged IAD violations were waived by his entry

of an unconditional guilty plea, they do not state a claim under

§1983.

VIII. Rooker-Feldman Doctrine

Although the magistrate judge did not address this issue, the

court further finds, on de novo review, that insofar as plaintiff

is seeking to challenge the judgment of conviction on the 2000

indictment and the judgment dismissing the 2014 indictment, his

claims are barred under the Rooker-Feldman doctrine. See Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923), and Dist. of Columbia

Court of Appeals v. Feldman, 460 U.S. 462 (1983). Federal district

courts do not stand as appellate courts for decisions of state

courts. Id. Rather, the Supreme Court is vested with exclusive

jurisdiction over appeals from final state-court judgments. Lance

v. Dennis, 546 U.S. 459 (2006). Although the Rooker-Feldman

doctrine does not apply to independent claims of injury against a

third party involving a previously litigated matter, it does

prevent a federal court from exercising jurisdiction over a claim

alleging error in a state court decision, including attacks on a

state court’s alleged procedural errors. Hall v. Callahan, 727

F.3d 450, 453-54 (6th Cir. 2013).

Plaintiff previously litigated his IAD speedy trial claims in

his direct appeal from his conviction. See 2:16-cr-435, Doc. 10-1,

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Ex. 12 (plaintiff’s pro se brief). The state court of appeals

rejected plaintiff’s speedy trial arguments and held that because

plaintiff entered a guilty plea to the charges, the speedy trial

issues raised in his brief were waived. See Hertel, 2015 WL

1403147, *2-3. The Ohio Supreme Court declined to accept

jurisdiction of the appeal. Hertel, 143 Ohio St.3d at 1466. 

Plaintiff could have filed a petition to appeal this judgment to

the Supreme Court, but did not do so. Plaintiff also filed a

motion on August 18, 2014, asking the trial court to vacate the

order dismissing the 2014 indictment and to dismiss that indictment

with prejudice. Plaintiff litigated this matter in the state

courts, but filed no petition to appeal the matter to the Supreme

Court after he was denied relief by the Ohio courts. To the extent

that plaintiff seeks to vacate the judgment of conviction on the

2000 indictment and the order dismissing the 2014 indictment, this

court has no jurisdiction to entertain such claims in this §1983

action.

IX. Conclusion

In accordance with the foregoing, plaintiff’s objection (Doc.

6) is denied. The court adopts the report and recommendation (Doc.

5). This action is hereby dismissed pursuant to 28 U.S.C.

§1915(e)(2)(B)(ii) for failure to state a claim for which relief

may be granted.

Date: August 16, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge

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