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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STATE OF OHIO,

 EX REL TED MARCUM,

Petitioner, : Case No. 3:17-cv-437

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

SHERIFF DAVE DUCHAK, et al.,

:

Respondents.

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS 

OF STACY WALL

This case is before the Court on Motion to Dismiss of Defendant Stacy Wall (ECF No. 4) 

which Plaintiff opposes (ECF No. 5).

Defendant Wall’s Motion cites no particular authority for dismissal. Because the case has 

been removed to federal court, the Motion must be evaluated under the Federal Rules of Civil 

Procedure and this Court treats it as a motion to dismiss for failure to state a claim upon which 

relief can be granted under Fed. R. Civ. P. 12(b)(6).

Attorney Wall notes that she is purportedly sued in her official capacity as an Assistant

Miami County Prosecutor but that she does not hold that office; rather, she is Law Director for the 

City of Piqua, Ohio. 

Plaintiff responds that to his knowledge Ms. Wall is the person who, on October 12, 2017, 

advised him “to waive his right to counsel” in the case then pending before Judge Gutmann and 

was also the person who first advised him of the failure of the Municipal Court to timely appoint 
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counsel for him. (ECF No. 5, PageID 271-72). He speculates that on the occasion in question, 

Ms. Wall was sitting in for the assigned assistant county prosecutor. Marcum requests a full 

evidentiary hearing on the Motion with the Court conducting what would include what would 

amount to a lineup of Ms. Wall and Ms. Lenee Brosh so that Mr. Marcum can identify which of 

them is the person to whom he is referring.

The gravamen of Marcum’s complaint against Ms. Wall is “that it is illegal, unethical, and 

unconstitutional for prosecutors’ to approach criminally accused defendants to either incourage 

[sic] or advise them to ‘waive’ their right to counsel.” (Complaint, ECF No. 2, PageID 184). At 

a later point he alleges “”[i]t is also a conflict of interest as well as a structural error for any 

prosecutor to give “legal advise [sic]” to a criminal defendant that may incourage [sic] a defendant

to forfeit any of his constitutional rights. . .” Id. at PageID 185. 

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been stated by the Supreme Court 

as follows:

Factual allegations must be enough to raise a right to relief above 

the speculative level, see 5 C. Wright & A. Miller, Federal Practice 

and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading 

must contain something more ... than ... a statement of facts that 

merely creates a suspicion [of] a legally cognizable right of action”), 

on the assumption that all the allegations in the complaint are true 

(even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 

534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); 

Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 

338 (1989)(“ Rule 12(b)(6) does not countenance ... dismissals 

based on a judge's disbelief of a complaint's factual allegations”); 

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 

(1974) (a well-pleaded complaint may proceed even if it appears 

“that a recovery is very remote and unlikely”).

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).

[W]hen the allegations in a complaint, however true, could not raise 

a claim of entitlement to relief, “‘this basic deficiency should ... be 
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exposed at the point of minimum expenditure of time and money by 

the parties and the court.’” 5 Wright & Miller § 1216, at 233-234 

(quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 

(D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 

544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 

S.Ct. 1627; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289 

F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by 

designation) (“[S]ome threshold of plausibility must be crossed at 

the outset before a patent antitrust case should be permitted to go 

into its inevitably costly and protracted discovery phase”). 

Twombly, 550 U.S. at 558; see also Association of Cleveland Fire Fighters v. City of Cleveland, 

Ohio, 502 F.3d 545 (6th Cir. 2007). 

42 U.S.C. § 1983, R.S. § 1979, the statute under which Mr. Marcum brought suit, was 

adopted as part of the Act of April 20, 1871, and reads, as amended:

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 , except 

that in any action brought against a judicial officer, injunctive relief 

shall not be granted unless a declaratory decree was violated or 

declaratory relief was unavailable. For the purposes of this section, 

any Act of Congress applicable exclusively to the District of 

Columbia shall be considered to be a statute of the District of 

Columbia.

The statute creates a cause of action sounding essentially in tort on behalf of any person deprived 

of a constitutional right by someone acting under color of state law. City of Monterey v. Del Monte 

Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School District v. 

Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978).

The question before the Court on the instant Motion to Dismiss is whether Mr. Marcum 

has stated a plausible claim that Ms. Wall deprived him of his constitutional rights if she did what 

he alleges she did. The answer is no. Whether or not it is unethical or “illegal” for a prosecutor 
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to give legal advice to a criminal defendant, it is not unconstitutional to do so. In fact it is a 

common, even routine, practice for prosecutors to encourage defendants to waive their right to 

counsel in the course of pleading guilty or no contest. A person constitutionally entitled to 

appointed counsel cannot validly plead no contest without waiving his right to representation. 

Whether or not receiving advice from a prosecutor to waive counsel renders the plea involuntary 

is a question for Plaintiff to raise on appeal or later in habeas corpus in this case. But as pleaded 

the claim against Ms. Wall does not state a claim upon which relief can be granted under 42 U.S.C. 

§ 1983.

It is therefore respectfully recommended that this case be dismissed as to Defendant Stacy 

Wall for failure to state a claim upon which relief can be granted.

January 11, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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