UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JEREMIAH YOUNG,

Plaintiff, Case No. 3:18-cv-109

vs.

JOHN W. KESSLER, et al., District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S COMPLAINT 

(DOC. 1-2) BE DISMISSED WITH PREJUDICE; AND (2) THIS CASE BE 

TERMINATED ON THE COURT’S DOCKET

______________________________________________________________________________

This civil case is before the Court for a sua sponte review -- pursuant to 28 U.S.C. 

§ 1915(e)(2) -- of the complaint filed by pro se Plaintiff Jeremiah Young (“Young”). Young

filed a motion for leave to proceed in forma pauperis (“IFP”) on April 9, 2018 (doc. 1), which 

the Court granted. See Notation Order dated April 12, 2018. The Court, however, held service 

of the complaint pending a review under § 1915(e)(2). Id. It is appropriate for the Court to 

conduct this review sua sponte prior to issuance of process “so as to spare prospective 

defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 

490 U.S. 319, 324 (1989).

I.

In accordance with 28 U.S.C. §1915(e)(2), this Court must perform an initial review of 

the instant action. McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Upon 

review, the Court must dismiss any case it determines is “frivolous or malicious,” fails to state a 

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation. 
2

claim upon which relief can be granted, or seeks monetary relief from a defendant who is 

immune from such relief. 28 U.S.C. § 1915(e)(2)(B). 

A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact. 

Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A plaintiff sets forth no 

arguable factual basis where the allegations asserted are “fantastic or delusional”; and presents 

no arguable legal basis when advancing “indisputably meritless” legal theories, i.e., when the 

defendant is immune from suit, or when the plaintiff claims a violation of a legal interest which 

clearly does not exist. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th 

Cir. 2000). Courts may also dismiss a complaint sua sponte for failure to state a claim upon 

which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). 

In conducting this initial review under § 1915, the Court accepts pro se Plaintiff’s

allegations as true and construes them liberally in his favor. See Donald v. Marshall, No. 84-

3231, 1985 WL 13183, at *1 (6th Cir. Apr. 5, 1985) (stating that, “[w]hen considering a pro se

action for dismissal pursuant to 28 U.S.C. § 1915(d), the complaint should be liberally construed 

and the allegations of the complaint must be taken as true and construed in favor of the 

plaintiff”). However, while pro se pleadings are “to be liberally construed” and are “held to less 

stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 

94 (2007) (per curiam), pro se plaintiffs must still satisfy basic pleading requirements. Wells v. 

Brown, 891 F.2d 591, 594 (6th Cir. 1989).

II.

Young was indicted on charges of rape and felonious sexual assault by a grand jury in the 

Montgomery County, Ohio Court of Common Pleas on January 6, 2000. Doc. 1 at PageID 5. 

The criminal case was subsequently assigned to Montgomery County Common Pleas Judge John 

W. Kessler. Doc. 1-2 at PageID 10. Young was represented by Defendant Alan D. Gable in the 

criminal proceedings. Id. Defendants Michele D. Phipps and Kenneth R. Pohlman were 
3

prosecuting attorneys representing the State of Ohio. Id. Subsequent to Young’s sentencing, 

Defendant Montgomery County Common Pleas Judge Mary L. Wiseman overruled Young’s 

motion to vacate his sentence. Id.

Young contends that Defendants all conspired to deprive him of due process of law by 

proceeding with prosecution of the allegedly unlawfully instituted criminal charges. Id. Young

was ultimately convicted and, on June 9, 2000, was sentenced to life in state prison. Id. 

On April 9, 2018, Young filed this action in federal court purporting to assert civil rights 

and civil conspiracy claims against Defendants under 42 U.S.C. § 1985(2). Id. at PageID 9. 

However, because there are no specific factual allegations of witness intimidation or 

discrimination against Young as a member of a protected class, the undersigned liberally 

construes Young’s claims as alleging a civil conspiracy under 42 U.S.C. § 1983, not § 1985(2).2 

See Fannon v. Patterson, No. 3:13-CV-14, 2014 WL 4273337, at *6 n.9 (S.D. Ohio Aug. 29, 

2014) (citing Fox v. Mich. State Police Dep’t, 173 F. App’x 372, 376 (6th Cir. 2006); Smithers 

ex rel. Norris v. City of Flint, 602 F.3d 758, 766 (6th Cir. 2010)).

 

2

42 U.S.C. § 1985(2) states that it is unlawful for “two or more persons in any State or Territory 

[to] conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United 

States from attending such court, or from testifying to any matter pending therein, freely, fully, and 

truthfully, or to injure such party or witness in his person or property on account of his having so attended 

or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such 

court, or to injure such juror in his person or property on account of any verdict, presentment, or 

indictment lawfully assented to by him, or of his being or having been such juror; or [for] two or more 

persons [to] conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the 

due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of 

the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any 

person, or class of persons, to the equal protection of the laws[.]” 42 U.S.C. § 1983 provides, in relevant 

part, that “[e]very 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 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.”
4

III.

Initially, the undersigned finds that all of Young’s claims are time-barred -- regardless of 

whether he pursues such claims under § 1983 or § 1985. Civil rights claims brought in Ohio 

courts are subject to the two-year limitations period set forth in Ohio Rev. Code § 2305.11(A). 

See Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989); see also Dotson v. Lane, 360 F. 

App’x 617, 620 (6th Cir. 2010); Savage v. Unknown F.B.I. Agents, No. 96-4230, 1997 U.S. App. 

LEXIS 25320, at *1 (6th Cir. Sept. 15, 1997). “The accrual date of a § 1983 action is a question 

of federal law[,]” under which the limitations period begins to run when “plaintiff [ ] knew or 

should have known of the injury which forms the basis of their claims.” Wallace v. Kato, 549 

U.S. 384, 388 (2007). 

In this case, Young contends that the alleged due process violation was known -- or 

should have been known -- at the time the criminal charges were filed against him on January 6, 

2000, and certainly no later than entry of his sentence on June 9, 2000. Doc. 2 at PageID 12. 

Young filed this action on April 9, 2018 -- almost 17 years after his sentencing, and 18 years 

after he was initially charged. See doc. 1. Accordingly, Young’s claims are barred by the 

applicable two-year statute of limitations set forth in Ohio Rev. Code § 2305.11(A).

Even assuming, arguendo, that Young’s claims are not time-barred, any claims asserted 

against Judges Kessler and Wiseman or the Defendant prosecutors (Phipps and Pohlman) in their 

official capacities are barred by the Eleventh Amendment. See Mumford v. Basinski, 105 F.3d 

264, 270 (6th Cir. 1997); see also Pusey v. City of Youngstown, 11 F.3d 652, 657-58 (6th Cir. 

1993). In addition, Judges Kessler and Wiseman are entitled to absolute judicial immunity when 

sued for damages in their personal capacity for acts performed as a judicial officer. See Barnes 

v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997); Stump v. Sparkman, 435 U.S. 349, 356 (1978). 

Likewise Phipps and Pohlman are also entitled to absolute immunity for claims arising from acts 
5

performed in their role as state prosecutors. Grant v. Hollenbach, 870 F.2d 1135, 1137 (6th Cir. 

1989) (citing Imbler v. Pachtman, 424 U.S. 409, 420 (1976)).

Even in the absence of absolute immunity, the undersigned further finds that Young’s

vague and conclusory factual allegations are insufficient to state a plausible civil conspiracy 

claim against any of the Defendants. As stated by the Sixth Circuit:

A civil conspiracy is an agreement between two or more persons to injure 

another by unlawful action. Express agreement among all the conspirators is 

not necessary to find the existence of a civil conspiracy. Each conspirator 

need not have known all of the details of the illegal plan or all of the 

participants involved. All that must be shown is that there was a single plan, 

that the alleged coconspirator shared in the general conspiratorial objective, 

and that an overt act was committed in furtherance of the conspiracy that 

caused injury to the complainant.

Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). “[P]leading requirements governing civil 

conspiracies are relatively strict” and, therefore, such “claims must be pled with some degree of 

specificity[.]” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008). “[V]ague and conclusory 

allegations unsupported by material facts will not be sufficient to state . . . a [civil conspiracy] 

claim under § 1983.” Id. 

Finally, with regard to Defendant Gable, even assuming, arguendo, that claims against 

him are not time-barred -- which they are3-- he is not subject to § 1983 liability because: (1) he 

is not a state actor; and (2) there are no specific factual allegations upon which the Court can find 

he conspired with any state official to deprive Young of a constitutional right. Cf. Elrod v. 

Michigan Supreme Court, 104 F. App’x 506, 508 (6th Cir. 2004) (holding that a criminal defense 

attorney could not be liable under § 1983 because he was not a state actor and because there was 

no evidence that he acted in concert with state actors to deprive plaintiff of his constitutional 

 

3

For the reasons supra, Young’s § 1983 claims against Gable are time-barred. To the extent that 

Young may also seek to claim that Gable’s legal representation of him was in some way legal 

malpractice, the Court notes that malpractice is not actionable under § 1983, see Washington v. Brewer, 

No. 91-1935, 1991 U.S. App. LEXIS 28136, *1 (6th Cir. Nov. 21, 1991), and legal malpractice claims in 

Ohio are subject to a one-year limitations period, O.R.C. § 2305.11(A).
6

rights); see also Holland v. O’Hair, No. 97-1585, 1998 WL 152753, at *2 (6th Cir. Mar. 26, 

1998) (dismissing a § 1983 claim against plaintiff’s criminal defense attorneys because they 

were not “state actors for purposes of § 1983” and because his “allegations of conspiracy [were] 

vauge and conclusory and thus insufficient to state a claim”).

IV.

Based on the foregoing, the undersigned RECOMMENDS that pro se Plaintiff’s 

complaint (doc. 2) be DISMISSED, and that this case be TERMINATED on the Court’s 

docket.

Date: April 18, 2018 s/ Michael J. Newman 

Michael J. Newman

United States Magistrate Judge
7

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 Recommendation. This period is not extended by virtue of Fed. R. 

Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. 

If, however, this Report and Recommendation was served upon you by mail, this deadline is 

extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an 

extension of the deadline to file objections by filing a motion for extension, which the Court may 

grant upon a showing of good cause. 

Any objections filed shall specify the portions of the Report and Recommendation 

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

the Report and Recommendation is 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. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is 

extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. 

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).