thereby make clear that municipal liability is limited to action for which the municipality is
actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in
original). “[P]laintiff must adequately plead (1) that a violation of a federal right took place, (2)
that the defendants acted under color of state law, and (3) that a municipality’s policy or custom
caused that violation to happen.” Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517 F.3d
433, 439 (6th Cir. 2008)). See also Polk County v. Dodson, 454 U.S. 312 (1981) (municipal
policy must be “moving force” behind constitutional deprivation).

Plaintiff's complaint fails to allege any facts showing that the alleged actions taken by
defendants Deters and Cooper stemmed from a particular policy, custom, or practice of Hamilton
County that caused a violation of plaintiff's civil rights. Therefore, plaintiff's complaint fails to
state a claim upon which relief may be granted against defendants in their official capacity and
should be dismissed.

In the alternative, even if plaintiff was bringing his claims against defendants in their
individual capacity, his complaint should be dismissed because it seeks relief from defendants
who are immune from such relief. Plaintiff's claims against defendant Judge Cooper are barred
by judicial immunity. Judges are afforded absolute immunity from § 1983 liability for acts they
commit while functioning within their judicial capacity. “Like other forms of official immunity,
judicial immunity is an immunity from suit, not just from ultimate assessment of damages.”
Mireles v. Waco, 502 U.S. 9, 11 (1991); Pierson v. Ray, 386 U.S. 547 (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 (1978). See also Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004); Stern

v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001). It is clear that the decisions made by Judge

5


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
JAMES WILLIAM DELONEY, Case No. 1:18-cv-415
Plaintiff, Barrett, J.

Litkovitz, M.J.
vs.

ETHNA M. COOPER, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. 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).


U.S.C. § 1983 civil rights actions arising in Ohio is contained in Ohio Rev. Code § 2305.10,
which requires that actions for bodily injury be filed within two years after their accrual”).
Although the statute of limitations is an affirmative defense, when it appears clear on initial
screening of the complaint that the action is time-barred, the complaint may be dismissed for
failure to state a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199, 215
(2007). Plaintiff alleges that the events giving rise to his claims against the defendants occurred
in June 2013. Accordingly, the statute of limitations expired in June 2015, and plaintiff's
complaint, which was filed on June 14, 2018, is barred by the statute of limitations.

Second, plaintiffs claims against defendants in their official capacity are treated as
claims against Hamilton County, Ohio. Will v. Michigan Department of State Police, 491 U.S.
58 (1989); Kentucky v. Graham, 473 U.S. 159 (1985); Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978). See also Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Plaintiff's complaint fails to state a claim for relief under § 1983 against Hamilton County
because counties are not vicariously liable for the actions of their employees under § 1983. “It is
firmly established that a municipality, or . . . a county, cannot be held liable under § 1983 for an
injury inflicted solely by its employees or agents.” Gregory v. Shelby County, Tenn., 220 F.3d
433, 441 (6th Cir. 2000) (citing Monell, 436 U.S. at 694). To state a claim for relief against
Hamilton County for plaintiff's alleged injuries, the complaint must allege facts showing that the
misconduct giving rise to plaintiff's injuries was the result of a policy, statement, regulation,
decision or custom promulgated by the County. Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 660
(6th Cir. 2014) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003)); Matthews
v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). See Monell, 436 U.S. at 694; Doe v. Claiborne
County, 103 F.3d 495, 507 (6th Cir. 1996). “The ‘official policy’ requirement [of Monell ] was

intended to distinguish acts of the municipality from acts of employees of the municipality, and

4


Cooper in the state court action were functions normally performed by judges. Stump, 435 U.S.
at 362. Plaintiff has alleged no facts indicating that the judge acted “in the complete absence of
all jurisdiction.” Stern, 262 F.3d at 607. Therefore, Judge Cooper is absolutely immune from
civil liability in this matter.

Plaintiff's complaint against defendant Deters must be dismissed because it seeks relief
from a defendant who is immune from such relief. “Prosecutors are entitled to absolute
immunity for conduct ‘intimately associated with the judicial phase of the criminal process.”
Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This includes a county prosecutor’s initiation of
a prosecution and presentation of the State’s case at trial. /mbler, 424 U.S. at 431. A
prosecutor’s initiation and presentation of a case to a grand jury falls within the traditional
functions of the prosecutor and is shielded by absolute immunity. Grant v. Hollenbach, 870 F.2d
1135, 1139 (6th Cir. 1989). Courts have consistently recognized that even the knowing
presentation of false testimony to a grand jury or a trial jury is protected by absolute immunity.
See Spurlock v. Thompson, 330 F.3d 791, 797-98 (6th Cir. 2004). See also Imbler, 424 U.S. at
413, 430; Buckley y. Fitzsimmons, 509 U.S. 259, 267 n. 3 (1993). Likewise, “prosecutors do not
forfeit their absolute immunity when they knowingly make false statements while advocating
before the court.” Pittman v. Cuyahoga Cty. Dep't of Children & Family Servs., 640 F.3d 716,
725-26 (6th Cir. 2011) (citing Burns v. Reed, 500 U.S. 478, 489-90 (1991)) (“Like witnesses,
prosecutors and other lawyers were absolutely immune from damages liability at common law
for making false or defamatory statements in judicial proceedings (at least so long as the
statements were related to the proceeding), and also for eliciting false and defamatory testimony

from witnesses.”). Such “absolute prosecutorial immunity is not defeated by a showing that a


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES WILLIAM DELONEY, Case No. 1:18-cv-415
Plaintiff, Barrett, J.
Litkovitz, M.J.
vs.
ETHNA M. COOPER, et al., REPORT AND
Defendants. RECOMMENDATION

Plaintiff James William Deloney, a resident of Indianapolis, Indiana, brings this action
against Hamilton County, Ohio Common Pleas Court Judge Ethna M. Cooper and Hamilton
County, Ohio Prosecutor Joseph T. Deters under 42 U.S.C. § 1983. By separate Order, plaintiff
has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter
is before the Court for a sua sponte review of plaintiff's complaint 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. 28 U.S.C. § 1915(e)(2)(B).

In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
Jorma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id. 3 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.


prosecutor acted wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498 n. 7
(6th Cir. 1998).

Plaintiff's claim that defendant Deters made false or fabricated statements during grand
jury proceedings is barred by absolute immunity. Jmbler, 424 U.S. at 430. Defendant Deter’s
alleged conduct falls squarely under the prosecutorial absolute immunity recognized in Jmbler
and Pittman. Therefore, defendant Deters is immune from a civil suit for damages under § 1983.

Accordingly, plaintiff's complaint should be dismissed for failure to state a claim upon
which relief may be granted and, in the alternative, because it seeks relief from defendants who

are immune from suit.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff's complaint be DISMISSED with prejudice.

2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to

proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277

(6th Cir. 1997).

vue. 8/13/18 Zhen 2 Stowe

Karen L. Litkovitz, Magistrate J udge-
United States District Court



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 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 also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. § 1915 (e)(2)(B)(ii). A complaint filed by
a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quoting Esrelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, 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 Bell
Allantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Jgbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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.”
Igbal, 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 true a legal conclusion couched as a

factual allegation.” Twombly, 550 U.S. at $55 (quoting Papasan y. Allain, 478 U.S. 265, 286


(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing 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.” Jd. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Plaintiff's pro se complaint states he is bringing his claims against defendants in their
official capacity. (Doc. 1 at 2). Plaintiff alleges that in June 2013, defendant Deters perjured
himself in front of the grand jury by stating he had plaintiff's finger prints from a crime scene
and used such information to obtain a warrant on indictment for plaintiff's arrest on charges of
aggravated murder with specifications. (Doc. | at 4). Plaintiff further alleges that defendant
Cooper “refused to clear” plaintiff's name after he “proved that is wasn’t me.” (/d.). Plaintiff
states defendant Cooper permitted the “Murder/Robbery Warrant” to be listed on his criminal
information, which has interfered with his employment opportunities. He further alleges that
defendant Cooper refuses to pay for damages to his cell phone and moped, which were damaged
when plaintiff was arrested by police. As relief, plaintiff seeks $6 million.

Plaintiff's complaint fails to state a claim for relief under 42 U.S.C. § 1983 and seeks
relief from defendants who are immune from such relief. Therefore, plaintiff's complaint should
be sua sponte dismissed.

First, plaintiff's claims against the defendants are barred by the two year statute of
limitations governing civil rights claims under 42 U.S.C. § 1983. See Browning v. Pendleton,

869 F.2d 989, 992 (6th Cir. 1989) (holding that the “appropriate statute of limitations for 42

we