[Cite as Tuleta v. Med. Mut. of Ohio, 2014-Ohio-930.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100032 

ANTHONY TULETA, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

MEDICAL MUTUAL OF OHIO, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-793800 

 BEFORE: Blackmon, J., Boyle, A.J., and E.A. Gallagher, J. 

 RELEASED AND JOURNALIZED: March 13, 2014 
ATTORNEYS FOR APPELLANTS

Henry W. Chamberlain 

Chamberlain Law Firm Co., L.P.A. 

36368 Detroit Road, Suite A 

Avon, Ohio 44011 

David A. Hamamey, II 

Hamamey Law Firm, L.L.C. 

P.O. Box 30543 

Middleburg Heights, Ohio 44130 

John J. Sheehan, Jr. 

Sheehan Law 

503 East 200th Street 

Euclid, Ohio 44119 

ATTORNEYS FOR APPELLEES

For city of Cleveland and Michael McGrath

Barbara A. Langhenry 

Director of Law 

William M. Menzalora 

Chief Assistant 

Department of Law 

Cleveland City Hall 

Alejandro V. Cortes 

Assistant Director of Law 

City of Cleveland - Law Department 

601 Lakeside Avenue, Room 106 

Cleveland, Ohio 44114 

For Cuyahoga County, Ohio, Cuyahoga County Prosecutor’s Office, William D. 

Mason, James Gutierrez, and Mary McGrath 

Timothy J. McGinty 
Cuyahoga County Prosecutor 

Brian R. Gutkoski 

John F. Manley 

Assistant County Prosecutors 

Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

For Medical Mutual of Ohio

Lindsey A. Carr 

Christopher G. Keim 

Frantz Ward L.L.P. 

2500 Key Center 

127 Public Square 

Cleveland, Ohio 44114

PATRICIA ANN BLACKMON, J.: 
{¶1} In this companion appeal, appellants Anthony Tuleta, et al. (“Tuleta”), 

appeal the trial court’s dismissal of his complaint and assigns the following errors for our 

review: 

I. The trial court erred in determining defendants James Gutierrez, Mary H. 

McGrath and William D. Mason had absolute immunity on appellants’ 

claims. 

 II. The trial court erred in determining defendants James Gutierrez, Mary H. 

McGrath and William D. Mason, were statutorily immune to all of 

appellants’ claims. 

{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s 

decision. The apposite facts follow. 

{¶3} In 2009, the Cuyahoga County Grand Jury indicted Tuleta on numerous 

counts of drug possession and one count of aggravated theft. The indictment and bill of 

particulars provided that the dates of the alleged offenses occurred between the years of 

2003 and 2007. 

{¶4} The trial court denied Tuleta’s motion to dismiss the indictment and the 

matter proceeded to a jury trial. Tuleta was found guilty of all charges. The trial court 

sentenced Tuleta to one year in prison and five years community control sanctions, but 

stayed the sentence pending his direct appeal. 

{¶5} In his direct appeal, Tuleta argued, among other things, that the trial court 

erred in denying his pretrial motions to dismiss and his Crim.R. 29(A) motion for 

judgment of acquittal because a licensed physician prescribed the controlled substances 
he allegedly possessed, and therefore the exception set forth in R.C. 2925.11(B)(4) 

applied. 

{¶6} In State v. Tuleta, 8th Dist. Cuyahoga No. 94992, 2011-Ohio-1923, we 

vacated Tuleta’s convictions because we found that the facts and evidence adduced prior 

to and at trial revealed that Tuleta was prescribed the controlled substances by a licensed 

health professional authorized to prescribe drugs between January 2003 and April 2007. 

As such, the exception set forth in R.C. 2925.11(B)(4) applied; consequently, no criminal 

charge for drug possession existed against Tuleta. 

{¶7} On October 18, 2012, Tuleta filed a complaint against Cuyahoga County, 

Ohio, the Cuyahoga County Prosecutor’s Office (the Prosecutor’s Office”), the former 

Cuyahoga County Prosecutor William D. Mason (“Mason”), Assistant Cuyahoga County 

Prosecutors James Gutierrez (“Gutierrez”), Mary H. McGrath (“McGrath”), the city of 

Cleveland (“the City”), and the Chief of Police, Michael McGrath (“the Police Chief”). 

Also named in the complaint was Medical Mutual of Ohio and its investigator, Bruce 

Sieniawski (“Sieniawski”). 

{¶8} Tuleta alleged several causes of action including malicious prosecution, 

abuse of process, and breach of confidentiality, and/or inducing breach of confidentiality. 

 Tuleta also alleged causes of action for intentional infliction of emotional distress, 

negligent infliction of emotional distress, and loss of consortium. On December 28, 

2012, claiming absolute and statutory immunity, Cuyahoga County, the Cuyahoga County 

Prosecutor’s Office, Mason, Gutierrez, and McGrath filed their motion to dismiss. On 
December 31, 2012, also claiming absolute and statutory immunity, the City and the 

Police Chief filed their motion to dismiss. 

{¶9} On May 29, 2013, the trial court granted the motions of Cuyahoga County, 

the Prosecutor’s Office, Mason, Gutierrez, and McGrath on the grounds that they were all 

entitled to absolute immunity. The trial court also granted the City’s motion on the 

grounds that they were entitled to statutory immunity. 

{¶10} The trial court denied the Police Chief’s motion on the grounds that even 

though a political subdivision is immune from liability, that municipality’s employee 

could still be individually liable for an intentional tort when malice or wanton or reckless 

behavior is alleged. The trial court reasoned that the Police Chief could be liable for at 

least one count. 

{¶11} In Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 100050, 

2014-Ohio-396, we reversed the trial court’s decision denying the Police Chief’s motion 

to dismiss. We concluded Tuleta did not allege sufficient facts to state a claim of 

malicious prosecution, to bypass immunity, under R.C. 2744.03(A)(6), or to rebut the 

presumption that the indictment against him was issued with probable cause. 

Motion to Dismiss

{¶12} In the first assigned error, Tuleta argues the trial court erred in ruling that 

Gutierrez, McGrath, and Mason were clothed with absolute immunity on all of his claims. 
{¶13} We review an order dismissing a complaint for failure to state a claim for 

relief de novo. Tate v. Garfield Hts., 8th Dist. Cuyahoga No. 99099, 2013-Ohio-2204, 

citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44. 

A motion to dismiss for failure to state a claim on which relief can be granted is 

procedural and tests the sufficiency of the complaint. Cleveland v. JP Morgan Chase 

Bank, N.A., 8th Dist. Cuyahoga No. 98656, 2013-Ohio-1035, citing State ex rel. Hanson 

v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d 378. 

{¶14} It is well settled that when a party files a motion to dismiss for failure to 

state a claim, all factual allegations of the complaint must be taken as true and all 

reasonable inferences must be drawn in favor of the nonmoving party. FCR Project, 

L.L.C. v. Canepa Media Solutions, Inc., 8th Dist. Cuyahoga No. 97845, 2013-Ohio-259, 

citing Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991). 

{¶15} But “unsupported conclusions of a complaint are not considered admitted * 

* * and are not sufficient to withstand a motion to dismiss.” U.S. Bank Natl. Assn. v. 

Perry, 8th Dist. Cuyahoga No. 99608, 2013-Ohio-3814, citing State ex rel. Hickman v. 

Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). For a defendant to prevail on the 

motion, it must appear from the face of the complaint that the plaintiff can prove no set of 

facts that would justify a court in granting relief. Id., citing O’Brien v. Univ. Comm. 

Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). 

{¶16} Preliminarily, we note that although the trial court dismissed the complaint 

against appellees Cuyahoga County, the Prosecutor’s Office, and the City, Tuleta did not 
assign any errors relative to these parties. As such, we conclude Tuleta has abandoned 

any arguments relative to the aforementioned appellees. See Wells Fargo Bank, N.A. v. 

Jarvis, 7th Dist. Columbiana No. 08 CO 30, 2009-Ohio-3055; Loukinas v. Roto-Rooter 

Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272 (1st Dist.); 

Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 240-241, 2000-Ohio-2593, 743 

N.E.2d 484 (7th Dist.). 

Absolute Immunity

{¶17} The absolute immunity defense has been recognized for only a few 

executive officials “whose special functions or constitutional status requires complete 

protection from suit.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 

L.Ed.2d 396 (1982). In such cases, there are other checks to prevent abuses of authority 

or provide redress. Mitchell v. Forsyth, 472 U.S. 511, 522, 105 S.Ct. 2806, 86 L.Ed.2d 

411 (1985). 

{¶18} Absolute immunity has also been recognized as a defense for judges and 

other participants in the judicial process who have taken action necessary to the judicial 

process, even if the actions are done maliciously or in excess of the person’s judicial 

authority, because the nature of the function involves controversy and the judicial officer 

must be able to act without having to consider the negative reaction of an opposing party. 

 Id. at 522-525, and Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 

128 (1976). 
{¶19} The absolute immunity afforded to judges has also been extended to 

administrative judicial officers. Butz v. Economou, 438 U.S. 478, 512-515, 98 S.Ct. 2894, 

57 L.Ed.2d 895 (1978). Courts have extended absolute immunity to prosecutors, as 

quasi-judicial officers, for claims arising out of their initiation of a prosecution and 

advocating the state’s case. Imbler at 431 and Van de Kamp v. Goldstein, 555 U.S. 335, 

342, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). Absolute immunity does not extend, 

however, to a prosecutor engaged in essentially investigative or administrative functions. 

{¶20} Consequently, we look at the prosecutor’s function and not his or her 

identity. See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). 

The Imbler-Forrester test made it clear that when the prosecutor is acting as an advocate, 

he is immune from any liability. For example, presenting evidence to a grand jury is 

advocacy. 

{¶21} Prosecutors are entitled to absolute immunity from liability for damages for 

the prosecutor’s appearance as a lawyer for the state in probable cause hearings in which 

he examines witnesses and successfully supports applications for search warrants. See

Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In addition, 

where relevant laws arguably provides a basis for a prosecutor’s claims against an 

accused, regardless of the prosecutor’s motives, absolute prosecutorial immunity shields 

the attorneys from liability for damages. See Shmueli v. New York, 424 F.3d 231 (2d Cir. 

N.Y. 2005). 
{¶22} While, in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 

L.Ed.2d 209 (1993), where a petitioner sought damages after prosecutors allegedly 

fabricated evidence and made false statements at a press conference, the Supreme Court 

held that the prosecutors were only entitled to qualified immunity. The Court found that 

the alleged fabrication of evidence occurred before a special grand jury was empaneled 

and petitioner was arrested. The Court also found that one prosecutor was not acting in 

his role as an advocate for the state when he allegedly made false statements to the media 

during a press conference. Thus, the Court held that the prosecutor was not entitled to 

absolute immunity. 

{¶23} Further, in Kalina v. Fletcher 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 

(1997), the United States Supreme Court held that (1) a prosecutor’s conduct in making 

allegedly false statements of fact in a certification for determination of probable cause is 

not protected by the doctrine of absolute prosecutorial immunity, as the prosecutor, in 

making such a certification, performs a function of a complaining witness rather than an 

advocate; and (2) thus, 42 U.S.C. 1983 may, under some circumstances, provide a 

damages remedy against such a prosecutor. 

{¶24} Turning now to Tuleta’s complaint, he must aver that the prosecutors acted 

beyond advocacy and allege facts that establish the functionality test in order to override 

the prosecutor’s absolute immunity defense. After viewing Tuleta’s complaint, we 

conclude that it is devoid of any facts that establish that the prosecutors Mason, Gutierrez, 

and McGrath acted beyond advocacy or acted as investigators. Tuleta’s claims arose 
from the prosecutor’s initiating the underlying case and advocating the state’s position. 

Nowhere in the pleadings does Tuleta allege that the prosecutors engaged in any 

investigative activities over and above that required to professionally evaluate the 

evidence assembled by the police, and appropriately prepare for the presentation of that 

evidence at trial or before the grand jury following their decision to seek an indictment. 

{¶25} That being said, it is also well-settled that the duties of the prosecutor in his 

or her role as advocate for the state involve actions preliminary to the initiation of a 

prosecution and actions apart from the courtroom. Imbler. Thus, absolute immunity 

extends to the preparation necessary to present a case, and part of that decision involves 

an evaluation of the evidence present in each case. Brand v. Geissbuhler, 8th Dist. 

Cuyahoga No. 70565, 1997 Ohio App. LEXIS 709 (Feb. 27, 1997). 

{¶26} Applying all of the foregoing, we conclude that prosecutors Mason, 

Gutierezz, and McGrath are all entitled to absolute immunity in this matter because the 

claims arose from their protected rules as prosecutors. Accordingly, we overrule the first 

assigned error. 

Statutory Immunity

{¶27} In the second assigned error, Tuleta argues the trial court erred when it 

determined that prosecutors Mason, Gutierrez, and McGrath were entitled to statutory 

immunity. 

{¶28} Pursuant to R.C. 2744.03(A)(7), 

The political subdivision, and an employee who is a county prosecuting 

attorney, city director of law, village solicitor, or similar chief legal officer 
of a political subdivision, an assistant of any such person, or a judge of a 

court of this state is entitled to any defense or immunity available at 

common law or established by the Revised Code. 

{¶29} As discussed in the first assigned error, it is well-settled common law that 

prosecutors enjoy absolute immunity from suit for acts committed in their roles as judicial 

officers. Thus, R.C. 2744.03(A)(7) preserves the absolute immunity available to 

prosecutors at common law. See Jopek v. Cleveland, 8th Dist. Cuyahoga No. 93793, 

2010-Ohio-2356. As such, the trial court did not err when it dismissed Tuleta’s 

complaint based also on statutory immunity. Accordingly, we overrule the second 

assigned error. 

{¶30} Judgment affirmed. 

It is ordered that appellees recover from appellants their costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

MARY J. BOYLE, A. J., and 

EILEEN A. GALLAGHER, J., CONCUR