NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0724n.06
No. 10-4342
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
DAL E G. B ECKER, Plaintiff-Appellant,

v. CL ERMONT COUNTY PROSECUTOR,
Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF OHI O

Be fore : MARTI

N, Circuit J udg e; FO RESTER, Dist rict Judge. *1

BO YC E F. MARTI

N, J R. Dale G. Be cker , a former Ohio prisoner proce eding p ro s e, appea ls a dis tri ct co u rt summary judgme nt g rant. The case was filed for brea ch of contra ct under Ohio law. Upon revie w, the panel unanimously ag ree s that oral argument i s n o t n eede d, Fe d. R. App. P. 34(a), a

nd the ca se ca

n be dec ided under

Rule 34(j)(1)

. Seeking injunctive relief, Be cker sued the Clermont County prosec utor alleg ing that the
prosec ution brea ched his plea ag ree ment when he was require d to reg ister as a sex offe nder pursuant
to Ohio Revised Code § 2950. The County filed a motion for summary judgme nt, to which Be cker responde d.

The Honora

ble Kar l S. For ester, United States District Senior J udg e for the Easter n District * of Ke ntucky , sitti ng by

desig nation. The third member of the panel was disqualified. There fore , pursuant to 28 U.S.C. §46(d), 1 the pane l remains in ag ree ment as to the disposition.No. 10-4342 - 2 - The distric t co u rt gra nted the County ’s motion on alternative bases. First, the court deter mined that the require d damag es of $75,000 wer e neither alleg ed, nor could be established from Be cker ’s complaint and that he thus did not meet the jurisdictional r equire ment for diversity case s under 28 U.S.C. § 1332(a)

. The district court also conclude d that, even assuming d i v er sity jurisdiction e x isted under § 1332, the state’s decision to classify Be cker and require reg istration as

a sex offe nder did not establish a brea ch of contra ct beca use the courts in Ohio are not bound by plea
ag ree ments under state law, citing Montgomery v. Leffler-State of Ohio , 2008-Ohio-6397, 2008 WL 5147935 (Ohio C t. App. Dec. 5, 2008). The c o u rt concluded that the absence of the s ex offe nder require ment from the written pleas was not a neg otiated term that could be enfor ced under a contra ct theory

. On appea l, Be cker repe ats the alleg ations prese nted to the district court. The County arg ues that Be cker ’s brief should be stricken pursuant to Fe dera l Rule of Appellate Procedur e 25(a) (2)( A) and Six th Circuit Rule 26 beca use it was untimely filed. We need not decide whet h er Be cker ’s untimely brief should be stricken from the rec ord beca use it prese nts the same arguments prese nted to the district court, none of which have merit. We revie w an order g ranting summary judgme nt de novo. Schreibe r v. Moe , 596 F.3d 323, 329 (6th Cir. 2010); Turner v. City of Taylor , 412 F.3d 629, 637 (6th Cir. 2005). Summary judgme nt is pro p er wher e “ther e is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter

of law.” Fe d. R. Civ. P. 56(a)

. The movi ng party bear s the initial burden of establishing an absenc e of evidenc e to support the nonmoving party ’s case
. Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986). To establish his contra ct theory , Be cker submitt ed two written pleas of g uilty that he enter ed into with the County in 1991. Gene rally , plea ag ree ments are considere d contra ctual in nature , and
any promises made by

the prosec ution to induce a def endant to plea d g uilty must be fulfilled. See Santobello v. New Y

ork , 404 U.S. 257, 262 (1971); United States v. Robison , 924 F.2d 612, 613 (6th Cir. 1991). To the extent that the writt en p l eas can be rea d as “plea ag ree ments” and “contr acts” betwee n Be cker and the prosec utor, nothing in these documents restric ted the court from imposingNo. 10-4342 - 3 -

a require ment on Be cker that he reg ister as a sex offe nder. Be cker cannot rely on terms and alleg ed promises that the County never made to e stablish a brea ch of a plea ag ree ment, even if the written pleas of g uilty are construed as contra ctual in nature

. See United States v. Barrett , 890 F.2d 855, 864 (6th Cir. 1989), superce ded on other grounds as stated in United States v. W illiams , 940 F.2d 176, 181 n.3 (6th Cir. 1991). I n addition, Be cker failed to establish the require d am o u n t in controve rsy under § 1332. Be cker admitted that he had not reque sted damag es, and that a ca l cu l ati on of his loss would be impossibl e. Although Be cker later reque sted the amount of $376,000,000, this reque st was not made

u n t il he filed objections to the mag istrate judge ’s repor t and rec ommendation, and nee d n o t b e considere d by this court beca use it was not first prese nted to the mag istrate judge for consideration. See M urr v. United States , 200 F.3d 895, 902- 03 n.1 (6th Cir. 2000). Fe dera l courts consider the amount of damag es sp ecif ied in the complaint, and dismiss wher e it appea rs leg ally cer

tain that a plaintiff cannot claim the jurisdictional amount in g ood faith. Mass. Cas. I ns. Co. v

. Harmon , 88 F.3d 415, 416 (6th Cir. 1996). Her e, B ecke r spec ified no dama g es in his complaint, an d in his response to the C ounty ’s m otion for summ ary judgme nt, disavowed any claim for money damag es. Under these circ umstances, the district court corr ectly con cl u d ed that diversity jurisdiction does not ex ist. The district cour

t’s order is affirme d. Rule 34(j)(2) (C), Rules of the Six th Circuit.