Mark Huffer v. Mark Bogen, et al

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Jeffrey S. Sutton, Circuit Judge; Richard Allen Griffin, Authoring Circuit Judge and Lesley Brooks Wells, U.S. District Judge., NDO

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1128n.06
No. 11-4289
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MARK E. HUFFER,
Plaintiff-Appellant,
v.
MARK BOGEN, Judge, Lebanon Municipal Court;
MICHAEL McCUTCHAN, Patrolman for the City of
Lebanon; JAMES BURNS, Patrolman for the City of
Lebanon; MATTHEW J. GRABER, Prosecutor,
Lebanon Municipal Court; ANDREA HICKS,
Prosecutor, Lebanon Municipal Court; BRENDA K.
MORGAN, Clerk, Lebanon Municipal Court;
VIVIAN T. HUFFER; CITY OF LEBANON; MEL
PLANAS, Warren County Prosecutor; KRISTY
WHALEY, Probation Officer, Lebanon Municipal
Court; DANIELLE RENEE BISHOP; COUNTY OF
WARREN; KRISTY SOMMERS, Probation Officer,
Warren County Adult Probation,
Defendants-Appellees.

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FILED
Nov 01, 2012
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO

BEFORE: SUTTON and GRIFFIN, Circuit Judges; and WELLS, District Judge.*
GRIFFIN, Circuit Judge.
Plaintiff Mark E. Huffer filed a complaint in the district court against the municipal court
judge who presided over his underlying domestic violence case and various city and county officials

*

The Honorable Lesley Wells, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.

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involved in his arrest and prosecution. The complaint alleged numerous civil rights violations,
including malicious prosecution, judicial misconduct, and unlawful detention. The municipal court
judge filed a motion to dismiss, which the district court granted. Thereafter, the county officials filed
a motion to dismiss, and the city officials filed a motion for judgment on the pleadings or, in the
alternative, to dismiss. In a single order, the district court granted the motions. Huffer appeals the
district court’s judgment. We affirm.
I.
As alleged in the complaint, Huffer was arrested for domestic violence in 2007. At the time
of his arrest, he was on diversion from a previous domestic violence case. Through the assistance
of counsel, Huffer pleaded guilty to the 2007 charge. The relevant docket entry indicates that Huffer
was held without bond. Huffer alleges that he remained incarcerated for a “period of time” before
being released. After his release, he was arrested again, this time for violating a temporary
protection order. He remained incarcerated until his counsel filed a motion to set aside or reduce his
bond. By then, his diverted domestic violence case had been reactivated, and he pleaded guilty to
two criminal charges of domestic violence. The remaining criminal charges were dismissed.
According to Huffer, defense counsel told him that the prosecutor would oppose any bond
reduction, and he would remain incarcerated for ninety days awaiting trial if he did not plead guilty.
Huffer alleges that he was not adequately informed that a domestic violence conviction could
enhance the penalty for any subsequent domestic violence conviction. In addition, Huffer owns and
operates a business with fifteen employees, and, during his incarceration, his children had to stay

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with their mother, Huffer’s ex-wife, even though Huffer had custody of them. Further, Huffer’s
father had suffered a stroke, and his mother had suffered what Huffer believed was a nervous
breakdown. Huffer claims that he pleaded guilty in order to regain his freedom, restore and maintain
his business, regain custody of his children (who he believed were living in dangerous
circumstances), and assist his ailing parents.
In 2008, after a judgment of conviction had been entered, Huffer moved the municipal court
to withdraw his pleas and vacate his convictions. The municipal court, Judge Mark Bogen presiding,
found that Huffer’s pleas were made voluntarily and knowingly. In what Huffer characterizes as
misleading statements, Judge Bogen said that he had “reviewed the transcript” of the plea
proceedings and “all rights were read to [Huffer].” Accordingly, Judge Bogen denied the motion.
In 2009, the state appellate court reversed Judge Bogen’s judgment and remanded the case
for further proceedings because it could not discern whether a proper colloquy under Rule 11 had
taken place in the plea proceedings. Huffer alleges that the prosecutor falsely assured him that his
charges would be dismissed following this reversal.
In 2010, Huffer filed a nine-count complaint1 in the district court against Judge Bogen,
Warren County, the City of Lebanon, city patrolmen Michael McCutchan and James Burns, city
prosecutors Matthew Graber and Andrea Hicks, municipal court clerk Brenda Morgan, county
prosecutor Mel Planas, probation officers Kristy Whaley and Kristy Sommers, and the individuals

1

Confusingly, Huffer’s Sixth, Seventh, and Eighth Counts are all labeled “Count Six,” and
his Ninth Count is labeled “Count Seven.”
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who reported the alleged domestic violence, Huffer’s ex-wife, Vivian Huffer, and her sister, Danielle
Bishop. The complaint alleged numerous state and federal civil rights violations, including
malicious prosecution, judicial misconduct, and unlawful detention. See, e.g., 42 U.S.C. § 1983.
Judge Bogen moved to dismiss the complaint. (R.16 at 1; Pg ID at 65.) The district court
granted Judge Bogen’s motion based on judicial immunity, failure to state a claim, and lack of a case
or controversy.
Thereafter, the county defendants filed a motion to dismiss, and the city defendants filed a
motion for judgment on the pleadings or, in the alternative, to dismiss. In a single order, the district
court granted the motions based on prosecutorial immunity, quasi-judicial immunity, qualified
immunity, failure to state a claim, and the running of the applicable statutes of limitations.
II.
We review a district court’s grant of a Rule 12(c) motion for judgment on the pleadings under
the same de novo standard used to review dismissals under Rule 12(b)(6). Albrecht v. Treon, 617
F.3d 890, 893 (6th Cir. 2010). We construe the complaint in the light most favorable to the plaintiff,
accepting his well-pleaded factual allegations as true. Terry v. Tyson Farms, Inc., 604 F.3d 272, 274
(6th Cir. 2010).
III.
Huffer first argues that the district court erred when it granted Judge Bogen’s motion to
dismiss. Judges are absolutely immune from § 1983 suits arising out of their performance of judicial
functions. Pierson v. Ray, 386 U.S. 547, 553–54 (1967). As the United States Supreme Court has

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observed, “[a judge’s] errors may be corrected on appeal, but he should not have to fear that
unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such
a burden on judges would contribute not to principled and fearless decision-making but to
intimidation.” Id. at 554. As such, judicial immunity applies even to judicial acts performed
maliciously, corruptly, in bad faith, or in error. Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir.
2004). Indeed, there are only two exceptions to judicial immunity: a judge is not immune from suits
for acts that are (1) not judicial in nature or (2) performed without jurisdiction. Id.
Huffer claims that judicial immunity does not apply because Judge Bogen acted outside his
judicial capacity when he incarcerated Huffer without bond and denied his motion to withdraw his
guilty pleas, stating that he had “reviewed the transcript” and “all rights were read to [Huffer].”
Huffer asserts that Judge Bogen’s actions were “egregious” and without a “conceivable
justification,” and that his statements were “materially misleading.”
Huffer’s assertions, in addition to being conclusory, describe judicial acts. “[T]he factors
determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,
whether it is a function normally performed by a judge, and to the expectations of the parties, i.e.,
whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362
(1978). Here, ordering Huffer incarcerated without bond, denying his motion to withdraw his guilty
pleas, and making statements on the record were undeniably judicial acts, as they are functions
normally performed by a judge. And Huffer, as a criminal defendant in a case over which Judge
Bogen was presiding, dealt with Judge Bogen in his judicial capacity. Even assuming for the

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purpose of argument that Judge Bogen’s actions were egregious, unjustified, or misleading, the acts
were no less judicial. See Brookings, 389 F.3d at 617; see also Stump, 435 U.S. at 356–57 (stating
that “[a] judge will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority”). Accordingly, the first exception to judicial
immunity does not apply.
The second exception is likewise inapplicable, as Judge Bogen had jurisdiction over Huffer’s
domestic violence case. See Ohio Rev. Code §§ 1901.02(B), 1901.20(B). It makes no difference
for purposes of immunity whether Judge Bogen’s actions were unjustified or improper. Ireland v.
Tunis, 113 F.3d 1435, 1441 (6th Cir. 1997). For the exception to apply, a judge must have acted “in
the clear absence of all jurisdiction,” as opposed to merely “in excess of authority.” Id.
In the absence of an applicable exception, Judge Bogen was entitled to absolute judicial
immunity. Accordingly, the district court properly granted Judge Bogen’s motion to dismiss.
IV.
Huffer next argues that the district court erred when it granted the county defendants’ motion
to dismiss and the city defendants’ motion for judgment on the pleadings or, in the alternative, to
dismiss. The district court decided both motions in a single order, basing its judgment on
prosecutorial immunity, quasi-judicial immunity, qualified immunity, failure to state a claim, and
the running of the applicable statutes of limitations.
First, Huffer challenges the district court’s determination that prosecutors Planas, Graber, and
Hicks were entitled to prosecutorial immunity. Prosecutors enjoy absolute immunity from civil

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liability for actions performed within the scope of their prosecutorial duties. Howell v. Sanders, 668
F.3d 344, 349 (6th Cir. 2012). Without this immunity, “the prosecutor’s exercise of independent
judgment would likely be compromised to the detriment of public trust and the effective functioning
of the criminal justice system,” and the threat of liability could “divert[] the prosecutor’s energy from
‘the pressing duty of enforcing the criminal law.’” Ireland, 113 F.3d at 1444 (quoting Imbler v.
Pachtman, 424 U.S. 409, 425 (1976)).
Huffer argues that immunity does not apply because the prosecutors in this case acted outside
their prosecutorial duties when they prosecuted him without probable cause and based on false
information. This argument lacks merit. Prosecutorial immunity extends to claims regarding the
evaluation of evidence and the determination of probable cause. Koubriti v. Convertino, 593 F.3d
459, 467 (6th Cir. 2010). Immunity applies even where the prosecutor acted wrongfully or
maliciously. Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989). Indeed, “immunity
extend[s] to the knowing use of false testimony before the grand jury and at trial.” Burns v. Reed,
500 U.S. 478, 485 (1991). As the district court reasoned, simply stating that the prosecutors acted
outside their traditional prosecutorial duties “does not make it so.” The prosecutors were entitled
to absolute prosecutorial immunity.
Second, Huffer argues that city patrolmen McCutchan and Burns were not entitled to
qualified immunity. This court summarized the doctrine of qualified immunity in Hoover v. Walsh:
[T]he doctrine of qualified immunity shields certain government officials, including
police officers, from civil liability in certain circumstances. To determine whether
qualified immunity applies, we engage in a two-step inquiry, determining “(1)
whether, considering the allegations in a light most favorable to the party injured, a
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constitutional right has been violated, and (2) whether that right was clearly
established.” We may address these prongs in either order; indeed, either one may
be dispositive. Once the defense of qualified immunity has been raised, it is the
plaintiff’s burden to demonstrate that the defendants cannot avail themselves of it.
682 F.3d 481, 492 (6th Cir. 2012) (internal citations and footnotes omitted).
The allegations in Huffer’s complaint are conclusory. He claims that the officers “took
actions” that violated his civil rights and “conspired” to wrongfully imprison him. Even viewing
these bare allegations in the light most favorable to Huffer, they do not show that a constitutional
right was violated. Huffer was first arrested in response to reports of domestic violence while he was
on diversion from another domestic violence case, and he was later arrested for allegedly violating
a temporary protection order. Under the circumstances, the officers reasonably arrested him. To the
extent that Huffer argues that the victims’ allegations of domestic violence were untrue, this does
not make his arrests unconstitutional. See Gardenhire v. Schubert, 205 F.3d 303, 322 (6th Cir. 2000)
(“[A] crime victim’s accusation standing alone can establish probable cause.”). Because the
complaint did not allege facts to support a violation of a constitutional right, the district court
properly determined that the officers were entitled to qualified immunity.
Third, Huffer argues that the district court erred when it determined that court clerk Morgan
and probation officers Sommers and Whaley were entitled to quasi-judicial immunity. As discussed
above, judges are absolutely immune from liability for suits arising out of their performance of
judicial functions. Mireles v. Waco, 502 U.S. 9, 13 (1991) (per curiam). “One who acts as the
judge’s designee, and who carries out a function for which the judge is immune, is likewise
protected.” Johnson v. Turner, 125 F.3d 324, 333 (6th Cir. 1997). Quasi-judicial immunity has been
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held to apply to probation officers and court clerks. See, e.g., Foster v. Walsh, 864 F.2d 416, 417
(6th Cir. 1988) (per curiam) (court clerk); Timson v. Wright, 532 F.2d 552, 553 (6th Cir. 1976) (per
curiam) (chief probation officer).
In this case, the court clerk merely implemented Judge Bogen’s order as instructed. In doing
so, the court clerk was carrying out a judicial act to which absolute immunity attached. See Foster,
864 F.2d at 417 (“[A] clerk who issues a warrant at the direction of a judge is performing a function
to which absolute immunity attaches.”). The fact that the court clerk’s action did not require
discretion or judgment on her part does not change its judicial character. Id. The cases relied on by
Huffer are distinguishable because they involve nonfeasance on the part of the court clerk. See, e.g.,
Mauro v. Cnty. of Kittitas, 613 P.2d 195, 197 (Wash. Ct. App. 1980) (court clerk not entitled to
judicial immunity for failure to recall a warrant). This is not a case of nonfeasance; the court clerk
properly implemented Judge Bogen’s order as instructed.
The probation officers were also entitled to quasi-judicial immunity. “[W]hen a judge seeks
to determine whether a defendant is complying with the terms of probation, the judge is performing
a judicial function. . . . All of the same considerations that would apply to the judge apply to the
probation officer.” Balas v. Leishman-Donaldson, No. 91-4073, 1992 U.S. App. LEXIS 22411,
1992 WL 217735, *5 (6th Cir. Sept. 9, 1992) (per curiam). Here, the probation officers were
performing a judicial function when they determined that Huffer had violated the terms of his
probation. See Loggins v. Franklin Cnty., 218 F. App’x 466, 476 (6th Cir. 2007). In this regard, the
district court did not err.

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Fourth, Huffer argues that his complaint stated claims of conspiracy to violate his civil rights
and malicious prosecution. To survive a motion to dismiss, the complaint must contain sufficient
factual allegations to support a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “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.” Id.
Although factual allegations need not be detailed, “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action” provide insufficient grounds for entitlement to relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In Count Three, Huffer alleged that defendants “conspired” to violate his civil rights. “A
civil conspiracy is an agreement between two or more persons to injure another by unlawful
action. . . . 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). However, “[i]t is well-settled that conspiracy claims must be pled with some degree of
specificity and that vague and conclusory allegations unsupported by material facts will not be
sufficient to state a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).
In this case, Huffer’s claim of conspiracy merely described the actions taken by various
individual defendants, asserting that their actions were taken in furtherance of a conspiracy. Huffer’s
claim is conclusory and fails to include allegations regarding an agreement or shared plan between

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the individual defendants to violate his civil rights. As such, the district court properly concluded
that he failed to state a claim of conspiracy against the individual defendants.
The failure to state a claim against the individual defendants is also fatal to any conspiracy
claim against Warren County and the City of Lebanon. Moreover, the doctrine of respondeat
superior is not available in § 1983 actions. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th
Cir. 1996). The only basis for § 1983 liability against a government entity is that a constitutional
violation resulted from the government’s policy or custom. Caudill v. Hollan, 431 F.3d 900, 914–15
(6th Cir. 2005). As the district court pointed out, Huffer’s complaint failed to identify any policy
or custom that resulted in a constitutional violation.
In Count Seven, Huffer alleged that patrolmen McCutchan and Burns maliciously prosecuted
him in violation of state law. The elements of malicious prosecution in Ohio are: “(1) malice in
instituting (or continuing) the prosecution, (2) lack of probable cause, and (3) termination of the
action in favor of the defendant.” Swiecicki v. Delgado, 463 F.3d 489, 503 (6th Cir. 2006). Huffer’s
claim of malicious prosecution is insufficient because it merely asserts, in a conclusory fashion, that
various defendants initiated the criminal proceedings against him “without probable cause” and
“maliciously.” Moreover, Huffer acknowledges that charges were brought against him based on
victim accusations of domestic violence and violation of a temporary protection order, which alone
suffice to provide probable cause. See Gardenhire, 205 F.3d at 322 (Batchelder, J., concurring in
part and dissenting in part). Finally, Huffer’s criminal case was not “terminated” in his favor by the
state appellate court, but was reversed and remanded for further proceedings.

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In Count Four, Huffer alleged that patrolmen McCutchan and Burns maliciously prosecuted
him in violation of 42 U.S.C. § 1983, specifically, that his prosecution was “initiated with malice”
and “in the absence of probable cause.” For reasons previously stated, Huffer does not allege
sufficient facts to support these bare assertions. The district court did not err when it determined that
Huffer failed to state claims of conspiracy to violate § 1983 and malicious prosecution.
The final issue is whether several of Huffer’s claims were untimely. His state-law claims of
false imprisonment and false arrest were subject to a one-year statute of limitations. Ohio Rev. Code
§ 2305.11(A). His claim of false imprisonment under § 1983 was subject to the statute of limitations
that Ohio provides for personal-injury torts, which is two years. Wallace v. Kato, 549 U.S. 384, 387
(2007); Ohio Rev. Code § 2305.10(A). It is undisputed that Huffer did not file his complaint until
over three years after his arrest. As such, his claims of false arrest and false imprisonment were not
filed within the applicable statutes of limitations. See Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir.
2007) (explaining that “claims for false arrest and false imprisonment . . . generally accrue at the
time of the arrest”). Huffer cites no authority to support his argument that these claims accrued when
the state appellate court vacated his guilty pleas. Thus, the district court properly determined that
his claims of false arrest and false imprisonment were time-barred.
V.
For these reasons, we affirm.

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