Walker v. Russo et al

Filing 5

Memorandum of Opinion and Order signed by Judge James S. Gwin on 6/30/10. For the reasons set forth in this entry this case is dismissed pursuant to 28 USC Sec. 1915A. (Related Doc. 1 ) (M,G)

Walker v. Russo et al

Doc. 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

MICHAEL WALKER Plaintiff, v. JOSEPH D. RUSSO, et al., Defendants.

) CASE NO. 1:10CV0948 ) ) ) JUDGE JAMES S. GWIN ) ) ) MEMORANDUM OF OPINION ) AND ORDER )

Plaintiff pro se Michael Walker brings this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, against Defendants Cuyahoga County, Ohio Common Pleas Court Judge Joseph D. Russo, Cuyahoga County Prosecutor William Mason and Attorney John P. Luskin. Plaintiff is currently under indictment in the Common Pleas Court of Cuyahoga County, Ohio in Case Number CR-09-532236 charged with Domestic Violence, R.C. 2915.25, Vandalism, R.C. 2909.05(B)(1) and Criminal Damaging, R.C. 2909.06(A). He alleges that he has been deprived of his constitutional rights by not afforded a preliminary hearing, and Judge Russo has allowed Prosecutor Mason to prosecute him without his presence during pretrial proceeding. Moreover, his attorney will not respond to his letters. Plaintiff demands that his criminal case be dismissed and monetary damages be awarded. A district court is expressly authorized to dismiss any civil action filed by a prisoner seeking relief from a governmental entity, as soon as possible after docketing, if the court concludes that the complaint fails to state a claim upon which relief may be granted, or if the plaintiff seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; Siller v. Dean, 2000 WL 145167 * 2 (6th Cir. Feb. 1, 2000); see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing

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numerous Supreme Court cases for the proposition that attenuated or unsubstantial claims divest the district court of jurisdiction); In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that federal question jurisdiction is divested by unsubstantial claims). Plaintiff wants this Court to dismiss all charges against him that are pending in the Cuyahoga County Common Pleas Court. A federal court must decline to interfere with pending state proceedings involving important state interests unless extraordinary circumstances are present. See Younger v. Harris, 401 U.S. 37, 44-45 (1971). Abstention is appropriate if: (1) state proceedings are on-going; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal questions. Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). It is mandated whether the state court proceeding is criminal, quasi-criminal, or civil in nature as long as federal court intervention "unduly interferes with the legitimate activities of the State." Younger, 401 U.S. at 4. All three factors supporting abstention are present in this case. The issues presented in the Complaint are clearly the subject of a state court criminal matter, which are of paramount state interest. See Younger, 401 U.S. at 44-45. Furthermore, Plaintiff has the opportunity to raise any defects in his criminal case in the state court. Consequently, this Court is required to abstain from intervening in the state court proceedings. Judge Russo is a Common Pleas Court Judge. It is well established that judges are immune from liability for actions taken within the scope of their official duties. Pierson v. Ray, 386 U.S. 547 (1967). This is true even if a judge acts erroneously, corruptly, or in excess of jurisdiction. Stump v. Sparkman, 435 U.S. 349 (1978). When the function complained of is truly a judicial act, judicial immunity applies. Yarbrough v. Garrett, 579 F.Supp.2d 856, 860 (E.D. Mich., 2008)(citing Bush

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v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994)). There are no facts alleged reasonably suggesting Judge Russo acted outside the scope of his official duties. Judge Russo definitely acted within the scope of his official duties in presiding over Plaintiff's court cases. Prosecutors are absolutely immune from liability under § 1983 for their conduct as long as that conduct is intimately associated with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). "The analytical key to prosecutorial immunity ... is advocacywhether the actions in question are those of an advocate." Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (citations and internal quotation marks omitted). There is no indication in the Complaint that Prosecutor William Mason was acting outside of the scope of his responsibilities. Plaintiff's attorney, John P. Luskin,, is not responsible for the manner in which pretrial proceedings are conducted. The claim that she has not been effective counsel is not a matter for this Court. Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915A. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED.

Dated: June 30, 2010

s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE

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