Mays v. Clancy et al
Memorandum Opinion and Order dismissing this action pursuant to 28 U.S.C. §1915(e). 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. Judge Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JUDGE MAUREEN CLANCY, et al.,
CASE NO. 1:12 CV 2596
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
Pro se Plaintiff Tracy Mays filed this action under 42 U.S.C. § 1983 against Cuyahoga
County Common Pleas Court Judge Maureen Clancy, the Cuyahoga County Prosecutor’s Office,
the Cuyahoga County Jail, and the Parma Heights Police Department. In the Complaint, Plaintiff
challenges his arrest and conviction on charges stemming from his violation of a protection order.
He seeks monetary damages, reversal of his conviction, and removal of the felony charges from his
Plaintiff claims his rights were first violated by the Parma Heights Police Department. He
states police officers came to his door on February 2, 2012 and entered his dwelling with their
weapons drawn even though his “door was closed.” (ECF No. 1 at 4). He asked to see a copy of
the arrest warrant and the officers told him it was back at the station. He contends he was never
shown a copy of the warrant and was told only that he was being arrested for violating a protection
order. He was transported to the Cuyahoga County Jail on February 3, 2012.
Plaintiff alleges his criminal case was assigned to Judge Clancy. He indicates she advised
him that her job was to ensure that the proceedings were fair and impartial. He claims she then
“allowed [his] rights to be violated and allowed false evidence to be admitted into [his] case.” (ECF
No. 1 at 5). He claims he attempted to dismiss his trial counsel and explained to the judge that he
believed his attorney was ineffective; however, the Judge would not grant his request. He claims
the Judge allowed the prosecutors to enter evidence that was not notarized or sworn in, and
“allowed evidence to be entered against [him] that was not in the full discovery.” (ECF No. 1 at
5). He contends he asked the court to assist him with the preparation of his own legal materials or
to appoint new counsel to represent him, but these requests were also denied.
Plaintiff claims the prosecution suppressed evidence of his innocence. He contends the
victim and a witness came to the courthouse to make a statement to the judge about his innocence
and the prosecutors sent them away. He states that the prosecutor was more interested in obtaining
a conviction than in obtaining the truth.
Finally, Plaintiff alleges he has been denied access to the law library in the Cuyahoga
County jail. He indicates he was unable to access legal research materials, self help materials, state
and federal forms, criminal procedure handbooks, bulk envelopes, bulk mailing, notary services,
copy services, accounting assistance for in forma pauperis applications, or pens. He further claims
the jail lacks inmate clerks to assist with research. He alleges he has been denied access to
grievance forms and is therefore unable to file grievances regarding the conditions of his
confinement or lack of medical care for a hernia.
Plaintiff asserts the Defendants violated his First and Sixth Amendment rights. He also
asserts a claim under the Fourteenth Amendment for denial of Equal Protection.
Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to
dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which
relief can be granted, or if it lacks an arguable basis in law or fact.1 Neitzke v. Williams, 490 U.S.
319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised
on an indisputably meritless legal theory or when the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted
when it lacks “plausibility in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007).
A pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the assumption
that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. The Plaintiff is
An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
Plaintiff and without service of process on the Defendant, if the Court explicitly states that it is
invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the claim for one of the
reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997);
Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054 (1986); Harris
v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177, 1179 (6th Cir.
not required to include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. 662, 677-78 . A pleading that
offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this
pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light
most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th
As an initial matter, the Parma Heights Police Department is not sui juris, meaning it lacks
the power to sue, and cannot be sued absent positive statutory authority. See Papp v. Snyder, 81
F.Supp.2d 852, 857 n. 4 (N.D. Ohio 2000). See also Barrett v. Wallace, 107 F.Supp.2d 949, 954
(S.D.Ohio 2000) (under Ohio law, a county sheriff's office is not a legal entity capable of being
sued); Johari v. City of Columbus Police Dept., 186 F.Supp.2d 821, 825 (S.D.Ohio 2002) (holding
that the police department lacks capacity to be sued because “the Division of Police is an
administrative vehicle by which the city operates and performs its functions.”). Similarly, the
Cuyahoga County Jail is not a legal entity capable of being sued. Rather, as it is a facility owned
and operated by Cuyahoga County. See Harsh v. City of Franklin, No. C-1-07-874, 2009 WL
806653, at *12 (S.D. Ohio Mar. 26, 2009). Claims against the Parma Heights Police Department
are therefore construed against the City of Parma Heights. The claims against the Cuyahoga
County Jail are construed against Cuyahoga County.
As a rule, local governments may not be sued under 42 U.S.C. § 1983 for an injury inflicted
solely by employees or agents under a respondeat superior theory of liability. See Monell v.
Department of Soc. Servs., 436 U.S. 658, 691(1978). “Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.” Id. at 694. A municipality can therefore be held liable when it
unconstitutionally “implements or executes a policy statement, ordinance, regulation, or decision
officially adopted by that body’s officers.” Id. at 690; DePiero v. City of Macedonia, 180 F.3d 770,
786 (6th Cir. 1999).
Plaintiff alleges Parma Heights police officers arrested him for violating a protection order
without producing a warrant for his arrest. He alleges the jail conditions are objectionable, he was
denied medical care for a hernia, and was denied grievance forms. He further asserts the legal
assistance services at the jail are lacking. With the exception of his claim pertaining to the legal
assistance services at the jail, all of the allegations against the City of Parma Heights and Cuyahoga
County are based on the actions and decisions of individual employees of those municipalities.
There are no allegations in the Complaint that reasonably suggest they are the result of a policy of
custom of the municipality.
While Plaintiff’s claim for denial of access to the courts may be appropriately asserted
against Cuyahoga County, he fails to state a claim upon which relief may be granted. To state a
claim for denial of access to the courts, Plaintiff must allege that particular actions of the
Defendants prevented him from pursuing or caused the rejection of a specific non-frivolous direct
appeal, habeas corpus petition, or civil rights action. Lewis v. Casey, 518 U.S. 343, 351 (1996).
The right of access to the courts is directly related to an underlying claim, without which a Plaintiff
cannot have suffered injury by being shut out of court. Christopher v. Harbury, 536 U.S. 403, 415
(2002). Plaintiff must therefore “plead and prove prejudice stemming from the asserted violation.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996). In order words, he must demonstrate “actual
injury” by showing that his underlying claim was non-frivolous, and that it was frustrated or
impeded by the Defendants. Lewis, 518 U.S. at 353. “It follows that the underlying cause of action,
whether anticipated or lost, is an element that must be described in the Complaint....” Christopher,
536 U.S. at 415.
Plaintiff does not allege he suffered an actual injury. He indicates he is not claiming the law
library is subpar but rather is claiming it is non-existent. This allegation, however, is not a
demonstration of an actual injury to a specific non-frivolous direct appeal, habeas corpus petition,
or civil rights action. This is a still a general statement that the law library is defective in a
theoretical sense. To show an actual injury, Plaintiff must plead facts demonstrating that he was
prevented from filing or prevented from litigating a real direct appeal, habeas petition, or civil rights
action by specific actions of the Defendant. There are no allegations of this nature in the
Complaint. Plaintiff therefore has not demonstrated he was denied access to the courts.
Plaintiff’s remaining claims are asserted against Judge Clancy and the Cuyahoga County
Prosecutor’s Office and challenge the criminal proceedings which resulted in his conviction. A
prisoner may not raise claims under 42 U.S.C. § 1983 if a judgment on the merits of those claims
would affect the validity of his conviction or sentence, unless the conviction or sentence has been
set aside. See Edwards v. Balisok, 520 U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S. 477, 486
(1994). The holding in Heck applies whether Plaintiff seeks injunctive, declaratory or monetary
relief. Wilson v. Kinkela, No. 97-4035, 1998 WL 246401 at *1 (6th Cir. May 5, 1998).
Plaintiff asserts Judge Clancy “allowed [his] rights to be violated and allowed false evidence
to be admitted into [his] case.” (ECF No. 1 at 5). He claims she would not permit him to dismiss
his attorney who Plaintiff believed to be ineffective, and allowed the prosecutors to enter evidence
that was not notarized or sworn in, and “allowed evidence to be entered against [him] that was not
in the full discovery.” (ECF No. 1 at 5).
Plaintiff claims the prosecution suppressed evidence of his innocence. He contends the
victim and a witness came to the courthouse to make a statement to the judge about his innocence
and the prosecutors sent them away.
If these claims are found to be true, they would call into question the validity of Plaintiff’s
conviction and sentence. To proceed with them under 42 U.S.C. § 1983, Plaintiff must also allege
his continued confinement was declared invalid by either an Ohio state court or a federal habeas
corpus decision. He does not include these allegations, and there is not suggestion in the Complaint
that his conviction has been called into question or overturned. His remaining claims must
therefore be dismissed
Moreover, even if the claims against Judge Clancy and the Prosecutor’s Office were not
subject to dismissal under Heck, the Defendants would be absolutely immune from damages in this
action. First, Judge Clancy is entitled to absolute judicial immune from damages for any claim
arising from decisions she made in the course of a case before her. Mireles v. Waco, 502 U.S. 9,
9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Judges are given this farreaching protection from lawsuits to ensure that their independent and impartial exercise of
judgment is not impaired by exposure to potential damages. Barnes, 105 F.3d at 1115. For this
reason, absolute judicial immunity is overcome only in two situations: (1) when the conduct alleged
is not performed in the judge’s judicial capacity; or (2) when the conduct alleged, although judicial
in nature, is taken in complete absence of all jurisdiction. Mireles, 502 U.S. at 11-12; Barnes, 105
F.3d at 1116. Plaintiff alleges no facts to show either of these criteria has been met in this case.
The determination of whether an action is performed in a judicial capacity, depends on the
“nature” and “function” of the act, not on the act itself. Mireles, 502 U.S. at 13; Stump v.
Sparkman, 435 U.S. 349, 362 (1978). To determine the “nature” of the act committed by the judge,
the court examines whether it is a function generally performed by a judge. Stump, 435 U.S. at 362.
This inquiry does not involve a rigid scrutiny of the particular act in question, but rather requires
only an overall examination of the judge’s alleged conduct in relation to general tasks normally
performed by judges. Mireles, 502 U.S. at 13. Second, an examination of the “function” of the
act requires the court to assess whether the parties dealt with the judge in his or her judicial capacity
or on a personal basis. Id.
Plaintiff provides very few factual allegations in his Complaint to describe the actions of
Judge Clancy. He claims the Judge allowed the prosecutors to introduce evidence he believed was
false and not notarized or verified. He further contends she would not permit his attorney to
withdraw from his case. Based on these limited allegations, it is evident Judge Clancy was
rendering decisions in the course of the pretrial and trial phases of Plaintiff’s prosecution which are
tasks normally performed by judges. Furthermore, Plaintiff only describes dealings with the Judge
which occurred while she was performing judicial duties. Plaintiff cannot overcome judicial
immunity to assert a claim against Judge Clancy under the first criteria.
Judicial immunity can also be defeated when the conduct alleged, although judicial in
nature, is taken in complete absence of all jurisdiction. Mireles, 502 U.S. at 11-12; Barnes, 105
F.3d at 1116. (emphasis added.) When the immunity of the judge is at issue, the scope of the
judge’s jurisdiction is broadly construed. Stump, 435 U.S. at 356-57. A judge will be not deprived
of immunity if the action he or she took was performed in error, done maliciously, or was in excess
of his or her authority. Id. Actions taken in complete absence of all jurisdiction are those acts
which are clearly outside of the subject matter jurisdiction of the court over which the judge
presides. King v. Love, 766 F.2d 962, 965 (6th Cir. 1985); see Barnes, 105 F.3d at 1122. This
could occur for example if a Domestic Relations Court Judge, without proper appointment hears
a criminal appeal. King, 766 F.2d at 965. Conversely, the judge will not be deprived of immunity
by merely acting in excess of his or her authority. See Sevier v. Turner, 742 F.2d 262, 271 (6th Cir.
Again, the conduct Plaintiff describes in the Complaint was taken within the context of the
pretrial and trial of his criminal case. Common Pleas Court Judges have jurisdiction to hear and
try criminal cases. While Plaintiff may not agree with the rulings made by Judge Clancy, there is
no indication that she was acting outside of the subject matter jurisdiction of her court. Judge
Clancy is absolutely immune from this suit for damages. If Plaintiff believes those decisions were
contrary to Ohio law, his remedy is a direct appeal of his conviction. He cannot sue the Judge for
damages based on he finds objectionable.
Similarly, Prosecutors are also entitled to absolute immunity from damages for initiating
a prosecution and in presenting the state’s case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976);
Pusey v. Youngstown, 11 F.3d 652, 658 (6th Cir. 1993). A prosecutor must exercise his or her best
professional judgment both in deciding which suits to bring and in conducting them in court.
Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006). This duty could not be properly
performed if the prosecutor is constrained in making every decision by the potential consequences
of personal liability in a suit for damages. Id. Lawsuits against prosecutors could be expected with
some frequency, for a defendant often will transform his resentment at being prosecuted into the
attribution of improper and malicious actions to the prosecutor. Imbler, 424 U.S. at 424-25;
Skinner, 463 F.3d at 525. Absolute immunity is therefore extended to prosecuting attorneys when
the actions in question are those of an advocate. Spurlock v. Thompson, 330 F.3d 791, 798 (6th
Cir.2003). Immunity is granted not only for actions directly related to initiating a prosecution and
presenting the State’s case, but also to activities undertaken “in connection with [the] duties in
functioning as a prosecutor.” Imbler, 424 U.S. at 431; Higgason v. Stephens, 288 F.3d 868, 877 (6th
Cir.2002). The immunity also reaches beyond the criminal process to conduct in civil proceedings
where a government attorney is operating in an enforcement role in “initiating ... judicial
proceedings,” Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir.2000), or “undertak[ing] the defense
of a civil suit.” Al-Bari v. Winn, No. 89-5150, 1990 WL 94229, at *1 (6th Cir. July 9, 1990).
In this case, Plaintiff alleges the prosecutors suppressed evidence of his innocence by
turning away the victim and a witness who came to the courthouse to make a statement to the judge
concerning Plaintiff’s. Plaintiff does not elaborate on these statements. Nevertheless, the
prosecutor acting as the advocate of the State can decide which witnesses to call to support his case.
Plaintiff and his attorney could also have presented the testimony of the victim and the witness.
These actions are directly related to presenting the State’s case in Plaintiff’s criminal prosecution.
The prosecutors are entitled to absolute immunity for these actions.
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good
IT IS SO ORDERED.
/s/Dan Aaron Polster 2/4/13
DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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