Davis v. Sears Dept Store Midway Mall et al
Filing
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Opinion and Order signed by Judge James S. Gwin on 8/28/13 setting forth the grounds for dismissal of the complaint pursuant to 28 USC Section 1915(e). (Related Doc. 1 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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ROBERT T. DAVIS,
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Plaintiff,
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vs.
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SEARS DEPT. STORE, et al.,
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Defendants.
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CASE NO. 1:13-CV-00821
OPINION & ORDER
[Resolving Doc. No. 1]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se Plaintiff Robert T. Davis filed this action under 42 U.S.C. § 1983 against Sears
Department Store in Elyria, Ohio, Elyria Municipal Court Judge Lisa Lockgraves, Lorain County
Common Pleas Court Judge Edward Zeleski, Lorain County Assistant Prosecutor Pierre
Christopher, Lorain County Assistant Prosecutor Jennifer Riedthenur, Lorain County Court Clerk
Eric Rothgeary, Elyria Police Officer Brandon Pool, Elyria Police Officer Daniel Sumpter, and
Attorney Robert A. Gaffney. In the Complaint, Plaintiff makes a Fourth Amendment claim for
malicious prosecution after criminal charges were brought against him for identity fraud and
forgery and after those charges were dismissed on speedy trial grounds.
Davis now seeks monetary damages against the store that summoned police, the officers
who arrested him, the prosecutors who initiated and litigated the case against him, the Judges
who presided over the case, the court clerk who supplied copies of documents, and his appointed
counsel. Plaintiff also claims he was denied proper medical care during his pretrial detention in
the Lorain County Jail, and seeks monetary damages against these same Defendants. For the
reasons set forth below, Plaintiff fails to state a claim upon which relief may be granted, and the
action is dismissed pursuant to 28 U.S.C. § 1915(e).
I. Background
On August 5, 2011, Sears Department Store security personnel detained Plaintiff after he
allegedly completed a store credit card application in the name of James Cogan using a “a
fictional driver[’s] license.” (Doc. No. 1 at 5). The license contained Plaintiff’s photograph, but
listed Cogan’s personal information, and a license number registered to a third party. After
responding to Sears’ call, Officers Pool and Sumpter arrested Plaintiff. (Doc. No. 1 at 5).
Plaintiff appeared before Elyria Municipal Court Judge Lisa Lockgraves on charges of
forgery, taking the identity of another, obstruction of official business and theft. He was unable
to post bond and remained in custody. Defendant Robert Gaffney represented him. Several days
later, Judge Lockgraves conducted a preliminary hearing, determined there was probable cause
for the charges, and bound the case over to the Lorain County Court of Common Pleas. Judge
Edward Zeleski was assigned to preside over the case.
On October 6, 2011, the Lorain County Grand Jury indicted Davis on felony charges of
identity fraud and forgery. He was visited in jail by Gaffney after his arraignment and was asked
to sign a number of documents, including a waiver of his right to speedy trial. Although Plaintiff
refused to sign the speedy trial waiver, Gaffney placed his own signature on the form as
Plaintiff’s counsel, and left Plaintiff’s signature block blank. The form was then submitted to the
court. Gaffney later withdrew from the case and Judge Zeleski appointed Kenneth Ortner to
represent Plaintiff.
Six months after his indictment, Plaintiff filed a pro se motion seeking dismissal of the
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case based on violation of his statutory speedy trial rights. At the hearing on Plaintiff’s motion,
Prosecutor Jennifer Riedthenur produced the waiver form and discovered Plaintiff had not signed
it. Judge Zeleski denied the pro se motion on the ground that Plaintiff was represented by
counsel; however, Ortner immediately filed a similar motion seeking dismissal of the case.
Plaintiff alleges Riedthenur realized the deficiency in her case and offered him a series of plea
bargains to obtain a conviction on a reduced charge. Plaintiff, however, refused the offers stating
Riedthenur should dismiss the charges. The second speedy trial motion was heard on June 4,
2012. The attorneys and the judge spoke outside of Plaintiff’s presence, and when Ortner
returned, he informed Plaintiff that the case was dismissed.
Plaintiff alleges that his arrest and prosecutiondestroyed his marriage, his house was
foreclosed, and all of his personal items were missing. He makes claims for malicious
prosecution and for violations of other “clearly established state and federal rights.” (Doc. No. 1
at 6).
In addition, Plaintiff alleges he did not receive proper medical care while in pretrial
detention at the Lorain County Jail. He says he suffered from anxiety attacks for which he did
not receive medication. He also claims he had pre-existing work-related injuries to his neck and
back and was not provided with an extra mattress to minimize his discomfort. Plaintiff claims
the Defendants were deliberately indifferent to his serious medical needs in violation of his
“clearly established state and federal rights.” (Doc. No. 1 at 26). The Court liberally construes
this claim as arising under the Fourteenth Amendment.
II. Legal Standard
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
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365 (1982) (per curiam), 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. 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. Plaintiff is not required to
include detailed factual allegations, but must provide more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. 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
Cir.1998).
III. Analysis
A. Parties
As an initial matter, six of the Defendants are not subject to suit in this 42 U.S.C. § 1983
action. Judges Lockgraves and Zeleski, and prosecutors Christopher and Riedthenur are entitled
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to absolute immunity in this case because the claims against them are based solely on their
participation in Plaintiff’s criminal case. Sears Department Store and Gaffney are private parties,
and not subject to suit under § 1983, which provides a cause of action against state officials and
employees for constitutional violations. The claims against these Defendants are dismissed as a
matter of law.
1. Judicial Immunity
First, judicial officers, such as Judge Lockgraves and Judge Zeleski, are absolutely
immune from damages for claims arising from actions they performed while presiding over a
case. Mireles v. Waco, 502 U.S. 9, 9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir.
1997). Judges are accorded this broad protection to ensure that the independent and impartial
exercise of their judgment is not impaired by the exposure to damages by dissatisfied litigants.
Barnes, 105 F.3d at 1115. For this reason, absolute immunity is overcome only in two situations:
(1) when the conduct alleged is performed at a time when the defendant is not acting as a judge;
or (2) when the conduct alleged, although judicial in nature, is taken in complete absence of all
subject matter jurisdiction of the court over which he or she presides. Mireles, 502 U.S. at 1112; Barnes, 105 F.3d at 1116. Stump, 435 U.S. at 356-57. A judge will be not deprived of
immunity even if the action he or she took was performed in error, done maliciously, or was in
excess of his or her authority.
None of the exceptions to immunity apply in this case. Plaintiff alleges Judge
Lockgraves presided over his initial arraignment and his preliminary hearing. She determined
there was probable cause to support the charges. He alleges Judge Zeleski presided over his case
in the Common Pleas Court, and ruled on his motions to dismiss. The claims against these judges
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are based on conduct performed when they were acting as judicial officers assigned to Plaintiff’s
criminal case. Criminal cases are within the subject matter of their respective courts and they
had jurisdiction when they made the decisions that Davis complains about.. Because Plaintiff
has not demonstrated an exception to immunity, Judge Lockgraves and Judge Zeleski are
absolutely immune from damages in this action and the claims against them are dismissed.
2. Prosecutorial Immunity
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
judgment when 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. 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
carrying out the duties of a prosecutor. Imbler, 424 U.S. at 431; Higgason v. Stephens, 288 F.3d
868, 877 (6th Cir.2002).
In this case, Pierre Christopher and Jennifer Riedthenur were the prosecutors assigned to
Plaintiff’s criminal case. Plaintiff does not include specific allegations concerning Christopher’s
conduct. He alleges Riedthenur realized his speedy trial rights had been violated and offered him
plea deals instead of dismissing the charges against him. The only allegations against these
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Defendants concern decisions they made and actions they performed as advocates for the state.
Consequently, they also are entitled to absolute immunity.
3. Private Parties
Sears Department Store and Gaffney are not proper parties to an action under 42 U.S.C. §
1983. To establish a prima facie case under § 1983, Plaintiff must assert that a person acting
under color of state law deprived him of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
Generally to be considered to have acted “under color of state law,” the Defendant must be a
government entity or a state or local government official or employee. Sears and Gaffney are
private parties, not government entities or employees. A plaintiff cannot assert a claim under
§1983 against a private party based on private conduct “no matter how discriminatory or
wrongful” the party’s conduct may have been. Tahfs v. Proctor, 316 F.3d 584 (6th Cir. 2003).
When a defendant is a private individual or corporate entity, such as Gaffney and Sears
Department Store, the Sixth Circuit recognizes four tests for determining whether their conduct is
fairly attributable to the state to hold them liable under § 1983. First, there is the public function
test, which requires the Plaintiff to demonstrate “that the private entity exercise[d] powers which
are traditionally exclusively reserved to the state.” See Wolotsky v. Huhn, 960 F.2d 1331, 1335
(6th Cir. 1992). Second, the state compulsion test requires Plaintiff to show the state significantly
encouraged or somehow coerced the private party, either overtly or covertly, to take a particular
action so that the choice is really that of the state. Id. The third test, the nexus test, requires proof
of a sufficiently close relationship between the state and the private actor so that the action taken
may be attributed to the state. Id. Finally, the entwinement test requires Plaintiff to show that the
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private entity was “entwined with governmental policies” or the government was “entwined in
[the private entity’s] management or control.” See also Brentwood Acad. v. Tenn. Secondary Sch.
Ath. Ass’n, 531 U.S. 288, 296 (2001).
None of the tests are met in this case. Sears telephoned police to report a possible crime
and detained Plaintiff in one of their offices until the police arrived. Those allegations do not
describe a power traditionally reserved to the state, and Plaintiff has not alleged Sears was
coerced by, had a close nexus to, or was otherwise entwined with the state. There is no
indication in the Complaint that Sears could be considered a “state actor” to sustain a claim under
§ 1983.
Moreover, private attorneys such as Gaffney are not considered to be “state actors” for
purposes of § 1983 simply because they practice law in state courts. See Otworth v.
Vanderploeg, 2003 WL 1465399 at * 2 (6th Cir. March 19, 2003) (stating that “[a] lawyer
representing a client is not, by virtue of being an officer of the court, a state actor under the color
of state law within the meaning of § 1983"). Plaintiff’s allegations against Gaffney center
entirely on his conduct as Plaintiff’s attorney. This conduct would not qualify him as a “state
actor” in a § 1983 action.
B. Malicious Prosecution
The Court now turns its attention to the claims Plaintiff asserts against the remaining
Defendants, Officers Pool and Sumpter, and Court Clerk Rothgeary. Plaintiff first asserts these
Defendants engaged in malicious prosecution under the Fourth Amendment, “which
“encompasses wrongful investigation, prosecution, conviction, and incarceration.” Sykes v.
Anderson, 625 F.3d 294, 308-310 (6th Cir. 2010). To state a claim for malicious prosecution
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under the Fourth Amendment, a plaintiff must establish: (1) a criminal prosecution was initiated
against him and that the Defendants “ma[d]e, influence [d], or participate[d] in the decision to
prosecute;” (2) a lack of probable cause for the criminal prosecution; (3) “as a consequence of a
legal proceeding,” he suffered a “deprivation of liberty,” as understood in our Fourth Amendment
jurisprudence, apart from the initial seizure; and (4) the criminal proceedings were resolved in his
favor. Id.
Plaintiff’s claim against Pool, Sumpter, and Rothgeary fails to satisfy all of these criteria.
First, there is no indication that these Defendants made or participated in making the decision to
prosecute Plaintiff. The Officers responded to the call from Sears and took Plaintiff into custody.
Plaintiff does not allege that they had any involvement in the decision to bring charges or seek an
indictment. With respect to Rothgeary, Plaintiff alleges he received a copy of a police report
printed with Rothgeary’s user name. Plaintiff does not allege Rothgeary had any role in the
decision to proceed with the prosecution.
Moreover, Plaintiff fails to establish the second element for a malicious prosecution claim
because probable cause was established for Plaintiff’s prosecution. Judge Lockgraves found
probable cause to exist at the preliminary hearing and the grand jury found probable cause and
returned the indictment against Plaintiff. Plaintiff has not alleged facts to suggest the finding of
probable cause was problematic. In fact, Plaintiff admits in this Complaint to possessing the
“fictitious driver’s licence.” Absent the suggestion that probable cause was lacking for
Plaintiff’s criminal prosecution, he fails to state a claim under the Fourth Amendment for
malicious prosecution.
C. Deliberate Indifference to Medical Needs
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Plaintiff next asserts a claim under the Fourteenth Amendment for denial of proper
medical care while at the Lorain County Jail. The Eighth Amendment prohibition on cruel and
unusual punishment protects convicted prisoners from the “unnecessary and wanton infliction of
pain.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Pretrial detainees are also protected from
cruel and usual treatment at the hands of jail personnel; however, the Due Process Clause of the
Fourteenth Amendment provides a cause of action rather than the Eighth Amendment. City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). Nevertheless, the Fourteenth
Amendment claims of pretrial detainees are analyzed under the same rubric as Eighth
Amendment claims brought by prisoners. See Roberts v. City of Troy, 773 F.2d 720, 723 (6th
Cir. 1985) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)).
Eighth Amendment claims have an objective and subjective component. Wilson v. Seiter,
501 U.S. 294, 298 (1991). The objective component first demands a showing that the detainee
faced a substantial risk of serious harm that violated contemporary standards of decency. Hudson
v. McMillian, 503 U.S. 1,8 (1992). Routine discomforts of prison or jail life do not suffice. Id.
The subjective component requires the Plaintiff to show the Defendant personally knew of and
disregarded the substantial risk of serious harm facing the detainee. Id. “The official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In this case, Plaintiff has not satisfied the subjective component of his claim. None of the
Defendants named in this Complaint appear to have been involved in the medical decisions made
at the Lorain County Jail. Plaintiff does not allege the Defendants participated in the decisions to
deny medication or refused his request for an additional mattress. Absent the allegation that
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these remaining Defendants knew of Plaintiff’s medical problems and personally made decisions
that denied him medical care, they cannot be held liable for these actions under the Fourteenth
Amendment.
D. General Assertions of Violation of Federal Rights
Finally, Plaintiff generally asserts that the Defendants violated his “clearly established
state and federal rights.” He does not give any indication of the specific rights he believes they
violated other than those already discussed under the Fourth and Fourteenth Amendments. These
general assertions of unidentified federal rights fail to state a claim which satisfies the minimal
notice pleading requirements of Federal Civil Rule 8.
Although the standard of review is liberal for pro se pleadings, it requires more than bare
assertions of legal conclusions. See Iqbal, 556 U.S. at 678. The Plaintiff must give the
Defendants fair notice of what his claim is and the grounds upon which it rests. Bassett v.
National Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). The Court cannot
construct possible but potentially not asserted claims for any party, including a pro se plaintiff,
and then proceed to test whether the asserted facts fit that claim or claims. Id. The Court’s role
is to adjudicate disputes, not assist in asserting them. Plaintiff’s generic citations to federal rights
violations do not provide sufficient notice of the claims he is seeking to assert. To the extent
those claims are distinct from his claims for malicious prosecution and deliberate indifference to
medical needs, he fails to state a claim upon which relief can be granted.
IV. Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). The Court
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certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken
in good faith.1
IT IS SO ORDERED.
Dated: August 28, 2013
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s/
James S. Gwin
JAMES S. GWIN
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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