Ali-El v. McGinty et al

Filing 2

Memorandum of Opinion and Order: Accordingly, this action is dismissed. 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 Patricia A. Gaughan on 5/16/17. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Abdul Hakim Ali-El,
Plaintiff,
v.
Timothy J. McGinty, et al.,
Defendants.

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CASE NO. 1:17 CV 650
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
Pro se Plaintiff Abdul Hakim Ali-El filed this action against former Cuyahoga County
Prosecutor Timothy J. McGinty, current Cuyahoga County Prosecutor Michael C. O’Malley,
and Assistant Cuyahoga County Prosecutors Andrea Isabella, Lindsay Raskin, and Ben McNair.
In the Complaint, Plaintiff challenges the search warrant used by Alcohol, Tobacco and
Firearms (“ATF”) agents to search his property and arrest him. He seeks monetary damages.

BACKGROUND
On September 28, 2016, Plaintiff filed a civil rights action against four ATF agents,
challenging the search warrant they used to search his property and arrest him. See Hakim Ali
El v. Brandon, No. 1:16 CV 2396 (N.D. Ohio filed Sept. 28, 2016)(Gaughan, J.). That action is
still pending. He filed this action on March 28, 2017 against the prosecutors listed above,

utilizing the same Complaint he filed against the ATF agents. In fact, except for the case
captions, the pleadings are identical.
Plaintiff alleges ATF agents executed a search warrant on 1845 Hastings Ave., East
Cleveland, Ohio 44112 on July 14, 2016. During the search, they removed items from the
property, and arrested Plaintiff. He alleges the agents did not have probable cause to support
the warrant, and violated his constitutional rights. The Complaint does not contain allegations
against the prosecutors named as Defendants in this case.
STANDARD OF REVIEW
The Court is required to construe Plaintiff’s pro se Complaint liberally and to hold it to a
less stringent standard than one drafted by an attorney. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Pursuant to Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999) (per curiam), District Courts are permitted to conduct
a limited screening procedure and to dismiss, sua sponte, a fee-paid Complaint filed by a
non-prisoner if it appears that the allegations are “totally implausible, attenuated, unsubstantial,
frivolous, devoid of merit, or no longer open to discussion.” Apple, 183 F.3d at 479 (citing
Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). Dismissal on a sua sponte basis is also
authorized where the asserted claims lack an arguable basis in law, or if the District Court lacks
subject matter jurisdiction over the claim. Id. at 480; see also Neitzke v. Williams, 490 U.S. 319
(1989); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996); Lawler v. Marshall,
898 F.2d 1196 (6th Cir. 1990).

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DISCUSSION
Because Plaintiff did not allege any facts or assert any legal claims against the
individuals named as Defendants in this action, he has not established a basis for federal court
subject matter jurisdiction. Generally, the Constitution and Congress have given federal courts
authority to hear a case only when diversity of citizenship exists between the parties, or when
the case raises a federal question. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The
first type of federal jurisdiction, diversity of citizenship, is applicable to cases of sufficient value
between “citizens of different states.” 28 U.S.C. § 1332(a)(1). To establish diversity of
citizenship, the Plaintiff must establish that he is a citizen of one state and all of the Defendants
are citizens of other states. The citizenship of a natural person equates to his domicile. Von
Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir.1990). The second type of federal jurisdiction
relies on the presence of a federal question. This type of jurisdiction arises where a
“well-pleaded complaint establishes either that federal law creates the cause of action or that the
Plaintiff's right to relief necessarily depends on resolution of a substantial question of federal
law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983).
Neither form of jurisdiction has been established here. Diversity of citizenship does not
exist in this case. Plaintiff lists Ohio addresses for himself and all of the Defendants. Plaintiff
also has not established federal question jurisdiction because he has not asserted a federal cause
of action against any of the Defendants named in this Complaint. Even with the liberal
construction that this Court gives to pro se pleadings, the Court cannot construe a cause of
action against County prosecutors based on allegations of constitutional violations committed
by federal agents in obtaining what appears to be a federal search warrant.
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Moreover, it is unlikely Plaintiff could amend his pleading to state a viable claim against
these Defendants. Because they are all Cuyahoga County prosecutors, it is logical that Plaintiff
may be bringing this action against them for their respective roles in past or current criminal
prosecutions. Prosecutors, however, 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. 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). If Plaintiff named
these Defendants because they are currently prosecuting him or have prosecuted him on
criminal charges in the past, they would be absolutely immune from damages.

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CONCLUSION
Accordingly, this action is dismissed. 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.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/16/17

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