Bedell v. Ohio Department of Jobs and Family Services et al

Filing 16

Memorandum of Opinion. Plaintiffs application to Proceed In Forma Pauperis (ECF No. 2) is granted and this action is dismissed pursuant to 28 U.S.C. §1915(e) for lack of subject matter jurisdiction.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. Judge Donald C. Nugent on 12/7/2017. Related document 1 .(M, S)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK BEDELL,
Plaintiff,
v.
OHIO DEPT. OF
JOBS & FAMILY SERVICES, et al.,
Defendants.

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CASE NO. 1:17 CV 1161
JUDGE DONALD C. NUGENT

MEMORANDUM OF OPINION

Pro se Plaintiff Mark Bedell filed the above-captioned action under 42 U.S.C. §§ 1983, 1985,
1986 and 1988 against the Ohio Department of Jobs and Family Services (“ODJFS”), ODJFS
Director Cynthia D. Dungey, the Portage County Child Support Enforcement Agency (“CSEA”),
Portage County Court of Common Pleas Clerk of Court Jill Faukhauser, Cuyahoga County Court
of Common Pleas Clerk of Court Nailah K. Byrd, Portage County Sheriff David Doak, Cuyahoga
County Sheriff Clifford Pinkney, Cuyahoga County Prosecutor Michael O’Malley, Portage County
Prosecutor Victor Vigluicci, Portage County Common Pleas Court Judge Laurie J. Pittman, and
Cuyahoga County Common Pleas Court Judge Brian J. Corrigan. In the Complaint, Plaintiff
challenges past and present criminal prosecutions for failure to pay child support. He seeks
monetary damages.
Plaintiff also filed an Application to Proceed In Forma Pauperis (ECF No. 2). That
Application is granted.

Factual and Procedural Background
Plaintiff has been prosecuted in both Portage and Cuyahoga Counties for felony non-payment
of child support. Plaintiff owes over $100,000.00 in child support. He was indicted in Portage
County in 2006. See State of Ohio v. Bedell, No. 2006CR00272 (Portage Cty Ct. Comm. Pl. indict
filed June 14, 2006). It appears he was convicted of these charges. He continued to fail to pay
support and has been charged with contempt. Those charges are still pending. He was also indicted
in Cuyahoga County for felony non-payment of child support in 2015. He pled guilty to the charges
in March 2016, and agreed to pay restitution, to pay current child support each month, and serve 5
years probation with six months in prison on his first violation. He failed to abide by the terms of
his probation and Judge Brian Corrigan schedule a community control violation hearing on June 8,
2017. Plaintiff filed this action, naming Judge Corrigan as a Defendant. Judge Corrigan recused
himself and continued the hearing. Judge Gibson was assigned to preside over the case. Plaintiff
unsuccessfully attempted to remove both criminal cases to federal court. Both cases were remanded
to the state courts where they are still pending.
In his Complaint, Plaintiff asserts claims under 42 U.S.C. §§ 1983,1985, 1986 and 1988 for
false arrest, false imprisonment, conspiracy, and malicious prosecution. His pleading is composed
largely of rhetoric generally attacking child support. He does not elaborate on any of these claims.
He seeks compensatory and punitive damages.
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 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

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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. Twombly, 550 U.S. at 555. The 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)
Discussion
To the extent the criminal charges are still pending against him, this Court must abstain from
hearing challenges to the state court proceedings. 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). When a person is the target of an
ongoing state action involving important state matters, he or she cannot interfere with the pending

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state action by maintaining a parallel federal action involving claims that could have been raised in
the state case. Watts v. Burkhart, 854 F.2d 839, 844-48 (6th Cir. 1988). If the state Defendant files
such a case, Younger abstention requires the federal court to defer to the state proceeding. Id; see
also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Based on these principles, 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). Abstention
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 44.
If Plaintiff’s criminal case is still pending, all three factors supporting abstention are present.
State court criminal matters are of paramount state interest. See Younger, 401 U.S. at 44-45. The
third requirement of Younger is that Plaintiff must have an opportunity to assert his federal
challenges in the state court proceeding. The pertinent inquiry is whether the state proceedings
afford an adequate opportunity to raise the federal claims. Moore v. Sims, 442 U.S. 415, 430 (1979).
The burden at this point rests on the Plaintiff to demonstrate that state procedural law bars
presentation of his claims. Pennzoil Co., 481 U.S. at 14. When a Plaintiff has not attempted to
present his federal claims in the state court proceedings, the federal court should assume that state
procedures will afford an adequate remedy, in the absence of “unambiguous authority to the
contrary.” Pennzoil, 481 U.S. at 15. Here, there has been no showing that the claims asserted by
Plaintiff in this federal lawsuit are barred in the state actions. The requirements of Younger are
satisfied and this Court must abstain from interfering in any pending state court criminal actions

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against the Plaintiff.
To the extent Plaintiff is referring to his criminal convictions, he also cannot proceed. In
order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983
Plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. Heck
v. Humphrey, 512 U.S. 477, 486 (1994). A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when
a convicted Plaintiff seeks damages in a § 1983 suit, the Court must consider whether a judgment
in favor of the Plaintiff would necessarily imply the invalidity of his conviction or sentence; if it
would, the Complaint must be dismissed unless the Plaintiff can demonstrate that the conviction or
sentence has already been invalidated. If the Court determines that the Plaintiff’s action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment against the
Plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
In this case, Plaintiff’s claims all pertain to his arrest and prosecution for felony non-payment
of child support. Those claims, if found to have merit, would by their nature call into question his
convictions. Therefore, he would have to demonstrate that those convictions were overturned on
appeal. He has not done so.
In addition, the state agency and official, the Judges, the Prosecutors and the Court Clerk are
immune from suits for damages. Plaintiff names the Ohio Department of Jobs and Family Services
and its Director Cynthia D. Dungey as Defendants. He does not allege any facts pertaining to Ms.

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Dungey, suggesting she is sued in her official capacity. The Eleventh Amendment is an absolute
bar to the imposition of liability upon state agencies, and agency officials sued in their official
capacities. Latham v. Office of Atty. Gen. of State of Ohio, 395 F.3d 261, 270 (6th Cir. 2005);
Bouquett v. Clemmer, 626 F. Supp. 46, 48 (S.D. Ohio 1985).
Judicial officers are generally absolutely immune from civil suits for money damages.
Mireles v. Waco, 502 U.S. 9, 9 (1991); Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997).
They are accorded this broad protection to ensure that the independent and impartial exercise of their
judgment in a case 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 11-12; 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.
Plaintiff contends Judge Pittman and Judge Corrigan presided over his felony non-support cases.
His claims all pertain to decisions they made relevant to his cases. These Defendants are absolutely
immune from damages under 42 U.S.C. §1983.
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

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if the prosecutor is constrained in making every decision by the potential consequences of personal
liability in a suit for damages. Id. These suits could be expected with some frequency, for a
defendant often will transform his resentment at being prosecuted into the ascription of improper
and malicious actions to the state’s advocate. 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). Here, Plaintiff’s
claims against Cuyahoga County Prosecutor Michael O’Malley and Portage County Prosecutor
Victor Vigluicci are based on their role in initiating and supervising Plaintiff’s prosecutions.
Consequently, these Defendants are entitled to absolute immunity.
Court clerks have absolute quasi-judicial immunity from damages for civil rights violations
when they perform tasks that are an integral part of the judicial process. Foster v. Walsh, 864 F.2d
416, 417 (6th Cir. 1988). Whether an act is judicial in character does not depend on whether it is
discretionary. Id. Rather, immunity applies to all acts of auxiliary court personnel that are “basic
and integral parts of the judicial function,” unless those acts are done in the clear absence of all
subject matter jurisdiction of the court. Mullis v. U.S. Bankruptcy Court, Dist of Nevada, 828 F.2d

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1385, 1390 (9th Cir. 1987). Acts committed in error or in excess of jurisdiction will not abrogate
immunity, even if it results in “grave procedural errors.” Id. Plaintiff does not clearly indicate what
actions were taken by Portage County Court of Common Pleas Clerk of Court Jill Faukhauser, and
Cuyahoga County Court of Common Please Clerk of Court Nailah K. Byrd that led to this suit. It
would appear these claims are based on their respective roles in supervising deputy clerks who
process court documents related to his prosecutions. These actions are an integral part of the court
process entitling these Defendants to absolute immunity as well. See Sindram v. Suda, 986 F.2d
1459, 1461 (D.C. Cir. 1993)(citing Foster).1
Furthermore, Plaintiff does not include any allegations against Portage County CSEA,
Portage Coutny Sheriff David Doak, Cuyahoga County Sheriff Clifford Pinkey, or ODJFS Director
Dungey in her individual capacity. Plaintiff cannot establish the liability of any Defendant absent
a clear showing that the Defendant was personally involved in the activities which form the basis
of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v.
Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995). Ansent specific allegations
against these Defendants, Plaintiff failed to state a claim upon which may be granted against them.
Finally, Plaintiff asserts claims under 42 U.S.C. §§ 1985 and 1986. To establish a violation
of § 1985, Plaintiff must allege that the Defendants conspired together for the purpose of depriving

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See Fish v. Murphy, No. 01-3601, 2001WL 1355611(6th Cir. Oct. 26, 2001)(finding the clerk
of court was entitled to absolute immunity even though he stamped the wrong date on the document
which resulted in the dismissal of an appeal); Harris v. Suter, No. 00-3309, 2001 WL 111586 (6th
Cir. Feb. 1, 2001)(holding clerk was entitled to absolute immunity for actions associated with filing
or failing to file a document); Burton v. Mortimer, No. 99-1956, 2000 WL 876517 (6th Cir. June 22,
2000)(finding the denial of free copies of the file and a delay in forwarding the record to the state
court of appeals which results in an erroneous dismissal for lack of jurisdiction and are both quasijudicial functions which entitle the clerk to absolute immunity); see also Foster, 864 F.2d at 417 (the
act of issuing an order of a judge is a quasi-judicial function entitled to immunity).
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him of the equal protection of the laws and committed an act in furtherance of the conspiracy which
was motivated by racial or other class-based invidiously discriminatory animus. Bass v. Robinson,
167 F.3d 1041, 1050 (6th Cir. 1999). A Plaintiff fails to state an adequate claim if his allegations
are premised upon mere conclusions and opinions. Morgan v. Church’s Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987). A Plaintiff must make sufficient factual allegations to link two alleged
conspirators in the conspiracy and to establish the requisite “meeting of the minds” essential to the
existence of the conspiracy. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.1993) (holding that
Plaintiff failed to state a claim for conspiracy pursuant to § 1985 for failure to allege a meeting of
the minds). Conspiracy claims must be pled with specificity. Id. Furthermore, the acts that
allegedly deprived the Plaintiff of equal protection must be the result of class-based discrimination.
Bass, 167 F.3d at 1050; Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992). In this case, Plaintiff
does not allege any specific facts to suggest the Defendants engaged in a conspiracy and does not
include any allegations of discrimination based on membership in a protected class. He failed to
state a claim for relief under § 1985.
Because Plaintiff has failed to state a claim under § 1985, his claims for relief under § 1986
must also be dismissed. Section 1986 imposes liability on those individuals who have knowledge
of any of the wrongs prohibited by § 1985, yet fail to prevent them. Without a violation of § 1985,
there can be no violation of § 1986.
Conclusion
Accordingly, Plaintiff’s application to Proceed In Forma Pauperis (ECF No. 2) is granted
and this action is dismissed pursuant to 28 U.S.C. §1915(e) for lack of subject matter jurisdiction.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not

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be taken in good faith.2
IT IS SO ORDERED.

/s/Donald C. Nugent
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
Dated: __December 7, 2017____

2

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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