Byerly v. DeWeese et al
Memorandum Opinion and Orde.r Plaintiff's complaint is dismissed under 28 U.S.C. § 1915(e)(2)(B) as time-barred and for failure to state a claim upon which relief may be granted. This court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be takenin good faith. Signed by Judge Solomon Oliver, Jr. on 9/13/2019. (R,Sh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
STEPHEN W. BYERLY,
JAMES L. DeWEESE, et al.,
Case No. 1: 19 CV 912
JUDGE SOLOMON OLIVER, JR.
MEMORANDUM OF OPINION
Plaintiff’s pro se complaint arises from a 2002 conviction for aggravated murder in an
Ohio state court. As best this court can discern, Plaintiff claims that the Defendants – James
DeWeese, the judge who presided over the case in the Richland County Court of Common Pleas;
Bambi Couch-Page, who prosecuted the case; Terry Hitchman, his appointed counsel in the
matter; and Robert Whitney, whose connection to this suit is unclear – conspired together to
violate his civil rights under 42 U.S.C. § 1983 by permitting his conviction without a valid
indictment. (Doc. 1 at 4.) He seeks $10 million in compensatory and punitive damages. (Id. at
3.) Plaintiff also has moved to proceed in forma pauperis (Doc. 2); that motion is granted. For
the following reasons, Plaintiff’s complaint is dismissed.
STANDARD OF REVIEW
Pro se pleadings are held to “less stringent standards than formal pleadings drafted by
lawyers” and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam). Nevertheless, district courts are required to screen all in forma pauperis actions and
dismiss before service any action the court determines is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th
In order to state a claim for relief, a complaint must set forth “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. at 471 (applying the
dismissal standard articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), to dismissals for failure to state a claim under §1915(e)(2)(B)).
The “allegations must be enough to raise a right to relief above the speculative level . . . .”
Twombly, 550 U.S. at 555. And they must be sufficient to give defendants “fair notice of what
[the plaintiff’s] claims are and the grounds upon which they rest.” Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002).
To establish a violation under § 1983, a plaintiff must show that a person acting under
color of state law deprived him or her of rights, privileges, or immunities secured by the
Constitution or laws of the United States. 42 U.S.C. § 1983; see also Parratt v. Taylor, 451 U.S.
527, 535 (1981). Here, Plaintiff has failed to meet this burden, and his complaint must be
dismissed for three reasons.
Each Defendant is Subject to Dismissal
First, none of the Defendants is individually liable. Two of them, former Richland
County Common Pleas Court Judge James DeWeese and former Richland County Prosecutor
Bambi Couch-Page, are immune from this action. Judicial officers generally are absolutely
immune from civil suits for money damages relating to actions taken in their judicial capacity.
E.g., 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. A judge will be not deprived of immunity even if the
action at issue was performed in error, done maliciously, or was in excess of his or her authority.
Stump v. Sparkman, 435 U.S. 349, 356 (1978). Neither exception to judicial immunity applies
here, and Defendant DeWeese is immune from Plaintiff’s claims against him.
Similarly, prosecutors are entitled to absolute immunity from damages for initiating a
prosecution and presenting the state’s case. E.g., 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 prosecuting them in
court. Imbler, 424 U.S. at 424. This duty could not properly be performed if the prosecutor is
constrained in making every decision by the potential consequences of personal liability in a suit
for damages. Id. at 424-25. 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. Id. at 425. Defendant Couch-Page, therefore, also is
immune from this suit.
Plaintiff’s sole allegation against Defendant Hitchman, his appointed counsel in the 2002
case, is that he failed to object to the allegedly defective indictment. Generally, however, to be
considered to have acted “under color of state law” for purposes of § 1983, a person must be a
state or local government official or employee. A private party may be found to have acted under
color of state law only when the party “acted together with or . . . obtained significant aid from
state officials” and did so to such a degree that its actions may properly be characterized as “state
action.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). An individual also may be
considered a state actor if he or she exercises powers traditionally reserved to a state. Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 352 (1974). Plaintiff’s only specific allegation against
Hitchman –that he failed to object to the indictment – does not support his assertion that
Hitchman conspired with DeWeese or Couch-Page to convict him under an invalid indictment or
otherwise reasonably suggest that he acted “under color of state law.” Hitchman, too, is
And Defendant Whitney must be dismissed because Plaintiff does not assert any
allegations against him whatsoever. A plaintiff cannot establish the liability of any defendant
absent a clear showing that the defendant was personally involved in the activities that form the
basis of the alleged unconstitutional behavior. See, e.g., Rizzo v. Goode, 423 U.S. 362, 371
(1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995).
Plaintiff’s Complaint Fails to State a Plausible Constitutional Claim
under § 1983
The complaint also must be dismissed because it fails to allege any plausible
constitutional claim upon which Plaintiff may be granted relief under § 1983. First, a plaintiff
cannot bring a § 1983 action if a ruling on his claims would necessarily imply the invalidity of
his conviction, unless his conviction has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal, or called into question by a federal court's issuance of a
writ of habeas corpus. Heck v. Humphry, 512 U.S. 477, 486-87 (1994). “This ensures that
habeas corpus remains the exclusive remedy for criminal defendants who have not obtained a
favorable termination in their criminal proceedings and does not allow duplicative, collateral
attack of convictions or sentences through § 1983 actions.” S.E. v. Grant Cty. Bd. of Educ., 544
F.3d 633, 637 (6th Cir. 2008). Plaintiff does not allege that his 2002 case has been overturned or
called into question through other processes. Therefore, to the extent that Plaintiff alleges that
the Richland County Court of Common Please should have set aside the 2002 conviction because
of an allegedly invalid indictment, his § 1983 claims are barred by Heck.
Second, it is well settled that there is no federal constitutional right to an indictment in
state criminal proceedings. See, e.g., Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984) (citing
Brazenberg v. Hayes, 408 U.S. 665 (1972)). Indeed, “the Constitutional does not require any
particular state indictment rule. In fact, it does not require an indictment at all if sufficient notice
of the charges is given in some other manner.” Id. Plaintiff does not allege that he did not
receive notice of, or did not understand the basis for, the charges against him in his 2002 criminal
case. His assertions regarding the allegedly defective indictment, therefore, do not state plausible
constitutional claims under § 1983.
Plaintiff's Claims are Time-Barred
Finally, Plaintiff’s complaint must be dismissed because it is clear on its face that the
statute of limitations on Plaintiff’s claims expired long before he filed this action. There is a
two-year statute of limitations on claims raised under § 1983. See Wilson v. Garcia, 471 U.S.
261, 275-276 (1985) (holding that federal courts must apply the state statute of limitations for
personal injury actions to § 1983 claims); Browning v. Pendleton, 869 F.2d 989, 991 (6th Cir.
1989) (Ohio's two-year statute of limitations for personal injury claims applies to § 1983 actions).
Plaintiff alleges the constitutional violations at issue here occurred in 2002. Yet he did
not file this complaint until April 23, 2019, several years after the two-year limitations period
expired on his claims. Plaintiff’s claims, therefore, are time-barred, and the complaint must be
dismissed for that reason as well. See Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL
789385, at *1 (6th Cir. Oct. 30, 1998) (affirming sua sponte dismissal of pro se §1983 action
filed after two-year statute of limitations for bringing such an action had expired).
Accordingly, Plaintiff’s complaint is dismissed under 28 U.S.C. § 1915(e)(2)(B) as
time-barred and for failure to state a claim upon which relief may be granted. This court further
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/ Solomon Oliver, Jr.
SOLOMON OLIVER, JR.
UNITED STATES DISTRICT JUDGE
September 13, 2019
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