Cross-Blancke v. Flaiz et al

Filing 5

Memorandum Opinion and Order For the reasons stated in the Order and in the Geauga County Prosecutors' unopposed Motion to Dismiss (Doc. No. 4 ), the Motion to Dismiss is granted and this action is dismissed as against all defendants pursuant to Fed. R. Civ. P. 12(b)(6) and Apple v. Glenn. The 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. Signed by Judge Dan Aaron Polster on 11/14/2023.(K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
DEBORAH CROSS-BLANCKE,
Plaintiff,
v.
JAMES R. FLAIZ, et al.,
Defendants.

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CASE NO. 1:23 CV 1568
JUDGE

DAN

AARON

POLSTER

MEMORANDUM OPINION
AND ORDER

Background
Pro se plaintiff Deborah Cross-Blancke has filed a fee-paid civil rights complaint in this
case under 42 U.S.C. § 1983 against the prosecutors and a defense lawyer in a still-pending state
criminal case against plaintiff in Geauga County. See State of Ohio v. Deborah Cross Blancke,
No. 22 C 000223 (Geauga County Ct. of Comm. Pleas). Plaintiff sues Geauga County
Prosecutor James R. Flaiz, former Assistant Prosecutor Natalie E. Ray, and Attorney Oscar E.
Rodriguez. (Doc. No. 1).
Although her statement of claim is virtually incomprehensible, the only discernible
conduct she alleges in her complaint as to the named defendants is that they engaged in
unlawful conduct in her criminal case, including “malicious prosecution,” “extra punishment,”
failure to “produce exculpatory [evidence],” and ineffective assistance of counsel. (Doc. No. 1
at 4, ¶ II. D.) She seeks $1.5 million in damages from each defendant.
The Geauga County Prosecutors have filed a Motion to Dismiss Plaintiff’s Complaint

pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds the complaint fails to state a plausible claim
against them and that they are entitled to prosecutorial immunity. (Doc. No. 4.) Plaintiff has
not opposed the motion.
Standard of Review
To survive a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a
complaint "must present 'enough facts to state claim to relief that is plausible on its face'" when
its factual allegations are presumed true and all reasonable inferences are drawn in favor of the
non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield,
552 F.3d 430, 434 (6th Cir. 2008), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Further, even without a motion to dismiss, "federal courts are under an independent
obligation to examine their own jurisdiction" in every case. Kusens v. Pascal Co., Inc., 448
F.3d 349, 359 (6th Cir. 2006). Federal district courts "may, at any time, sua sponte dismiss"
any complaint, even a fee-paid complaint, "for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when the allegations of [the] complaint
are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open
to discussion." Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
Discussion
Upon review, the Court finds that plaintiff's complaint warrants dismissal against all of
the defendants pursuant to Fed. R. Civ. P. 12(b)(6) and Apple v. Glenn.
First, although courts are generally required to construe pro se complaints liberally, even
pro se complaints must satisfy the Rule 12(b)(6) standard to avoid dismissal. See Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “Liberal construction does not require a court to

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conjure allegations on a litigant's behalf,” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004),
or to “guess at the nature” of the claims asserted. Wells v. Brown, 891 F.2d 591, 594 (6th Cir.
1989). The statements and allegations set forth in plaintiff's complaint are so unclear and
conclusory that they fail to meet the basic pleading requirements necessary to set forth a
plausible federal claim upon which she may be granted relief against any defendant in the case.
See Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (a court is not required
to accept summary allegations or unwarranted conclusions in determining whether a complaint
states a claim for relief).
Second, plaintiff’s complaint is totally implausible and devoid of merit because all of the
defendants are immune from suit, or cannot be sued, for damages under § 1983.
It is well-established that state prosecutors enjoy absolute immunity for their conduct “in
initiating a prosecution and in presenting the State's case.” Imbler v. Pachtman, 424 U.S. 409,
431 (1976). The only discernible conduct plaintiff alleges as to the Geauga County prosecutors
falls within the scope of their traditional prosecutorial functions as to which they are absolutely
immune from a § 1983 damages suit.
And the only discernible conduct plaintiff alleges as to Mr. Rodriguez pertains to his
conduct in representing plaintiff in her criminal case. Criminal defense attorneys, however,
whether private practitioners or public defenders, are typically not proper defendants to an
action under § 1983 because they do not act under color of state law when performing
“traditional functions as counsel to a defendant in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 325 (1981). Nothing in plaintiff’s complaint permits a plausible
inference that Mr. Rodriguez engaged in conduct other than performing “traditional functions as

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counsel to a defendant in a criminal proceeding.” Accordingly, he cannot be sued for damages
under § 1983. See id. (a lawyer does not act under color of law when performing traditional
functions as counsel to a defendant in a criminal proceeding).
Conclusion
For the reasons stated above and in the Geauga County Prosecutors’ unopposed Motion
to Dismiss (Doc. No. 4), the Motion to Dismiss is granted and this action is dismissed as against
all defendants pursuant to Fed. R. Civ. P. 12(b)(6) and Apple v. Glenn. The 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.

11/14/2023

DAN AARON POLSTER
UNITED STATES DISTRICT JUDGE

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