Mavrakis v. Kurt
Filing
7
Memorandum Opinion and Order. This action is dismissed pursuant to 28 U.S.C. §1915(e). 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 John R. Adams on 2/23/18. (S,HR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TONY A. MAVRAKIS
Plaintiff,
v.
SANDRA KURT,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. 5:17 CV 1994
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
AND ORDER
Pro se Plaintiff Tony A. Mavrakis filed this action against Summit County Court of
Common Clerk Sandra Kurt. In the Complaint, Plaintiff alleges Defendant has not yet complied
with a Magistrate’s order to strike Plaintiff’s Motion from the Court of Appeals docket and enter
it on the Common Pleas Court docket. He contends the Court Clerk is denying him access to the
courts and due process. He seeks an Order from this Court directing her to correct the filing and
awarding him monetary damages.
I.
Background
The events giving rise to this Complaint occurred in the course of Plaintiff’s criminal
case, after he exhausted his direct appeals and post conviction remedies. The criminal case arose
from a dispute Plaintiff and Robert G. Fye had over the ownership of a car. State v. Mavrakis,
No. 27457, 2015 WL 7572381, at *1-2 (Ohio Ct. App. Nov. 25, 2015). Plaintiff was pulled over
while driving the car under a lifetime license suspension, and as a result, the car was towed. Id.
Fye received police assistance to retrieve the keys from Plaintiff and claim the car from the tow
yard. Id. Later that day, Plaintiff went to Fye’s apartment with a bayonet demanding that the car
be returned to him. Id. Fye was not home, but his grandmother and uncle were. Id. Plaintiff beat
on the door with the bayonet, pushed his way in, threatened Fye’s relatives, demanded they
summon Fye, and smashed personal belongings in the apartment. Id. He left before police
arrived. From there, he went to a muffler shop where Fye’s father worked. Fye was not there
either, but Fye’s father and sister were present. Plaintiff began to engage in disruptive behavior;
however, Fye’s father pulled out a gun and fired a warning shot. Id. Plaintiff immediately left
the premises. Id.
Plaintiff was arrested and charged with aggravated burglary, vandalism, and two counts
of aggravated menacing for his actions at the apartment. Id. He was charged with felonious
assault and breaking and entering for his conduct at the muffler shop. Id. Following a jury trial,
Plaintiff was found guilty of the charges arising out of his actions at the apartment. Id. He was
found not guilty of the charges relating to the muffler shop. Id. The presentence investigation
report indicated Plaintiff had prior convictions for felonious assault and aggravated vehicular
homicide. Id. The trial court merged the vandalism and aggravated menacing convictions into
the aggravated burglary conviction and sentenced Plaintiff to a mandatory term of seven years in
prison on July 9, 2014. Id.
Plaintiff appealed his conviction to the Ohio Ninth District Court of Appeals. The
Appellate Court upheld his conviction on November 25, 2015. Plaintiff appealed that decision to
-2-
the Supreme Court of Ohio on January 6, 2016. The Supreme Court declined to accept
jurisdiction on March 23, 2016.
Plaintiff alleges a state public defender informed him on May 2, 2016 that his habeas
corpus petition had to be filed on or before June 21, 2017. Plaintiff contends that reminded him
of statements the judge made during his sentencing in 2014 and discovered these statements were
not on the transcript of the proceedings. Plaintiff waited an additional nine months, and then on
February 6, 2017, filed a Motion to Modify or Correct the Record under Ohio Appellate Rule
9(E). In the case caption, he stated, “In the Court of Common Pleas, in the Court of Appeals.”
The Court Clerk filed it on the Ohio Appellate Court docket. Plaintiff protested that he intended
the Motion to be filed in the Common Pleas Court. On March 2, 2017, an Appellate Court
magistrate judge ordered the Motion to be stricken from the Appellate Court docket and entered
on the Common Pleas Court docket. Plaintiff indicates the Defendant removed the Motion from
the Appellate docket, but did not enter it on the Common Pleas Court docket. As a result, the
Motion has not yet received a ruling. He asserts this denied him access to the courts and due
process.
II.
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 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
-3-
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).
III.
Analysis
As a threshold matter, 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
-4-
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 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. The acts of the Court Clerk about which Plaintiff complains - deciding where to docket a
Motion and interpreting and following the orders of judicial officers - are all integral parts of the
judicial process and within the subject matter jurisdiction of her Court. Sindram v. Suda, 986
F.2d 1459, 1461 (D.C. Cir. 1993)(citing the Sixth Circuit’s decision in Foster).1 Sandra Kurt is
therefore entitled to absolute immunity.
Furthermore, even if the Defendant were not absolutely immune from suit, Plaintiff has
failed to state a claim upon which relief may be granted. First, Plaintiff was not denied access to
the courts. To state a claim for denial of access to the courts, Plaintiff must allege that particular
actions of the Defendants prevented him from pursuing or caused the rejection of a specific
non-frivolous direct appeal, habeas corpus petition, or civil rights action. Lewis v. Casey, 518
U.S. 343, 351 (1996). The right of access to the courts is directly related to an underlying claim,
without which a Plaintiff cannot have suffered injury by being shut out of court. Christopher v.
1
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 quasi-judicial 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 quasijudicial function entitled to immunity).
-5-
Harbury, 536 U.S. 403, 415 (2002). Plaintiff must therefore “plead and prove prejudice
stemming from the asserted violation.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996).
In order words, he must demonstrate “actual injury” by showing that his underlying claim was
non-frivolous, and that it was frustrated or impeded by Defendants. Lewis, 518 U.S. at 353. “It
follows that the underlying cause of action, whether anticipated or lost, is an element that must
be described in the Complaint....” Christopher, 536 U.S. at 415.
In this case, Plaintiff has not demonstrated actual injury. He exhausted his direct appeals
and filed an unsuccessful post conviction petition. See State v. Mavrakis, No. CR-2013-10-2872
(Summit Cty Ct. Comm. Pl. filed Oct. 17, 2013). Both his appeals and his post conviction
petition were denied in 2015. He claims to have remembered in 2017, statements the judge
allegedly made during 2014 sentencing hearing which were not on the transcript of his
sentencing hearing. He contends this would demonstrate the judge relied on testimony from
deceptive witnesses, made reference to a plea bargain, and took into consideration the muffler
shop incident when sentencing him. Plaintiff was represented by counsel at sentencing and on
appeal. His attorney could have raised these issues on appeal. Plaintiff attempted to reopen his
appeal to assert his underlying claims of bias and ineffective assistance of counsel, which he
believes this altered transcript would demonstrate, but that application was denied as untimely.
He filed a Motion for Reconsideration and that Court denied that Motion as well. Plaintiff has
not demonstrated an actual injury to a direct appeal, post conviction petition, a habeas corpus
petition or a civil rights action. Lewis, 518 U.S. at 351.
-6-
Finally, Plaintiff fails to state a claim for denial of due process. The Fourteenth
Amendment provides that a state may not “deprive any person of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV. In addition to setting the procedural
minimum for deprivations of life, liberty, or property, the Due Process Clause bars “certain
government actions regardless of the fairness of the procedures used to implement them.”
Daniels v. Williams, 474 U.S. 327, 331 (1986). It does not prohibit every deprivation by the
government of a person’s life, liberty or property. Harris v. City of Akron, 20 F.3d 1396, 1401
(6th Cir. 1994). Only those deprivations which are conducted without due process are subject to
suit under 42 U.S.C. § 1983. Id.
The Due Process Clause has a procedural component and a substantive one. The two
components are distinct from each other because each has different objectives, and each imposes
different constitutional limitations on government power. A procedural due process limitation,
unlike its substantive counterpart, does not require that the government refrain from making a
choice to infringe upon a person’s life, liberty, or property interest. It simply requires that the
government provide “due process” before making such a decision. Howard v. Grinage, 82 F.3d
1343, 1349 -53 (6th Cir. 1996). The goal is to minimize the risk of erroneous deprivation, to
assure fairness in the decision-making process, and to assure that the individual affected has a
participatory role in the process. Id. Procedural due process requires that an individual be given
the opportunity to be heard “in a meaningful manner.” See Loudermill v. Cleveland Bd. of Educ.,
721 F.2d 550, 563 (6th Cir.1983). Procedural due process claims do not consider the
egregiousness of the deprivation itself, but only question whether the process accorded prior to
-7-
the deprivation was constitutionally sufficient. Howard, 82 F.3d at 1350. Although the
existence of a protected liberty or property interest is the threshold determination, the focus of
this inquiry centers on the process provided, rather than on the nature of the right.
Substantive due process, on the other hand, serves the goal of preventing “governmental
power from being used for purposes of oppression,” regardless of the fairness of the procedures
used. See Daniels, 474 U.S. at 331. Substantive due process serves as a vehicle to limit various
aspects of potentially oppressive government action. Id. It serves as a check on legislation that
infringes on fundamental rights otherwise not explicitly protected by the Bill of Rights; or as a
check on official misconduct which infringes on a “fundamental right;” or as a limitation on
official misconduct, which although not infringing on a fundamental right, is so literally
“shocking to the conscious,” as to rise to the level of a constitutional violation. Howard, 82
F.3d at 1349.
To prevail on a procedural due process claim, Plaintiff must plead and prove either (1)
that he was deprived of liberty or property as a result of an established state procedure that itself
violates due process rights; or (2) by proving that the Defendant deprived him of liberty property
pursuant to a random and unauthorized act and that available state remedies would not be
adequate to redress the deprivation. Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991); see
Vicory v. Walton, 721 F.2d 1062, 1064 (6th Cir. 1983).
As the first step in any due process inquiry, Plaintiff must show he has a protected liberty
or property interest in having his Motion filed by the Clerk. The Supreme Court has stated, “[t]o
have a property interest in a benefit, a person clearly must have more than an abstract need or
-8-
desire for it. He must have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564,
577 (1972). For purposes of this discussion only, the Court assumes without deciding that
Plaintiff has a liberty or property interest in having the Motion filed.
Plaintiff is not challenging a state procedure itself that violates the due process clause.
instead, he is claiming Defendant deprived him of this protected interest pursuant to a random
and unauthorized act. To prevail on a procedural due process claim, however, he must also plead
and prove that state remedies for redressing the wrong are inadequate. Macene, 951 F.2d at 706;
Vicory, 721 F.2d at 1064. He has not done so. Plaintiff could have refiled the Motion in the trial
court. He could have filed a mandamus action in the Ohio Appellate Court. He has not
suggested that he has done either of these, nor has he alleged facts suggesting these remedies
would be inadequate to address the issue. He has not demonstrated that he was denied
procedural due process.
Furthermore, Plaintiff has not alleged facts suggesting he was denied substantive due
process. Due process claims of this nature involve official acts which cause a deprivation of a
substantive fundamental right. Mertik v. Blalock, 983 F.2d 1353,1367 (6th Cir. 1993). In
addition, under substantive due process, courts have invalidated laws or actions of government
officials that “shock the conscience.” See United States v. Salerno, 481 U.S. 739, 746 (1987).
These actions are unconstitutional regardless of the procedural protections provided. Parate v.
Isibor, 868 F.2d 821, 832 (6th Cir. 1989). A citizen, however, does not suffer a constitutional
deprivation every time he is subjected to some form of harassment or negligence at the hands of a
-9-
government agent. Id. at 833. The conduct asserted must be “so severe, so disproportionate to
the need presented, and such an abuse of authority as to transcend the bounds of ordinary tort law
and establish a deprivation of constitutional rights.” Id. Plaintiff was not deprived of a
fundamental right, and the actions of the Court Clerk were not so severe that they shock the
conscience.
IV.
Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915(e). 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.2
IT IS SO ORDERED.
Date: February 23, 2018
/s/ John R. Adams
JOHN R. ADAMS
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.
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?