DeNoma v. Heekin et al

Filing 20

ORDER granting 13 Plaintiff's Motion for Leave to Amend and Supplement Complaint Adding Defendant Names for Continuing Deprivation of Rights; REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT: (1) Plaintiff's complaint, a s amended, be DISMISSED without prejudice; (2) Plaintiff's pending motions be denied as moot 11 , 12 , 14 , 15 , 16 , 17 , 18 ; (3) The Court certify pursuant to 28 U.S.C. § 1915(a) that an appeal of any Order adopting this Report a nd Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to proceed in forma pauperis in the Court of Appeals. Objections to R&R due by 1/22/2021. Signed by Magistrate Judge Stephanie K. Bowman on 1/8/2021. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:20-cv-00470-MRB-SKB Doc #: 20 Filed: 01/08/21 Page: 1 of 5 PAGEID #: 364

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANTHONY J. DENOMA,
Plaintiff,
vs.
JUDGE TOM HEEKIN, et. al,
Defendants.

Case No. 1:20-cv-470
Barrett, J.
Bowman, M.J.
ORDER AND REPORT
AND RECOMMENDATION

Plaintiff has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against
defendants Judge Tom Heekin, Prosecuting Attorney Joseph T. Deters, and Sheriff Jim Neil.
Plaintiff alleges in the complaint that defendants conspired to deprive him of his constitutional
rights, claiming that although he is exempt from complying with sex-offender registration
requirements, he was charged with one count of failing to register in Hamilton County Court of
Common Pleas case number B 2000836. Plaintiff alleges that the defendants conspired to
retroactively reclassify and subject him to the registration requirements, fraudulently obtain an
indictment based on his failure to register, and detain him on charges of failing to register. (See
Doc. 5). For relief plaintiff seeks an injunction that he not be required to register, that defendants
be precluded from prosecuting or sentencing him, and that his prior convictions be set aside.
(See id. at PageID 172, 74).
On July 28, 2020, the undersigned recommended that this action be dismissed at the
screening stage. (Doc. 6). Specifically, the undersigned found that plaintiff failed to state a
cognizable claim of conspiracy and that defendants Heekin and Deters are entitled to judicial and
prosecutorial immunity. Furthermore, the undersigned recommended that the Court should
refrain from interfering with plaintiff’s pending state proceedings under Younger v. Harris, 470
U.S. 37, 44–45 (1971).

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Plaintiff has now filed a “motion for leave to amend and supplement complaint adding
defendants names for continuing deprivation of rights.” Plaintiff’s motion (Doc. 13) is hereby
GRANTED. See Fed. R. Civ. P. 15(a)(1)(B). This matter is now before the Court for a sua
sponte review of the complaint, as amended, to determine whether the complaint, or any portion
of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which
relief may be granted or seeks monetary relief from a defendant who is immune from such relief.
See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. §
1915A(b).
The amended complaint names additional defendants and claims the allegations
contained in the original complaint are ongoing. (See Doc. 13).
For the reasons stated in the July 28, 2020 Report and Recommendation plaintiff’s
complaint, as amended, should be dismissed at the screening stage. Specifically, the amended
complaint does not alter the undersigned’s opinion that plaintiff’s factual allegations are
insufficient to state a conspiracy claim or change the applicability of prosecutorial and judicial
immunity. (See id.). Furthermore, plaintiff’s state court criminal case remains pending in the
Hamilton County Court of Common Pleas. On November 30, 2020, the court issued an entry of
continuance at the request of the defendant, continuing the case until January 11, 2021.1
As noted in the pending Report and Recommendation, a federal court must decline to
interfere with pending state proceedings involving important state interests in the absence of
extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 44-45 (1971). Under Younger,
the federal court must abstain where “[1] state proceedings are pending; [2] the state proceedings

1

Viewed at https://www.courtclerk.org/ under Case No. B 2000836. This Court may take judicial notice of court
records that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir.
2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

2

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involve an important state interest; and [3] the state proceeding will afford the plaintiff an
adequate opportunity to raise his constitutional claims.” Kelm v. Hyatt, 44 F.3d 415, 419 (6th
Cir. 1995) (citing Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454 (6th Cir.
1989)). See also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987); Huffman v. Pursue, Ltd.,
420 U.S. 592, 603-05 (1975). Extraordinary circumstances barring abstention include “great and
immediate” irreparable injury, state law that is “flagrantly and patently violative of express
constitutional prohibitions,” or “bad faith, harassment, or any other unusual circumstance that
would call for equitable relief.” Younger, 401 U.S. at 46, 53, 54. See Fieger v. Thomas, 74 F.3d
740, 750 (6th Cir. 1996).
All three factors supporting Younger abstention are present in this case. First, Mr.
DeNoma’s case is currently pending in the Hamilton County Court of Common Pleas. See
Huffman, 420 U.S. at 608; Loch v. Watkins, 337 F.3d 574, 578 (6th Cir. 2003); Foster v.
Kassulke, 898 F.2d 1144, 1146 (6th Cir. 1990). Second, the criminal case implicates important
state interests as state criminal prosecutions have traditionally been considered an arena in
which federal courts decline to interfere. See Younger, 401 U.S. at 43-45. Third, there is no
evidence that the state criminal proceedings cannot provide an opportunity for plaintiff to raise
any constitutional claims. Regarding this factor, the federal court must presume that the state
courts are able to protect the interests of a federal petitioner. Kelm v. Hyatt, 44 F.3d 415, 420
(6th Cir. 1995) (citing Pennzoil Co., 481 U.S. at 15). Plaintiff possesses an adequate
opportunity to raise any constitutional issues in his pending state court action or in a

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subsequent appeal.2 Because plaintiff has failed to allege facts suggesting the existence of
extraordinary circumstances barring abstention, abstention under Younger is appropriate.
Accordingly, the complaint as amended should be dismissed without prejudice. (See
Doc. 13 at PageID 291-292). In light of the recommendation that this action be dismissed at
the screening stage, it is further recommended that plaintiff’s remaining pending motions3 be
denied as moot. (Doc. 11, 12, 14, 15, 16, 17, 18).
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s motion to amend (Doc. 13) is GRANTED.
IT IS THEREFORE RECOMMENDED THAT:

1.

Plaintiff’s complaint, as amended, be DISMISSED without prejudice. See 28

U.S.C. § 1915(e)(2)(B).
2.

Plaintiff’s pending motions be denied as moot. (Doc. 11, 12, 14, 15, 16, 17, 18).

3.

The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to
proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 803
(6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 (6th Cir.
1997).
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
2 The Hamilton County docket sheet reflects that plaintiff has filed several motions in the state court challenging the
applicability of the sex offender registration requirements and the pending criminal charges as unconstitutional. See
supra. n.2.
3 Plaintiff has filed three motions for judicial notice (Doc. 11, 12, 17) asserting “continuing deprivations of his civil
rights” based on the allegations contained in the original and amended complaint, as well as two additional notices
(Doc. 15, 19), two motions “for equitable tolling instanter extension of time” (Doc. 14, 16), and a motion for summary
judgment and injunction (Doc. 18).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANTHONY J. DENOMA,
Plaintiff,

Case No. 1:20-cv-470
Barrett, J.
Bowman, M.J.

vs.
JUDGE TOM HEEKIN, et. al,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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