DeNoma v. Heekin et al

Filing 31

ORDER adopting Report and Recommendations re 6 20 Report and Recommendation finding as moot 11 12 14 15 16 17 18 26 27 28 ; and granting 29 Motion for Leave to File and granting 30 Motion to Amend/Correct. Signed by Judge Michael R. Barrett on 2/24/21. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Anthony J. Denoma
Plaintiff,

Case No. 1:20-cv-470

v.

Judge Michael R. Barrett

Judge Tom Heekin, et al.,
Defendants.
ORDER
This matter is before the Court on the Magistrate Judge’s July 28, 2020 Report
and Recommendations (“R&R”) (Doc. 6); January 8, 2021 Order and R&R (Doc. 20); and
Plaintiff’s Objections to the R&Rs (Docs. 8, 23).
Also before the Court are Plaintiff’s Motions for Equitable Tolling (Docs. 26, 27, 28,
30) and Motions for Leave to File Amended Complaint (Docs. 29, 30).
I.

BACKGROUND
Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C § 1983 against

Defendants Judge Tom Heekin, Prosecuting Attorney Joseph Deters, and Sheriff Jim
Neil. At the heart of Plaintiff’s complaint is his claim that even though he is exempt from
complying with sex-offender registration requirements, he was charged with one count of
failing to register. By separate order, Plaintiff has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C § 1915. (Doc. 4).
The Magistrate Judge conducted a sua sponte review of Plaintiff’s complaint 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. 28 U.S.C. §
1915(e)(2)(B). In her July 28, 2020 R&R, the Magistrate Judge concluded that Plaintiff’s
factual allegations are insufficient to suggest that Defendants shared a conspiratorial
objective or otherwise planned together to deprive him of a constitutionally-protected
right, and therefore, plaintiff’s vague, unsubstantiated and conclusory claim based on a
conspiracy theory lacks the requisite specificity to state a cognizable claim under 42
U.S.C. § 1983. The Magistrate Judge also concluded that Defendants Deters and Heekin
are entitled to prosecutorial and judicial immunity. Therefore, the Magistrate Judge
recommended that Plaintiff’s complaint be dismissed without prejudice.
In her January 8, 2021 Order and R&R, the Magistrate Judge permitted Plaintiff to
amend his complaint, but concluded that despite the amendment, Plaintiff’s Amended
Complaint was insufficient to state a conspiracy claim or change the applicability of
prosecutorial and judicial immunity. The Magistrate Judge also noted that Plaintiff’s state
court criminal case remained pending in the Hamilton County Court of Common Pleas.
Finally, the Magistrate Judge denied Plaintiff’s pending motions (Docs. 11, 12, 14,15,
16,17, 18) as moot.
II.

ANALYSIS
A. Standard of Review
When objections are made to a magistrate judge’s report and recommendation on

a nondispositive matter, this Court “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). The
“clearly erroneous” standard applies to the magistrate judge's factual findings and the
“contrary to law” standard applies to the legal conclusions. Sheppard v. Warden,

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Chillicothe Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013).
Legal conclusions should be modified or set aside if they “contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992). When objections to a magistrate judge’s
report and recommendation are received on a dispositive matter, the assigned district
judge “must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review, the district judge “may
accept, reject, or modify the recommended decision; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
A plaintiff proceeding in forma pauperis does not have to incur any filing fees or
court costs, leading to the lack of an economic incentive to not file any frivolous, malicious,
or repetitive lawsuits. Denton v. Hernandez, 504 U.S. 25,31 (1992) (quoting Neitzke v.
Williams, 490 U.S. 319, 324 (1989)). This Court can dismiss the in forma pauperis
complaint if it is found that the action is frivolous or malicious. 28 U.S.C.
§§1915(e)(2)(B)(i). A complaint may be frivolous if there is not a rational or arguable
basis in fact or law. Neitzke, 490 U.S. at 328-29. Although detailed factual allegations
are not required, there needs to be enough factual content, accepted as true, to “state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). The Court must accept allegations of facts as true except conclusory
statements or mere threadbare recitations of the elements. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). However, pro se plaintiffs are “held to a less stringent standard than
formal pleadings drafted by lawyers,” and their complaints must be “liberally construed.”

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Erickson v. Paradus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97,106 (1976)).
B. July 28, 2020 Report & Recommendation
Plaintiff raises four objections to the Magistrate Judge’s July 28, 2020 R&R: (1)
that he effectively stated his valid claims; (2) Defendants did not have jurisdiction to have
the Plaintiff charged and arrested for failure to register as a sex offender; (3) State officials
seeking absolute immunity bear the burden of showing that such immunity is justified;
and (4) 28 U.S.C § 1915 is unconstitutional under the Fourteenth Amendment of the
United States Constitution.
As to Plaintiff’s first objection, it is well-settled in the Sixth Circuit that conspiracy
claims must be plead with “with some degree of specificity, and vague and conclusory
allegations unsupported by material facts are not sufficient to state a claim.” Hamilton v.
City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010); see also Moldowan v. City of
Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th
Cir. 1987)) (affirming dismissal of conspiracy claims under 42 U.S.C. § 1983 because the
plaintiff failed to plead the claims with the “requisite specificity”). Construing the complaint
liberally, Plaintiff’s factual allegations are insufficient to suggest that Defendants shared
a conspiratorial objective or otherwise planned together to deprive him of a
constitutionally-protected right. Plaintiff’s vague, unsubstantiated and conclusory claim
based on a conspiracy theory lacks the requisite specificity to state a cognizable claim
under 42 U.S.C. § 1983. Therefore, Plaintiff’s first objection to the Magistrate Judge’s
July 28, 2020 R&R is OVERRULED.

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Plaintiff’s second and third objections to the Magistrate Judge’s July 28, 2020 R&R
also fail for reasons set forth by the Magistrate Judge in the R&R. First, 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). Second, Deters and Judge Heekin are entitled to prosecutorial and judicial
immunity.

“Prosecutors are entitled to absolute immunity for conduct ‘intimately

associated with the judicial phase of the criminal process.’” Manetta v. Macomb County
Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976)). Accordingly, “in initiating a prosecution and in presenting the
State's case, the prosecutor is immune from a civil suit for damages under § 1983.”
Imbler, 424 U.S. at 431. Similarly, judges are afforded absolute immunity from damages
for acts they commit while functioning within their judicial capacity. Pierson v. Ray, 386
U.S. 547 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). Judges retain
absolute immunity from liability even if they act maliciously or corruptly, as long as they
are performing judicial acts and have jurisdiction over the subject matter giving rise to the
suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); see also Stern v.
Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962 (6th Cir.1985).
Here, Plaintiff alleges that Deters fraudulently obtained an indictment based on
plaintiff’s failure to comply with the sex offender registration. However, whether the
prosecutor has an improper motive, acts in bad faith, or even acts in an unquestionably
illegal manner is irrelevant. Red Zone 12 LLC v. City of Columbus, 758 F. App'x 508, 513
(6th Cir. 2019) (citing Cady v. Arenac County, 574 F.3d 334, 341 (6th Cir. 2009)). Instead,
“the critical inquiry is how closely related is the prosecutor's challenged activity to his role

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as an advocate intimately associated with the judicial phase of the criminal process.”
Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (quoting Pusey v. City of
Youngstown, 11 F.3d 652, 658 (6th Cir.1993)). Accordingly, prosecutorial immunity
extends to “‘a prosecutor's decision to file a criminal complaint and seek an arrest warrant
and the presentation of these materials to a judicial officer.’” Id. (quoting Manetta v.
Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir.1998)).
Plaintiff alleges that Judge Heekin continued his custody through a “Own
Recognizance Bond” requiring him to register with the Sheriff’s Department as a sex
offender. However, such an act was a discretionary act of a judicial nature. See King v.
McCree, No. 13-10567, 2013 WL 3878739, at *4 (E.D. Mich. July 26, 2013) (accepting
guilty plea, enforcing payment plan, approving delayed sentence, placing plaintiff on a
tether for failure to abide by payment plan, and transferring plaintiff’s case to another
judge are judicial acts), aff'd, 573 F. App'x 430 (6th Cir. 2014); Krajicek v. Justin, 991 F.
Supp. 875, 876 (E.D. Mich. 1998) (actions taken by defendant in issuing the warrant and
incarcerating plaintiff are of the type traditionally performed by judges), aff'd, 178 F.3d
1294 (6th Cir. 1999). Therefore, Plaintiff’s second and third objections to the Magistrate
Judge’s July 28, 2020 R&R are OVERRULED.
Plaintiff’s fourth objection fails similarly because Plaintiff has not alleged sufficient
facts in the complaint. Plaintiff was not deprived of substantive or procedural due process
due to the application of 28 U.S.C § 1915 to his case. Plaintiff was allowed to pursue his
claims pro se and in forma pauperis. “As long as a judicial forum is available to a litigant,
it cannot be said that the right of access to the courts has been denied.” Wilson v. Yaklich,
148 F.3d 596, 605 (6th Cir. 1998) (holding that “[b]oth as written and as applied in this

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case, § 1915(g) does not infringe upon the fundamental right of access to the courts.”).
Accordingly, Plaintiff’s fourth objection to the Magistrate Judge’s July 28, 2020 R&R is
OVERRULED.
C. January 8, 2021 Report & Recommendation
Plaintiff raises three objections to the Magistrate Judge’s January 8, 2021 R&R:
(1) Defendants Deters and Judge Heekin are “cooperating together in arbitrarily
conducting unconstitutional proceedings to deprive DeNoma of his civil rights and Liberty,
therefore DeNoma has sufficiently stated a cognizable claim of their conspiracy.” (Doc.
23, PAGEID# 374); (2) 28 U.S.C § 1915 has previously been implemented to
unconstitutionally deprive Plaintiff of his substantive and procedural due process rights;
and (3) the sex-offender registration requirements do not apply to him as a first-time
offender and Defendant Judge Heekin refuses to allow Plaintiff to represent himself “and
appointed three different counsels who act only to obtain DeNoma's conviction.” (Doc.
23, PAGEID# 374).
As explained above, Plaintiff has not stated a claim for a constitutional violation
based on the application of 28 U.S.C § 1915 to his case. In addition, the Court has
previously discussed why Plaintiff fails to state a cognizable claim of conspiracy; and
explained that Defendants Heekin and Deters are entitled to judicial and prosecutorial
immunity from Plaintiff’s claims against them. “It is well established that judges are
entitled to absolute judicial immunity from suits for money damages for all actions taken
in the judge's judicial capacity, unless these actions are taken in the complete absence
of any jurisdiction.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing Mireles v.
Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). This “[a]bsolute or ‘quasi-

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judicial’ immunity derived from common-law immunity accorded to judges has been
extended to prosecutors when the prosecutorial activity is ‘intimately associated with the
judicial phase of the criminal process.’” Ireland v. Tunis, 113 F.3d 1435, 1443 (6th Cir.
1997) (quoting Imbler v. Pachtman, 424 U.S. 409, 420, 430, 96 S.Ct. 984, 990, 995, 47
L.Ed.2d 128 (1976)). Because the acts described by Plaintiff are judicial functions,
Defendants Deters and Judge Heekin are immune from Plaintiff’s claims.
D. Pending Motions
Subsequent to the entry of the Magistrate Judge’s January 8, 2021 Order and R&R
(Doc. 20), Plaintiff filed four Motions for Equitable Tolling (Docs. 26, 27, 28) and two
Motions for Leave to File Amended Complaint (Docs. 29, 30).
In his most recently filed Motions for Leave to Amend, Plaintiff seeks to amend his
complaint to add additional defendants and exhibits, but has not altered the allegations
which form his claims. The Court GRANTS Plaintiff’s Motions for Leave to File Amended
Complaint (Docs. 29 30). However, the Court finds nothing in the amended complaint
which would alter the conclusion that plaintiff fails to state a claim of conspiracy;
Defendants Heekin and Deters are entitled to judicial and prosecutorial immunity; and this
Court should refrain from interfering with Plaintiff’s pending state proceedings pursuant
to Younger v. Harris, 470 U.S. 37, 44-45 (1971).
Plaintiff also filed Motions for Equitable Tolling. (Docs. 26, 27, 28, 30). In these
motions, Plaintiff explains that he is attempting to defend his liberty and equal protection
rights and seeks equitable tolling so that those rights are not waived or forfeited. Based
on the Court’s ruling, Plaintiff’s Motions for Equitable Tolling are DENIED as MOOT.

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III.

CONCLUSION
Having reviewed this matter de novo in accordance with Rule 72 of the Federal

Rules of Civil Procedure, the Court finds the Magistrate Judge’s R&Rs to be thorough,
well-reasoned, and correct.

Accordingly, the Magistrate Judge’s July 28, 2020 and

January 8, 2021 R&Rs (Docs. 6, 20) are ADOPTED in their entirety, and Plaintiff’s
Objections are OVERRULED. It is hereby ORDERED that:
1. Plaintiff’s Motions for Leave to File Amended Complaint (Docs. 29, 30) are
GRANTED;
2. Plaintiff’s pending motions (Docs. 11, 12, 14,15, 16,17, 18) are DENIED as
MOOT.
3. Plaintiff’s complaint is DISMISSED without prejudice;
4. Plaintiff’s Motions for Equitable Tolling (Docs. 26, 27, 28, 30) are DENIED as
MOOT;
5. The Court certifies pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons
an appeal of this Order adopting this Report and Recommendation would not be
taken in good faith and therefore Plaintiff is DENIED 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.
1977); and
6. This matter is CLOSED and TERMINATED from the active docket of the Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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