DeNoma v. Heekin et al

Filing 6

REPORT AND RECOMMENDATIONS re 5 Complaint filed by Anthony J. DeNoma. IT IS RECOMMENDED THAT: (1) Plaintiff's complaint be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B); (2) The Court certify pursuant to 28 U.S.C. § 1915(a) that 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. Objections to R&R due by 8/11/2020. Signed by Magistrate Judge Stephanie K. Bowman on 7/28/2020. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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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.
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. By
separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This matter is before the Court for 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 enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma
pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28
U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the plaintiff cannot
make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S.
319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An
action has no arguable legal basis when the defendant is immune from suit or when plaintiff

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claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An
action has no arguable factual basis when the allegations are delusional or rise to the level of the
irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court
need not accept as true factual allegations that are “fantastic or delusional” in reviewing a
complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,
490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint filed by a
pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal
and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and
1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

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678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
In the complaint, plaintiff alleges that defendants conspired against him to deprive him of
his constitutional rights. (Doc. 1, Complaint at PageID 173). Specifically, plaintiff claims that
in Hamilton County Ohio, Court of Common Pleas case number B9501322 he was found exempt
from complying with sex-offender registration requirements. According to plaintiff, after
completing his sentence in that case, defendants conspired to retroactively reclassify him and
subject him to the registration requirements. Plaintiff further alleges that defendant Deters
fraudulently obtained an indictment based on plaintiff’s failure to comply with the sex offender
registration, defendant Heekin continued plaintiff’s custody through a “Own Recognizance Bond
requiring DeNoma to register with the Sheriff’s Department as a sex offender,” and defendant
Neil posted plaintiff’s information on the electronic Sex Offender Registration Notification
registry website. (Id. at PageID 174).
A review of the Hamilton County Clerk of Court’s online docket reveals that petitioner
was charged with one count of failure to register in case number B 2000836. Petitioner entered a
guilty plea on February 28, 2020 and sentencing is currently scheduled for July 28, 2020.1
Plaintiff seeks injunctive and declaratory relief, as well as monetary damages. (Id. at
PageID 172, 174). Specifically, plaintiff seeks an injunction that he not be required to register,

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)).

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that defendants be precluded from prosecuting or sentencing him, his prior convictions be set
aside, and his record sealed. (Id. at PageID 174).
The complaint is subject to dismissal at the screening stage. As an initial matter, it is
well-settled in the Sixth Circuit that conspiracy claims must be pleaded 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”). Here,
construing the complaint liberally, plaintiff’s factual allegations are insufficient to suggest that
the defendants shared a conspiratorial objective or otherwise planned together to deprive him of
a constitutionally-protected right. 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.
In any event, defendants Deters and 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)). This
includes a county prosecutor’s initiation of a prosecution and presentation of the State’s case at
trial. Imbler, 424 U.S. at 431. See also Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). A
prosecutor’s initiation and presentation of a case to a grand jury falls within the traditional
functions of the prosecutor and is shielded by absolute immunity. Grant v. Hollenbach, 870 F.2d

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1135, 1139 (6th Cir. 1989). Courts have consistently recognized that even the knowing
presentation of false testimony to a grand jury or a trial jury are actions protected by absolute
immunity. See Spurlock v. Thompson, 330 F.3d 791, 797-98 (6th Cir. 2004). See also Imbler,
424 U.S. at 413, 430; Buckley v. Fitzsimmons, 509 U.S. 259, 267 n. 3 (1993). Such “absolute
prosecutorial immunity is not defeated by a showing that a prosecutor acted wrongfully or even
maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498 n. 7 (6th Cir. 1998).
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).
Plaintiff’s allegations against defendant Deters concern actions intimately associated with
the judicial phase of the criminal process. Similarly, plaintiff has not alleged that defendant
Judge Heekin presided over a matter over which he was without subject matter jurisdiction or
that he performed non-judicial acts. Accordingly, the complaint should be dismissed against
these defendants.
Furthermore, 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). Abstention is mandated where, as here, federal court
intervention would “unduly interfere[ ] with the legitimate activities of the State.” Younger, 401
U.S. at 44. Where Younger abstention is appropriate, dismissal of the plaintiff’s claim without

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prejudice is warranted. See Zalman v. Armstrong, 802 F.2d 199, 207 n.11 (6th Cir. 1986). The
Court should therefore dismiss plaintiff’s claim that the charges against him should be dropped
without prejudice. See, e.g., Williams v. Underwood, No. 3:19-CV-P208-CRS, 2019 WL
3769634, at *4 (W.D. Ky. Aug. 9, 2019) (dismissing the plaintiff's claim that his charges should
be dropped without prejudice).
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s complaint be DISMISSED without prejudice. See 28 U.S.C. §

1915(e)(2)(B).
2.

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

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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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