Hurst v. State of Ohio General Assembly et al

Filing 2

REPORT AND RECOMMENDATION in that the 1 MOTION for Leave to Proceed in forma pauperis filed by Mark E. Hurst is GRANTED. It is RECOMMENDED that this case be DISMISSED. Objections to R&R due by 2/17/2015. Signed by Magistrate Judge Terence P Kemp on 1/28/15. (sem1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Mark E. Hurst,

:

Plaintiff,

:

v.

Case No. 2:14-cv-2594

:

State of Ohio General
Assembly, et al.,

:

Defendants.

JUDGE EDMUND A. SARGUS
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
On December 11, 2014, Plaintiff Mark E. Hurst filed a motion
for leave to proceed in forma pauperis and a proposed civil
complaint seeking relief against defendants the State of Ohio
General Assembly, the Court of Common Pleas for Licking County,
Ohio, Licking County Prosecuting Attorney Kenneth Oswalt, and
Ohio Attorney General Mike DeWine.

After reviewing the financial

information submitted in the motion for leave to proceed in forma
pauperis, the Court determines that Mr. Hurst qualifies
financially for a waiver of the filing fee, and the motion to
proceed in forma pauperis (Doc. 1) is GRANTED.

Because Mr. Hurst

is not paying a filing fee, however, his complaint is subject to
an initial screening pursuant to 28 U.S.C. §1915(e)(2) and 28
U.S.C. §1915(a).

For the following reasons, based on the Court’s

review of the complaint, it will be recommended that the case be
DISMISSED.
I.

Factual Background

Mr. Hurst’s complaint arises from his conviction in the
Court of Common Pleas for Licking County, Ohio for pandering
obscenity involving a minor in violation of O.R.C.
§2907.321(A)(5) (Count I); pandering sexually-oriented matter
involving a minor in violation of O.R.C. §2907.322(A)(5) (Count

II); and illegal use of a minor in nudity-oriented material or
performance, in violation of O.R.C. §2907.323(A)(3)(Count III).
Mr. Hurst was sentenced to fifteen months of incarceration on
Count I, an additional fifteen months on Count II, and nine
months on Count III to be served consecutively, for a total
sentence of thirty-nine months of incarceration.

In the judgment

entry issued on August 6, 2008, the Court also classified Mr.
Hurst as a “Tier 1 Sexual Offender” and determined that he was
“subject to registration and verification requirements” as
provided in the 2008 amendments to Ohio’s Sex Offender
Registration and Notification Law (“SORN Law”), then referred to
as the Adam Walsh Act (“AWA”) or S.B. 10.

(Doc. 1, Ex. 1 at 2).

Mr. Hurst served all thirty-nine months of incarceration and was
released in November 2011 under the supervision of the Adult
Parole Authority.
While Mr. Hurst was incarcerated, the Ohio Supreme Court
decided State v. Bodyke, 126 Ohio St.3d 266 (2010) and State v.
Williams, 129 Ohio St.3d 344 (2011), which held that it is
unconstitutional to apply the AWA’s provisions to offenders like
Mr. Hurst, whose offenses occurred prior to the AWA’s effective
date.

The State of Ohio filed a motion to vacate Mr. Hurst’s

designation as a Tier 1 sexual offender in the Licking County
Court of Common Pleas, explaining that Mr. Hurst had filed two
motions with the Ohio Court of Appeals seeking to have his Tier 1
designation removed.1

The State of Ohio stated that, although

Mr. Hurst should have raised this issue in the trial court and
not in the appellate court, Mr. Hurst was “at least correct in
that he is entitled to a remedy ... and indeed a remedy that the

1

Mr. Hurst states that the Court of Appeals dismissed his
appeals because he “was useing [sic] the wrong case number to file the
appeal, and was in the wrong court.” (Doc. 1 at 4).
2

State itself also has an interest seeing accomplished.”
2 at 2.

Id., Ex.

Stated differently, the State of Ohio agreed that, in

the wake of the Bodyke and Williams decisions, Mr. Hurst’s
designation as a Tier 1 sexual offender was impermissible.

The

State of Ohio added that it “want[ed] to make sure that Hurst is
properly classified so that he can be properly made to register,
so that in the event he fails to do so he can be properly
prosecuted.”

Id. at 3.

Based upon the foregoing, the State of Ohio requested that
Mr. Hurst’s designation as a Tier 1 sexual offender be vacated,
and that he be reclassified as a “Sexually Oriented Offender”
under the SORN Law in effect prior to the AWA or S.B. 10.
1.

Id. at

More specifically, the State of Ohio requested the issuance

of an entry which provided, in relevant part, that:
“... the previously ordered classification of the
defendant as a ‘Tier 1' offender is hereby vacated upon
the authority of State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374. Pursuant to State v. Hayden, 96 Ohio
St.3d 211, 2002-Ohio-4169, paragraph two of the
syllabus, by operation of law the defendant is
designated as a ‘sexually oriented offender’ as defined
by Ohio law in effect prior to January 1, 2008.”
Id. at 3.

The SORN Law in effect prior to the AWA or S.B. 10 was

commonly referred to as Megan’s Law or S.B. 5.

The State of Ohio

requested that the Court take this action without an evidentiary
hearing.
Despite Mr. Hurst’s claims that the new designation sought
by the State of Ohio was unconstitutional and could not be
imposed without a re-sentencing hearing, the Court of Common
Pleas found the State of Ohio’s motion to be well taken.
Consequently, the Court of Common Pleas granted the State of
Ohio’s motion and issued a judgment entry on February 29, 2012
stating:

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the previously ordered classification of the Defendant
as a Tier I Offender is hereby vacated upon the
authority of State v. Williams, 129 Ohio St.3d 344.
Pursuant to State v. Hayden, 96 Ohio St.3d 211 by
operation of the law that the Defendant is designated
as a Sexually Oriented Offender as defined by Ohio law
in effect prior to January 1, 2008.
Id., Ex. 4 at 1.

Mr. Hurst appealed that decision to the Ohio

Court of Appeals.
On appeal, Mr. Hurst raised the following assignments of
error:
I. THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE’S
MOTION TO RECLASSIFY APPELLANT AS A ‘SEXUALLY ORIENTED
OFFENDER,’ IN ACCORDANCE WITH MEGAN’S LAW, BECAUSE HE
DID NOT COMMIT A ‘SEXUALLY ORIENTED OFFENSE’.
II. THE TRIAL COURT ERRED WHEN IT CLASSIFIED APPELLANT
AS A TIER I SEX OFFENDER, IN ACCORDANCE WITH THE ADAM
WALSH ACT, AND THE RESULTING SENTENCE IS VOID.
Id., Ex. 5 at 3.

The State of Ohio did not dispute that the

February 29, 2012 judgment entry was in error.

To that end, the

Court of Appeals summarized the State of Ohio’s position as
follows:
The
State
concedes
error
in
Appellant’s
reclassification as a sexually oriented offender.
However, the State disagrees this Court must remand for
resentencing. Rather, the State asserts the only error
in Appellant’s sentencing is its current provision
designating him a “sexually oriented offender.”
Accordingly, the State maintains that the trial court’s
authority is limited to correcting the erroneous
designation by removing the language classifying
Appellant a “sexually oriented offender.”
Id. at 4.

After a review of relevant case law, the Court of

Appeals found that the portion of Mr. Hurst’s “sentence
classifying him a sexually oriented offender is void.”

Id. at 6.

Accordingly, the Court of Appeals affirmed Mr. Hurst’s conviction

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in all other respects, with the exception of his “classification
as a sexually oriented offender,” which it vacated.

Id.

Mr. Hurst filed the instant case in this Court seeking
relief under 42 U.S.C. §1983 against the State of Ohio General
Assembly and/or Legislators, the Court of Common Pleas for
Licking County, Ohio, the Licking County Prosecuting Attorney
Kenneth Oswalt, and the Ohio Attorney General Mike DeWine,
alleging that he is entitled to relief because he was sentenced
unconstitutionally two times (the first under the AWA or S.B. 10
and the second under Megan’s Law or S.B. 5).

In addition, Mr.

Hurst complains that his:
name, address, license number and picture were
erroneously added to the Government controled [sic]
“Sex Offender” web-site. In fact, as of this filing,
(12-10-14) almost 2 years after [his] sentence was
voided by the Appeal Court, [his] picture and
information are still on that web-site, and he has not
been releaced [sic] from control of the “Sex Offender”
department of the Adult Parole Authority.
Id. at 7.

Based on the foregoing, Mr. Hurst seeks $6,500,000.00

in damages.
II. Legal Standard
The ability to proceed in forma pauperis was established by
Congress under 28 U.S.C. §1915 in order to provide greater means
of access to the judicial system for the indigent.
Hernandez, 504 U.S. 25, 31 (1992).

Denton v.

The statute allows, with

proper showing of financial need, a petitioner to proceed in an
action “without prepayment of fees or security thereof.”
U.S.C. §1915(a)(1).

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However, 28 U.S.C. §1915(e)(2) requires the

Court to “dismiss the case at any time if the court determines
that ... (B) the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.”

A suit is frivolous if it lacks any arguable
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foundation in either fact or law.
319, 325 (1989).

Neitzke v. Williams, 490 U.S.

A complaint fails to state a claim upon which

relief can be granted, if, after accepting as true all wellpleaded allegations of the complaint, the allegations do not
“raise a right to relief above the speculative level.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atl.

The Court is mindful

that pro se complaints are to be construed liberally in favor of
the pro se party. Haines v. Kerner, 404 U.S. 519 (1972); see also
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991).

With these

standards in mind, the Court conducts an initial screening of Mr.
Hurst’s complaint.
III. Discussion
As noted above, Mr. Hurst brought the instant action against
the State of Ohio General Assembly and/or Legislators, the Court
of Common Pleas for Licking County, Ohio, the Licking County
Prosecuting Attorney Kenneth Oswalt, and the Ohio Attorney
General Mike DeWine.

The Court considers Mr. Hurst’s claim

against each defendant in turn.
Mr. Hurst’s claim against the Ohio General Assembly and
state legislators is a claim against the State of Ohio.

See,

e.g., Ganaway v. Ohio, 2012 WL 5378730, at *2 (N.D. Ohio Oct. 31,
2012).

However, the State of Ohio may only be sued in federal

court if it has “consented to such a suit or its immunity has
been properly abrogated by Congress.”

Latham v. Office of Atty.

Gen. of State of Ohio, 395 F.3d 261, 270 (6th Cir. 2005), citing
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S. Ct.
1114, 134 L. Ed.2d 252 (1996).

Absent such circumstances, the

Eleventh Amendment provides jurisdictional immunity to the State
of Ohio, which is an “absolute bar to the imposition of liability
upon States and State agencies.”

Ganaway v. Ohio, 2012 WL

5378730, at *2, citing Latham, 395 F.3d at 270.

In this case,

the State of Ohio has not consented to this lawsuit, and Congress
6

has not abrogated the State of Ohio’s immunity.

Consequently,

the Ohio General Assembly and state legislators have
jurisdictional immunity from the instant lawsuit under the
Eleventh Amendment.
Similarly, the Court of Common Pleas for Licking County,
Ohio is not a “person” subject to suit under 42 U.S.C. §1983,
Mumford v. Basinski, 105 F.3d 264, 268 (6th Cir. 1997), and it
enjoys Eleventh Amendment immunity from suit under 42 U.S.C.
§1983 in federal court.
1988)(per curiam).

Foster v. Walsh, 864 F.2d 416 (6th Cir.

Further, to the extent that Mr. Hurst’s

complaint could be construed liberally as attempting to bring a
claim against the Judges responsible for first designating Mr.
Hurst as a Tier 1 sexual offender and later designating him as a
sexually oriented offender, those claims would likewise be
barred.

As a general rule, judges are entitled to absolute

immunity from civil liability regardless of the consequences
which follow from their judicial acts.

“It is well-established

that judges of courts of general jurisdiction are immune from
liability for their judicial acts .... Except for acts in the
‘clear absence’ of jurisdiction, judicial immunity is absolute.”
Sparks v. Kentucky Character & Fitness Committee, 818 F.2d 541,
542 (6th Cir. 1987), vacated, 484 U.S. 1022, 108 S. Ct. 744, 98
L. Ed.2d 757 (1988), aff’d on reconsideration, 859 F.2d 428 (6th
Cir. 1988), citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20
L. Ed. 646 (1871); Stump v. Sparkman, 435 U.S. 349, 98 S. Ct.
1099, 55 L. Ed.2d 331 (1978); King v. Love, 766 F.2d 962 (6th
Cir.), cert. denied 474 U.S. 971, 106 S. Ct. 351, 88 L. Ed.2d 320
(1985).

Thus, Mr. Hurst is unable to bring an action against the

Court of Common Pleas for Licking County, Ohio or the Judges who
presided over his case in that Court.
Mr. Hurst’s claim against the Licking County Prosecuting
Attorney Kenneth Oswalt is also barred.
7

Just as judges have

immunity from suit under 42 U.S.C. §1983 for any actions taken in
a judicial capacity, prosecutors have immunity for acts taken in
their capacity as prosecutors.

See Stump v. Sparkman, 435 U.S.

349, 98 S. Ct. 1099, 55 L. Ed.2d 331 (1978); Imbler v. Pachtman,
424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed.2d 128 (1976).

Any

attempt by a prosecutor to apply a statute to individual
proceedings is a prosecutorial act.

On this basis, Prosecuting

Attorney Oswalt is immune from suit.
Finally, Mr. Hurst does not allege that Ohio Attorney
General Mike DeWine had any involvement in the facts giving rise
to the complaint.

Indeed, aside from naming him as a defendant,

Mr. Hurst does not mention Attorney General DeWine anywhere in
the complaint.

Personal involvement in unconstitutional activity

is required to allege liability under 42 U.S.C. §1983.

See,

e.g., Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008).
Accordingly, Mr. Hurst’s claim against Attorney General DeWine
must be dismissed for failure to state a claim upon which relief
can be granted.
IV. Recommended Disposition
Based upon the foregoing, it is recommended that Mr. Hurst’s
case be dismissed in its entirety.

Should this recommendation be

adopted, the Court should mail a copy of the complaint, this
Report and Recommendation, and the Court’s order of dismissal to
the defendants.
V. Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
8

A judge

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have a district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P Kemp
United States Magistrate Judge

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