Hurst v. Oswalt et al

Filing 3

ORDER AND REPORT AND RECOMMENDATIONS re 2 Complaint filed by Mark E. Hurst. It is therefore RECOMMENDED that this action be dismissed. Objections to R&R due by 1/2/2015. Plaintiff's application for leave to proceed in forma pauperis, ECF 1 , is GRANTED. Signed by Magistrate Judge Norah McCann King on 12/15/2014. (pes1) (This document has been sent by the Clerks Office by regular and certified mail to the party(ies) listed in the NEF that did not receive electronic notification. 7009 2820 0003 5796 5267)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARK E. HURST,
Plaintiff,
Case No. 2:14-cv-2636
Judge Watson
Magistrate Judge King

v.

KENNETH OSWALT, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, who is proceeding without the assistance of counsel,
seeks leave to file a civil action under 42 U.S.C. § 1983 without
prepayment of fees or costs.

28 U.S.C. § 1915(a). Plaintiff’s

application for leave to proceed in forma pauperis, ECF 1, is GRANTED.
All judicial officers who render services in this action shall do so
as if the costs had been prepaid.
However, having performed the initial screen of the Complaint,
ECF 1-1, as required by 28 U.S.C. § 1915(e), the Court concludes that
the Complaint seeks monetary relief against defendants who are immune
from such relief.

See 28 U.S.C. § 1915(e)(2)(B)(ii), (III). It is

therefore recommended that the action be dismissed.
The Complaint names as defendants the Licking County Prosecutor
and a Special Prosecutor for Licking County, Ohio, alleging that
defendants failed to provide exculpatory evidence to plaintiff’s
defense team, resulting in plaintiff’s criminal conviction.

See Brady

v. Maryland, 373 U.S. 83 (1963). The Complaint seeks only monetary

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relief.
Prosecutors enjoy absolute immunity from claims for monetary
damages under § 1983 for actions taken within the scope of their
prosecutorial duties.

Imbler v. Pachtman, 424 U.S. 409, 420 (1976).

In determining whether a prosecutor is entitled to this immunity, the
United States Supreme Court has adopted a functional approach.
Forrester v. White, 484 U.S. 219 (1988).

“Functions that serve as an

‘integral part of the judicial process’ or that are ‘intimately
associated with the judicial process’ are absolutely immune from civil
suits.”

Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir.

2010)(quoting Imbler, 424 U.S.C. at 430).

In the case presently

before the Court, plaintiff’s own allegations make clear that his
claims for money damages against the prosecuting officials are based
on actions taken by them (or omissions on their part) during the
course of their prosecution of plaintiff.

Because plaintiff seeks to

base defendants’ liability on their prosecutorial function, these
defendants are absolutely immune from liability on plaintiff’s claims
against them. See Koubriti, 593 F.3d 459 (Prosecutor is absolutely
immune from liability for damages arising out of alleged failure to
disclose exculpatory information to the accused).
It is therefore RECOMMENDED that this action be dismissed.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.

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28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

to

preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
December 15, 2014

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