Arega v. DeWine

Filing 7

REPORT AND RECOMMENDATION that 6 MOTION to dismiss Ms. Mesi be granted, and that Mr. Arega's federal constitutional claims be dismissed under 28 U.S.C. §1915A for failure to state a claim upon which relief can be granted. It is further recommended that Mr. Aregas state law claims be dismissed without prejudice under 28 U.S.C. §1367(c)(3). Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/16/2015. (agm)(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
Tizazu F. Arega,

:

Plaintiff,
v.

: Case No.

2:15-cv-1460

:

Attorney General Mike DeWine,
et al.,
Defendants.

: JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp
:

REPORT AND RECOMMENDATION
Plaintiff Tizazu Arega, a state prisoner, has submitted a
complaint and a request to file a civil action in forma pauperis.
In a separate order, the Court will assess the required filing
fee.

Mr. Arega also filed a motion which appears to request that

Mary Mesi be dismissed as a defendant in this action.

(Doc. 6).

The Court will grant Mr. Arega’s motion and will dismiss Ms. Mesi
as a defendant in this case.

Finally, for the reasons set forth

below, the Court will recommend that the complaint be dismissed
for failure to state a claim upon which relief can be granted.
I.
Mr. Arega filed a civil complaint “for fraud, legal
malpractice, professional tort, negligent [sic], libel and
slander, sexual discrimination, civil right [sic], civil
conspiracy, constitional [sic] duty, and intentional inflection
[sic] of emotional distress” against Ohio Attorney General Mike
DeWine, Franklin County Prosecuting Attorney Ronald O’Brien,
Franklin County Assistant Prosecuting Attorney Megan Jewett,
Sexual Assault Nurse Examiner Registered Nurse (“SANE-RN”) Mary
Mesi, Ohio Public Defender Timothy Young, and attorney “Barstow
W. Todd” (presumably Todd W. Barstow, an attorney who practices
in the area of criminal defense, among others).

(Doc. 5).

Mr.

Arega attempts to bring this claim on his own behalf and on
behalf of Dr. Fekadu Arega Worken, Roman W. Tesfey, and Zion
Tizazu Fekadu.

Because Mr. Arega is a pro se litigant and not an

attorney, he is unable to act in a representative capacity for
additional plaintiffs.

See Garrison v. Michigan Dept. of

Corrections, 333 Fed. Appx. 914, 917 (6th Cir. May 28, 2009).
Thus, the Court will construe the complaint as being brought only
by Mr. Arega on his own behalf in a pro se capacity.
Mr. Arega’s complaint arises from his 2012 conviction for
rape and sexual battery.

The trial court merged the counts of

conviction, and Mr. Arega was sentenced to a total of nine years
of incarceration.

The Ohio Court of Appeals for the Tenth

Appellate District affirmed the rape conviction, but reversed the
sexual battery conviction and remanded to the trial court with
instructions to enter a judgment of acquittal on that charge.
The Court of Appeals also determined that sentence modification
was not required because of the merger of the offenses.

Thus,

Mr. Arega’s sentence of nine years of imprisonment remained
unchanged.
II.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if ... (B) the
action ... is frivolous or malicious [or] fails to state a claim
on which relief can be granted....”

28 U.S.C. §1915A further

provides that in any prisoner case, the Court shall dismiss the
complaint or any portion of it if, upon an initial screening, it
appears that the complaint fails to state a claim upon which
relief can be granted or seeks monetary damages from a defendant
who is immune from suit.

The purpose of these statutory sections

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved.

See Neitzke v. Williams, 490 U.S. 319 (1989).
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A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact.

See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to
immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing
fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.”

Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 127 S. Ct. 1955, 1974 (2007).

Bell Atlantic Corp. v.

Claims against defendants

who are immune from suits for money damages, such as judges or
prosecutors acting in their judicial or prosecutorial capacity,
are also within the ambit of §1915A. Pro se complaints are to be
construed liberally in favor of the pro se party.
Kerner, 404 U.S. 519 (1972).

See Haines v.

It is with these standards in mind

that Mr. Arega’s complaint will be considered.
III.
As an initial matter, Mr. Arega filed a motion for leave to
file an amended complaint.

Mr. Arega did not attach a proposed

amended complaint to the motion.

The brief motion provides:

1.

The plaintiff in his original complaint name [sic]
Mary Mesi –State’s witness Defendant.

2.

Since the filing of the complaint the plaintiff has
determined that defendant Mary Mesi : Paragraphs 16
are amended to be strike from the civil action.

3.

This court should grant leave freely to amend a
complaint Foman v. Davis, 371 U.S. 178, 182 (1962)

(Doc. 6 at 1).

Paragraph 16 of the complaint states:

On Feb. 01, 2012, defendant, Mary Mesi -SANE -RN was
state’s witness.
She is legally responsible for
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fabricating, making false statement of material facts and
involved in sexual discrimination and civil conspiracy
under duly sworn by advocating for Ms. Botkin who stood
financial gain streaming from plaintiff’s prosecution
that strength [sic] Ms. Botkin law suit [sic] against the
facility. She is liable for her willful, intentional,
and reckless misconduct and violation.
Compl. at ¶16.

Although not entirely clear, it seems that Mr.

Arega is seeking to dismiss Ms. Mesi as a defendant in this
action.

Thus, his motion is more properly characterized as

having been brought pursuant to Fed. R. Civ. P. 21, rather than
under Fed. R. Civ. P. 15.

Fed. R. Civ. P. 21 allows the Court to

dismiss all claims against individual defendants.

See Leaf

Funding, Inc. v. Donahue, D.C., 2008 WL 2388108, at *2 (S.D. Ohio
June 6, 2008)(explaining that “the Sixth Circuit has suggested,
without conclusively deciding the issue, that dismissal of all
claims against a single defendant should be pursuant to Rule 21,
not Rule 41").

For good cause shown, Mr. Arega’s motion will be

granted.
Next, the Court turns to Mr. Arega’s claim against
Prosecuting Attorney Megan Jewett.

Although not stated directly,

it appears that Mr. Arega is attempting to set forth a claim
against Ms. Jewett and the other defendants under 42 U.S.C.
§1983, the statutory vehicle for persons seeking redress for
violations of their constitutional rights. However, 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).

Here, the allegations involve the precise actions

that prosecutorial immunity protects – allegedly “using
falsified, negligent, and fraudulent” evidence, presenting
perjured testimony, and preventing cross-examination on certain
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evidence.

Consequently, Prosecuting Attorney Megan Jewett is

immune from suit, and the claim against her is barred.

For the

same reasons, the claim against Franklin County Prosecuting
Attorney Ronald O’Brien is also barred.

Mr. Arega does not

allege that Mr. O’Brien was personally involved in any
constitutional violation; rather, he alleges that Mr. O’Brien is
liable for “Ms. Jewett’s willful, intentional, and/or reckless
fraud, misconduct, and violation.”

Compl. at ¶14.

As her

supervisor, Mr. O’Brien enjoys the same prosecutorial immunity as
Ms. Jewett.

See Van de Kamp v. Goldstein, 555 U.S. 335, 129 S.

Ct. 855 (2009).

Accordingly, Mr. Arega’s claim against Mr.

O’Brien is likewise without merit.
Mr. Arega’s claim against his appointed attorney also fails.
In Polk County v. Dodson, 454 U.S. 312 (1981), the United States
Supreme Court held that a court appointed attorney does not act
“under color of state law” when acting as counsel to an indigent
defendant in a state criminal proceeding.

Thus, Mr. Barstow may

not be held liable for any alleged constitutional violations
pursuant to 42 U.S.C. §1983.

Id.

Mr. Arega also alleges that

Timothy Young is liable on the ground that “[h]e is legally
responsible for ... Mr. [Barstow]’s misconduct.”

Compl. at ¶17.

Given that no underlying claim exists against Mr. Barstow, Mr.
Young is likewise not liable.
Mr. Arega also alleges that Attorney General Mike DeWine is:
legally responsible for the overall justices and criminal
legal matter of Franklin County Prosecuting Office,
State’s witness, and court appointed attorney, Mr.
[Barstow]. He is also responsible for fair trial and
criminal legal matter of Franklin County. He is liable
for Franklin County Assistance prosecuting attorney, Ms.
Jewett, Ms. Mesi, and Mr. [Barstow]’s willful,
intentional, and/or reckless fraud, misconduct, and
violation.
Id. at ¶14.

Allegations of direct involvement in constitutional

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deprivations, rather than attempts to impose liability by virtue
of the doctrine of respondeat superior, are necessary to hold an
individual defendant liable under §1983.

Monell v. Department of

Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.2d 611
(1978).

Thus, unless a plaintiff affirmatively pleads the

personal involvement of a defendant in the allegedly
unconstitutional action, the complaint fails to state a claim
against that defendant and dismissal is warranted.
v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

See Bellamy

Here, Mr. Arega

does not allege that Attorney General DeWine was personally
involved in any alleged constitutional violation.

Consequently,

Mr. Arega’s claim against Attorney General DeWine must also be
dismissed.
Based on the foregoing, Mr. Arega fails to set forth a
viable §1983 claim against any of the defendants.
of Mr. Arega’s claims are based on state law.

The remainder

The Court will

recommend that those state law claims be dismissed without
prejudice under 28 U.S.C. §1367(c)(3).
IV.
For the reasons set forth above, it is recommended that Mr.
Arega’s motion to dismiss Ms. Mesi be granted (Doc. 6), and that
his federal constitutional claims be dismissed under 28 U.S.C.
§1915A for failure to state a claim upon which relief can be
granted.

It is further recommended that Mr. Arega’s state law

claims be dismissed without prejudice under 28 U.S.C.
§1367(c)(3).

The Court also recommends that if this Report and

Recommendation is adopted, a copy of the complaint, this Report
and Recommendation, and the dismissal order be mailed to each
Defendant.
V.
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
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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).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
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 the 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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