Hairston v. Franklin County Court of Common Pleas of the City of Columbus et al

Filing 19

ORDER AND REPORT AND RECOMMENDATION granting Plaintiff's 1 Motion for Leave to Proceed in forma pauperis. It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial offi cers who render services in this action shall do so as if the costs had been prepaid. In addition, it is RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted. Objections to R&R due by 12/4/2017. Signed by Magistrate Judge Chelsey M. Vascura on 11/20/2017. (kpt)(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
EASTERN DIVISION

RICO ISAIH HAIRSTON,
Plaintiff,
Civil Action 2:17-cv-362
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.
FRANKLIN COUNTY COURT
OF COMMON PLEAS, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION
Plaintiff, Rico Isaih Hairston, a state inmate who is proceeding without the assistance of
counsel, brings this action against the Franklin County Court of Common Pleas; the Franklin
County Prosecutor’s Office; the Franklin County Public Defender’s Office; and Abbey Becca,
whom he identifies as an assistant Franklin County Prosecutor. Plaintiff claims that Defendants
violated rights guaranteed to him by the Fifth, Sixth, Eighth, Thirteenth, and Fourteenth
Amendments to the United States Constitution and intentionally inflicted emotional distress upon
him by participating in his arraignment without his presence. This matter is before the Court for
the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify
cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it,
which 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); see
also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). Having performed the initial

screen, for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS
this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted.
This matter is also before the Court for consideration of Plaintiff’s motion for leave to
proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2). (ECF No. 1.) Plaintiff’s
motion is GRANTED. Plaintiff is required to pay the full amount of the Court’s $350 filing fee.
28 U.S.C. § 1915(b)(1). Plaintiff’s certified trust fund statement reveals that he had the sum of
$1.32 in his prison account as of June 23, 2017. That amount is insufficient to pay the full filing
fee. An authorized officer at the Franklin County Jail submitted a certificate in related case
2:17-cv-581 indicating that Plaintiff’s average monthly deposits for the six-month period prior to
August 8, 2017, were $90.25.
Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff’s inmate trust account at
Franklin County Jail is DIRECTED to submit to the Clerk of the United States District Court for
the Southern District of Ohio as an initial partial payment, 20% of the greater of either the
average monthly deposits to the inmate trust account or the average monthly balance in the
inmate trust account, for the six-months immediately preceding the filing of the Complaint.
After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate’s
preceding monthly income credited to the account, but only when the amount in the account
exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C.
§ 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Checks should be
made payable to: Clerk, United States District Court. The checks should be sent to:
Prisoner Accounts Receivable
260 U.S. Courthouse
85 Marconi Boulevard
Columbus, Ohio 43215
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The prisoner’s name and this case number must be included on each check.
It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of
fees or costs and that judicial officers who render services in this action shall do so as if the costs
had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff
and the prison cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order
to the Court’s financial office in Columbus.

I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that—
*

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*

Formerly 28 U.S.C. § 1915(d).
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*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted. See
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)).
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Although this pleading standard does not require “‘detailed factual allegations,’ .
. . [a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, a complaint will not “suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,
550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure, “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). Facial plausibility is established “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. In considering whether this facial plausibility standard is met, a Court must
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construe the complaint in the light most favorable to the non-moving party, accept all factual
allegations as true, and make reasonable inferences in favor of the non-moving party. Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir.
2008) (citations omitted). The Court is not required, however, to accept as true mere legal
conclusions unsupported by factual allegations. Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555). In addition, the Court holds pro se complaints “‘to less stringent standards than
formal pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t, No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. Apr. 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)).
II.
Plaintiff’s claims based upon his absence at an April 5, 2017, arraignment fail to state a
claim for relief upon which this Court may grant relief. Two of the defendants, the Court of
Common Pleas and the Prosecutor’s Office, are immune from suit. To the extent that the others
are not absolutely immune, Plaintiff’s allegations do not give rise to a plausible claim for relief
pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that he was transported from Ross Correctional Institution to the Franklin
County Jail on April 3, 2017, for arraignment on unspecified untried indictments. The
arraignment was scheduled for April 5, and Plaintiff alleges that he told the Franklin County
Public Defender’s Office that he had elected to represent himself. The April 5 arraignment took
place without Plaintiff, however, and Defendant Becca waived Plaintiff’s appearance and entered
a not guilty plea on Plaintiff’s behalf. Plaintiff bases all of his claims in this case on that act by
Defendant Becca.

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To sustain a § 1983 claim, Plaintiff must establish that he was deprived of a right secured
by the Constitution or laws of the United States and that this deprivation was caused by a person
acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Ellison v.
Garbarino, 48 F.3d 192, 194 (6th Cir.1995).

State courts are not subject to suit because they do

not satisfy the “person” requirement as § 1983 uses that term. Mumford v. Basinski, 105 F.3d
264, 267 (6th Cir.), cert. denied, 522 U.S. 914 (1997). The Eleventh Amendment to the United
States Constitution also bars Plaintiff from maintaining a lawsuit against the Franklin County
Court of Common Pleas because it is an arm of the state. Id. Plaintiff has not, therefore,
asserted claims against that court upon which this Court may grant relief. It is recommended that
the Court dismiss the claims against the Franklin County Court of Common Pleas.
It is also recommended that the Court dismiss Plaintiff’s § 1983 claim against the
Franklin County Prosecutor’s Office. State prosecutors enjoy absolute immunity from civil
liability when acting within the scope of their prosecutorial duties. Imber v. Pachtman, 424 U.S.
409, 427 (1976). Plaintiff Hairston has not alleged any conduct whatsoever by the Franklin
County Prosecutor’s Office and, therefore, has failed to allege activity outside the scope of
prosecutorial duties.
Plaintiff also asserts § 1983 claims against the Franklin County Public Defender’s office
and assistant public defender Abbey Becca based upon Becca’s actions at the April 5
arraignment. Section 1983 does not support liability on a respondeat superior theory. Monell v.
New York City Dep’t of Soc. Servs., 438 U.S. 658, 694 (1978). To the extent that Plaintiff’s
claims against the Public Defender’s office rest on that theory, they are subject to dismissal.
Where an official policy is the “moving force” behind a constitutional violation, a public
defender’s office may be liable for the violation under § 1983. Id.; see also Polk County v.
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Dodson, 452 U.S. 312, 326 (1981). Plaintiff has alleged that Ms. Becca acted pursuant to a
policy or custom of the Public Defender’s Office without specifying the content of that policy or
custom. Liberally construed, Plaintiff’s claims suggest that Plaintiff is alleging that the Franklin
County Public Defender’s Office follows an official policy or custom of waiving appearances
and entering not guilty pleas at arraignments in the absence of criminal defendants who have
indicated that they wish to represent themselves. Construed in that fashion, Plaintiff’s claim is
that Ms. Becca, acting pursuant to an official policy or custom of the Franklin County Public
Defender’s office, violated Plaintiff’s constitutional rights by waiving his appearance and
entering a not guilty plea on his behalf at the April 5 arraignment.
A criminal defendant has a constitutional right to be “present at all stages of the trial
where his absence might frustrate the fairness of the proceedings.” Farretta v. California, 422
U.S. 806, 819 n. 15 (1975). The right derives from the Due Process Clause and the
Confrontation Clause. See United States v. Shepherd, 284 F.3d 965, 968 n.1 (8th Cir. 2002). An
arraignment is not required by the Due Process Clause. Garland v. Washington, 232 U.S. 642,
645 (1914). Moreover, it is not a stage of the litigation at which witnesses testify against the
defendant, so Confrontation Clause concerns are not implicated. Plaintiff did not, therefore,
sacrifice any rights or lose any defenses as a result of his absence or of Ms. Becca’s alleged
actions. In fact, Plaintiff has not alleged that anything that happened at the arraignment
prejudiced him in any way. In fact, he acknowledges that he had received a copy of the
indictment before the date of the arraignment, so he could not allege that he was unaware of the
charges against him. The only other possible prejudice to Mr. Hairston would have been the
entry of a guilty plea without his consent, and that did not occur. This Court should conclude,

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therefore, that Plaintiff has not asserted a claim based upon the events of April 5 upon which this
Court could grant relief.
Plaintiff has also asserted a state-law claim for intentional infliction of emotional distress.
It is recommended that the Court decline to exercise jurisdiction over that claim. Under 28
U.S.C. § 1367(c)(3), the Court may decline to exercise supplemental jurisdiction when the Court
“has dismissed all claims over which it has original jurisdiction.” The United States Court of
Appeals for the Sixth Circuit has held that “[i]f the federal claims are dismissed before trial, the
state claims generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.
2009) (internal quotations omitted). Here, the Complaint confirms that Plaintiff and the
Defendants are citizens of Ohio such that the Court may not exercise jurisdiction based on
diversity of the parties under 28 U.S.C. § 1332. Thus, the Court does not have original
jurisdiction over Plaintiff’s state-law claim. Because the undersigned is recommending dismissal
of all of Plaintiff’s purported federal claims, it is further recommended that the Court decline to
exercise supplemental jurisdiction over any remaining state-law claim and that it dismiss any
such claims without prejudice to filing in state court.
In sum, because Plaintiff has failed to state a claim upon which relief may be granted, it
is RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to
§ 1915(e)(2).
III.
For the reasons set forth above, Plaintiff Hairston’s motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) In addition, it is
RECOMMENDED that the Court DISMISS Plaintiff’s Complaint in its entirety pursuant to
28 U.S.C. § 1915(e)(2)(B) and 1915A.
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The Clerk of Court is DIRECTED to mail a copy of this Order to Plaintiff and the prison
cashier’s office. The Clerk is further DIRECTED to forward a copy of this Order to the Court’s
financial office in Columbus. Finally, the Clerk is DIRECTED to send a copy of this order to
the Ohio Attorney General’s Office, 150 E. Gay St., 16th Floor, Columbus, Ohio 43215.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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 in
question, as well as the basis for objection. 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.
Fed. R. Civ. P. 72(b).
Plaintiff is 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 object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] 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 of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when 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)).
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IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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