Hertel v. Krueger et al
Filing
7
OPINION AND ORDER adopting Report and Recommendations re 5 Report and Recommendations.. Signed by Judge James L. Graham on 8/16/2018. (ds)(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
Frank K.C. Hertel, Sr.,
Plaintiff,
v.
Case No. 2:18-cv-179
Judge Everett H. Krueger,
et al.,
Defendants.
OPINION AND ORDER
This is an action filed by plaintiff pursuant to 42 U.S.C.
§1983 against Delaware County, Ohio, Court of Common Pleas Judge
Everett H. Krueger; Delaware County Prosecuting Attorney Carol
Hamilton O’Brien; various judges of the Ohio Fifth Appellate
District, specifically naming Judges Craig R. Baldwin and William
B. Hoffman; Ohio Supreme Court Justice Maureen O’Connor; Ohio
Attorney General Mike DeWine; and the State of Ohio.
The above
defendants were allegedly involved at various stages of a criminal
prosecution which was first filed against plaintiff in the Court of
Common Pleas of Delaware County, Ohio, in 2000.
Documents
relevant
to
the
history
of
plaintiff’s
state
prosecution are contained in the record of an earlier habeas action
filed by plaintiff in this court pursuant to 28 U.S.C. §2254.
See
Hertel
10,
v.
attachments.
State
of
Ohio,
Case
No.
2:16-cv-435,
Doc.
Plaintiff was indicted in Delaware County, Ohio, in
2000 for rape and gross sexual imposition.
Before trial, he moved
to Arizona, where he was indicted for sexual conduct with a child.
Plaintiff fled to Germany to avoid these prosecutions.
He was
convicted in Arizona in absentia.
In 2013, plaintiff was extradited to Ohio to face the Delaware
County indictment.
Plaintiff pleaded guilty to the 2000 Delaware
County indictment, but was later permitted to withdraw his guilty
plea.
grand
A new indictment was then returned by a Delaware County
jury
in
2014,
alleging
the
same
charges
as
the
2000
indictment, but adding force specifications which increased the
potential penalties.
guilty
to
the
On March 3, 2014, plaintiff again pleaded
original
2000
indictment.
On
March
5,
2014,
plaintiff was sentenced by Judge Krueger to a term of incarceration
to be served concurrently with his Arizona sentence.
2014,
the
2014
indictment
was
dismissed
On March 18,
without
prejudice
(presumably so that those charges could be re-indicted if plaintiff
again
successfully
challenged
his
guilty
plea).
Plaintiff’s
conviction was affirmed on direct appeal, see State v. Hertel, No.
14 CAA 04 0019 (Fifth District), 2015 WL 1403147 (Ohio App. March
26, 2015), and the Ohio Supreme Court declined to accept review,
see State v. Hertel, 143 Ohio St.3d 1355 (2015).
On August 18, 2014, plaintiff filed a motion to dismiss with
prejudice the 2014 indictment against him.
The Delaware County
court denied the motion on September 3, 2014.
Plaintiff’s motion
for a delayed appeal was denied on October 17, 2014, and the Ohio
Supreme Court declined to review on April 29, 2015.
On January 5,
2015, plaintiff filed an application to re-open the appeal.
court of appeals denied the application.
The
Plaintiff filed a second
application to re-open on June 22, 2015.
The court of appeals
denied the second application, and on February 10, 2016, the Ohio
Supreme Court declined to accept jurisdiction of the appeal.
In his habeas case, petitioner asserted claims relating to the
2014 indictment, including the claim that he was denied his speedy
2
trial rights under the Interstate Agreement on Detainers (“IAD”).
On May 5, 2017, the petition was dismissed because plaintiff’s
claims only addressed the 2014 indictment and he was not in custody
based on the 2014 indictment.
See 2:16-cv-435, Doc. 14.
In the instant case, plaintiff alleges that the defendants
were involved in various capacities in his criminal prosecution,
including his conviction in the 2000 case, the dismissal of the
2014
indictment
and
his
subsequent
actions
challenging
dismissal without prejudice of the 2014 indictment.
the
Plaintiff
alleges that defendants’ actions violated the IAD’s 180-day speedy
trial requirement, that both the 2000 and the 2014 indictment
should be dismissed based on the alleged failure to comply with the
IAD’s speedy trial requirements, and that under the IAD, the 2014
indictment should have been dismissed with prejudice rather than
without prejudice. He alleges that because the 2014 indictment was
dismissed without prejudice, it is still valid.
He alleges that
the 2000 indictment and his guilty plea should be set aside under
the theory that the continued validity of both the 2000 and 2014
indictments constitutes double jeopardy.
finding
that
the
IAD
was
violated
Plaintiff seeks an order
by
the
dismissal
without
prejudice of the 2014 indictment, an order directing Judge Krueger
to dismiss the 2014 indictment with prejudice, compensatory damages
in the amount of $250,000, and an award of punitive damages in the
amount
of
$5
million
against
defendant
O’Brien.
Plaintiff
indicates in his objection that it is his intention to sue the
defendants in their official and individual capacities.
I. Standard of Review
This
matter
is
before
the
3
court
for
consideration
of
plaintiff’s objection (Doc. 6) to the magistrate judge’s July 5,
2018, report and recommendation (Doc 5).
If a party objects to a
report and recommendation within the allotted time, the court
“shall make a de novo determination of those portions of the report
or
specified
proposed
findings
or
recommendations
to
which
objection is made.” 28 U.S.C. §636(b)(1); see also Fed. R. Civ. P.
72(b).
Upon review, the Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.”
As
the
28 U.S.C. §636(b)(1).
magistrate
judge
correctly
explained,
28
U.S.C.
§1915(e) requires sua sponte dismissal of an action upon the
court’s determination that the action fails to state a claim upon
which relief may be granted.
(6th Cir. 2008).
Grinter v. Knight, 532 F.3d 567, 572
Courts conducting initial screens under §1915(e)
apply the motion to dismiss standard.
See, e.g., Hill v. Lappin,
630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.
12(b)(6)
standards
to
review
under
28
U.S.C.
§§1915A
and
1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true,
and determining whether plaintiff undoubtedly can prove no set of
facts in support of those allegations that would entitle him to
relief.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.
Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive
a motion to dismiss, the “complaint must contain either direct or
inferential allegations with respect to all material elements
necessary to sustain a recovery under some viable legal theory.”
4
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
complaint
need
not
contain
detailed
factual
While the
allegations,
the
“[f]actual allegations must be enough to raise the claimed right to
relief above the speculative level” and “state a claim that to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 555, 570 (2007).
Bell Atlantic Corp. v.
Although the filings of a
pro se litigant are construed liberally, a pro se party will not be
relieved of the responsibility to comply with basic rules of court.
McNeil v. United States, 508 U.S. 106, 113 (1993).
II. State of Ohio
Plaintiff has named the State of Ohio as a defendant.
magistrate
judge
correctly
concluded
that
plaintiff’s
The
claims
against the State of Ohio are precluded by the doctrine of Eleventh
Amendment immunity.
The Eleventh Amendment bars federal courts
from exercising jurisdiction over actions brought against a state.
Papasan v. Allain, 478 U.S. 265, 276 (1986).
Unless the state has
waived its Eleventh Amendment immunity or Congress has overridden
it, a state cannot be sued directly in its own name regardless of
the relief sought.
(1985).
court.
Kentucky v. Graham, 473 U.S. 159, 167 n. 14
Ohio has not waived its sovereign immunity in federal
Mixon v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999).
The
court agrees that dismissal of the State of Ohio as a named
defendant is appropriate in this case.
A suit brought against a defendant in his official capacity as
a state officer or agent is treated as a suit against the state.
Graham, 473 U.S. at 167.
However, the Eleventh Amendment does not
automatically preclude a claim against a state official acting in
his or her official capacity if plaintiff seeks only prospective
5
injunctive or declaratory relief.
Plaintiff’s
claims
against
the
Papasan, 478 U.S. at 276-78.
individual
state
officers
are
addressed below.
III. Judicial Defendants
The magistrate judge correctly found that plaintiff’s claims
against Justice O’Connor and Judges Krueger, Baldwin, and Hoffman
are barred by the doctrine of judicial immunity.
judge is immune from a suit for money damages.
502 U.S. 9, 9 (1991).
Generally, a
Mireles v. Waco,
Judicial immunity is overcome in only two
circumstances: (1) when a judge performs nonjudicial actions, that
is, actions not taken in the judge’s judicial capacity; and (2)
when a judge’s actions are taken in the complete absence of all
jurisdiction.
Id. at 11-12.
The complaint in this case pleads no
facts which would suggest that either of these exceptions is
applicable.
Rather, the alleged acts by the named judges involved
judicial acts performed during the criminal prosecution of the
plaintiff at the trial and appellate stages of the case.
Plaintiff argues that judicial immunity does not bar claims
for
declaratory
and
injunctive
relief.
He
has
requested
a
declaration that the dismissal without prejudice of the 2014
indictment violated the IAD, and injunctive relief directing Judge
Krueger to dismiss that indictment with prejudice.
In regard to
the claim for declaratory relief, the Sixth Circuit has held that
where a judge was not an adversary of the plaintiff in the state
court proceedings or an enforcer or administrator of a statute, but
rather acted as a disinterested judicial adjudicator who was bound
to decide the issues before him, the judge is not amenable to a
suit
for
declaratory
relief
under
6
§1983
because
no
case
or
controversy exists between the plaintiff and the judge. See Cooper
v. Rapp, 702 F. App’x 328, 333-34 (6th Cir. 2017).
The judicial
defendants in this case acted as adjudicators in plaintiff’s case,
and no claim for declaratory relief has been stated against them.
Plaintiff’s claim for injunctive relief against the judicial
defendants also fails.
Section 1983 provides that
in any action brought against a judicial officer for an
act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief
was unavailable.
§1983.
this
No declaratory decree is alleged to have been violated in
case.
Plaintiff
has
also
failed
declaratory relief was “unavailable.”
to
demonstrate
that
The fact that plaintiff’s
claim for declaratory relief cannot be pursued against the judicial
defendants does not mean that it could not have been pursued
against some other party. See Cooper, 702 F. App’x at 334 (holding
judge was immune from plaintiffs’ claims for injunctive relief even
though they were not entitled to declaratory relief against the
judge).
Insofar as plaintiff has sued the judicial defendants in their
official capacities for damages, his claims are also barred by the
doctrine of Eleventh Amendment immunity. An official capacity suit
is treated as a suit against the governmental entity.
U.S. at 166.
Graham, 473
The Eleventh Amendment bars §1983 actions against a
state and its officials sued in their official capacities for money
damages.
Id. at 169.
Ohio common pleas and appellate courts are
arms of the State of Ohio for purposes of the Eleventh Amendment
analysis.
1997).
See Mumford v. Basinski, 105 F.3d 264, 269 (6th Cir.
The Eleventh Amendment does not preclude a claim against a
7
state official acting in his or her official capacity if plaintiff
seeks only prospective injunctive or declaratory relief.
478 U.S. at 276-78.
fails
to
state
a
Papasan,
However, as discussed above, the complaint
claim
against
the
judicial
defendants
for
declaratory and injunctive relief.
Plaintiff’s claims against the judicial defendants do not
state a claim for relief.
IV. Prosecutorial Immunity
Plaintiff has also asserted claims against defendants O’Brien
and
DeWine.
The
magistrate
judge
correctly
concluded
that
defendant O’Brien is entitled to absolute prosecutorial immunity on
plaintiff’s claims for money damages.
A state prosecutor acting
within the scope of his or her duties in initiating and pursuing a
criminal prosecution is not amenable to suit under §1983.
Imbler
v. Pachtman, 424 U.S. 409, 410 (1976); see also Burns v. Reed, 500
U.S.
478,
486
(1991)(prosecutors
are
absolutely
immune
from
liability under §1983 for their conduct insofar as that conduct is
intimately associated with the judicial phase of the criminal
process).
Courts will bar §1983 suits arising out of even illegal
or improper conduct by the prosecutor so long as the general nature
of the action in question is part of the normal duties of a
prosecutor.
Imbler, 424 U.S. at 413.
Plaintiff’s allegations
against defendant O’Brien concern her role as an advocate in the
prosecution of the Delaware County criminal proceedings against
plaintiff.
These acts of initiating and pursuing a criminal
prosecution were within the scope of her duties as an advocate, and
they are shielded by absolute immunity from plaintiff’s claims for
money damages.
Id. at 410.
8
Plaintiff’s claims against defendant O’Brien in her official
capacity for money damages are also barred by the doctrine of
Eleventh Amendment immunity.
state
agent
when
Because defendant O’Brien acted as a
prosecuting
state
criminal
charges
against
plaintiff, his claims against her in her official capacity are
treated as a suit against the State of Ohio for purposes of
Eleventh Amendment immunity.
See Pusey v. City of Youngstown, 11
F.3d 652, 657-58 (6th Cir. 1993).
Plaintiff correctly notes that the magistrate judge did not
specifically discuss his claims against Attorney General DeWine.
However, the same absolute prosecutorial immunity analysis applies
to plaintiff’s claim against him.
The only alleged involvement of
defendant DeWine in this case is that an assistant attorney general
in his office filed a motion to dismiss the habeas petition filed
by plaintiff in Case No. 2:16-cv-435.
This act was that of an
advocate in judicial proceedings, and plaintiff’s claim against
defendant DeWine is barred by absolute immunity.
Likewise, any
claim for money damages asserted by plaintiff against defendant
DeWine in his official capacity as an officer of the State of Ohio
is barred by the Eleventh Amendment.
The complaint fails to state
a claim for money damages against defendant DeWine.
Plaintiff’s
claim for declaratory relief is also not addressed to defendant
DeWine, as that claim addresses relief sought in regard to the
Delaware County criminal prosecution, not the federal habeas action
in which defendant DeWine appeared as counsel for the State of
Ohio.
Insofar as the complaint is read as asserting claims for
declaratory relief against defendant O’Brien concerning the alleged
9
violations
of
the
IAD,
plaintiff’s
conviction
on
the
2000
indictment, and the alleged illegality of the dismissal of the 2014
indictment without prejudice, the magistrate judge identified other
obstacles to plaintiff’s pursuit of these IAD claims which are
discussed below.
V. Statute of Limitations
The magistrate judge concluded that plaintiff’s claims are
barred by the two-year statute of limitations applicable to §1983
actions.
See Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989).
A complaint showing on its face that relief is barred by an
affirmative defense is properly subject to dismissal for failure to
state a claim upon which relief can be granted.
Rauch v. Day and
Night Manuf. Corp., 576 F.2d 697, 702 (6th Cir. 1978)(holding that
a limitations defense may be raised by a Rule 12 motion); see also
New England Health Care Employees Pension Fund v. Ernst & Young,
LLP, 336 F.3d 495, 501 (6th Cir. 2003)(dismissal on limitations
ground).
The
conduct
plaintiff’s
the
to
conviction
to
The
declined
and
relative
dismissal of the 2014 indictment occurred in 2013 and 2014.
Court
prosecution
defendants
the
Supreme
court
individual
and
Ohio
state
of
exercise
plaintiff’s final appeal on February 10, 2016.
was filed on March 1, 2018.
jurisdiction
over
The instant action
The fact that plaintiff filed a habeas
action in this court in 2016 seeking to have the 2014 indictment
dismissed with prejudice did not serve to toll the running of the
statute of limitations against the State of Ohio and the individual
defendants for purposes of the instant §1983 action.
The court
agrees that plaintiff’s claims are barred by the statute of
10
limitations.
VI. Habeas Corpus Relief
To the extent that plaintiff seeks an order declaring that his
state court conviction was obtained in violation of his federal
constitutional rights, the magistrate judge found that his sole
remedy is habeas corpus. See Skinner v. Switzer, 562 U.S. 521, 525
(2011); Heck v. Humphrey, 512 U.S. 477, 487 (1994).
A convicted
criminal defendant cannot bring a §1983 claim if a judgment on the
claim would necessarily imply the invalidity of his criminal
conviction and that conviction has not been set aside.
Heck, 512
U.S. at 487.
Plaintiff’s previous habeas petition contained only claims
challenging the dismissal without prejudice of the 2014 indictment.
This petition was dismissed because plaintiff was not in custody
based on that indictment.
Of interest is the fact that plaintiff
objected to the dismissal of the habeas petition on this ground,
arguing
that
if
his
challenge
to
the
2014
indictment
was
successful, this would also result in the dismissal of the charges
against him on the 2000 indictment to which he pleaded guilty. See
Case No. 2:16-cv-435, Doc. 16, pp. 2-3.
In the instant case, the
magistrate judge concluded that plaintiff was seeking relief from
the 2014 indictment only as a means to fatally undermine the
constitutionality of his guilty plea to the 2000 indictment.
Doc. 5, p. 10.
seeking
a
granted
by
The magistrate judge also noted that plaintiff is
declaratory
the
See
Ohio
judgment
trial
that
judge
the
various
violated
provisions of his IAD detainer agreement.
the
continuances
speedy
trial
The magistrate judge
observed that this relief would necessarily implicate the validity
11
of his plea to the 2000 indictment and his criminal conviction.
In his objection, plaintiff states that he did not intend for
this court to provide relief of any sort for the 2000 case, which
he says he is still litigating in state courts.
Doc. 6, p. 3.
He
also asks this court not to make any findings concerning the 2000
case.
Doc. 6, p. 6.
However, in his complaint, plaintiff alleges
that the 2000 case violated the IAD’s 180-day speedy trial time.
Doc. 1-2, p. 9.
Plaintiff further alleges that if the 2014 case
had been dismissed with prejudice, that would have made his
conviction and sentence in the 2000 case impossible on double
jeopardy grounds, and he would not have entered his guilty plea.
Doc. 1-2, pp. 10-11.
Plaintiff also requests a declaration that
the trial judge violated the IAD by dismissing the 2014 case
without prejudice.
Doc. 1-2, p. 20.
Thus, it appears that
plaintiff’s IAD claims with respect to the 2014 indictment may also
impact the validity of his 2000 conviction.
The court agrees with
the magistrate judge that to the extent that plaintiff’s claims
would also implicate the validity of his 2000 conviction, his
appropriate remedy would be to file a habeas petition.
VII. Waiver of IAD Claim
The magistrate judge also found that plaintiff’s claim that
the dismissal without prejudice of the 2014 indictment violated the
IAD was waived by plaintiff’s entry of an unconditional guilty
plea.
The same can be said in regard to any claim that plaintiff’s
conviction under the 2000 indictment is invalid due to alleged IAD
speedy
trial
violations.
The
Sixth
Circuit
has
held
that
violations of the IAD speedy trial provisions are waived by the
entry of a guilty plea.
See Kowalak v. United States, 645 F.2d
12
534, 537 (6th Cir. 1981).
plaintiff
has
not
Further, as the magistrate judge noted,
alleged
any
prejudice
resulting
dismissal without prejudice of the 2014 indictment.
from
the
The complaint
does not allege that the State of Ohio has taken any steps to
revive this indictment or to re-indict plaintiff on those charges.
Because plaintiff’s alleged IAD violations were waived by his entry
of an unconditional guilty plea, they do not state a claim under
§1983.
VIII. Rooker-Feldman Doctrine
Although the magistrate judge did not address this issue, the
court further finds, on de novo review, that insofar as plaintiff
is seeking to challenge the judgment of conviction on the 2000
indictment and the judgment dismissing the 2014 indictment, his
claims are barred under the Rooker-Feldman doctrine. See Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923), and Dist. of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983). Federal district
courts do not stand as appellate courts for decisions of state
courts.
Id.
Rather, the Supreme Court is vested with exclusive
jurisdiction over appeals from final state-court judgments.
v. Dennis, 546 U.S. 459 (2006).
Lance
Although the Rooker-Feldman
doctrine does not apply to independent claims of injury against a
third party involving a previously litigated matter, it does
prevent a federal court from exercising jurisdiction over a claim
alleging error in a state court decision, including attacks on a
state court’s alleged procedural errors.
Hall v. Callahan, 727
F.3d 450, 453-54 (6th Cir. 2013).
Plaintiff previously litigated his IAD speedy trial claims in
his direct appeal from his conviction. See 2:16-cr-435, Doc. 10-1,
13
Ex. 12 (plaintiff’s pro se brief).
The state court of appeals
rejected plaintiff’s speedy trial arguments and held that because
plaintiff entered a guilty plea to the charges, the speedy trial
See Hertel, 2015 WL
issues raised in his brief were waived.
1403147,
*2-3.
The
Ohio
Supreme
jurisdiction of the appeal.
Court
declined
to
accept
Hertel, 143 Ohio St.3d at 1466.
Plaintiff could have filed a petition to appeal this judgment to
the Supreme Court, but did not do so.
Plaintiff also filed a
motion on August 18, 2014, asking the trial court to vacate the
order dismissing the 2014 indictment and to dismiss that indictment
with prejudice.
Plaintiff litigated this matter in the state
courts, but filed no petition to appeal the matter to the Supreme
Court after he was denied relief by the Ohio courts.
To the extent
that plaintiff seeks to vacate the judgment of conviction on the
2000 indictment and the order dismissing the 2014 indictment, this
court has no jurisdiction to entertain such claims in this §1983
action.
IX. Conclusion
In accordance with the foregoing, plaintiff’s objection (Doc.
6) is denied. The court adopts the report and recommendation (Doc.
5).
This
action
is
hereby
dismissed
pursuant
to
28
U.S.C.
§1915(e)(2)(B)(ii) for failure to state a claim for which relief
may be granted.
Date: August 16, 2018
s/James L. Graham
James L. Graham
United States District Judge
14
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