Good v. Sinnott et al

Filing 6

REPORT AND RECOMMENDATIONS granting #3 MOTION for Leave to Proceed in forma pauperis. Having performed the initial screen, it is RECOMMENDED that Plaintiff's #5 Complaint be DISMISSED. Objections to R&R due by 9/21/2021. Signed by Magistrate Judge Kimberly A. Jolson on 9/7/2021. (kk2)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification)

Case: 2:21-cv-04188-MHW-KAJ Doc #: 6 Filed: 09/07/21 Page: 1 of 7 PAGEID #: 27

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOWARD E. GOOD,

Case No. 2:21-cv-4188
Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson

Plaintiff,
v.
REBEKAH SINNOTT, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s Revised Motion for Leave to Proceed in forma
pauperis. (Doc. 3). Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial
officers who render services in this action shall do so as if the costs had been prepaid. 28 U.S.C.
§ 1915(a). Having performed an initial screen, the Undersigned RECOMMENDS Plaintiff’s
Complaint (Doc. 1-1) be DISMISSED.
I.

BACKGROUND
Plaintiff Howard E. Good, who is proceeding pro se, brings this action against Rebekah

Sinnott, the Clark County Public Defender’s Office (“CCPD”) and its Director Jim Marshall
(“Director Marshall”). (See generally Doc. 1-1). The allegations in the Complaint stem from
Plaintiff’s ongoing criminal case in the Clark County Court of Common Pleas. (Id. at 3). Plaintiff
alleges that “on or about June 30, 2021, [Ms. Sinnott] shared information protected by attorney
client privilege and thus sabotaged [his] legal position.” (Id.). The information at issue was video
footage relevant to Plaintiff’s arrest for felonious assault, which he alleges was “extremely harmful
and prejudicial[.]” (Id.). Plaintiff claims Ms. Sinnott violated attorney-client privilege when she
shared this video with the state, because “the state did not know [the] video ever existed[.]” (Id.).

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Plaintiff further alleges Ms. Sinnott “sabotaged [his] legal position” by requesting a continuance,
despite him wanting to proceed to trial. (Id. at 4). This “manipulation,” Plaintiff claims, resulted
in his criminal case not being dismissed. (Id. at 5). In regard to Defendants CCPD and Director
Marshall, Plaintiff alleges each “failed to instruct, supervise and discipline its employees on a
continuing basis and so under color of law violated [his] constitutional rights.” (Id. at 4). Plaintiff
seeks $750,000 in compensatory damages, $750,000 in punitive damages and “any and all other
damages [the] Court deems appropriate.” (Id. at 6).
Plaintiff filed his Complaint on August 17, 2021 (Doc. 1-1) along with a Motion for Leave
to Proceed in forma pauperis (Doc. 1). Upon review of that Motion, the Court could not determine
how Plaintiff supports himself, and directed him to file a revised motion. (Doc. 2). Plaintiff filed
that revised Motion (Doc. 3), and the Court is now satisfied he meets the standard governing a
motion to proceed in forma pauperis. See Adkins v. E.I. DuPont de Nemours & Co., Inc., 335 U.S.
331 (1948). Accordingly, the Court now conducts an initial screen of Plaintiff’s Complaint (Doc.
1-1) pursuant to 28 U.S.C. § 1915(e)(2).
II.

STANDARD
Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth
“a short and plain statement of the claim showing that the pleader is entitled to relief.” In reviewing
his Complaint, the Court must construe it in favor of Plaintiff, accept all well-pleaded factual
allegations as true, and evaluate whether it contains “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that consists of
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is
insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be
construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are
still required, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III.

DISCUSSION
Plaintiff’s claim fall into two categories.

First, he alleges Ms. Sinnott violated his

constitutional rights by “sabotage[ing] [his] legal position” in his criminal case. (See generally
Doc. 1-1). More specifically, he alleges that in the course of her representation, Ms. Sinnott
“shared information protected by attorney client privilege[,]” and ignored Plaintiff’s objections to
a continuance, which prevented his case from being dismissed. (Id. at 3–5). Secondly, Plaintiff
alleges Director Marshall and CCPD “failed to instruct, supervise, and discipline” Ms. Sinnott,
which resulted in a violation of his constitutional rights. (Id. at 4). The Court addresses each claim
in turn.
A. Claims Against Ms. Sinnott
Plaintiff’s claims against Ms. Sinnott must be dismissed as they “fail to state a claim upon
which relief can be granted.” 28 U.S.C. § 1915(e)(2). To state a cause of action under § 1983, a
plaintiff must allege: “(1) a deprivation of a right secured by the Constitution or law of the United
States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist.
Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted).

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“Public defenders are not liable to suit under § 1983 because public defenders do not act
under color of state law when representing indigent clients in criminal proceedings.” Warren v.
Holland, No. 4:08-cv-56-M, 2009 WL 1362296, at *4 (W.D. Ky. May 14, 2009) (citing Polk
County v. Dodson, 454 U.S. 312, 325 (1981)) (“[A] public defender does not act under color of
state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal
proceeding.”). Accordingly, Plaintiff’s claims against Ms. Sinnott fail because, in her role as
criminal defense counsel, she was not acting under the color of state law.
Further, because Plaintiff alleges liability on the part of Ms. Sinnott only in connection
with her activities as his appointed counsel, the exceptions the Supreme Court and the Sixth Circuit
have recognized when a public defender may be sued under § 1983, do not apply. Cf. Powers v.
Hamilton Cnty. Public Defender Comm’n, 501 F.3d 592, 612 (6th Cir.2007) (holding public
defender was subject to liability under § 1983 where the allegations supported a finding that the
challenged action was “administrative in nature”).
Finally, to the extent Plaintiff is challenging his detention due to an alleged ineffectiveness
of his public defender, such a claim is not cognizable under § 1983. Warren, 2009 WL 1362296,
at *4. “If Plaintiff desires to raise such a claim in federal court, he may do so by bringing a habeas
action under 28 U.S.C. § 2254 after exhaustion of his state-court remedies.” Id. Accordingly, the
Undersigned RECOMMENDS that the claims against Ms. Sinnott be DISMISSED.
B. Claims Against CCPD and Director Marshall
Next, Plaintiff alleges CCPD and Director Marshall “failed to instruct, supervise, and
discipline [Ms. Sinnott] on a continuing basis” which resulted in a violation of his constitutional
rights. (Doc. 1-1 at 4). Notably, Plaintiff does not offer anything other than this assertion in
support of his claims against these remaining Defendants.

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In regard to CCPD, “a public defender’s office is not a ‘person’ within the meaning of §
1983.” Newell v. Montgomery Cty. Pub. Def’s Off., No. CIV.A. 3 09 0440, 2009 WL 1392838,
*2 (M.D. Tenn. May 18, 2009) (citing Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)).
Accordingly, because CCPD is not a “person acting under color of state law[,]” Plaintiff’s § 1983
claim against it fails as a matter of law. Furthermore, Plaintiff has alleged no facts which would
show CCPD maintained any “unconstitutional policy or custom.” See Powers, 501 F.3d at 612
(holding public defender’s office was subject to liability under § 1983 where the allegations
supported a finding that the challenged action stemmed from an “unconstitutional policy or
custom”).

The Undersigned therefore RECOMMENDS the claims against CCPD be

DISMISSED.
Plaintiff’s claim against Director Marshall for failing to “instruct, supervise and discipline”
Ms. Sinnott, similarly fails. “The law is well established that actions brought against state actors
cannot be maintained on a theory of respondeat superior, unless the defendant was personally
involved in the alleged violations of the plaintiff’s constitutional rights.” Newell, 2009 WL
1392838 at *2 (citing Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir. 1995)). In other words,
for Director Marshall to be vicariously liable, he must have “encouraged . . . directly participated
. . . authorized, approved or knowingly acquiesced . . .” in the alleged constitutional violation.
Shehes v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
Plaintiff has alleged no facts illustrating that Director Marshall was directly responsible for
any of the alleged actions of Ms. Sinnott. Nor does he allege Director Marshall acted “pursuant to
a policy or custom” attributable to CCPD that violated his constitutional rights. Newell, 2009 WL
1392838 at *2 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 122 (1992)). As a

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result, Plaintiff’s allegations against Director Marshall fails to state a claim upon which relief can
be granted and the Undersigned RECOMMENDS that the claims against him be DISMISSED.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s request to proceed in forma pauperis is GRANTED,

and the Undersigned RECOMMENDS Plaintiff’s Complaint (Doc. 1-1) be DISMISSED.
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). 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). The parties are further advised
that, if they intend to file an appeal of any adverse decision, they may submit arguments in any
objections filed, regarding whether a certificate of appealability should issue.
IT IS SO ORDERED.

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Date: September 7, 2021

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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