Fells v. Depue et al

Filing 4

ORDER AND REPORT AND RECOMMENDATIONS granting #1 MOTION for Leave to Proceed in forma pauperis. It is recommended that the Court DISMISS the Complaint in its entirety pursuant to 28 USC 1915(e)(2)(B). It is further RECOMMENDED that any appeal in this matter not be taken in good faith and that Plaintiff may not proceed on appeal in forma pauperis. Objections to R&R due by 8/15/2022. Signed by Magistrate Judge Kimberly A. Jolson on 8/1/2022. (kk2)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification)

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 1 of 8 PAGEID #: 130

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JEANETTE K. FELLS,
Plaintiff,
v.

Case No. 2:22-cv-2639
Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson

ERIC DEPUE, et al.,
Defendants.
ORDER and
REPORT AND RECOMMENDATION
Jeanette K. Fells, formerly an inmate at the Licking County Justice Center, has submitted
a civil rights complaint to this Court. (Doc. 1-1). She has also filed an Application to Proceed In
Forma Pauperis and without prepayment of the filing fees. (Doc. 1). The case has been referred
to the Undersigned pursuant to 28 U.S.C. § 636(b) and General Order 22-05 regarding assignments
and references to United States Magistrate Judges.
For the reasons discussed below, the Undersigned GRANTS Plaintiff’s Application to
Proceed In Forma Pauperis. (Doc. 1). Having performed an initial screen of Plaintiff’s Complaint
(Doc. 1-1), the Undersigned RECOMMENDS that the Court DISMISS the Complaint in its
entirety pursuant to 28 U.S.C. § 1915(e)(2)(B).
I.

Application to Proceed In Forma Pauperis
Plaintiff’s Application and supporting affidavit reflect that she lacks the funds to pay the

costs for filing this matter or to give security for such costs. (Doc. 1). Accordingly, Plaintiff’s
Application to Proceed In Forma Pauperis is GRANTED. 28 U.S.C. § 1915(a)(1). It is
ORDERED that Plaintiff be allowed to prosecute her action without payment of fees or costs and
that judicial officers who render services in this action shall do so as if the costs had been prepaid.

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 2 of 8 PAGEID #: 131

II.

Initial Screening Standard
Because Plaintiff is permitted to proceed in forma pauperis, the Court must review her

Complaint and dismiss it, or any portion of it, that 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).
To state a claim for relief, a complaint must set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Court must
construe the complaint in plaintiff’s favor, accept all well-pleaded factual allegations as true, and
evaluate whether the complaint 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 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). However, 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).
In the interest of justice, this Court is also required to construe a pro se complaint liberally
and to hold it “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) and citing
Fed. R. Civ. P. 8(f) [now (e)]). Even with such a liberal construction, a pro se complaint must still
adhere to the “basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Specifically, a pro se “complaint ‘must contain either direct or inferential allegations respecting
all the material elements’ to recover under some viable legal theory.” Barhite v. Caruso, 377 F.
App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)).

2

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 3 of 8 PAGEID #: 132

In addition, “[t]he Sixth Circuit ‘has consistently held that damage claims against
government officials arising from alleged violations of constitutional rights must allege, with
particularity, facts that demonstrate what each defendant did that violated the asserted
constitutional right.’” Reid v. City of Detroit, No. 18-13681, 2020 WL 5902597, at *6 (E.D. Mich.
Oct. 5, 2020) (quoting Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008)) (emphasis in
original). “Merely listing names in the caption of the complaint and alleging constitutional
violations in the body of the complaint is not enough to sustain recovery under § 1983.” Gilmore
v. Corr. Corp. of Am., 92 F. App’x 188, 190 (6th Cir. 2004) (citing Flagg Bros. v. Brooks, 436
U.S. 149, 155-57 (1978)). Thus, “[w]here a person is named as a defendant without an allegation
of specific conduct, the complaint is subject to dismissal, even under the liberal construction
afforded to pro se complaints.” Catanzaro v. Harry, 848 F. Supp. 2d 780, 791 (W.D. Mich. 2012).
III.

Parties and Claims
The Plaintiff here, Jeanette K. Fells, was formerly a defendant in a criminal matter in the

Licking County, Ohio, Court of Common Pleas. (Doc. 1-1, PageID 6; Doc. 2, PageID 20). She
was also previously an inmate at the Licking County Justice Center. (Doc. 1-1, PageID 6; Doc. 2,
PageID 26). It appears that Plaintiff is not in custody at this time and that the Licking County
criminal case against her has been dismissed. (See Doc. 1-1, PageID 6 (“After serving another 47
days in jail my case was some how dismissed”)). In the case before this Court, Plaintiff sues for
damages “for time spent in jail and on bond.” (Doc. 1-1, PageID 7). She also seeks “damages
from paying $20,000 cash surety” in the criminal matter. (Id.).
The Complaint is brief, and the claims in it are not entirely clear. Plaintiff appears to assert
that she was not brought to trial in the criminal case within the appropriate time. (Doc. 1-1, PageID
6 (“I was in and outta jail from 06/2009 – 07/05/2020 without any rights to speedy trial”); see also

3

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 4 of 8 PAGEID #: 133

Civil Cover Sheet, Doc. 1-4, PageID 16 (“I was denied rights to speedy trial while detained in
Newark, OH jail.”)). She also mentions that she was forced to undergo a mental health evaluation,
and that she was given an O.R. (own recognizance) bond but not allowed to “be on bond freely,”
and was “required to travel back and forth from Columbus to Newark for Adult Court Services.”
(Doc. 1-1, PageID 6). She says she was arrested on a warrant in July 2020, and her case was
dismissed 47 days later. (Id.).
Plaintiff names two defendants in this case: Eric Depue, who was apparently an assistant
prosecuting attorney in her criminal case, and Jeffrey Ronan, a Sheriff’s Deputy at the Licking
County Justice Center. (Doc. 1-1, PageID 5-6; Doc. 2, PageID 18, 20-21, 26, 33-34). There are
few details in the Complaint about how these Defendants were personally involved in Plaintiff’s
current claims. The only direct allegation is against Deputy Ronan: Plaintiff alleges that on June
13, 2019, Deputy Ronan “claimed that I assaulted him with my food tray during collection of
dinner trays.” (Doc. 1-1, PageID 6). It is implied that this assault was the basis for Plaintiff’s
criminal prosecution in Logan County. Some additional context is provided in a number of
documents Plaintiff has separately filed on the docket. (See Doc. 2, 2-1, 2-2 (appearing to include,
among other things, a bill of particulars and other filings in the criminal case, as well as discovery
exchanged in that case, such as an incident report, photographs, and detectives’ reports)).
Although it does not specify, the Undersigned construes the pro se Complaint as raising
claims under 42 U.S.C. § 1983. “Section 1983 authorizes a ‘suit in equity, or other proper
proceeding for redress,’ against any person who, under color of state law, ‘subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution.’” Nelson v. Campbell, 541 U.S. 637, 643 (2004). To
state a cause of action under Section 1983, a plaintiff must allege: “(1) a deprivation of a right

4

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 5 of 8 PAGEID #: 134

secured by the Constitution or laws 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). Upon review, the Undersigned concludes that Plaintiff has not stated a plausible
claim against either Prosecutor Depue or Deputy Ronan.
IV.

Discussion
A.

Prosecutor Depue

Plaintiff does not articulate specific factual allegations against Prosecutor Depue or link
her assertions to any particular acts by him. (Doc. 1-1, PageID 6). It appears that she seeks to
raise a claim that her right to a speedy trial was violated in the Licking County criminal case. (Doc.
1-1, PageID 6). See generally Joseph v. Hampton, No. 2:15-cv-85, 2015 WL 3562547, at *3 (S.D.
Ohio June 5, 2015), report and recommendation adopted, 2015 WL 4720105 (S.D. Ohio Aug. 6,
2015) (construing a similar allegation to raise a claim under the Sixth Amendment). She may also
fault him for the conditions of her bond or her arrest on a warrant. (Id.). None of these allegations
should proceed past this initial screen. 28 U.S.C. § 1915(e)(2)(B).
Prosecutors are “absolutely immune from liability” for actions they take that are
“intimately associated with the judicial phase of the criminal process.” Van de Kamp v. Goldstein,
555 U.S. 335, 341 (2009) (citation and quotation marks omitted). There are some narrow
exceptions to this immunity, see id. at 343, but nothing in the Complaint implicates them. “The
analytical key to prosecutorial immunity is whether the actions in question are those of an
advocate.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 514 (6th Cir. 2019) (cleaned
up). In other words, if “the conduct was ‘undertaken in connection with [his or her] duties in
functioning as a prosecutor,’” a prosecutor is immune. Id. at 513 (quoting Skinner v. Govorchin,
463 F.3d 518, 525 (6th Cir. 2006)).

5

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 6 of 8 PAGEID #: 135

Here, Prosecutor Depue is apparently sued because he was involved in Plaintiff’s criminal
case. (Doc. 1-1, PageID 6; see also Doc. 2, PageID 18, 20-21). His actions with respect to that
case, such as advocating for a particular outcome, are, definitionally, undertaken in connection
with his duties as a prosecutor. Thus, Prosecutor Depue is absolutely immune from suit and all
the claims against him should be dismissed.
B.

Deputy Ronan

The only allegation in the Complaint against Deputy Ronan is that he said Plaintiff
assaulted him on June 13, 2019. (Doc. 1-1, PageID 6). Notably, Plaintiff does not dispute that
she assaulted him or claim that his statement was false.1 There is likewise no allegation in the
Complaint that Deputy Ronan was involved in the resulting court proceedings after the alleged
assault or that he was responsible for the speedy trial, bond, or other identified issues in the
criminal case. Even construing pro se Complaint liberally, the Undersigned is unable to discern
in the single allegation against Deputy Ronan any plausible claim that he violated Plaintiff’s
federal or constitutional rights. See Twombly, 550 U.S. at 570 (a complaint must include “enough
facts to state a claim to relief that is plausible on its face” to proceed).
The claim against Deputy Ronan should be dismissed for another reason: it was filed too
late and is barred by the statute of limitations. The statute of limitations, or time limit, for bringing
a § 1983 action is the state’s general statute of limitations for personal injury claims. Owens v.
Okure, 488 U.S. 235, 236 (1989). In Ohio, this statute of limitations is two years from when the
claim accrued. See Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007); Harris v. German
Twp., No. 3:19-cv-341, 2022 WL 866815, at *5 (S.D. Ohio Mar. 23, 2022). A claim accrues

1

The documents Plaintiff separately provided appear to substantiate Deputy Ronan’s statement. (See Doc. 2, 2-1, 22). The Undersigned makes no factual determination on this point, but instead accepts the allegations in the Complaint
as true. Twombly, 550 U.S. at 570.

6

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 7 of 8 PAGEID #: 136

“when the plaintiff knows or has reason to know of the injury which is the basis of [her] action.”
Harris, 2022 WL 866815, at *5 (citing Cooey, 479 F.3d at 416).
Plaintiff asserts that Deputy Ronan said she assaulted him on June 13, 2019. (Doc. 1-1,
PageID 6; see also Doc. 2, PageID 39 (the bill of particulars says this incident occurred on June
12, 2019)). The Complaint says that Plaintiff was in and out of jail starting in June 2019. (Doc.
1-1, PageID 6). She filed her Complaint approximately three years later, on June 29, 2022, after
the statute of limitations expired. (Doc. 1-1, PageID 7). Any § 1983 claim against Deputy Ronan
based on the June 13, 2019 incident was therefore filed too late. The claims against Deputy Ronan
should be dismissed.
V.

Conclusion
Plaintiff’s Application to proceed In Forma Pauperis (Doc. 1) is GRANTED. But her

Complaint fails to state a plausible claim under Section 1983 against Prosecutor Depue or Deputy
Ronan. The Undersigned therefore RECOMMENDS that the Court DISMISS the Complaint
(Doc. 1-1) in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B). Should the District Judge adopt
this recommendation, the Undersigned further RECOMMENDS that the District Judge find that
any appeal in this matter by Plaintiff would not be taken in good faith, and that Plaintiff may not
proceed on appeal in forma pauperis.
VI.

Notice Regarding Objections to this Report and Recommendation
If any party objects to this Report and Recommendation (“R&R”), the party may serve and

file specific, written objections to it within FOURTEEN (14) DAYS after being served with a
copy thereof. Fed. R. Civ. P. 72(b). All objections shall specify the portion(s) of the R&R objected
to and shall be accompanied by a memorandum of law in support of the objections. The Court
may extend the 14-day objections period if a timely motion for an extension of time is filed.

7

Case: 2:22-cv-02639-SDM-KAJ Doc #: 4 Filed: 08/01/22 Page: 8 of 8 PAGEID #: 137

A Judge of this Court will make a de novo determination of those portions of the R&R to
which objection is made. Upon proper objection, 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 R&R will result in a waiver
of the right to have the District Judge review the R&R de novo, and will also operate as a waiver
of the right to appeal the decision of the District Court adopting the R&R. See Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: August 1, 2022

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

8