Cunningham v. O'Conner et al

Filing 9

SUPPLEMENTAL REPORT AND RECOMMENDATIONS re 6 - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the case be dismissed with prejudice and that this Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/8/2013. Signed by Magistrate Judge Michael R Merz on 7/22/2013. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARON N. CUNNINGHAM,

:

Plaintiff,

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Case No. 3:13-cv-209

vs -

:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

THE HONORABLE MAUREEN O’CONNOR,
et al.,

Defendants.

:

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Plaintiff’s Objections (Doc. No. 7) to the Magistrate
Judge’s Report and Recommendations recommending that this case be dismissed with prejudice
(Doc. No. 6).

Judge Black’s has recommitted the case to the Magistrate Judge for

reconsideration in light of the Objections (Doc. No. 8).
Plaintiff filed this § 1983 action against The Honorable Maureen O’Connor, Chief Justice
of the Ohio Supreme Court, and Phil Plummer, Sheriff of Montgomery County, Ohio, in both
their individual and official capacities.
Plaintiff avers that he is being detained in the Montgomery County Jail in Sheriff
Plummer’s custody and “has not been afforded his right to adequate legal representation and/or
access to adequate legal materials to represent himself.” (Complaint, Doc. No. 5, PageID 17.)
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He asserts that “the State provides money to all counties in Ohio to make sure that all inmates
detained in the State have adequate legal representation and access to adequate law materials
and/or law library for inmates to research and/or represent themselves if they choose which is
our right. Id. He accuses the Ohio Supreme Court and the Montgomery County Jail of failing to
enforce and uphold the United States Constitution as it relates to defense of indigent criminal
defendants. Id. at PageID 18.
The Magistrate Judge recommended that claims for injunctive relief against the Ohio
Supreme Court be dismissed because that Court does not have responsibility for direct
management of the legal services provided to indigent defendants. Rather, its responsibility is
limited to deciding ethical complaints against Ohio attorneys and deciding claims of ineffective
assistance of trial counsel or appellate on review of decisions of trial courts. Plaintiff objections
ask rhetorically: if the Ohio Supreme Court does not have this responsibility, who does? He
accuses the Ohio Supreme Court of “stand[ing] by while the damage to our cases and effective
defense has been done. . .” (Objections, Doc. No. 7, PageID 30.) It is simply not the clearly
established constitutional law of the United States that a state supreme court can be sued because
the county public defender organization, designated by the General Assembly to perform the
function, is not providing an indigent defendant with the kind of service he wants. No case law
known to the Magistrate Judge places anything like this responsibility on state supreme courts.
The Report recommends that any claim for money damages against Chief Justice
O’Connor in her official capacity be held barred by the Eleventh Amendment and any claims
against her individually be found barred by judicial immunity. Plaintiff objects that
In a Commonwealth there is no Absolute Immunity for her nor any
other judge. Neither is there under U.C.C. 15 and if anyone
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believes their [sic] immune then let them look at case laws where
judges were arrested right on the bench and/or sued for believing
and thinking they could do what they wanted, not uphold the
Constitution and/or stand by and watch American citizens rights be
violated without enforcing or challenging those guilty of such
injustice.

(Objections, Doc. No. 7, PageID 32.) Our system of government is not a “commonwealth,” but a
federal republic; its highest law is the United States Constitution which, in its Eleventh
Amendment, prohibits suits against States or state officials acting in their official capacities for
money damages. Papasan v. Allain, 478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1
(1890); Edelman v. Jordan, 415 U.S. 651 (1974); Florida Dep't. of State v. Treasure Salvors,
Inc., 458 U.S. 670 (1982).
As far as judicial immunity of Chief Justice O’Connor for acts done or not done in her
judicial capacity, the law has been clear that she is immune for well over a century. The
common law absolute immunity of judges was first recognized in this country in Bradley v.
Fisher, 80 U.S. (Wall) 335 20 L. Ed. 646 (1872). It was explicitly extended to actions under 42
U.S.C. § 1983 in Pierson v. Ray, 386 U.S. 547 (1967), and Stump v. Sparkman, 435 U.S. 349
(1978). U.C.C. 15 has nothing to do with the case.
The Report also recommends dismissing any claim against the Montgomery County Jail
because it is not a separate suable entity. Cunningham responds that “[n]o court has ever held a
hearing with federal jururs [sic] to prove that I Laron N. Cunningham am a separate legal entity
or a corporation. . .” Of course Plaintiff claims many times in the course of the Complaint and
the Objections to be an individual American citizen with rights. The fact that Mr. Cunningham
has been sued as a natural person does nothing to prove that the Montgomery County Jail is
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suable. Plaintiff also claims without any authority that adding “et al.” to Sheriff Plummer’s
name is a “corporate mark” which somehow makes Plummer suable in both his individual and
official capacities. No authority to that effect is known to the Magistrate Judge.
The Report recommended dismissing claims against Sheriff Plummer in his individual
capacity because there was no allegation he had done anything personally to violate the
Plaintiff’s rights. Cunningham says he means to allege that Plummer
as well as the other defendants [of whom there are none except
Chief Justice O’Connor] has done anything up to now or years past
to ensure and/or enforce a level field for accused criminals by
giving us or taking the initiative to provide us with adequate legal
material and law library to stand a fair chance at equal protection
by way of law, the knowledge thereof.

(Objections, Doc. No. 7, PageID 37.) Plummer’s name, he points out, is on the “front of our
inmate handbook.” Id.
§ 1983 does not permit the imposition of liability on a superior for constitutional failings
of his subordinates. Heyne v. Metro. Nashville Pub. Schs, 655 F.3d 556 (6th Cir. 2011).
As pointed out in the Report, Montgomery County has chosen to provide defense services
to indigent criminal defendants by having a public defender system. That is not good enough for
Mr. Cunningham. He claims a right to law books so that he can second-guess his attorney, but
the Constitution does not require that. He claims a right to legal representation equal to what the
wealthiest defendant could afford, but the Constitution does not require that. He discourses at
some length about his disagreements with his present attorney, but this Court is without power to
force her to do as he wishes or the inclination to second-guess her representation until it is
presented to us in a habeas corpus case.
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Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the case be dismissed with prejudice and that this Court certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.

July 22, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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