Marcum v. Duchak et al
REPORT AND RECOMMENDATIONS - It is respectfully recommended that this case be dismissed as to Defendant Stacy Wall for failure to state a claim upon which relief can be granted. Signed by Magistrate Judge Michael R. Merz on 1/11/2018. (kpf)(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
WESTERN DIVISION AT DAYTON
STATE OF OHIO,
EX REL TED MARCUM,
- vs -
Case No. 3:17-cv-437
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
SHERIFF DAVE DUCHAK, et al.,
REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS
OF STACY WALL
This case is before the Court on Motion to Dismiss of Defendant Stacy Wall (ECF No. 4)
which Plaintiff opposes (ECF No. 5).
Defendant Wall’s Motion cites no particular authority for dismissal. Because the case has
been removed to federal court, the Motion must be evaluated under the Federal Rules of Civil
Procedure and this Court treats it as a motion to dismiss for failure to state a claim upon which
relief can be granted under Fed. R. Civ. P. 12(b)(6).
Attorney Wall notes that she is purportedly sued in her official capacity as an Assistant
Miami County Prosecutor but that she does not hold that office; rather, she is Law Director for the
City of Piqua, Ohio.
Plaintiff responds that to his knowledge Ms. Wall is the person who, on October 12, 2017,
advised him “to waive his right to counsel” in the case then pending before Judge Gutmann and
was also the person who first advised him of the failure of the Municipal Court to timely appoint
counsel for him. (ECF No. 5, PageID 271-72). He speculates that on the occasion in question,
Ms. Wall was sitting in for the assigned assistant county prosecutor. Marcum requests a full
evidentiary hearing on the Motion with the Court conducting what would include what would
amount to a lineup of Ms. Wall and Ms. Lenee Brosh so that Mr. Marcum can identify which of
them is the person to whom he is referring.
The gravamen of Marcum’s complaint against Ms. Wall is “that it is illegal, unethical, and
unconstitutional for prosecutors’ to approach criminally accused defendants to either incourage
[sic] or advise them to ‘waive’ their right to counsel.” (Complaint, ECF No. 2, PageID 184). At
a later point he alleges “”[i]t is also a conflict of interest as well as a structural error for any
prosecutor to give “legal advise [sic]” to a criminal defendant that may incourage [sic] a defendant
to forfeit any of his constitutional rights. . .” Id. at PageID 185.
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been stated by the Supreme Court
Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal Practice
and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading
must contain something more ... than ... a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action”),
on the assumption that all the allegations in the complaint are true
(even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d
338 (1989)(“ Rule 12(b)(6) does not countenance ... dismissals
based on a judge's disbelief of a complaint's factual allegations”);
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974) (a well-pleaded complaint may proceed even if it appears
“that a recovery is very remote and unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise
a claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by
the parties and the court.’” 5 Wright & Miller § 1216, at 233-234
(quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645
(D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo,
544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125
S.Ct. 1627; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289
F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by
designation) (“[S]ome threshold of plausibility must be crossed at
the outset before a patent antitrust case should be permitted to go
into its inevitably costly and protracted discovery phase”).
Twombly, 550 U.S. at 558; see also Association of Cleveland Fire Fighters v. City of Cleveland,
Ohio, 502 F.3d 545 (6th Cir. 2007).
42 U.S.C. § 1983, R.S. § 1979, the statute under which Mr. Marcum brought suit, was
adopted as part of the Act of April 20, 1871, and reads, as amended:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress , except
that in any action brought against a judicial officer, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
The statute creates a cause of action sounding essentially in tort on behalf of any person deprived
of a constitutional right by someone acting under color of state law. City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School District v.
Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978).
The question before the Court on the instant Motion to Dismiss is whether Mr. Marcum
has stated a plausible claim that Ms. Wall deprived him of his constitutional rights if she did what
he alleges she did. The answer is no. Whether or not it is unethical or “illegal” for a prosecutor
to give legal advice to a criminal defendant, it is not unconstitutional to do so. In fact it is a
common, even routine, practice for prosecutors to encourage defendants to waive their right to
counsel in the course of pleading guilty or no contest. A person constitutionally entitled to
appointed counsel cannot validly plead no contest without waiving his right to representation.
Whether or not receiving advice from a prosecutor to waive counsel renders the plea involuntary
is a question for Plaintiff to raise on appeal or later in habeas corpus in this case. But as pleaded
the claim against Ms. Wall does not state a claim upon which relief can be granted under 42 U.S.C.
It is therefore respectfully recommended that this case be dismissed as to Defendant Stacy
Wall for failure to state a claim upon which relief can be granted.
January 11, 2018.
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 mail. .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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?