Grier v. Wiseman et al, No. 1:2011cv00427 - Document 3 (N.D. Ohio 2011)

Court Description: Memorandum Opinion and Order: This action is DISMISSED pursuant to 28 U.S.C. § 1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith. Judge Patricia A. Gaughan on 4/11/11. (LC,S) re 1 Modified on 4/12/2011 (LC,S).

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Grier v. Wiseman et al Doc. 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION WILLIE D. GRIER, Plaintiff, v. RUSSELL B. WISEMAN, et al., Defendants. ) ) ) ) ) ) ) ) ) CASE NO. 1:11CV0427 JUDGE PATRICIA A GAUGHAN MEMORANDUM OF OPINION AND ORDER Introduction This matter is before the Court upon plaintiff’s se Complaint (Doc. 1). For the ollowing pro f reasons, the Complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e). Facts Plaintiff pro se Willie D. Grier filed this action against Crawford County, Ohio Com mon Pleas Court Judge Russell B. W iseman, Crawford County Assistant Prosecutor Clifford J. Murphy, and Court Reporter Jamie L Pellegrino. The Com plaint alleges that on June 17, 2009, Judge W iseman accepted plaintif f’s plea agreement. A transcript ofthe change of plea hearing submitted by plaintiff shows that in exchange for his plea, plaintiff would be sentenced to one year in prison in connection with drug charges. Judge Wiseman advised pl aintiff that he would be sentenced upon com pletion of a presentence investigation. Plaintiff alleges that notice of the se tencing date was issued to the attorneys on July n 29, 2009, but that he never received notice because he was “at odds” with his attorney. Plaintiff was sentenced on March 1, 2010. Plaintiff alleges tht his plea agreement was “vacated ... to fulfill a Dockets.Justia.com a contraual [sic] term of an inconsequential pre-sentence investigation,” and that Judge Wiseman sentenced him for failure to appear, without anndictment, based on the prosecutor’s statem i ent. The sentencing transcript, submitted by plaintiff, shows that the prosecutor wit drew the plea agreem h ent based on plaintiff’s leaving the area for m than six months. Judge Wiseman found that the State ore was not bound to the plea agreement due to plaintiff’s failure to appear for his original sentencing. After plaintiff agreed to go forw with the sentencing, Judge W ard iseman sentenced him to two years imprisonment on the drug charges, taking into consideration plaintiff’s criminal history. Plaintiff further alleges that defendant Pellegrino failed to pr oduce a complete transcript of the change of plea hearing. Discussion Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197(6th Cir. 1996). For the reasons stated below, this action is dism issed pursuant to section 1915(e). It is well-established that judges are im mune from liability for actions taken within the scope of their official duties. Pierson v. Ray, 386 U.S. 547 (1967). This is true even if a judge acts erroneously, corruptly, or in excess of jurisdiction.Stump v. Sparkman, 435 U.S. 349 (1978). W hen the function complained of is truly a judicial act, judicial immunity applies. Yarbrough v. Garrett, 579 F.Supp.2d 856, 860 (E.D. Mich. 2008)(citingBush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994)). -2- There are no facts alleged reasonably suggesting Judge W iseman acted outside the scope of his official duties in presiding over plaintiff’s change of plea or sentencing. Therefore, he is immune from liability. Prosecutors are absolutely immune from liability under § 1983 for their conduct as long as that conduct is intim ately associated wi th t he j udicial phase of the crim inal process. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). “The analytical key to prosecutorial im munity ... is advocacywhether the actions in question are those of an advocate.”Skinner v. Govorchin, 463 F.3d 518, 525 (6th Cir. 2006) (citations and internal quotation m arks om itted). There is no indication in the Complaint that Assistant Prosecutor Murphy acted outside of the scope of his responsibilities in prosecuting plaintiff’s case. Therefore, he is likewise immune from suit. In Antoine v. Byers & Anderson, 508 U.S. 429 (1993), the Supr eme Court held that court reporters are not entitled to absolute, quasi-judicialimmunity, based on the fact that their duties are ministerial, not discretionary in nature.Id., 508 U .S. at 436-437. An excep occurs when a court tion reporter acts at the direction of a judge atwhich time qualified immunity applies. White v. Saginaw County, 2008 WL 5273594, 4 (E.D.Mich. Dec. 17, 2008) (citing Green v. Maraio, 722 F.2d 1013, 1018 (2nd Cir.1983) ). See Ralph v. Mackowiak, 2010 WL 4977042, 3 (W.D.Mich. Dec. 2, 2010) (court reporter is entit led to quasi- judicial im munity when acting within the scope of his or her official duties). Plaintif states in his Com f plaint that the court reporter did not transcribe a com plete version of his change of plea hearing because she allowed Judge Wiseman to confiscate the video disc a nd ma nipulate the proceedings. On this basis, the court reporter’s alleged conduct was controlled by the judge and quasi- judicial immunity applies. For the foregoing reasons, the Com plaint fails to state a claim upon which relie f can be -3- granted. Conclusion Accordingly, this action is DISMISSED pursuanto 28 U.S.C. § 1915(e). The ourt certifies, t C pursuant to 28 U.S.C. § 1915(a)(3) that an appeal om this decision could not be taken in good faith. fr IT IS SO ORDERED. Dated: 4/11/11 /s/ Patricia A. Gaughan PATRICIA A.GAUGHAN UNITED STATES DISTRICT JUDGE -4-

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