[Cite as Presutto v. Hull, 2018-Ohio-3103.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JALEH PRESUTTO, et al.                               C.A. No.     17CA011218

        Appellees

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRADLEY HULL, IV, et al.                             COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellees                                    CASE No.   17CV192603

        and

CARL SULLIVAN, ESQ.

        Appellant

        and

MICHAEL O’MALLEY

        Appellant


                                 DECISION AND JOURNAL ENTRY

Dated: August 6, 2018



        TEODOSIO, Presiding Judge.

        {¶1}     Carl Sullivan and Michael O’Malley appeal the order of the Lorain County Court

of Common Pleas denying their motion to dismiss. We reverse and remand.

                                                I.

        {¶2}     In June 2017, Jaleh Presutto filed a complaint against various family members;

their attorneys, Bradley Hull IV, David Weilbacher, and Adam Fried; the Brecksville Police

Department; Mr. Sullivan, an assistant prosecutor for Cuyahoga County; Mr. O’Malley, an
                                                2


investigator employed by the Cuyahoga County Prosecutor’s Office; David Kessler, an

investigator employed by the Fairfield County Prosecutor’s Office; and others. In her complaint,

Ms. Presutto alleged claims of malicious prosecution, false imprisonment, defamation, and

intentional infliction of emotional distress against the various defendants. The case arose as part

of a dispute regarding the guardianship of Ms. Presutto’s mother, resulting in several court cases

among the family members. In 2015, Ms. Presutto had been indicted and arrested on charges of

kidnapping, abduction, aggravated theft, and telecommunications fraud. Ms. Presutto alleges the

defendants acted to bring false charges against her so that she would be removed as guardian for

her mother and another family member would be appointed, thereby giving them control of

family assets in a divorce case between her father and mother. The charges against Ms. Presutto

were eventually dismissed.

       {¶3}    In August 2017, Mr. Sullivan and Mr. O’Malley filed a motion to dismiss on the

basis of immunity, and Ms. Presutto filed a brief in opposition. In September 2017, the trial

court denied the motion to dismiss, stating:

       Plaintiff alleges that they were more personally involved in her prosecution than
       in their capacity as “quasi-judicial officers.” They did more than initiate a
       prosecution and present the case against her. As such, absolute immunity would
       not apply and her allegations of malice would fall under the exception to statutory
       immunity in [] R.C. 1744.03(A)(6)(b). It is too early in the court process to
       determine whether there is evidence to support this claim of whether Defendants
       can establish that they are immune from suit as a matter of law.

       {¶4}    Mr. Sullivan and Mr. O’Malley now appeal, raising one assignment of error. Ms.

Presutto has not filed an appellate brief in this matter, and this Court may therefore “accept the

appellant’s statement of the facts and issues as correct and reverse the judgment if appellant’s

brief reasonably appears to sustain such action.” App.R. 18(C).
                                                 3


                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT COMMITTED PREJUDICIAL AND REVERSIBLE
       ERROR BY DENYING APPELLANTS’ MOTION TO DISMISS.

       {¶5}    Mr. Sullivan and Mr. O’Malley argue the trial court erred by denying their motion

to dismiss. Specifically, they argue they are entitled to absolute immunity. We agree.

       {¶6}    “An appellate court reviews a trial court order granting a motion to dismiss

pursuant to Civ.R. 12(B)(6) under a de novo standard of review.” Hudson v. Akron, 9th Dist.

Summit No. 28011, 2017-Ohio-7590, ¶ 8, citing Perrysburg Twp. v. City of Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, ¶ 5.       “Dismissal is appropriately granted once all the factual

allegations of the complaint are presumed true and all reasonable inferences are made in favor of

the nonmoving party, and it appears beyond doubt that the nonmoving party cannot prove any set

of facts entitling him to the requested relief.” Natl. Check Bur. v. Buerger, 9th Dist. Lorain No.

06CA008882, 2006-Ohio-6673, ¶ 8, citing State ex rel. Hanson v. Guernsey Cty. Bd. of

Commrs., 65 Ohio St.3d 545, 548, 1992-Ohio-73. A plaintiff’s obligation to provide the grounds

of his entitlement to relief requires more than mere conclusions or a formulaic recitation of the

elements of a cause of action. Vagas v. City of Hudson, 9th Dist. Summit No. 24713, 2009-

Ohio-6794, ¶ 13, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Moreover,

conclusory statements in the complaint, not supported by facts are not afforded the presumption

of veracity.” Id., citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193 (1988). Thus, the

focus of our inquiry must be the facts alleged in the complaint. See id.

       {¶7}    “[I]t is well-settled common law in Ohio that prosecutors enjoy absolute

immunity from suit for acts committed in their roles as judicial officers.       Prosecutors are

considered ‘quasi-judicial’ officers, and as such they are entitled to absolute immunity when
                                                 4


their activities are ‘intimately associated with the judicial phase of the criminal process.’”

Thomas v. Bauschlinger, 9th Dist. Summit No. 26485, 2013-Ohio-1164, ¶ 16, quoting Hawk v.

Am. Elec. Power Co., 3d Dist. Allen No. 1-04-65, 2004-Ohio-7042, ¶ 8, quoting Willitzer v.

McCloud, 6 Ohio St.3d 447, 449 (1983). “The decision to initiate, maintain, or dismiss criminal

charges is at the core of the prosecutorial function.” Id., quoting Hawk at ¶ 9. “Therefore,

Courts have held that the immunity of prosecutors extends to allegations of malicious

prosecution.” Id. Furthermore, “courts have held that a prosecutor’s decision to not preserve or

turn over exculpatory material before trial is protected by absolute immunity, despite the fact it is

a violation of due process.” McClellan v. Franklin Cty. Bd. of Commrs., 10th Dist. Franklin No.

08AP-782, 2009-Ohio-3955, ¶ 22, citing Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir.2003).

       {¶8}    In discussing the public policy underlying the application of absolute immunity to

a prosecutor, the Supreme Court of the United States has stated:

       If a prosecutor had only a qualified immunity, the threat of § 1983 suits would
       undermine performance of his duties no less than would the threat of common-
       law suits for malicious prosecution. A prosecutor is duty bound to exercise his
       best judgment both in deciding which suits to bring and in conducting them in
       court. The public trust of the prosecutor’s office would suffer if he were
       constrained in making every decision by the consequences in terms of his own
       potential liability in a suit for damages. Such suits could be expected with some
       frequency, for a defendant often will transform his resentment at being prosecuted
       into the ascription of improper and malicious actions to the State’s advocate.
       Further, if the prosecutor could be made to answer in court each time such a
       person charged him with wrongdoing, his energy and attention would be diverted
       from the pressing duty of enforcing the criminal law.

       Moreover, suits that survived the pleadings would pose substantial danger of
       liability even to the honest prosecutor. The prosecutor’s possible knowledge of a
       witness’ falsehoods, the materiality of evidence not revealed to the defense, the
       propriety of a closing argument, and -- ultimately in every case -- the likelihood
       that prosecutorial misconduct so infected a trial as to deny due process, are typical
       of issues with which judges struggle in actions for post-trial relief, sometimes to
       differing conclusions. The presentation of such issues in a § 1983 action often
       would require a virtual retrial of the criminal offense in a new forum, and the
       resolution of some technical issues by the lay jury. It is fair to say, we think, that
                                                 5


       the honest prosecutor would face greater difficulty in meeting the standards of
       qualified immunity than other executive or administrative officials. Frequently
       acting under serious constraints of time and even information, a prosecutor
       inevitably makes many decisions that could engender colorable claims of
       constitutional deprivation. Defending these decisions, often years after they were
       made, could impose unique and intolerable burdens upon a prosecutor responsible
       annually for hundreds of indictments and trials.

(Citations omitted.) Imbler v. Pachtman, 424 U.S. 409, 424-426 (1976). These concerns remain

relevant in the case now before us for review.

       {¶9}    However, absolute immunity does not extend to a prosecutor engaged in

essentially investigative or administrative functions, and while performing such functions, a

prosecutor is entitled to only a qualified immunity. Willitzer at 449. “In determining whether

the prosecutor’s acts are quasi-judicial as opposed to investigative or administrative, the courts

have applied a functional analysis of his activities, rather than simply stating that he is a

prosecutor whose status entitles him to absolute immunity.” Id.

With regard to this distinction, the Supreme Court of the United States stated:

       [A]cts undertaken by a prosecutor in preparing for the initiation of judicial
       proceedings or for trial, and which occur in the course of his role as an advocate
       for the State, are entitled to the protections of absolute immunity. Those acts
       must include the professional evaluation of the evidence assembled by the police
       and appropriate preparation for its presentation at trial or before a grand jury after
       a decision to seek an indictment has been made.

       On the other hand, * * * the actions of a prosecutor are not absolutely immune
       merely because they are performed by a prosecutor. Qualified immunity
       “‘represents the norm’” for executive officers, Malley v. Briggs, 475 U.S. at 340,
       quoting Harlow v. Fitzgerald, 457 U.S. at 807, so when a prosecutor “functions as
       an administrator rather than as an officer of the court” he is entitled only to
       qualified immunity. Imbler, 424 U.S. at 431, n. 33. There is a difference between
       the advocate’s role in evaluating evidence and interviewing witnesses as he
       prepares for trial, on the one hand, and the detective’s role in searching for the
       clues and corroboration that might give him probable cause to recommend that a
       suspect be arrested, on the other hand. When a prosecutor performs the
       investigative functions normally performed by a detective or police officer, it is
       “neither appropriate nor justifiable that, for the same act, immunity should protect
       the one and not the other.” Hampton v. Chicago, 484 F.2d 602, 608 (CA7 1973)
                                                 6


       (internal quotation marks omitted), cert. denied, 415 U.S. 917, 39 L. Ed. 2d 471,
       94 S. Ct. 1413, 94 S. Ct. 1414 (1974). Thus, if a prosecutor plans and executes a
       raid on a suspected weapons cache, he “has no greater claim to complete
       immunity than activities of police officers allegedly acting under his direction.”
       484 F.2d at 608-609.

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

       {¶10} The complaint in the present case alleged that Ms. Presutto “was maliciously and

without probable cause indicted” and that “the indictment was procured through the efforts” of

Mr. Sullivan and Mr. O’Malley. The complaint went on to make several allegations against “the

Defendants,” without specifically naming Mr. Sullivan and Mr. O’Malley, including that “[t]he

Defendants conspired together to cause the arrest, indictment and imprisonment of [Ms. Presutto]

* * *.”   With regard to the claim for malicious prosecution, the complaint alleged “[t]he

Defendants acted intentionally and maliciously in concert and in bad faith with one another for

the purpose of instituting the criminal action against [Ms. Presutto] by illegally procuring [her]

indictment and arrest.” The complaint further alleged that “[b]y the acts of procuring a false

indictment, having [Ms. Presutto] arrested, and separating [her] from her family, the Defendants

worked in concert with each other to intentionally cause Plaintiff to suffer emotional distress.”

       {¶11} Upon review of Ms. Presutto’s complaint, we conclude that it is devoid of any

facts establishing Mr. Sullivan and Mr. O’Malley acted beyond their scope as quasi-judicial

officers engaged in the process of initiating a prosecution and procuring an indictment. As we

have noted, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than conclusory statements unsupported by facts. See Vagas v. City of Hudson, 9th Dist.

Summit No. 24713, 2009-Ohio-6794, ¶ 13. With regard to Mr. Sullivan, the complaint stated

that he was in communication with Mr. Hull to devise a strategy to quash a subpoena requiring

Mr. Kessler to appear for a deposition relating to a report he filed in a Lorain County Probate
                                                 7


Court case for the guardianship of Ms. Presutto’s mother. The complaint further stated that Mr.

Sullivan directed Mr. Hull to file a motion for a protective order to prevent said deposition.

These allegations involving the prior guardianship case offer no support for Ms. Presutto’s

claims in the present case. The only other facts stated by the complaint with regard to Mr.

Sullivan and Mr. O’Malley indicate that they acted to initiate a prosecution against Ms. Presutto,

a function intimately associated with the judicial phase of the criminal process, and thereby

protected by an absolute immunity. See Thomas v. Bauschlinger, 9th Dist. Summit No. 26485,

2013-Ohio-1164, ¶ 16.

       {¶12} We note that although Mr. O’Malley is an investigator employed by the

Cuyahoga County Prosecutor’s Office, rather than an assistant prosecutor, the complaint fails to

allege facts that would implicate investigative functions that would fall outside the protections of

absolute immunity. See Joseph v. Patterson, 795 F.2d 549, 559-560 (6th Cir.1986) (indicating

that investigators who carry out duties related to the judicial process pursuant to the express

direction and control of a prosecutor, i.e., “functioning as the alter ego of the prosecutor,” also

have absolute immunity”).

       {¶13} We further note that the application of absolute immunity to Mr. Sullivan and Mr.

O’Malley applies regardless of the fact that the complaint listed them in both their official and

individual capacities. Once again, the complaint only alleges facts involving their scope as

quasi-judicial officers, and once absolute immunity has been established, it cannot be defeated

by application of the malicious purpose/bad faith qualified immunity provisions of R.C.

2744.03(A)(6). See Moore v. City of Cleveland, 8th Dist. Cuyahoga No. 100069, 2014-Ohio-

1426, ¶ 22. See also Richard v. Rice, 91 Ohio App.3d 199, 201 (8th Dist.1993) (stating that if

absolute immunity only applied to “official capacity,” and a prosecutor was amenable to suit in
                                                  8


his “individual capacity,” it would completely defeat the policies served by the immunity

doctrine).

       {¶14} Mr. Sullivan and Mr. O’Malley’s assignment of error is sustained.

                                                 III.

       {¶15} Mr. Sullivan and Mr. O’Malley’s assignment of error is sustained. The order of

the Lorain County Court of Common Pleas denying their motion to dismiss is hereby reversed

and remanded.

                                                                               Judgment reversed
                                                                                  and remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee Jaleh Presutto.




                                                        THOMAS A. TEODOSIO
                                                        FOR THE COURT
                                           9




CARR, J.
HENSAL, J.
CONCUR.

APPEARANCES:

MICHAEL C. O’MALLEY, Prosecuting Attorney, and BRIAN R. GUTKOSKI, Assistant
Prosecuting Attorney, for Appellant.

DAVID J. MATTY, Attorney at Law, for Appellee.

MARCUS SIDOTI, Attorney at Law, for Appellee.

CLIFFORD MASCH, Attorney at Law, for Appellee.

JAMES S. CASEY, Attorney at Law, for Appellee.
