               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1128n.06

                                           No. 11-4289

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


MARK E. HUFFER,                                          )                       FILED
                                                         )                   Nov 01, 2012
       Plaintiff-Appellant,                              )             DEBORAH S. HUNT, Clerk
                                                         )
               v.                                        )
                                                         )
MARK BOGEN, Judge, Lebanon Municipal Court;              )
MICHAEL McCUTCHAN, Patrolman for the City of             )      ON APPEAL FROM THE
Lebanon; JAMES BURNS, Patrolman for the City of          )      UNITED STATES DISTRICT
Lebanon; MATTHEW J. GRABER, Prosecutor,                  )      COURT FOR THE SOUTHERN
Lebanon Municipal Court; ANDREA HICKS,                   )      DISTRICT OF OHIO
Prosecutor, Lebanon Municipal Court; BRENDA K.           )
MORGAN, Clerk, Lebanon Municipal Court;                  )
VIVIAN T. HUFFER; CITY OF LEBANON; MEL                   )
PLANAS, Warren County Prosecutor; KRISTY                 )
WHALEY, Probation Officer, Lebanon Municipal             )
Court; DANIELLE RENEE BISHOP; COUNTY OF                  )
WARREN; KRISTY SOMMERS, Probation Officer,               )
Warren County Adult Probation,                           )
                                                         )
       Defendants-Appellees.                             )




BEFORE: SUTTON and GRIFFIN, Circuit Judges; and WELLS, District Judge.*

       GRIFFIN, Circuit Judge.

       Plaintiff Mark E. Huffer filed a complaint in the district court against the municipal court

judge who presided over his underlying domestic violence case and various city and county officials


       *
        The Honorable Lesley Wells, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 11-4289
Huffer v. Bogen, et al.


involved in his arrest and prosecution. The complaint alleged numerous civil rights violations,

including malicious prosecution, judicial misconduct, and unlawful detention. The municipal court

judge filed a motion to dismiss, which the district court granted. Thereafter, the county officials filed

a motion to dismiss, and the city officials filed a motion for judgment on the pleadings or, in the

alternative, to dismiss. In a single order, the district court granted the motions. Huffer appeals the

district court’s judgment. We affirm.

                                                   I.

        As alleged in the complaint, Huffer was arrested for domestic violence in 2007. At the time

of his arrest, he was on diversion from a previous domestic violence case. Through the assistance

of counsel, Huffer pleaded guilty to the 2007 charge. The relevant docket entry indicates that Huffer

was held without bond. Huffer alleges that he remained incarcerated for a “period of time” before

being released. After his release, he was arrested again, this time for violating a temporary

protection order. He remained incarcerated until his counsel filed a motion to set aside or reduce his

bond. By then, his diverted domestic violence case had been reactivated, and he pleaded guilty to

two criminal charges of domestic violence. The remaining criminal charges were dismissed.

        According to Huffer, defense counsel told him that the prosecutor would oppose any bond

reduction, and he would remain incarcerated for ninety days awaiting trial if he did not plead guilty.

Huffer alleges that he was not adequately informed that a domestic violence conviction could

enhance the penalty for any subsequent domestic violence conviction. In addition, Huffer owns and

operates a business with fifteen employees, and, during his incarceration, his children had to stay


                                                  -2-
No. 11-4289
Huffer v. Bogen, et al.


with their mother, Huffer’s ex-wife, even though Huffer had custody of them. Further, Huffer’s

father had suffered a stroke, and his mother had suffered what Huffer believed was a nervous

breakdown. Huffer claims that he pleaded guilty in order to regain his freedom, restore and maintain

his business, regain custody of his children (who he believed were living in dangerous

circumstances), and assist his ailing parents.

       In 2008, after a judgment of conviction had been entered, Huffer moved the municipal court

to withdraw his pleas and vacate his convictions. The municipal court, Judge Mark Bogen presiding,

found that Huffer’s pleas were made voluntarily and knowingly. In what Huffer characterizes as

misleading statements, Judge Bogen said that he had “reviewed the transcript” of the plea

proceedings and “all rights were read to [Huffer].” Accordingly, Judge Bogen denied the motion.

       In 2009, the state appellate court reversed Judge Bogen’s judgment and remanded the case

for further proceedings because it could not discern whether a proper colloquy under Rule 11 had

taken place in the plea proceedings. Huffer alleges that the prosecutor falsely assured him that his

charges would be dismissed following this reversal.

       In 2010, Huffer filed a nine-count complaint1 in the district court against Judge Bogen,

Warren County, the City of Lebanon, city patrolmen Michael McCutchan and James Burns, city

prosecutors Matthew Graber and Andrea Hicks, municipal court clerk Brenda Morgan, county

prosecutor Mel Planas, probation officers Kristy Whaley and Kristy Sommers, and the individuals



       1
        Confusingly, Huffer’s Sixth, Seventh, and Eighth Counts are all labeled “Count Six,” and
his Ninth Count is labeled “Count Seven.”

                                                 -3-
No. 11-4289
Huffer v. Bogen, et al.


who reported the alleged domestic violence, Huffer’s ex-wife, Vivian Huffer, and her sister, Danielle

Bishop. The complaint alleged numerous state and federal civil rights violations, including

malicious prosecution, judicial misconduct, and unlawful detention. See, e.g., 42 U.S.C. § 1983.

        Judge Bogen moved to dismiss the complaint. (R.16 at 1; Pg ID at 65.) The district court

granted Judge Bogen’s motion based on judicial immunity, failure to state a claim, and lack of a case

or controversy.

        Thereafter, the county defendants filed a motion to dismiss, and the city defendants filed a

motion for judgment on the pleadings or, in the alternative, to dismiss. In a single order, the district

court granted the motions based on prosecutorial immunity, quasi-judicial immunity, qualified

immunity, failure to state a claim, and the running of the applicable statutes of limitations.

                                                  II.

        We review a district court’s grant of a Rule 12(c) motion for judgment on the pleadings under

the same de novo standard used to review dismissals under Rule 12(b)(6). Albrecht v. Treon, 617

F.3d 890, 893 (6th Cir. 2010). We construe the complaint in the light most favorable to the plaintiff,

accepting his well-pleaded factual allegations as true. Terry v. Tyson Farms, Inc., 604 F.3d 272, 274

(6th Cir. 2010).

                                                  III.

        Huffer first argues that the district court erred when it granted Judge Bogen’s motion to

dismiss. Judges are absolutely immune from § 1983 suits arising out of their performance of judicial

functions. Pierson v. Ray, 386 U.S. 547, 553–54 (1967). As the United States Supreme Court has


                                                 -4-
No. 11-4289
Huffer v. Bogen, et al.


observed, “[a judge’s] errors may be corrected on appeal, but he should not have to fear that

unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such

a burden on judges would contribute not to principled and fearless decision-making but to

intimidation.” Id. at 554. As such, judicial immunity applies even to judicial acts performed

maliciously, corruptly, in bad faith, or in error. Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir.

2004). Indeed, there are only two exceptions to judicial immunity: a judge is not immune from suits

for acts that are (1) not judicial in nature or (2) performed without jurisdiction. Id.

       Huffer claims that judicial immunity does not apply because Judge Bogen acted outside his

judicial capacity when he incarcerated Huffer without bond and denied his motion to withdraw his

guilty pleas, stating that he had “reviewed the transcript” and “all rights were read to [Huffer].”

Huffer asserts that Judge Bogen’s actions were “egregious” and without a “conceivable

justification,” and that his statements were “materially misleading.”

       Huffer’s assertions, in addition to being conclusory, describe judicial acts. “[T]he factors

determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to the expectations of the parties, i.e.,

whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362

(1978). Here, ordering Huffer incarcerated without bond, denying his motion to withdraw his guilty

pleas, and making statements on the record were undeniably judicial acts, as they are functions

normally performed by a judge. And Huffer, as a criminal defendant in a case over which Judge

Bogen was presiding, dealt with Judge Bogen in his judicial capacity. Even assuming for the


                                                 -5-
No. 11-4289
Huffer v. Bogen, et al.


purpose of argument that Judge Bogen’s actions were egregious, unjustified, or misleading, the acts

were no less judicial. See Brookings, 389 F.3d at 617; see also Stump, 435 U.S. at 356–57 (stating

that “[a] judge will not be deprived of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority”). Accordingly, the first exception to judicial

immunity does not apply.

       The second exception is likewise inapplicable, as Judge Bogen had jurisdiction over Huffer’s

domestic violence case. See Ohio Rev. Code §§ 1901.02(B), 1901.20(B). It makes no difference

for purposes of immunity whether Judge Bogen’s actions were unjustified or improper. Ireland v.

Tunis, 113 F.3d 1435, 1441 (6th Cir. 1997). For the exception to apply, a judge must have acted “in

the clear absence of all jurisdiction,” as opposed to merely “in excess of authority.” Id.

       In the absence of an applicable exception, Judge Bogen was entitled to absolute judicial

immunity. Accordingly, the district court properly granted Judge Bogen’s motion to dismiss.

                                                 IV.

       Huffer next argues that the district court erred when it granted the county defendants’ motion

to dismiss and the city defendants’ motion for judgment on the pleadings or, in the alternative, to

dismiss. The district court decided both motions in a single order, basing its judgment on

prosecutorial immunity, quasi-judicial immunity, qualified immunity, failure to state a claim, and

the running of the applicable statutes of limitations.

       First, Huffer challenges the district court’s determination that prosecutors Planas, Graber, and

Hicks were entitled to prosecutorial immunity. Prosecutors enjoy absolute immunity from civil


                                                -6-
No. 11-4289
Huffer v. Bogen, et al.


liability for actions performed within the scope of their prosecutorial duties. Howell v. Sanders, 668

F.3d 344, 349 (6th Cir. 2012). Without this immunity, “the prosecutor’s exercise of independent

judgment would likely be compromised to the detriment of public trust and the effective functioning

of the criminal justice system,” and the threat of liability could “divert[] the prosecutor’s energy from

‘the pressing duty of enforcing the criminal law.’” Ireland, 113 F.3d at 1444 (quoting Imbler v.

Pachtman, 424 U.S. 409, 425 (1976)).

        Huffer argues that immunity does not apply because the prosecutors in this case acted outside

their prosecutorial duties when they prosecuted him without probable cause and based on false

information. This argument lacks merit. Prosecutorial immunity extends to claims regarding the

evaluation of evidence and the determination of probable cause. Koubriti v. Convertino, 593 F.3d

459, 467 (6th Cir. 2010). Immunity applies even where the prosecutor acted wrongfully or

maliciously. Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989). Indeed, “immunity

extend[s] to the knowing use of false testimony before the grand jury and at trial.” Burns v. Reed,

500 U.S. 478, 485 (1991). As the district court reasoned, simply stating that the prosecutors acted

outside their traditional prosecutorial duties “does not make it so.” The prosecutors were entitled

to absolute prosecutorial immunity.

        Second, Huffer argues that city patrolmen McCutchan and Burns were not entitled to

qualified immunity. This court summarized the doctrine of qualified immunity in Hoover v. Walsh:

        [T]he doctrine of qualified immunity shields certain government officials, including
        police officers, from civil liability in certain circumstances. To determine whether
        qualified immunity applies, we engage in a two-step inquiry, determining “(1)
        whether, considering the allegations in a light most favorable to the party injured, a

                                                  -7-
No. 11-4289
Huffer v. Bogen, et al.


       constitutional right has been violated, and (2) whether that right was clearly
       established.” We may address these prongs in either order; indeed, either one may
       be dispositive. Once the defense of qualified immunity has been raised, it is the
       plaintiff’s burden to demonstrate that the defendants cannot avail themselves of it.

682 F.3d 481, 492 (6th Cir. 2012) (internal citations and footnotes omitted).

       The allegations in Huffer’s complaint are conclusory. He claims that the officers “took

actions” that violated his civil rights and “conspired” to wrongfully imprison him. Even viewing

these bare allegations in the light most favorable to Huffer, they do not show that a constitutional

right was violated. Huffer was first arrested in response to reports of domestic violence while he was

on diversion from another domestic violence case, and he was later arrested for allegedly violating

a temporary protection order. Under the circumstances, the officers reasonably arrested him. To the

extent that Huffer argues that the victims’ allegations of domestic violence were untrue, this does

not make his arrests unconstitutional. See Gardenhire v. Schubert, 205 F.3d 303, 322 (6th Cir. 2000)

(“[A] crime victim’s accusation standing alone can establish probable cause.”). Because the

complaint did not allege facts to support a violation of a constitutional right, the district court

properly determined that the officers were entitled to qualified immunity.

       Third, Huffer argues that the district court erred when it determined that court clerk Morgan

and probation officers Sommers and Whaley were entitled to quasi-judicial immunity. As discussed

above, judges are absolutely immune from liability for suits arising out of their performance of

judicial functions. Mireles v. Waco, 502 U.S. 9, 13 (1991) (per curiam). “One who acts as the

judge’s designee, and who carries out a function for which the judge is immune, is likewise

protected.” Johnson v. Turner, 125 F.3d 324, 333 (6th Cir. 1997). Quasi-judicial immunity has been

                                                -8-
No. 11-4289
Huffer v. Bogen, et al.


held to apply to probation officers and court clerks. See, e.g., Foster v. Walsh, 864 F.2d 416, 417

(6th Cir. 1988) (per curiam) (court clerk); Timson v. Wright, 532 F.2d 552, 553 (6th Cir. 1976) (per

curiam) (chief probation officer).

        In this case, the court clerk merely implemented Judge Bogen’s order as instructed. In doing

so, the court clerk was carrying out a judicial act to which absolute immunity attached. See Foster,

864 F.2d at 417 (“[A] clerk who issues a warrant at the direction of a judge is performing a function

to which absolute immunity attaches.”). The fact that the court clerk’s action did not require

discretion or judgment on her part does not change its judicial character. Id. The cases relied on by

Huffer are distinguishable because they involve nonfeasance on the part of the court clerk. See, e.g.,

Mauro v. Cnty. of Kittitas, 613 P.2d 195, 197 (Wash. Ct. App. 1980) (court clerk not entitled to

judicial immunity for failure to recall a warrant). This is not a case of nonfeasance; the court clerk

properly implemented Judge Bogen’s order as instructed.

        The probation officers were also entitled to quasi-judicial immunity. “[W]hen a judge seeks

to determine whether a defendant is complying with the terms of probation, the judge is performing

a judicial function. . . . All of the same considerations that would apply to the judge apply to the

probation officer.” Balas v. Leishman-Donaldson, No. 91-4073, 1992 U.S. App. LEXIS 22411,

1992 WL 217735, *5 (6th Cir. Sept. 9, 1992) (per curiam). Here, the probation officers were

performing a judicial function when they determined that Huffer had violated the terms of his

probation. See Loggins v. Franklin Cnty., 218 F. App’x 466, 476 (6th Cir. 2007). In this regard, the

district court did not err.


                                                -9-
No. 11-4289
Huffer v. Bogen, et al.


        Fourth, Huffer argues that his complaint stated claims of conspiracy to violate his civil rights

and malicious prosecution. To survive a motion to dismiss, the complaint must contain sufficient

factual allegations to support a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). “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.” Id.

Although factual allegations need not be detailed, “labels and conclusions” or “a formulaic recitation

of the elements of a cause of action” provide insufficient grounds for entitlement to relief. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

        In Count Three, Huffer alleged that defendants “conspired” to violate his civil rights. “A

civil conspiracy is an agreement between two or more persons to injure another by unlawful

action. . . . All that must be shown is that there was a single plan, that the alleged coconspirator

shared in the general conspiratorial objective, and that an overt act was committed in furtherance of

the conspiracy that caused injury to the complainant.” Hooks v. Hooks, 771 F.2d 935, 943–44 (6th

Cir. 1985). However, “[i]t is well-settled that conspiracy claims must be pled with some degree of

specificity and that vague and conclusory allegations unsupported by material facts will not be

sufficient to state a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).

        In this case, Huffer’s claim of conspiracy merely described the actions taken by various

individual defendants, asserting that their actions were taken in furtherance of a conspiracy. Huffer’s

claim is conclusory and fails to include allegations regarding an agreement or shared plan between




                                                 - 10 -
No. 11-4289
Huffer v. Bogen, et al.


the individual defendants to violate his civil rights. As such, the district court properly concluded

that he failed to state a claim of conspiracy against the individual defendants.

       The failure to state a claim against the individual defendants is also fatal to any conspiracy

claim against Warren County and the City of Lebanon. Moreover, the doctrine of respondeat

superior is not available in § 1983 actions. See Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th

Cir. 1996). The only basis for § 1983 liability against a government entity is that a constitutional

violation resulted from the government’s policy or custom. Caudill v. Hollan, 431 F.3d 900, 914–15

(6th Cir. 2005). As the district court pointed out, Huffer’s complaint failed to identify any policy

or custom that resulted in a constitutional violation.

       In Count Seven, Huffer alleged that patrolmen McCutchan and Burns maliciously prosecuted

him in violation of state law. The elements of malicious prosecution in Ohio are: “(1) malice in

instituting (or continuing) the prosecution, (2) lack of probable cause, and (3) termination of the

action in favor of the defendant.” Swiecicki v. Delgado, 463 F.3d 489, 503 (6th Cir. 2006). Huffer’s

claim of malicious prosecution is insufficient because it merely asserts, in a conclusory fashion, that

various defendants initiated the criminal proceedings against him “without probable cause” and

“maliciously.” Moreover, Huffer acknowledges that charges were brought against him based on

victim accusations of domestic violence and violation of a temporary protection order, which alone

suffice to provide probable cause. See Gardenhire, 205 F.3d at 322 (Batchelder, J., concurring in

part and dissenting in part). Finally, Huffer’s criminal case was not “terminated” in his favor by the

state appellate court, but was reversed and remanded for further proceedings.


                                                - 11 -
No. 11-4289
Huffer v. Bogen, et al.


        In Count Four, Huffer alleged that patrolmen McCutchan and Burns maliciously prosecuted

him in violation of 42 U.S.C. § 1983, specifically, that his prosecution was “initiated with malice”

and “in the absence of probable cause.” For reasons previously stated, Huffer does not allege

sufficient facts to support these bare assertions. The district court did not err when it determined that

Huffer failed to state claims of conspiracy to violate § 1983 and malicious prosecution.

        The final issue is whether several of Huffer’s claims were untimely. His state-law claims of

false imprisonment and false arrest were subject to a one-year statute of limitations. Ohio Rev. Code

§ 2305.11(A). His claim of false imprisonment under § 1983 was subject to the statute of limitations

that Ohio provides for personal-injury torts, which is two years. Wallace v. Kato, 549 U.S. 384, 387

(2007); Ohio Rev. Code § 2305.10(A). It is undisputed that Huffer did not file his complaint until

over three years after his arrest. As such, his claims of false arrest and false imprisonment were not

filed within the applicable statutes of limitations. See Fox v. DeSoto, 489 F.3d 227, 233 (6th Cir.

2007) (explaining that “claims for false arrest and false imprisonment . . . generally accrue at the

time of the arrest”). Huffer cites no authority to support his argument that these claims accrued when

the state appellate court vacated his guilty pleas. Thus, the district court properly determined that

his claims of false arrest and false imprisonment were time-barred.

                                                   V.

        For these reasons, we affirm.




                                                 - 12 -
