Nix v. Franklin County et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DELSHAUN R. NIX,
Plaintiff,
v.
FRANKLIN COUNTY, et al.,
Defendants.
:
:
Case No. 2:25-cv-327
Chief Judge Sarah D. Morrison
Magistrate Judge Chelsey M.
Vascura
ORDER
Delshaun R. Nix, an Ohio inmate proceeding pro se, filed suit under 42 U.S.C.
§ 1983, alleging that several Franklin County prosecutors and defense attorney
Mark Collins violated his constitutional rights during their involvement in his
criminal case. (Am. Compl., ECF No. 7.) The matter is now before the Court on Mr.
Nix’s objections to the Magistrate Judge’s Report and Recommendation. After
performing an initial screen of the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A, the Magistrate Judge recommended that the Court dismiss Mr. Nix’s
Amended Complaint in its entirety. (R&R, ECF No. 10.) Mr. Nix objects (Objs., ECF
No. 12) and seeks leave to amend his complaint once again (ECF No. 15). For the
reasons below, Mr. Nix’s Objections are OVERRULED and his Motion for Leave to
Amend is DENIED. The Report and Recommendation is ADOPTED and this case
is DISMISSED.
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I. OBJECTIONS TO THE REPORT AND RECOMMENDATION
Mr. Nix asserts five claims in his operative Amended Complaint:
Claim One: Ineffective Assistance of Counsel (Sixth Amendment)
Against Attorney Collins
Claim Two: Due Process (Fifth, Fourteenth Amendments)
Against Prosecutor Defendants
Claim Three: Equal Protection (Fourteenth Amendment)
Against Prosecutor Defendants
Claim Four: Cruel and Unusual Punishment (Eighth Amendment)
Against Prosecutor Defendants
Claim Five: Malicious Prosecution (Fourth Amendment)
Against Prosecutor Defendants
(Am. Compl.) The Magistrate Judge recommends dismissing Claims Two – Five
because the Prosecutor Defendants are entitled to absolute immunity. On Claim
One, the Magistrate Judge considers that Mr. Nix may be asserting both a § 1983
claim and state-law claim. The R&R recommends dismissing the § 1983 claim
because Attorney Collins was not acting under color of law, and dismissing any
residual state law claim for professional negligence without prejudice to re-filing in
state court. Mr. Nix objects on several grounds.
If a party objects within the allotted time1 to a report and recommendation,
the Court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
1 The R&R was filed on June 13, 2025. (ECF No. 10.) Mr. Nix represents that
he did not receive a copy until “June 24th or 25th,” due to delays in the prison mail
system. (ECF No. 12, PAGEID # 500.) Mr. Nix’s objections were filed on July 9 and
16, 2025. Although this is beyond the 14-day deadline, the objections will be
considered as timely.
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U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Objections One and Two. In his first and second objections, Mr. Nix
challenges the Magistrate Judge’s conclusion that the Prosecutor Defendants are
entitled to absolute immunity. It is well established that, when a prosecutor acts as
an “advocate for the State,” such as “initiating a prosecution [or] presenting the
State’s case, the prosecutor is immune from a civil suit for damages under [§] 1983.”
Imbler v. Pachtman, 424 U.S. 409, 431, 431 n.33 (1976). If the prosecutor’s
“activities were intimately associated with the judicial phase of the criminal process
. . . absolute immunity appl[ies] with full force.” Id. at 430. Mr. Nix’s Amended
Complaint challenges the Prosecutor Defendants’ conduct as advocates for the
State, both before and after his conviction. The Magistrate Judge thus correctly
found that the Prosecutor Defendants are entitled to absolute immunity. Objections
One and Two are OVERRULED.
Objection Three. Mr. Nix next challenges the Magistrate Judge’s
recommendation to dismiss Claim One because Attorney Collins’s “representation
fell below the standard demanded from defense counsel.” (Objs., PAGEID # 499–
500.) A § 1983 plaintiff must establish that he was (1) “deprived of a right secured
by the Constitution or laws of the United States,” and (2) “that such deprivation
was caused by a person acting under color of state law.” Littler v. Ohio Ass’n of Pub.
Sch. Emps., 88 F.4th 1176, 1180 (6th Cir. 2023) (cleaned up). Defenders like
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Attorney Collins do not act under color of state law for purposes of § 1983. Dunning
v. Yuetter, 12 F. App’x 282, 284 (6th Cir. 2001); see also Polk County v. Dodson, 454
U.S. 312, 312 (1981). Objection Three is OVERRULED.
Objection Six.2 Finally, Mr. Nix objects to the R&R on the grounds that his
sentence was drastically different than his co-defendant’s, despite having “identical
charges, convictions, and factors and principles.” (Objs., PAGEID # 500.) But “the
Constitution does not require proportionality in sentencing among co-defendants.”
United States v. Neal, 577 F. App’x 434, 452 (6th Cir. 2014) (citing United States v.
Odeneal, 517 F.3d 406, 414 (6th Cir. 2008)). Accordingly, Objection “Six” is also
OVERRULED.
II. MOTION FOR LEAVE TO AMEND
Mr. Nix also moves for leave to amend his pleadings. (ECF No. 15.) Under
“Rule 15(a) a district court can allow a plaintiff to amend his complaint even when
the complaint is subject to dismissal under 28 U.S.C. § 1915(e)(2),” but “such relief
need not be granted when the claims are not remediable by amendment, making it
futile to permit an amended complaint.” Huot v. Montana Dep’t of Child & Fam.
Servs., No. 5:17-CV-298-JMH, 2017 WL 3103793, at *1 (E.D. Ky. July 21, 2017)
(citations and quotations omitted); see also Miller v. Calhoun Cty., 408 F.3d 803, 817
(6th Cir. 2005) (“A court need not grant leave to amend where an amendment would
be futile.”) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
2 Mr. Nix’s fourth objection is not a true objection; it merely laments that he
is being “held to the standard of an actual lawyer.” (Objs., PAGEID # 500.) Mr. Nix
does not include an Objection Five, moving straight from Four to Six. (Id.)
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Mr. Nix did not submit a proposed second amended complaint, or explain how
he would “re-state his claims” in an amendment. (ECF No. 15, PAGEID # 517.) He
says only that he “is willing to be more accurate with the claims[.]” Id. But his
claims are not being dismissed for want of accuracy. Such an amendment would
thus be futile. The Motion for Leave to Amend is DENIED.
III. CONCLUSION
For these reasons, Mr. Nix’s Objections (ECF Nos. 11, 12, 13) are
OVERRULED and his Motion for Leave to Amend (ECF No. 15) is DENIED. The
Report and Recommendation (ECF No. 10) is ADOPTED and AFFIRMED. The
Amended Complaint is DISMISSED.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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