[Cite as Henderson v. DeWine, 2022-Ohio-1025.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JEROME HENDERSON, : APPEAL NO. C-210201 TRIAL NO. A-2001111 Plaintiff-Appellant, : O P I N I O N. vs. :
MIKE DEWINE, :
ANNETTE CHAMBERS-SMITH, :
STEPHEN GRAY, :
RONALD ERDOS, :
and :
DAVID C. STEBBINS, :
Defendants, :
SHIRLEY ADELE SHANK, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 30, 2022
Jerome Henderson, pro se,
Law Office of S. Adele Shank and S. Adele Shank, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Jerome Henderson appeals the trial court’s entry granting defendant-
appellee Shirley Adele Shank’s motion to dismiss his 42 U.S.C. 1983 (“Section 1983”)
civil-rights action. He challenges the trial court’s dismissal of his complaint as well as
the trial court’s denial of his motion for leave to file an amended complaint. Finding
no merit to Henderson’s arguments, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} Henderson, who was convicted of aggravated murder and sentenced to
death, filed a Section 1983 action against Shank, as well as against Mike DeWine,
Governor of Ohio, Annette Chambers-Smith, Director of the Ohio Department of
Rehabilitation and Correction (“ODRC”), Stephen Gray, Chief Counsel for ODRC,
Ronald Erdos, Warden of the Southern Ohio Correctional Facility, and David Stebbins,
former counsel for Henderson. Service was never obtained on Stebbins.
{¶3} The complaint alleged that Shank, the only appellee to this appeal,
violated Henderson’s civil rights with respect to her representation of him in state
clemency and other proceedings.
{¶4} Henderson filed a motion to amend the complaint, which the trial court
denied. The trial court subsequently granted a motion to dismiss filed by Governor
DeWine and a motion to dismiss collectively filed by Chambers-Smith, Gray, and
Erdos. These latter motions are not before us.
{¶5} Shank also filed a motion to dismiss Henderson’s complaint pursuant
to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted,
arguing that Henderson’s Section 1983 action was barred by the applicable statute of
limitations, that the complaint failed to allege any action under color of law by Shank,
2 OHIO FIRST DISTRICT COURT OF APPEALS
and that res judicata barred relief because Henderson’s claims were previously raised
and rejected in federal court. Shank further argued that Henderson’s complaint
should be dismissed pursuant to Civ.R. 12(B)(1) for lack of subject-matter jurisdiction
because federal courts had already adjudicated the claims raised in Henderson’s
complaint.
{¶6} The trial court found all arguments made by Shank to be meritorious,
and it granted the motion to dismiss.
{¶7} Henderson appeals, arguing in two assignments of error that that the
trial court erred in denying his motion for leave to file an amended complaint and that
the trial court erred in granting Shank’s motion to dismiss. We address these
assignments of error out of order.
No Action Under Color of Law
{¶8} In his second assignment of error, Henderson challenges the trial
court’s granting of Shank’s Civ.R. 12(B)(6) motion to dismiss, arguing that the court’s
findings with respect to the statute of limitations, Shank’s lack of action under color of
law, res judicata, and his failure to meet the pleading requirements were erroneous.
We need not address all of these, because we find one dispositive, lack of action under
state law.
{¶9} We review de novo a trial court’s ruling on a Civ.R. 12(B)(6) motion to
dismiss. Elliot v. Durrani, 1st Dist. Hamilton No. C-180555, 2021-Ohio-3055, ¶ 7. We
must take all factual allegations in the complaint as true and make all reasonable
inferences in favor of the nonmoving party. ISCO Industries, Inc. v. Great Am. Ins.
Co., 2019-Ohio-4852, 148 N.E.3d 1279, ¶ 10 (1st Dist.). “A complaint should not be
dismissed for failure to state an actionable claim unless it appears beyond doubt from
3 OHIO FIRST DISTRICT COURT OF APPEALS
the complaint that the plaintiff can prove no set of facts entitling him to recovery.”
Thomas v. Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 19 (1st Dist.).
{¶10} Henderson’s claims are all brought pursuant to Section 1983. He argues
that that the trial court erred in finding that Shank did not act under color of law.
Section 1983 provides in relevant part that:
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.
{¶11} To maintain a Section 1983 cause of action, “two elements are required:
(1) the conduct in controversy must be committed by a person acting under color of
state law, and (2) the conduct must deprive the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United States.” Crosset v.
Marquette, 1st Dist. Hamilton Nos. C-060148 and C-060180, 2007-Ohio-550, ¶ 14,
quoting 1946 St. Clair Corp. v. Cleveland, 49 Ohio St.3d 33, 34, 550 N.E.2d 456
(1990).
{¶12} The law is well-settled that private attorneys assigned to represent
indigent defendants do not act under color of state law. Jones v. Dodge, 798 F.2d 1414
(6th Cir.1986); See Gillespie v. Madison, N.D.Ohio No. 5:10cv1989, 2010 U.S. Dist.
LEXIS 109809 (Oct. 15, 2010), quoting Deal v. Massey & Associates, E.D.Tenn. No.
1:10-CV-18, 2010 U.S. Dist. LEXIS 88597, *4 (Aug. 26, 2010) (“An attorney, whether
4 OHIO FIRST DISTRICT COURT OF APPEALS
appointed or retained, whether in state court or federal court, is not acting under color
of law.”).
{¶13} Because Shank was not acting under color of state law when
representing Henderson, Henderson’s Section 1983 complaint failed to state a claim
upon which relief could be granted, and the trial court did not err in granting Shank’s
motion to dismiss. Henderson’s second assignment of error is overruled. As our
holding with respect to the lack of action under color of state law is dispositive of this
assignment of error, we need not consider Henderson’s additional challenges to the
trial court’s granting of the motion to dismiss.
Denial of Motion for Leave to Amend Complaint
{¶14} In his first assignment of error, Henderson argues that the trial court
erred in denying his motion for leave to file an amended complaint.
{¶15} We review the trial court’s ruling on Henderson’s motion for an abuse
of discretion. Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863, ¶ 84 (1st Dist.). A trial
court should freely give leave to amend a complaint “when justice so requires.” Id.
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[Cite as Henderson v. DeWine, 2022-Ohio-1025.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JEROME HENDERSON, : APPEAL NO. C-210201 TRIAL NO. A-2001111 Plaintiff-Appellant, : O P I N I O N. vs. :
MIKE DEWINE, :
ANNETTE CHAMBERS-SMITH, :
STEPHEN GRAY, :
RONALD ERDOS, :
and :
DAVID C. STEBBINS, :
Defendants, :
SHIRLEY ADELE SHANK, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 30, 2022
Jerome Henderson, pro se,
Law Office of S. Adele Shank and S. Adele Shank, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Jerome Henderson appeals the trial court’s entry granting defendant-
appellee Shirley Adele Shank’s motion to dismiss his 42 U.S.C. 1983 (“Section 1983”)
civil-rights action. He challenges the trial court’s dismissal of his complaint as well as
the trial court’s denial of his motion for leave to file an amended complaint. Finding
no merit to Henderson’s arguments, we affirm the trial court’s judgment.
Factual and Procedural Background
{¶2} Henderson, who was convicted of aggravated murder and sentenced to
death, filed a Section 1983 action against Shank, as well as against Mike DeWine,
Governor of Ohio, Annette Chambers-Smith, Director of the Ohio Department of
Rehabilitation and Correction (“ODRC”), Stephen Gray, Chief Counsel for ODRC,
Ronald Erdos, Warden of the Southern Ohio Correctional Facility, and David Stebbins,
former counsel for Henderson. Service was never obtained on Stebbins.
{¶3} The complaint alleged that Shank, the only appellee to this appeal,
violated Henderson’s civil rights with respect to her representation of him in state
clemency and other proceedings.
{¶4} Henderson filed a motion to amend the complaint, which the trial court
denied. The trial court subsequently granted a motion to dismiss filed by Governor
DeWine and a motion to dismiss collectively filed by Chambers-Smith, Gray, and
Erdos. These latter motions are not before us.
{¶5} Shank also filed a motion to dismiss Henderson’s complaint pursuant
to Civ.R. 12(B)(6) for failure to state a claim upon which relief could be granted,
arguing that Henderson’s Section 1983 action was barred by the applicable statute of
limitations, that the complaint failed to allege any action under color of law by Shank,
2 OHIO FIRST DISTRICT COURT OF APPEALS
and that res judicata barred relief because Henderson’s claims were previously raised
and rejected in federal court. Shank further argued that Henderson’s complaint
should be dismissed pursuant to Civ.R. 12(B)(1) for lack of subject-matter jurisdiction
because federal courts had already adjudicated the claims raised in Henderson’s
complaint.
{¶6} The trial court found all arguments made by Shank to be meritorious,
and it granted the motion to dismiss.
{¶7} Henderson appeals, arguing in two assignments of error that that the
trial court erred in denying his motion for leave to file an amended complaint and that
the trial court erred in granting Shank’s motion to dismiss. We address these
assignments of error out of order.
No Action Under Color of Law
{¶8} In his second assignment of error, Henderson challenges the trial
court’s granting of Shank’s Civ.R. 12(B)(6) motion to dismiss, arguing that the court’s
findings with respect to the statute of limitations, Shank’s lack of action under color of
law, res judicata, and his failure to meet the pleading requirements were erroneous.
We need not address all of these, because we find one dispositive, lack of action under
state law.
{¶9} We review de novo a trial court’s ruling on a Civ.R. 12(B)(6) motion to
dismiss. Elliot v. Durrani, 1st Dist. Hamilton No. C-180555, 2021-Ohio-3055, ¶ 7. We
must take all factual allegations in the complaint as true and make all reasonable
inferences in favor of the nonmoving party. ISCO Industries, Inc. v. Great Am. Ins.
Co., 2019-Ohio-4852, 148 N.E.3d 1279, ¶ 10 (1st Dist.). “A complaint should not be
dismissed for failure to state an actionable claim unless it appears beyond doubt from
3 OHIO FIRST DISTRICT COURT OF APPEALS
the complaint that the plaintiff can prove no set of facts entitling him to recovery.”
Thomas v. Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 19 (1st Dist.).
{¶10} Henderson’s claims are all brought pursuant to Section 1983. He argues
that that the trial court erred in finding that Shank did not act under color of law.
Section 1983 provides in relevant part that:
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.
{¶11} To maintain a Section 1983 cause of action, “two elements are required:
(1) the conduct in controversy must be committed by a person acting under color of
state law, and (2) the conduct must deprive the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United States.” Crosset v.
Marquette, 1st Dist. Hamilton Nos. C-060148 and C-060180, 2007-Ohio-550, ¶ 14,
quoting 1946 St. Clair Corp. v. Cleveland, 49 Ohio St.3d 33, 34, 550 N.E.2d 456
(1990).
{¶12} The law is well-settled that private attorneys assigned to represent
indigent defendants do not act under color of state law. Jones v. Dodge, 798 F.2d 1414
(6th Cir.1986); See Gillespie v. Madison, N.D.Ohio No. 5:10cv1989, 2010 U.S. Dist.
LEXIS 109809 (Oct. 15, 2010), quoting Deal v. Massey & Associates, E.D.Tenn. No.
1:10-CV-18, 2010 U.S. Dist. LEXIS 88597, *4 (Aug. 26, 2010) (“An attorney, whether
4 OHIO FIRST DISTRICT COURT OF APPEALS
appointed or retained, whether in state court or federal court, is not acting under color
of law.”).
{¶13} Because Shank was not acting under color of state law when
representing Henderson, Henderson’s Section 1983 complaint failed to state a claim
upon which relief could be granted, and the trial court did not err in granting Shank’s
motion to dismiss. Henderson’s second assignment of error is overruled. As our
holding with respect to the lack of action under color of state law is dispositive of this
assignment of error, we need not consider Henderson’s additional challenges to the
trial court’s granting of the motion to dismiss.
Denial of Motion for Leave to Amend Complaint
{¶14} In his first assignment of error, Henderson argues that the trial court
erred in denying his motion for leave to file an amended complaint.
{¶15} We review the trial court’s ruling on Henderson’s motion for an abuse
of discretion. Maas v. Maas, 2020-Ohio-5160, 161 N.E.3d 863, ¶ 84 (1st Dist.). A trial
court should freely give leave to amend a complaint “when justice so requires.” Id.
When ruling on a motion to amend, the trial court should consider “whether the
movant made a prima facie showing of support for the new matters sought to be
pleaded, the timeliness of the motion, and whether the proposed amendment would
prejudice the opposing party.” Id. at ¶ 85. A trial court properly denies a motion to
amend the complaint when the amendment sought would be futile. Id.
{¶16} Here, Henderson sought to amend the complaint to add “the required
‘concurrent’ jurisdiction for this state court to entertain such actions under 42 U.S.C.S.
Section 1983 provided by 28 U.S.C.S. Section 1343(3).” Such an amendment was
unnecessary to trigger the trial court’s jurisdiction, as the trial court exercised its
5 OHIO FIRST DISTRICT COURT OF APPEALS
concurrent jurisdiction over Henderson’s complaint. We therefore find no abuse of
discretion in the trial court’s denial of Henderson’s motion for leave to amend the
{¶17} Henderson’s first assignment of error is overruled, and the judgment of
the trial court is affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.