Green v. Bornstein, et al

Filing 36

MEMORANDUM OPINION AND ORDER Signed by Judge David J. Hale on 10/26/2017: Ballinger's motion 15 to dismiss, construed as a motion for judgment on the pleadings is GRANTED. Green's claims against Ballinger are DISMISSED with prejudice. Nicholson's motion 26 for judgment on the pleadings is GRANTED. Green's claims against Nicholson are DISMISSED with prejudice. The Clerk of Court is DIRECTED to terminate James Ballinger and James Nicholson as defendants in the record of this matter. cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MICHAEL J. GREEN,

Plaintiff,

v.

Civil Action No. 3:17-cv-201-DJH-DW

WILLIAM S. BORNSTEIN, et al.,

Defendants.
* * * * *

MEMORANDUM OPINION AND ORDER
Plaintiff Michael Green brought this pro se action against Defendants William and Valeri
Bornstein, James Nicholson, James Ballinger, and American Tax Funding, alleging violations of
his constitutional rights.

(Docket No. 1)

Ballinger has moved to dismiss Green’s claims

pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.N. 15) The Court will construe
Ballinger’s motion as one for judgment on the pleadings, however, as he previously filed an
answer to Green’s complaint. (See D.N. 6) Nicholson also seeks judgment on the pleadings.
(D.N. 26) For the reasons set forth below, the Court will grant both motions.
I.

Standard

Although presented as a motion to dismiss for failure to state a claim, Ballinger’s motion
was filed after he answered the complaint. (See D.N. 6; D.N. 15) Rule 12(b) provides that a
motion asserting failure to state a claim “must be made before pleading if a responsive pleading
is allowed.” Fed. R. Civ. P. 12(b). Ballinger’s motion is thus properly construed as a motion for
judgment on the pleadings pursuant to Rule 12(c). See Satkowiak v. Bay Cty. Sheriff’s Dep’t, 47
F. App’x 376, 377 n.1 (6th Cir. 2002).
This distinction is of little practical effect, however. A motion for judgment on the
pleadings pursuant to Rule 12(c) is subject to the same standard as a motion to dismiss for failure

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to state a claim under Rule 12(b)(6). CoMa Ins. Agency, Inc. v. Safeco Ins. Co., 526 F. App’x
465, 467 (6th Cir. 2013) (citing Wee Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 846 (6th
Cir. 2012)). Thus, to survive a motion for judgment on the pleadings, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). To meet this standard, a plaintiff must “plead[] factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A
complaint whose “well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct” does not satisfy the Federal Rules’ pleading requirements and will not
withstand a motion for judgment on the pleadings. Id. at 679; see CoMa Ins. Agency, 526 F.
App’x at 467.
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by
lawyers. Haines v. Kerner, 404 U.S. 519, 519 (1972). Yet “the lenient treatment generally
accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).
For example, “the less stringent standard for pro se plaintiffs does not compel courts to conjure
up unpleaded facts to support conclusory allegations.” Leisure v. Hogan, 21 F. App’x 277, 278
(6th Cir. 2001). Additionally, a court cannot “create a claim which [a plaintiff] has not spelled
out in his pleading.” Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975).
A pro se complaint must still contain either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory. See Scheid v. Fanny
Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6th Cir. 1988). A failure to identify a right,
privilege, or immunity that was violated warrants dismissal of the action. See Codd v. Brown,
949 F.2d 879, 882 (6th Cir. 1991). Ultimately, “[t]he Court’s duty to construe a pro se complaint

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liberally does not absolve a plaintiff of the duty to comply with the Federal Rules of Civil
Procedure by providing each defendant with fair notice of the basis of the claim.” Jones v.
Cabinet for Families & Children, No. 3:07CV-11-S, 2007 WL 2462184, at *4 (W.D. Ky. Aug.
29, 2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). Courts are not
required to entertain a pro se plaintiff’s claim that “defies comprehension” or allegations that
amount to nothing more than “incoherent ramblings.” Roper v. Ford Motor Co., No. 1:09-cv427, 2010 WL 2670827, at *4 (S.D. Ohio Apr. 6, 2010), report and recommendation adopted,
2010 WL 2670697 (S.D. Ohio July 1, 2010) (internal citations omitted).
II.

Discussion

a. Ballinger’s Motion
In his convoluted complaint, Green provides the following to support his claim against
Ballinger:
James D. Ballinger . . . applied the Bornstein case to the foreclosure case[.] The
Bornstein [case] was [seventeen] years old[, with a fifteen] year limitations.
Ballinger has put [an]other case[,] which is clearly wrong. Ballinger started all
this turmoil that I have had to go through ever since he filed the foreclosure.
Ballinger very clearly fil[ed] false creditors trying to overwhelm[] the defendants
[and] force a submission.
(D.N. 1, PageID # 3) In the entire complaint, however, Green provides no context which would
allow the Court to identify what “foreclosure case” Green is referring to, let alone how Ballinger
is related to the case. Additionally, Green refers to the “Bornstein case” only one other time in
the complaint, explaining: “Bornstein then us[ed] his law [] degree and illegal[] tactics . . . to get
an illegal ju[dg]ment.” (Id., PageID # 2) Again, the Court cannot identify how the “Bornstein
case” relates to Ballinger or how it supports Green’s claim. Even when viewed under the less
stringent standard afforded to pro se litigants, the complaint does not state a claim against
Ballinger upon which relief may be granted. See Iqbal, 556 U.S. at 678.
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Green’s subsequent filings are of little help in clarifying his claim against Ballinger. In
one such filing, Green states:
[Ballinger] [a]llowed Bornstein to proceed to take [Green] to court [eighteen]
years after a [fifteen] year [l]imitation . . . . After [] Ballinger avoiled [sic] the
plaintiff[’s motions] to have these creditors dismissed[.]
(D.N. 9, PageID # 28) This statement, however, does not present the court with enough “wellpleaded” factual matter to raise a reasonable inference that Ballinger is liable to Green. Again,
although pro se complaints are held to a lesser stringent standard, a pro se complaint must still
contain either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory. See Scheid, 859 F.2d at 437.
Ironically, the only pleading providing enough factual detail to adequately construe
Green’s claim is Ballinger’s motion. In the motion, Ballinger explains:
Presumably, the foreclosure that Green is referring to is an action that American
Tax Funding, LLC (“ATF”) brought through Ballinger, as counsel, against Green
over nine years ago in Jefferson [County, Kentucky] Circuit Court . . . . [I]t
appears that Green has an issue with the fact that [Defendants William and Valeri
Bornstein] were named as Defendants in the State Action. Indeed[,] the
Bornsteins were named in the State Action by ATF due to the fact that the
Bornsteins had a Notice of Judgment Lien of record against Green . . . . Pursuant
to [Ky. Rev. Stat. §] 426.006[,] ATF necessarily had to name the Bornsteins in
the State Action due to their Notice of Judgment Lien.
(D.N. 15, PageID # 49–50) Although this factual account helps explain Green’s claim, it
ultimately supports dismissal. Ballinger, as counsel for ATF in a foreclosure action ATF filed
against Green, was required to list the Bornsteins as lienholders pursuant to Ky. Rev. Stat.
§ 426.006, which provides that “[t]he plaintiff in an action for enforcing a lien on property shall
state in his petition the liens held thereon by others, making them defendants.” Thus, not only
does Green’s complaint lack the sort of “well-pleaded” factual detail needed to survive a motion
for judgment on the pleadings, Green ultimately has no workable theory for holding Ballinger

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liable even if the Court were to use Ballinger’s motion to interpret Green’s complaint. See Iqbal,
556 U.S. at 678.

The Court will therefore dismiss with prejudice Green’s claim against

Ballinger.
b. Nicholson’s Motion
With regard to Nicholson, Green similarly states an incoherent series of facts that do not
add up to a claim. Green first notes that Nicholson handled a case for him some years ago and
that Nicholson tried to raise the fee. (D.N. 1, PageID # 3) Green fails, however, to explain how
a lawyer’s attempt to renegotiate a fee is a constitutional violation that warrants review in this
Court. This Court will not create a claim that Green has not spelled out in his pleadings. See
Clark, 518 F.2d at 1169. Green also alleges that Nicholson accosted him at a restaurant,
demanding money that Nicholson claimed Green owed him from the representation.

(Id.)

Again, Green fails to provide how this alleged exchange supports his claim that Nicholson
violated his constitutional rights, and it is not the Court’s duty to conjure up unpled allegations
for pro se plaintiffs. Leisure, 21 F. App’x at 278.
Finally, Green claims that while Nicholson served as a Kentucky state judge, Green never
won a case before him and he thus reported Nicholson to the F.B.I. (Id.) This odd allegation
does not amount to a claim for legal relief, and even if it did, it would be barred by judicial
immunity and likely by the applicable statute of limitations. Judges are entitled to absolute
immunity for actions arising out of all acts performed in the exercise of their judicial functions.
Mitchell v. Forsyth, 472 U.S. 511, 520 (1985). Thus, even when viewed under the less stringent
standard afforded to pro se litigants, the complaint does not state a claim against Nicholson upon
which relief may be granted. See Iqbal, 556 U.S. at 678.

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In his response to Nicholson’s motion, Green simply provides more rambling
explanations in an attempt to cure his complaint’s deficiencies. At one point, it seems that Green
attempts to allege Nicholson was involved with a cancelled surgery that Green desperately
needed. (D.N. 28, PageID # 89) Green also lists various remarks that Nicholson made to him
when he appeared before him in court—none of which are actionable. (Id., PageID # 90) Green
then details the years he spent in jail for writing bad checks. (Id., PageID # 91) He details
criminal investigations involving his scheduled surgery and a threat against Green that he needed
to leave the state or “[his] family would find [his] body in the Ohio River.” (Id., PageID # 92)
But nowhere in his story does Green describe Nicholson’s role in Green’s troubles, let alone why
the Court should hold Nicholson liable for these events. Again, this Court is not required to
entertain a pro se plaintiff’s claim that “defies comprehension” or allegations that amount to
nothing more than “incoherent ramblings.” Roper, 2010 WL 2670827, at *4 (S.D. Ohio Apr. 6,
2010), report and recommendation adopted, 2010 WL 2670697 (S.D. Ohio July 1, 2010)
(internal citations omitted).
The only filings providing enough factual detail to adequately construe Green’s claim are
Nicholson’s answer and motion. In his answer to Green’s complaint, Nicholson admits that he
appeared on Green’s behalf twice in 1977, “once to get [Green] a continuance and once to
withdraw as counsel, when [Green] failed to appear for trial.” (D.N. 11, PageID # 33–34) In
Nicholson’s motion for judgment on the pleadings, he states that he presided as judge in the case
the Bornsteins filed against Green in the mid-to-late 1980s (presumably the action in which the
Bornsteins obtained their judgment lien against Green). (D.N. 26-1, PageID # 81)
Although this factual account helps give context to Green’s claim, the account ultimately
supports dismissal. When the filings are read together, the Court sees nothing more than a claim

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against a former Kentucky judge for actions he took long ago, and in his official judicial
capacity. The law is clear that a judge acting within the scope of his official duties and within
his jurisdictional authority is absolutely immune from damages liability. Mireles v. Waco, 502
U.S. 9, 11–12 (1991). A judge is subject to liability only for non-judicial actions or for acts
which were judicial in nature but were taken in the “clear absence of all jurisdiction.” Id.
Green’s complaint fails to raise a reasonable inference that Nicholson harmed Green in a nonjudicial capacity. Furthermore, as Nicholson’s motion makes clear, Nicholson had jurisdiction to
adjudicate the civil action brought against Green by the Bornsteins. (See D.N. 26-1, PageID #
83) See also Bennett v. Thorburn, No. 86-1307, 1988 WL 27524, at *1 (6th Cir. Mar. 31, 1988)
(concluding that an official-capacity suit against a judge who presided over state-court litigation
was barred by the Eleventh Amendment). Thus, Green has no workable theory for holding
Nicholson liable, and the Court will therefore dismiss with prejudice Green’s claim against him.
See Iqbal, 556 U.S. at 678.
III.

Conclusion

Green’s “complaint is rambling, disjointed, implausible, and fails, as it is required to do,
to contain ‘either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.’” Watkins v. FBI, No. 3:13CV–204–S, 2013 WL
3324065, at *2 (W.D. Ky. July 1, 2013) (quoting Scheid, 859 F.2d at 426). Accordingly, and the
Court being otherwise sufficiently advised, it is hereby
ORDERED as follows:
(1)

Ballinger’s motion to dismiss, construed as a motion for judgment on the

pleadings (D.N. 15), is GRANTED. Green’s claims against Ballinger are DISMISSED with
prejudice.

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(2)

Nicholson’s motion for judgment on the pleadings (D.N. 26) is GRANTED.

Green’s claims against Nicholson are DISMISSED with prejudice.
(3)

The Clerk of Court is DIRECTED to terminate James Ballinger and James

Nicholson as defendants in the record of this matter.
October 26, 2017

David J. Hale, Judge
United States District Court

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