Perez et al v. Law Offices of John D. Clunk Co. L.P.A. et al
Filing
18
Memorandum of Opinion and Order. Defendant Law Offices of John D. Clunk's Motion for Judgment on the Pleadings 6 , Bayview Loan Servicing's Motion to Dismiss 8 , and the Cuyahoga County Sheriff's Offices Motion to Dismiss [1 6] are granted, Plaintiff's Motion to Rule on the Pleadings 2 and Motion for Summary Judgment 3 are denied, and this action is dismissed. The Court certifies, pursuant to 28:1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Dan A. Polster(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM PEREZ, et al.,
Plaintiffs,
vs.
LAW OFFICES OF
JOHN D. CLUNK, CO. L.P.A., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
CASE NO. 1:15 CV 701
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
AND ORDER
Pro se Plaintiffs William Perez and Alicia Ruitto filed this action under 42 U.S.C. §§
1983, 1985, 1986, 1988, and 18 U.S.C. §§ 24, 242, 641, 1341, 1342, and 2315 against the Law
Offices of John D. Clunk, Co., LP.A. (“Law Firm”), Bayview Loan Servicing, LLC.
(“Bayview”), and the Cuyahoga County Sheriff’s Office (“Sheriff’s Office”). In the Complaint
(Doc. # 1), Plaintiffs challenge the validity of a commercial mortgage loan, which was the
subject of a foreclosure action in the Cuyahoga County Court of Common Pleas. See Bayview
Loan Servicing, LLC v. Perez, No. 787650 (Cuyahoga Cty Ct. Comm. Pl. Mar. 25, 2015). They
seek monetary damages and legal title to the commercial property.
I. BACKGROUND
Plaintiff Alicia Ruitto purchased a commercial property on 9613 Madison Avenue,
Cleveland, Ohio. She was the record title holder of the property. In 2004, Ruitto executed a
mortgage on the property in the sum of $ 116,350.00 in favor of Interbay Funding, LLC. Perez
did not sign the mortgage. That mortgage was assigned to Bayview.
In 2012, Bayview filed a foreclosure action in the Cuyahoga County Court of Common
Pleas. See Bayview Loan Servicing, LLC v. Perez, No. 787650 (Cuyahoga Cty Ct. Comm. Pl.
Mar. 25, 2015). Perez filed an answer and numerous other pro se documents claiming to be
Ruitto’s common law husband, and indicating he had dower interests in the property superior to
Bayview’s mortgage. Bayview filed a Motion for Summary Judgment. They supplemented the
Motion on August 8, 2014 to address Perez’s purported dower interest. On January 23, 2014,
the Magistrate Judge determined there was no credible evidence that Perez was Ruitto’s
common law husband, and Perez had no interest in the property or the foreclosure action. The
court adopted the Magistrate’s decision on February 18, 2015.
The Magistrate granted summary judgement to Bayview on March 6, 2015. In that
decision, he reiterated that Perez had no interest in the subject property and the claims against
him were previously dismissed. Judgment was granted to Bayview in the amount of
$103,193.25 plus interest from April 1, 2011. The property was ordered to be sold a sheriff’s
sale. That order was adopted by the court on March 31, 2015.
The Cuyahoga County Court of Common Pleas docket indicates Plaintiffs filed a Notice
of Removal of the foreclosure action to this federal court on April 9, 2015. No such Notice of
Removal was filed in this Court. Instead, Plaintiffs filed a new civil action on April 9, 2015,
listing Bayview, the Law Firm, and the Sheriff’s Office as Defendants.
In this Complaint, Plaintiffs contend they signed an unconscionable contract to purchase
property located at 3952 Circlewood Dr., Cleveland, Ohio. The Circlewood Drive property
appears to a residential property and was not the subject of the foreclosure action. They contend
-2-
the purchase of this property constituted “fraud in the factum” because they were not aware they
were signing a promissory note or that the lender was obtaining a promissory note. (Doc. # 1 at
2). They allege they believed they were obtaining a loan for the property. They assert the
lender “created funds obtained by Petitioner’s signature on the promissory note.” They indicate
the property was in their name first before a lien was put on the title. Plaintiffs allege there was
never a physical exchange of money at the closing of the purchase.
Plaintiffs then indicate the Defendants filed a foreclosure action against them in 2012,
referring to the foreclosure action on Ruitto’s Madison Avenue commercial property. They
assert that pursuant to the National Housing Act, in order for a mortgagee to initiate a
foreclosure action, certain requirements must be met. They indicate an “organizational
certificate [must] be acknowledged before a judge of some court of records and [must], with the
acknowledgment, [be] authenticated by the court and transmitted to the Comptroller of
Currency, who shall record and preserve the same in his office.” (Doc. #1 at 5). They claim
Bayview had no right to accept the assignment of the mortgage. They also contend they have a
common law marriage and the durable power of attorney purportedly executed by Alicia Ruitto,
provides Perez with an interest in the Madison Avenue property.
Plaintiffs assert eight claims for relief. First they indicate the Defendants denied them
“due course justice” and equal protection under color of state law. (Doc. #1 at 6). They seek
relief under 42 U.S.C. § 1983. Second, they allege the Defendants conspired to violate their
constitutional rights by going “in disguise to hold a sheriff’s sale.” (Doc. # 1 at 6). They
contend this is a violation of 42 U.S.C. § 1985, entitling them to damages under 42 U.S.C. §
1986. Third, Plaintiffs assert the court neglected to prevent a sale of the property. Fourth, they
-3-
assert the Defendants are liable for malicious abuse of process. Fifth, they assert the Defendants
are criminally liable to them under 18 U.S.C. §§ 241 and 242. Sixth, they assert claims of
intentional infliction of emotional distress. Seventh, they assert the Defendants are criminally
liable for mail fraud in violation of 18 U.S.C. §§ 1341 and 1342. Finally, Plaintiffs asserts they
were induced into signing a fraudulent promissory note in violation of 18 U.S.C. § 2315.
Although not formally stated as a cause of action, Plaintiffs also assert the Defendants aided and
abetted in a conspiracy to commit larceny in violation of 18 U.S.C. § 641. They seek monetary
damages in the amount of $ 2,400,000.00 and free and clear title to the “subject property.”
(Doc. #1 at 15).
The Law Firm filed a Motion for Judgment on the Pleadings pursuant to Federal Civil
Procedure Rule 4, and Rule 12(f). (Doc. #6). They first indicate they have not been properly
served with the complaint in this matter. In addition they contend: (1) Plaintiffs cannot assert
constitutional claims against private parties under 42 U.S.C. § 1983; (2) Plaintiffs are not
members of a protected class to assert a conspiracy claim under 42 U.S.C. § 1985; (3) Plaintiffs
cannot maintain a private criminal action; (4) Plaintiffs cannot assert abuse of process claims for
instituting a proper legal action and litigating through to judgment; (5) Plaintiffs failed to allege
any outrageous conduct for an intentional infliction of emotional distress claim; and (6)
statements made during court proceedings cannot be used as the basis for a common law fraud
claim. They state this Court lacks subject matter jurisdiction to entertain this action.
Bayview filed a Motion to Dismiss the Complaint under Federal Civil Procedure Rule
12(b)(6). (Doc. #8). Bayview claims that as private parties, they cannot be held liable under 42
U.S.C. § 1983. They assert Plaintiffs did not allege class-based discrimination as required to
-4-
state a claim under 42 U.S.C. § 1985. They contend they did not owe a duty to Plaintiffs and
therefore did not neglect to prevent injury to them. They also assert that this claim is
unintelligible. They indicate Plaintiffs have not alleged sufficient facts to suggest the
foreclosure process was perverted or brought for an improper purpose. They assert Plaintiffs
cannot bring criminal charges against them in a civil action. They claim Plaintiffs did not allege
they engaged in outrageous actions to state a claim for intentional infliction of emotional
distress.
Finally, the Sheriff’s Office filed a Motion to Dismiss pursuant to Federal Civil
Procedure Rule 12(b)(1) and (12)(b)(6). (Doc. #16). They assert the Plaintiffs are barred from
litigating this case under the Rooker-Feldman Doctrine and the Younger Doctrine. They claim
the Plaintiffs are attempting to collaterally attack the state court judgment in the foreclosure
case, the injury was caused by the state court judgment, and this Court lacks subject matter
jurisdiction to consider Plaintiffs’ claims. Alternatively, they assert the Plaintiffs’ Complaint is
so vague and stated only through “buzz words” that it fails to state a viable claim for relief.
They indicate it lacks a coherent legal theory and should be dismissed on that basis.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over
the subject matter” of claims asserted in the Complaint. Fed.R.Civ.P. 12(b)(1). Generally,
Fed.R.Civ.P. 12(b)(1) motions fall into two categories: facial attacks and factual attacks.
Fed.R.Civ.P. 12(b)(1); United States v. Richie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack
tests the adequacy of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974), overruled
on other grounds by Davis v. Scherer, 468 U.S. 183 (1984), while a factual attack evaluates the
-5-
actual existence of subject matter jurisdiction, Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735,
739 (N.D. Ohio 1997). The importance of this distinction has to do with the nature of the
Court’s consideration of the facts and allegations presented in connection with the Rule 12(b)(1)
motion. If the motion presents a facial attack, the Court must take all of the material allegations
in the Complaint as true and construe them in the light most favorable to the non-moving party.
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)(citing Scheuer, 416 U.S. at 235-37).
In contrast, if the motion presents a factual attack, then the Court is free to consider extrinsic
evidence and may weigh the evidence of its own jurisdiction without affording the Plaintiff the
presumption of truthfulness. Ritchie, 15 F.3d at 598; Rogers v. Stratton Indus., Inc., 798 F.2d
913, 915 (6th Cir. 1986); see also Ernst v. Rising, 427 F.3d 351, 372 (6th Cir. 2005). The
Plaintiff has the burden of proving subject matter jurisdiction in order to survive a Motion to
Dismiss pursuant to Rule 12(b)(1). Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.
1996). Lack of subject matter jurisdiction is a non-waivable, fatal defect. Von Dunser v.
Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).
When deciding a Motion to Dismiss under Federal Civil Rule 12(b)(6), the function of
the Court is to test the legal sufficiency of the Complaint. See Mayer v. Mulod, 988 F.2d 635,
638 (6th Cir. 1993). The Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) and recently in Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) clarified the law
regarding what a Plaintiff must plead in order to survive a Motion to Dismiss under Rule
12(b)(6).
When determining whether a Plaintiff has stated a claim upon which relief can be
granted, the Court must construe the Complaint in the light most favorable to the Plaintiff,
-6-
accept all factual allegations as true, and determine whether the Complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555. The
Plaintiff’s obligation to provide the grounds for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.
Although a Complaint need not contain detailed factual allegations, its “factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the Complaint are true.” Id. The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
The Court in Iqbal, 556 U.S. at 677-78 , further explains the “plausibility” requirement,
stating that “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.” Iqbal, 556 U.S. at 678. Furthermore, “the plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a Defendant acted
unlawfully.” Id. This determination is a “context-specific task that requires the reviewing
Court to draw on its judicial experience and common sense.” Id.
The Sixth Circuit has held that a Court may consider allegations contained in the
Complaint, as well as exhibits attached to or otherwise incorporated in the Complaint, all
without converting a Motion to Dismiss to a Motion for Summary Judgment. FED. R. CIV. P.
10(c); Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997).
III. ANALYSIS
A.
Circlewood Drive Property
As an initial matter, the Complaint mentions both the property on Circlewood Drive, and
-7-
the commercial property on Madison Avenue. It is not clear whether Plaintiffs intended to
assert claims with respect to both the Circlewood Drive Property and the Madison Avenue
property, or whether the reference to Circlewood was a typographical error. The commercial
property is the only property concerned in the foreclosure action. In the Complaint, Plaintiffs
contend they signed an unconscionable contract to purchase the property located at 3952
Circlewood Drive, Cleveland, Ohio. They allege the contract was unconscionable because they
were not aware that they were signing a promissory note.
To the extent Plaintiffs intended this statement to apply to their purchase of the
Circlewood Drive property, there are no allegations in the Complaint to suggest how the Law
Firm, Bayview, or the Sheriff’s Office were involved in that transaction. Plaintiff cannot
establish the liability of any Defendant absent a clear showing that the Defendant was
personally involved in the activities which form the basis of the alleged unconstitutional
behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v. Hainesworth, No. 95-3186,
1995 WL 559381 (6th Cir. Sept. 20, 1995). The Complaint simply contains no facts which
reasonably associate the Defendants named in this federal action to any of the claims set forth in
the Complaint. Any claims pertaining to the purchase of that property are dismissed under
Federal Civil Procedure Rule 12(b)(6).
B.
Madison Avenue Property - Standing
To the extent that the reference to the Circlewood property was a typographical error,
and all allegations were intended to refer to the Madison Avenue property, William Perez lacks
standing to bring this action. The Cuyahoga County Court of Common Pleas already
determined that Perez lacks standing to assert claims pertaining to the foreclosure because he
-8-
did not sign the mortgage, was not the record title holder of the property, and legally was not the
common law husband of Ruitto. Plaintiff cannot file an action in federal court to relitigate
matters that were already decided in state court proceedings. Federal Courts must give the same
preclusive effect to a state-court judgments and decisions as those judgments and decisions
would receive in the state courts. 28 U.S.C. § 1738; Abbott v. Michigan, 474 F.3d 324, 330 (6th
Cir. 2007); Young v. Twp. of Green Oak, 471 F.3d 674, 680 (6th Cir. 2006).
In Ohio, the doctrine of issue preclusion, or collateral estoppel, “precludes the
relitigation of an issue that has been actually and necessarily litigated and determined in a prior
action.” MetroHealth Med. Ctr. v. Hoffman-LaRoche, Inc., 80 Ohio St.3d 212, 217 (1997).
Issue preclusion applies when a fact or issue “(1) was actually and directly litigated in the prior
action; (2) was passed upon and determined by a court of competent jurisdiction; and (3) when
the party against whom [issue preclusion] is asserted was a party in privity with a party to the
prior action.” Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994). In this case, the Common
Pleas Court addressed the issue of Perez’s standing and determined he had no interest in the
property or the foreclosure litigation. This Court must give full faith and credit to that decision.
Therefore, Perez lacks standing to assert any claims pertaining to the mortgage on the Madison
Avenue property, or the foreclosure action based on that mortgage.
Moreover, Perez has already been informed by this Court that he cannot use a durable
power of attorney to appear and litigate on behalf of Ruitto. Under 28 U.S.C. § 1654, cases in
the courts of the United States may be conducted only by the parties personally or through a
licensed attorney. The statute does not allow for an unlicensed layman to represent anyone in
federal court other than himself, even with a durable power of attorney. See Shepherd v.
-9-
Wellman, 313 F.3d 963, 970–71 (6th Cir. 2002); J.M. Huber Corp. v. Roberts, No. 88-6160,
1989 WL 16866, at *1 (6th Cir. Feb. 17, 1989); Huff v. First Energy Corp., No. 5:12cv2583,
2013 WL 3715174, at *3-4 (N.D. Ohio July 15, 2013). The Court lacks subject matter
jurisdiction to entertain any claims filed by Perez on behalf of Ruitto.
C.
Failure to State a Claim
This leaves the claims of Ruitto pertaining to the Madison Avenue property, and those
claims fails to meet basic notice pleading requirements to state a claim upon which relief may
be granted. Her Complaint contains very few factual allegations. While the parties have been
litigating the foreclosure matter in state court for the past three years and are familiar with the
factual background that gave rise to that action, this Court has only the pleading in front of it,
and the Motions filed by the parties. Plaintiff states she purchased property but was not aware
she was signing a promissory note. She states that an unknown monetary amount was acquired
by the Defendants when they obtained a “blue ink signature on the promissory note.” (Doc. # 1
at 2). She claims there was “fraud in the inducement” and rights cannot be acquired by fraud.
The remainder of the pleading is composed entirely of legal rhetoric. There is not even an
explanation as to how the Law Firm, Bayview, and the Sheriff’s Office relate to the facts
alleged. Indeed, the Law Firm, the Sheriff’s Office, and Bayview do not appear to have had
anything to do with the signing of the Madison Avenue mortgage, or the Circlewood Drive
property. Plaintiff does not even mention the Defendants by name in the body of the Complaint.
Although the standard of review is liberal for pro se litigants, it requires more than bare
assertions of legal conclusions. Here, the Court had to look through exhibits attached to the
Defendants’ Motions and the state court docket in the foreclosure action just to deduce how
-10-
these Defendants are connected to Plaintiff. The very limited information provided by the
Plaintiff in the Complaint is insufficient to establish any of the causes of action she lists in her
pleading.
D.
Rooker-Feldman
In addition, the Sheriff’s Office contends Plaintiff’s claims are barred by the RookerFeldman Doctrine. United States District Courts do not have jurisdiction to overturn state court
decisions even if the request to reverse the state court judgment is based on an allegation that
the state court’s action was unconstitutional. Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 292 (2005). Federal appellate review of state court judgments can only occur in
the United States Supreme Court, by appeal or by writ of certiorari. Id. Under this principle,
generally referred to as the Rooker-Feldman Doctrine, a party losing his case in state court is
barred from seeking what in substance would be appellate review of the state judgment in a
United States District Court based on the party’s claim that the state judgment itself violates his
or her federal rights. Berry v. Schmitt 688 F.3d 290, 298-99 (6th Cir. 2012).
The Rooker-Feldman doctrine is based on two United States Supreme Court decisions
interpreting 28 U.S.C. § 1257(a).1 See District of Columbia Court of Appeals v. Feldman, 460
1
28 U.S.C. § 1257(a) provides:
Final judgments or decrees rendered by the highest court of a State
in which a decision could be had, may be reviewed by the Supreme
Court by writ of certiorari where the validity of a treaty or statute of
the United States is drawn in question or where the validity of a
statute of any State is drawn in question on the ground of its being
repugnant to the Constitution, treaties, or laws of the United States,
or where any title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of, or any
commission held or authority exercised under, the United States.
-11-
U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S.Ct. 149, 68 L.Ed. 362 (1923). This statute was enacted to prevent “end-runs around state
court judgments” by requiring litigants seeking review of that judgment to file a writ of
certiorari with the United States Supreme Court. The Rooker-Feldman doctrine is based on the
negative inference that, if appellate court review of state judgments is vested in the United
States Supreme Court, then such review may not occur in the lower federal courts. Exxon Mobil
Corp., 544 U.S. at 283-84; Kovacic v. Cuyahoga County Dep't of Children and Family Services,
606 F.3d 301, 308-311 (6th Cir. 2010); Lawrence v. Welch, 531 F.3d 364, 369 (6th Cir. 2008).
Rooker-Feldman is a doctrine with narrow application. It does not bar federal
jurisdiction “simply because a party attempts to litigate in federal court a matter previously
litigated in state court.” Exxon Mobil Corp., 544 U.S. at 293; Berry, 688 F.3d 298-99. It also
does not address potential conflicts between federal and state court orders, which fall within the
parameters of the doctrines of comity, abstention, and preclusion. Berry, 688 F.3d 299. Instead,
the Rooker-Feldman doctrine applies only where a party losing his or her case in state court
initiates an action in federal district court complaining of injury caused by a state court
judgment itself, and seeks review and rejection of that judgment. Berry, 688 F.3d 298-99; In re
Cook, 551 F.3d 542, 548 (6th Cir. 2009). To determine whether Rooker–Feldman bars a claim,
the Court must look to the “source of the injury the Plaintiff alleges in the federal complaint.”
McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir.2006); see Berry, 688 F.3d at 299;
Kovacic, 606 F.3d at 310. If the source of the plaintiff’s injury is the state-court judgment itself,
then the Rooker–Feldman doctrine bars the federal claim. McCormick, 451 F.3d at 393. “If there
-12-
is some other source of injury, such as a third party’s actions, then the Plaintiff asserts an
independent claim.” Id.; see Lawrence, 531 F.3d at 368–69. In conducting this inquiry, the
court should also consider the Plaintiff’s requested relief. Evans v. Cordray, No. 09–3998, 2011
WL 2149547, at *1 (6th Cir. May 27, 2011)
In this case, it is not clear from the Complaint whether Plaintiff is attacking the state
court judgment and asking this Court to overturn it, or whether she simply did not like the result
in state court and is attempting to relitigate the matter in federal court. To the extent she filed
this action in federal court to reverse the state court’s judgment of foreclosure or to stop the
sheriff’s sale of the property pursuant to the state court’s order, her claims must be dismissed.
This Court lacks subject matter jurisdiction under the Rooker-Feldman Doctrine to entertain
those types of claims or to grant that type of relief.
E.
Res Judicata
To the extent Plaintiff filed this action to relitigate matters which were already decided
in the state court in the hope of obtaining a more favorable result from this Court, her claims are
also barred. As stated above, federal courts must give the same preclusive effect to a state-court
judgments and decisions as those judgments and decisions would receive in the state courts. 28
U.S.C. § 1738; Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007); Young v. Twp. of Green
Oak, 471 F.3d 674, 680 (6th Cir. 2006).
Under Ohio law, the doctrine of res judicata dictates that “a final judgment or decree
rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is
conclusive of rights, questions and facts in issue as to the parties and their privies, and is a
complete bar to any subsequent action on the same claim or cause of action between the parties
-13-
or those in privity with them.” Johnson’s Island, Inc. v. Bd. of Twp. Trustees, 69 Ohio St.2d
241, 243 (1982). Application of the doctrine of res judicata does not depend on whether the
original claim explored all possible theories of relief. Brown v. Dayton, 89 Ohio St.3d 245, 248
(2000). Rather, “a valid, final judgment upon the merits of the case bars any subsequent action
‘based upon any claim arising out of the transaction or occurrence that was the subject matter of
the previous action.’” Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995).
In Ohio, the doctrine of res judicata encompasses the two related concepts of claim
preclusion and issue preclusion. State ex rel. Davis v. Pub. Emp. Ret. Bd., 120 Ohio St.3d 386,
392, 899 N.E.2d 975, 981 (2008). Under the Ohio doctrine of claim preclusion, “a valid, final
judgment rendered upon the merits bars all subsequent actions based upon any claim arising out
of the transaction or occurrence that was the subject matter of the previous action.” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 382 (1995). The doctrine of claim preclusion encompasses
“all claims which were or might have been litigated in a first lawsuit.” Id. By contrast, issue
preclusion, or collateral estoppel, “precludes the relitigation of an issue that has been actually
and necessarily litigated and determined in a prior action.” MetroHealth Med. Ctr. v. HoffmanLaRoche, Inc., 80 Ohio St.3d 212, 217 (1997). Issue preclusion applies when a fact or issue
“(1) was actually and directly litigated in the prior action; (2) was passed upon and determined
by a court of competent jurisdiction; and (3) when the party against whom [issue preclusion] is
asserted was a party in privity with a party to the prior action.” Thompson v. Wing, 70 Ohio
St.3d 176, 183 (1994).
The claims asserted in this case are barred by both issue preclusion and claim preclusion.
She could have and did challenge the validity of her mortgage in the state court proceeding.
-14-
The state court issued its opinion, granting judgment in favor of Bayview. This Court must give
full faith and credit to that judgment.
F.
42 U.S.C. § 1983
Even if Plaintiff’s claims were not barred by the Rooker-Feldman Doctrine or Res
Judicata, her Complaint fails to state a claim upon which relief may be granted. First, Plaintiff
cannot pursue claims under 42 U.S.C. § 1983 against the Law Firm, Bayview or the Cuyahoga
County Sheriff’s Department. To establish a prima facie case under 42 U.S.C. § 1983, she must
assert that a person acting under color of state law deprived her of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981). Generally to be considered to have acted “under color of state law,” the
Defendant must be a state or local government official or employee. The Law Firm and
Bayview are private parties, not government officials. A private party may be found to have
acted under color of state law to establish the first element of this cause of action only when the
party “acted together with or ... obtained significant aid from state officials” and did so to such a
degree that its actions may properly be characterized as “state action.” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982). An individual may also be considered a state actor if he or she
exercises powers traditionally reserved to a state. Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974). Merely being a participant in litigation does not make a private party a
co-conspirator or joint actor with the state. Dennis v. Sparks, 449 U.S. 24, 28 (1980). Plaintiff
does not allege any facts suggesting Bayview or the Law Firm could be considered state actors.
Furthermore, the Cuyahoga County Sheriff’s Office is not a legal entity capable of
being sued for purposes of § 1983. Petty v. County of Franklin, Ohio, 478 F.3d 341, 347 (6th
-15-
Cir. 2007). Under Ohio law, a police department or sheriff’s office is not a political
subdivision or government entity, but rather a sub-unit of the city government through which
the city fulfills its policing functions). Williams v. Dayton Police Dept., 680 F.Supp. 1075 (S.D.
Ohio 1987). Plaintiff cannot maintain an action against the Sheriff’s Office under § 1983.
G.
42 U.S.C. § 1985
Plaintiff also fails to state a claim for relief under 42 U.S.C. § 1985. To state a claim for
conspiracy under § 1985, Plaintiff must allege: (1) a conspiracy of two or more persons; (2)
with the purpose to deprive, directly or indirectly, a person or class of persons of equal
protection of the laws; (3) an act in furtherance of the conspiracy; and (4) which causes injury to
the person or property of Plaintiff or deprivation of any right or privilege of a citizen of the
United States. Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (citing United Bhd. of
Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983)). The acts that allegedly
“deprived the Plaintiff of equal protection must be the result of class-based discrimination.” Id.
(citing Newell v. Brown, 981 F.2d 880, 886 (6th Cir.1992)).
A Plaintiff fails to state an adequate claim if his or her allegations are premised upon
mere conclusions and opinions. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th
Cir.1987). Plaintiff must make sufficient factual allegations to link two alleged conspirators in
the conspiracy and to establish the requisite “meeting of the minds” essential to the existence of
the conspiracy. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir.1993).
Here Plaintiff did not allege facts to suggest the Defendants conspired against her or that
the conspiracy which was motivated by racial or other class-based invidiously discriminatory
animus. Bass v. Robinson, 167 F.3d 1041, 1050 (6th Cir. 1999). She does not mention her race
-16-
or suggest she belongs to a protected class which prompted the alleged conspiracy. In fact,
Plaintiff states only that “two or more people did conspire to go in disguise to hold a Sheriff’s
sale, depriving them...of equal protection of the law in the matter of CV-12-878650.” (Doc. # 1
at 6). She also states she was misled to believe a valid sale was obtained. None of these
allegations suggest racial or class-based discrimination nor the existence of “meeting of the
minds” among the Defendants to engage in a conspiracy.
H.
Criminal Statutes
Plaintiff also attempts to assert claims against the Defendants under 18 U.S.C. §§ 24,
242, 641, 1341, 1342, and 2315. These are criminal statutes. They do not provide a private
right of action to litigants in civil actions. Booth v. Henson, No. 06-1738, 2008 WL 4093498, at
*1 (6th Cir. Sept. 5, 2008); U.S. v. Oguaju, No. 02-2485, 2003 WL 21580657, *2 (6th Cir. July
9, 2003); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir.1994).
I.
State Law Claims
The remainder of Plaintiff’s claims arise, if at all, under state law. Supplemental
jurisdiction exists whenever state law and federal law claims derive from the same nucleus of
operative facts and when considerations of judicial economy dictate having a single trial.
United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966). The Court, however, may
exercise discretion in hearing state law matters. Id. at 726. In cases where the federal law
claims are dismissed before trial, the state law claims should also be dismissed. Id. Having
dismissed Plaintiff’s federal law claims, this Court declines jurisdiction to hear Plaintiff’s state
law claims.
-17-
IV. CONCLUSION
Accordingly, Defendant Law Offices of John D. Clunk’s Motion for Judgment on the
Pleadings (Doc. # 6), Bayview Loan Servicing’s Motion to Dismiss (Doc. # 8), and the
Cuyahoga County Sheriff’s Office’s Motion to Dismiss (Doc. # 16) are GRANTED, Plaintiff’s
Motion to Rule on the Pleadings (Doc. # 2) and Motion for Summary Judgment (Doc. #3) are
DENIED, and this action is DISMISSED. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this decision could not be taken in good faith.2
IT IS SO ORDERED.
/s/Dan Aaron Polster 7/20/15
Dan Aaron Polster
United States District Judge
2
28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
-18-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?