Rose v. Sage

Filing 4

REPORT AND RECOMMENDATIONS re 3 Complaint filed by J.R. Rose Objections to R&R due by 4/22/2013. It is therefore RECOMMENDED that: 1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e) (2)(B). 2. The Court cert ify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith, and therefore, deny plaintiff leave to appeal in forma pauperis. Signed by Magistrate Judge Stephanie K. Bowman on 4/3/13. (lk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
J.R. ROSE,
Plaintiff,

vs

JUDGE MICHAEL J. SAGE,
Defendant.

Case No. 1:13-cv-213

Dlott, J.
Bowman, M.J.

REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Chillicothe Correctional Institution in Chillicothe, Ohio, has
filed a complaint against Michael J. Sage, a judge on the Butler County, Ohio, Court of
Common Pleas. By separate Order issued this date, plaintiff has been granted leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua
sponte review of the complaint to determine whether the complaint, or any portion of it, should
be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see
also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.

Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th
Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d
at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional”
in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
Congress has also authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §1915 (e)(2)(B)(ii). A complaint filed by a
pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the
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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“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 (citing Twombly, 550 U.S. at 556). The Court must accept all wellpleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
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(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
Plaintiff, who is proceeding pro se, brings this action against Judge Sage, essentially
challenging the state-court judge’s ruling on April 23, 2012, declaring plaintiff to be a “vexatious
litigator” in a civil case that plaintiff had filed against Mary G. Paullus and others in the Butler
County Common Pleas Court. (See Doc. 1, Complaint, pp. 2, 5). As background, plaintiff
alleges that he was solicited by “family and friends” to invest their monies along with his own in
the stock market and sought the advice of a brokerage firm in doing so. (Id., p. 5). Plaintiff
states: “Unfortunately, with the market’s demise, the ‘partners’ lost a vast majority of their
disposable income.” (Id.). Plaintiff further avers that he pleaded to “erroneous charges” and
“voluntarily divested [himself] of [his] assets for remedy to the partners.” (Id.). Although the
complaint is difficult to follow, it appears that plaintiff brought the civil action in the Butler
County court against his “partners” in the stock market investment enterprise because they
“breached their agreement” with him and provided false information regarding their “losses to
the Butler County Court, . . . tax agencies, and various insurance carriers.” (Id.). Plaintiff claims
that in presenting “these facts, with evidence to the court, [he] was denied due process and equal
protection and wrongfully declared a vexatious litigator” in the state court proceeding. (Id.).
Plaintiff does not seek damages as relief. (See id., p. 6). Instead, he requests “injunctive
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relief from the declaration of vexatious litigator and the right of due process and equal protection
under the law.” (Id.).
Upon review of plaintiff’s allegations, the undersigned concludes that this Court lacks
jurisdiction to consider plaintiff’s complaint. Under the Rooker-Feldman doctrine, which arose
from the Supreme Court’s decisions in District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), the lower federal
courts are precluded “from exercising jurisdiction over cases brought by ‘state-court losers’
challenging ‘state-court judgments rendered before the district court proceedings commenced.’”
Lance v. Dennis, 546 U.S. 459, 460 (2006) (per curiam) (quoting Exxon Mobile Corp. v. Saudia
Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The doctrine is premised on the “the notion that
appellate review of state court decisions and the validity of state judicial proceedings is limited
to the Supreme Court under 28 U.S.C. § 1257, and thus that federal district courts lack
jurisdiction to review such matters.” See In re Cook, 551 F.3d 542, 548 (6th Cir. 2009) (and
cases cited therein).
The Sixth Circuit has held that the “pertinent question in determining whether a federal
district court is precluded under the Rooker-Feldman doctrine from exercising subject-matter
jurisdiction over a claim is whether the source of injury upon which plaintiff bases his federal
claim is the state court judgment.” In re Squire, 617 F.3d 461, 465 (6th Cir. 2010) (internal
citation and quotation omitted). “This is true regardless of whether the party challenges the
validity of the state court judgment on constitutional grounds.” Id. (quoting In re Cook, 551 F.3d
at 548); see also Lawrence v. Welch, 531 F.3d 364, 369 (6th Cir. 2008). Relevant factors to
consider in determining whether the plaintiff’s claims are barred from review by Rooker4

Feldman include “the nature of the relief demanded and the particular injury alleged.” See
Howard v. Whitbeck, 382 F.3d 633, 639 (6th Cir. 2004); cf. Catudal v. Browne, No. 2:12cv197,
2012 WL 1476088, at *2 (S.D. Ohio Apr. 24, 2012) (Frost, J.) (in determining that the plaintiff’s
claims against the judicial defendants were barred by Rooker-Feldman, the district court relied
on the fact that the “injunctive relief” ultimately sought by the plaintiff was another state-court
trial and that the source of the plaintiff’s alleged injuries were “the rulings and . . . judgment of
the state court”).
In this case, it is clear from the face of the complaint that Rooker-Feldman applies to bar
this Court from exercising jurisdiction over plaintiff’s claims challenging an unfavorable
judgment rendered by the defendant state-court judge almost a year before the instant action
commenced. See Lance, 546 U.S. at 460. The source of plaintiff’s injury upon which he bases
his federal complaint is the decision by the defendant declaring plaintiff to be a vexatious
litigator in the state-court civil action that he had filed against partners in an unsuccessful stock
market venture. Plaintiff only seeks injunctive relief in the form of an order overruling the
defendant’s “vexatious litigator” determination so that he can proceed with his claims against the
defendants in the state-court matter. Plaintiff’s conclusory assertion that he was denied “due
process” and “equal protection” in the state-court proceeding does not provide the Court with
jurisdiction to consider plaintiff’s claims. Cf. Catudal v. Browne, supra, 2012 WL 1476088, at
*2 (adopting Report and Recommendation to dismiss the complaint at screening stage because
the plaintiff’s claims that the state judicial defendants violated his due process and equal
protection rights by their various rulings in state-court divorce and child custody proceedings
were barred by Rooker-Feldman); see also Saunders v. Obama, No. 1:10cv836, 2012 WL
5

1606664, at *5-6 (S.D. Ohio May 7, 2012) (Barrett, J.).
Accordingly, in sum, the complaint should be dismissed with prejudice on the ground
that the Court lacks subject matter jurisdiction to consider plaintiff’s claims. See 28 U.S.C. §
1915(e)(2)(B).
IT IS THEREFORE RECOMMENDED THAT:
1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith,
and therefore, deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).

/s/ Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

J.R. ROSE,
Plaintiff,

Case No. 1:13-cv-213
Dlott, J.
Bowman, M.J.

vs

JUDGE MICHAEL J. SAGE,
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to this Report & Recommendation (AR&R@) within FOURTEEN (14) DAYS after being served
with a copy thereof. That period may be extended further by the Court on timely motion by either
side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,
and shall be accompanied by a memorandum of law in support of the objections. A party shall
respond to an opponent=s objections within FOURTEEN DAYS after being served with a copy of
those objections. Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).
cbc

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