Brown v. O'Connor et al

Filing 50

ORDER ADOPTING REPORT AND RECOMMENDATIONS 40 . Accordingly, Defendants Motions to Dismiss Plaintiffs Complaint (Docs. 12, 20, 22) are GRANTED, and Defendants Bergeron, Myers, OConnor, Zayas, Jenkins, Ruehlman, Laing, Manning, and City of Cincinnati are dismissed from this action. The Claims against Defendants Deters and Powers are dismissed sua sponte. This action is, therefore, TERMINATED from the docket of this Court. Signed by Judge Susan J. Dlott on 3/27/2024. (wam)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Terry Brown,
Plaintiff,
v.
Maureen O’Connor, et al.,
Defendants.

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Case No. 1:23-cv-183
Judge Susan J. Dlott
Order Adopting Report and
Recommendation

This matter is before the Court on the Report and Recommendation (“R&R”) (Doc. 40)
entered by Magistrate Judge Stephanie Bowman. Plaintiff Terry Brown brought this 42 U.S.C. §
1983 action against former Chief Justice of the Ohio Supreme Court Maureen O’Connor; First
District Court of Appeals of Ohio Judges Marilyn Zayas, Judge Beth Myers, and Judge Pierre
Bergeron; retired Hamilton County Common Pleas Court Judge Robert Ruehlman; Hamilton
County Common Pleas Court Judge Christian Jenkins; former Hamilton County Prosecuting
Attorney Joseph Deters; Hamilton County Prosecuting Attorney Melissa Powers1; City of
Cincinnati Attorneys Mark Manning and David Laing; and the City of Cincinnati. (Doc. 1.)
I.

BACKGROUND
Plaintiff filed this action on April 3, 2023. (Doc. 1.) The Complaint is “rambling, vague

and sometimes incomprehensible.” (Doc. 40 at PageID 533.) The Magistrate Judge set forth the
following relevant allegations from Plaintiff’s Complaint. (Doc. 40 at PageID 533–537; Doc. 1
at PageID 4–6.)
Plaintiff Terry Brown is an African-American man and resident of the State of Ohio and
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As the Magistrate Judge noted, the caption of the Complaint indicated that Hamilton County
may be a defendant along with Deters and Powers, but no specific allegations were alleged
against the County in the body of the Complaint. (Doc. 40 at PageID 534 n.1.)
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Hamilton County. (Doc. 1 at PageID 4.) Defendant State of Ohio/The Supreme Court of
Ohio/Chief Justice Maureen O’Connor is/was the duly elected Chief Justice of the Ohio Supreme
Court within a state division of government, governed by the laws of the State of Ohio and U.S.
Constitution. (Id.) Defendants Marilyn Zayas, Beth Myers, and Pierre Bergeron are, at the
relevant times, duly elected judges on the Hamilton County, Ohio Court of Appeals, First
District and are governed by the laws of the State of Ohio and U.S. Constitution. (Id.)
Defendants Robert Ruehlman and Christian Jenkins are, at the relevant times, duly elected
judges on the Hamilton County, Ohio Court of Common Pleas and governed by the laws of the
State of Ohio and U.S. Constitution. (Id. at PageID 5.) Defendants Mark Manning and David
Laing are employed as attorneys for the City of Cincinnati and governed by the laws of the State
of Ohio and U.S. Constitution. (Id.) Defendants Joseph Deters, former Hamilton County
Prosecutor, and Melissa Powers, current Hamilton County Prosecutor, are employed by the
Hamilton County Prosecutor’s Office and Hamilton County, Ohio. (Id. at PageID 6.) It is
alleged that they each exercise final policymaking, have authority to establish final conducts,
discipline and decisions for all employees of Hamilton County, and are a “person” under 24
U.S.C. § 1983, acting under color of state law. (Id. at PageID 6.) Defendant City of Cincinnati
is a governmental agency within a state division of government, governed by the laws of the
State of Ohio and the U.S. (Id. at PageID 6.) The individual defendants are sued in their
individual and official capacities. (Id. at PageID 4–6.)
As aptly set forth by the Magistrate Judge, Plaintiff “makes the general assertion that
African Americans are treated differently in the Court system than ‘white’ high-ranking
officials.” (Doc. 40 at PageID 533.) Plaintiff asserts four constitutional claims under 42 U.S.C.
§ 1983 and two state law claims for negligent and/or intentional infliction of emotional distress.

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He claims the Defendants violated his Constitutional rights by:
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Depriving/Discriminating/Violating Ohio Public Records Act Ohio Revised Code
149.43 to Avoid Plaintiff Terry Brown/The General Public Access To the
Complaint/Affidavit and Arrest & Search Warrants suppose[d] to be filed/public
records in Sate of Ohio v Terry Brown-B1602390.
Depriving/Discriminating/Punishing/Violating Due Process Rights as a Pro Se
litigant/United States Citizen for filing Court Proceedings preserving rights to the
First Amendment of the U.S. Constitution: for simply demanding [Public Records]
from Court Judges, City/County Government – City of Cincinnati and Hamilton
County, Ohio, Hamilton County Prosecutor’s Office Refused to Comply with
Mandated State Laws/the Public Records Act R. C. 149.43/ Higher Courts
Mandated/Superior Court Order filed (November 25, 2020) in Terry Brown v. City of
Cincinnati & (BMV) -A1900301-Appeals Court Case#C2000031 linked to case
A1900301, Terry Brown v. City/Village of St. Bernard-Case #A2100407, State of
Ohio ex rel. Terry Brown v. Judges of the First District Court of Appeals-2022-0895
and [all] other cases linked to the originated case State of Ohio v. Terry BrownB1602390 the deprivation/discriminating/illegal conduct continues from May 10,
2022 to the current date.
Continuing/Depriving/Violating- Race Discrimination in Court Cases/Proceedings
that involves Plaintiff Terry Brown-State of Ohio v. Terry Brown-B1602390, former
Hamilton County Common Pleas Court Judge Tracie Hunter (State of Ohio v. Tracie
Hunter- Case #B14001100) and former City of Cincinnati Council Member Wendell
Young (State of Ohio v Wendell Young-Case #B2101142) to the current date.

(Doc. 1 at PageID 3 (emphases removed).) The Magistrate Judge also extensively summarized
the history of Plaintiff’s interactions with the Defendants in his state court cases and his
disagreement with their rulings and official conduct. (Doc. 40 at PageID 535–537.)
As to his specific claims, Plaintiff asserts the following: (1) “42 U.S.C. § 1983: Violation
of Free Speech/Expression Rights To File Request for Public Records-First and Fourteenth
Amendments”; (2) “42 U.S.C. § 1983: Violation of the Right to Due Process of Law in Court
Proceedings (Fifth and Fourteenth Amendments)”; (3) “42 U.S.C. § 1983: Violation The [sic]
Right To Freedom From Discrimination based on race (Fourteenth Amendment)”; (4) “42 U.S.C.
§ 1983: Ratification – Fourth and Fourteenth Amendments”; (5) “State Law Claim: Negligent
and Intentional Infliction of Emotional Distress”; (6) Punitive Damages: Individual/Personal
Capacity.” (Doc. 1 at PageID 26–31.) Plaintiff seeks declaratory judgment, compensatory
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damages, punitive damages, attorneys’ fees, and any other relief. (Id. at PageID 32.)
Defendants O’Connor, Zayas, Myers, and Bergeron (the “State Judge Defendants”)
moved to dismiss pursuant to Rule 12(b)(1) and 12(b)(6). (Doc. 12.) The State Judge
Defendants argue that Plaintiff’s claims are barred by Eleventh Amendment immunity or
absolute judicial immunity, and, even if not barred, his Complaint fails to state any viable claims.
Defendants Ruehlman and Jenkins (the “County Judge Defendants”) moved to dismiss on the
basis of judicial immunity, lack of case or controversy, and failure to state a claim. (Doc. 20.)
Finally, Defendants Manning, Laing, and the City of Cincinnati (the “City Defendants”) moved
to dismiss pursuant to Rule 12(b)(6). (Doc. 22.) They argue Plaintiff failed to state a claim for
relief and that the Manning and Laing are entitled to qualified immunity and the City of
Cincinnati to sovereign immunity. Plaintiff responded in opposition, and Defendants filed
replies.2 (Docs. 27, 28, 30, 31, 32, 33, 36, 37.)
On February 21, 2024, the Magistrate Judge recommended that Defendants’ Motions to
dismiss (Docs. 12, 20, 22) be granted and the moving Defendants be dismissed from the action.
(Doc. 40 at PageID 548.) The Court also recommended that Deters and Powers be sua sponte
dismissed and the matter be terminated from the docket of this Court. (Id.)
On March 4, 2024, Plaintiff filed Objections to the R&R. (Doc. 43.) Defendants filed
responses in opposition to Plaintiff’s objections urging the Court to adopt the Magistrate Judge’s
R&R. (Docs. 44, 45, 46, 48.) Plaintiff also filed a Reply.3 (Doc. 36.) For the reasons that
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Hamilton County Prosecutors Deters and Powers (the “City Prosecutor Defendants”) did not
file a motion to dismiss. (Doc. 40 at PageID 548.)

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Rule 72(b) does not authorize a reply brief to be filed in support of a party’s objections. S.D.
Ohio Local Rule 7.2(a)(2) provides that a party must obtain leave of court and show good cause
prior to filing additional memoranda. Even if considered, Plaintiff’s Reply does not change the
Court’s conclusions.
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follow, the Court will ADOPT the R&R.
II.

STANDARD OF LAW
Title 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure Rule 72(b)(1)

authorize magistrate judges to make recommendations concerning dispositive motions that have
been referred to them. Parties then have fourteen days to file and serve specific written
objections to the report and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
If a party files objections to a report and recommendation on a dispositive matter, a district judge
must review the objections under the de novo standard. Baker v. Peterson, 67 F. App’x 308, 310
(6th Cir. 2003).4 “The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (substantially similar).
“A party’s objection should be specific, identify the issues of contention, and ‘be clear
enough to enable the district court to discern those issues that are dispositive and contentious.’”
Chapple v. Franklin Cnty. Sheriff’s Officers FCCC 1 & 2, No. 2:21-cv-05086, 2022 WL
16734656, at *2 (S.D. Ohio Nov. 7, 2022) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir.
1995)). The objecting party has the burden to “pinpoint those portions of the magistrate’s report
that the district court must specially consider.” Id. (citing Mira v. Marshall, 806 F.2d 636, 637
(6th Cir. 1986) (quotation marks and citation omitted)). “When a pleader fails to raise specific
issues, the district court will consider this to be ‘a general objection to the entirety of the
magistrate report[, which] has the same effects as would a failure to object.’” Id. (quoting
Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991)).
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“[T]he district court need not provide de novo review where the objections are frivolous,
conclusive or general.” Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam)
(cleaned up). Additionally, de novo review applies only to matters involving disputed facts. Id.
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III.

ANALYSIS
A. Failure to Assert Specific Objections
As an initial matter, Plaintiff failed to assert specific objections to the Magistrate Judge’s

R&R, which constitutes a general objection and has the same effect as a failure to object. In his
filing, Plaintiff disagrees with the Magistrate Judge characterizing his Complaint as rambling,
vague, and incomprehensible. (Doc. 43 at PageID 554–555.) Plaintiff extrapolates that he
should have been permitted to file a more definite statement if that Magistrate Judge believed his
Complaint to be difficult to understand, and he also disagrees with the Magistrate Judge denying
a separate motion to clarify her R&R. (Id.) Plaintiff also generally attempted to reassert his
initial claims and rely on his prior pleadings.
None of these “objections” is specific enough to identify with particularity an issue with
the Magistrate Judge’s legal analysis. The Magistrate Judge did a thorough job giving meaning
to Plaintiff’s lengthy and difficult to understand Complaint while demonstrating clear knowledge
and application of the relevant law. The Magistrate Judge relied on accurate, well-settled law
and correctly concluded that all three motions to dismiss are well-taken and that sua sponte
dismissal of the claims against Deters and Powers is warranted.
B. De Novo Review
Nonetheless, even if the Court conducts a de novo review of the Magistrate Judge’s R&R,
the Court agrees with the Magistrate Judge’s recommendations.
1. State Judge Defendants O’Connor, Zayas, Myers, and Bergeron
As to the State Judge Defendants O’Connor, Zayas, Myers, and Bergeron, the Magistrate
Judge correctly concluded that their Motion to Dismiss (Doc. 12) is well taken on multiple
grounds. First, she found Plaintiff’s claims for monetary relief against the State Judge

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Defendants as state employees in their official capacities is barred by the Eleventh Amendment
to the United States Constitution. Maben v. Thelen, 887 F.3d 252, 270 (6th Cir. 2018); see Johns
v. Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985) (acknowledging Ohio has not
waived its Eleventh Amendment immunity from suit in the federal courts). The undersigned
agrees that Eleventh Amendment immunity bars Plaintiff’s suit here.
Further, the Magistrate Judge also correctly found that the State Judge Defendants are
immune from this suit, as it is clear from the face of Plaintiff’s Complaint that the complained-of
conduct fits within their capacities as judges and the conduct judicial in nature. Mireles v. Waco,
502 U.S. 9, 9–10 (1991); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). As here, the
judicial immunity inquiry is typically “simple and non-controversial when applied to
‘paradigmatic judicial acts.’” Barrett, 130 F.3d at 255 (quoting Forrester v. White, 484 U.S.
219, 227 (1988)). Thus, the State Judge Defendants are entitled to absolute judicial immunity.
Alternately, the Magistrate Judge found that Plaintiff’s Complaint failed to state a claim
for relief under federal law against any of the State Judge Defendants as Plaintiff appears to
allege that they violated his constitutional rights by not ruling in his favor in underlying actions
involving access to public records. She concluded that Plaintiff has not alleged facts supporting
a claim for relief under a state law theory of liability, and the Court should decline
supplementary jurisdiction over those state claims. See 28 U.S.C. § 1367(c)(3). The
Undersigned agrees.
2. County Judge Defendants Ruehlman and Jenkins
As to the County Judge Defendants Ruehlman and Jenkins, the Magistrate Judge
recommended that their Motion to Dismiss (Doc. 20) be granted. She correctly found that the
County Judge Defendants are entitled to absolute judicial immunity, as the conduct Plaintiff

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complains of is clearly judicial in nature and the County Judge Defendants acted with proper
jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356–357 (1978); King v. Love, 766 F.2d
962, 966–967 (6th Cir. (1985), cert. denied, 474 U.S. 971 (1985). In addition, the claims against
the County Judge Defendants are properly dismissed for want of case or controversy as
Plaintiff’s claims arise from their acting in their official capacity as judges. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 64 (1997) (discussing the case-or-controversy
requirement for standing to sue in federal court). Finally, Plaintiff failed to state a claim against
the County Judge Defendants as the Complaint fails to allege that Plaintiff was deprived of any
right secured by the Constitution. The Court also agrees that Plaintiff has not alleged facts to
support a state law theory of liability, and the Court should decline to exercise supplemental
jurisdiction. See 28 U.S.C. § 1367(c)(3).
3. Defendants Manning, Laing, and City of Cincinnati
As to Defendants Manning, Laing, and the City of Cincinnati, the Magistrate Judge
appropriately recommended granting their Motion to Dismiss (Doc. 22.) The Magistrate Judge
properly concluded that the Complaint fails to state a claim for relief against the City of
Cincinnati, for which liability only attaches under 42 U.S.C. § 1983 where the municipality
causes the constitutional violation at issue. See Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 691–693 (1978). “Only where a failure to train reflects a ‘deliberate’ or
‘conscious’ choice by a municipality—a ‘policy’ as defined by our prior cases—can a city be
liable for such a failure under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389 (1989).
Plaintiff’s Complaint fails to allege any such unconstitutional policy or custom to establish
municipal liability on the part of the City of Cincinnati.

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The § 1983 claims against Manning and Laing fail to allege a cognizable claim for relief,
as the Complaint fails to include any specific actions by Manning and Laing to demonstrate a
violation of Plaintiff’s constitutional rights. See Heyerman v. Cnty. of Calhoun, 680 F.3d 642,
647 (6th Cir. 2012) (“Persons sued in their individual capacities under § 1983 can be held liable
based only on their own unconstitutional behavior.”) The Undersigned also agrees with the
Magistrate Judge’s conclusion that Manning and Laing are entitled to qualified immunity
because Plaintiff failed to allege any unconstitutional behavior by them. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.”); see also O.R.C. § 2744.02 (political subdivision not liable for damages unless an
exception applies). Lastly, the Court agrees that the Complaint fails to state a state law claim for
relief, but in any event, it should decline to exercise supplemental jurisdiction over state law
claims. See 28 U.S.C. § 1367(c)(3). The Undersigned agrees.
4. Defendants Deters and Powers
Defendants Deters and Powers filed an Answer but unlike the other Defendants, did not
move to dismiss. The Court agrees with the Magistrate Judge’s sua sponte recommendation to
dismiss the claims against Deters and Powers. A district court may sua sponte dismiss a
complaint for lack of subject matter jurisdiction under Rule 12(b)(1) “when the allegations of a
complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no
longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
As the Magistrate Judge described, the Complaint appears to allege that Plaintiff issued a
subpoena to Deters in a case, but he did not testify. (Doc. 1 at PageID 21.) Instead, an

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investigator with the Hamilton County Prosecutor’s office filed an affidavit. Plaintiff also
alleges that Deters was appointed to the Supreme Court of Ohio and his appointment “plays a
part in the [continued] political move for Deters and how Defendants/parties mention within
worked so hard to deprive/discriminate and Punished against Plaintiff for their [own] personal
gain….” (Doc. 1 at PageID 26.) As to Powers, although she was named as a Defendant, there
are no substantive allegations against her.
The Undersigned agrees with the Magistrate Judge’s recommendation that the claims
against Deters and Powers be dismissed. There is no factual content or context from which the
Court may infer that Deters and/or Powers violated Plaintiff’s federal rights.5
IV.

CONCLUSION
In conclusion, the Magistrate Judge’s R&R (Doc. 40) is ADOPTED. Defendants’

Motions to Dismiss Plaintiff’s Complaint (Docs. 12, 20, 22) are GRANTED, and Defendants
Bergeron, Myers, O’Connor, Zayas, Jenkins, Ruehlman, Laing, Manning, and City of Cincinnati
are dismissed from this action. The Claims against Defendants Deters and Powers are dismissed
sua sponte. This action is, therefore, TERMINATED from the docket of this Court.
IT IS SO ORDERED.
BY THE COURT:
S/Susan J. Dlott
Susan J. Dlott
United States District Judge

Even if Plaintiff did so state a claim, Deters and Powers would be entitled to prosecutorial
absolute and/or qualified immunity for the same reason.
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