Hillman v. State of Ohio et al

Filing 17

REPORT AND RECOMMENDATIONS that 8 MOTION to Dismiss Complaint filed by Ron O'Brien be granted & that 15 MOTION for Show Cause Order filed by Robert L. Hillman be denied. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/9/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert L. Hillman,

:

Plaintiff,

State of Ohio, et al.,
Defendants.

Case No.

:

v.

:

2:11-cv-607

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:
:

REPORT AND RECOMMENDATION
This case is before this Court to consider a motion to
dismiss filed by Defendant, Ron O’Brien, the Franklin County
Prosecuting Attorney (Doc. #8), and a motion for a show cause
order (Doc. #15) filed by Plaintiff, Robert Hillman.

For the

reasons that follow, the Magistrate Judge recommends that the
motion to dismiss be granted and that the claims against the
remaining defendants, the State of Ohio and the Franklin County
Prosecutor’s Office, be dismissed as well.

The Magistrate Judge

also recommends that the motion for a show cause order be denied.
I. Background
The following facts are considered true for purposes of this
motion only and are taken from Mr. Hillman’s complaint, as well
as the state court online docket for Mr. Hillman’s applications
to expunge his criminal records, of which this Court takes
judicial notice.

See State v. Hillman, Nos. 08EP-646, 08EP-665,

and 08EP-669 (Franklin Cnty. C.P. filed November 12, 2008 and
November 20, 2008); Lynch v. Leis,382 F.3d 642,648 n.5 (6th Cir.
2004)(stating the Court is entitled to take judicial notice of
facts appearing on a state court online docket).
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Mr. Hillman is

a pro se prisoner litigant currently residing at Chillicothe
Correctional Institution and proceeding before this Court in
forma pauperis.

In November of 2008 Mr. Hillman filed with the

Franklin County Court of Common Pleas three applications
requesting that certain portions of his criminal record be
expunged.

See Hillman, Nos. 08EP-646, 08EP-665, and 08EP-669

(Franklin Cnty. C.P. filed November 12, 2008 and November 20,
2008).

On April 27, 2009 the Court of Common Pleas entered an

order denying his requests.

Id.

Mr. Hillman appealed and on

January 28, 2010, the Ohio Tenth District Court of Appeals
reversed and remanded, holding the trial court based its decision
on the wrong statute.

State v. Hillman, Nos. 09AP-478, 09AP-479,

09AP-480, 2010 Ohio 256 (Franklin Cnty. App. January 28, 2010).
On April 5, 2010 the trial court again denied all three of
Mr. Hillman’s applications to have his records expunged.

See

Hillman, Nos. 08EP-646, 08EP-665, and 08EP-669 (Franklin Cnty.
C.P. April 5, 2010).

On March 22, 2011 the Ohio Tenth District

Court of Appeals affirmed the decision finding that the reasoning
of the trial court was sufficiently laid out in its judgment
entries.

State v. Hillman, Nos. 09AP-424, 09AP-425, 09AP-426

(Franklin Cnty. App. January 28, 2010). On June 22, 2011 the
Supreme Court of Ohio declined jurisdiction to hear Mr. Hillman’s
appeal.

State v. Hillman, 128 Ohio St.3d 1559 (2011).

On July 21, 2011 Mr. Hillman filed his complaint with this
Court. (Doc. #3).

He claims he is filing “an appeal” from the

state of Ohio’s decision denying his applications to expunge his
nonconviction criminal record. (Doc. #3, p. 1).

In his

complaint, Mr. Hillman argues that the state appellate court
violated his federal constitutional rights by 1) denying his
application to have his records expunged, 2) misapplying O.R.C.
§2953.52 because no legitimate government need outweighed Mr.
Hillman’s interest in having his records sealed, 3) failing to
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rule on the merits of his Rule 60(B) motion, and (4) refusing to
order a transcript of the proceedings at no cost to Mr. Hillman.
On September 26, 2011, Mr. O’Brien filed a motion to dismiss
Mr. Hillman’s complaint.

(Doc. #8).

On January 17, 2012, the

Magistrate Judge filed a Report and Recommendation, recommending
that the Court strike the motion to dismiss for lack of service.
(Doc. #12).

On January 23, 2012 Mr. O’Brien filed his first

objection to that recommendation (Doc. #13), indicating the
motion to dismiss had now been filed and served.

Because Mr.

O’Brien has now served Mr. Hillman with the motion to dismiss,
the prior R&R issued in this case (Doc. #12), striking the
motion, is now moot.

This Report and Recommendation will address

the motion to dismiss on the merits.
II. Standard of Review
“A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of the
plaintiff must be considered as true, or it can attack the
factual basis for jurisdiction, in which case the trial court
must weigh the evidence and the plaintiff bears the burden of
proving that jurisdiction exists.”
F.3d 511, 516 (6th Cir. 2004).

DLX, Inc. v. Kentucky, 381

“A facial attack on the subject

matter jurisdiction alleged by the complaint merely questions the
sufficiency of the pleading.” Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990).

Here, Mr. O’Brien has

lodged a facial attack on Mr. Hillman’s complaint, arguing this
Court lacks jurisdiction under the Rooker-Feldman doctrine.
28 U.S.C. § 1915(e)(2) requires the Court “to dismiss the
case at any time if the court determines that ... the action or
appeal . . . fails to state a claim on which relief may be
granted . . .”

A complaint does not fail to state a claim upon

which relief can be granted if the complaint contains “enough
facts to state a claim to relief that is plausible on its face.”
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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

All

well-pleaded factual allegations must be taken as true and be
construed most favorably toward the non-movant.

Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974); Gunasekera v. Irwin, 551 F.3d
461, 466 (6th Cir. 2009).

The Court is mindful that pro se

complaints are to be construed liberally in favor of the pro se
party.

Haines v. Kerner, 404 U.S. 519, 520 (1972).

It is with

these standards in mind that the Court addresses the instant
motion to dismiss.
III. Discussion
A. Rooker-Feldman
Mr. O’Brien argues that this Court lacks jurisdiction to
hear Mr. Hillman’s claims under the Rooker-Feldman doctrine.

In

essence, that doctrine states that the United States District
Courts do not have jurisdiction to hear appeals from the
decisions of state courts; rather, such jurisdiction is vested
exclusively in the United States Supreme Court by 28 U.S.C.
§1257.

Consequently, if an unsuccessful state court litigant

comes to the District Court seeking review of the state court’s
rulings, jurisdiction is lacking.

See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413 (1923).
As the Supreme Court has noted, however, the doctrine is a
fairly narrow one that had been unduly expanded by some courts to
overlap with the doctrines of claim preclusion and issue
preclusion.

That expansion was incorrect.

An unsuccessful state

court litigant who brings to the federal courts the same dispute
that was decided in state court may be subject to claim or issue
preclusion defenses, but Rooker-Feldman does not apply unless the
litigant claims an injury to his or her rights stemming from the
state court decision itself, or asserts errors in the state court
decision-making process.

See Exxon Mobil Corp. v. Saudi Basic
4

Industries Corp., 544 U.S. 280, 284 (2005)(“The Rooker-Feldman
doctrine . . . is confined to . . . cases brought by state-court
losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review of those judgments”).
Exxon Mobil and its progeny, such as Lawrence v. Welch, 531
F.3d 364 (6th Cir. 2008), have narrowed the reach of the
Rooker-Feldman doctrine.

As Lawrence explains, “the pertinent

inquiry after Exxon is whether the ‘source of injury’ upon which
plaintiff bases his federal claim is the state court judgment
[itself].”

Lawrence, 531 F.3d at 368. See also McCormick v.

Braverman, 451 F.3d 382, 393 (6th Cir. 2006) (“[t]he inquiry ...
is the source of the injury the plaintiff alleges in the federal
complaint.

If the source of the injury is the state court

decision, then the Rooker-Feldman doctrine would prevent the
district court from asserting jurisdiction”).

The doctrine does

not apply when the plaintiff simply asserts the same claim that
was raised in the state court proceedings and identifies the
source of his or her injury as the action of some third party such as the state court opposing party - rather than the state
court judgment.

See Pittman v. Cuyahoga County Dep’t of Children

and Family Servs., 241 Fed.Appx. 285, 287 (6th Cir. 2007). The
doctrine also does not apply when the plaintiff is not
challenging the state-court decision, but a statute or rule
governing that decision.

Skinner v. Switzer, 131 S. Ct. 1289,

1298 (2011). Although the other defendants have not filed motions
to dimiss, this Court applies its application of the RookerFeldman doctrine to them as well because it is a jurisdictional
doctrine and this Court can raise it sua sponte.

Saker v. Nat’l

City Corp., 90 Fed. Appx. 816, 819 n.1 (6th Cir. 2004)
All but one of Mr. Hillman’s claims are in essence an appeal
from the state court judgment.

Were the Court to rule on those
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claims, it would, in essence, be serving in the role of an
appellate court in violation of the Rooker-Feldman doctrine. Here
is why.
In his complaint, Mr. Hillman specifically challenges the
state court judgment itself, arguing there were errors in the
state court decision-making process.

He claims the appellate

court violated his constitutional rights when it 1) denied his
application to have his records expunged, 2) found that a
legitimate government need outweighed his interest in having his
records expunged, and 3) failed to rule on the merits of his Rule
60(B) motion.

As to these three claims, the source of the injury

about which Mr. Hillman complains is the order of the state court
of appeals itself and not any action caused by the opposing party
in state court nor any challenge to a rule or statute.

Thus,

these three claims fit neatly within the contours of the RookerFeldman doctrine and should be dismissed against all parties.
Construing Mr. Hillman’s complaint liberally, however, there
may be one claim to which the the Rooker-Feldman doctrine is not
applicable.

Mr. Hillman also claims that he was denied his

constitutional rights when the state court of appeals refused to
order a transcript of the proceedings at no cost to him.

The

court of appeals stated that Mr. Hillman did not order a
transcript in the case and that it was his responsibility to
furnish a sufficient record on appeal.

In the absence of a

transcript, the court of appeals presumed the regularity of the
proceedings in the trial court.
Mr. Hillman claims he was denied due process and equal
protection of the laws when the court of appeals refused to
provide him with a transcript because he was indigent and was not
able to afford one.

Construing Mr. Hillman’s complaint liberally

and in a light most favorable to him, it is possible to read his
complaint as challenging a state law, rule, or policy that allows
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an Ohio court to charge him a fee for his transcript, even though
he is an indigent prisoner.

Under this interpretation of his

complaint, the source of his injury would be that rule or policy
itself, and not the state court decision applying that policy.
Therefore, this Court will consider his argument that he was
denied due process and equal protection when the state court of
appeals failed to provide him with a transcript of the trial
court proceedings.
B. Denial of Trial Transcript
Mr. O’Brien’s motion to dismiss does not address whether Mr.
Hillman failed to state a claim on which relief could be granted
when he claimed it was unconstitutional for the Ohio Court of
Appeals to deny him a transcript.

This Court, however, may raise

this issue sua sponte because Mr. Hillman is proceeding in forma
pauperis.

28 U.S.C. §1915(e)(2)(B)(ii)( “[T]he court shall

dismiss the case at any time if the court determines that . . .
the action . . . fails to state a claim on which relief may be
granted”).
“[A] State cannot arbitrarily cut off appeal rights for
indigents while leaving open avenues of appeal for more affluent
persons.”

Ross v. Moffitt, 417 U.S. 600, 607 (1974). In Griffin

v. Illinois, 351 U.S. 12, 19 (1956), the Court deemed it a
violation of the Fourteenth Amendment to deny a copy of a trial
transcript to an indigent defendant, holding that one who was
unable to pay the cost of obtaining such a transcript was
precluded from obtaining appellate review of asserted trial
error.

Griffin has not generally been extended to civil cases,

although the Court makes exceptions for those civil cases
involving fundamental interests, such as intrusion on family
relationships.

M.L.B. v. S.L.J., 519 U.S. 102, 114, 116 (1996).

See also Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir.
1983)(holding there was no constitutional requirement to waive
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costs of transcripts, expert witness fees, and fees to secure
depositions); Tucker v. Branker, 142 F.3d 1294, 1299 (D.C. Cir.
1998) (noting that the Supreme Court has held that either the
equal protection clause or the due process clause requires that
certain fees be waived for indigent defendants in criminal cases
and for indigent litigants in civil cases in which certain
fundamental interests are at stake, but not in civil cases in
general).
In general, “[n]ondisclosure of one’s criminal record is not
one of those personal rights that is ‘fundamental’ or ‘implicit
in the concept of ordered liberty.’”

Cline v. Rogers, 87 F.3d

176, 179 (6th Cir. 1996)(discussing the Constitutional right to
privacy in one’s criminal record)(quoting Whalen v. Roe, 429 U.S.
589, 600 n. 23 (1977)).

See also Villa v. Vill. of Elmore, No.

3:02CV7357, 2002 WL 317289970 (N.D. Ohio December 3, 2002).
Therefore, Mr. Hillman has no fundamental right in having his
records expunged.

His complaint, however, can be construed as

arguing that his interest in having his records expunged is
fundamental because expungement would allow him access to
additional rights, such as access to fair employment, housing,
and government grants, as well as access to certain prison
programs, institutions, and a change in his prison security
level.

(Complaint, Doc. #3, p. 6).

Because Mr. Hillman has no

fundamental right to have his records expunged, however, other
rights flowing from such expungement are too attenuated for this
Court to consider.

Because Mr. Hillman’s interest in having his

records expunged is not fundamental, the government need only a
rational justification to charge him for a transcript.

United

States v. Kras, 409 U.S. 434, 446 (1973).
Here, there is a clear rational basis for courts to charge a
fee for transcripts.

It has long been the case that court are

permitted to charge for certain court costs, such as transcripts
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and expert witness fees.
Cir. 1983).

See Johnson, 698 F.2d 286, 289 (6th

For obvious reasons, such as the judicious use of

taxpayer dollars, the Court cannot use government funds to fund
every expense associated with the cost of litigation. Moreover,
the Sixth Circuit has recognized some value in putting economic
incentives on litigants that would force them to “stop and think”
before proceeding with litigation in order to ensure that their
claims have merit.

See generally Hampton v. Hobbs, 106 F.3d

1281, 1286 (6th Cir. 1997)(discussing the fee requirements of the
Prison Litigation Reform Act and Congress’s rationale for
implementing them).

Thus, there is a rational basis for charging

a litigant the cost of a transcript.

Accordingly, to the extent

that Mr. Hillman has actually raised such a claim in his
complaint, that claim should be dismissed.
C. Civil and Criminal Contempt
Mr. Hillman has asked this Court to hold defendants in
contempt of court because their certificate of service did not
contain a date (Doc. #15, 16), the defendant’s “excuse” for not
serving the original motion was false (Doc. #16), the motion to
dismiss served on Mr. Hillman did not have the original time
stamp (Doc. #16), the defendants changed the caption of the case
from Hillman v. State of Ohio, et al. to Hillman v. Ron O’Brien
in his official capacity as Franklin County Prosecutor (Doc.
#15), the defendants’ motion to dismiss does not mention that Mr.
Hillman is seeking expungement of nonconvictions and charges as
opposed to expungement of convictions (Doc. #15), and defendants
have not explained to this Court that expunged records can be
kept on file for investigative purposes (Doc. #15).
As this Court stated in its December 15, 2011 order, a
finding of contempt usually requires clear and convincing
evidence of a violation of a court order.

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The matters about

which Mr. Hillman complains do not rise to the level of contempt
and Mr. Hillman’s request should be denied (Doc. #15).
D. Other Issues
The Court is also recommending that any claims asserted
against the other defendants be dismissed.

Because Mr. O’Brien

is the Franklin County Prosecutor, and appears to have been sued
in his official capacity, the claims against him are equivalent
to the claims against his office (to the extent that it is a
suable entity), see Kentucky v. Graham, 473 U.S. 159, 165 (1985),
and is subject to dismissal for the same reasons. The State of
Ohio does not appear to have been served with a complaint and
summons.

In any event, any claims against the state would, for

the reasons cited above, be barred by Rooker-Feldman or lack
merit, and would also be subject to the jurisdictional bar of the
Eleventh Amendment.

See Edelman v. Jordan, 415 U.S. 651, 662-663

(1974).
IV. Conclusion
For all the foregoing reasons, the Magistrate Judge
recommends that the Court grant Mr. O’Brien’s motion to dismiss
(Doc. #8) as well as dismiss all claims against the remaining
defendants.

The Magistrate Judge also recommends that Mr.

Hillman’s request for a show cause order be denied. (Doc. #15).
V. Procedure on Objections
If any party objects to this Report and Recommendation, that
party may, within fourteen (14) days of the date of this report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
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in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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