Lott v. US Court of Appeals for the Sixth Circuit et al

Filing 4

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION re 3 Complaint: The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due within fourteen (14) days of the date of this Report. Plaintiff's 1 MOTION for Leave to Proceed in forma pauperis is GRANTED. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/16/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HARRY WILLIAM LOTT,
Plaintiff,
Civil Action 2:13-cv-859
Judge Algenon Marbley
Magistrate Judge Elizabeth P. Deavers

v.

U.S. COURT OF APPEALS
FOR THE SIXTH CIRCUIT, et al.,
Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff Harry William Lott, who is proceeding without the assistance of counsel, brings
this civil rights action under 42 U.S.C. § 1983 against the United States Court of Appeals for the
Sixth Circuit, this Court, and Judge Gregory L. Frost. This matter is before the Court for
consideration of Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No. 1), which
is GRANTED. This matter is also before the Court for the initial screen of Plaintiff’s Complaint
under 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of
Plaintiff’s Complaint, or any portion of it, which 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. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons
that follow, it is RECOMMENDED that this action be DISMISSED.
I.

BACKGROUND

Plaintiff purports to assert claims against this Court and Judge Frost for Judge Frost’s
handling of a case Plaintiff has pending before the Court. Specifically, Plaintiff alleges that

Judge Frost declined to hold a hearing in his case, in violation of the law. (Compl. 2, ECF No. 12.) According to Plaintiff, Judge Frost declined to hold the hearing because Plaintiff has sued
him in another case. Plaintiff alleges that he appealed Judge Frost’s ruling to the Court of
Appeals without success, which forms the basis of his purported claim against the Court of
Appeals. He seeks $110 million dollars in damages, as well as injunctive relief requiring that the
Court rule in his favor in a case he has pending before this Court.
II.

STANDARD

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so “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.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S.
319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, Section 1915(e) requires sua
sponte dismissal of an action upon a court’s determination that the action is frivolous or

1

Formerly 28 U.S.C. § 1915(d).

malicious, or upon determination that the action fails to state a claim upon which relief may be
granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., -- F.3d ----, No. 12-2620, 2013 WL 4081909, at *1 (6th Cir. Aug. 14, 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 2013 WL 4081909 at *2 (citations omitted). Further,
the Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).

III.

ANALYSIS

The Undersigned concludes that Plaintiff’s Complaint must be dismissed. First,
Plaintiff’s claim against Judge Frost is barred by absolute judicial immunity. Judges who preside
over courts of limited jurisdiction enjoy absolute immunity from nearly all civil suits for money
damages. King v. Love, 766 F.2d 962, 966 (6th Cir. 1985). Although two exceptions to the
doctrine of judicial immunity exist, the Plaintiff does not indicate in his Complaint that either of
those two circumstances is present here. See Stump v. Sparkman, 435 U.S. 349, 357, 361 (1978)
(recognizing exceptions to judicial immunity where a judge acts in the “clear absence of all
jurisdiction,” or when the judge performs “non-judicial acts.”) Specifically, Plaintiff does not
challenge Judge Frost’s jurisdiction to preside over the case he has pending before this Court. In
addition, Judge Frost’s decision to not hold a hearing constitutes a judicial act subject to
immunity. DePiero v. City of Macedonia, 180 F.3d 770, 784 (6th Cir. 1999) (holding that to
determine whether an act is “non-judicial” courts look to the nature of the act itself, especially
where it is one that a judge normally performs, as well as the expectations of the parties,
including whether they were dealing with the judge in his judicial capacity).
Second, with respect to Plaintiff’s claims against this Court and the Court of Appeals, the
United States is not a person subject to suit within the meaning of 42 U.S.C. § 1983. Cf. Leisure
v. City of Reynoldsburg, Oh., No. 2007 WL 2344706, *2 (S.D. Oh. Aug. 14, 2007) (noting that
the United States is not a person subject to suit under § 1985); see also McGee v. U.S., No. 2010
WL 3211037, *3 (S.D. Oh. Aug. 12, 2010) (dismissing claims against the United States District

Court for the Western District of Michigan and the Court of Appeals for the Sixth Circuit);
Dumas v. U.S., No. 09-13155, 2009 WL 2905559, *1 (E.D. Mich. Sept. 4, 2009) (dismissing
claims against the United States District Court for the Eastern District of Michigan and the Sixth
Circuit Court of Appeals).
Finally, Plaintiff’s request for injunctive relief is frivolous. Plaintiff seeks an Order
directing this Court to rule in his favor in an action he has pending before the Court. Plaintiff has
indicated no basis for such relief. If Plaintiff wishes to challenge any ruling of this Court, he
must follow the standard procedure governing appeals. Accordingly, it is RECOMMENDED
that Plaintiff’s Complaint be DISMISSED under 42 U.S.C. § 1915(e).
IV.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: September 16, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge