Winkle v. Sargus et al
Filing
8
ORDER AND REPORT AND RECOMMENDATIONS. It is RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. The MOTION for Leave to Proceed in forma pauperis (doc. 4 ) is GRANTED. Objections to R&R due by 1/27/2014. Signed by Magistrate Judge Norah McCann King on 1/10/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK R. WINKLE,
Plaintiff,
Case No. 2:14-cv-0003
Judge Frost
Magistrate Judge King
v.
EDMUND A. SARGUS, et al.,
Defendants.
ORDER and REPORT AND RECOMMENDATION
Plaintiff’s motion for leave to proceed in this action in forma
pauperis, Doc. No. 4, is GRANTED.
All judicial officers who render
services in this action shall do so as if the costs had been prepaid.
However, having performed the initial screen of the Complaint and the
Amended Complaint, as required by 28 U.S.C. § 1915(e)(2), the Court
concludes that the action must be dismissed.
Section 1915(e)(2) requires that a court dismiss a case initiated
without prepayment of fees or costs if the court determines, inter
alia, that the action fails to state a claim on which relief may be
granted. Moreover, a court must, on its own motion, dismiss a case if
it appears that the court lacks subject matter jurisdiction over the
claims
asserted.
Hagans
v.
Lavine,
415
U.S.
528,
536-37
(1974);
Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
This case actually has its origins in another civil case filed by
plaintiff
and
which
remains
Ruggieri,
2:12-cv-1079
pending
(hereinafter
1
in
this
Court,
“Ruggiere”).
Winkle
In
v.
Ruggieri,
plaintiff complains that he was wrongfully prohibited from pursuing a
teaching
claims
major
of
at
University.
rights
civil
Ohio
violations,
Ruggiere
presents
discrimination
and
plaintiff’s
retaliation
against various faculty members and employees of Ohio University and
other individuals and entities. On November 20, 2013, Judge Sargus,
the District Judge assigned to Ruggiere, adopted the recommendation of
Magistrate Judge Deavers, the Magistrate Judge assigned to Ruggiere,
that
plaintiff’s
claims
against
the
National
Council
for
Accreditation of Teacher Education (“NCATE”) be dismissed.
the
Opinion
and Order, Doc. NO. 71. On December 18, 2013, Magistrate Judge Deavers
denied plaintiff’s motion for leave to file a third amended complaint.
Order, Doc. No. 72.
reconsider
the
On December 20, 2013, plaintiff filed a motion to
adoption
of
the
Magistrate
Judge’s
recommendation.
Motion for Reconsideration of Dismissal of Defendant NCATE Pursuant to
Judge Edmund A. Sargus’s Opinion and Order, Doc. NO. 73.
On January
3, 2014, plaintiff filed this action.
Named as defendants in this action are the two judicial officers
assigned to Ruggiere and a law clerk of this Court, as well as NCATE,
Ohio University, its College of Education and various employees of the
university, and attorneys who represented defendants in Ruggiere as
well as a law firm.
damages,
the
The Amended Complaint, Doc. No. 5, seeks monetary
“[r]emoval
of
Judge
Edmund
A.
Sargus
and
Magistrate
[Judge] Elizabeth P. Deavers from” Ruggiere, and other, unspecified,
equitable relief.
Plaintiff asserts claims of civil rights violations
under 42 U.S.C. §§ 1983, 1985, 1986 and 18 U.S.C. §§ 241, 242, claims
of obstruction of justice under 18 U.S.C. §§ 1503, 1512 and 1513,
2
claims of money laundering under 18 U.S.C. §§ 1956 and 1957 and RICO,
18 U.S.C. § 1961 et seq.
As an initial matter, plaintiff invokes certain federal criminal
statutes that do not authorize a private civil cause of action, i.e.,
18 U.S.C. §§ 241, 242, 1503, 1512, 1513, 1956, 1957.
As a general
rule, a civil plaintiff has no standing to assert a claim arising
under a criminal statute.
See, e.g., Chrysler Corp. v. Brown, 441
U.S. 281,316 (1979)(“[T]his Court has rarely implied a private right
of action under a criminal statute, and where it has done so ‘there
was at least a statutory basis for inferring that a civil cause of
action of some sort lay in favor of someone.’”). See also Kafele v.
Frank & Wooldrige Co., 108 Fed. Appx. 307 (6th Cir. 2004)(no private
right of action under § 241); Duncan v. Cone, 2000 WL 1828089 (table)
(6th Cir. Dec. 7, 2000)(§ 242); Moldowan v. City of Warren, 578 F.3d
351, 400 (6th Cir. 2009)(§ 1503); Johansen v. Presley, - F.Supp.2d -,
2013 WL 5516466, *6 (W.D. Tenn., Oct. 2, 2013)(§ 1512); Jermano v.
Taylor,
2013
WL
1316970,
*5
(E.D.
Mich.,
Feb.
28,
2013)(§
1513);
Lucas-Cooper v. Palmetto GBA, 2006 WL 2583407, *10 (N.D. Ohio, Sept.
7, 2006)(money laundering).
See also Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973)(private citizens lack a judicially cognizable
interest in the criminal prosecution of another).
Furthermore, the Court lacks jurisdiction, by operation of the
Eleventh Amendment to the United States Constitution, over plaintiff’s
claims against the defendant state agencies, i.e., Office of the Ohio
Attorney General, Ohio University and its College of Education.
See
Beil v. Lake Erie Correction Records Dept., 282 Fed. Appx. 363, 2008
3
WL 2434738 (6th Cir. June 13, 2008). See also Regents of Univ. of
Calif. v. Doe, 519 U.S. 425, 429 (1997)(Eleventh Amendment sovereign
immunity applies not only to the states themselves but also to “state
agents and instrumentalities”).
Moreover, a state agency is not a
“person” subject to suit under 42 U.S.C. §1983.
Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
Similarly, claims for damages asserted against state employees in
their official capacities cannot proceed in a federal court because
such claims are deemed to be claims against the State.
Will, 491 U.S.
at 71 (“[N]either a State nor its officials acting in their official
capacities are ‘persons’ under § 1983”).
Plaintiff’s claims for monetary damages against the judges
assigned to Ruggiere cannot proceed.
A judge performing judicial
functions is absolutely immune from suit seeking monetary relief, even
if acting erroneously, maliciously, or in excess of the judge’s
authority. See Mireles v. Waco, 502 U.S. 9, 9–10 (1991) (per curiam);
Stump v. Sparkman, 435 U.S. 349, 356 (1978). A judge is not immune in
two circumstances: (1) when the judge acts in a nonjudicial capacity,
or (2) when the judge acts in the complete absence of all
jurisdiction. Mireles, 502 U.S. at 11–12.
Plaintiff’s claims against
the defendant judges are based on their rulings in Ruggiere.
There is
no suggestion that the judicial actions about which plaintiff
complains were taken in the complete absence of all jurisdiction.
These judges are therefore absolutely immune from liability for
monetary damages.
Plaintiff’s claims against all of the remaining defendants, most
4
of whom are individuals involved as defendants in Ruggiere or as their
counsel,1 also arise out of plaintiff’s dissatisfaction with the course
of proceedings in Ruggiere.
Plaintiff alleges that these parties
conspired with each other or with the judicial officers to deny
plaintiff his rights; plaintiff also alleges that counsel for NCATE
engaged in internet harassment of plaintiff in an effort to persuade
plaintiff to dismiss the claims asserted against NCATE in Ruggiere.2
To the extent that these and all of plaintiff’s claims in this action
are based on his dissatisfaction with the course of proceedings in
Ruggiere, his proper remedy is to pursue the appellate process, even
to the United States Supreme Court.
See 28 U.S.C. § 1254.
Plaintiff
cannot properly pursue separate litigation in an effort to circumvent
that process.
For all these reasons, it is RECOMMENDED that this action be
dismissed for lack of subject matter jurisdiction or for failure to
state a claim upon which relief can be granted.
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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
1
28
Response to objections
The defendant judicial law clerk is alleged to have conspired with the
attorneys in Ruggiere and to have “forged” the names of the judges. Amended
Complaint, PAGEID # 58.
2
This claim is apparently based on the motion for sanctions under Fed. R. Civ.
P. 11 filed by counsel on behalf of NCATE. See Ruggiere, Doc. No. 51.
5
must be filed within fourteen (14) days after being served with a copy
thereof.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that 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 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); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
January 10, 2014
6
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