Morgan v. Crawford et al

Filing 8

ORDER adopting Report and Recommendations re 3 Report and Recommendations.DENYING plaintiff's objection, and DISMISSING the case pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim for relief and because the defendants are immune from suit.Signed by Judge James L Graham on 10/10/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gregory B. Morgan,
Plaintiff,
v.

Case No. 2:14-cv-1609

Judge Dale Crawford,
et al.,
Defendants.
ORDER
Plaintiff Gregory B. Morgan filed the instant action pursuant
to 42 U.S.C. §1983 against Judge Dale Crawford and Assistant
Attorneys General Daniel L. Forsythe and Jenna R. Volp.
alleges

that

Amendment

defendants

rights

by

Forsythe

asking

him

and

Volp

during

violated

his

Plaintiff
his

deposition

First
in

a

malpractice action he had filed against the College of Dentistry of
The Ohio State University about anonymous consumer review postings
he had made in the Internet about the College, and by moving to
introduce the postings into evidence at trial.

Plaintiff alleges

that Judge Crawford violated his First Amendment rights by admitting
the postings into evidence.

In a report and recommendation filed

on September 22, 2014, the magistrate judge screened the complaint
pursuant to 28 U.S.C. §1915(e)(2). The magistrate judge recommended
that the complaint be dismissed because the defendants are immune
from suit and the complaint fails to state a claim under §1983.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s objection (Doc. 7) to the magistrate judge’s report and
recommendation.
report

and

If a party objects within the allotted time to a

recommendation,

the

court

“shall

make

a

de

novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.”
§636(b)(1); see also Fed. R. Civ. P. 72(b).

28 U.S.C.

Upon review, the Court

“may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”

28 U.S.C.

§636(b)(1).
As the magistrate judge correctly explained, 28 U.S.C. §1915(e)
requires

sua

sponte

dismissal

of

an

action

upon

the

court’s

determination that the action is frivolous or malicious, or upon
determination that the action fails to state a claim upon which
relief may be granted.
Cir. 2008).

Grinter v. Knight, 532 F.3d 567, 572 (6th

Courts conducting initial screens under §1915(e) apply

the motion to dismiss standard. See, e.g., Hill v. Lappin, 630 F.3d
468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P. 12(b)(6)
standards to review under 28 U.S.C. §§1915A and 1915(e)(2)(B)(ii)).
Courts ruling on a motion to dismiss under Rule 12(b)(6)
construe the complaint in a light most favorable to the plaintiff,
accepting all well-pleaded allegations in the complaint as true, and
determining whether plaintiff undoubtedly can prove no set of facts
in support of those allegations that would entitle him to relief.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v. Lucent Techs.,
Inc., 520 F.3d 516, 519 (6th Cir. 2008).

To survive a motion to

dismiss, the “complaint must contain either direct or inferential
allegations with respect to all material elements necessary to
sustain a recovery under some viable legal theory.”
Allen, 411 F.3d 712, 716 (6th Cir. 2005).

Mezibov v.

Conclusory allegations

or legal conclusions masquerading as factual allegations will not
suffice. Id. While the complaint need not contain detailed factual
allegations, the “[f]actual allegations must be enough to raise the

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claimed right to relief above the speculative level” and “state a
claim that to relief that is plausible on its face.”
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

Bell Atlantic

Where the facts

pleaded do not permit the court to infer more than the mere
possibility of misconduct, the complaint has not shown that the
pleader is entitled to relief as required under Federal Rule of
Civil Procedure 8(a)(2).

Id.

The magistrate judge first concluded that Judge Crawford is
immune from suit for allegedly violating plaintiff’s First Amendment
rights by permitting the University to introduce evidence concerning
his

anonymous

malpractice

consumer

claim

postings

against

the

at

the

College.

trial
Doc.

of
3,

plaintiff’s
p.

3.

The

magistrate judge correctly noted that a judge performing judicial
duties is absolutely immune from suit seeking monetary damages.
Mireles v. Waco, 502 U.S. 9, 9-10 (1991).

“[J]udges of courts of

superior or general jurisdiction are not liable to civil actions for
their judicial acts, even when such acts are in excess of their
jurisdiction, and are alleged to have been done maliciously or
corruptly.” Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351 (1871).
This immunity applies to actions brought under 42 U.S.C. §1983.
Pierson v. Ray, 386 U.S. 547, 554-55 (1967).

Absolute judicial

immunity can be overcome only where the alleged actions were not
taken in the judge’s judicial capacity, or when the judge’s actions,
though judicial in nature, were taken in the complete absence of all
jurisdiction.

Mireles, 502 U.S. at 11-12.

Plaintiff alleges in his objection that Judge Crawford acted
without jurisdiction when he allegedly violated plaintiff’s First
Amendment rights by admitting the consumer postings into evidence.

3

However, the

fact that a judge allegedly performs his judicial

duties in a way which violates a constitutional right is not
sufficient to deprive the judge of jurisdiction, as that term is
used in the context of judicial immunity.

Rather, “[t]he term

‘jurisdiction’ is to be broadly construed to effectuate the purposes
of judicial immunity.” Bright v. Gallia County, Ohio, 753 F.3d 639,
649 (6th Cir. 2014)(quoting Barnes v. Winchell, 105 F.3d 1111, 1122
(6th

Cir.

1997)).

“Only

in

the

absence

of

subject

matter

jurisdiction are judicial actors devoid of the shield of immunity.”
Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000)(en banc).
Here, the complaint contends that Judge Crawford allegedly violated
plaintiff’s First Amendment rights due to evidentiary rulings he
made while presiding over plaintiff’s malpractice trial. These acts
were not taken in the absence of subject matter jurisdiction, and
the doctrine of judicial immunity applies to bar plaintiff’s claim.
The magistrate judge also concluded that defendants Forsythe
and Volp were acting in their role as lawyers in defense of their
client

in

concerning

asking
his

plaintiff

online

evidence at trial.

questions

consumer

during

postings

Doc. 3, p. 3.

and

in

his

deposition

offering

that

The magistrate judge noted that

these defendants followed lawful processes in defending their
client.

Doc. 3, p. 3.

Plaintiff alleges that defendants Forsythe

and Volp were not acting within their jurisdiction because their
acts violated his First Amendment Rights.
attorneys

such

as

prosecutors

generally

However, government
enjoy

immunity

from

liability for any acts that are associated with their professional
role so long as such acts are “intimately associated with the
judicial phase” of a proceeding.

Imbler v. Pachtman, 424 U.S. 409,

4

430

(1976).

Absolute

immunity

applies

to

acts

such

as

the

professional evaluation of evidence and appropriate preparation for
its presentation at trial.
273 (1993).

Buckley v. Fitzsimmons, 509 U.S. 259,

Preparation of witnesses for trial is also protected

by absolute immunity.

Higgason v. Stephens, 288 F.3d 868, 878 (6th

Cir. 2002).
In Brown v. State of Tennessee Dep’t of Labor and Workforce
Dev., 64 F.App’x 425, 426 (6th Cir. 2003), the court held that the
state attorney general was acting as an advocate in defense of the
state by filing documents in plaintiff’s state court proceedings.
The court held that the attorney general’s actions were “‘intimately
associated with the judicial phase’ of the civil process” and that
the

attorney

general

was

entitled

plaintiff’s civil rights action.

Id.

to

absolute

immunity

in

This court concludes that in

deposing plaintiff and in offering evidence of plaintiff’s consumer
comments during plaintiff’s malpractice trial, defendants Forsythe
and Volp were also engaging in acts “intimately associated with the
judicial phase” of plaintiff’s malpractice case.
judge

correctly

concluded

that

they

are

The magistrate

entitled

to

absolute

immunity in the instant case.
The magistrate judge also found in the alternative that the
complaint failed to state a First Amendment claim under §1983.
Plaintiff

argues

that

this

was

error,

citing

numerous

cases

regarding the First Amendment right to anonymous free speech,
including speech made via the Internet.

As a general matter,

anonymous speech is protected by the First Amendment.

McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 342 (1995); McGlone v. Bell,
681 F.3d 718, 734 (6th Cir. 2012).

5

However, the right to speak,

whether anonymously or otherwise, is not unlimited, and the degree
of scrutiny varies depending on the circumstances and the type of
speech at issue.

In re Anonymous Online Speakers, 661 F.3d 1168,

1173 (9th Cir. 2011).
speech

from

protection.”

“[A]nonymous speech on the Internet, like

identifiable

sources,

does

not

have

absolute

McVicker v. King, 266 F.R.D. 92, 94 (W.D.Pa. 2010).

A situation analogous to the instant action is found in cases
in which plaintiffs were seeking to proceed anonymously in the civil
actions they had filed by using fictitious names. In Doe v. Indiana
Black Expo, Inc., 923 F.Supp. 137 (S.D.Ind. 1996), the court noted
that plaintiff was bringing private claims for damages against the
defendants, accusing them of serious and deliberate wrongdoing. Id.
at 141.

The court observed that plaintiff had chosen to initiate

the action, and was not caught up in the action unwillingly as a
witness or a victim in a criminal case might be.

Id.

The court

then considered that the testimony of the parties would likely be
at odds, thereby putting their credibility at issue, and that
defendants’ challenges to plaintiff’s credibility would entail facts
that plaintiff preferred to keep secret.

Id. at 142.

The court

concluded that plaintiff “cannot use his privacy interests as a
shelter from which he can safely hurl these accusations without
subjecting himself to public scrutiny, even if that public scrutiny
includes scorn and criticism.”

Id.

In Doe v. Del Rio, 241 F.R.D. 154 (S.D.N.Y. 2006), another case
in which the plaintiffs sought to proceed under pseudonyms, the
court stated:
Private civil suits, individually and certainly in the
aggregate, do not only advance the parties’ private
interests, but also further the public’s interest in
enforcing legal and social norms.
Further, where
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individual defendants are sued based not on abstract
challenges to public policies but rather with regard to
particular actions and incidents, open proceedings
nevertheless benefit the public as well as the parties
and also serve the judicial interest in accurate factfinding and fair adjudication.
Courts have expressed
concern that maintaining a plaintiff’s anonymity could
“unfairly impede defendant’s ability to impeach the
plaintiffs’ credibility” through cross examination and
introduction of personal evidence at trial.
241 F.R.D. at 159 (quoting James v. Jacobson, 6 F.3d 233, 241 (4th
Cir. 1993)).
In this case, plaintiff’s anonymous postings were apparently
about

the

Dentistry.

quality

of

dentistry

Doc. 3, p. 3.

performed

by

the

College

of

The magistrate judge concluded that

because plaintiff was suing the University for malpractice, his
online comments were relevant to his credibility as a witness in his
malpractice case. Doc. 3, p. 3. The magistrate judge observed that
there is no recognized First Amendment right to make anonymous
Internet consumer postings.

Doc. 3, p. 3.

The magistrate judge

concluded, “The fact that [plaintiff] chose to post the comments
anonymously did not act to shield them from discovery in his
malpractice action against OSU.”

Doc. 3, p. 3.

This is not a case, as in McGlone, in which the plaintiff
sought to express anonymous political or religious opinions.
Rather, plaintiff brought a civil action against the University,
alleging wrongful acts on the part of the College of Dentistry.
Plaintiff’s online comments were relevant to his malpractice action,
and Judge Crawford’s decision to admit those comments into evidence
did not violate plaintiff’s First Amendment rights.
Having reviewed the report and recommendation and plaintiff’s
objection in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
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the court finds that plaintiff’s objection is without merit, and it
is overruled.

For the foregoing reasons, the court adopts the

September 22, 2014, report and recommendation (Doc. 3). This action
is hereby dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) because
the defendants are immune from suit, and because the complaint fails
to state a claim for which relief may be granted.
enter judgement dismissing this case.

The clerk shall

The clerk is directed to

enter judgment dismissing this case, and is further directed to mail
a copy of this order and the judgment to each of the defendants.

Date: October 10, 2014

s/James L. Graham
James L. Graham
United States District Judge

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