Brock v. DeWine

Filing 7

REPORT AND RECOMMENDATIONS re 6 Complaint filed by Dennis R. Brock. It is RECOMMENDED that this action be dismissed for lack of subject matter jurisdiction or for failure to state a claim for relief. Objections to R&R due by 1/15/2016. Signed by Magistrate Judge Norah McCann King on 12/29/2015. (pes)(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
EASTERN DIVISION

DENNIS R. BROCK,
Plaintiff,
vs.

Civil Action 2:15-cv-3050
Judge Watson
Magistrate Judge King

ATTORNEY GENERAL OF THE STATE OF
OHIO, MIKE DeWINE,

Defendant.
REPORT AND RECOMMENDATION

This matter is before the Court for the initial screen of the
Complaint, ECF No. 6, pursuant to 28 U.S.C. §§ 1915(e), 1915A. For the
reasons that follow, the Court concludes that the Complaint must be
dismissed for lack of subject matter jurisdiction or for failure to
state a claim upon which relief can be granted.
Plaintiff, a state inmate, brings this civil action challenging
Ohio Revised Code 2323.52 . . ., Ohio’s vexatious litigator
statute for being vague and ambiguous and for failure to
support Fourteenth Amendment rights of the United States
Constitution. Specifically for violating the Fourteenth
Amendment where:
“No state shall make or enforce any law which shall
abridge the privileges or immunities of any citizen
of the United States.”
Complaint, p. 1. Plaintiff complains that he was declared a vexatious
litigator pursuant to O.R.C. § 2323.52 by the Hocking County Court of
Common Pleas, that the state court of appeals affirmed that judgment,

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see Ohio Attorney General v. Dennis R. Brock, 14CA19 (Ohio Ct. App. 4th
Dist. October 1, 2015), ECF No. 1-2, and that, consequently, the Ohio
Supreme Court refused to file his appeal in accordance with Ohio S.
Ct. Prac. R. 4.03(B). Complaint, p. 2. Plaintiff appears to allege
that this designation as a vexatious litigator has deprived him of the
opportunity to pursue his state habeas corpus action challenging his
criminal conviction. Id. at p. 2. Plaintiff asks that O.R.C. § 2323.52
be declared vague and ambiguous and inapplicable “to habeas corpus
cases because such application violates Fourteenth Amendment
protections,” and that he be granted “relief from vexatious litigator
status imposed upon him . . . by the Hocking County Common Pleas
Court” and by the Ohio Supreme Court. Id. at 7-8.1
To the extent that plaintiff seeks relief from the judgments and
decisions of the state courts in characterizing plaintiff as a
vexatious litigator, this Court lacks jurisdiction to consider that
claim.
Federal district courts do not stand as appellate courts
for decisions of state courts. See Rooker v. Fidelity Trust
Co., 263 U.S. 413 (1923); Dist. Of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983). The Rooker-Feldman
doctrine “prevents a federal court from exercising
jurisdiction over a claim alleging error in a state court
decision.” Luber v. Sprague, 90 Fed. Appx. 908, 910 (6th
Cir. 2004). Federal courts' “authority to review a state
court's judgment” is vested “solely in [the Supreme]
Court.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544
U.S. 280, 292 (2005).
Hall v. Callahan, 727 F.3d 450, 453 (6th Cir. 2013). Because plaintiff
seeks, inter alia, relief from the effect of the judgments of Ohio
1

However, plaintiff does not appear to challenge the constitutionality of Ohio
S. Ct. R. 4.03(B), either facially or as applied.

2

courts, the Rooker-Feldman doctrine divests this Court of jurisdiction
to resolve that claim. See Ryan v. McIntosh, 2014 WL 580137, *6 (S.D.
Ohio Feb. 12, 2014).
Plaintiff’s claim that O.R.C. § 2323.52 is unconstitutional is
not foreclosed by the Rooker-Feldman doctrine. See id. at *5. However,
the Court concludes that, nevertheless, this claim cannot proceed.
Section 2323.52 of the Ohio Revised Code prohibits persons
adjudged to be vexatious litigators from instituting or continuing
“legal proceedings in the court of claims or in a court of common
pleas, municipal court, or county court,” or in the state court of
appeals, without leave of court. O.R.C. § 2323.52(D)(1)(a), (b), (3).
The statute does not pose an absolute bar to litigation. “Instead, it
establishes a screening mechanism under which the vexatious litigator
can petition the declaring court, on a case-by-case basis, for a
determination of whether any proposed action is abusive or
groundless.” Mayer v. Bristow, 91 Ohio St. 3d 3, 15 (2000). Moreover,
the statute expressly limits its reach to actions in Ohio courts; as
evidenced by the pendency of this action, the statute has no
applicability to litigation filed in federal courts. Carr v. Riddle,
136 Ohio App. 3d 700, 704 (Ohio Ct. App. 8th Dist. 2000); Caghan v.
Caghan, 2015 WL 2194199, *11 (Ohio Ct. App. 5th Dist. May 11, 2015).
The United States Court of Appeals for the Sixth Circuit has held
that O.R.C. § 2323.52, on its face, does not violate the Due Process
Clause of the Fourteenth Amendment because it “restrains narrowly only
the conduct it seeks to prohibit, by providing a mechanism by which

3

even vexatious litigants can file meritorious actions.” Hall v.
Callahan, 727 F.3d 450, 456-57 (6th Cir. 2013).
Plaintiff claims that O.R.C. § 2323.52 is unconstitutional
because it impedes his right to pursue a habeas corpus action in
contravention of the Privileges and Immunities Clause of the
Fourteenth Amendment to the United States Constitution. Complaint, p.
8. The Fourteenth Amendment provides in relevant part as follows:
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law, nor deny
to any person within its jurisdiction the equal protection
of the laws.
U.S. Const. Amdt. 14, § 1. “The Framers of the Fourteenth Amendment
modeled this Clause upon the ‘Privileges and Immunities’ Clause found
in Article IV.” Saenz v. Roe, 526 U.S. 489, 502 n.15 (1999)(citing
U.S. Const. art. IV, § 2, cl. 2). That clause prohibits
“discrimination against citizens of other States where there is no
substantial reason for the discrimination beyond the mere fact that
they are citizens of other States.” Toomer v. Witsell, 334 U.S. 385,
398 (1948). “The section, in effect, prevents a state from
discriminating against citizens of other states in favor of its own.”
Hague v. Committee for Indus. Organization, 307 U.S. 496, 511 (1939).
Plaintiff does not allege, and it does not appear, that O.R.C. §
2323.52 has the effect of discriminating against citizens of states
other than Ohio or in favor of citizens of the State of Ohio.
The Complaint also refers to “United States Constitution, Art. I,
Sec. 9,” which “identif[ies] writ of habeas corpus as a privilege.”

4

Id. at 6. The “Suspension Clause” of the Constitution provides, “The
Privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require
it.” U.S. Const. art. I, § 9, cl. 2. This clause imposes a limitation
on the powers of the Congress of the United States and of its Chief
Executive. See Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004). It has no
application to the laws of the State of Ohio.

In any event, as noted

supra, O.R.C. § 2323.52 does not purport to limit the jurisdiction of
federal courts to entertain a petition for a writ of federal habeas
corpus. See 28 U.S.C. § 2241 et seq.
This Court concludes that the Complaint fails to state a federal
claim over which this court has jurisdiction or upon which relief may
be granted.
It is therefore RECOMMENDED that this action be dismissed for
lack of subject matter jurisdiction or for failure to state a claim
for relief.2
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).

2

28

Response to objections

To the extent that plaintiff also alleges that O.R.C. § 2323.52 violates the
Ohio Constitution, see Complaint, p. 6, the Court concludes that, in the
absence of a claim arising under federal law, this Court lacks jurisdiction
to entertain this state law claim between citizens of the same state. See 28
U.S.C. § 1332.

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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 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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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

preserve an issue for appeal . . . .”) (citation omitted)).

December 29, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

6

to