Sinkovitz v. Rolston et al
ORDER finding as moot 2 Motion to Dismiss; adopting Report and Recommendations re 3 Report and Recommendations.; finding as moot 7 Motion ; denying 16 Motion to Dismiss; denying 19 Motion. Signed by Judge James L. Graham on 10/19/2017. (ds)(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
Case No. 2:17-cv-712
G. Drew Rolston, et al.,
This is a pro se action filed by Paul Sinkovitz, a state
inmate, against G. Drew Rolston, an attorney, and Judge Jeffrey
Simmons, a state-court judge.
This matter is before the court for
consideration of the magistrate judge’s report and recommendation
The magistrate judge conducted an initial screen of
plaintiff’s complaint pursuant to 28 U.S.C. §§1915(e)(2) and 1915A,
§1915(e)(2) for failure to state a claim on which relief may be
If a party objects within the allotted time to a report and
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.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).
Upon review, the Court “may
accept, reject, or modify, in whole or in part, the findings or
On October 3, 2017, plaintiff filed a document
entitled “MOVE FOREWARD [sic] GRANT MY DAY IN COURT” which the
§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.
(6th Cir. 2008).
Grinter v. Knight, 532 F.3d 567, 572
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.
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
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.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
allegations will not suffice.
While the complaint need not
contain detailed factual allegations, the “[f]actual allegations
must be enough to raise the claimed right to relief above the
speculative level” and “state a claim that to relief that is
plausible on its face.”
544, 555, 570 (2007).
Bell Atlantic Corp. v. Twombly, 550 U.S.
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).
The magistrate judge noted that plaintiff’s complaint appears
to allege that Judge Simmons presided over a domestic matter in
which plaintiff was a party.
Plaintiff alleges in conclusory
fashion that Judge Simmons somehow violated his constitutional
The magistrate judge correctly concluded that plaintiff’s
claim against Judge Simmons is barred by the doctrine of judicial
immunity, which protects judges from suit for acts performed in
their judicial capacities.
No facts are alleged in the complaint
which would suggest that this defense would not apply here.
magistrate judge correctly noted that, although G. Drew Rolston is
named as a defendant, the complaint contains no factual allegations
concerning any acts performed by this defendant.
refers to RICO (the Racketeer Influenced and Corrupt Organizations
Act) but the complaint contains no factual allegations to support
a claim under RICO.
In his objection, plaintiff offers no argument as to why the
magistrate judge’s observations were incorrect.
Rather, he makes
additional conclusory and nonsensical allegations, and refers to
another attorney who is not named as a defendant in this case.
court concludes that the magistrate judge did not err in concluding
that the complaint fails to state a claim on which relief may be
Defendant Rolston has also filed motions to declare plaintiff
a vexatious litigator. However, he has not identified any previous
law suits filed by plaintiff which would support such a finding.
The motions to declare plaintiff a vexatious litigator will be
In accordance with the foregoing, the court denies plaintiff’s
objection (Doc. 19), and adopts the report and recommendation (Doc.
§1915(e)(2)(B)(ii) for failure to state a claim for which relief
may be granted.
The clerk shall enter judgement dismissing this
case. The motions to dismiss filed by defendant Simmons (Doc. 2)
and defendant Rolston (Docs. 7 and 16) are moot.
The motions to
declare plaintiff a vexatious litigator (Docs. 6 and 16) are
Date: October 19, 2017
s/James L. Graham
James L. Graham
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?