Sinkovitz v. Rolston et al

Filing 22

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
EASTERN DIVISION
Paul Sinkovitz,
Plaintiff,
v.

Case No. 2:17-cv-712

G. Drew Rolston, et al.,
Defendants.
ORDER
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
(Doc. 3).

The magistrate judge conducted an initial screen of

plaintiff’s complaint pursuant to 28 U.S.C. §§1915(e)(2) and 1915A,
and

recommended

that

this

action

be

dismissed

pursuant

to

§1915(e)(2) for failure to state a claim on which relief may be
granted.
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
recommendations
§636(b)(1).

made

by

the

magistrate

judge.”

28

U.S.C.

On October 3, 2017, plaintiff filed a document

entitled “MOVE FOREWARD [sic] GRANT MY DAY IN COURT” which the
court

will

construe

recommendation.

as

an

objection

to

the

report

and

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.
(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.
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.”
Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).
allegations

or

legal

conclusions

allegations will not suffice.

Id.

masquerading

Conclusory
as

factual

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

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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 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
rights.

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.

The

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.

Plaintiff also

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.

The

court concludes that the magistrate judge did not err in concluding
that the complaint fails to state a claim on which relief may be
granted.
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.

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The motions to declare plaintiff a vexatious litigator will be
denied.
In accordance with the foregoing, the court denies plaintiff’s
objection (Doc. 19), and adopts the report and recommendation (Doc.
3).

This

action

is

hereby

dismissed

pursuant

to

28

U.S.C.

§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
denied.

Date: October 19, 2017

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

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