Cramer v. Vavra

Filing 2

REPORT AND RECOMMENDATION re 1 MOTION for Leave to Proceed in forma pauperis filed by Paul Joe Cramer. It is RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted. Objections to R&R due by 2/9/2018. Signed by Magistrate Judge Chelsey M. Vascura on 1/26/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PAUL JOE CRAMER,
Plaintiff,
Civil Action 2:18-cv-62
Judge James L. Graham
Magistrate Judge Chelsey A. Vascura

v.

JUDGE JOHN A. VAVRA,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Paul Joe Cramer, an Ohio resident who is proceeding without the assistance of
counsel, brings this action against Judge John A. Vavra, a state-court judge with the Belmont
County Court of Common Pleas. This matter is before the Court for the initial screen of
Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) to identify cognizable claims and to
recommend dismissal of Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen,
for the reasons that follow, it is RECOMMENDED that the Court DISMISS this action
pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted.
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1, which
provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 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.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
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Formerly 28 U.S.C. § 1915(d).
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pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has
limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.
Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II.
According to Plaintiff’s Complaint, Defendant Judge Vavra presided over a state-court
criminal case in which Plaintiff was a defendant. Plaintiff alleges that Judge Vavra accepted his
guilty plea and sentenced him. Plaintiff further alleges that he did not agree to the sentence
Judge Vavra imposed and also that Judge Vavra imposed the sentence without ordering a

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presentence investigation report. In terms of relief, Plaintiff requests an order “to keep this from
happening again.” (Compl. 4, ECF No. 1-1.)
No matter how liberally the Court construes Plaintiff’s Complaint, his claims against
Defendant Judge Simmons are barred by the doctrine of judicial immunity. “It is wellestablished that judges enjoy judicial immunity from suits arising out of the performance of their
judicial functions.” Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004) (citing Pierson v.
Ray, 386 U.S. 547, 553-54 (1967)). Judicial immunity is overcome only if the actions taken are
not within the judge’s judicial capacity or if the actions, “though judicial in nature, [are] taken in
the complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations
omitted). A review of Plaintiff’s Complaint reveals that those exceptions do not apply here.
Thus, because Judge Vavra is entitled to absolute judicial immunity, it is recommended that
Plaintiff’s claims against Judge Vavra be dismissed.
III.
For the reasons set forth above, it is RECOMMENDED that this action be dismissed
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).

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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 of 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 object to the
magistrate judge’s recommendations constituted a waiver of [the defendant’s] 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 of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when 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 to preserve an issue for appeal . . . .” (citation
omitted)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE