Nixon v. WBH Cincinnati LLC

Filing 6

REPORT AND RECOMMENDATION: Re 5 Complaint filed by Melanise Nixon. It is RECOMMENDED that the Court DISMISS Plaintiff's claims in their entirety. Objections to R&R due by 10/3/2022. Signed by Magistrate Judge Elizabeth Preston Deavers on September 19, 2022. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:22-cv-02481-ALM-EPD Doc #: 6 Filed: 09/19/22 Page: 1 of 8 PAGEID #: 144

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELANISE NIXON,
Plaintiff,
Case No. 2:22-cv-2481
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

vs.
WBH CINCINNATI LLC, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff Melanise Nixon, an Ohio resident proceeding without the assistance of counsel,
brings this action arising from a property dispute. (ECF No. 1-1.) This matter is before the
Undersigned for an initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e)(2) and
1915A 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), 1915A(b); see also McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997).
Having performed the initial screen, for the reasons that follow, it is RECOMMENDED
that the Court DISMISS Plaintiff’s claims in their entirety.
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

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(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
(iii) seeks monetary relief against a defendant who is immune from
such relief.
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]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

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Formerly 28 U.S.C. § 1915(d).
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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., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April
1, 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)).
Further, when the face of the complaint provides no basis for federal jurisdiction, the
Court may dismiss an action as frivolous and for lack of subject matter jurisdiction under both 28
U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3). Williams v. Cincy Urban Apts., No. 1:10cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182
F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)).

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II.
Plaintiff’s claims appear to arise out of a years-long family property dispute, which
Plaintiff apparently has unsuccessfully litigated in the Franklin County Probate Court. Plaintiff
alleges that she was “defrauded out of [her] inheritance rights” as an heir to her aunt’s estate, and
that she had “made numerous reports of criminal activity that included Elder Abuse” prior to her
aunt’s death. (ECF No. 1-1 at PAGEID # 6.) Plaintiff alleges that she was supposed to inherit
an interest in her aunt’s house, but that the Franklin County Probate Court instead transferred the
property to Plaintiff’s aunt’s son Vincent Nixon (who Plaintiff implicitly suggests committed the
alleged elder abuse), notwithstanding Plaintiff’s criminal reports. (See generally id. at PAGEID
## 6-7.) Plaintiff alleges that she attempted to work with Court personnel to “stop the ongoing
fraud,” but she “was not provided the help [she] needed in a timely fashion.” (Id. at PAGEID #
7.) Plaintiff further alleges that “[s]everal Court officials should have notified the Judge of what
was going on and gave [her] excuse after excuse thus allowing the fraud to continue.” (Id.)
Plaintiff seeks to have her “legal rights to the property returned to [her]” and for “a full and
proper accountability for those who facilitated this fraud to go forward.” (Id. at PAGEID # 8.)
III.
The Undersigned concludes that Plaintiff has failed to assert any claim with an arguable
basis in law over which this Court has subject matter jurisdiction. “‘Federal courts are courts of
limited jurisdiction.’” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “The basic statutory grants of federal court
subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for ‘[f]ederalquestion’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship jurisdiction.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006).

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A doctrine known as Rooker-Feldman further limits this Court’s jurisdiction to adjudicate
appeals from or collateral attacks on state-court rulings. See Rooker v. Fidelity Trust Co., 263
U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476
(1983). “The Rooker-Feldman doctrine embodies the notion that appellate review of state-court
decisions and the validity of state judicial proceedings is limited to the Supreme Court under 28
U.S.C. § 1257, and thus that federal district courts lack jurisdiction to review such matters.” In
re Cook, 551 F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine applies to cases
“brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544 U.S. 280, 281 (2005).
“The pertinent question in determining whether a federal district court is precluded under the
Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a claim is whether the
source of the injury upon which plaintiff bases his federal claim is the state court judgment.” In
re Cook, 551 F.3d at 548 (internal quotation marks and citation omitted).
Applying the foregoing, the Undersigned concludes that the Rooker-Feldman doctrine
operates to bar this Court from exercising jurisdiction over this action. Here, Plaintiff is
attacking a state-court judgment concerning the property rights of Plaintiff’s late aunt’s house.
Specifically, Plaintiff alleges that the Franklin County Probate Court improperly transferred the
house to Mr. Nixon. (ECF No. 1-1 at PAGEID ## 6-7.) To be clear, the only relief Plaintiff
seeks is to have “[her] legal rights to the property returned to [her].” (ECF No. 1-1 at PAGEID
## 6-8.) Put differently, Plaintiff asks this Court to overrule the Franklin County Probate Court
and transfer the underlying property to her.

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This Court, however, does not have jurisdiction to review such judgments, let alone
overturn them. Only the United States Supreme Court has jurisdiction to review a case litigated
and decided in a state court. See Gotfried v. Med. Planning Servs., 142 F.3d 326, 330 (6th Cir.
1998). Under the Rooker-Feldman doctrine, a litigant cannot collaterally attack a state court
judgment by filing a civil rights complaint. Feldman, 460 U.S. at 486; Rooker, 263 U.S. at 416.
Accordingly, to the extent Plaintiff seeks relief from state court judgments in this Court, those
claims are barred under the Rooker-Feldman doctrine and must be dismissed as a result. Baker
v. Wayne Cnty. Fam. Indep. Agency, 75 F. App'x 501, 503 (6th Cir. 2003) (“In this case, the
essence of [Plaintiff’s] complaint was that the state probate court erred by terminating his
parental and visitation rights. The Rooker–Feldman doctrine prevents federal courts from
engaging in such collateral review of state court decisions.”).
Even notwithstanding the Rooker-Feldman doctrine, Plaintiff has failed to make any
affirmative allegations or state any plausible claims for relief, against any of the named
Defendants. First, for example, a closer look through the exhibits attached to Plaintiff’s
Complaint suggests that Mr. Nixon transferred the property in question to Defendant WBH
Cincinnati LLC (“WBH”), but Plaintiff alleges no wrongdoing by WBH. Likewise, Plaintiff’s
does not affirmatively allege any wrongdoing by Defendant Franklin County Recorder’s Office,
and only alleges in passing that her aunt’s death was recorded in Franklin County – presumably
by the Recorder’s Office. (ECF No. 1-1 at PAGEID # 6.) Next, while Plaintiff alleges that
“Court officials” should have “stop[ped] the ongoing fraud,” Plaintiff makes no allegations
against Defendant Franklin County Probate Court.1 (Id.) Finally, Plaintiff makes no mention

1

Even if Plaintiff had included allegations against Defendant Franklin County Probate Court,
such claims would fail because county “courts in Ohio qualify as arms of the state, and therefore
‘are immune from suits brought by citizens of Ohio.’” McConaughy v. Prob. Ct. of Belmont
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whatsoever of Defendant Franklin County Office on Aging.2 (Id.) The Complaint therefore fails
to state a claim against any of the Defendants. Iqbal, 556 U.S. at 678 (noting that a complaint
must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.”).
For these reasons, it is RECOMMENDED that the Court DISMISS Plaintiff’s claims in
their entirety.

Cnty., Ohio, No. 2:21-CV-2239, 2021 WL 2650056, at *2 (S.D. Ohio June 28, 2021), report and
recommendation adopted sub nom. McConnaughy v. Prob. Ct. of Belmont Cnty., No. 2:21-CV2239, 2021 WL 3022986 (S.D. Ohio July 16, 2021) (citing Phillips v. City of Cincinnati, No.
1:18-CV-541, 2019 WL 2289277, at *10 (S.D. Ohio May 29, 2019) (quoting Lott v. Marietta
Mun. Court, No. 2:13-CV-00377, 2013 WL 6662836, at *4 (S.D. Ohio Dec. 17, 2013)
(compiling Sixth Circuit and Southern District of Ohio decisions finding the same)); see also
Mathis v. Netcare Corp., No. 2:12-CV-576, 2012 WL 2884804, at *1 (S.D. Ohio July 13, 2012)
(County Probate Court entitled to absolute Eleventh Amendment immunity from suit)).
2

To the extent the Court feels compelled to construe Plaintiff’s claims against Defendants
Franklin County Recorder’s Office and/or Franklin County Office of Aging as actually being
asserted against Franklin County, Plaintiff’s claims would still fail. As a rule, local governments
may only be sued under 42 U.S.C. § 1983 when the execution of the local government’s policy
or custom inflicts the injury in question. Allah v. Child Support Enf't Agency, No. 1:18 CV 872,
2018 WL 3752244, at *5 (N.D. Ohio Aug. 7, 2018) (citing Monell v. Department of Soc. Servs.,
436 U.S. 658, 694 (1978); DePiero v. City of Macedonia, 180 F.3d 770, 786 (6th Cir. 1999)).
Here, Plaintiff does not include any legal claims against Franklin County and does not identify a
County policy, ordinance or custom that could be construed to allege a violation of Plaintiff’s
constitutional rights, notwithstanding Plaintiff’s introductory allegations that she “was deprived
of [her] Civil Rights of having equal protection under the law as a person of African American
heritage, veteran status, female and disability status” and that she “also believe[s] that [her]
religious beliefs were also being exploited.” (ECF No. 1-1 at PAGEID # 6.) Simply put,
Plaintiff has not established this Court’s subject matter jurisdiction with respect to Franklin
County. Allah, 2018 WL 375224 at *5 (citing Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.
1999)).
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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 an\d
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).
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 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)).

DATED: September 19, 2022

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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