Powell v. Jefferson County Department of Job & Family Services et al

Filing 56

OPINION AND ORDER - Mr. Powell's Motion for Preliminary Injunction is DENIED (ECF No. 9 ). The Court GRANTS Defendants' Motions to Dismiss (ECF Nos. 23 , 44 , 46 , 49 , 52 ) and DISMISSES with prejudice Mr. Powell's claims agains t all Defendants. Having dismissed the claims against all Defendants, Mr. Powell's Motion for Summary Judgment (ECF No. 10 ), and Motion titled 2nd Request Motion to Add Plaintiffs New Names & et al to all Caption Pleadings of Plaintiffs et al & Defendants et al Dockets Case No. Clerical Misprision or Clerical Mistake by Officers of the Court (ECF No. 12 ), are DENIED as moot. Signed by Judge Edmund A. Sargus on 3/10/2025. (cmw)(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
DAVID POWELL,
Plaintiff,
v.

Case No. 2:24-cv-1405
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura

JEFFERSON COUNTY
DEPARTMENT OF JOB &
FAMILY SERVICES, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on several pro se motions filed by Plaintiff David Powell
(ECF Nos. 9, 10, 12), and motions to dismiss filed by Defendants (ECF Nos. 23, 44, 46, 49, 52).
The Court rules on the motions below.
I.

Background

Mr. Powell filed this lawsuit on March 27, 2024. (ECF No. 1.) He has since amended his
Complaint three times and named fifteen Defendants in total. (See ECF Nos. 3, 8, 14.) The
allegations in Mr. Powell’s various Complaints are difficult to discern but seem to relate to his role
as the guardian on behalf of Linda Courcier. Defendants also describe discrepancies between the
various Complaints filed on the Court’s docket and the Complaints served on Defendants. The
Complaints served on Defendants vary based on the Defendant being served.
Generally, the Complaints filed with the Court and served on Defendants allege that Mr.
Powell was improperly removed as Ms. Courcier’s guardian. Mr. Powell does not state his
relationship to Ms. Courcier. When Ms. Courcier was visiting Ohio, she had a medical emergency,
which he alleged led to a conspiracy initiated by the Jefferson County Probate Court to improperly
remove him as her guardian and to prevent him from visiting her. The scope of the alleged
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conspiracy is broad, and includes various media organizations, sovereign state, prominent athletes,
and political figures, and members of crime families all worked together to kidnap Ms. Courcier,
hold her hostage, and fraudulently represent that she passed away in December 2023. (See e.g.,
ECF Nos. 23-1, 23-2, 23-3.)
He seeks the release of Mr. Courcier from a facility in Ohio, the Sunnyslope Center, to his
custody so that they can return to Florida. He asks to be named as Ms. Courcier’s Social Security
payee, and for an award of attorneys’ fees in the amount of $400,00, and $10 trillion in unspecified
damages (See ECF Nos. 3, 8, 14.) He asks the Court to issue an arrest warrant of various state and
local entities, politicians, corporations, and athletes. (Id.)
Mr. Powell also filed a Motion for Preliminary Injunction (ECF No. 9), a Motion for
Summary Judgment (ECF No. 10), and a Motion titled “2nd Request Motion to Add Plaintiff’s
New Names & et al to all Caption Pleadings of Plaintiff’s et al & Defendant’s et al Docket’s Case
No. Clerical Misprision or Clerical Mistake by Officers of the Court” (ECF No. 12).
Several Defendants moved to dismiss Mr. Powell’s claims for failure to state a claim for
relief or for lack of subject matter jurisdiction. Below is a list of the motions to dismiss before the
Court:
•

State of Ohio, the Ohio Department of Job and Family Services, Ohio Medicaid, Ohio
Department of Job and Family Services Bureau of State Hearings, Ohio Ombudsman
Long-Term Care, (collectively, the “State of Ohio Defendants”) Motion to Dismiss for
Lack of Jurisdiction (ECF No. 23.)

•

State of Ohio Defendants’ Motion to Dismiss for Failure to State a Claim (ECF No. 44)

•

Defendant Jefferson County Department of Job and Family Services’ Motion to Dismiss
for Failure to State a Claim and for Lack of Jurisdiction (ECF No. 46)

•

Defendant Coleman Health Service’s Motion to Dismiss for Failure to State a Claim and
for Lack of Jurisdiction (ECF No. 49)

2

•

Defendant Commissioner of Social Security’s Motion to Dismiss Case as Frivolous, for
Failure to State a Claim, and for Lack of Jurisdiction (ECF No. 52)
Several other Defendants did not appear after Mr. Powell’s deficient attempts to effect

service of process. When Mr. Powell failed to effect service of process after almost a year, the
Magistrate Judge recommended that the Court dismiss without prejudice Mr. Powell’s claims
against the non-moving Defendants under Rule 4(m) of the Federal Rules of Civil Procedure for
failure to timely effect service of process. (R&R, ECF No. 53.) Mr. Powell filed a Motion broadly
objecting to the Report and Recommendation and opposing the various motions to dismiss filed
by Defendants. (ECF No. 54.) The Court adopted the Report and Recommendation and dismissed
the claims against the non-moving Defendants without prejudice. (See O&O, ECF No. 55.) The
Court now addresses the remaining pending motions before the Court.
II.

Mr. Powell’s Motion for Preliminary Injunction

“A preliminary injunction is an extraordinary remedy which should be granted only if the
movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet
v. Lexington-Fayette Urb. Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). The purpose of a
preliminary injunction is “to preserve the parties’ relative positions in order to prevent irreparable
injury prior to trial.” Montgomery v. Carr, 848 F. Supp. 770, 779 (S.D. Ohio 1993) (Weber, J.).
To decide whether to issue a preliminary injunction, the Court examines four factors: (1)
whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant
will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction
would cause substantial harm to others; and (4) whether the public interest would be served by
issuing the injunction. Overstreet, 305 F.3d at 573 (explain the four factors should be balanced
against each other).
Mr. Powell’s Motion for a Preliminary Injunction states, in its entirety:
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Pursuant to Civil rule 8(a), 9(g), 54, 55, 58, 64, 65, 65.1, 69 Plaintiff(s) et al hereby
moves the Court to enter as prayed FORTHWITH Injunction Relief Blanket
Protective, Restraining, & SEIZURE OF PERSON MS. COURCIER BACK
TO GUARDIAN MR. POWELL ORDER JUDGMENT in favor of prevailing
Appellant(s) et al and against Defendant’s et al 18, 19, 19.1, 20 necessary
implication. On the grounds Estoppel by Acquiescence, nil-dicit default,
Judgment. The Court after reviewing the motion and relevant laws, finds that the
motion for Blanket Protective, Restraining, & seizure of person order Habeas
Corpus, Mandamus relief is well taken and is GRANTED.
(ECF No. 9, PageID 168.)
Mr. Powell has not alleged facts sufficient to warrant a preliminary injunction. His singleparagraph motion has not shown that he has any likelihood of success on the merits, let alone a
strong likelihood of success. As grounds for relief, he cites estoppel by acquiescence. But “estoppel
by acquiescence is generally considered an affirmative defense, not an independent cause of action,
whereby a plaintiff will be held to have lost his rights against a defendant, if the plaintiff has
committed some act which ‘amount[s] to an assurance to the defendant, express or implied, that
plaintiff would not assert his . . . rights against the defendant[].’” Bey v. Brown, No. 4:16CV0267,
2017 U.S. Dist. LEXIS 47833, *9 (N.D. Ohio Mar. 30, 2017) (citing Nat’l Football League v
Rondor, Inc., 840 F. Supp.1160, 1167 (N.D. Ohio 1993); Zwerin v. 533 Short N. LLC, No. 2:10cv-488, 2012 U.S. Dist. LEXIS 157745, at *5 (S.D. Ohio Nov. 2, 2012)).
Mr. Powell does not argue that he will suffer irreparable harm if the injunction is not issued.
There is no discussion of harm to others or the public interest in his Motion. Accordingly, Mr.
Powell is not entitled to the extraordinary remedy of a preliminary injunction and his Motion for
Preliminary Injunction (ECF No. 9) is DENIED.
III.

Motions to Dismiss

All Defendants argue that Mr. Powell has failed to effect service and thus his claims should
be dismissed under Rule 4(m) of the Federal Rules of Civil Procedure. Even if he had effectuated
service on the Defendants, Defendants argue that the Court lacks jurisdiction for several reasons.
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Alternatively, Defendants move to dismiss contending that Mr. Powell has failed to state a claim
upon which relief may be granted. The Court addresses each of the Defendants’ Motion to Dismiss
in turn.
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of actions that fail to state
a claim upon which relief can be granted. While Rule 8(a)(2) requires a pleading to contain a “short
and plain statement of the claim showing that the pleader is entitled to relief,” in order “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 57 (2007)). “A claim has facial plausibility 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. (clarifying plausibility standard from
Twombly). Further, “[a]lthough for purposes of a motion to dismiss [a court] must take all of the
factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion
couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555) (quotations omitted).
Since Mr. Powell brings this action without the assistance of counsel, he is entitled to a
liberal construction of the Complaint. Pro se complaints are construed liberally and held to “less
stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972). But this more lenient standard has limits. Frengler v. Gen. Motors, 482 F. App’x 975,
976–77 (6th Cir. 2012). Courts “should not have to guess at the nature of the claim asserted.” Id.
(citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
B. State of Ohio Defendants’ Motions to Dismiss
The State of Ohio Defendants filed two Motions to Dismiss arguing that the Court lacks
subject matter jurisdiction over the action (ECF No. 23) and that Mr. Powell has failed to state a
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claim for relief (ECF No. 44). 1 Mr. Powell responded to both Motions (ECF Nos. 27, 48), and the
State of Ohio Defendants replied (ECF Nos. 29, 50).
The State of Ohio Defendants argue that the Court lacks jurisdiction over the case because
(1) Ms. Courcier passed away rendering Mr. Powell’s claims as moot; (2) Mr. Powell failed to
allege the proper basis for the Court’s jurisdiction; (3) federal courts lack jurisdiction to reverse
decisions by probate courts; and (4) the Eleventh Amendment bars all prospective claims and
claims for damages against the State of Ohio Defendants. (See ECF Nos. 23, 29.)
To the extent that Mr. Powell seeks monetary damages from the State of Ohio Defendants,
his claims are dismissed under sovereign immunity under the Eleventh Amendment. The Eleventh
Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any foreign state.
U.S. Const. Am. XI. The Amendment bars claims for monetary damages against State agencies
and State officers in their official capacities. Edelman v. Jordan, 415 U.S. 651, 663 (1974).
Mr. Powell sues the State of Ohio itself, along with several other state agencies or state
officials named in their official capacities (Ohio Department of Job and Family Services, Ohio
Medicaid, Ohio Department of Job and Family Services Bureau of State Hearings, Ohio
Ombudsman Long-Term Care), so the State of Ohio is effectively the real party in interest.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (citation omitted). He seeks
monetary damages of $10 trillion and $400,000 in attorneys’ fees. Therefore, his claims for
monetary, non-prospective relief, are barred by the Eleventh Amendment.
1

The State of Ohio Defendants also argue that they were not properly served with summons and
a copy of the complaint. (ECF No. 23, PageID 457–58.) Because Mr. Powell is pro se and the
State of Ohio Defendants have appeared, the Court will treat the State of Ohio Defendants as if
service were proper for the motion to dismiss.
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The State of Ohio Defendants argue that the Court lacks jurisdiction over Mr. Powell’s
claims for prospective relief under the probate exception. (ECF No. 23, PageID 466.) Mr. Powell
did not address the argument that the Court lacks subject matter jurisdiction over guardianship
matters in his response to the Motion. (See ECF No. 27.)
Under Ohio law, the probate court may appoint a guardian over a person. See Ohio Rev.
Code § 2111.02(A). Federal courts are prohibited from exercising jurisdiction over certain
conflicts involving property subject to a state court probate proceeding.” Osborn v. Griffin, 865
F.3d 417, 434 (6th Cir. 2017) (describing the “probate exception” to federal jurisdiction). Although
the “full scope of the so-called probate exception remains open to debate, [] matters involving a
Guardian, Conservator[,] or other fiduciary appointed and supervised by the Probate Court fall
comfortably within its scope.” Gilroy v. Gilroy, No. 1:21-CV-261, 2021 U.S. Dist. LEXIS 232092,
at *5 (W.D. Mich. Apr. 5, 2021); see also Struck v. Cook County Pub. Guardian, 508 F.3d 858,
859–60 (7th Cir. 2007) (applying the probate exception to claim challenging revocation
of guardianship).
Mr. Powell’s Complaint primarily asks this Court to reverse the decision of the Jefferson
County Probate Court appointing a guardian for Ms. Courcier, and to instead award him
guardianship. (See ECF Nos. 23-1 (Complaint served on State of Ohio); 23-2 (Complaint served
on Medical Board); 23-3 (Complaint served on Ohio Department of Medicaid).) Matters involving
guardianship are excluded from this Court’s jurisdiction under the probate exception. Even if the
probate doctrine did not apply, the Court notes that to the extent that Mr. Powell is attempting to
overturn orders entered by an Ohio probate court, the Rooker-Feldman doctrine limits this Court’s
ability to adjudicate such claims. Heimlich v. United States, No. 2:23-cv-1879, 2023 U.S. Dist.
LEXIS 112100, at *9 (S.D. Ohio June 28, 2023) (Vascura, M.J.) (citing Rooker v. Fid. Tr. Co.,

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263 U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
476 (1983)).
Even construing Mr. Powell’s Complaint liberally and assuming he adequately pled the
jurisdictional requirements, the Court nonetheless finds that Mr. Powell has failed to state a claim
upon which relief may be granted. First, Ms. Courcier’s death likely renders moot Mr. Powell’s
claim. Second, Mr. Powell does not make clear what cause of action he brings against the State of
Ohio Defendants. Even under the liberal pleading standards afforded to pro se litigants, the Court
“should not have to guess at the nature of the claim asserted.” Frengler, 482 F. App’x at 976–77.
The State of Ohio Defendants construe his allegations as bringing a 42 U.S.C. § 1983 claim
because he argues Defendants engaged in a conspiracy to violate his civil rights by kidnapping
Ms. Courcier and falsely claiming that she passed away. (ECF No. 23, PageID 469.) Although it
is hard to discern the relief requested, Mr. Powell appears to request the return of guardianship of
Ms. Courcier to him, the immediate discharge of her to his custody, and to name him as her Social
Security payee.
The State of Ohio Defendants correctly note that Mr. Powell fails to state a claim upon
which relief may be granted. For one, Ms. Courcier passed away on December 3, 2023. (ECF No.
23, PageID 464–65; see also ECF No. 23-4, Certificate of Death.) Her death at minimum makes it
impossible for the Court or any of the Defendants to return guardianship to Mr. Powell, or to
release her into his custody. Further, none of the State of Ohio Defendants are able to award
guardianship or responsible for naming the Social Security payees. (ECF No. 23, PageID 468–69.)
Accordingly, because he fails to state a claim for relief even under the less stringent standards
imposed on pro se litigants, Mr. Powell’s claims against the State of Ohio Defendants are
DISMISSED.

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C. Defendant Jefferson County Department of Job & Family Services’
Motion to Dismiss
Jefferson County Department of Job and Family Services (“Jefferson County JFS”) also
moved to dismiss Mr. Powell’s Complaint. (ECF No. 46.) Mr. Powell opposed that Motion. (ECF
No. 48.) As with the other Defendants, the Complaint served on Jefferson County JFS is not one
of the four Complaints on the Court’s docket. (Compare ECF No. 46-1 (Complaint served on
Jefferson County JFS) with ECF Nos. 1, 3, 8, 14 (Complaints filed on docket).) Thus, Jefferson
County JFS argues that it has not been properly served under Rule 4(m) of the Federal Rules of
Civil Procedure. Like the State of Ohio Defendants, Jefferson County JFS also argues that Mr.
Powell has failed to state a claim for relief under Rule 12(b)(6).
Mr. Powell makes the allegations below against Jefferson County JFS:
•

“CRIME FRAUD EXCEPTION W/ DISCRIMINATION JEFFERSON
COUNTY DJFS OBSTRUCTION OF JUSTICE COMPOUNDING THE
CRIMES SPREE(S).” (ECF No. 46-1, ¶ 2.) “COMPOUNDING THE CRIME
CAUSE OF ACTION STIFLINF OVERT PROSECUTION CAUSATION EXIST
IN A SUBORN SECRET UNDERHANDED MATTER (CHANGE OF
GUARDIANSHIP) SUBMISSION TO A FINDINGS LINK TO HOSTAGE
KIDNAP BY JEFFERSON COUNTY DEPT. JFS/APS ET AL & THIRD
PARTY.” (Id.)

•

“NECESSARY IMPLICATION FOR OVERT TERRORISM ACTS W/
JCDJFS.” (Id. ¶ 3.)

•

“BASED ON PLAINTIFF(S) ET AL REBUTTAL LEGAL GROUNDS
OBJECTION AN JEFFERSON COUNTY DEPT. JFS/APS UNREASONABLE
DECISION.” (Id. ¶ 6.) “APPOINTED IMPOSTER GUARDIAN RYAN
HEDDLESTON ON 5-26-23 FALSIFYING A RECORD DECEPTION
CONSPIRACY FALSE DOCUMENTS BY JEFFERSON COUNTY DJFS IN
PROBATE COURT JUDGE LACK OF SUBJECT MATTER JURISDICTION
12/15/22 DEFENDANT’S ET AL.” (Id.)

•

“PLAINTIFF(S) ASSERT TO ESTOP BAR OR PREVENT BY ESTOPPEL
ESTOPPAGE JEFFERSON CDJFS ET AL & JUDGE DECISION 11-16-23, 1218-23, & 2-26-24 IN PROBATE NON JURISDICTION CONTEMPORANEOUS
OBJECTION.” (Id. ¶ 9.)

9

•

“R. 15(c) RELATES BACK TO ORIGINAL PLEADING DATE IN COUNTY
PROBATE COURT EMERGENCY HEARING DESIGNATED AGENCY
OF JEFFERSON COUNTY DJFS/APS & TRINITY HEALTH SYSTEM
11/17, 18/22.” (Id. ¶ 11.)

•

“DEPRIVED OF CONSTITUTIONAL RIGHTS UNDER COLOR OF
STATE LAWS 42 UDCA SS. 1983 AND 42 USC SS. 1985(1-3) SEDITIOUS
CHAIN CONSPIRACY W/ JEFFERSON COUNTY DEPT. JOB & FAMILY
SERVICES/APS.” (Id. ¶ 20.)

•

“WIRE AND MAIL FRAUD TO GAIN AN ECONOMICAL ADVANTAGE
JDJFS ET AL RECIPIENTS RECEIVING FEDERAL AND STATE
DOLLARS WHILE LINK TO EXTORTION, RANSOM, HUMAN
TRAFFICKING KIDNAP DOMESTIC STATE TERRORISM OF
PLAINTIFF’S ET AL.” (Id. ¶ 21.)

The Complaint served on Jefferson County JFS has not been filed with the Court. Rule 4(c)
of the Federal Rules of Civil Procedure requires that a summons be served with a copy of the
complaint. See Fed. R. Civ. P. 4(c)(1). Since Mr. Powell failed to have summons and a copy of the
Complaint filed on the Court’s docket served on Jefferson County JFS in the time allotted under
Rule 4(m), Jefferson County JFS is entitled to dismissal on these grounds. See Fed. R. Civ. P.
12(b)(5) (providing for dismissal for insufficient service of process).
But even if the Complaint were properly served on Jefferson County JFS, Mr. Powell does
not provide factual allegations with the detail necessary to give Jefferson County JFS notice of a
viable cause of action against it under any of the legal theories referenced by Mr. Powell. See
Milam v. Brown, No. 21-6035, 2022 U.S. App. LEXIS 14892, at *4 (6th Cir. May 31, 2022)
(collecting cases affirming the dismissal of rambling complaints that fail to give the defendants
fair notice). Mr. Powell’s allegations are difficult to decipher and leave Jefferson County JFS
guessing as to what causes of action he asserts. Even under the more lenient construction afforded
to pro se litigants, Mr. Powell fails to state a claim upon which relief can be granted. Accordingly,
Jefferson County JFS’s Motion to Dismiss (ECF No. 46) is GRANTED and Mr. Powell’s claims
against it are DISMISSED.
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D. Defendant Coleman Health Service’s Motion to Dismiss
Defendant Coleman Health Service also moves to dismiss Mr. Powell’s Complaint against
it. (ECF No. 49.) Mr. Powell did not respond to Coleman Health’s Motion. Mr. Powell’s
allegations against Coleman Health include:
•

“Criminal negligence criminal intent of perpetrator(s) Political Offenses overt acts
introduced fabricated evidence by . . . Coleman Professional Service and Parent company
Coleman Health Service CEO Hattie Tracey.” (ECF No. 46-1, ¶ 3.)

•

“TO INCLUDE Pinkerton Rule and other Simul Cum(s) Terrorism Right in Rem (Jefferson
County) and other Community at large citizens Political Offenses accomplice liability,
joint trespass (RICO ACT) subversive overt acts criminal crime spree activities. Retaliation
criminal coercion threats against sponsor David Powell being arrested and jailed if he
removed Linda Courcier as her Guardian home. By Coleman Professional Service and
Probate Court Judge no contact unreasonable decision.” (Id. ¶ 4.)

•

“The Terrorist Terrorism perpetrator(s) conspirators coconspirator(s) covin overt acts
conspiracy malice False Statements 18 USCA ss. 1001 and falsifying a record in Probate
Court 11-16, 18-22 & 12-8, 15-22. Under false pretext, pretenses, and false oral testimony
ORC 2921.11(A-C) and repeated again at State Bureau hearing on 2-13-23 . . . complicity
w/ Coleman Professional Services[.]” (Id. ¶ 7.)

•

“Deceit overt acts malice by both case workers and Coleman Professional Services to
blackmail trick coercion both victims in a badger game extort money scheme.” (Id. ¶ 8.)

•

“Pervasive malice U.S. Joint enterprises malicious purposes overt acts exploitation and
deception to evade and or overthrow its own government and its law. Along w/ link
together facilitator Coleman Professional Service & Jefferson County Government Entities
(Probate Court) compounding the crimes.” (Id. ¶ 17.)

•

“Civil servants criminal coercion crimes allowing criminal intent by Crime Families and
Coleman Professional Services (Exhibit).” (Id. ¶ 27.)

•

“By Repeated blind eye willful blindness ties to the complicit aid and abetting facilitation
of . . . Coleman Professional Service[.]” (Id. ¶ 36.)

•

“Aiding in abetting terrorism intimidation facilitation w/ Probate Court/Coleman
Professional Service Terrorism nondisclosure active concealment malicious purpose
unlawful force of kidnapping isolation of Ms. Courcier and Discrediting Mr. Powell.” (Id.
¶ 37.)

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The Complaint served on Coleman Health does not match any of the Complaints on the
Court’s docket. (Compare ECF No. 49-1, with ECF Nos. 1, 3, 8, 14.) Accordingly, Coleman Health
moves to dismiss under Rule 12(b)(5). When a plaintiff fails to serve a defendant a summons with
a copy of the complaint in the time allowed under Rule 4(m), a defendant may move for dismissal
under Rule 12(b)(5) for insufficient service of process. Tepe v. Whirlpool Corp., No. 22-5826,
2023 U.S. App. LEXIS 13818, at *3 (6th Cir. June 2, 2023) (explaining that the plaintiff bears the
burden of proving that proper service was made). Ordinarily, courts cannot exercise power over a
defendant without service of process on that defendant. See Murphy Bros. v. Michetti Pipe
Stringing, 526 U.S. 344, 350 (1999). Since initiating this lawsuit almost a year ago, Mr. Powell
has not shown that proper service was made on Coleman Health. Thus, dismissal is proper under
Rule 12(b)(5) for insufficient service of process.
But even if Coleman Health were properly served, it argues that dismissal is appropriate
under Rule 12(b)(1) because Mr. Powell has failed to establish that the Court has subject matter
jurisdiction and Rule 12(b)(6) because he has failed to state a claim for relief. (ECF No. 46, PageID
815–17.) As with his claims against Jefferson County JFS, Mr. Powell’s claims against Coleman
Health are difficult to discern. Although he alleges some wrongdoing on Coleman Health’s part,
the Court cannot determine from the pleadings what role Coleman Health played in the alleged
deprivation of Mr. Powell’s rights. His factual allegations do not state in sufficient detail
allegations necessary to give notice of the causes of action against Coleman Health. Mr. Powell
therefore fails to state a claim upon which relief can be granted. Coleman Health’s Motion to
Dismiss (ECF No. 49) is GRANTED and Mr. Powell’s claims against it are DISMISSED.
E. Defendant Commissioner of Social Security’s Motion to Dismiss
The Commissioner of the Social Security Administration moves to dismiss Mr. Powell’s
case as frivolous, for failing to state a claim for relief, and for lack of jurisdiction. (ECF No. 52.)
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Mr. Powell did not file a memorandum in opposition to the Commissioner’s Motion but broadly
objected to the Motions to Dismiss in his Objection to the Magistrate Judge’s Report and
Recommendation. (See ECF No. 54.)
Mr. Powell names the Social Security Administration in this lawsuit because a new
representative was appointed to manage Ms. Courcier’s Social Security benefits. Mr. Powell
alleges that the Social Security Administration participated in a conspiracy to appoint a new
guardian of Ms. Courcier and fraudulently declare her death. (See ECF No. 52, PageID 934.)
The Commissioner argues that Mr. Powell lacks standing to litigate on Ms. Courcier’s
behalf as her guardian because the state probate court appointed Ms. Courcier a different guardian.
(Id. PageID 939–41.) Even if he were her guardian, Ohio law does not allow a guardian to sue on
behalf of a deceased ward. (Id. (citing Ohio Rev. Code § 2111.17).) The Commissioner reiterates
that even if Mr. Powell had standing, the Court has no jurisdiction under the probate exception and
should abstain pursuant to the Rooker-Feldman doctrine. (Id. PageID 940.)
The Commissioner also reasons that “[t]o the extent that [Mr. Powell] is asserting a right
to be Ms. Courcier’s representative payee, he identifies no legal authority supporting the existence
of such a right nor any legal authority supporting the proposition that he has a right to judicial
review of the Commissioner’s decision to appoint Ms. Courcier’s legal guardian as payee instead
of him.” (Id. PageID 942.) The selection of a representative payee is properly appealed through
the administrative appeals process. (Id. (citing 20 C.F.R. §§ 404.903(c), 404.902(q)).) At
minimum, Mr. Powell’s Complaint is too incomprehensible to establish federal court jurisdiction
over his claims, and at best, the Complaint fails to plead sufficient facts to state a plausible claim
for relief on its face. (Id. PageID 945–46.)
The Court agrees that the deficiency of Mr. Powell’s allegations against the Commissioner
of the Social Security Administration deprive the Court of subject-matter jurisdiction. If the Court
13

had jurisdiction, the proper avenue to adjudicate his claim would be by exhausting the
administrative review process. Even then, the Court’s ability to review the state court judgment is
limited by the Rooker-Feldman doctrine. See Rooker, 263 U.S. at 415–16; Feldman, 460 U.S. at
476. Allegations before the Court are too attenuated to put the Social Security Administration on
notice of the claims brought against it. Accordingly, the Court GRANTS the Commissioner’s
Motion to Dismiss (ECF No. 52) and dismisses the claims against the Social Security
Administration.
IV.

Conclusion

For the reasons stated above, Mr. Powell’s Motion for Preliminary Injunction is DENIED
(ECF No. 9). The Court GRANTS Defendants’ Motions to Dismiss (ECF Nos. 23, 44, 46, 49, 52)
and DISMISSES with prejudice Mr. Powell’s claims against all Defendants. Having dismissed
the claims against all Defendants, Mr. Powell’s Motion for Summary Judgment (ECF No. 10), and
Motion titled “2nd Request Motion to Add Plaintiff’s New Names & et al to all Caption Pleadings
of Plaintiff’s et al & Defendant’s et al Docket’s Case No. Clerical Misprision or Clerical Mistake
by Officers of the Court” (ECF No. 12), are DENIED as moot.
The Clerk is directed to enter judgment and close this case.
IT IS SO ORDERED.
3/10/2025
DATE

s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

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