Easterling v. State Of Ohio

Filing 12

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Complaint herein be dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff's Notice of Constitutional Challenge, construed as motion and his Motion for Injunctive Relief (Doc. No. 11) should be denied as moot. Objections to R&R due by 12/3/2012. Signed by Magistrate Judge Michael R Merz on 11/14/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

WARREN EASTERLING,

:
Case No. 3:12-cv-300

Plaintiff,
-vs-

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

STATE OF OHIO,
Defendant.

:

REPORT AND RECOMMENDATIONS

This case is before the Court on Plaintiff’s motion entitled Notice of Constitutional
Challenge (Doc. No. 7), Defendant’s Motion to Dismiss for Lack of Jurisdiction (Doc. No. 8),
and Plaintiff’s Response in Opposition (Doc. No. 10).1
In his Complaint and again in his Notice of Constitutional Challenge, Plaintiff asserts that
the Ohio vexatious litigant statute, Ohio Revised Code § 2323.52, is unconstitutional in that it
violates the Due Process Clauses of the Fifth and Fourteenth Amendments, the Supremacy
Clause in that it conflicts with 42 U.S.C. § 1985, and the Tenth Amendment (Complaint, Doc.
No. 2). As relief, Plaintiff demands a judgment “requiring the immediate repeal of Ohio statute
2323.52 and the revocation of all order[s] pursuant to 2323.52 of the Ohio Revised Code.” Id. at
PageID 41. Mr. Easterling incorporates by reference, among other things, a copy of an Order of
the Greene County Common Pleas Court declaring Plaintiff to be a vexatious litigator subject to
the reference statute. Id. at PageID 45-47.
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Plaintiff has also filed a Motion for Injunctive Relief (Doc. No. 11) to which Defendant has not yet responded.

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Defendant State of Ohio moves for dismissal under Fed. R. Civ. P. 12(b)(1), asserting
that this Court lacks subject matter jurisdiction by virtue of the Eleventh Amendment or that it
should refrain from exercising jurisdiction under the Rooker-Feldman doctrine (Motion, Doc.
No. 8).
Plaintiff first responds by accusing the State of “play[ing] court” by filing the Motion
instead of responding directly to the allegations he makes in the Complaint (Response, Doc. No.
10, PageID 87). However, the question whether this Court has jurisdiction to consider the
Complaint is a serious one which requires the attention of every federal court at the outset of any
litigation. Federal courts are courts of limited jurisdiction; they are empowered to hear only
those cases which are within the judicial power of the United States as defined in the United
States Constitution and as further granted to them by Act of Congress. Finley v. United States,
490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore there is a
presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v.
President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting
subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it.
Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction
if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1935).
A federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Answers
in Genesis of Ky, Inc. v. Creations Ministries Int’l, Ltd., 556 F. 3d,459, 465 (6th Cir. 2009); Ford
v. Hamilton Inv. Co., 29 F.3d 255, 257 (6th Cir. 1994); In re Millers Cove Energy Co., Inc., 128
F.3d 449, 450 (6th Cir. 1997); Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir. 1992);
Mansfield, C. & L M. Ry. v. Swan, 111 U.S. 379 (1884); Louisville & Nashville R. Co. v.
Mottley, 211 U.S. 149 (1908); Sumner v. Mata, 449 U.S. 539, 548, n.2 (1981); Arbaugh v. Y&H

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Corp., 546 U.S. 500, 514 (2006).
Plaintiff first asserts that this Court has subject matter jurisdiction because the Complaint
presents a federal question: is Ohio Revised Code § 2323.52 unconstitutional? As Plaintiff
notes, 28 U.S.C. § 1331 gives the district courts jurisdiction over cases which arise under federal
law and a claim that a state statute violates the United States Constitution certainly fits that
description.
However, the existence of a federal question does not overcome the Eleventh
Amendment bar. That Amendment provides:
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.
It was adopted to overrule the very unpopular decision in Chisholm v. Georgia, 2 U.S. 419
(1793). It has been construed to bar suits against a State by its own citizens. Papasan v. Allain,
478 U.S. 265, 276 (1986); Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S.
651 (1974); Florida Dep't. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982).
Plaintiff next argues that Ohio’s sovereign immunity has been abrogated by Congress.
While Congress has the power to abrogate sovereign immunity under Section 5 of the Fourteenth
Amendment, it can only do so by unequivocal statement and the abrogation must bear a
reasonable relationship to enforcement of the Fourteenth Amendment. Green v. Mansour, 474
U.S. 64 (1985); Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991). Congress has not
abrogated state sovereign immunity in suits to enforce personal constitutional rights under 42
U.S.C. 1983. Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 940-41 (6th
Cir. 1990), citing Quern v. Jordan, 440 U.S. at 341. Plaintiff points to no language in any
Congressional enactment which purports to abrogate state immunity under the Eleventh
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Amendment for claims of the sort Plaintiff raises.
Defendant’s claim of Eleventh Amendment immunity is well taken and the Complaint
herein should be dismissed without prejudice for lack of subject matter jurisdiction.
It also appears that Defendant’s position as to the Rooker-Feldman doctrine is well taken.
When a claim asserted in a federal proceeding is inextricably intertwined with a judgment
entered in a state court, the district courts are without subject matter jurisdiction to consider the
matter; it must be brought into the federal system by petition for writ of certiorari to the United
States Supreme Court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. Columbia Ct. of
Appeals v. Feldman, 460 U.S. 462 (1983); Peterson Novelties, Inc. v. City of Berkley, 305 F.3d
386, 390 (6th Cir. 2002); In re Sun Valley Foods Co., 801 F.2d 186 (6th Cir. 1986); Johns v.
Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985).
The Rooker-Feldman doctrine does not bar jurisdiction when the plaintiff’s claim is
merely “a general challenge of the state law applied in the state action,” rather than a challenge
to the law’s application in a particular state case.” Pieper v. American Arbitration Assn., Inc.,
336 F.3d 458 (6th Cir. 2003)(Moore, J.), quoting Tropf v. Fidelity Nat’l Title Ins. Co., 289 F.3d
929, 937 (6th Cir. 2002), cert. denied, 123 S. Ct. 887 (2003); see also Hood v. Keller, 341 F.3d
593 (6th Cir. 2003). While Plaintiff here makes a general challenge to Ohio Revised Code §
2323.52, he also seeks injunctive relief to prohibit the state courts from enforcing on him a
judgment rendered in the Greene County Common Pleas Court. Rooker-Feldman forbids this
Court from entertaining a demand for relief which would directly enjoin a state court judgment.
To put it another way, the asserted unconstitutionality of Ohio Revised Code § 2323.52 as
applied to Plaintiff must be raised by him on appeal through the state court system.
Conclusion

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It is therefore respectfully recommended that the Complaint herein be dismissed without
prejudice for lack of subject matter jurisdiction. Plaintiff’s Notice of Constitutional Challenge,
construed as motion and his Motion for Injunctive Relief (Doc. No. 11) should be denied as
moot.
November 14, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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