Easterling v. State of Ohio

Filing 36

REPORT AND RECOMMENDATIONS - The Amended Complaint in this case fails to state a claim upon which relief can be granted. It should therefore be dismissed. Because no amendment to add new facts would make Petitioners constitutional facial challenge to the Statute any stronger, the dismissal should be with prejudice. Because he cannot prevail on the merits, Easterlings Motion for Preliminary Injunction should be denied. Objections to R&R due by 9/3/2013. Signed by Magistrate Judge Michael R Merz on 8/16/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WARREN EASTERLING,
Petitioner,

:

Case No. 3:13-cv-024
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vs:
STATE OF OHIO,
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Warren Easterling brought this mandamus action pro se to obtain permanent
injunctive relief against the enforcement of Ohio’s vexatious litigator statute, Ohio Revised Code
§ 2323.52 (the “Statute”), on the grounds it violates a number of his federal constitutional rights.
The case is before the Court on Petitioner’s Amended Motion for Permanent Injunction (Doc.
No. 27) and Respondent’s Motion to Dismiss the Amended Complaint (Doc. No. 32). Easterling
has responded with what he labels a Motion to Overrule, (Doc. No. 35).
This is one of several cases filed by Easterling in this Court attempting to obtain relief
from operation of the Statute. Prior (3:12-cv-300) and subsequent (3:13-cv-106) cases have been
dismissed on grounds of judicial or sovereign immunity or under the Rooker-Feldman doctrine.
It appears, however, that with the substitution of Attorney General Mike DeWine as the sole
Respondent, the controversy is structured to permit a decision on the merits. Easterling has
himself been declared a vexatious litigator by the Common Pleas Court of Greene County in
Case No. 2010 CV 1267 (Order, Exhibit 1 to Doc. No. 4). Respondent does not contest
1

Easterling’s standing to challenge the statute and the Court finds there is a constitutionally
adequate case or controversy between the parties.

The Allegedly Offending Statute

The Statute is set out in full in the Appendix. Briefly, it enables an Ohio Common Pleas
Court, on suit of a person or the chief legal officer of a number of political entities, to declare a
person a “vexatious litigator.” Once that declaration is made, the person thus designated must
obtain leave of court before taking various acts in litigation, including instituting legal
proceedings.

Leave is not to be granted unless the court finds that “the proceedings or

application are not an abuse of process and that there are reasonable grounds for the proceedings
or application.” Ohio Revised Code § 2323.52(F)(1).

Plaintiff’s Claims of Unconstitutionality

Petitioner does not state any statutory or common law basis for his case. However, since
all his claims assert he is being deprived of federal constitutional rights by the State of Ohio, the
case is properly seen as arising under 42 U.S.C. § 1983 which provides a private right of action
for persons with claims of this nature.
In Count One of the Amended Complaint, Easterling asserts that the Statute violates the
Supremacy Clause of the United States Constitution (Art. VI, Cl. 2) by “undermin[ing] or
limit[ing] the reach of the 5th and 14th amendments” by somehow leaving the State of Ohio free
to comply with federal law in some cases and defy it in others. (Proposed Amended Complaint,
Doc. No. 30,PageID 239.)
2

In Count Two Easterling asserts the Statute violates the principles of federalism
embodied in the Tenth Amendment. Id. at PageID 241. In Count Three he claims the Statute
violates 42 U.S.C. § 1985 by depriving persons of rights or privileges granted to citizens of the
United States.
In Count Four Easterling asserts the Statute violates the Due Process Clause of the
Fourteenth Amendment in a number of ways. First Easterling asserts “[t]he requirement to seek
leave of court to enjoy ones [sic] constitutionally granted rights and the potential of being denied
the same based on a court order born from a state statute is a direct violation of the rights granted
in the Fourteenth Amendment of the U.S. Constitution . . . by giving state court judges ‘the
opportunity to exterminate legitimate claims based solely on the judges [sic] opinion of whether
it is an abuse of process or groundless.”’ Id. at PageID 243. The screening mechanism is
alleged to be vague. Id. at 244. Although the Statute provides that leave will be granted even to
a person classified as a vexatious litigator if he or she can show injury, damages, and a legal
basis, Easterling projects that judges will exceed their authority and decide on the basis of
whether he or she likes the case or the party against whom it is brought. Id. at PageID 244.
Easterling continues Count Four by asserting the State has no compelling need for the
Statute which would in any event be “secondary to the intent of Congress.”

Id. at 246.

Attorneys, including prosecutors, are alleged to file many baseless lawsuits so that the Statute
discriminates against pro se litigants unfairly. Id. at PageID 247. The definitions of the Statute
are alleged to be vague and ambiguous. Finally, Easterling asserts it violates the law of standing
to allow a person who was not a party to the case in which someone was declared a vexatious
litigator to rely on that designation. Id. at PageID 250.

3

In Count Five Easterling alleges the Statute violates the Privileges and Immunities and
Equal Protection Clauses by discriminating against pro se litigants. Id. at PageID 252-53. Count
Six asserts the Statute violates the incorporation doctrine. Id. at PageID 254. Count Seven again
raises Easterling’s claim that third parties should not be able to use a vexatious litigator
designation obtained by another person. Id. at PageID 254-56.
Count Eight alleges the Statute violates rights to due process and free access to the courts.
Id. at PageID 256-60. The statute is said to impose cruel and unusual punishment. Id. In Count
Nine the Statute is alleged to violate the Case or Controversy Clause of Article III by allowing
reliance on a vexatious litigator designation by third parties. Id. at 260-62.

The Pending Motions

Based on the claims made in the Amended Complaint, Petitioner seeks preliminary and
permanent injunctive relief against enforcement of the vexatious litigator statute, “requiring the
respondent to repeal the same.” Id. at PageID 262 and Doc. No. 27.
Respondent seeks dismissal of the Amended Complaint in its entirety, asserting that it
fails to state a claim upon which relief can be granted (Motion, Doc. No. 32, PageID 279).

Standard of Review

For a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)
Respondent’s Motion is made under Fed. R. Civ. P. 12(b)(6). “The purpose of a motion
under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is

4

not a procedure for resolving a contest about the facts or merits of the case.” Wright & Miller,
FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1356 at 294 (1990); see also Gex v. Toys “R”
Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d
635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th
Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test
the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601
F.3d 505, 512 (6th Cir. 2010).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the
Supreme Court:
Factual allegations must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading must
contain something more ... than ... a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action”), on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506,
508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams,
490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“ Rule
12(b)(6) does not countenance ... dismissals based on a judge's disbelief
of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint
may proceed even if it appears “that a recovery is very remote and
unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the
parties and the court.’” 5 Wright & Miller § 1216, at 233-234 (quoting
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii
1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161
L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289
5

F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation)
(“[S]ome threshold of plausibility must be crossed at the outset before a
patent antitrust case should be permitted to go into its inevitably costly
and protracted discovery phase”).

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), specifically
disapproving of the proposition that “a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief”); see also Association of Cleveland Fire Fighters v. City
of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
the Supreme Court made it clear that Twombly applies in all areas of federal law and not just in
the antitrust context in which it was announced.
For purposes of the motion to dismiss, the complaint must be construed in the light most
favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232
(1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899
F.2d 485 (6th Cir. 1990). A pro se litigant is entitled to liberal construction of his or her
pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.
2001). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a ... complaint must
contain either direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d
434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d
1236 (6th Cir. 1990); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995).
The Court “need not accept as true legal conclusions or unwarranted factual inferences.”
Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Bare assertions of legal
conclusions are not sufficient. Rondigo L.L.C. v. Twp. of Richmond, 641 F.3d 673, 684 (6th Cir.

6

2011); Hensley Mfg. v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009); Lillard v. Shelby County Bd.
of Educ., 76 F.3d 716, 726 (6th Cir. 1996); Sogevalor S.A. v. Penn Central Corp., 771 F. Supp.
890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of
the party opposing the tion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);
see also Wright & Miller, FEDERAL PRACTICE

AND

PROCEDURE: Civil 2d §1357 at 311-318

(1990).

For a preliminary injunction motion

The factors to be considered in determining whether to issue a preliminary injunction are
1) Whether the plaintiffs have shown a strong or substantial
likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause
substantial harm to others;
4) Whether the public interest would be served by issuing a
preliminary injunction.
Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Washington v. Reno, 35
F.3d 1093, 1099 (6th Cir. 1994); NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989);
Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean
Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985). These four considerations are “factors to be
balanced, not prerequisites that must be met. Accordingly, the degree of likelihood of success
required may depend on the strength of the other factors.” DeLorean, 755 F.2d at 1229. The
four considerations are factors to be balanced, not prerequisites that must be met. Mich. Bell Tel.
Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001). Although no one factor is controlling, a finding

7

that there is no likelihood of success is usually fatal. Gonzales v. Nat’l Bd. of Med. Exam’rs, 225
F.3d 620, 625 (6th Cir. 2000).

Analysis

This is a facial challenge to the constitutionality of the Statute. As has been explained in
the Court’s Orders dismissing Easterling’s prior cases, this Court cannot review the application
of the Statute to Easterling in particular Ohio cases because to do so would violate the RookerFeldman doctrine.
Respondent begins by showing that the Ohio Supreme Court has upheld the
constitutionality of the Statute under Ohio law (Motion, Doc. No. 32, at PageID 273), citing
Mayer v. Bristow, 91 Ohio St. 3d 3 (2000). Petitioner responds by making it clear he is raising
no claim under Ohio law (Motion to Overrule, Doc. No. 35, PageID 291).
In Hall v. Callahan, ___ F.3d ___, 2013 U.S. App. LEXIS 14520 (6th Cir. 2013), the
Sixth Circuit Court of Appeals upheld the Statute against a facial constitutional challenge such as
Petitioner makes here. The court wrote:
Plaintiffs appeal the District Court's dismissal of their general
challenge to the constitutionality of the Statute. In their complaint,
Plaintiffs sought a declaration that the Statute is facially
unconstitutional for violating the First, Fifth, and Fourteenth
Amendments. The District Court held that Rooker-Feldman did not
bar a "general challenge to the constitutionality of the state law
applied in the state action." Tropf v. Fidelity Nat'l Title Ins. Co.,
289 F.3d 929, 937 (6th Cir. 2002)(quoting Catz v. Chalker, 142
F.3d 279, 293 (6th Cir. 1998)). However, the District Court
nonetheless dismissed the claim because it found that the Statute
was constitutional as a matter of law, adopting the reasoning of
Grundstein v. Ohio. 2006 U.S. Dist. LEXIS 87880, 2006 WL
3499990 at *3-7. The Grundstein plaintiff argued that the Statute
8

was unconstitutional on its face because it violated the First and
Fourteenth Amendments. 2006 U.S. Dist. LEXIS 87880, [WL] at
*3. Applying a rational basis test, the Grundstein court held that
the Statute was constitutional because it did "not arbitrarily and
capriciously deprive citizens of a constitutionally protected liberty
or property interest." 2006 U.S. Dist. LEXIS 87880, [WL] at *6.
Plaintiffs now challenge the District Court's reliance on
Grundstein.
Plaintiffs argue that Grundstein v. Ohio applied the incorrect
standard of review. Plaintiffs claim that strict scrutiny should have
been applied because access to the courthouse is a fundamental
right. Swekel v. City of River Rouge, 119 F.3d 1259, 1261 (6th Cir.
1997). However, Plaintiffs fail to realize that although access to
courts is a fundamental right, the ability to file frivolous lawsuits is
not. Bill Johnson's Rests. v. NLRB, 461 U.S. 731, 743, 103 S. Ct.
2161, 76 L. Ed. 2d 277 (1983) ("Just as false statements are not
immunized by the First Amendment right to freedom of speech,
baseless litigation is not immunized by the First Amendment right
to petition.") (citations omitted). As the Grundstein court held, the
Statute specifically targets baseless litigation. Ohio Rev. Code
Ann. § 2323.52 (2002).
Plaintiffs also argue that the Statute is overbroad and that there are
less restrictive means to prevent vexatious litigation, namely
requiring that all vexatious litigators be represented by counsel,
who, in turn, are governed by Ohio Civil Rule 11. However, as the
Grundstein court reasoned, the Statute is not overbroad because it
"is not aimed at constitutionally protected speech" and provides a
procedure for meritorious claims to be heard, even when they are
filed by vexatious litigators. Grundstein, 2006 U.S. Dist. LEXIS
87880, 2006 WL 3499990 at *5.
Next, Plaintiffs claim that the Statute violates the First Amendment
right to free speech. However, as the Grundstein court reasoned,
vexatious conduct is not protected by the First Amendment. 2006
U.S. Dist. LEXIS 87880, [WL] at *3-4. Furthermore,
constitutionally protected speech is not banned by the Statute
because it does not prevent vexatious litigators from filing future
lawsuits as long as those lawsuits have merit.
9

In addition, Plaintiffs contend that the Statute violates the Due
Process Clause. However, as the Grundstein court reasoned, the
Statute does not arbitrarily and capriciously deprive citizens of a
constitutionally protected liberty or property interest. 2006 U.S.
Dist. LEXIS 87880, [WL] at *6. As the Grundstein court held, and
as we note above, the Statute is rationally related to legitimate
ends, so it is not arbitrary. See Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 227, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985). The
Statute also restrains narrowly only the conduct it seeks to prohibit,
by providing a mechanism by which even vexatious litigants can
file meritorious actions.
Finally, Plaintiffs claim that the Statute violates the Equal
Protection Clause. This argument clearly has no merit. In making
an equal protection challenge, the plaintiff must demonstrate that a
discrimination of some substance has occurred which has not
occurred against other individuals who were similarly situated.
City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432,
439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). Plaintiffs have not
identified two groups, nor how the Statute treats them differently.
In sum, the District Court's reliance on Grundstein in rejecting
Plaintiffs' facial constitutional challenge was not in error.
Id. at *14-18.
Easterling correctly points out that Hall v. Callahan does not address all of the claims he
makes. But for the claims which are the same, Hall is dispositive as a published precedent of the
appellate court which reviews judgments of this Court. Hall requires dismissal of Easterling’s
due process claims in Count Four, the equal protection claims in Count Five, and the due process
and free access to courts claims in Count Eight. The remainder of Easterling’s claims require
further analysis.
In Count One, Easterling alleges the Statute violates the Supremacy Clause, Article VI,
Clause 2 of the United States Constitution, which provides:
10

This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof, and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the
supreme Law of the Land, and the Judges in every State shall be
bound thereby, anything in the Constitution or Laws of any State to
the Contrary notwithstanding.
Easterling does not suggest any federal statute which is violated by the Ohio Statute in suit.
Congress has the power to require state courts to hear claims arising under federal law.
Haywood v. Drown, 556 U.S. ___, 129 S. Ct. 2108 (2009); Testa v. Katt, 330 U.S. 386 (1947),
but Easterling suggests no way in which the Statute encroaches on this power of Congress. He is
of course correct to the extent that he asserts that if the Statute violates the federal Constitution, it
cannot stand; specific instances of asserted constitutional violation are dealt with below. Count
One does not state a claim for relief under 42 U.S.C. § 1983.
Easterling’s Count Two is based on the Tenth Amendment to the United States
Constitution which provides “t]he powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The
logic of the Tenth Amendment runs contrary to Easterling’s argument. That is, since nothing in
the federal Constitution prohibits the States from limiting filings of vexatious litigators or
otherwise preventing vexatious litigation conduct, the Tenth Amendment supports the power of
Ohio to adopt the Statute, rather than prohibiting it. Count One does not state a claim for relief
under 42 U.S.C. § 1983.
Count Three purports to state a claim for relief under 42 U.S.C. § 1985. Respondent
seeks dismissal because § 1985 prohibits conspiracies for deprivation of equal protection of the
laws (Motion, Doc. No. 32, PageID 274). Easterling responds “[p]etitioner is not claiming a
conspiracy and does not need to.” (Response, Doc. No. 35, PageID 293.) Easterling is incorrect

11

in this regard. Every subsection of 42 U.S.C. § 1985 addresses a conspiracy for deprivation of
civil rights of some kind. For example, to prevail on a § 1985(3) claim, one must prove "'(1) a
conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3)
an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the United States.'" Radvansky v.
City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005), quoting Vakilian v. Shaw, 335 F.3d 509,
518 (6th Cir. 2001) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29
(1983)). By his own candid admission, Easterling is not claiming any sort of conspiracy. Count
Three fails to state a claim upon which relief can be granted.
In Count Five, Easterling makes both a privileges and immunities claim and an equal
protection claim; Hall is dispositive of the latter. The Privileges and Immunities Clause of the
Fourteenth Amendment provides: “[n]o State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States. . . .” The Slaughter-House Cases,
16 Wall. 36 (1873), handed down just four years after the Fourteenth Amendment was ratified,
interpreted the Privileges and Immunities Clause as protecting only those rights “which owe their
existence to the Federal government, its National character, its Constitution, or its laws.” Id. at
73. That includes such rights as the right
to come to the seat of government to assert any claim [a citizen]
may have upon that government, to transact any business he may
have with it, to seek its protection, to share its offices, to engage in
administering its functions . . . [and to] become a citizen of any
State of the Union by a bona fide residence therein, with the same
rights as other citizens of that State.

12

Id., at 79-80, 83 U.S. 36, 21 L. Ed. 394 (as quoted in McDonald v. Chicago, 130 S. Ct. at 3029).
Access to state courts has never been held to be one of the privileges or immunities coming
within the protection of the Fourteenth Amendment and the Supreme Court has shown a recent
reluctance to rethink the Slaughter-House decision, despite a strong invitation to do so in
McDonald. The privileges and immunities claim in Count Five fails to state a claim upon which
relief can be granted.
In Count Six Easterling asserts the Statute violates the incorporation doctrine. That is the
doctrine by which various parts of the federal Bill of Rights (Amendments I through X) have
been “incorporated” into the Due Process Clause of the Fourteenth Amendment and thereby
made applicable to the States. The Supreme Court originally held that the Bill of Rights did not
apply to the States. Barron ex rel Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833)(Marshall,
C.J.). “The Court eventually incorporated almost all of the provisions of the Bill of Rights,”
McDonald, supra, at 3022. States are unable to violate the incorporation doctrine. To put it
another way, that doctrine does not create rights for individual citizens. Instead, it makes rights
guaranteed against the federal government also to be guaranteed against state interference. To
the extent Easterling has rights affected by the incorporation doctrine, they are rights from the
Bill of Rights which are applicable to the State of Ohio and are considered herein under the
analysis of each separate constitutional right. Count Six therefore does not state a claim upon
which relief can be granted.
Count Seven embodies the argument which Easterling makes in several different ways
that it is not fair or constitutional for a litigant to be able to take advantage in lawsuit B of the
designation of his or her opponent as a vexatious litigator which some other litigant obtained in
lawsuit A. He likens what happens when this occurs (and which the Statute contemplates) to the

13

benefit a member of a class action gets without having to bear the burden of the litigation. His
analogy is apt. Once a person is designated as a vexatious litigator under the Statute, he or she
bears that designation indefinitely unless the order has a time limit. Ohio Revised Code §
2323.52(E). But nothing in the United States Constitution forbids the States from granting or
recognizing a status in one legal proceeding which then applies in many others. To take just one
example, once a person passes the bar examination and is sworn in as an attorney, he or she is
entitled as a matter of law to practice that profession in any of the many varieties of legal
practice that exist. As another example, once a person is convicted of a felony, they suffer
certain disabilities (e.g., inability to serve as a juror, inability to possess a firearm, etc.) unless
and until that disability is removed. While having the designation made in one piece of litigation
burdens the vexatious litigator to fight hard against the designation the first time it is threatened,
it also lessens the burden on the judicial system to be able to make the designation once.
Easterling argues from the doctrine of standing against this result, but the doctrine of
standing governs whether a person can enter a lawsuit to litigate issues, not whether the person
can take advantage of the results of a lawsuit in which he or she did not participate.
Count Seven does not state a claim upon which relief can be granted.
Aside from the due process and equal protection claims governed by Hall, Easterling also
raises a cruel and unusual punishment claim as part of Count Eight. The Eighth Amendment
provides “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishment inflicted.” The Eighth Amendment limits the punishment which may be
imposed for a criminal conviction. To give recent examples of its application, the execution of
those who committed aggravated murder under the age of eighteen is prohibited by the
Constitution. Roper v. Simmons, 543 U.S. 551 (2005). The Cruel and Unusual Punishment

14

Clause forbids mandatory life-without-parole sentences for juvenile murderers.

Miller v.

Alabama, 567 U.S. ___, 132 S. Ct. 2455, *; 183 L. Ed. 2d 407 (2012). The same Clause forbids
a life without parole sentence for juvenile non-homicide offenders. Graham v. Florida, 560 U.S.
48 (2010).
Easterling in effect argues to extend the reach of the Eighth Amendment by applying it to
the status designation of “vexatious litigator.” But designating someone with a status is not the
same as punishing them for a crime.

That is to say, criminal punishments are fines and

imprisonment or execution, but not designation of status for civil litigation.
Easterling relies on Trop v. Dulles, 356 U.S. 86 (1958). In that case the Supreme Court
struck down as unconstitutional the provision of 8 U.S.C. § 1481 which provided that a person
convicted by court martial of desertion in wartime was thereby deprived of his American
citizenship. Four Justices concluded this constituted cruel and unusual punishment. Justice
Brennan concurred in the judgment on the ground that denationalization was beyond the power
of the national government. Because Justice Brennan’s vote was necessary for a majority, the
basis of his opinion – lack of federal authority – forms the holding of the Court, and not the cruel
and unusual punishment opinion of the plurality. Be that as it may, the deprivation of rights in
Trop is far great than here. As the Court put it, Trop was divested of the right to have rights.
That is certainly not what happens to persons designated vexatious litigators. The designation as
a vexatious litigator is not a “sentence” as understood in criminal law, although it will be
embodied in a judgment.
Count Eight does not state a claim upon which relief can be granted.
Finally in Count Nine Easterling argues the Statute violates the “case or controversy”
requirement of Article III of the Constitution. Count Nine does not state a claim upon which

15

relief can be granted because the Case or Controversy Clause applies only to the federal courts.
To put it another way, the Constitution limits federal judges to deciding cases or controversies,
but imposes no such limits on state judges.

For example, the Common Pleas Court in

Montgomery County, as a result of an Ohio statute, appoints some of the members of the local
public library board, a function which could not be delegated to federal judges.

Conclusion

The Amended Complaint in this case fails to state a claim upon which relief can be
granted. It should therefore be dismissed. Because no amendment to add new facts would make
Petitioner’s constitutional facial challenge to the Statute any stronger, the dismissal should be
with prejudice. Because he cannot prevail on the merits, Easterling’s Motion for Preliminary
Injunction should be denied.

August 16, 2013

s/ Michael R. Merz
United States Magistrate Judge

Appendix

§ 2323.52. Civil action to have person declared vexatious litigator; restrictive orders

(A) As used in this section:

16

(1) "Conduct" has the same meaning as in section 2323.51 of the
Revised Code.
(2) "Vexatious conduct" means conduct of a party in a civil action
that satisfies any of the following:
(a) The conduct obviously serves merely to harass or maliciously
injure another party to the civil action.
(b) The conduct is not warranted under existing law and cannot be
supported by a good faith argument for an extension, modification,
or reversal of existing law.
(c) The conduct is imposed solely for delay.
(3) "Vexatious litigator" means any person who has habitually,
persistently, and without reasonable grounds engaged in vexatious
conduct in a civil action or actions, whether in the court of claims
or in a court of appeals, court of common pleas, municipal court,
or county court, whether the person or another person instituted the
civil action or actions, and whether the vexatious conduct was
against the same party or against different parties in the civil action
or actions. "Vexatious litigator" does not include a person who is
authorized to practice law in the courts of this state under the Ohio
Supreme Court Rules for the Government of the Bar of Ohio
unless that person is representing or has represented self pro se in
the civil action or actions.
(B) A person, the office of the attorney general, or a prosecuting
attorney, city director of law, village solicitor, or similar chief legal
officer of a municipal corporation who has defended against
habitual and persistent vexatious conduct in the court of claims or
in a court of appeals, court of common pleas, municipal court, or
county court may commence a civil action in a court of common
pleas with jurisdiction over the person who allegedly engaged in
the habitual and persistent vexatious conduct to have that person
declared a vexatious litigator. The person, office of the attorney
general, prosecuting attorney, city director of law, village solicitor,
or similar chief legal officer of a municipal corporation may
17

commence this civil action while the civil action or actions in
which the habitual and persistent vexatious conduct occurred are
still pending or within one year after the termination of the civil
action or actions in which the habitual and persistent vexatious
conduct occurred.
(C) A civil action to have a person declared a vexatious litigator
shall proceed as any other civil action, and the Ohio Rules of Civil
Procedure apply to the action.
(D) (1) If the person alleged to be a vexatious litigator is found to
be a vexatious litigator, subject to division (D)(2) of this section,
the court of common pleas may enter an order prohibiting the
vexatious litigator from doing one or more of the following
without first obtaining the leave of that court to proceed:
(a) Instituting legal proceedings in the court of claims or in a court
of common pleas, municipal court, or county court;
(b) Continuing any legal proceedings that the vexatious litigator
had instituted in any of the courts specified in division (D)(1)(a) of
this section prior to the entry of the order;
(c) Making any application, other than an application for leave to
proceed under division (F)(1) of this section, in any legal
proceedings instituted by the vexatious litigator or another person
in any of the courts specified in division (D)(1)(a) of this section.
(2) If the court of common pleas finds a person who is authorized
to practice law in the courts of this state under the Ohio Supreme
Court Rules for the Government of the Bar of Ohio to be a
vexatious litigator and enters an order described in division (D)(1)
of this section in connection with that finding, the order shall apply
to the person only insofar as the person would seek to institute
proceedings described in division (D)(1)(a) of this section on a pro
se basis, continue proceedings described in division (D)(1)(b) of
this section on a pro se basis, or make an application described in
division (D)(1)(c) of this section on a pro se basis. The order shall
not apply to the person insofar as the person represents one or
more other persons in the person's capacity as a licensed and
18

registered attorney in a civil or criminal action or proceeding or
other matter in a court of common pleas, municipal court, or
county court or in the court of claims. Division (D)(2) of this
section does not affect any remedy that is available to a court or an
adversely affected party under section 2323.51 or another section
of the Revised Code, under Civil Rule 11 or another provision of
the Ohio Rules of Civil Procedure, or under the common law of
this state as a result of frivolous conduct or other inappropriate
conduct by an attorney who represents one or more clients in
connection with a civil or criminal action or proceeding or other
matter in a court of common pleas, municipal court, or county
court or in the court of claims.
(3) A person who is subject to an order entered pursuant to division
(D)(1) of this section may not institute legal proceedings in a court
of appeals, continue any legal proceedings that the vexatious
litigator had instituted in a court of appeals prior to entry of the
order, or make any application, other than the application for leave
to proceed allowed by division (F)(2) of this section, in any legal
proceedings instituted by the vexatious litigator or another person
in a court of appeals without first obtaining leave of the court of
appeals to proceed pursuant to division (F)(2) of this section.
(E) An order that is entered under division (D)(1) of this section
shall remain in force indefinitely unless the order provides for its
expiration after a specified period of time.
(F) (1) A court of common pleas that entered an order under
division (D)(1) of this section shall not grant a person found to be a
vexatious litigator leave for the institution or continuance of, or the
making of an application in, legal proceedings in the court of
claims or in a court of common pleas, municipal court, or county
court unless the court of common pleas that entered that order is
satisfied that the proceedings or application are not an abuse of
process of the court in question and that there are reasonable
grounds for the proceedings or application. If a person who has
been found to be a vexatious litigator under this section requests
the court of common pleas that entered an order under division
(D)(1) of this section to grant the person leave to proceed as
described in division (F)(1) of this section, the period of time
19

commencing with the filing with that court of an application for
the issuance of an order granting leave to proceed and ending with
the issuance of an order of that nature shall not be computed as a
part of an applicable period of limitations within which the legal
proceedings or application involved generally must be instituted or
made.
(2) A person who is subject to an order entered pursuant to division
(D)(1) of this section and who seeks to institute or continue any
legal proceedings in a court of appeals or to make an application,
other than an application for leave to proceed under division (F)(2)
of this section, in any legal proceedings in a court of appeals shall
file an application for leave to proceed in the court of appeals in
which the legal proceedings would be instituted or are pending.
The court of appeals shall not grant a person found to be a
vexatious litigator leave for the institution or continuance of, or the
making of an application in, legal proceedings in the court of
appeals unless the court of appeals is satisfied that the proceedings
or application are not an abuse of process of the court and that
there are reasonable grounds for the proceedings or application. If
a person who has been found to be a vexatious litigator under this
section requests the court of appeals to grant the person leave to
proceed as described in division (F)(2) of this section, the period of
time commencing with the filing with the court of an application
for the issuance of an order granting leave to proceed and ending
with the issuance of an order of that nature shall not be computed
as a part of an applicable period of limitations within which the
legal proceedings or application involved generally must be
instituted or made.
(G) During the period of time that the order entered under division
(D)(1) of this section is in force, no appeal by the person who is
the subject of that order shall lie from a decision of the court of
common pleas or court of appeals under division (F) of this section
that denies that person leave for the institution or continuance of,
or the making of an application in, legal proceedings in the court of
claims or in a court of appeals, court of common pleas, municipal
court, or county court.

20

(H) The clerk of the court of common pleas that enters an order
under division (D)(1) of this section shall send a certified copy of
the order to the supreme court for publication in a manner that the
supreme court determines is appropriate and that will facilitate the
clerk of the court of claims and a clerk of a court of appeals, court
of common pleas, municipal court, or county court in refusing to
accept pleadings or other papers submitted for filing by persons
who have been found to be a vexatious litigator under this section
and who have failed to obtain leave to proceed under this section.
(I) Whenever it appears by suggestion of the parties or otherwise
that a person found to be a vexatious litigator under this section has
instituted, continued, or made an application in legal proceedings
without obtaining leave to proceed from the appropriate court of
common pleas or court of appeals to do so under division (F) of
this section, the court in which the legal proceedings are pending
shall dismiss the proceedings or application of the vexatious
litigator.

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).

21