Hercutt v. Cross et al
Filing
11
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Terry Louis Hercutt - Based upon the foregoing analysis, IT IS THEREFORE RECOMMENDED THAT: 1. Defendants joint motion to dismiss (doc. 4 ) be GRANTED; 2. Plaintiffs complaint be DISMISSED; 3. Plaintiffs pro se motion (doc. 6 ) be DENIED AS MOOT; and 4. This case be CLOSED. Objections to R&R due by 8/29/2013. Signed by Magistrate Judge Michael J Newman on 08/12/13. (pb1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TERRY LOUIS HERCUTT,
:
Case No. 3:13-cv-162
:
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
Plaintiff,
vs.
JUDGE DENISE L. CROSS, et al.,
Defendants.
:
______________________________________________________________________________
REPORT AND RECOMMENDATION1
____________________________________________________________________________
This is a pro se action arising from contentious divorce proceedings in Montgomery
County, Ohio.2 Plaintiff complains that the named Defendants -- Montgomery County Domestic
Relations Judge Denise L. Cross and Magistrate Annette McGee Wright -- wrongfully denied his
motion for contempt against his ex-wife. See doc. 1. The appropriate course would have been
for Plaintiff to challenge that decision in the Montgomery County Court or to file to an appeal to
the appropriate state court. Instead, Plaintiff seeks to collaterally attack the decision by filing a
civil lawsuit against the presiding judicial officials in this Court.
This matter is before the Court pursuant to a Fed. R. Civ. P. 12(b)(6) motion to dismiss
filed jointly by Defendants Judge Cross and Magistrate Wright (doc. 4); pro se Plaintiff’s
memorandum in opposition (doc. 9);3and Defendants’ reply memorandum (doc. 10).
1
Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
The Court notes that pro se Plaintiff paid the full filing fee in this case. See doc. 2.
3
Plaintiff’s memorandum in opposition to Defendants’ dismissal motion was filed four days late, despite
the Court’s Notice to Plaintiff advising him of the filing deadline. See doc. 5. Nonetheless, recognizing
Plaintiff’s pro se status, and in the interest of justice, the Court considers the merits of Plaintiff’s opposition
memorandum.
2
I.
In June 2011, Plaintiff filed a motion for contempt against his ex-wife in the Montgomery
County Domestic Relations Court, claiming she had taken or destroyed the property awarded to
him in their divorce proceedings. See doc. 1 ¶¶ 9, 10. Following several hearings on the matter,
Magistrate Wright issued a decision denying his motion for contempt.
Id.
Plaintiff filed
objections to Magistrate Wright’s decision. Id. One month later, Judge Cross issued a decision
overruling his objections. Id. ¶ 11; see also doc. 9-3 (Judge Cross’s Decision and Judgment
attached to Plaintiff’s opposition memorandum).4
In his complaint, Plaintiff specifically challenges one statement in Judge Cross’s decision
-- that the transcripts of the contempt hearings were not requested and therefore unavailable for the
Court’s review. Doc. 1 ¶ 11. He claims that Judge Cross and Magistrate Wright committed
perjury in violation of 18 U.S.C. § 1621 because, contrary to Judge Cross’s statement, he had
requested the contempt hearing transcripts. See id. ¶ 16. Further, Plaintiff makes a general
assertion that Defendants acted in an “intentional, willful, wanton, [and] malicious” manner and
with a “reckless disregard of [his] legal rights.” Id. ¶ 15. Plaintiff requests that Defendants be
“enjoined from further unlawful conduct” and “dismiss[ed] from [their] jobs.” Id. ¶ 16.
II.
While pro se pleadings are “to be liberally construed” and “held to less stringent standards
than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
plaintiffs must still satisfy basic pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989). The 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
4
The Court may consider Judge Cross’s decision (doc. 9-3) -- attached to Plaintiff’s opposition
memorandum -- in ruling on the Fed. R. Civ. P. 12(b)(6) motion to dismiss because it is a public record.
See Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
2
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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. (citing Twombly, 550 U.S. at 556).
The dismissal of Plaintiff’s complaint is warranted on several grounds. First, Plaintiff is
attempting to challenge what occurred in the Montgomery County Domestics Relations Court.
His proper remedy, however, is to file an appeal in the appropriate Ohio Court of Appeals, not
challenge the Domestic Relations Court’s Order here, presumably under 42 U.S.C. § 1983. See
McCormick v. Braverman, 451 F.3d 382, 393-96 (6th Cir. 2006) (explaining that federal district
courts lack subject matter jurisdiction, under the Rooker-Feldman doctrine, over claims that
attempt to appeal a state court judgment); accord Kinter v. Boltz, No. 3:12-cv-85, 2012 U.S. Dist.
LEXIS 96482, at *5-9, 2012 WL 2871623, at *2-3 (S.D. Ohio July 12, 2012) (Rose, J.; Newman,
M.J.), aff’d, No. 12-4167, 2013 U.S. App. LEXIS 12540 (6th Cir. May 1, 2013).
Second, Plaintiff challenges acts performed as judicial functions; accordingly, Judge Cross
and Magistrate Wright each are entitled to absolute judicial immunity.5 See Barnes v. Winchell,
105 F.3d 1111, 1115 (6th Cir. 1997). His allegation -- that Judge Cross and Magistrate Wright
acted in an “intentional, willful, wanton, malicious, and reckless” manner -- does not save his
claims from dismissal because their absolute immunity would apply even if he could prove this
were true. See Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004) (finding that judicial
immunity applies to “acts performed maliciously and corruptly as well as acts performed in bad
faith or with malice”).
Third, with respect to his perjury allegations, Plaintiff fails to state a claim under 18 U.S.C.
§ 1621, as there is no private right of action to enforce that criminal statute. See Am. Postal
5
Judicial absolute immunity applies equally to state court magistrates. Cf. Littleton v. Fischer, 530 F.2d
691, 692 (6th Cir. 1976) (applying judicial immunity to state court referee).
3
Workers Union v. Indep. Postal Sys. of Am., Inc., 481 F.2d 90, 93 (6th Cir. 1973) (noting there is
generally no private right of action under a federal criminal statute); accord Nicole Energy Servs.
v. McClatchey, No. 2:08-cv-0463, 2010 U.S. Dist. LEXIS 6025, at * 17-18, 2010 WL 55718, at *6
(S.D. Ohio Jan. 4, 2010) (holding that 18 U.S.C. § 1621 does not provide for a private cause of
action).
III.
Additionally pending before the Court is Plaintiff’s motion “for [an] Order to stop Judge
Denise Cross and Magistrate Annette Wright from presiding over any hearing or harassing the
Plaintiff in any[] way” (doc. 6) (capitalization altered), as well as Defendant’s memorandum in
opposition thereto (doc. 7) and and Plaintiff’s reply memorandum (doc. 8). In light of the
undersigned’s recommendation to dismiss Plaintiff’s complaint, this motion should be denied as
moot.
IV.
Based upon the foregoing analysis, IT IS THEREFORE RECOMMENDED THAT:
1.
Defendants’ joint motion to dismiss (doc. 4) be GRANTED;
2.
Plaintiff’s complaint be DISMISSED;
3.
Plaintiff’s pro se motion (doc. 6) be DENIED AS MOOT; and
4.
This case be CLOSED.
s/ Michael J. Newman
United States Magistrate Judge
August 12, 2013
4
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)(B)(C), or (D) and may be extended further by the Court on timely motion
for an extension. 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).
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?