Omosule v. INS et al

Filing 4

REPORT AND RECOMMENDATIONS - re 3 - The Court therefore RECOMMENDS that: 1. Plaintiff's complaint be DISMISSED. 2. this case be CLOSED. Objections to R&R due by 7/1/2013. Signed by Magistrate Judge Michael J Newman on 6/14/13. (kje1)

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

:

Case No. 3:13-cv-186

:

District Judge Timothy S. Black
Magistrate Judge Michael J. Newman

Plaintiff,
vs.
INS, et al.,
Defendants.
:
______________________________________________________________________________
REPORT AND RECOMMENDATION1
____________________________________________________________________________
Pro se Plaintiff was granted leave to proceed in forma pauperis. Doc. 2. This matter is
before the Court for a sua sponte review of his complaint (doc. 3) pursuant to 28 U.S.C.
§ 1915(e)(2)(B). The Court may dismiss Plaintiff’s complaint upon finding (1) his claims are
frivolous or malicious; (2) he fails to state a claim upon which relief may be granted; or (3) he
seeks monetary relief from a defendant who is immune from such relief.

See 28 U.S.C.

§ 1915(e)(2)(B). It is appropriate for the Court to conduct this review sua sponte prior to issuance
of process “so as to spare prospective defendants the inconvenience and expense of answering
such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
A complaint should be dismissed as frivolous if it “lacks an arguable basis either in law or
in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A complaint
has no arguable factual basis when its allegations are “fantastic or delusional”; and no arguable
legal basis when it presents “indisputably meritless” legal theories -- for example, when the
plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at
327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000).
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Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

Courts may also dismiss a complaint sua sponte for failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(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 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); see also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)
(applying the Iqbal and Twombly Fed. R. Civ. P. 12(b)(6) dismissal standard to §
1915(e)(2)(B)(ii)).
Pro se Plaintiff brings this action against the INS.2 Doc. 3. Additionally, Plaintiff names
Judge Schneider-Carter (a Butler County, Ohio Domestic Relations Court Judge); Magistrate
McBride (a Butler County, Ohio Domestic Relations Court Magistrate); and the Butler County,
Ohio Child Support Enforcement Agency as Defendants. Id. The entirety of his complaint reads
as follows:
Since Dec[ember] 2008, INS seizes my Residence Card at the Sweetgrass, MT.
Since then I cannot work, I cannot renew my driver license, and I cannot take care
of my children. The case is still at the Immigration and Naturalization Court in
Cleveland, Ohio. But the same time Butler County has found me in contempt of
court on June 6th, 2013 for not paying Child Support. Sanctions-Recommendations
was 60 days incarceration with a further recommendation that the sentence be
stayed on the following conditions: Obligor may purge his/her contempt by paying,
in addition to the current order, at least $1,000.00 toward the arrears due no later
than August 20th, 2013 and continue paying child support as previously ordered.
2

Presumably, Plaintiff intends to name the Department of Homeland Security Bureau of Immigration and
Customs Enforcement and Bureau of Citizenship and Immigration Services, which replaced the
Department of Justice Immigration and Naturalization Service in 2003. See Niyibizi v. Mukasey, 300 F.
App’x 371, 372 n.1 (6th Cir. 2008).

2

The INS is responsible for this accumulation of child support because the agency
seize the one only right for me to obtain works and also seize my passport, which
denied my access to travel to another place to find work.
Judge Schneider-Carter is the Judge in this case who did not put stop to this
outrageous fine and punishment.
Magistrate McBride is the magistrate who imposed these excessive fines.
Butler County CSEA is the agency who refuses to cancel this order even when the
Obligee, Ms. Larissa L. Martin appears in Butler County Domestic Relations Court
in open court stated that she wants to forgive Obligor for the Child Support and the
all the back payments.
Id. at PageID 16 (capitalization and punctuation altered).
Plaintiff then requests the following relief:
I want the Court to award me the amount of $50,000.00 so that I can pay my child
support[] and other bills that I might have accumulated in the course of the time
INS seized my residence card. I would also want this Court to revised[] the
excessive punishments from the Butler County Domestic Relations Court because
the circumstances that prevent me to make payments of the child supports is
beyond my control.
Id. at PageID 17 (capitalization and punctuation altered).
There are multiple reasons why Plaintiff’s pro se complaint merits dismissal as frivolous,
and for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).
First, Plaintiff is attempting to challenge what occurred in the Butler County, Ohio
Domestics Relations Court. His proper remedy, however, is to file an appeal in the appropriate
Ohio Court of Appeals, not challenge a 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) (finding
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
WL 2871623, at *2-3, 2012 U.S. Dist. LEXIS 96482, at *5-9 (S.D. Ohio July 12, 2012), aff’d, No.
12-4167 (6th Cir. May 1, 2013).
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Second, the same analysis applies with respect to Defendant INS. Plaintiff alleges in the
complaint that his immigration proceedings are ongoing. Thus, the proper remedy, if there is one,
is administrative, not a lawsuit in this Court. See Omosule v. INS, No. 98-4037, 1999 WL
1000839, at *1, 1999 U.S. App. LEXIS 28509, at *2-3 (6th Cir. Oct. 28, 1999).
Third, with respect to the judge and the magistrate named as Defendants, Plaintiff
challenges acts performed as judicial functions; accordingly, each is entitled to absolute judicial
immunity. See Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997).
Finally, the Court notes sua sponte that Plaintiff has previously filed complaints in this
Court against the INS and others, and each time his complaint was dismissed. See Omosule v.
INS, No. 3:12-cv-101, 2012 WL 1203563, 2012 U.S. Dist. LEXIS 49920 (S.D. Ohio Apr. 10,
2012) (Ovington, M.J.), adopted in 2012 WL 1810193, 2012 U.S. Dist. LEXIS 69466 (S.D. Ohio
May 17, 2012) (Black, J.); Omosule v. INS, No. 3:09-cv-421, 2010 WL 3001926, 2010 U.S. Dist.
LEXIS 87737 (S.D. Ohio July 29, 2010) (Merz, M.J.; Consent Case); Omosule v. INS, 3:98-cv-232
(S.D. Ohio Aug. 25, 1998) (Merz, M.J.; Consent Case), aff’d, No. 98-4037, 1999 WL 1000839,
1999 U.S. App. LEXIS 28509 (6th Cir. Oct. 28, 1999).3 Those dismissals serve as a bar, on res
judicata and/or collateral estoppel grounds, to his current attempt to seek the same or similar relief.
Accord Williams v. Moyer, 9 F. App’x 324, 326 (6th Cir. 2001).
The Court therefore RECOMMENDS that: (1) Plaintiff’s complaint be DISMISSED; and
(2) this case be CLOSED.
s/ Michael J. Newman
United States Magistrate Judge

June 14, 2013

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Additionally, pro se Plaintiff has previously filed a lawsuit against officials in Greene County, Ohio and
Butler County, Ohio challenging child support orders. Omosule v. Hurley, No. 3:09-cv-261, 2009 WL
5167641, 2009 U.S. Dist. LEXIS 120104, 2009 U.S. Dist. LEXIS 82166 (S.D. Ohio Nov. 30, 2009)
(Ovington, M.J.; Rice, J.). He has also filed a habeas petition, attempting to challenge the sentence
imposed by the Greene County, Ohio Domestic Relations Court for non-payment of child support.
Omosule v. Greene Cnty. Domestic Relations Ct., No. 3:09-cv-374, 2009 WL 4884198, 2009 U.S. Dist.
LEXIS 117223, 2009 U.S. Dist. LEXIS 117221 (S.D. Ohio Dec. 16, 2009) (Ovington, M.J.; Rice, J.).

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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).

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