Ellis Ealy v. Ohio Department of Taxation et al

Filing 2

ORDER, REPORT AND RECOMMENDATIONS - granting re 1 MOTION for Leave to Proceed in forma pauperis filed by Lance Q Ellis Ealy - The Court RECOMMENDS that: 1. Plaintiffs complaint be DISMISSED; and 2. This case be CLOSED.( Objections to R&R due by 2/14/2014). Signed by Magistrate Judge Michael J Newman on 01/28/14. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LANCE Q. EALY,
Plaintiff,

Case No.: 3:14-CV-26

vs.
OHIO DEPARTMENT OF TAXATION, et al.,

Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
ORDER, AND REPORT & RECOMMENDATION1 THAT: (1) PLAINTIFF’S PRO SE
COMPLAINT BE DISIMSSED; AND (2) THIS CASE BE CLOSED

This matter is before the Court for a sua sponte review of pro se Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed a motion for leave to proceed in forma
pauperis (“IFP”) on January 24, 2014. For good cause shown, Plaintiff’s motion for leave to
proceed IFP is GRANTED.
The Court may dismiss Plaintiff’s complaint upon finding his claims: (1) are frivolous or
malicious; (2) fail to state a claim upon which relief may be granted; or (3) seek 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).

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

I.
Pro se Plaintiff brings this action against the Ohio Department of Taxation; the
Montgomery County Auditor’s Office; the Montgomery County Treasurer’s Office; the
Montgomery County Board of County Commissioners; and, apparently, unnamed employees of
those entities. Doc. 1 at PageID 5. Plaintiff alleges violations of his Fifth and Fourteenth
Amendment rights, and presumably seeks to proceed via 42 U.S.C. § 1983. Id. at PageID 6.
Plaintiff alleges that his home was foreclosed due to his failure to satisfy a tax lien, and
was sold to a third party not named in this case. Id. The instant complaint involves a lien
allegedly placed on the property by Defendants. Id. The foreclosure action is pending, and
Plaintiff reports that the foreclosure sale is scheduled for November 2014. Id. Plaintiff alleges
that Defendants utilized deception and deliberately refused him the ability to challenge the liens.
Id. at PageID 6-7. Plaintiff seeks compensatory damages, punitive damages, declaratory relief,
and a Temporary Restraining Order (presumably to stop the foreclosure sale). Id. at PageID 810.
II.
A complaint should be dismissed as frivolous if it lacks an arguable basis in law or 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 defendant
is immune from suit, or 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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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) (per curiam), 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 Atl. 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 dismissal standards to reviews
under § 1915(e)(2)(B)(ii)).
III.
After a careful review, and liberal construction, of Plaintiff’s complaint, the Court
believes that it must be dismissed pursuant to § 1915(e)(2)(B). The Younger doctrine requires a
federal court to decline to exercise jurisdiction if there is an ongoing state judicial proceeding
and certain other conditions are met. Younger v. Harris, 401 U.S. 37 (1971). Subsequent
Supreme Court precedent has expanded the application of the Younger doctrine to non-criminal
judicial proceedings that implicate important state interests. See Middlesex Cnty. Ethics Comm’n
v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). The Sixth Circuit has created a three-part
test for proper application of the Younger doctrine: “(1) there must be on-going state judicial
proceedings; (2) those proceedings must implicate important state interests; and (3) there must be

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an adequate opportunity in the state proceedings to raise constitutional challenges.” Sun Refining
& Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990).
Plaintiff’s complaint indicates that the foreclosure proceeding is pending. Doc. 1 at
PageID 6. The Younger doctrine is therefore implicated and the Court must abstain from
exercising jurisdiction of this matter. See Doscher v. Menifee Circuit Court, 75 F. App’x 996,
997 (6th Cir. 2003) (“When [plaintiff] filed his complaint, all three requirements were met: the
foreclosure action was pending in Menifee Circuit Court, the proceeding involved a matter of
state interest, and [plaintiff] had an adequate opportunity to raise his challenges to the
proceedings. Accordingly, the district court properly abstained from ruling on [plaintiff’s]
complaint”); Willis v. Chase Home Fin., LLC, No. 5:10-cv-1494, 2010 WL 3430712, at * 1
(N.D. Ohio Aug. 30, 2010) (“If the foreclosure action against plaintiff’s property is still pending,
all three factors supporting abstention are present”). The Court notes that the state interest in this
case is heightened because the foreclosure proceeding is presumably premised on a tax lien. See
doc. 1 at PageID 6. The state court proceeding provides an adequate venue for Plaintiff to raise
the constitutional claims raised in his complaint.
The Court is also unable to grant Plaintiff injunctive and declaratory relief because of the
Anti-Injunction Act.

28 U.S.C. § 2283 (“A court of the United States may not grant an

injunction to stay proceedings in a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments”); Sun
Refining, 921 F.2d at 639 (“[W]hen a case is properly within the Younger category of cases,
there is no discretion on the part of the federal court to grant injunctive relief”); see also
Martingale LLC v. City of Louisville, 361 F.3d 297, 303 (6th Cir. 2004) (“[W]here . . .

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declaratory relief would have the same practical effect as an injunction, the Anti-Injunction Act
precludes the [C]ourt from granting a declaratory judgment”).
Even if the Court could hear the case, Plaintiff has failed to state a claim upon which
relief can be granted. First, Plaintiff seeks monetary relief from a Defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2)(B)(iii). Plaintiff names the Ohio Department of
Taxation as a Defendant. It is well established that the Eleventh Amendment categorically bars
suits in federal court against an unconsenting State and its agencies. See, e.g., Quern v. Jordan,
440 U.S. 332, 340-41 (1979); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The State of
Ohio has not consented to suit in federal court; therefore, Plaintiff may not bring suit against one
of its agencies. Allinder v. State of Ohio, 808 F.2d 1180, 1184 (6th Cir. 1987).
Second, Plaintiff fails to state sufficient factual matter necessary to plead a § 1983 claim.
To state a claim for relief under § 1983, the complaint must allege “(1) that there was the
deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a
person acting under color of state law.” Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902
(6th Cir. 2003). If the Defendant is a municipality, the constitutional violation must be the result
of a policy, custom, or practice promulgated by an official vested with final policymaking
authority for the municipality. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978);
Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir. 2005). Plaintiff’s complaint is devoid of
any factual assertions that could give rise to the inference that the municipal Defendants are
liable under § 1983.2 See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.

2

In light of the discussion in this opinion, clarifying that Plaintiff’s § 1983 claims cannot
withstand §1915(e)(2) review, see supra, the Court need not discuss whether the unnamed
individual Defendants are entitled to qualified immunity from liability. See generally Harlow v.
Fitzgerald, 457 U.S. 800, 817-19 (1982); Burgess v. Fischer, 735 F.3d 462, 471-72 (6th Cir.
2013).
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To the extent that Plaintiff seeks to bring state law claims not otherwise discussed herein,
Plaintiff fails to show that he satisfies the requirements of diversity jurisdiction, and the Court
thus lacks subject matter jurisdiction to entertain such claims. See 28 U.S.C. § 1332.
IV.
For the reasons stated herein, the Court RECOMMENDS that:
1. Plaintiff’s complaint be DISMISSED; and
2. This case be CLOSED.

s/ Michael J. Newman
United States Magistrate Judge

January 28, 2014

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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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is 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.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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