Opinion
1:22-cv-644
02-09-2023
RICHARD FERNBACH, Plaintiff, v. HAMILTON COUNTY OHIO, et al., Defendants.
Michael R. Barrett, District Judge.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN United States Magistrate Judge.
Plaintiff, a pre-trial detainee in the Hamilton County Justice Center, has filed a pro se “Complaint/Petition for Ex Parte Injunction/Ex Parte Restraining Order” against the State of Ohio, Hamilton County, and various other governmental and individual defendants. (See Doc. 1). By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This matter is before the Court for a sua sponte review of the complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). This matter is also before the Court on plaintiff's motion for default judgment. (Doc. 8).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A complaint filed by a pro se plaintiff must 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) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, 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)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).
Here, plaintiff, who describes himself as a “natural living soul blood and flesh man human being,” seeks to challenge his underlying arrests and ongoing state-court prosecution in Hamilton County Case No. B2106472. (Doc. 1, at PageID 3-7). Relying on principles of due process, as well as, inter alia, the Uniform Commercial Code (UCC), the “Emergency Banking Act [of] March 9, 1933,” the suspension of the Gold Standard, the “UNIDROIT Statute,” maritime law, citations to definitions from the United States Code, and the Code of Federal Regulations, plaintiff alleges that the defendants lack “complete and total” jurisdiction over him and challenges the amount of his bond and his representation by appointed counsel. (Doc. 1, at PageID 2, 6-12). In his motion for default judgment and a separate “Addendum to Default Judgment and Affidavit,” plaintiff also alleges, respectively, a state-law claim for malicious prosecution and that he was threatened with being tased at a hearing if he “did not keep his mouth shut.” (Doc. 8, at PageID 46; Doc. 9, at PageID 64).
A search of the Hamilton County Clerk of Court's website reveals that petitioner has a criminal matter pending in Case No. B2106472. (Viewed at: https://www.courtclerk.org/data/case summary.php?sec=history&casenumber=B+2106472&submit.x=22&submit.y = 10.) This Court may take judicial notice of court records that are available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).
In keeping with the liberal amendment policy of Fed.R.Civ.P. 15(a), the Court has considered these new allegations in the screening of plaintiff's complaint.
For relief, plaintiff seeks an “Order Ex Parte Injunction/Ex Parte Restraining Order directed to Respondents forthwith.” (Doc. 1, at PageID 2).
The Court notes that plaintiff's complaint “bears the hallmark of the sovereign citizen movement.” Woodson v. Woodson, No. 22-MC-00003-TLP-TMP, 2022 WL 16985602, at *1 (W.D. Tenn. Feb. 18, 2022), report and recommendation adopted, No. 222MC00003TLPTMP, 2022 WL 16963997 (W.D. Tenn. Nov. 16, 2022). The Woodson court explains:
Sovereign citizens (or “sovereigns”) are a “loosely knit network” of individuals who express a shared anti-government sentiment. United States v. Cook, No. 3:18-CR-00019, 2019 WL 2721305, at *1 (E.D. Tenn. Jun. 28, 2019) (citing Joshua P. Weir, Sovereign Citizens: A Reasoned Response to the Madness, 19 LEWIS & CLARK L. REV. 830, 834 (2015)). “Members of the contemporary movement believe that with the passage of the Fourteenth Amendment, along with various developments in commercial law (including the adoption of the Uniform Commercial Code (“UCC”), abandonment of the gold standard, and creation of the Federal Reserve Bank), the modernday legal system has tricked people into giving up their ‘sovereign' citizenship in order to receive government benefits.” Id. (citing Weir, supra, at 837; Francis X. Sullivan, The “Usurping Octopus of Jurisdict
As explained below, the complaint is subject to dismissal for various reasons.
Specifically, plaintiff has failed to state a plausible federal claim, or the defendants are either immune or are not state actors against whom a 42 U.S.C. § 1983 claim can be raised, or plaintiff cannot raise claims relating to his ongoing state-court criminal proceedings in this civil action.
First, plaintiff's claims against the State of Ohio must be dismissed because the State of Ohio is immune from suit in this federal court. Absent an express waiver, the Eleventh Amendment to the United States Constitution bars suit against a State or one of its agencies or departments in federal court regardless of the nature of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663 (1974). The State of Ohio has neither constitutionally nor statutorily waived its Eleventh Amendment rights. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 681 (6th Cir. 1976). Therefore, the State of Ohio is immune from suit in this case and plaintiffs complaint should be dismissed as against it.
Likewise, plaintiff's claims against defendant Judge Leslie Ghiz should be dismissed. It is well-settled that judges are generally absolutely immune from civil suits. Bright v. Gallia Cty., Ohio, 753 F.3d 639, 648-49 (6th Cir. 2014) (citing Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997), in turn citing, inter alia, Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam)). The absolute immunity accorded to judges extends not only to claims for damages, but also to requests for injunctive and others forms of equitable relief. Mireles, 502 U.S. at 11 (“judicial immunity is an immunity from suit, not just from ultimate assessment of damages”).
This far-reaching protection was adopted “for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal citation and quotation marks omitted); see also Barnes, 105 F.3d at 1115 (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993)) (“The doctrine of judicial immunity is justified ‘by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability.'”).
Given the “strong policy justifications for the doctrine,” absolute judicial immunity can be overcome only when the plaintiff's claims are based on (1) non-judicial actions, such as administrative acts unrelated to judicial proceedings; or (2) “actions, though judicial in nature, [that are] taken in the complete absence of jurisdiction.” Bright, 753 F.3d at 649 (quoting Mireles, 502 U.S. at 11-12). The Supreme Court has held that “whether an act . . . is a ‘judicial' one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Mireles, 502 U.S. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). Absence of jurisdiction refers to the lack of subject matter jurisdiction. See, e.g., Bradley v. Fisher, 80 U.S. 335, 351-52 (1871) (distinguishing “excess ofjurisdiction” from “the clear absence of all jurisdiction over the subject-matter”); Bright, 753 F.3d at 649 (quoting Holloway v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc), and Barnes, 105 F.3d at 1122) (“[o]nly in the absence of subject matter jurisdiction are judicial actors devoid of the shield of immunity,” whereas “[g]enerally, where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes”). Therefore, as the Supreme Court has also made clear, the immunity offered judicial officers in the performance of judicial duties is not overcome by allegations that they acted in “bad faith,” maliciously, corruptly or even “in excess of . . . authority.” See Mireles, 502 U.S. at 11, 13 (and Supreme Court cases cited therein); see also Bright, 753 F.3d at 649-50 (citing Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001)) (holding that the district court erred in denying absolute judicial immunity to the defendant judge with subject matter jurisdiction over the underlying criminal proceedings, who had engaged in actions that “were petty, unethical, and unworthy of his office”).
It is clear from the face of plaintiff's complaint that any complained-of actions on the part of Judge Ghiz pertain entirely to alleged actions performed in plaintiff's underlying criminal action and, thus, to the performance of tasks and duties that were judicial in nature. (See, e.g., Doc. 1, at PageID 6-7). Cf. Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997) (quoting Forrester v. White, 484 U.S. 219, 227 (1988)) (“The application of judicial immunity is simple and noncontroversial when applied to ‘paradigmatic judicial acts,' or acts of actual adjudication, i.e., acts involved in resolving disputes between parties who have invoked the jurisdiction of the court.”). Moreover, plaintiff's allegations do not suggest that Judge Ghiz lacked subject matter jurisdiction in the case at issue. As plaintiff does not allege facts that, when accepted as true, show either of the exceptions to judicial immunity apply, Judge Ghiz is entitled to absolute judicial immunity from plaintiff's claims.
Similarly, defendant Hamilton County Ohio Prosecutor is entitled to prosecutorial immunity. “Prosecutors are entitled to absolute immunity for conduct ‘intimately associated with the judicial phase of the criminal process.'” Marietta v. Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This includes a county prosecutor's initiation of a prosecution and presentation of the State's case at trial. Imbler, 424 U.S. at 431. See also Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986). A prosecutor's initiation and presentation of a case to a grand jury falls within the traditional functions of the prosecutor and is shielded by absolute immunity. Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989). Courts have consistently recognized that even the knowing presentation of false testimony to a grand jury or a trial jury are actions protected by absolute immunity. See Spurlock v. Thompson, 330 F.3d 791, 797-98 (6th Cir. 2004). See also Imbler, 424 U.S. at 413, 430; Buckley v. Fitzsimmons, 509 U.S. 259, 267 n. 3 (1993). Such “absolute prosecutorial immunity is not defeated by a showing that a prosecutor acted wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498 n. 7 (6th Cir. 1998). In this case, plaintiff's claims against the Hamilton County Ohio Prosecutor are premised on the prosecutor's initiation and pursuit of criminal charges against plaintiff. (See, e.g., Doc. 1, at PageID 6-7). Because these activities are intimately associated with the judicial phase of the criminal process, defendant Hamilton County Ohio Prosecutor is entitled to immunity.
Next, to the extent that plaintiff relies on the UCC, the Emergency Banking Act of March 9, 1933, the suspension of the Gold Standard, the UNIDROIT Statute, maritime law, definitions from the United States Code, and the Code of Federal Regulations to support his claims, he has failed to state a claim upon which relief may be granted. See, e.g., Bey v. Jefferson, No. 2:17-CV-1007-RMG-MGB, 2017 WL 9250348, at *5 (D.S.C. Apr. 24, 2017), report and recommendation adopted, No. CV 2:17-1007-RMG, 2017 WL 1956979 (D.S.C. May 11, 2017) (rejecting sovereign-citizen claims under the UCC); Mallory v. Obama, No. 1:15-CV-1090, 2015 WL 7722034, at *2 (W.D. Mich. Nov. 30, 2015) (rejecting sovereign-citizen claims under the Emergency Banking Relief Act of 1933). See also United States v. Mundt, 29 F.3d 233, 237 (6th Cir.1994) (rejecting similar argument as being “without merit and patently frivolous.”). The Court is unable to infer any plausible cause of action from plaintiff's complaint under any of the above cited federal provisions.