Opinion
Case No. C-3-02-565
August 21, 2003
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
that Plaintiffs Darrell D. Billheimer, Joan Billheimer and John Huber take nothing and judgment is entered in favor of Defendants Judge Thomas M. Rose, Judge Michael Merz, Greg Lockhart and Lydia Bottome and against Plaintiffs.
DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF JUDGE MICHAEL MERZ (DOC. #9); DECISION AND ENTRY OVERRULING, WITHOUT PREJUDICE, MOTION FOR SANCTIONS OF JUDGE MICHAEL MERZ (DOC. #17); DECISION AND ENTRY SUSTAINING MOTION TO DISMISS OF DEFENDANTS GREG LOCKHART, LYDIA BOTTOME AND JUDGE THOMAS ROSE (DOC. #23), TREATED AS A MOTION FOR SUMMARY JUDGMENT; DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION TO STRIKE (DOC. #24); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION TO STRIKE (DOC. #26); DECISION AND ENTRY OVERRULING MOTION TO STRIKE OF JUDGE MICHAEL MERZ (DOC. #27); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. #30); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. #31); DECISION AND ENTRY OVERRULING MOTION TO STRIKE OF JUDGE MICHAEL MERZ (DOC. #36); DECISION AND ENTRY OVERRULING PLAINTIFFS' MOTION FOR RECONSIDERATION (DOC. #40); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFFS; TERMINATION ENTRY
In United States v. Darrell D. Billheimer, et al., Case No C-3-99-402 (S.D.Ohio), the Government prevailed in a civil action for unpaid internal revenue taxes against Darrell Billheimer. In addition, the Government obtained a declaration that the conveyance of real property to the Pea Chee Blue Trust was fraudulent as to the United States and that the Pea Chee Blue Trust is the alter ego or nominee of Darrell Billheimer so that tax liens against him may be foreclosed upon that real property. In response, Darrell Billheimer, Joan Billheimer and John Huber, as Trustee of the Pea Chee Blue Trust, have brought this lawsuit against Judge Thomas Rose ("Judge Rose"), Magistrate Judge Michael Merz ("Judge Merz"), Greg Lockhart ("Lockhart") and Lydia Bottome ("Bottome"). Judge Rose presided over Case No. C-3-99-402 between June 25, 2002, and December 30, 2002. That case was referred to Judge Merz for reports and recommendations on pretrial motions between July 22, 2002, and December 30, 2002. Lockhart's name appeared on the pleadings in Case No. C-3-99-402, as the United States Attorney for the Southern District of Ohio. Bottome is an attorney employed by the Department of Justice who represented the Government in Case No., C-3-99-402.
In their Complaint, the Plaintiffs allege that Judges Rose and Merz, Lockhart and Bottome conspired to deny them their constitutional right to petition the court for redress of grievances and deprived them of their right to have a day in court by virtue of the sham proceedings to which they (the Defendants) subjected them (the Plaintiffs) during Case No. C-3-99-402. See Doc. #1 at ¶ 2. The Plaintiffs also assert that the Defendants conspired to deprive them of their right to a jury trial, id. This case is now before the Court on the following motions, to wit: Motion for Summary Judgment of Judge Merz (Doc. #9); Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23); Plaintiffs' Motion to Strike (Doc. #24); Plaintiffs' Motion to Strike (Doc. #26); Plaintiffs' Motion for Summary Judgment (Doc. #30); Plaintiffs' Motion for Summary Judgment (Doc. #31); and Plaintiffs' Motion for Reconsideration (Doc. #40). Herein, the Court rules upon those motions, although not in the above order. However, because some of those motions seek summary judgment, the Court will initially set forth the standards which are applicable to all such motions.
Two Motions to Strike filed by Judge Merz are also pending.See Docs. #27 and #36. With each of those motions, Judge Merz argues that the Court should strike papers filed by the Plaintiffs, because the certificates of service on those papers do not indicate that he was served with copies of same. While the Court does not approve of a party's failure to serve an opponent, it will decline to strike the Plaintiffs' papers in question because it is apparent that Judge Merz has been able to obtain copies of same and, thus, has not been prejudiced by the Plaintiffs' failure to serve him. Moreover, the Plaintiffs' papers, which Judge Merz asks this Court to strike because they were not served upon him, relate to the other Defendants; thus, Judge Merz was not prejudiced by the lack of service. Accordingly, the Court overrules Judge Merz's Motions to Strike (Docs. #27 and #36).
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.id. at 323. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50).Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586(1986).See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party/"Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller Kane, Federal Practice and Procedure § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert,denied, 494 U.S. 1091 (1990). See also L.S. Heath Son. Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties. I. Plaintiffs' Motion for Reconsideration (Doc. #40)
The Court initially addresses Plaintiffs' Motion for Reconsideration (Doc. #40), because, with it, Plaintiffs challenge the ability of the undersigned to continue to preside over this lawsuit. With their request for reconsideration, Plaintiffs argue that the Court erroneously overruled their previous motion seeking disqualification of the undersigned. The Court overrules Plaintiffs' Motion for Reconsideration (Doc. #40) for the reasons which this Court overruled the Plaintiffs' previous request for disqualification (see Doc. #39), as well as for the following reasons. In support of their request for reconsideration, the Plaintiffs argue that this Court committed numerous errors when it presided over United States v. Darrell D. Billheimer, et al., Case No C-3-99-402. Even assuming for sake of argument that this Court made an erroneous ruling in that lawsuit, such would not constitute a grounds for disqualification. In Litesky v. United States, 510 U.S. 540 (1994), the Supreme Court rejected the petitioners' assertion that the District Judge should have disqualified himself on the basis of his rulings in a previous trial against one of their number. Thus, it has been held that the remedy for alleged trial errors is an appeal and not seeking the disqualification of the trial judge. In re Winslow, 107 B.R. 752 (D.Colo. 1989). II. Judge Merz's Motion for Summary Judgment (Doc. #9)
ln Litesky, the petitioners had been prosecuted for protesting American military involvement in El Salvador. One of their number had previously found guilty of a similar offense, after a bench trial before the same judge. The petitioners argued that the judge had demonstrated his bias during the prior trial.
With this motion, Judge Merz argues, inter alia, that he is entitled to summary judgment on the basis of absolute judicial immunity. This Court agrees. Since Bradley v. Fisher, 80 U.S. 355 (1872), the Supreme Court has recognized that judicial officers are absolutely immune. See also, Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 547 (1967). The doctrine of judicial immunity applies to Magistrate Judges as it does to other federal judges. Newsome v. Merz, 2001 WL 1006189 (6th Cir. 2001); Stern v. Halligan, 158 F.3d 729, 731 n. 1 (3rd Cir. 1998); King v. Myers, 973 F.2d 354, 356 (4th Cir. 1992); Tanner v. Heise, 879 F.2d 572, 576-78 (9th Cir. 1989). A judicial officer is immune from money damages, unless he acted in a non-judicial capacity or in complete absence of all jurisdiction. Mann v. Conlin, 22 F.3d 100, 104 (6th Cir.), cert. denied, 513 U.S. 870 (1994).
Herein, the Plaintiffs allege in their Complaint that Judge Merz conspired with Judge Rose, Lockhart and Bottome to deny them their constitutional right to petition court for redress of grievances and deprived them of their right to have a day in court by virtue of the sham proceedings to which they (the Defendants) subjected them (the Plaintiffs) during Case No. C-3-99-402. See Doc. #1 at ¶ 2. The Plaintiffs also assert that the Defendants conspired to deprive them of their right to a jury trial, id. Simply stated, the Plaintiffs contend that Judge Merz misused his judicial office during Case No. C-3-99-402, matters which are quintessentially judicial actions. Moreover, the Plaintiffs do not allege that Judge Merz took any action concerning them in a non-judicial capacity or acted in complete absence of jurisdiction. In their memorandum opposing Judge Merz's Motion for Summary Judgment, the Plaintiffs do not contend that Judge Merz acted in a non-judicial capacity or in complete absence of jurisdiction.
Based upon the foregoing, the Court sustains Judge Merz's Motion for Summary Judgment (Doc. #9).
III. Plaintiffs' Motions to Strike (Docs. #24 and #26)
With these motions, the Plaintiffs have requested that the Court strike the Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23)., The Plaintiffs argue that a motion to dismiss is not a procedurally proper response to a complaint. This Court does not agree. Rule 12(b) of the Federal Rules of Civil Procedure expressly permits the filing of a motion to dismiss before a party has filed its responsive pleading. Accordingly, the Court overrules the Plaintiffs7 Motions to Strike (Docs. #24 and #26).
IV. Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23)
These Defendants move to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). However, since that motion has been supported by Bottome's declaration, which the Court will consider when ruling upon same, it will, pursuant to Rule 12(b), treat that motion as one for summary judgment under Rule 56.
Rule 12(b) provides, in pertinent part:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
These Defendants initially argue that the Court should dismiss Plaintiffs' claims against Judge Rose on the basis of absolute judicial immunity. Based upon the reasoning set forth above in ruling on Judge Merz's Motion for Summary Judgment, the Court sustains the branch of the Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23), with which they seek dismissal of Judge Rose.
These Defendants seek dismissal of Lockhart, arguing that he did not have any personal involvement with Case No. C-3-99-402. That assertion is amply supported by Bottome's declaration, wherein she states that Lockhart did not review or sign any of the papers filed in that case, that he did not appear in court during the pendency of that litigation and that he had no personal involvement in it. Bottome also states that she was the only attorney for the United States who participated in Case No. C-3-99-402. The Plaintiffs have failed to submit any evidence which would raise a genuine issue of material fact concerning Lockhart's involvement in Case No. C-3-99-402. In addition, it is axiomatic that liability cannot be imposed upon Lockhart, if he did not have personal involvement in the prosecution of Case No. C-3-99-402. See Salehpour v. University of Tennessee. 159 F.3d 199, 206 (6th Cir. 1998) (affirming the dismissal of claims under 42 U.S.C. § 1983 against the Chancellor and President of the University of Tennessee, because they were not personally involved in the alleged constitutional torts). Accordingly, the Court sustains the branch of the Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23), with which they seek dismissal of the claims against Lockhart.
The Plaintiffs have argued that these Defendants have failed to demonstrate that they are entitled to dismissal, because their motion is supported by the statements of counsel which are not evidence.See Doc. #31. Although the Court agrees with Plaintiffs that the statements of counsel are not evidence, the Plaintiffs' argument misses the point, since this motion has been supported by Bottome's declaration.
These Defendants argue that the Court must dismiss the Plaintiffs7 claims against Bottome, because she is protected from liability by the doctrine of absolute prosecutorial immunity. In Blakely v. United States, 276 F.3d 853 (6th Cir. 2003), the Sixth Circuit discussed prosecutorial immunity:
Prosecutorial immunity extends to those activities that occur in the prosecutor's role as advocate for the government. [Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000)]. If, however, the prosecutor is only serving in an investigatory capacity, i.e., activities "normally performed by a detective or police officer such as searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested [he] is entitled only at most to qualified immunity." Id. (citation and internal quotation marks omitted).id. at 871. Herein, Bottome was acting as an advocate for the Government in Case No. C-3-99-402, rather than in an investigative capacity. Therefore, Bottome would unquestionably be protected by absolute prosecutorial immunity if she had initiated a criminal prosecution against the Plaintiffs, rather than a civil action seeking to collect taxes. Although the doctrine of prosecutorial immunity primarily protects government attorneys who initiate criminal prosecutions, the Sixth Circuit has recognized that the doctrine can protect such an attorney who initiates a civil action. For instance, inBlakely, the Sixth Circuit held that prosecutors were absolutely immune for initiating a civil forfeiture action. InShoultes v. Laidlaw, 886 F.2d 114 (6th Cir. 1989), the Sixth Circuit stressed that whether a government attorney initiating a civil action is protected by absolute prosecutorial immunity must be determined through a functional analysis, rather than by formalistic labels, id. at 118. Therein, the Sixth Circuit held that a city attorney who initiated a civil action against the plaintiff, seeking an injunction to enforce a municipal zoning ordinance, was entitled to absolute prosecutorial immunity, because the ordinance allowed for criminal penalties. Similarly, herein, Bottome initiated Case No. C-3-99-402 in an effort to collect taxes from the Plaintiffs and to enforce the Internal Revenue Code which also allows the imposition of criminal penalties. Therefore, this Court concludes that Bottome is shielded from liability by absolute prosecutorial immunity.Accord, Christensen v. Ward, 916 F.2d 1462 (10th Cir. 1990) (affirming conclusion of the District Court that government attorneys who initiated action against plaintiff to collect taxes were protected by the doctrine of absolute prosecutorial immunity).
Accordingly, the Court sustains the Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23) in its entirety.
V. Plaintiffs' Motions for Summary Judgment (Docs. #30 and #31)
With these motions, the Plaintiffs state in declaratory sentences that there is no genuine issue of material fact and they are entitled to summary judgment. With that argument, the Plaintiffs, as moving parties, have failed to meet their initial "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial." Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1 991) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)). For that reason and for the reasons set forth above in the Court's rulings on Judge Merz's Motion for Summary Judgment (Doc. #9) and the Motion to Dismiss of Lockhart, Bottome and Judge Rose (Doc. #23), the Court overrules Plaintiffs' Motions for Summary Judgment (Docs. #30 and #31).
Judge Merz has also filed a motion with which he requests that the Court impose sanctions on the Plaintiffs in the form of a monetary penalty to be paid into the court. See Doc. #17. Judge Merz argues that the Plaintiffs should be sanctioned, because their claims are baseless. He also accuses them of initiating this litigation for the purpose of attempting to harass and to intimidate a federal judicial officer performing his duties. Given that the Plaintiffs are proceeding pro se in this matter and, further, since pro se pleadings are to be treated with leniency (Newsom v. Morris, 888 F.2d 371 (6th Cir. 1989)), the Court will decline to impose sanctions on the Plaintiffs, at this time. However, the Court would caution the Plaintiffs that, for the reasons set forth above, this lawsuit is without arguable merit. If they file another lawsuit which lacks arguable merit, the Court will look favorably upon a request for sanctions which could include a monetary penalty or an injunction preventing them from initiating further lawsuits. Accordingly, the Court overrules, without prejudice, the Motion for Sanctions (Doc. #17) filed by Judge Merz.
Having disposed of all issues raised in this litigation, the Court directs that judgment be entered in favor of Defendants and against Plaintiffs, dismissing this litigation with prejudice.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTICE OF DISPOSAL PER SOUTHERN DISTRICT OF OHIO LOCAL RULES 79.2(a)(b) AND 79.3(e)
The above captioned matter has been terminated on August 21, 2003.If applicable to this case, the disposal date will be six (6) months from the above termination date.
Rule 79.2(a) Withdrawal by Counsel:
All models, diagrams, depositions, photographs, x-rays and other exhibits and materials filed in an action or offered in evidence shall not be considered part of the pleadings in the action, and unless otherwise ordered by the Court, shall be withdrawn by counsel without further Order within six (6) months after final termination of this action.Rule 79.2(b) Disposal by the Clerk:
All models, diagrams, depositions, x-rays and other exhibits and materials not withdrawn by counsel shall be disposed of by the Clerk as waste at the expiration of the withdrawal period.
Rule 79.3(e)
Sealed or confidential documents shall be disposed of in accordance with Rule 79.2