# Viola v. Ohio Attorney General

> District Court, N.D. Ohio · February 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10369238

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** February 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10369238

## How later opinions describe it (automated extraction)

- finding that a plaintiff's failure to oppose arguments raised in the defendants' motion to dismiss is grounds for the district court to assume that opposition to the motion is waived
- stating that “sovereign immunity bars suits in federal court against state officials acting in their official capacity for violations of state law, regardless of the relief sought.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

Anthony L. Viola, Case No. 1:20cv765

Plaintiff,
-vs-
JUDGE PAMELA A. BARKER

Ohio Attorney General,
et al. MEMORANDUM OPINION AND
Defendants. ORDER

Currently pending are the following motions filed by pro se Plaintiff Anthony L. Viola
(“Viola”): (1) Motion for Appointment of Counsel (Doc. No. 23); (2) Motion to Take Judicial Notice
of Recent News Articles (Doc. No. 32); and (3) Motion to Refer Mark Bennett and Dan Kasaris for
Criminal Prosecution (Doc. No. 40). Also pending are the following motions filed by the various
Defendants in this action: (1) Motion of Defendants Justin Herdman, Mark Bennett, Steven
Dettelbach, John Siegel, Laura Irwin, and John Moustakas (“Federal Defendants”) to Dismiss and to
Declare Vexatious (Doc. No. 30); (2) Motion of Defendants Dave Yost, Heather Buchanan, Micah
Ault, and Daniel Kasaris (“State Defendants”) to Dismiss (Doc. No. 34); (3) Defendant Michael
O’Malley’s Motion to Dismiss (Doc. No. 31); (4) Defendant Marcus Sidoti’s Motion to Dismiss
(Doc. No. 52); (5) Defendant Jaye Schlachet’s Motion to Dismiss (Doc. No. 22); and (6) Defendant
Daniel Kasaris’s Motion to Impose Pre-Filing Restrictions upon Plaintiff (Doc. No. 45).
For the following reasons, Plaintiff’s Motions for Appointment of Counsel (Doc. No. 23), to
take Judicial Notice (Doc. No. 32), and to Refer for Criminal Prosecution (Doc. No. 40) are DENIED.
The Federal Defendants’ Motion to Dismiss and to Declare Vexatious (Doc. No. 30) is GRANTED
IN PART and DENIED IN PART, as set forth herein. The State Defendants’ Motion to Dismiss
(Doc. No. 34) is GRANTED. The Motions to Dismiss filed respectively by Defendants O’Malley,
Sidoti, and Schlachet (Doc. Nos. 31, 52, 22) are GRANTED. And, finally, Defendant Kasaris’s
Motion to Impose Pre-Filing Restrictions (Doc. No. 45) is DENIED.
I. Background
In April 2011, Anthony Viola was tried and convicted in the United States District Court for
the Northern District of Ohio on thirty-three (33) counts of wire fraud and two (2) counts of

conspiracy arising from a mortgage fraud scheme. See United States v. Viola, Case No. 1:08cr506
(N.D. Ohio) (Nugent, J.) Viola was subsequently sentenced to 150 months for each of the wire fraud
counts and 60 months for each of the conspiracy counts, with all terms of imprisonment to run
concurrently. Id. Viola alleges (and the federal docket indicates) that Defendants Mark Bennett,
John Siegel, and Michael Ault1 were the Assistant United States Attorneys that prosecuted Viola’s
federal case. Viola’s federal conviction and sentence were upheld on direct appeal to the Sixth Circuit
Court of Appeals. See United States v. Viola, 2013 U.S. App. Lexis 26454 at * 2 (6th Cir. Nov. 6,
2013). 2
Meanwhile, in 2012, Viola was tried and acquitted of similar charges under state law in the
Cuyahoga County Court of Common Pleas. See State v. Viola, Case Nos. CR-10-536877 and CR-

10-543886 (Cuy. Cty. Ct. Cmn. Pl.) Defendant Daniel Kasaris (who was then a Cuyahoga County
Prosecutor) prosecuted Viola’s state case.

1 Defendant Ault is now employed by the State of Ohio as an Assistant Attorney General.

2 In addition, over the years, Viola filed numerous challenges to his federal conviction and sentence, all of which were
denied. See, e.g., United States v. Viola, 2015 WL 7259783 (N.D. Ohio Nov. 17, 2015) (denying Viola’s Motion to
Vacate under 28 U.S.C. § 2255 and attaching a list of all the various post-judgment motions and appeals filed by Viola);
Viola v. United States, Case No. 16-3023 (6th Cir. Nov. 23, 2016) (denying Viola’s application for certificate of
appealability regarding denial of § 2255 motion); United States v. Viola, Case No. 08cr506 (N.D. Ohio) (Doc. No. 541)
(denying multiple post-judgment motions).
2
On March 30, 2020, Viola, proceeding pro se, filed a Complaint in the United States District
Court for the Southern District of Ohio against numerous defendants, in which he asserted that various
instances of governmental misconduct occurred during both his state and federal trials. (Doc. No. 1.)
On April 8, 2020, the Southern District of Ohio transferred the instant action to this Court. (Doc. No.
3.)
On July 29, 2020, Viola filed a First Amended Complaint, naming the following fourteen (14)

Defendants: (1) United States Attorney for the Northern District of Ohio Justin Herdman; Assistant
United States Attorneys (“AUSAs”) Mark Bennett, John Moustakas and Laura Irwin; former United
States Attorney Steven Dettelbach; and former AUSA John Siegel (the “Federal Defendants”); (2)
Ohio Attorney General Dave Yost; Assistant Attorney Generals Heather Buchanan, Micah Ault, and
Daniel Kasaris; and former Assistant Attorney General Tiffany Carwile (the “State Defendants”); (3)
Cuyahoga County Prosecutor Michael C. O’Malley; and (4) attorneys Marcus Sidoti and Jaye
Schlachet.3 (Doc. No. 25.)
In the Amended Complaint, Viola alleges that he was “simultaneously prosecuted in both
federal and state court, on identical charges, by the same prosecution team, through a multi-
jurisdictional Mortgage Fraud Task Force.” (Doc. No. 25 at p. 1.) He asserts that, when evidence

that was improperly withheld during the federal trial was later introduced at his state trial, “actual
innocence was established . . . on the exact same charges.” (Id. at p. 2.) Relying on numerous exhibits
attached to the Amended Complaint, Viola asserts six categories of alleged government misconduct
relating to his federal and state trials. (Id. at pp. 2-6.)

3 On the same date that he filed his First Amended Complaint, Viola also filed a Motion for Appointment of Counsel.
(Doc. No. 23.)
3
First, Viola alleges that Defendants Bennett and Kasaris “possessed proof of [Viola’s]
innocence yet failed to produce that evidence before either criminal trial.” (Id. at p. 2.) Specifically,
Viola alleges that Bennett and Kasaris (1) “shifted” exculpatory evidence (including FBI interview
summaries and bank documents) to the Mortgage Fraud Task Force location and then “plead
ignorance” as to this evidence; and (2) falsely claimed that the Task Force lost certain computers.
(Id.)

Second, Viola alleges that Defendants Bennett and Kasaris directed Mortgage Fraud Task
Force Office Manager Dawn Pasela to pose as a graduate student studying criminal defense, offer to
assist Viola’s defense team, and then secretly record conversations with Viola so that “prosecutors
could obtain confidential defense trial strategy information.” (Id. at p. 3.) Viola claims that Ms.
Pasela became concerned that Bennett and Kasaris were not producing exculpatory evidence to the
defense. (Id.) She then provided Viola “with key evidence, assisted [Viola] with preparation for the
[state] trial, prepared defense exhibits, and offered to testify as a witness about misconduct inside the
Task Force.” (Id.) Viola alleges that federal agents and Defendant Kasaris threatened Ms. Pasela
with prosecution if she testified for Viola. (Id.) He states that Ms. Pasela “never appeared in court
and was found dead in her apartment by her Father shortly after her scheduled testimony.” (Id.)

Third, Viola alleges that Defendants Kasaris, Bennett, Siegel, and Ault all knowingly used
the perjured testimony of government witness Kathryn Clover. (Id. at p. 4.) Viola further alleges
that Defendant Schlachet represented Ms. Clover, was aware that she had perjured herself, and asked
Defendant Bennett to recall Clover to the stand to correct her false testimony. (Id.) Viola alleges
that Bennett refused to do so and that Schlachet “accepted Bennett’s decision and failed to report the

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knowing use of perjured testimony to obtain a conviction to the Ohio Supreme Court Disciplinary
Counsel.” (Id.)
Fourth, Viola alleges that Defendant Kasaris was involved in an inappropriate romantic
relationship with Ms. Clover and that numerous individuals (including Defendant Sidoti) were aware
of this relationship but failed to report it. (Id. at pp. 4-5.) Viola asserts that the evidence he has
amassed regarding this alleged relationship “underscore[s] the need for an immediate investigation

by the proper authorities into these serious allegations, which may result in the dismissal of dozens
of criminal cases in which Clover testified and/or the initiation of criminal charges against Bennett
and Kasaris.” (Id. at p. 5.)
Fifth, Viola alleges that, prior to his federal trial, “timely objections to conflicts of interest
resulting from joint defense between all defendants who proceeded to trial and the simultaneous
representation by those same attorneys of government witness Kathryn Clover and lender employees
were filed.” (Id.) Viola asserts that Defendant Bennett was aware that an actual conflict existed but
repeatedly lied in multiple court filings by falsely claiming that conflicts of interest were waived.
(Id.)
Sixth, and finally, Viola alleges that Defendant Kasaris “acted under color of law and abused

an unconstitutional state statute to threaten to prosecute individuals posting comments on blogs
related to [Viola’s] case.” (Id. at p. 6.) Specifically, Viola alleges that, when he continued to be
incarcerated on federal charges despite his acquittal in state court, his friends and supporters set up a
website called www.FreeTonyViola.com. (Id.) The mission of this website was to “shine a bright
spotlight on the ‘win at all costs’ tactics, prosecutorial overreach, and misconduct the United States
Department of Justice employs when prosecuting American citizens.” (Id.) Among other things, the

5
website included allegations regarding Defendant Kasaris’s alleged romantic relationship with Ms.
Clover. (Id.) Viola alleges that Kasaris threatened to prosecute the www.FreeTonyViola.com
webmaster, Robert Ryan, which resulted in Mr. Ryan quitting. (Id.) He further alleges that Kasaris
“sent threatening letters to the Plaintiff as well as other citizens . . . who posted comments on our
blog, threatening to prosecute these individuals pursuant to Ohio Revised Code § 2921.03(a).” (Id.
at pp. 6-7.) In support of this allegation, Viola attaches to the Amended Complaint a letter from

Kasaris to Viola dated September 2016. (Doc. No. 25-29.) This letter states as follows:
I am writing you to inform you that Ohio Law provides that, "No person, knowingly
using a materially false or fraudulent writing with malicious purpose, in bad faith, or
in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a
public servant in the discharge of the person's duty." Please see Ohio Revised Code
2921.03(a). For approximately a year[,] you or others on your behalf have carried on
a campaign publishing false or materially false writings in a reckless manner
attempting to intimidate me in the performance of my duties as a prosecutor and as a
city councilman in the City of North Royalton by using absolutely false writings some
of which have already been adjudicated to have been false, in a reckless manner. In
addition you and/or others acting on your behalf and possibly with your consent have
attempted to interfere [with] business relationships which I have and employment.

Please cease the above describe[d] conduct and please remove or cause to be removed
any reference to me, and my family, including my wife and daughters from the website
known as www.freetonyviola.com, or any social media. Please remove or cause to be
removed the pictures of myself and my daughters from www.freetonyviola.com or
any social media [you] have direct or indirect control over. Failure to do so may result
in the initiation of a complaint against you for violation of the above statute which is
a felony of the third degree per occurrence, with the appropriate law enforcement
agency.

(Id.)
In the Amended Complaint, Viola seeks a declaratory judgment that Ohio Rev. Code §
2921.03(A) is unconstitutional because it infringes upon and chills his First Amendment rights. (Doc.
No. 25 at p. 7.) In addition, Viola asks the Court to declare that “each defendant, in their professional
capacity, is required to report the credible allegations of misconduct described herein, either to the
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Department of Justice’s Inspector General or the Ohio Supreme Court Disciplinary Counsel, and
further declare that all defendants named herein are required to follow the Code of Federal
Regulations and Rules of Professional Conduct.” (Id.)
On August 10, 2020, the Federal Defendants filed a Motion to Dismiss pursuant to Fed. R.
Civ. Pr. 12(b)(1), (5) and (6), and to Declare Viola a vexatious litigator and enjoin him from filing
further civil actions without court approval. (Doc. No. 30.) Shortly thereafter, the State Defendants

filed a Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Doc. No. 34.) Defendants
O’Malley, Sidoti, and Schlachet filed Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) as well.
(Doc. Nos. 22, 31, 52.) Viola filed a Consolidated Brief in Opposition on September 21, 2020. (Doc.
No. 37.) The Federal Defendants, State Defendants, and Defendant O’Malley all filed Reply Briefs
in support of their various Motions to Dismiss. (Doc. Nos. 39, 47, 48.)
In addition, on August 17, 2020, Viola filed a “Motion to Take Judicial Notice of Recent
News Articles detailing Prosecutorial Misconduct by Mark Bennett and Dan Kasaris.” (Doc. No.
32.) The Federal Defendants and Defendant O’Malley filed Briefs in Opposition. (Doc. Nos. 35,
36.) Viola did not file a reply.
On September 30, 2020, Viola filed a Motion to Refer Mark Bennett and Dan Kasaris for

Criminal Prosecution. (Doc. No. 40.) The Federal Defendants and Defendant Kasaris filed Briefs in
Opposition, to which Viola replied. (Doc. Nos. 45, 51, 53.) In addition, Viola subsequently filed a
pleading captioned “Additional Documents in Support of Motion for Criminal Referral.” (Doc. 55.)
Finally, on October 13, 2020, Defendant Kasaris filed a Motion to Impose Pre-Filing
Restrictions on Plaintiff. (Doc. No. 45.) Viola did not file a response.
II. Motion for Appointment of Counsel (Doc. No. 23)

7
Viola requests appointment of counsel “so that the issues set forth in the amended complaint
can be more properly presented to the Court and so that a proper factual investigation of misconduct
by Prosecutors Dan Kasaris and Mark Bennett can be conducted.” (Doc. No. 23 at p. 1.) In support
of his request, Viola states that he was recently released from prison and has limited financial
resources. (Id.) He notes that other federal courts (including the United States Court of Appeals for
the Third Circuit) have found him to be indigent and appointed counsel for him in related civil

matters. (Id.) Finally, Viola argues that, given the nature of his allegations herein, “[t]he public’s
confidence in the fair administration of justice would be well served by appointment of counsel in
this matter.” (Id.)
Appointment of counsel in a civil case is not a constitutional right. Lavado v. Keohane, 992
F.2d 601, 605-06 (6th Cir. 1993). Rather, the authority to appoint counsel in a civil case rests with
the sound discretion of the District Court and is justified only in cases of “exceptional circumstances.”
Id. In considering whether “exceptional circumstances” exist, “courts have examined ‘the type of
case and the abilities of the plaintiff to represent himself.’” Id. at 606 (quoting Archie v. Christian,
812 F.2d 250, 253 (5th Cir. 1987)). Such an examination “involves a determination of the
‘complexity of the factual and legal issues involved.’” Id. (quoting Cookish v. Cunningham, 787 F.2d

1, 3 (1st Cir.1986)).
While the Court recognizes the difficulties facing pro se litigants, the Court is not persuaded
that Viola’s request for an attorney implicates the necessary “exceptional circumstances” that warrant
appointment of counsel. Upon careful review of the First Amended Complaint, the Court concludes
that the factual and legal issues in this case are not particularly complex. Moreover, Viola’s various
motions and briefs indicate that he is sufficiently able to articulate his factual and legal arguments

8
and to draft legal documents on his own. Lastly, the fact that other courts may have appointed counsel
for Viola is neither persuasive nor determinative of whether “exceptional circumstances” warrant the
appointment of counsel in the instant action. After considered and careful review, the Court finds
that they do not.
Accordingly, Viola’s Motion for Appointment of Counsel (Doc. No. 23) is denied.
III. Motion to Take Judicial Notice (Doc. No. 32)

In his Motion to Take Judicial Notice, Viola argues that:
Recent news articles describe—in detail—the Justice Department’s illegal
‘win at all costs’ style of litigation and specifies misconduct throughout the
Plaintiff’s criminal cases by Defendants Mark Bennett and Dan Kasaris.
The undersigned believes this Court should be made aware of the media
coverage of prosecutorial misconduct—which is at the heart of this
litigation—and has attached one example of recent coverage of the illegal
actions of Bennett and Kasaris . . . .

(Doc. No. 32 at p. 1.) Viola maintains that, pursuant to Fed. R. Evid. 201(b), a court may take judicial
notice of a fact not subject to reasonable dispute and that “it is well established that courts may ‘take
judicial notice of matters of common knowledge . . . .’” (Id.) Attached as Exhibit A to Viola’s
Motion is a printed copy of a column posted on www.townhall.com on August 4, 2020, entitled
“Corrupt DOJ Finally Caught For Going After Little Guys During Subprime Mortgage Crisis”
(hereinafter referred to as “Exhibit A”). (Doc. No. 32-1.)
Defendant O’Malley and the Federal Defendants oppose Viola’s Motion. (Doc. Nos. 35, 36.)
These Defendants argue that Viola does not seek judicial notice of the existence of the article attached
to Viola’s Motion as Exhibit A, but actually “seeks to have the Court accept as fact his allegations of
misconduct, which are repeated in” Exhibit A. (Doc. No. 36 at p. 2.) Defendants argue that the Court
is prohibited from considering the substance of Exhibit A for the truth asserted therein. (Id. at p. 3;
9
Doc. No. 35 at p. 4.) Defendants further argue that Viola generally fails to comply with Fed. R. Evid.
201(b) because Exhibit A contains facts that are in dispute, not generally known, and are sourced
from an opinion column that cites liberally from a website maintained by Viola himself. (Doc. No.
35 at pp. 5-6; Doc. No. 36 at pp. 3-4.)
According to Fed. R. Evid. 201(b), courts may judicially notice a “fact that is not subject to
reasonable dispute” because it is either “generally known” within the court’s territorial jurisdiction,

or because it “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b). See also Ohio Citizen Action v. City of Englewood,
671 F.3d 564, 579 (6th Cir. 2012) (“[O]nly facts that are ‘not subject to reasonable dispute’ may be
judicially noticed”); Johnson v. City of Kentwood, 2020 WL 2610971 at *7, fn.2 (W.D. Mich. May
22, 2020) (“Judicially-noticed facts must be reasonably accurate and not open to dispute.”) See also
Passa v. City of Columbus, 123 Fed. Appx. 694, 697 (6th Cir. 2005)).
Additionally, judicial notice is limited. “[A] court may take notice of the documents and
what they say, but it ‘[cannot] consider the statements contained in the document for the truth of the
matter asserted.’” Platt v. Bd. of Comm’rs on Grievs. & Discipline of Ohio Supreme Court, 894
F.3d 235, 245 (6th Cir. 2018) (quoting In re Omnicare, Inc. Sec. Litig., 769 F.3d 455, 467 (6th Cir.

2014)). In other words, a court may take judicial notice of the document’s existence but cannot take
judicial notice of the document’s substance. Id. See also Davis v. City of Clarksville, 492 Fed.
Appx. 572, 578 (6th Cir. 2012).
Here, Viola has failed to satisfy the requirements of Fed. R. Evid. 201(b). Specifically, Viola
has failed to demonstrate that Exhibit A (or any other unidentified “media coverage of prosecutorial
misconduct” that he wishes the Court to take notice of) constitutes or includes “facts that are not

10
subject to reasonable dispute” for purposes of Rule 201(b). Rather, as discussed below, the alleged
“facts” set forth in Exhibit A are strongly disputed, not generally known, and come from a dubious
source.
Exhibit A’s alleged facts about prosecutorial misconduct are largely the same set of facts that
Viola alleges in his Complaint. These facts are disputed in this case and, in fact, serve as the basis
for Viola’s First Amended Complaint. Next, Exhibit A’s alleged facts about prosecutorial

misconduct are not “generally known” throughout the Northern District of Ohio. Cf. Ohio Bell Tel.
Co. v. Public Utils. Comm’n of Ohio, 301 U.S. 292, 301 (1937) (explaining that courts take judicial
notice of matters of “common knowledge,” like economic depressions); Carpenter v. Norfolk & W.
Ry., 1998 WL 199723 at *4 (6th Cir. Apr. 16, 1998) (courts have the power to judicially notice general
time/distance calculations). Finally, the accuracy of Exhibit A’s source is dubious. Viola
characterizes Exhibit A as a “news article,” but Exhibit A contains heavily editorialized language
better suited to an opinion column than a news article. Moreover, the electronic version of Exhibit A
contains several hyperlink sources that direct readers to a website maintained by Viola himself, where
he restates many of the same prosecutorial misconduct allegations found in his Amended Complaint.
The Court declines to take judicial notice of a document whose contents are disputed, not generally

known, and sourced from a website maintained by Plaintiff himself.
Moreover, although Viola argues that he seeks to make the Court aware of the existence of
media coverage about alleged prosecutorial conduct, “he in reality asked for much more.” Platt, 894
F.3d at 245. Viola’s two-paragraph Motion is replete with indications that he wishes the Court to
judicially notice Exhibit A’s substance (the alleged prosecutorial misconduct), not merely Exhibit
A’s existence. For example, Viola captions his Motion as “Motion to Take Judicial Notice of Recent

11
News Articles Detailing Prosecutorial Misconduct by Mark Bennett and Dan Kasaris.” (Doc. No. 32
at p. 1) (emphasis added.) He also argues that “recent news articles” describe the “Justice
Department’s illegal ‘win at all costs’ style of litigation and specifies misconduct throughout the
Plaintiff’s criminal cases by defendants Mark Bennett and Dan Kasaris.” (Id.) (emphasis added.)
Viola further states that Exhibit A is “one example of recent coverage of the illegal actions of Bennett
and Kasaris . . . .” (Id.) (emphasis added.) Viola’s focus on Defendants’ alleged misconduct indicates

an attempt to obtain judicial notice of the alleged misconduct as fact. This “runs afoul of the rule that
notice of public documents is ‘proper only for the fact of the documents’ existence, and not for the
truth of the matters asserted therein.’” Platt, 894 F.3d at 245 (quoting Passa, 123 Fed. Appx. at 697).
Accordingly, and for all the reasons set forth above, Viola’s Motion to Take Judicial Notice
(Doc. No. 32) is denied.
IV. Motions to Dismiss
A. Standards of Review under Fed. R. Civ. P. 12(b)(1), 12(b)(5), and (b)(6)
1. Fed. R. Civ. P. 12(b)(1)
The standard of review of a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction
depends on whether the defendant makes a facial or factual challenge to subject matter jurisdiction.

Wayside Church v. Van Buren County, 847 F.3d 812, 816–17 (6th Cir. 2017). A facial attack
“questions merely the sufficiency of the pleading” and requires the district court to “take[] the
allegations in the complaint as true.” Gentek Bldg Prods., Inc. v. Sherwin-Williams Co., 491 F.3d
320, 330 (6th Cir. 2007). To survive a facial attack, the complaint must contain a short and plain
statement of the grounds for jurisdiction. See Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th

12
Cir. 2016); Ogle v. Ohio Civil Service Employees Ass’n, AFSCME, Local 11, 397 F.Supp.3d 1076,
1081-1082 (S.D. Ohio 2019).
A factual attack, on the other hand, “raises a factual controversy requiring the district court
‘to weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does
not exist.’” Wayside Church, 847 F.3d at 817 (quoting Gentek Bldg. Prods., Inc., 491 F.3d at 330).
The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is challenged.

Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). The court may allow “affidavits,
documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
2. Fed. R. Civ. P. 12(b)(5)
Pursuant to Rule 12(b)(5), “a trial court, upon motion, may dismiss a complaint for failure to
make proper service of process.” Vitek v. AIG Life Brokerage, 2007 WL 682431 at *2 (S.D. Ohio
Feb. 27, 2007). Indeed, “without proper service of process, consent, waiver, or forfeiture, a court
may not exercise personal jurisdiction over a named defendant.” King v. Taylor, 694 F.3d 650, 655
(6th Cir. 2012). “And in the absence of personal jurisdiction, a federal court is ‘powerless to proceed
to an adjudication.’” Id. (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). In

the context of Fed. R. Civ. P. 12(b)(5), “motions to dismiss need not be treated as motions for
summary judgment even if they are supported by affidavits or other evidence outside the pleadings”
because “the pleadings themselves will typically shed no light on service issues.” Boulger v. Woods,
306 F. Supp. 3d 985, 993 (S.D. Ohio 2018), aff’d, 917 F.3d 471 (6th Cir. 2019).
3. Fed. R. Civ. P. 12(b)(6)

13
Under Fed. R. Civ. P. 12(b)(6), the Court accepts the plaintiff’s factual allegations as true and
construes the Complaint in the light most favorable to the plaintiff. See Gunasekara v. Irwin, 551
F.3d 461, 466 (6th Cir. 2009). In order to survive a motion to dismiss under this Rule, “a complaint
must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic
recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a
speculative level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)

(quoting in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)).
The measure of a Rule 12(b)(6) challenge — whether the Complaint raises a right to relief
above the speculative level — “does not ‘require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.’” Bassett v. National Collegiate
Athletic Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part Twombly, 550 U.S. at 555–556).
“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.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Deciding whether a complaint states a claim for relief that is plausible is a
“context-specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. at 679.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires
only a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.’” Gunasekera, 551 F.3d at 466 (quoting in part Erickson v.
Pardus, 551 U.S. 89 (2007)) (quoting Twombly, 127 S.Ct. at 1964). Nonetheless, while “Rule 8

14
marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior
era ... it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 679.
B. Materials Considered in resolving Motions to Dismiss
Prior to reaching the merits of the Defendants’ various Motions to Dismiss, the Court clarifies
the materials that will be considered in resolving those Motions. The record reflects that Viola

attaches the following seven exhibits to his Consolidated Brief in Opposition to Defendants’ Motions
to Dismiss:
(1) Exhibit A: a one-page document entitled “Case Information” that purports to show
the parties and counsel involved in a domestic matter captioned Kathryn Clover v.
Matthew Fairfield, Case No. DR-10-330101 (Cuyahoga County) (Doc. No. 37-1);

(2) Exhibit B: the cover sheet of a transcript of proceedings in the matter of United
States v. Kathryn Clover, Case Nos. 1:10cr75, 1:08cr506 (Doc. No. 37-2);

(3) Exhibit C: a one-page document entitled “Case Information” relating to State of
v. Matthew Fairfield, Case No. CA-11-097466 (Doc. No. 37-3);

(4) Exhibit D: a series of emails allegedly between Defendant Kasaris and Kathryn
Clover dated February 2012 (Doc. No. 37-4);

(5) Exhibit E: a sworn affidavit of Matthew Fairfield dated July 27, 2020 (Doc. No.
37-5);

(6) Exhibit F: an affidavit from Bryan Butler dated July 28, 2020 (Doc. No. 37-6);
and

(7) Exhibit G: a series of emails allegedly between Defendant Kasaris, Kathryn
Clover, and an individual identified only as “Sarah,” dated January and February 2012
(Doc. No. 37-7).

Viola references these Exhibits throughout his Brief in Opposition and explicitly relies on them in
opposing the various Defendants’ Motions to Dismiss. (Doc. No. 37.)
15
The Federal Defendants, State Defendants, and Defendant O’Malley object to the above
exhibits, arguing that they are not properly before this Court. (Doc. No. 39 at p. 3; Doc. No. 47 at
pp. 5; Doc. No. 48 at pp. 1-2.) Specifically, these Defendants assert that none of the documents
attached to Viola’s Consolidated Brief in Opposition were referenced in, or attached to, his First
Amended Complaint and, therefore, they may not be considered in resolving Defendants’ Motions to
Dismiss.

In ruling on a Rule 12(b)(6) motion, a court “may consider the Complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and exhibits attached to
defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the
claims contained therein.” Bassett, 528 F.3d at 430. See also Brent v. Wayne County Dep’t of Human
Services, 901 F.3d 656, 694 (6th Cir. 2018); Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.
2001). Under Rule 12(d), “[i]f . . . matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ.
P. 12(d). If a motion to dismiss is converted to a motion for summary judgment, the court must give
all parties “a reasonable opportunity to present all the material that is pertinent to the motion.” Id.
Here, the Court will not consider Exhibits D, E, F, and G to Viola’s Consolidated Brief in

Opposition; i.e., the email chains, Fairfield Affidavit, and Bryan Affidavit. These exhibits are not
referenced in or attached to the First Amended Complaint. Nor has Viola demonstrated that any of
these specific Exhibits are central to his claims. Further, Viola has neither argued, nor demonstrated,
that Exhibits D, E, F, or G are subject to judicial notice under Fed. R. Evid. 201(b). Accordingly, the
Court will not consider these Exhibits in resolving Defendants’ Motions to Dismiss.

16
Exhibits A and C purport to be incomplete portions of state court docket sheets in various
matters involving Kathryn Clover or her former husband, Matthew Fairfield. Exhibit B purports to
be one page from a transcript of criminal proceedings conducted in the Northern District of Ohio
before District Judge Nugent on September 28, 2011 in the matter of United States v. Kathryn Clover,
et al., Case Nos. 1:08cr506 and 1:10cr75. It appears that Viola attached these Exhibits to his
Consolidated Brief in Opposition for the purpose of demonstrating that (1) Defendant Schlachet

represented Ms. Clover in her 2010 divorce proceedings against Matthew Fairfield (Exhibit A, Doc.
No. 37-1); (2) Defendant Schlachet represented Ms. Clover in federal criminal proceedings before
Judge Nugent in 2011 (Exhibit B, Doc. No. 37-2); and (3) Defendant Kasaris prosecuted Mr. Fairfield
in state court in 2011 (Exhibit C, Doc. No. 37-3.) Viola argues these Exhibits are relevant because
they show that Defendant Schlachet “has simultaneously represented Dan Kasaris and Dan Kasaris’
girlfriend, Kathryn Clover, and is part of a cover up of Dan Kasaris’s romantic relationship with
Kathryn Clover.” (Doc. No. 37 at p. 2.)
A court may take judicial notice of the existence of court documents and the proceedings in
which those documents were generated. See also Rodic v. Thistledown Racing Club, 615 F.2d 736,
738 (6th Cir. 1980) (holding that “federal courts may take judicial notice of proceedings in other

courts of record”) (citation omitted). However, federal courts do not generally take judicial notice of
the truth of any statement of fact contained within those documents. See e.g., Embassy Realty
Investments LLC. v. City of Cleveland, 877 F.Supp.2d 564, 571 (N.D. Ohio 2012) (noting that, while
a court may take judicial notice of the existence of public records, “this is not to say, however, that
the facts contained within these public records are [necessarily] appropriate for consideration by the
Court.”).

17
Here, the Court will take judicial notice of the fact that, consistent with Exhibit A to Viola’s
Consolidated Brief in Opposition, the state court docket sheet in Ms. Clover’s 2010 divorce
proceedings indicates that she was represented in those proceedings by Defendant Schlachet. See
Kathryn Clover-Fairfield v. Matthew Fairfield, Case No. DR-10-330101 (Cuy. Cty. Ct. Cmn. Pl.)
(docket sheet). In addition, the Court will take judicial notice of the fact that, consistent with Exhibit
B to Viola’s Consolidated Brief in Opposition, the transcript of the proceedings held before District

Judge Nugent in the matter of United States v. Kathryn Clover, Case Nos. 1:10cr75, 1:08CR506
indicates that Ms. Clover was represented at that time in those proceedings by Defendant Schlachet.
See U.S. v. Clover, Case No. 1:10cr75 (N.D. Ohio) (Doc. No. 41.) Finally, the Court will also take
judicial notice of the fact that, consistent with Exhibit C to Viola’s Consolidated Brief in Opposition,
the state appellate court docket sheet indicates that Defendant Kasaris represented the State of Ohio
in Mr. Fairfield’s direct appeal from his state conviction and sentence. See State of Ohio vs. Matthew
Fairfield, Case No. CA-11-097466 (Ohio App. 8th Dist. Ct. App.) The Court emphasizes, however,
that it takes judicial notice only of the existence of the above, and not of the truth of any statement of
fact related to those proceedings.
C. Federal Defendants

As noted supra, Viola names the following Federal Defendants in his First Amended
Complaint: (1) United States Attorney for the Northern District of Ohio Justin Herdman; (2) AUSAs
Mark Bennett, John Moustakas and Laura Irwin; (3) former United States Attorney Steven
Dettelbach; and (4) former AUSA John Siegel. (Doc. No. 25.) Viola alleges that Defendants Bennett
and Siegel were AUSAs that prosecuted him during his federal criminal trial. (Id. at p. 9.) He alleges
that Defendants Herdman and Dettelbach had “obligations as supervisory officials who oversee

18
prosecutors” by virtue of their positions as United States Attorney for the Northern District of Ohio.
(Id. at p. 10.) Viola alleges that Defendants Irwin and Moustakas “are employed by the Department
of Justice and have contested every single claim made by Plaintiff in post-conviction litigation.” (Id.)
In the First Amended Complaint, Viola alleges that Defendants Bennett and Siegel engaged
in various forms of prosecutorial misconduct, including (1) suppressing exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1983); (2) knowingly using the perjured testimony of

Ms. Clover in violation of Napue v. Illinois, 360 U.S. 264 (1959); and (3) invading Viola’s right to
counsel to obtain confidential defense trial strategy information in violation of Massiah v. United
States, 377 U.S. 201 (1964). (Id. at p. 13.) He alleges that each of the Federal Defendants were
aware of the above prosecutorial misconduct, as well as alleged misconduct by Defendant Kasaris,
but improperly failed to report it in violation of 28 C.F.R. §§ 45.11 and 45.12; the United States
Attorney’s Manual § 9-5.001C; American Bar Association Committee on Ethics and Professional
Responsibility Formal Opinions 09-454 (2009) and 14-467 (2014); and the Ohio Rules of
Professional Conduct. (Id. at p. 12.)
As relevant to the Federal Defendants, Viola asks the Court for a declaratory judgment
pursuant to 28 U.S.C. §§ 2201 and 2202 that:

a. Plaintiff has a right to demand compliance with the Code of Federal
Regulations and the Rules of Professional Conduct governing attorneys;

b. That the defendants are in breach of those lawful obligations;

c. That each and every defendant is obligated, without further delay, to report
misconduct to the proper authorities

(Id. at p. 11.) Viola does not seek either monetary damages or injunctive relief.

19
The Federal Defendants move to dismiss Viola’s First Amended Complaint for (1) lack of
subject matter jurisdiction pursuant to Rule 12(b)(1); (2) insufficient service of process pursuant to
Rule 12(b)(5); and (3) failure to state a claim pursuant to Rule 12(b)(6). (Doc. No. 30.) The Court
will address these bases for dismissal separately, below.
1. Subject Matter Jurisdiction
The Federal Defendants argue that this Court lacks subject matter jurisdiction over the instant

action for several reasons. (Doc. No. 30 at pp. 3-7.) First, the Federal Defendants assert that Viola
has sued each of them in their official capacities and, therefore, they are entitled to sovereign
immunity. (Id.) The Federal Defendants assert that Viola has failed to identify an applicable waiver
of sovereign immunity, arguing that none of the federal statutes identified in the First Amended
Complaint (i.e., 28 U.S.C. §§ 1331, 1391, 2201 or 2202) confer jurisdiction over the instant suit. (Id.)
Second, the Federal Defendants argue that “[t]his Court lacks subject matter jurisdiction over
Plaintiff’s petition for a declaratory judgment because Plaintiff’s sole remedy, to the extent that he
claims his criminal conviction is invalid due to prosecutorial misconduct, is by way of a petition for
a writ of habeas corpus.” (Id.) Third, and finally, the Federal Defendants argue that, to the extent
the First Amended Complaint alleges a failure to comply with the Ohio Rules of Professional Conduct

(“ORPC”), his claims should be dismissed because this Court does not have jurisdiction to rule on
alleged violations of the ORPC. (Id.)
In his Brief in Opposition, Viola argues that this Court has subject matter jurisdiction over the
instant matter pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C.A. §§ 702-703. (Doc.
No. 37 at p. 1.) Noting that the APA applies “to compel agency action unlawfully withheld or
unreasonably delayed,” Viola argues that the First Amended Complaint “cites the Code of Federal

20
Regulations, as well as other controlling legal authorities, stating that defendants have an obligation
to take a discrete action—namely, report misconduct by” Defendants Bennett and Kasaris. (Id.)
Viola further argues that 28 U.S.C. § 530(B)(a) “provides that all federal attorneys are subject to the
same state laws and rules, as well as local federal court rules, that govern attorneys in the state where
the attorney practices.” (Id.) He further claims that “other statutes relevant to this matter include”
the Jencks Act, 18 U.S.C. § 3500; the Federal Rule of Criminal Procedure 16; and the United States

Attorneys' Manual Section 1-4.100. (Id. at pp. 1-2.)
In reply, the Federal Defendants argue that the APA does not provide a waiver of sovereign
immunity in the instant action. (Doc. No. 47.) Defendants assert that “the challenged action here is
simply the Federal Defendants’ obligation to report allegations of misconduct within government
agencies, or to other government agencies,” and argue that “these reporting requirements do not create
rights as to private litigants.” (Id. at p. 2.) Thus, the Federal Defendants assert that the APA is
inapplicable to the instant case. (Id.)
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” Munaco v. United States, 522 F.3d 651, 652–
53 (6th Cir.2008) (quoting United States v. Mitchell, 463 U.S. 206, 212 (1983)). In other words, “the

United States cannot be sued at all without the consent of Congress.” Block v. N.D. ex. rel Bd. of
Univ. and Sch. Lands, 461 U.S. 273, 287 (1983). Sovereign immunity “extends to the agencies of
the United States” or “federal officers [acting] in their official capacities.” Whittle v. United States, 7
F.3d 1259,1262 (6th Cir.1993). See also Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671 (6th
Cir. 2013). A waiver of sovereign immunity may not be implied and exists only when Congress has

21
expressly waived immunity by statute. Id. (citing United States v. Nordic Village, Inc., 503 U.S. 30,
33 (1992)).
The Court first considers in what capacity Viola has sued Defendants Bennett, Siegel,
Herdman, Dettelbach, Irwin and Moustakas; i.e., whether he has sued them in their individual
capacities, official capacities, or both. The Federal Defendants argue that Viola has sued them in
their official capacities only, noting that the First Amended Complaint expressly requests that the

Court “declare that each defendant, in their professional capacity, is required to report the credible
allegations of misconduct described herein.” (Doc. No. 25 at p. 7) (emphasis added). Viola does not
address this issue in his Consolidated Brief in Opposition or otherwise argue that he has sued any of
the Federal Defendants in their individual capacities.
While the First Amended Complaint does not explicitly indicate whether the Federal
Defendants are sued in their individual and/or official capacities, the Court finds, for the following
reasons, that Viola has sued the Federal Defendants in their official capacities only. The Amended
Complaint identifies the Federal Defendants by their official titles and the only allegations against
these Defendants concern actions taken in their official capacities. Additionally, the First Amended
Complaint specifically references the Defendants’ alleged obligations “in their professional

capacities” and does not, at any point, make any reference the Defendants’ alleged conduct or
obligations in their individual capacities. (Doc. No. 25 at PageID#205.) Moreover, Viola expressly
alleges that the bases for the Federal Defendants’ purported obligation to report misconduct arises
from Defendants’ duties under 28 C.F.R. §§ 45.11 and 45.12, the “United States Attorney’s Manual,”
and the ORPC, each of which relate to these Defendants’ professional obligations in their official
capacities as United States Attorneys and Assistant United States Attorneys. In light of the above,

22
the Court finds that the First Amended Complaint fails to provide adequate notice to the Federal
Defendants that they are being sued in their individual capacities. See, e.g., Moralez v. EEOC, 2019
WL 1369980 at * 2 (W.D. Mich. Feb. 25, 2019) (finding federal defendants were sued in their official
capacities, in part, because “Plaintiff’s motion for mandamus/complaint fails to provide adequate
notice to [defendants] Cober or Lipnic that they face personal liability in this matter.”), adopted by,
2019 WL 1367761 (W.D. Mich. March 26, 2019).

Accordingly, because the Federal Defendants are being sued in their official capacities only,
Viola’s claims are, in fact, asserted against the United States Department of Justice. See, e.g., Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that a suit against a government
official in his or her official capacity is equivalent to a suit against the entity itself.); Greene v. U.S.
Department of Justice, 2019 WL 5395442 at * 5 (E.D. Ky. Oct. 22, 2019) (“Thus, an official capacity
suit against an employee of the BOP or the DOJ is a suit against the BOP or DOJ itself, which are
federal agencies.”) Thus, the Federal Defendants may assert sovereign immunity. See Steele v.
United States, 2020 WL 1814135 at * 4 (S.D. Ohio Apr. 9, 2020) (“And, where a federal officer is
sued in his or her official capacity, the federal officer may assert sovereign immunity.”) (citing Lewis
v. Clarke, ––– U.S. ––––, 137 S. Ct. 1285, 1286-87, 197 L.Ed.2d 631 (2017)), adopted by, 2020 WL

3489230 (S.D. Ohio June 26, 2020).
As noted above, a “waiver of the Federal Government’s sovereign immunity must be
unequivocally expressed in statutory text and will not be implied.” Muniz-Muniz, 741 F.3d at 671.
See also Thompson v. McHugh, 388 Fed. Appx. 870, 873 (6th Cir. 2010). Here, the only federal

23
statutes referenced in the First Amended Complaint are 28 U.S.C. §§ 1331, 2201, 2202.4 For the
following reasons, the Court finds that none of these statutes waive sovereign immunity.
Section 1331 of Title 28 provides that “the district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §
1331. This provision is generally referred to as the federal question jurisdiction statute. However,
the relevant question is not whether Plaintiff's claims arise under federal law, but instead whether the

United States has consented to being sued. “On this question, § 1331 is silent and does not constitute
a waiver of sovereign immunity.” Moralez, 2019 WL 1369980 at * 2. See also Whittle, 7 F.3d at
1262 (“The federal question jurisdictional statute is not a general waiver of sovereign immunity; it
merely establishes a subject matter that is within the competence of federal courts to entertain.”)
Sanzotta v. City of Ann Arbor, 2016 WL 3878260 at * 4 (E.D. Mich. July 18, 2016); Andrews v.
Martinez, 2002 WL 31368850 at * 2 (S.D. Ohio Aug. 21, 2002).
Nor does the Declaratory Judgment Act, 28 U.S.C. §§ 2201- 2202, constitute a waiver of
sovereign immunity. As one court explained, “the Declaratory Judgment Act neither provides an
independent basis for subject matter jurisdiction nor waives [a federal government agency’s]
sovereign immunity. The Act merely grants the Court the power to issue declaratory judgments when

jurisdiction otherwise exists.” Normandy Pointe Associates v. FEMA, 105 F.Supp.2d 822, 826-827
(S.D. Ohio 2000). See also Andrews, 2002 WL 31368850 at * 3 (“[T]he Court concludes that the
Declaratory Judgment Act does not constitute a waiver of the sovereign immunity of the United
States.”); CBST Acquisition LLC v. United States, 2019 WL 688597 at * 3 (S.D. Ohio Feb. 19, 2019)

4 Viola also references 28 USC § 1391 in the First Amended Complaint. This statute, however, relates to venue and is
not relevant to the issue of sovereign immunity.
24
(noting that “the Declaratory Judgment Act, 28 U.S.C. § 2201, does not provide for a waiver of
sovereign immunity and is not an independent source of federal jurisdiction”), adopted by, 2019 WL
1125575 (S.D. Ohio March 12, 2019).
Viola does not, in fact, argue that 28 U.S.C. §§ 1331, 2001 or 2002 constitute a waiver of
sovereign immunity. Rather, Viola argues that the United States has waived its sovereign immunity
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq. The Court agrees with

Viola that, under certain circumstances, the APA can constitute a waiver of the sovereign immunity
of the United States. See 5 U.S.C. § 702. Specifically, Section 702 provides, in pertinent part, as
follows:
A person suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof. An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal authority
shall not be dismissed nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party. *** Nothing herein
(1) affects other limitations on judicial review or the power or duty of the court to
dismiss any action or deny relief on any other appropriate legal or equitable ground;
or (2) confers authority to grant relief if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought.

5 U.S.C. § 702. In the instant case, however, Viola does not allege in the First Amended Complaint
either that he is bringing this litigation under the APA, that the APA otherwise applies, or that the
APA constitutes a waiver of sovereign immunity. Indeed, a careful review of the First Amended
Complaint reveals that there is no mention of the APA at any point in that pleading. Viola may not
assert, in his Consolidated Brief in Opposition, a basis for the waiver of sovereign immunity that is
not clearly plead and asserted in his First Amended Complaint. See Andrews, 2002 WL 31368850 at
* 3-4.
25
Accordingly, and for all the reasons set forth above, the Court finds that Viola has failed to
plead a basis for the waiver of sovereign immunity with respect to his claims against the Federal
Defendants.5 Therefore, Viola’s claims against the Federal Defendant are subject to dismissal
pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.6 Moreover, as discussed
below, even assuming arguendo that this Court did possess subject matter jurisdiction over the instant
action, the Court finds that the Federal Defendants would be subject to dismissal pursuant to Fed. R.

Civ. P. 12(b)(5) for insufficient service of process.
2. Insufficient Service of Process
The Federal Defendants next argue that Viola’s attempts at service fail to comply with Fed.
R. Civ. P. 4(i) because Viola failed to either (1) timely serve a properly-issued summons on
Defendants Herdman, Bennett, Dettelbach, Siegel, Irwin or Moustakas; or (2) serve the Attorney
General of the United States. (Doc. No. 30-1 at p. 10-11.) The Federal Defendants further assert that
Viola has failed to establish good cause for the deficient service. (Id.) Viola fails to address this
issue in his Consolidated Brief in Opposition. (Doc. No. 37.)
As the Sixth Circuit has noted, the requirement of proper service of process “is not some
mindless technicality.” Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991). See also

5 The Court notes that Viola has not argued that 28 C.F.R. §§ 45.11, 45.12, the United States Attorneys’ Manual, or the
ORPC constitute a waiver of sovereign immunity. Even if he had raised such an argument, it would be without merit.
Viola has cited no authority (and the Court is aware of none) that the above regulations, manual, or rules of professional
responsibility constitute waivers of sovereign immunity. In addition, Viola’s references in his Consolidated Brief in
Opposition to 28 U.S.C. § 530(B)(a) and the Jencks Act, 18 U.S.C. § 3500 are unavailing. Even assuming arguendo that
either of these statutes could be considered to constitute a waiver of sovereign immunity (a position for which Viola cites
no authority), Viola failed to plead either of these statutes in his First Amended Complaint.

6 Although Viola describes alleged violations of Brady, Napue, and Massiah in the Amended Complaint, he does not
argue that that he has plead any civil rights claims against the Federal Defendants for alleged violations of his
constitutional rights during his federal criminal trial. Upon review, the Court finds that, even construing the pro se
Amended Complaint liberally, it does not allege any such claims.
26
Federal Trade Commission v. Repair All PC, LLC, 2017 WL 2362946 at * 2 (N.D. Ohio May 31,
2017). Rather, service of a summons and complaint “must meet constitutional due process and the
requirements of the federal rules in order for jurisdiction to exist over a defendant.” Federal Trade
Commission, 2017 WL 2362946 at * 2.
Federal Rule of Civil Procedure 4(i) sets forth the requirements for perfecting service on the
United States, as follows:

(i) Serving the United States and Its Agencies, Corporations, Officers, or
Employees.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought--or to an assistant United
States attorney or clerical employee whom the United States attorney designates
in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk
at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General
of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United
States, send a copy of each by registered or certified mail to the agency or
officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve
a United States agency or corporation, or a United States officer or employee sued
only in an official capacity, a party must serve the United States and also send a copy
of the summons and of the complaint by registered or certified mail to the agency,
corporation, officer, or employee.

Fed. R. Civ. P. 4(i). Rule 4(i)(4) further provides that “[t]he court must allow a party a reasonable
time to cure its failure to . . . serve a person required to be served under Rule 4(i)(2) if the party has
27
served either the United States attorney or the Attorney General of the United States.” Fed. R. Civ.
P. 4(i)(4).
Also relevant is Rule 4(m), which provides for the time limit for service as follows:
(m) Time Limit for Service. If a defendant is not served within 90 days after the
complaint is filed, the court – on motion or on its own after notice to the plaintiff –
must dismiss the action without prejudice against that defendant or order that service
must be made within a specified time. But if the plaintiff shows good cause for the
failure, the court must extend the time for service for an appropriate period.

Fed. R. Civ. P. 4(m). Rule 4(m) requires a court to undertake a two-part analysis. First, the court
must determine whether the plaintiff has shown good cause for the failure to effect service. Stewart
v. Tennessee Valley Authority, 2000 WL 1785749 at *1 (6th Cir. 2000). If the plaintiff establishes
good cause, the court must “extend the time for service for an appropriate period.” Fed. R. Civ. P.
4(m). See also Salem v. City of Akron, 2020 WL 1233953 at * 2-3 (N.D. Ohio March 13, 2020);
Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D. Ohio Mar. 29, 2016). Second, if the
plaintiff is unable to establish good cause, the court must either (1) dismiss the action without
prejudice, or (2) direct that service be perfected within a specified time. Stewart, 2000 WL 1785749
at *1. See also Terrell v. Tallman, 2018 WL 7077920 at * 2 (N.D. Ohio Sept. 20, 2018), adopted by,
2019 WL 26632 (N.D. Ohio Jan. 18, 2019); Workman v. University of Akron, 2017 WL 1113332 at
*1 (N.D. Ohio Mar. 24, 2017); Tanksley v. Tennessee Valley Authority, 2017 WL 6391473 at *3 (E.D.
Tenn. Dec. 14, 2017).
Plaintiff bears the burden of establishing good cause, which “necessitates a demonstration of
why service was not made within the time constraints.” Nafziger v. McDermott Intern., Inc., 467
F.3d 514, 521 (6th Cir. 2006) (quoting Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir.
1994)). Generally, “good cause” means “a reasonable, diligent effort to timely effect service of
28
process.” Pearison v. Pinkerton's Inc., 90 Fed. Appx 811, 813 (6th Cir. 2004). See also Johnson v.
Smith, --- Fed. Appx. ---, 2021 WL 289316 at * 1 (6th Cir. Jan. 28, 2021). The Sixth Circuit has also
suggested that a plaintiff may meet this burden by offering an explanation equivalent to “at least as
much as would be required to show excusable neglect,” though “simple inadvertence or mistake of
counsel or ignorance of the rules usually does not suffice.” Moncrief v. Stone, 961 F.2d 595, 597 (6th
Cir. 1992) (quoting Winters v. Teledyne Movable Offshore, Inc., 776 F.2d 1304, 1305 (5th Cir. 1985)).

Finally, some courts have found that “extraordinary circumstances may give rise to good cause
excusing untimely service.” Powell v. Med. Dep't Cuyahoga Cty. Corr. Ctr., 2018 WL 3241243 at
*2 (N.D. Ohio July 3, 2018) (citing Habib, 15 F.3d at 73 (finding good cause where a seriously ill
pro se plaintiff made a good faith effort to perfect service)).
The Court first considers whether Viola has properly served the Federal Defendants under
Rule 4(i). As applied to the instant case, that Rule required Viola to perfect service upon each of the
Federal Defendants, the United States Attorney for the Northern District of Ohio, and the Attorney
General of the United States.
The record reflects the following. The Complaint in this matter was originally filed on March
30, 2020. On May 28, 2020, the United States Attorney’s Office for the Northern District of Ohio

received a summons for Defendants Herdman and Bennett. (Doc. No. 15-1.) This summons was not
signed by the Clerk and did not bear the Court’s seal, as required by Fed. R. Civ. P. 4(a)(1)(F) & (G).
In addition, on June 3, 2020, Defendant Dettelbach received a summons at his current business
address in downtown Cleveland. (Doc. No. 15-2.) The summons did not identify any specific
defendant, was not signed by the Clerk, and did not bear the Court’s seal, as required by Fed. R. Civ.

29
P. 4(a)(1)(B), (F) & (G). There is no indication on the docket that any summonses were issued for,
or served on, Defendants Irwin or Moustakas, or on the Attorney General of the United States.
On June 26, 2020, the Federal Defendants filed a “Notice of Deficient Service,” which
specifically identified the above deficiencies. (Doc. No. 15.) Viola filed a Response on July 10,
2020, in which he indicated that “the attached documents confirm the undersigned has made good
faith efforts to serve the Defendants with the complaint in this matter.” (Doc. No. 18.) Viola further

stated that “such efforts are continuing.” (Id.) Attached to Viola’s response was Notice of Lawsuit
and Request to Waive Service of Summons dated July 7, 2020, which was sent to the United States
Attorney’s Office, care of Ruchi Asher, counsel for Defendants Herdman, Bennett, Dettelbach,
Siegel, Irwin, and Moustakas. (Doc. No. 18-1 at PageID#s 172-174.)
Shortly thereafter, on July 29, 2020, Viola filed his First Amended Complaint. (Doc. No. 25.)
The following day, the Clerk’s Office issued original summons to Viola for service upon Defendants
Herdman, Bennett, Dettelbach, Siegel, Irwin, and Moustakas. (Doc. No. 26.) The summonses for
each of these Defendants were directed to the United States Attorney’s Office only. (Id.)
There is no indication on the docket of any further service activity with respect to the Federal
Defendants. Specifically, there is nothing on the docket indicating either that (1) the Federal

Defendants waived service; (2) that service was returned executed with regard to the summonses
issued on July 29, 2020; or (3) that service was attempted or returned executed on the Attorney
General of the United States.
Based on the above, the Court finds that Viola failed to perfect service on the Federal
Defendants pursuant to Fed. R. Civ. P. 4(i). The summonses received by Defendants Herdman,
Bennett, and Dettelbach in May and June 2020, respectively, did not comply with Rule 4(a) and were

30
not returned executed. In addition, there is no indication on the docket that the summonses issued to
Defendants Herdman, Bennett, Dettelbach, Siegel, Irwin and Moustakas were, in fact, served and
returned executed on the United States Attorney for the Northern District of Ohio.7 Nor is there any
indication on the docket that the Federal Defendants waived service. Further, and notably, there is
no indication on the docket that, at any point in time, Viola served (or even attempted to serve) the
Attorney General of the United States, as required by Rule 4(i)(1)(B). Finally, although he had the

opportunity to do so, Viola has not argued or demonstrated that he properly and timely perfected
service on any of the Federal Defendants. Accordingly, the Court finds that Viola has failed to perfect
service on Defendants Herdman, Bennett, Detttelbach, Siegel, Irwin, or Moustakas.
The Court next considers whether Viola has established good cause for his failure to timely
perfect service. The Federal Defendants argue that Viola has failed to establish good cause. (Doc.
No. 30-1.) Defendants note that this matter has been pending for nearly a year and argue that Viola’s
pro se status does not excuse his failure to timely perfect service. (Id.) Viola did not respond to
Defendants’ arguments on this issue. (Doc. No. 37.)
For the following reasons, the Court finds that Viola has failed to demonstrate good cause for
his failure to timely perfect service on the Federal Defendants. As noted above, this action has been

pending for over ten months. Viola has been aware for over seven (7) months that service had not
been perfected on the Federal Defendants; i.e., since the Federal Defendants filed their Notice of
Deficient Service on June 26, 2020. Moreover, although Viola was subsequently issued proper
summons for the Federal Defendants after the filing of the First Amended Complaint, the docket does

7 Pursuant to Fed. R. Civ. P. 4(l), Viola was required to file proof of service with the Court. See Fed. R. Civ. P. 4(l))
(“Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or
deputy marshal, proof must be by the server’s affidavit.”)
31
not reflects that he thereafter properly served these summonses, or that he ever served the Attorney
General for United States. Finally, Viola does not oppose Defendants’ Motion on this basis and, thus,
does not argue the existence of good cause or otherwise offer any explanation for his failure to effect
service as to these Defendants. Under the circumstances, the Court finds that Viola has failed to
demonstrate good cause.
Nor has Viola argued or demonstrated that this Court should allow him additional time to

perfect service. Notably, although having had ample opportunity to do so, Viola has not asked this
Court, in any of briefing in response to the Federal Defendants’ Motion to Dismiss, for further
opportunity to perfect service on the Federal Defendants. The Court finds no reason to sua sponte
order it under the circumstances presented. The Complaint in this matter was filed in March 2020
and Viola has been aware for at least the last seven (7) months that service was not perfected on the
Federal Defendants. In light of the above, and absent any argument to the contrary, the Court finds
that, even assuming arguendo that it had subject matter jurisdiction over the Federal Defendants,
these Defendants would be subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(5) for insufficient
service of process.
Accordingly, and for all the reasons discussed above, the Federal Defendants’ Motion to
Dismiss is granted to the extent it seeks dismissal pursuant to Fed. R. Civ. P. 12(b)(1) and (5).8

D. State Defendants
Viola names the following five State Defendants in the First Amended Complaint: (1) Ohio
Attorney General Dave Yost; (2) Assistant Attorney Generals Daniel Kasaris, Micah Ault, and

8 Because the Court lacks jurisdiction over Viola’s claims against the Federal Defendants for the reasons set forth above,
the Court cannot, and will not, reach the Federal Defendants’ arguments that Viola’s claims are subject to dismissal under
Rule 12(b)(6).
32
Heather Buchanan; and (3) former Assistant Attorney General Tiffany Carwile. (Doc. No. 25.) With
regard to Defendants Ault and Kasaris, Viola alleges that these Defendants prosecuted him “yet failed
to report misconduct throughout the criminal proceedings.” (Id. at p. 9.) Viola maintains that
Defendant Kasaris (1) failed to produce exculpatory evidence before trial; (2) intruded into Viola’s
Sixth Amendment right to counsel by instructing Ms. Pasela to “spy” on his defense team; (3)
knowingly used the perjured testimony of Ms. Clover; and (4) engaged in an inappropriate

relationship with Ms. Clover. (Id. at pp. 1-5.) Viola also claims that Defendant Kasaris improperly
threatened to prosecute him under Ohio Rev. Code § 2921.03(A) for statements that appeared on
www.freetonyviola.com. (Id. at p. 6-7.)
With regard to Defendant Yost, Viola alleges that he had “obligations as a supervisory
official[] who oversee[s] prosecutors.” (Id. at p. 10.) Viola asserts that Defendant Yost has repeatedly
been made aware of wrongdoing by Bennett and Kasaris and has an obligation to report said
misconduct “to the proper authorities, including the Department of Justice’s Office of the Inspector
General, yet ha[s] failed to follow these lawful obligations.” (Id.)
Finally, with regard to Defendants Buchanan and Carwile, Viola alleges as follows:
(8) Defendants Heather Buchanan and Tiffany Carwile have also been made aware
of improper actions by Prosecutor Kasaris but have defended his actions in court, and
utilized an unconstitutional statute in their defense. When the undersigned objected
to Kasaris' threats to prosecute the undersigned, and others, under Ohio Revised
Code 2921.03(a), Carwile and Buchanan argued that Kasaris was not acting under
color of law, but in a personal capacity, as any citizen could file a criminal
complaint or contact Facebook, Viola v. Kasaris, Case No. 2:16-1036, S.D. Ohio.
Carwile and Buchanan defended Kasaris' supposedly private actions in court at
taxpayer expense in court, despite a prohibition on the Ohio Attorney General
defending the non-official actions of employees of that office. Not only have
defendants Carwile and Buchanan used taxpayer funds to defend Kasaris' allegedly
personal actions for free, they have also failed to report his misconduct to the Ohio
Supreme Court.

33
(Id. at pp. 10-11.)
As relevant to the State Defendants, Viola asks the Court for a declaratory judgment pursuant
to 28 U.S.C. §§ 2201 and 2202 that:
a. Plaintiff has a right to demand compliance with the Code of Federal
Regulations and the Rules of Professional Conduct governing attorneys;

b. That the defendants are in breach of those lawful obligations;

c. That each and every defendant is obligated, without further delay, to report
misconduct to the proper authorities;

d. That Ohio Revised Code § 2921.03(A) is unconstitutional; and

e. That Prosecutor Kasaris was not entitled to taxpayer funded legal services by
the Ohio Attorney General’s Office for his purportedly private actions.

(Id. at p. 11.) Viola does not seek either monetary damages or injunctive relief.
The Court will address each of Viola’s claims in turn, below.
1. Alleged Duty to Report Misconduct
Viola first seeks a declaratory judgment that each of the State Defendants have ongoing duties
under federal and state law to report the alleged misconduct described in the First Amended
Complaint. In their Motion to Dismiss, the State Defendants argue that Viola fails to state a claim
with regard to any alleged reporting duties under the Code of Federal Regulations because such
regulations do not apply to the State Defendants or otherwise provide a private cause of action. (Doc.
No. 34 at p. 1, 6-7.) The State Defendants next assert that this Court lacks jurisdiction over Viola’s
claim regarding the State Defendants’ alleged reporting obligations under the Ohio Rules of
Professional Conduct because the Ohio Supreme Court has exclusive jurisdiction over any such
claims. (Id. at pp. 10-11.) Finally, the State Defendants maintain generally that any state claims that
could be construed as being plead in the First Amended Complaint are barred by the Eleventh
34
Amendment because the State of Ohio has not waived immunity to any such claims. (Id. at pp. 11-
12.)
Viola does not specifically respond to any of the above legal arguments in his Consolidated
Brief in Opposition. (Doc. No. 37.)
a. Alleged Duties under Federal Law
For the following reasons, the Court finds Viola’s claims regarding the State Defendants’

alleged reporting obligations under 28 C.F.R. §§ 45.11 and 45.12 are subject to dismissal for failure
to state a claim as a matter of law. Section 45.11, entitled “Reporting to the Office of Inspector
General,” provides as follows:
Department of Justice employees have a duty to, and shall, report to the Department
of Justice Office of the Inspector General, or to their supervisor or their component's
internal affairs office for referral to the Office of the Inspector General:

(a) Any allegation of waste, fraud, or abuse in a Department program or activity;

(b) Any allegation of criminal or serious administrative misconduct on the part of a
Department employee (except those allegations of misconduct that are required to be
reported to the Department of Justice Office of Professional Responsibility pursuant
to § 45.12); and

(c) Any investigation of allegations of criminal misconduct against any Department
employee.

28 C.F.R. 45.11 (emphasis added). Section 45.12, entitled “Reporting to the Department of Justice
Office of Professional Responsibility,” provides:
Department employees have a duty to, and shall, report to the Department of Justice
Office of Professional Responsibility (DOJ–OPR), or to their supervisor, or their
component's internal affairs office for referral to DOJ–OPR, any allegations of
misconduct by a Department attorney that relate to the exercise of the attorney's
authority to investigate, litigate or provide legal advice, as well as allegations of
misconduct by law enforcement personnel when such allegations are related to
allegations of attorney misconduct within the jurisdiction of DOJ–OPR.

35
28 C.F.R. § 45.12 (emphasis added). The Court finds that, by their very terms, 28 C.F.R. §§ 45.11
and 45.12 apply only to Department of Justice (“DOJ”) employees. As the Ohio Attorney General,
Defendant Yost is not a DOJ employee and, therefore, is not subject to these regulations. Nor are
State Defendants Kasaris, Ault, Buchanan, and Carwile, each of whom currently serve as Assistant
Attorney Generals for the State of Ohio. Moreover, there are no allegations in the First Amended
Complaint that Defendants Yost, Kasaris, Buchanan, or Carwile ever served, at any point in time, as
employees of the United States Department of Justice.9

Thus, Viola’s request for a declaratory judgment that the State Defendants had a duty to report
misconduct under 28 C.F.R. §§ 45.11 and 45.12 fails as a matter of law.10 The State Defendants’
Motion to Dismiss this claim is granted.
b. Alleged Duties under the ORPC
Viola also seeks a declaratory judgment regarding the State Defendants’ alleged violation of
their duties under the Ohio Rules of Professional Conduct. The Court agrees with the State
Defendants that this claim is subject to dismissal as a matter of law because “jurisdiction to rule on
alleged disciplinary violations lies exclusively with the Ohio Supreme Court.” See, e.g., Rodojev v.
Sound Com Corp., 2010 WL 5811886 at * 6 (N.D. Ohio Dec. 30, 2010) (finding that “jurisdiction to

rule on alleged disciplinary violations lies exclusively with the Ohio Supreme Court.”), adopted by,

9 As noted supra, Viola alleges that Defendant Ault (who is currently a State Assistant Attorney General) was one of the
AUSAs that prosecuted his federal criminal case. To the extent Viola’s claims against Defendant Ault relate to the time
period when he was employed by the Department of Justice, they are subject to dismissal for the reasons discussed in
connection with the Federal Defendants, supra.

10 Further, Viola cites no authority (and the Court is not aware of any) that either ABA “Formal Opinion 14-467” or
“National Prosecution Standard 1-1.6” create legally enforceable duties on the State Defendants under the circumstances
presented herein. Therefore, to the extent that Viola requests a declaratory judgment that the State Defendants had a duty
to report misconduct under either of these sources, any such claims likewise fail as a matter of law.
36
2011 WL 589059 (N.D. Ohio Feb. 10, 2011). See also Fred Siegel Co. v. Arter & Hadden, 85 Ohio
St.3d 171, 178 (1999) (stating that “the power to determine violations of the Disciplinary Rules is
reserved to this court.”); Fitzwater v. Woodruff, 2006 WL 3833972 at *3 (Ohio Ct. App. Dec. 28,
2006). In addition, both the Sixth Circuit and the Ohio Supreme Court have held that the Ohio Rules
of Professional Conduct do not create a private cause of action. See, e.g., Kafele v. Frank &
Wooldridge Co., 108 Fed. Appx. 307, 309 (6th Cir. 2004); Fred Siegel Co., L.P.A., 85 Ohio St.3d at

178. See also Lloyd v. Pokorny, 2020 WL 5366109 at * 3 (S.D. Ohio Sept. 8, 2020).
Accordingly, Viola’s request for a declaratory judgment that the State Defendants had a duty
to report misconduct under the Ohio Rules of Professional Conduct fails as a matter of law. The State
Defendants’ Motion to Dismiss this claim is granted.
2. Use of Taxpayer Money to Defendant Kasaris
Viola also requests a declaratory judgment that “Prosecutor Kasaris was not entitled to
taxpayer funded legal services by the Ohio Attorney General’s Office for his purportedly private
actions.” (Doc. No. 25 at p. 11.) This claim is in reference to an action filed by Viola against
Defendant Kasaris in 2016 in the Southern District of Ohio (hereinafter “the Southern District of Ohio
lawsuit”). See Viola v. Kasaris, Case No. 2:16-cv-1036 (S.D. Ohio). In that case, Viola alleged a

claim under 42 U.S.C. § 1983 that Kasaris violated Viola’s freedom of speech when he sent Viola a
letter instructing him to remove any references to Kasaris and/or his family from Viola’s
www.freetonyviola.com website. See Viola v. Kasaris, 2017 WL 735588 at * 1 (S.D. Ohio Feb. 24,
2017) (Kemp, M.J.) In that letter, Kasaris advised Viola that his conduct could constitute a violation
of Ohio Rev. Code § 2921.03(A) and that the failure to remove offending material from his website
“may result in the initiation of a complaint against you for violation of the above statute which is a

37
felony of the third degree per occurrence, with the appropriate law enforcement agency.” Id. Viola
sought a “declaration that Mr. Kasaris’s actions are unconstitutional, and an order enjoining Mr.
Kasaris from further threatening to prosecute either Mr. Viola or others who have assisted with the
website.” Id. at *2.
State Defendants Buchanan and Carwile herein, represented Kasaris in that lawsuit. Among
other things, Buchanan and Carwile argued (on Kasaris’s behalf) that Viola’s § 1983 claim failed as

a matter of law because the letter in question was written by Kasaris in his capacity as a private
citizen, and not as a government official, and therefore he was not a “state actor,” a prerequisite for
§ 1983 liability. Id. at * 6. A Magistrate Judge issued a Report & Recommendation in which he
agreed with Kasaris, finding as follows:
[T]he Court concludes that when Mr. Kasaris wrote the letter in question, he was
acting as a private citizen—or, more precisely stated, that Mr. Viola has not plausibly
alleged the opposite scenario. Here, unlike the defendants in either Teta v. Packard
or Smith v. Avent, Mr. Kasaris did not even file a criminal complaint; he merely
suggested that he had grounds to do so if he wished. The complaint does not allege
any facts supporting the inference that Mr. Kasaris was more able than the average
citizen to follow through with filing a criminal complaint just because of his
governmental positions. The nature of the act he performed, or threatened to perform,
is, as Johnson v. Miller observed, quintessentially a private act. Absent some plausible
and well-pleaded facts which would distinguish this case from the routine situation
where one private citizen threatens to file a complaint against another, the complaint
simply does not satisfy the pleading requirements for a First Amendment or § 1983
claim. Because that is so, Mr. Kasaris' motion to dismiss under Rule 12(b)(6) must be
granted.

Id. at * 7. Viola subsequently filed Objections. On March 27, 2017, the District Court agreed with
the Magistrate Judge and overruled Viola’s Objections, as follows:
Plaintiff raises multiple objections to the Magistrate Judge's Report and
Recommendation, most of which are based on his argument that Defendant Kasaris is
currently a prosecuting attorney with the Cuyahoga County Prosecutor's Office.
However, as set forth in detail in the record, Mr. Kasaris left the prosecutor's office in
August 2013 and he joined the Ohio Attorney General's Office. Despite Plaintiff
38
submitting a Linked In profile, this is not sufficient evidence and the Court agrees with
the reasoning and conclusions of the Magistrate Judge in the Report and
Recommendation that Defendant was not a prosecutor when he sent the letter in
question to Plaintiff, it was not on any official stationary, nor signed as any official
capacity. Rather, Defendant was merely acting as a private citizen concerned for his
family.

The Magistrate Judge concluded, and the Court agrees, that Plaintiff's Complaint fails
to state a claim under the First Amendment or § 1983 because he has not sufficiently
alleged any state action. Therefore, for the reasons stated in the Report and
Recommendation, this Court finds that Plaintiff's objections are without merit and are
hereby OVERRULED.

Viola v. Kasaris, 2017 WL 1154190 at * 1 (S.D. Ohio) (Smith, J.)
In the instant case, Viola seeks a declaration that it was improper for Defendants Buchanan
and Carwile to represent Kasaris, at taxpayer expense, in the Southern District of Ohio lawsuit in
light of their argument in that case that Kasaris was acting in his private capacity as a citizen when
he sent the letter in question to Viola. (Doc. No. 25 at p. 11.) For the following reasons, the Court
finds this claim is barred by the Eleventh Amendment.
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens of Subjects of any Foreign State.

U.S. Const. amend. XI. Eleventh Amendment immunity extends to suits brought by citizens against
their own states. See, e.g., Ladd v. Marchbanks, 971 F.3d 574, 578 (6th Cir. 2020). It also extends to
suits against state agencies or departments, as well as to “suit[s] against state officials when ‘the state
is the real, substantial party in interest.’” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100-101 (1984) (citations omitted). As the United States Supreme Court has explained, a suit against
a State, a state agency or its department, or a state official is in fact a suit against the State and is
barred “regardless of the nature of the relief sought.” Id. at 100-02 (citations omitted). See also
39
McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) (“Eleventh Amendment immunity
‘bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its
departments, by citizens of another state, foreigners or its own citizens.’”) (quoting Thiokol Corp. v.
Dep't of Treasury, 987 F.2d 376, 381 (6th Cir.1993) (internal citations omitted)).
It is well-established, however, that there are three exceptions to Eleventh Amendment
immunity: (1) congressional abrogation; (2) waiver by the State; and (3) “a suit against a state official

seeking prospective injunctive relief to end a continuing violation of federal law.” See Carten v. Kent
State Univ., 282 F.3d 391, 398 (6th Cir. 2002) (citations omitted). See also Kovacevich v. Kent State
Univ., 224 F.3d 806, 817 (6th Cir.2000). Under the third exception (which is referred to as the Ex
Parte Young exception), a federal court can issue prospective injunctive and declaratory relief
compelling a state official to comply with federal law, regardless of whether compliance might have
an ancillary effect on the state treasury. See S&M Brands v. Cooper, 527 F.3d 500, 507 (6th Cir.
2008). The Ex Parte Young exception does not, however, extend to injunctive or declaratory relief
compelling a state official to comply with state law. See Diaz v. Mich. Dep't of Corr., 703 F.3d 956,
964 (6th Cir. 2013) (“In order to fall within the Ex Parte Young exception, a claim must seek
prospective relief to end a continuing violation of federal law.”) Nor does it apply to any retroactive

relief. See S&M Brand, 527 F.3d at 507 (citing Quern v. Jordan, 440 U.S. 332, 338 (1979)).
For the following reasons, the Court finds that Viola’s claim is barred by the Eleventh
Amendment. As an initial matter, the Court concludes (as it did with regard to Viola’s claims against
the Federal Defendants) that Viola has sued the State Defendants in their official capacities only. The
First Amended Complaint identifies the State Defendants by their official titles and the only
allegations against these Defendants concern actions taken in their official capacities. Additionally,

40
the First Amended Complaint specifically references the State Defendants’ alleged obligations “in
their professional capacities” and does not, at any point, make any reference to the Defendants’
alleged conduct or obligations in their individual capacities. Finally, Viola’s claim relates solely to
the State Defendants’ decision to represent Defendant Kasaris in federal litigation, a decision that
cannot plausibly be construed to be against any of the State Defendants in their individual capacities.
Thus, the Court finds that Viola has sued the State Defendants in their official capacities and

Eleventh Amendment immunity applies. See, e.g., Smith v. DeWine, 476 F.Supp.3d 635, 650 (S.D.
Ohio 2020) (finding that Eleventh Amendment immunity extends to state officials sued in their
official capacities). See also Heike v. Guevara, 654 F.Supp.2d 658, 671 (E.D. Mich. 2009) (stating
that “sovereign immunity bars suits in federal court against state officials acting in their official
capacity for violations of state law, regardless of the relief sought.”)
The Court further finds that Viola has not demonstrated that an exception to immunity applies.
With regard to the first and second exceptions, Viola has neither argued nor demonstrated that the
State of Ohio has consented to be sued or that Congress has abrogated immunity with regard to the
particular claim at issue herein. Nor has Viola argued or demonstrated that the Ex Parte Young
exception applies. And, indeed, he could not because, as discussed above, the Ex Parte Young

exception applies only to claims for prospective injunctive or declaratory relief compelling a state
official to comply with federal law. Here, Viola seeks a declaration that the State Defendants’ past
decision to expend taxpayer resources to defendant Kasaris in a 2016 lawsuit violated state law. This
claim clearly does not fall within the Ex Parte Young exception.
To the contrary, Viola asks this Court to find that State Defendants Buchanan and Carwile,
acting in their official capacities as Assistant Attorney Generals for the State of Ohio, violated state

41
law by representing Kasaris in the Southern District of Ohio litigation. Both the United States
Supreme Court and the Sixth Circuit have held that “a claim that state officials violated state law in
carrying out their official responsibilities is a claim against the [s]tate that is protected by the Eleventh
Amendment.” Pennhurst State Sch. & Hosp, 465 U.S. at 121. See also In re Ohio Execution Protocol,
709 Fed. Appx. 779, 781 (6th Cir. 2017) (“If the plaintiff sues a state official under state law in federal
court for actions taken within the scope of his authority, sovereign immunity bars the lawsuit

regardless of whether the action seeks monetary or injunctive relief.”). Viola’s claim is clearly barred
by the Eleventh Amendment.
Accordingly, the State Defendants’ Motion to Dismiss Viola’ request for a declaratory
judgment that Defendant Kasaris “was not entitled to taxpayer funded legal services by the Ohio
Attorney’s General Office” is granted.
3. Constitutionality of Ohio Rev. Code § 2921.03(A)
Finally, Viola seeks a declaration that Ohio Revised Code § 2921.03(A)11 is unconstitutional.
(Doc. No. 25 at p. 13.) The State Defendants move to dismiss this claim on several grounds. (Doc.
No. 34 at pp. 7-10.) First, the State Defendants argue that Viola’s declaratory judgment claim fails
because “[i]t is well-settled that the sole mechanism for seeking and obtaining relief under the First

Amendment is by alleging a claim under 42 U.S.C. § 1983.” (Id. at p. 7.) Defendants argue that
Viola failed to bring his First Amendment claim under 42 U.S.C. § 1983 (or otherwise cite Section

11 Ohio Revised Code § 2921.03(A) provides as follows: “No person, knowingly and by force, by unlawful threat of harm
to any person or property, or by filing, recording, or otherwise using a materially false or fraudulent writing with malicious
purpose, in bad faith, or in a wanton or reckless manner, shall attempt to influence, intimidate, or hinder a public servant,
party official, or witness in the discharge of the person's duty.” The statute further states that “[w]hoever violates this
section is guilty of intimidation, a felony of the third degree.” Ohio Rev. Code § 2921.03(B).
42
1983 at any point in the First Amended Complaint) and, therefore, this claim fails as a matter of law.
(Id. at pp. 7-8.)
Second, the State Defendants argue that, even if Viola had stated a claim under Section 1983,
it would still fail as a matter of law because numerous Ohio Courts of Appeals have already found
that Ohio Rev. Code § 2921.03(A) is neither unconstitutionally vague nor overbroad. (Id. at p. 9)
(citing State v. Kinstle, 985 N.E.2d 184, 191-193 (Ohio App. 3rd Dist. 2012); State v. Baumgartner,

2009 WL 344988 at * 5-7 (Ohio App. 8th Dist. Feb. 12, 2009); State v Haskell, 2004 WL 1433576
at * 5 (Ohio App. 3rd Dist. June 28, 2004); State v. Roten, 776 N.E.2d 551, 556-557 (Ohio App. 12th
Dist. 2002). The State Defendants maintain that this Court is bound by and must defer to these state
court decisions as a matter of law. (Id. at p. 9.)
Third, Defendants argue that Ohio Rev. Code § 2921.03(A) is not unconstitutionally vague
because the statutory language “contains nothing other than common words that are understood by
ordinary Ohioans.” (Id. at p. 10.) Defendants further assert that “the statute is not overbroad as it
specifically regulates speech-related conduct that is done with a specific intent to intimidate,
influence, or hinder a public servant” and, therefore, “does not reach a ‘substantial’ amount of
protected speech, if any.” (Id.)

Viola does not address any of the above arguments in his Consolidated Brief in Opposition.
(Doc. No. 37.) Nor does Viola otherwise, in any of his various motions and briefs, offer any
responsive argument or legal authority opposing the State Defendants’ arguments that (1) Section
1983 is the exclusive vehicle for raising his constitutional challenge to Ohio Rev. Code § 2921.03(A);
(2) the First Amended Complaint fails to state a claim under Section 1983; (3) this Court must defer

43
to state appellate court decisions that have found Ohio Rev. Code § 2921.03(A) constitutional; or (4)
that Section 2921.03(A) is neither unconstitutionally vague or overbroad.
Based upon Viola's complete failure to respond to any of these arguments, Viola is deemed
to have abandoned and/or waived his claim for a declaratory judgment that Ohio Rev. Code §
2921.03(A) is unconstitutional. See Weatherby v. Fed. Express, 454 Fed. Appx. 480, 490 (6th Cir.
2012) (noting that “[t]hough this court provides some leeway to pro se litigants, Plaintiff must ...

make some effort at argumentation or presentation of facts” and absent such effort, plaintiff's claims
are deemed waived); Humphrey v. U.S. Attorney General's Office, 279 Fed. Appx 328, 331 (6th Cir.
2008) (finding that a plaintiff's failure to oppose arguments raised in the defendants' motion to dismiss
is grounds for the district court to assume that opposition to the motion is waived); Scott v. State of
Tennessee, 1989 WL 72470 at *2 (6th Cir.1989) (noting that “if a plaintiff fails to respond or to
otherwise oppose a defendant's motion [to dismiss], then the district court may deem the plaintiff to
have waived opposition to the motion.”). See also Selou v. Integrity Solution Services, Inc., 2016
WL 612756 at * 3 (E.D. Mich. Feb. 16, 2016) (“Plaintiff's failure to address any claim but her TCPA
claim in response to LiveVox's motion to dismiss is cause for dismissing those claims.”); Ullmo v.
Ohio Turnpike, 126 F.Supp.3d 910, 919 (N.D. Ohio 2015) (finding that plaintiff abandoned claim

where he failed to respond to defendant’s motion to dismiss); Dykema Excavators, Inc. v. Blue Cross
of Blue Shield of Michigan, 77 F.Supp.3d 646, 659 (E.D. Mich. 2015) (“[T]hese claims are subject to
dismissal because the plaintiffs do not address or even mention them in their response to the motion
to dismiss, and it appears that they therefore have abandoned them and now intend to make no effort
to proceed upon them.”)
Accordingly, the State Defendants’ Motion to Dismiss this claim is granted.

44
E. Defendant O’Malley
With regard to Defendant Cuyahoga County Prosecutor Michael O’Malley, the First
Amended Complaint alleges as follows:
(4) Defendant Michael O'Malley campaigned for election as prosecutor as a reformer,
and the Prosecutor's web site states that "Prosecutor Michael C. O'Malley took
office on January 3, 2017, with a bold and comprehensive plan to restore the public's
confidence by: 1) ensuring justice is sought fairly and impartially by instituting justice
reforms; 2) building bridges in the community to keep our neighborhoods, families
and children safe; and 3) providing leadership within the Prosecutor's Office and its
justice system partners," http://prosecutor.cuyahogacounty.us/en-us/meet-the-
prosecutor.aspx. Nevertheless, Prosecutor O'Malley has refused to investigate
wrongdoing by his colleague, Mr. Kasaris, or look into the death of Ms. Pasela. Mr.
O'Malley, the great reformer, has also enabled misconduct by failing to produce voice
recordings made by Ms. Pasela and by allowing his office to be utilized as a location
where federal prosecutors can stash exculpatory evidence.

(5) Defendants O'Malley, Dave Yost, Steven Dettelbach and Justin Herdman all have
or had obligations as supervisory officials who oversee prosecutors. These individuals
have been repeatedly made aware of the wrongdoing by Bennett and Kasaris described
herein and have [an] obligation to immediately report misconduct to the proper
authorities, including the Department of Justice's Office of the Inspector General, yet
have failed to follow these lawful obligations. ***

(Doc. No. 25 at p. 10.) Viola further alleges that, in his supervisory capacity over county prosecutors,
Defendant O’Malley had a responsibility to report the alleged misconduct of Defendants Bennett and
Kasaris, pursuant to (1) 28 C.F.R. §§ 45.11 and 45.12; (2) the “American Bar Association Committee
on Ethics and Professional Responsibility Formal Opinion 14-467 (2014);” and (3) “National
Prosecution Standard 1-1.6 ‘Duty to Report Misconduct,’ National District Attorney’s Association.”
(Id. at p. 12.)
In addition, as an Exhibit to the First Amended Complaint, Viola attaches a letter dated
February 17, 2017 from Cuyahoga County Court of Common Pleas Judge Daniel Gaul to Viola.
(Doc. No. 25-4.) Therein, Judge Gaul expresses his “regret on [Viola’s] continued incarceration” on
45
his federal conviction. (Id.) Judge Gaul then states as follows: “I am writing to inform you that there
is a newly elected Cuyahoga County Prosecutor. His name is Mike O’Malley. His office may be
willing to take a fresh look at Daniel Kasaris’ misconduct in your case. If Kasaris participated in
your federal case, O’Malley’s office may be able to intervene, or at least support a post-release
remedy before Judge Nugent.” (Id.)
In his Motion to Dismiss, Defendant O’Malley argues that Viola does not state a plausible

claim against him because he (i.e., O’Malley) was not, and could not, have been involved in either
Viola’s state or federal court prosecutions. (Doc. No. 31 at pp. 7-8.) Defendant O’Malley notes that
he became the Cuyahoga County Prosecutor years after Viola’s criminal cases were prosecuted and
asserts that “[a]side from Judge Gaul’s letter to Plaintiff more than five years after his federal
conviction, Plaintiff fails to provide even an inkling as to why O’Malley’s name has ever come up in
the context of Plaintiff’s criminal cases.” (Id. at p. 8.) Defendant O’Malley further notes that Viola’s
state court prosecution did not lead to a conviction and argues that Viola has failed to set forth any
allegations that O’Malley was in any way involved in the federal prosecution that led to conviction
and incarceration. (Id.) Finally, Defendant O’Malley asserts that (1) the reporting requirements set
forth in 28 C.F.R. §§ 45.11 and 45.12 do not apply to him; and (2) this Court lacks jurisdiction to

determine whether he complied with the Ohio Rules of Professional Conduct. (Id. at pp. 8-9.)
In his Consolidated Brief in Opposition, Viola argues only that “[c]ounsel for the Cuyahoga
County Prosecutor, Mike O’Malley, pleads ignorance to emails in its own records system about the

46
improper relationship between Clover and Kasaris.”12 (Doc. No. 37 at p. 3.) Viola does not offer
any further response to Defendant O’Malley’s Motion. (Id.)
For the following reasons, the Court finds that the First Amended Complaint fails to state a
plausible claim for relief against Defendant O’Malley. As an initial matter, Viola fails to plead
sufficient factual matter to plausibly allege that Defendant O’Malley had any involvement in, or
knowledge regarding, either Viola’s state or federal criminal cases, such that a duty for him to report

alleged misconduct would arise. Viola himself acknowledges that Defendant O’Malley did not take
office as Cuyahoga County Prosecutor until January 2017, over five years after his federal conviction
and over four years after his acquittal in state court. Further, while Viola alleges that O’Malley
“enabled misconduct” by “allowing his office to be utilized as a location where federal prosecutors
can stash exculpatory evidence,” he fails to allege any plausible facts to support this allegation in
light of the fact that O’Malley was not the Cuyahoga County Prosecutor at the time of Viola’s federal
or state prosecutions. Nor does Viola plead any other facts indicating that Defendant O’Malley
otherwise had any knowledge or involvement in Viola’s federal or state prosecutions that would have
triggered a duty for him to report misconduct relating thereto. Even under the less stringent pleading
standards afforded pro se litigants, the First Amended Complaint herein is wholly insufficient.

Moreover, even assuming arguendo that Viola had plead sufficient facts to suggest that
Defendant O’Malley had knowledge of alleged misconduct relating to his state and/or federal
prosecutions, the Court finds such claims would nonetheless be subject to dismissal for failure to state
a claim as a matter of law. As discussed above, by their very terms, 28 C.F.R. §§ 45.11 and 45.12

12 Viola then directs the Court’s attention to a series of emails (attached as exhibits to the Consolidated Brief in
Opposition) allegedly between Defendant Kasaris and Ms. Clover. As discussed at length supra, the Court will not
consider these emails in the context of resolving Defendant O’Malley’s Motion to Dismiss.
47
apply only to Department of Justice employees. As the Cuyahoga County Prosecutor, Defendant
O’Malley was not subject to these regulations. Moreover, there is no allegation in the First Amended
Complaint that Defendant O’Malley has ever served, at any point in time, as an employee of the
United States Department of Justice. Thus, Viola’s request for a declaratory judgment that Defendant
O’Malley had a duty to report misconduct under 28 C.F.R, §§ 45.11 and 45.12 fails as a matter of
law.

Further, Viola cites no authority (and the Court is not aware of any) that either ABA “Formal
Opinion 14-467” or “National Prosecution Standard 1-1.6” create legally enforceable duties on
Defendant O’Malley under the circumstances presented herein. Therefore, Viola’s request for a
declaratory judgment that Defendant O’Malley had a duty to report misconduct under either of these
sources likewise fails as a matter of law.
Finally, to the extent Viola seeks a declaratory judgment regarding Defendant O’Malley’s
alleged violation of his duties under the Ohio Rules of Professional Conduct, this claim is subject to
dismissal as a matter of law because, as noted above, “jurisdiction to rule on alleged disciplinary
violations lies exclusively with the Ohio Supreme Court.” See, e.g., Rodojev, 2010 WL 5811886 at
* 6; Fred Siegel Co., 85 Ohio St.3d at 178; Fitzwater, 2006 WL 3833972 at *3. See also Kafele, 108

Fed. Appx. at 309 (finding that the ORPC does not create a private cause of action); Fred Siegel Co.,
L.P.A., 85 Ohio St.3d at 178 (same); Lloyd, 2020 WL 5366109 at * 3 (same).
Accordingly, and for all the reasons set forth above, Defendant O’Malley’s Motion to Dismiss
(Doc. No. 31) is granted.
F. Defendant Sidoti
With regard to Defendant Marcus Sidoti, the First Amended Complaint alleges as follows:

48
Defendant Marcus Sidoti contacted the undersigned in federal prison on an unsolicited
basis stating that his client Lucas Fairfield saw Prosecutor Kasaris at a Cleveland
Indians game with Kathryn Clover. Mr. Sidoti also stated, on a recorded phone call,
that Prosecutor Kasaris and Ms. Clover frequently left the prosecutor's office to head
to local hotels for sexual trysts, then returned to the office to continue working on
cases together, indicting more innocent people, but Defendant Sidoti never reported
this information to the Ohio Supreme Court.

(Doc. No. 25 at p. 10.) See also Doc. No. 25 at p. 4. Viola alleges generally that “defendants” are
required to report misconduct under 28 C.F.R. §§ 45.11 and 45.12, ABA “Formal Opinion 14-467”
and “National Prosecution Standard 1-1.6.” (Id. at p. 12.) He further alleges that “[d]efense attorney[]
Sidoti . . . [was] also under an obligation to report the use of perjured testimony and information
concerning the improper personal relationship between Prosecutor Kasaris and Kathryn Clover to the
Ohio Supreme Court.” (Id.)
In his Motion to Dismiss, Defendant Sidoti states that he “was never directly or collaterally
involved in the representation of the Plaintiff, any co-conspirators, counsel for either prosecution or
anyone involved or identified in the Plaintiff’s federal or state cases.” (Doc. No. 52 at p. 2.) He
further claims that “Lucas Fairfield, as addressed on page 10 ¶ 3 of the amended complaint, has never
been a client of the undersigned or anyone in his office.” (Id.) With regard to any alleged obligation
to report misconduct, Defendant Sidoti argues that he “was not involved in any way in any of the
criminal proceedings of the Plaintiff, and therefore has no knowledge of any testimony of either trial
against Plaintiff by anyone.” (Id.)
In response, Viola asserts that state court records show that Defendant Sidoti represented
Lucas Fairfield’s brother, Matthew Fairfield. (Doc. No. 54.) Viola alleges that Matthew Fairfield
was married to Kathryn Clover and testified at Viola’s trial. (Id.) Viola then states that: “Matt
Fairfield was granted judicial release from state prison after Mr. Sidoti informed Judge Nancy Russo
49
about the affair between Kasaris and Clover. Finally, Mr. Sidoti contacted [Viola] on an unsolicited
basis in prison – and a recording of the call can be made available on request—where Sidoti claimed
Prosecutor Kasaris and government witness Kathryn Clover left the prosecutor’s office to engage in
sexual relations.” (Id.)
Even assuming arguendo that Viola has plead sufficient facts to suggest that Defendant Sidoti
had personal knowledge of alleged misconduct relating to his state and/or federal prosecutions, the

Court finds such claims are subject to dismissal for failure to state a claim as a matter of law. To the
extent Viola claims that Defendant Sidoti had a duty to report misconduct under 28 C.F.R. §§ 45.11
and 45.12, any such claim fails because Viola has not plausibly alleged that Defendant Sidoti is (or
ever was) an employee of the Department of Justice. Moreover, to the extent Viola seeks a
declaratory judgment regarding Defendant Sidoti’s alleged violation of his duties under the Ohio
Rules of Professional Conduct, this claim is subject to dismissal as a matter of law because, as noted
supra, “jurisdiction to rule on alleged disciplinary violations lies exclusively with the Ohio Supreme
Court.” See, e.g., Rodojev, 2010 WL 5811886 at * 6. See also Fred Siegel Co., 85 Ohio St.3d at 178;
Fitzwater, 2006 WL 3833972 at *3. See also Kafele, 108 Fed. Appx. at 309 (finding that the ORPC
does not create a private cause of action); Fred Siegel Co., L.P.A., 85 Ohio St.3d at 178 (same); Lloyd,

2020 WL 5366109 at * 3 (same).
Accordingly, and for all the reasons set forth above, Defendant Sidoti’s Motion to Dismiss
(Doc. No. 52) is granted.
G. Defendant Schlachet

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With regard to Defendant Schlachet, the First Amended Complaint alleges as follows.
Defendant Schlachet is a defense attorney who, at one time, represented government witness Kathryn
Clover. Viola alleges that:
[D]uring the federal trial, Clover informed her attorney, Jaye Schlachet that she
committed perjury by falsely testifying that the Plaintiff conspired with her to commit
mortgage fraud - testimony she recanted at the second trial. But when Mr. Schlachet
contacted Mark Bennett and asked him to recall Clover to the stand to correct her
false testimony, Bennett refused because doing so "jeopardized the outcome of the
case ... [and] it served the best interests of justice to allow her testimony to remain
unchanged," USA v. Clover, Docket # 29-1, page 8. Attorney Schlachet accepted
Bennett's decision and failed to report the knowing use of perjured testimony to obtain
a conviction to the Ohio Supreme Court Disciplinary Counsel. Even worse,
prosecutors Bennett and Kasaris CONTINUED to use Clover as a government witness
in dozens of criminal and grand jury proceedings, USA v. Clover, Docket# 29-1, pages
43-44.

(Doc. No. 25 at p. 4.) Viola further asserts that Defendant Schlachet was required to report the alleged
misconduct relating to Ms. Clover’s allegedly perjured testimony, pursuant to Ohio Rule of
Professional Conduct 8.3(a) and the “Supreme Court of Ohio’s Board of Commissioners on
Grievances & Discipline Advisory Opinion 2016-2.” (Id. at p. 12.)
In his Motion to Dismiss, Defendant Schlachet argues that there is no legal cause of action
for failure to report misconduct under the Ohio Rules of Professional Conduct, and that this Court
lacks jurisdiction to hear such claims. (Doc. Nos. 17, 22.) He further asserts that he “was not even
involved as defense counsel in the underlying matter complained of by Plaintiff.” (Doc. No. 22 at p.
1.)
In response, Viola argues that Defendant “Schlachet has simultaneously represented Dan
Kasaris and [] Kathryn Clover, and is part of a cover up of Dan Kasaris’s romantic relationship with
Kathryn Clover.” (Doc. No. 37 at p. 2.) Specifically, Viola argues that (1) Defendant Kasaris hired
Defendant Schlachet to prepare a Separation Agreement between Defendant Kasaris and his wife;
51
and (2) also represented “Kasaris’ paramour Kathryn Clover” in Clover’s divorce proceedings and
Clover’s criminal case in United States v. Clover, Case No. 10-cr-75 (N.D. Ohio) (Nugent, J.). (Id.)
Viola further asserts that Defendant Schlachet attempted to cover up Ms. Clover’s alleged perjury in
federal court. (Id.)
The Court finds that Viola’s claims against Defendant Schlachet are subject to dismissal for
failure to state a claim as a matter of law. As discussed above, “jurisdiction to rule on alleged

disciplinary violations lies exclusively with the Ohio Supreme Court.” See, e.g., Rodojev, 2010 WL
5811886 at * 6. See also Fred Siegel Co., 85 Ohio St.3d at 178; Fitzwater, 2006 WL 3833972 at *3.
Moreover, both the Sixth Circuit and the Ohio Supreme Court have held that the Ohio Rules of
Professional Conduct does not create a private cause of action. See, e.g., Kafele, 108 Fed. Appx. at
309; Fred Siegel Co., L.P.A., 85 Ohio St.3d at 178. See also Lloyd, 2020 WL 5366109 at * 3.
Therefore, the Court finds that Viola has failed to state a claim for a declaratory judgment that
Defendant Schlachet violated the Ohio Rules of Professional Conduct by failing to report alleged
misconduct relating to Ms. Clover.
Accordingly, Defendant Schlachet’s Motion to Dismiss (Doc. No. 22) is granted.
V. Motion to Refer for Criminal Investigation (Doc. No. 40)

On September 30, 2020, Viola filed a Motion to Refer Defendants Bennett and Kasaris for
Criminal Investigation based on “recently obtained emails between Bennett, Kasaris, and government
witness Kathryn Clover,” which are attached to the motion as Exhibit A. (Doc. No. 40.) According
to Viola, these emails confirm that Defendants Bennett and Kasaris “committed a fraud on the court.”
(Id.) Viola further argues the emails show that Ms. Clover “sat in on meetings with other government
witnesses, conducted surveillance of Viola’s residence, had access to all Task Force evidence,

52
revealed grand jury information, and committed perjury in federal court.” (Id.) He asserts that “these
emails constitute a crime and a conspiracy to deny the undersigned the constitutional right to a fair
trial.” (Id.) Viola asks the Court to refer Defendants Bennett and Kasaris “for prosecution.” (Id.)
Both the Federal Defendants and Defendant Kasaris oppose Viola’s Motion. (Doc. Nos. 45,
51.) The Federal Defendants argue that Viola’s motion should be denied because, as a matter of law,
he has no right to compel a criminal investigation or prosecution against Defendant Bennett. (Doc.

No. 51.) The Federal Defendants further note that Defendant Bennett’s name only appears as a copied
recipient in a single email exchange occurring in February 2012, “long after Viola was tried,
convicted, and sentenced” in federal court. (Id.)
Defendant Kasaris argues that Viola’s Motion should be denied as frivolous. (Doc. No. 45 at
p. 5.) He asserts that “though this Court has already found that Clover’s ‘involvement’ in the
Plaintiff’s prosecution was not improper,13 the Plaintiff continues to use this Court’s docket as a
forum through which he can file pleadings and lob baseless allegations to the contrary.” (Id.)
In reply, Viola argues that any previous rulings by other courts regarding Ms. Clover’s
testimony are not binding in this litigation and that “the discovery of new and different material

13 Defendant Kasaris references Judge Nugent’s November 2015 decision, in which he denied Viola’s Motion to Vacate
his federal conviction under 28 U.S.C. § 2255. See United States v. Viola, 2015 WL 7259783 (N.D. Ohio Nov. 17, 2015).
Therein, Judge Nugent specifically addressed and rejected Viola’s claims of prosecutorial misconduct based on the
alleged use of the perjured testimony of Ms. Clover during Viola’s federal trial. Id. at * 8-9. To the contrary, Judge
Nugent found as follows: “Finally, Mr. Viola has presented no evidence whatsoever that Mr. Bennett or anyone else on
the prosecution team knew that Ms. Clover’s testimony on these issues was false. In fact, as Mr. Viola points out, Mr.
Bennett, himself, challenged Ms. Clover’s credibility in front of the jury, even though she was the prosecution’s witness,
when he had reason to believe that she was not telling the truth during her testimony. This is not evidence of prosecutorial
misconduct, but of prosecutorial integrity.” Id. at * 9. On November 23, 2016, the Sixth Circuit denied Viola’s
application for a certificate of appealability from Judge Nugent’s decision. See Viola v. United States, Case No. 16-3023
(6th Cir. Nov. 23, 2016).
53
evidence that was not presented in prior actions warrants consideration by this Court.” (Doc. No. 53
at p. 2.) Viola subsequently filed additional documents in support of his Motion. (Doc. No. 55.)
Viola’s Motion to Refer Defendants Bennett and Kasaris for criminal investigation and
prosecution is denied. This Court does not have authority to launch criminal investigations, file
criminal charges, or to direct the prosecutor to file charges. Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978) (“In our system ... the decision whether or not to prosecute, and what charge to file or

bring before a grand jury, generally rests entirely in [the prosecutor's] discretion.”). See also Garner
v. Department of Defense, 2019 WL 9673770 at * 3 (S.D. Ohio May 30, 2019). Moreover, as the
Sixth Circuit recently explained, a plaintiff’s “request for criminal prosecution of the defendant
attorneys fails because a private citizen cannot compel a criminal investigation or prosecution against
another.” Bell v. Biven, 2020 WL 3256832 at * 2 (6th Cir. Jan. 14, 2020). See also Linda R. v.
Richard V., 410 U.S. 614, 619 (1973) (“[I]n American jurisprudence at least, a private citizen lacks
a judicially cognizable interest in the prosecution or nonprosecution of another.”); Mitchell v. McNeil,
487 F.3d 374, 378 (6th Cir. 2007) (“There is no statutory or common law right, much less a
constitutional right, to an investigation.”).14
Accordingly, Viola’s Motion to Refer for Criminal Investigation (Doc. No. 40) is denied.

VI. Motions to Declare Vexatious and to Impose Pre-Filing Restrictions (Doc. Nos. 30, 45)

14 The Court also notes that this is not the first time that Viola has asked the Court to refer Defendant Bennett for a
criminal investigation and/or prosecution. In July 2016, Viola filed a “Motion to Refer Prosecutorial Misconduct to the
Office of Professional Responsibility” in an action entitled U.S. Bank National Association v. Viola, Case No. 16cv969
(N.D. Ohio) (Gwin, J.) (Doc. No. 12), which he asked the Court to refer Bennett for criminal investigation and/or
prosecution. Judge Gwin denied the motion. Id. at Doc. No. 18.

54
Finally, the Federal Defendants ask this Court to declare Viola a vexatious litigator and enjoin
him from filing additional civil actions absent leave of Court. (Doc. No. 30-1 at pp. 12-13.)
Defendant Kasaris separately requests that the Court impose pre-filing restrictions. (Doc. No. 45 at
pp. 3-5.) Specifically, Defendant Kasaris asks that “this Court bar Plaintiff from filing anything
further in this action absent leave to court, obtained telephonically.”15 (Id. at p. 5.)
In support of their motions, the Federal Defendants and Defendant Kasaris note that District

Judge Nugent has already declared Viola a vexatious litigator in his criminal case due to his pattern
of filing motions that are “repetitive and baseless” and “calculated to abuse the judicial process and
to harass the prosecution.” See United States v. Viola, Case No. 1:08cr506 (N.D. Ohio) (Nugent, J.)
(Doc. No. 541 at p. 6.) In that case, Viola was “permanently enjoined from filing any further motions
or other documents pertaining to his conviction and sentence in this criminal action unless and until
he has received permission from the Sixth Circuit to file a second or successive petition under 28
U.S.C. § 2255.” (Id.) In addition, the Federal Defendants and Defendant Kasaris note that Judge
Nugent has already determined that Viola’s prosecutorial misconduct claims are meritless.16
These Defendants also note that Viola has filed “numerous civil suits attacking his conviction
and sentence, nearly all of which have been dismissed.” (Doc. No. 30-1 at p. 12.) These civil actions

include: (1) Viola’s petition under 28 U.S.C. § 2255, which was filed as a civil action but then

15 Although he did not file a separate motion to this effect, Defendant Schlachet also requests that this Court declare Viola
a vexatious litigator. (Doc. No. 22 at p. 1) (incorporating “as if fully rewritten” Doc. No. 17 at p. 4.)
16 See, e.g., United States v. Viola, Case No. 1:08cr506 (N.D. Ohio) (Nugent, J.) (Doc. No. 541 at p. 6.) (“Mr. Viola has
repeatedly raised the issue of Ms. Clover’s alleged relationship with the prosecutor in his state case [and] of an alleged
existence of a conflict of interest. . . The Court has already addressed each of these issues in prior opinions, finding that
none of the allegations had any effect on the Constitutionality of Mr Viola’s federal trial. They also fail to provide a basis
for imposing sanctions on the federal prosecutor.”); United States v. Viola, 2015 WL 7259783 at * 8-9 (N.D. Ohio Nov.
17, 2015) (Nugent, J.) (specifically addressing and rejecting Viola’s claims of prosecutorial misconduct based on the
alleged use of the perjured testimony of Ms. Clover during Viola’s federal trial.)
55
consolidated with his criminal case, in Viola v. United States, Case No. 1:15cv542 (N.D. Ohio); (2)
Viola v. Kasaris, Case No. 2:16cv1036 (S.D. Ohio) (civil rights action under 42 U.S.C. § 1983
against Kasaris); (3) Viola v. Bennett, Case No. 1:17cv456 (N.D Ohio) (civil rights action against
Defendant Bennett); and (4) Viola v. Bair, Case No. 1:17cv827 (N.D. Ohio) (civil rights action
challenging restitution imposed in criminal case).
Viola argues that this Court should not declare him to be a vexatious litigator in light of the

fact that (1) he was acquitted after his state criminal trial; and (2) “none of the defendants dispute the
authenticity of any of the documents attached to the complaint, nor do they contest the long list of
prosecutorial misconduct.” (Doc. No. 37 at p. 6.) Viola asserts that “litigiousness alone is insufficient
to support a finding of vexatiousness” and insists that his claims have merit and are properly before
this Court. (Id.)
Federal courts have recognized their own inherent power and constitutional obligation to
protect themselves from conduct that impedes their ability to perform their Article III functions and
to prevent litigants from encroaching on judicial resources that are legitimately needed by others.
Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir.1986). To that end, the Sixth Circuit Court of
Appeals has approved various prefiling restrictions imposed on harassing and vexatious litigators as

an inherent constitutional and statutory power of the federal courts. See, e.g., Filipas v. Lemons, 835
F.2d 1145 (6th Cir.1987)(noting courts have authority to impose restrictions on harassing and
vexatious litigators); Feathers v. Chevron U.S.A., 141 F.3d 264, 269 (6th Cir.1998)(affirming district
court’s ability to impose prefiling restrictions in matters with a history of vexatious litigation); Wrenn
v. Vanderbilt Univ. Hosp., 1995 WL 111480 at * 3 (6th Cir. Mar. 15, 1995) (“This court has the
authority to enjoin harassing litigation under its inherent authority and the All Writs Act, 28 U.S.C.

56
§ 1651(a) ...”) In most cases, “the preferred approach is to require an abusive litigant to obtain leave
of court before filing suit regarding the operative facts that have been the basis for his or her
litigiousness.” Hyland v. Stevens, 37 Fed. Appx. 770, 771 (6th Cir. 2002) (citing Filipas, 835 F.2d
at 1146 and Siller v. Haas, 21 Fed. Appx. 270, 272 (6th Cir.2001)). See also Ortman v. Thomas, 99
F.3d 807, 811 (6th Cir. 1996); Tropf v. Fidelity Nat’l Title Ins. Co., 289 F.3d 929, 940 (6th Cir. 2002).
Here, the Court notes that this is the fourth civil rights lawsuit filed by Viola in United States

District Court against Defendants Bennett and/or Kasaris stemming from his underlying state and
federal criminal cases. These four civil lawsuits (coupled with the numerous post-judgment motions
and petitions filed in his federal criminal case) have placed Viola in a precarious situation. Upon
review of Viola’s various filings, this Court would be well within its power, should it choose, to
declare him to be a harassing and vexatious litigator and subsequently impose prefiling restrictions.
However, neither the Federal Defendants nor Defendant Kasaris have directed this Court’s attention
to any warnings in Viola’s other previously filed civil lawsuits that, given his litigation history, he
could be declared to be a harassing and vexatious litigator for purposes of his civil claims. See
Johnson v. University Housing, 2007 WL 4303728 at * 13 (S.D. Ohio Dec. 10, 2007) (denying motion
to declare vexatious litigator where pro se plaintiff had not previously been warned of the possibility

of prefiling restrictions). See also Sultaana v. Jerman, 2020 WL 5997087 at * 16 (N.D. Ohio April
2, 2020) (in granting motion to declare vexatious, noting that the plaintiff had previously been given
a warning that pre-filing restrictions could imposed);
While the Court sympathizes with the Defendants’ concerns, the Court declines to declare
Viola a vexatious litigator and impose pre-filing restrictions at this time. However, the Court hereby
warns Viola that the filing of a frivolous civil lawsuit relating in any way to the matters raised in the

57
First Amended Complaint herein, could result in him being declared a harassing and vexatious
litigator and the imposition of prefiling restrictions in this Court. These restrictions could include,
but are not limited to, (1) requiring Viola to file a bond to cover the opposing party's attorney's fees,
see, e.g., Stewart v. Fleet Financial, 2000 WL 1176881 at * 2 (6th Cir. Aug. 10, 2000) (requiring
harassing and vexatious litigator to file $25,000 bond prior to filing suit is not an abuse of discretion);
(2) limiting the nature or subject of lawsuits that may be filed, see, e.g., Feathers, 141 F.3d at 269

(“[W]e see nothing wrong, in circumstances such as these, with an order that restrains not only an
individual litigant from repeatedly filing an identical complaint, but that places limits on a reasonably
defined category of litigation because of a recognized pattern of repetitive, frivolous, or vexatious
cases within that category”); or (3) mandating that Viola first seek leave of court prior to filing a
lawsuit and/or prior to filing motions in a given case, see, e.g., Marbly v. Wheatley, 87 Fed. Appx.
535 (6th Cir. Feb. 4, 2004).
Accordingly, the Motions of the Federal Defendants and Defendant Kasaris to declare Viola
a vexatious litigator and/or impose prefiling restrictions (Doc. Nos. 30, 45) are denied without
prejudice at this time.
VII. Conclusion

For all of the foregoing reasons, Plaintiff’s Motions for Appointment of Counsel (Doc. No.
23), to take Judicial Notice (Doc. No. 32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10369238. Public record. Not legal advice.