Simkins v. Spears

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

RICHARD LEE SIMKINS, III,

Plaintiff, Case No. 3:19-cv-228

vs.

JOSHUA SPEARS, et al., District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S COMPLAINT

BE DISMISSED; AND (2) THIS CASE BE TERMINATED ON THE COURT’S DOCKET

______________________________________________________________________________

This civil case is before the Court for a sua sponte review of the complaint filed by pro se

Plaintiff Richard Lee Simkins, III pursuant to 28 U.S.C. § 1915(e)(2). Doc. 1-1. Plaintiff filed a

motion for leave to proceed in forma pauperis (“IFP”) (doc. 1), which the Court granted by

separate order (doc. 9). The Court, however, held service of the complaint pending a review under

§1915(e)(2). It is appropriate for the Court to conduct this review sua sponte prior to issuance of

process “so as to spare prospective defendants the inconvenience and expense of answering such

complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).

I.

In accordance with 28 U.S.C. §1915(e)(2), this Court must perform an initial review of the

instant action. McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997). Upon review,

the Court must dismiss any case it determines is “frivolous or malicious,” fails to state a claim

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

Recommendation.

upon which relief can be granted, or seeks monetary relief from a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B).

A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact.

Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A plaintiff sets forth no

arguable factual basis where the allegations asserted are “fantastic or delusional”; and presents no

arguable legal basis when advancing “indisputably meritless” legal theories, i.e., when the

defendant is immune from suit, or when the plaintiff claims a violation of a legal interest which

clearly does not exist. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th Cir.

2000). Courts may also dismiss a complaint sua sponte for failure to state a claim upon which

relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

In conducting this initial review under § 1915, the Court accepts pro se Plaintiff’s

allegations as true and construes them liberally in his favor. See Donald v. Marshall, No. 84-3231,

1985 WL 13183, at *1 (6th Cir. Apr. 5, 1985) (stating that, “[w]hen considering a pro se action

for dismissal pursuant to 28 U.S.C. § 1915(d), the complaint should be liberally construed and the

allegations of the complaint must be taken as true and construed in favor of the plaintiff”).

However, while pro se pleadings are “to be liberally construed” and are “held to less stringent

standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam), pro se plaintiffs must still satisfy basic pleading requirements. Wells v. Brown, 891

F.2d 591, 594 (6th Cir. 1989).

II.

This case arises out of state court proceedings in Greene County, Ohio in which Defendant

Joshua Spears purportedly sought issuance of a civil stalking protection order (“CSPO”) against

Plaintiff. Doc. 1-1 at PageID 11. Plaintiff alleges that the state court ultimately granted Spears a

CSPO despite, as Plaintiff contends, there being no evidence supporting any of the factors required

for issuance of a CSPO. Id. at PageID 11-14. The undersigned’s review of the state court docket

reveals that Plaintiff has appealed issuance of the CSPO to the Ohio Second District Court of

Appeals in Greene County, and that appeal remains pending. See Simkins v. Spears, No.

2019CA55 (Ohio Ct. App. filed Aug. 30, 2019).

In this action, Plaintiff names six Defendants: (1) Dayton Police Officer Joshua Spears,

who sought the CSPO; (2) Greene County Domestic Relations Court employee Sheri Hall, who

apparently assisted Spears with the filing of the CSPO application; (3) Greene County Domestic

Relations Court Administrator John Martin, who made an initial ex parte ruling on Spears’s

application; (4) Greene County Domestic Relations Court Chief Magistrate Cynthia Martin who,

after issuance of the initial ex parte order, held a hearing on the application and recommended the

CSPO continue in force; (5) retired Logan County, Ohio judge Michael Brady, who was apparently

assigned to preside over the CSPO proceedings in Greene County; and (6) Chief Justice Maureen

O’Connor of the Supreme Court of Ohio, who apparently denied Plaintiff’s request that Judge

Brady be recused. Doc. 1-1 at PageID 5-6. Plaintiff seeks injunctive relief from this federal court

precluding Defendants from issuing any further rulings against him in state proceedings. Id. at

PageID 10.

III.

Initially, the undersigned notes that, in a separate case filed in this Court, Plaintiff sought

a temporary restraining order essentially seeking the relief now sought in this matter, a request that

was denied. Simkins v. Grandview Hosp., No. 3:18-CV-309, 2019 WL 1465389, at *1 (S.D. Ohio

Apr. 3, 2019), report and recommendation adopted, No. 3:18-CV-309, 2019 WL 1791386 (S.D.

Ohio Apr. 23, 2019). Plaintiff’s request in that case was denied for a number of reasons including,

inter alia, that his request for injunctive relief “is barred by the Anti-Injunction Act, 28 U.S.C. §

2283, which establishes ‘an absolute prohibition against enjoining state court proceedings[.]’” Id.

(citing Martingale LLC v. City of Louisville, 361 F.3d 297, 302 (6th Cir. 2004)). The same

reasoning bars Plaintiff’s request for injunctive relief in this case.

Regardless, even assuming, arguendo, that the entirety of this action is not barred by the

Anti-Injunction Act, or by application of res judicata, collateral estoppel, judicial and quasi-

judicial immunity,2 or the Rooker-Feldman doctrine,3 this action should nevertheless be dismissed

because the abstention doctrine set forth in Younger v. Harris, 410 U.S. 37 (1997) is implicated.

“Younger requires federal courts to abstain where: (1) state proceedings are pending; (2) the state

proceedings involve an important state interest; and (3) the state proceedings will afford the

plaintiff an adequate opportunity to raise his constitutional claims.” Kelm v. Hyatt, 44 F.3d 415,

419 (6th Cir. 1995) (citing Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454 (6th

Cir. 1989)).

As noted previously, the first element required for Younger abstention is satisfied because

Plaintiff’s appeal from issuance of the CSPO was only recently filed and remains pending. See

2 “It is well established that judges are entitled to absolute judicial immunity from suits for money

damages for all actions taken in the judge’s judicial capacity, unless these actions are taken in the complete

absence of any jurisdiction.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing Mireles v. Waco, 502

U.S. 9, 11-12 (1991); Foster v. Walsh, 864 F.2d 416 (6th Cir. 1988)). Such “absolute judicial immunity”

extends “to non-judicial officers” performing “‘quasi-judicial’ duties.” Id. (citations omitted).

Additionally, “[t]he Federal Courts Improvement Act of 1996 provides that a [judicial officer] may not be

enjoined for any act or omission taken in his or her judicial capacity unless a declaratory decree was violated

or declaratory relief was unavailable[,]” and, “[t]hus, a judge’s absolute judicial immunity bars any suit for

injunctive relief that does not meet these two exceptions.” Cooksey v. McElroy, No. 1:07CV581, 2009 WL

2628519, at *1 (S.D. Ohio Aug. 25, 2009); see also 42 U.S.C. § 1983 (“[I]n any action brought against a

judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be

granted unless a declaratory decree was violated or declaratory relief was unavailable”).

3 “Under this doctrine, federal courts lack jurisdiction to review a case litigated and decided in state

court as only the United States Supreme Court has jurisdiction to correct state court judgments.” Marshall

v. Bowles, 92 F. App’x 283, 284 (6th Cir. 2004) (citing D.C. Ct. App. v. Feldman, 460 U.S. 462, 482 &

n.16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923)).

supra. The second element is also satisfied because courts hold that civil protection order

proceedings involve important state interests. See Kelm, 44 F.3d at 419-20 (finding a great state

interest in issuance of a civil protection order in divorce proceedings); see also Bristow v. Nichols,

No. 2:12-CV-0045, 2012 WL 1020245, at *3 (S.D. Ohio Mar. 26, 2012) (“This Court has little

difficulty concluding that a state court case initiated by a private party, but seeking protection from

the state courts in the form of a stalking order authorized by [Ohio Rev. Code] § 2903.214, is a

proceeding to which Younger applies”), report and recommendation adopted, No. 2:12-CV-45,

2012 WL 1413147 (S.D. Ohio Apr. 23, 2012). Finally, there is no indication that Plaintiff is

precluded from advancing the arguments asserted in this case in the Ohio Second District Court of

Appeals. Accordingly, this Court must abstain from this action pursuant to Younger.

IV.

Thus, the undersigned RECOMMENDS that this action: (1) be DISMISSED; and (2)

TERMINATED on the Court’s docket.

Date: September 18, 2019 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,

this Report and Recommendation was served upon you by mail, this deadline is extended to

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the

deadline to file objections by filing a motion for extension, which the Court may grant upon a

showing of good cause.

Any objections filed shall specify the portions of the Report and Recommendation objected

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs.

A party may respond to another party’s objections within FOURTEEN days after being

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,

however, this Report and Recommendation was served upon you by mail, this deadline is extended

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50

(6th Cir. 1981).