Evans, Jr. v. Roberts, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM H. EVANS, Jr., :

: Case No. 2:19-cv-1119

Plaintiff, :

: JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Vascura

JOHN G. ROBERTS, Jr., et al., :

:

Defendants. :

ORDER

This matter comes before the Court on the Magistrate Judge’s May 24, 2019, Report and

Recommendation (ECF No. 13), which recommends that Defendants’ Motions to Dismiss (ECF

Nos. 2, 4) be GRANTED. The Court hereby ADOPTS the Report and Recommendation in its

entirety based on the independent consideration of the analysis therein and GRANTS Defendants’

Motions to Dismiss (ECF Nos. 2, 4).

I. BACKGROUND

Plaintiff William Evans is incarcerated in the state of Ohio and proceeding without the

assistance of counsel. He filed this action in state court seeking a writ of mandamus against the

United States President, the United States Supreme Court Justices, and the United States Attorney

General (collectively “the Federal Defendants”), and the Ohio Attorney General and the Ohio

Bureau of Criminal Investigation (collectively “the Ohio Defendants”). (ECF No. 3). Plaintiff

appears to seek a writ of mandamus compelling Defendants to investigate and prosecute various

alleged legal violations that he says he has described in many other lawsuits he has filed in state

and federal court, including but not limited to murder, theft, fraud, and Racketeer Influenced

Corrupt Organization Act (R.I.C.O.) violations. (Id. at ¶ 1). The Federal Defendants removed the

case to this Court. (ECF No. 1).

The Federal Defendants and the Ohio Defendants filed Motions to Dismiss. (ECF Nos. 2,

4). The Magistrate Judge issued a disposition recommending the motions be granted. (ECF No.

13). Mr. Evans timely filed Objections to the Report and Recommendation on June 3, 2019, (ECF

No. 14), as well as a Supplement to his Objections on June 7 (ECF No. 15).

II. STANDARD OF REVIEW

When objections to a Magistrate Judge’s report and recommendation are received on a

dispositive matter, the assigned district judge “must determine de novo any part of the Magistrate

Judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C.

§ 636(b)(1)(C). After review, the district judge “may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the Magistrate Judge with

instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). Because Defendant has

filed objections to the Report and Recommendation, the Court reviews the recommended

disposition de novo.

The Federal and Ohio Defendants moved to dismiss under Federal Rule of Civil Procedure

12(b)(6).1 This Court may dismiss a cause of action under 12(b)(6) for “failure to state a claim

upon which relief can be granted.” A 12(b)(6) motion “is a test of the plaintiff’s cause of action as

stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden City of

Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court must construe the complaint in the

1 The Federal Defendants also moved to dismiss under Fed. R. Civ. P. 12(b)(1), arguing that the district

court only has jurisdiction derivative of the state court’s jurisdiction, and therefore it cannot issue a writ

of mandamus against a federal officer. (ECF No. 2 at 2-3). Because the Magistrate found Plaintiff did not

meet the well-pleaded complaint standard of 12(b)(6) and dismissed the Complaint in its entirety, this

Court need not address the question of subject matter jurisdiction under 12(b)(1).

light most favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue

Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). This Court is not required, however, to

accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Although liberal, Rule 12(b)(6) requires more than bare assertions of legal

conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted).

Generally, a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In short, a complaint’s factual allegations

“must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). It must contain “enough facts to state a claim to relief that is plausible

on its face.” Id. at 570.

The Court holds pro se complaints “‘to less stringent standards than formal pleadings

drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir.

2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). While the standard for construing

pro se complaints is a liberal one, the complaint still must state a claim such that “‘courts should

not have to guess at the nature of the claim asserted.’” Frengler v. General Motors, 482 F. App’x

975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F. 2d 591, 594 (6th Cir. 1989)). “Even

a pro se pleading must provide the opposing party with notice of the relief sought, and it is not

within the purview of the district court to conjure up claims never presented.” Id. at 977.

III. LAW AND ANALYSIS

In his Complaint, Mr. Evans asks the Court to issue a writ of mandamus ordering

Defendants to investigate and prosecute various alleged legal violations. As Mr. Evans himself

points out, he has filed over 24 cases in the Ohio Supreme Court over the years. (ECF No. 4 Ex.

A). He says he has alleged “many serious criminal law violations” by various state and federal

actors in these cases (ECF No. 3 at ¶ 1).

The Federal Defendants filed a Motion to Dismiss, arguing first that removal to federal

court was proper and consent by the state Defendants is not required under 28 U.S.C. § 1442 as

Mr. Evans suggests. They moved to dismiss under Fed. R. Civ. P. 12(b)(6), saying Plaintiff failed

to state a claim for relief because federal prosecution is an inherently discretionary, unreviewable

agency action. (ECF No. 2 at 4). Likewise, they argue it is well settled that lower courts cannot

compel the Supreme Court to take any action. In re Martin, 956 F.2d 339, 340 (D.C. Cir. 1992),

cert denied, 506 U.S. 844 (1992) (lower courts lack jurisdiction to compel the Supreme Court to

take any action). Further, Supreme Court justices have absolute immunity. (ECF No. 10 at 5 n.1).

The Ohio Defendants also moved to dismiss under 12(b)(6), arguing that Mr. Evans has

failed to plead any facts beyond mere conclusions. (ECF No. 4). They argue the decision to

prosecute at the state level is also discretionary. (Id. at 3). Plaintiff alleges very general violations

of R.I.C.O., 18 U.S.C. § 241 and 242, and the Due Process Clause of the Fourteenth Amendment,

but the state Attorney General has no legal duty to prosecute any of the alleged offenses. (Id. at 4).

Finally, the Ohio Defendants argue that Mr. Evans’s request for money damages is not within the

court’s original jurisdiction and should therefore be dismissed. (Id. at 4-5).

The Magistrate Judge found Mr. Evans’s complaint should be dismissed in its entirety for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). As the Magistrate Judge noted, the Sixth

Circuit has held that mandamus is a “drastic” remedy and only available where “(1) the plaintiff

has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate

remedy available to plaintiff.” Carson v. U.S. Office of Special Counsel, 633 F.3d 487, 491 (6th

Cir. 2011) (quoting In re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005)). As the

Defendants and Magistrate Judge explained, the decision to prosecute is a discretionary one. See,

e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985). The Magistrate found that Mr. Evans is not

entitled to mandamus relief because he has not plausibly pleaded a clear nondiscretionary duty

owed to him by Defendants. (ECF No. 13 at 4); Misiak v. Freeh, 22 F. App’x 384, 386 (6th Cir.

2001) (“Misiak was not entitled to mandamus relief because the defendants did not owe him a

clear nondiscretionary duty.”); Banks v. United States Postal Inspection Serv., No. 4:18-cv-596,

2018 WL 4184740, at **6-7 (N.D. Ohio Aug. 31, 2018) (dismissing mandamus action because

defendants had no clear duty to investigate the alleged wrongs). Having independently reviewed

the Magistrate’s analysis and Plaintiff’s Objections, this Court agrees.

Mr. Evans attempts to raise several objections to the Magistrate’s Report and

Recommendation. Plaintiff first seems to agree with the Magistrate Judge that federal prosecution

is discretionary at the federal level, but alleges state statutes require it. (ECF No. 14 at ¶ 4). He

cites O.R.C. § 2935.09 and § 2935.10, which permit private citizens to file affidavits with a judge,

magistrate, or prosecutor to determine if a complaint should be filed with a prosecuting attorney.

O.R.C. § 2935.09 (D). The Supreme Court of Ohio, in one of Mr. Evans’s other lawsuits, held the

statute “requires the filing of an affidavit, not a complaint or other pleading.” State ex rel. Evans

v. Tieman, 157 Ohio St.3d 99, 101 (citing State ex rel. Dew v. Vivo, 7th Dist. Mahoning No. 12

MA 94, 2012-Ohio-3423, 2012 WL 3064502, ¶ 7)). Likewise in this lawsuit, Evans has failed to

allege facts regarding the underlying alleged criminal conduct and has not shown any prosecutors

abused their discretion. Id. at 102. The cases he cites are also inapposite. State ex rel Brown v.

Nusman, 152 Ohio St.3d 284, 286 (2017) (holding judge had no duty under O.R.C. § 2935.10 to

issue a final appealable order after referring matter in citizen’s affidavit to a prosecutor who

declined to investigate); State ex rel. Squire v. Taft, 69 Ohio St.3d 365, 368-69 (1994) (denying

writ of mandamus to require secretary of state to issue subpoenas regarding alleged election fraud,

finding the secretary did not abuse its discretion in declining to investigate because the allegations

were nonspecific and unsupported); State ex rel. Masters v. Cleveland, 75 Ohio St.3d 23, 29-31

(1996) (denying writ of mandamus to compel city prosecutor to investigate alleged police

misconduct, finding no abuse of discretion).

The remaining points in Mr. Evans’s Objections are also not relevant to the Magistrate’s

analysis. Mr. Evans says the Magistrate is required to take judicial notice of the prior cases he filed

against government officials, a fact which the Magistrate did not dispute. He attaches an exhibit

from a Mahoning County prosecutor, in which the prosecutor advises that O.R.C. § 2935.09 does

not mandate prosecution. He cites Ginest v. Bd. Of County Comm’rs of Carbon County, which

dealt with deliberate indifference to prisoners’ medical needs, but has no bearing on his mandamus

claims here. 333 F. Supp. 2d 1190, 1198 (D. Wyo. 2004). None of these statements provide a clear

legal objection to the Magistrate’s analysis and determination to grant the 12(b)(6) Motions to

Dismiss. In his supplement, he makes general statements saying the Federal Defendants are subject

to Ohio state law, and claims service was proper as to the State of Ohio. (ECF No. 15). It would

take guesswork on the part of this Court to fashion a legal objection out of Plaintiff’s statements

that could be addressed. Upon de novo of the Magistrate’s analysis in light of Plaintiff’s

Objections, this Court finds the Magistrate Judge did not err in dismissing Plaintiff’s Complaint

for failure to state a claim. Recognizing the pro se pleading standard is a liberal one, this Court

cannot “conjure up claims never presented.” Frengler, 482 F. App’x at 977. Because Plaintiff only

alleges mere conclusions regarding vague allegations of legal violations and points to no legal duty

owed to him by any Defendants under which he is entitled to a writ of mandamus, the Magistrate

Judge correctly dismissed the Complaint.

IV. CONCLUSION

For the reasons stated above, this Court agrees with the Magistrate Judge and ADOPTS

the Report and Recommendation in its entirety. Defendants’ Motions to Dismiss (ECF Nos. 2, 4)

are hereby GRANTED. This case is hereby DISMISSED.

IT IS SO ORDERED.

s/ Algenon L. Marbley

ALGENON L. MARBLEY

UNITED STATES DISTRICT JUDGE

DATED: November 12, 2019