Marcum v. Montgomery County Childrens Services, CSB

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ELIZABETH MARCUM,

Plaintiff, Case No. 3:19-cv-334

vs.

MONTGOMERY COUNTY CHILDRENS

SERVICES, et al., District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

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

DISMISSED; (2) SERVICE OF PROCESS NOT ISSUE: (3) THIS CASE BE

TERMINATED ON THE DOCKET; AND (4) THE COURT CERTIFY THAT ANY

APPEAL WOULD BE FRIVOLOUS AND NOT TAKEN IN GOOD FAITH AND,

THEREFORE, THAT PLAINTIFF BE DENIED IN FORMA PAUPERIS STATUS ON

ANY APPEAL

______________________________________________________________________________

This civil case is before the Court for a sua sponte review -- pursuant to 28 U.S.C.

§1915(e)(2) -- of the complaint filed by pro se Plaintiff Elizabeth Marcum. Plaintiff filed a motion

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

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

Recommendation.

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

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.

Pro se Plaintiff brings this action against three Defendants: (1) Montgomery County, Ohio

Children Services (“MCCS”); (2) Beth Pfoutz; and (3) Kathleen Liski. Doc. 2. From what the

Court can understand from Plaintiff’s complaint, Pfoutz was an employee of MCCS at one time

and Liski was a state court magistrate. Id.

Plaintiff alleges that in 1999 and 2001, MCCS took custody of Plaintiff’s four children

from a hospital in Kentucky within four days after the children were born. Id. Defendant Pfoutz

was apparently present at some point and spoke to a doctor at the hospital about a blood test. Id.

Pfoutz was also the individual who presumably took custody of the children at the hospital on

behalf of MCCS. Id. Plaintiff requests that this Court give her custody of the four children, order

Defendants to cease interfering with her custody, and vacate any state court judgment regarding

custody or adoption of the children. Id.

The Court finds this case subject to dismissal for a number for reasons. First, the Court

lacks subject matter jurisdiction over this action insofar as Plaintiff seeks child custody decrees.

Partridge v. State of Ohio, 79 F. App’x 844, 845 (6th Cir. 2003) (“Federal courts have no

jurisdiction to resolve domestic relations disputes involving child custody”) (citing Ankenbrandt

v. Richards, 504 U.S. 689, 703 (1992)). Second, the Court lacks subject matter jurisdiction,

pursuant to application of the Rooker-Feldman doctrine,2 to the extent Plaintiff seeks review and

reversal of state court orders regarding the custody and/or adoption of her children. Cf. Lee v.

Johnson-Wharton, No. 1:14CV868, 2014 WL 7015178, at *3 (S.D. Ohio Dec. 11, 2014). Even

assuming, arguendo, that the Court possesses subject matter jurisdiction to provide any of the relief

sought by Plaintiff, “[u]nder the principles of comity and deference to state expertise in the field

of domestic relations,” federal courts consistently “refuse to exercise jurisdiction over claims

which seek to collaterally attack a state court judgment terminating parental rights.” Stephens v.

2 “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)).

Hayes, 374 F. App’x 620, 623 (6th Cir. 2010) (citing Castorr v. Brundage, 674 F.2d 531, 535–36

(6th Cir. 1982)).

In addition to the foregoing, pro se Plaintiff’s complaint is subject to dismissal for

numerous other reasons, including, inter alia, that MCCS lacks the capacity to be sued, i.e., it is

not sui juris. See Arsan v. Keller, 784 F. App’x 900, 915 (6th Cir. 2019). In addition, Magistrate

Liski, as an alleged state judicial officer, is entitled to absolute judicial immunity. See Barnes v.

Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997); Stump v. Sparkman, 435 U.S. 349, 356 (1978);

Merchant v. Montgomery Cnty. Child Support Enf’t Agency, No. 3:06-CV-347, 2006 WL

3545452, at *2 (S.D. Ohio Dec. 8, 2006) (extending absolute judicial immunity to state court

magistrates); 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”).

Finally, the actions complained of by Plaintiff in her complaint (i.e., conduct occurring in

1999 and 2001) appears to have occurred more than 15 years ago and the statute of limitation for

any purported federal claim under 42 U.S.C. § 1983 has long expired. Browning v. Pendleton, 869

F.2d 989, 992 (6th Cir. 1989) (finding that the “[t]he appropriate statute of limitations for 42 U.S.C.

§ 1983 civil rights actions arising in Ohio” is two years); Collard v. Kentucky Bd. of Nursing, 896

F.2d 179, 183 (6th Cir. 1990) (finding that the statute of limitations in Kentucky for civil rights

actions under § 1983 is one year).

III.

Accordingly, based on all of the foregoing, the undersigned RECOMMENDS that: (1)

Plaintiff’s complaint be DISMISSED; (2) service of process not issue; (3) this case be

TERMINATED on the Court’s docket; and (4) the Court CERTIFY that an appeal of an Order

adopting this Report and Recommendation would be frivolous and not taken in good faith and,

therefore, that Plaintiff be DENIED in forma pauperis status on any appeal.

Date: February 5, 2020 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).