Aaron v. O'Connor

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Frieda Aaron, et al., )

)

Plaintiffs, ) Case No.: 1:18-cv-00599

)

vs. ) Judge Michael R. Barrett

)

Chief Justice Maureen O'Connor, )

)

Defendant. )

)

)

OPINION & ORDER

This matter is before the Court on Defendant, Ohio Supreme Court Chief Justice,

Maureen O'Connor’s Motion to Dismiss (Doc. 7). Plaintiffs filed a Response in Opposition1

(Doc. 15) and Defendant filed a Reply (Doc. 16).

I. BACKGROUND

Plaintiffs are clients in medical malpractice claims against Dr. Abubakar Atiq

Durrani and the different hospitals where he treated patients in the underlying cases

known as “the Durrani cases.” (Doc. 1). The Durrani cases began approximately seven

years ago and are currently being litigated in this Court and the Hamilton County Court of

Common Pleas. Id. Plaintiffs believes that Chief Justice O'Connor is seeking to deny

justice to Plaintiffs in the Durrani litigation and, as a result, the law firm representing

Plaintiffs have has filed multiple federal lawsuits against Chief Justice O'Connor and other

members of the state judiciary.

1 Although Plaintiffs request oral argument in the caption of their Response, they fail to state the ground for

that request in the body of their Response (Doc. 15); see S.D. Ohio Civ. R. 7.1(b)(2). The Court does not

deem oral argument essential to the fair resolution of this matter and denies Plaintiffs' requests. See id.

In this lawsuit, Plaintiffs bring one count against Chief Justice O’Conner pursuant

to 42 U.S.C. § 1983, in her official capacity, asserting that she has violated their rights to

expeditious and timely trials under the due process clause of the 14th Amendment of the

United States Constitution and, thus, denied Plaintiffs’ access to the state courts. (Id.,

¶¶ 8, 49, 60). Chief Justice O’Conner filed a Motion to Dismiss pursuant to Rule 12(b)(1)

and Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 7). She argues that

dismissal is appropriate because she is entitled to Eleventh Amendment immunity and,

even assuming that immunity is inapplicable, Plaintiffs fail to state a claim under Section

1983. Id.

II. ANLAYSIS

A. Standard of Review

Rule 12(b)(1) allows a defendant to move for dismissal on the basis that the court

lacks subject matter jurisdiction. When subject matter jurisdiction is challenged, the party

asserting jurisdiction bears the burden of establishing that subject matter jurisdiction

exists. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990);

Mich. S.R.R. v. Branch & St. Joseph Counties Rail Users Ass'n., 287 F.3d 568, 573 (6th

Cir. 2002).

When reviewing a 12(b)(6) motion to dismiss for failure to state a claim, this Court

must “construe the complaint in the light most favorable to the plaintiff, accept its

allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Bassett v.

National Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). “[T]o survive a

motion to dismiss, a complaint must contain (1) ‘enough facts to state a claim to relief that

is plausible,’ (2) more than ‘a 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 Twombly, 550 U.S. 544.

A claim has facial plausibility when the pleaded factual content allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal,

556 U.S. at 663.

B. Eleventh Amendment

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.” McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir.

2012) (quoting Thiokol Corp. v. Dep't of Treasury, 987 F.2d 376, 381 (6th Cir. 1993)).

However, the Eleventh Amendment does not preclude a suit against the Individual

Defendants for prospective injunctive relief. See id. at 662 (citing McKay v. Thompson,

226 F.3d 752, 757 (6th Cir. 2000)). “[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit against the official's office. As

such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71 (1989) (citation omitted). There are three exceptions to a state’s

sovereign immunity: (1) when the state has consented to suit; (2) when Congress has

clearly and expressly abrogated the state’s immunity; and (3) when the exception set forth

in Ex parte Young, 209 U.S. 123 (1908), applies. Puckett v. Lexington-Fayette Urban

Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016).

None of the three exceptions apply in this matter. First, Ohio has not consented to

suit by statute or conduct in this litigation. Mixon v. State of Ohio, 193 F.3d 389, 397 (6th

Cir. 1999) (holding that Ohio has not waived sovereign immunity in federal court); see

Boler v. Earley, 865 F.3d 391, 410 (6th Cir. 2017) (holding that appearing in court to

present certain defenses does not necessarily waive immunity). Compare (Doc. 7,

PageID 105), with (Doc. 15, PageID 137-39). Second, Section 1983 does not abrogate

Eleventh Amendment immunity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)

(holding that Congress did not intend to disturb the States' Eleventh Amendment immunity

by passing § 1983) (internal quotations omitted); Compare (Doc. 7, PageID 105), with

(Doc. 15, PageID 137-39).

Third, “[t]he Ex Parte Young exception to sovereign immunity allows a plaintiff ‘to

bring claims for prospective relief against state officials sued in their official capacity to

prevent future federal constitutional or statutory violations, regardless of whether

compliance might have an ancillary effect on the state treasury.’” Woodard v. Winters,

No. 2:16-CV-704, 2018 WL 3020336, at *4 (S.D. Ohio June 18, 2018), report and

recommendation adopted, No. 2:16-CV-704, 2018 WL 4610511 (S.D. Ohio Sept. 26,

2018) (quoting Boler v. Earley, 865 F.3d 391, 412 (6th Cir. 2017). “The exception applies

where the plaintiff alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Id. (citing Dubuc v. Mich. Bd. of Law Exam'rs, 342 F.3d

610, 616 (6th Cir. 2003) (internal quotations omitted). “The state official sued, however,

must have, by virtue of the office, some connection with the alleged unconstitutional act

or conduct of which the plaintiff complains.” Floyd v. Cty. of Kent, 454 F. App'x 493, 499

(6th Cir. 2012); see Austin v. Kasich, No. 2:12-CV-983, 2013 WL 1324354, at *3 (S.D.

Ohio Mar. 29, 2013) (“the Ex parte Young fiction does not apply unless the officer sued

has ‘some connection with the enforcement of the act.’”) (citing Ex parte Young, 209 U.S.

at 157).

Plaintiffs fail to articulate what act by Chief Justice O’Connor they seek to enjoin

as unconstitutional. See (Doc. 1). Plaintiffs argue that they have because they state that

Chief Justice O’Connor has the authority to manage and supervise the Durrani cases in

state court and their right to access Ohio courts has been and is being denied by her

failure to manage “the unconscionable delays” in the Durrani cases. (Doc. 15, PageID

138). Assuming without deciding that Plaintiffs’ tenuous connection of Chief Justice

O’Connor’s acts to their alleged due process right violations is sufficiently articulated in

their Complaint, more problematic is that Plaintiffs fail to identify the specific prospective

injunctive relief that they seek. (Doc. 1, ¶ 63) (“Plaintiffs seek declaratory relief, and

prospective injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, et seq.,

Plaintiffs further seek their costs and reasonable attorney fees under 42 U.S.C. § 1988, if

applicable.”); (PRAYER FOR RELIEF WHEREFORE, Plaintiffs request all relief to which

they are entitled.”). Without more, the Court is unaware of what act by Chief Justice

O’Connor that Plaintiffs seek to enjoin or what they want the Court to do, and Plaintiffs’

fail to satisfy the pleading standards in federal court. See Iqbal, 556 U.S. at 678. Eleventh

Amendment immunity is proper.

C. Section 1983

Even assuming Eleventh Amendment immunity is improper, the Court concludes

that Plaintiffs fail to articulate a federal constitutional claim under Section 1983.

“To succeed on a claim under section 1983, the claimant must demonstrate both

that the conduct complained of was committed by a person acting under color of state

law and that the conduct deprived the claimant of rights, privileges or immunities secured

by the Constitution or laws of the United States.” Bennett v. City of Eastpointe, 410 F.3d

810, 817 (6th Cir. 2005) (citing McKnight v. Rees, 88 F.3d 417, 419 (6th Cir.1996)).

Plaintiffs bring one claim pursuant to 42 U.S.C. § 1983 asserting that Chief Justice

O’Connor has violated their rights to expeditious and timely trials under the due process

clause of the 14th Amendment and, hence, denied Plaintiffs’ access to the legal system.

(Doc. 1, ¶¶ 8, 49, 60). To the extent that Plaintiffs assert a Fourteenth Amendment right

to an expeditious or timely trial (Doc. 1, ¶¶ 8, 49), there is no federal right to a speedy trial

in civil cases. See e.g., United States v. Forty Thousand Dollars ($40,000.00) in U.S.

Currency, 763 F. Supp. 1423, 1429 (S.D. Ohio 1991) (“Claimant alleges that her right to

a speedy trial has been violated. This is a civil forfeiture proceeding, therefore, no such

right exists. The Sixth Amendment right to a speedy trial only applies to criminal

prosecutions.”).

To the extent that Plaintiffs assert a Fourteenth Amendment “right to any trial

before a fair tribunal” (Doc. 1, ¶ 60), a “fair trial in a fair tribunal is a basic requirement of

due process,” but this requirement focuses on the bias of the trial judge, not the failure of

another judge to set a trial. In re Murchison, 349 U.S. 133, 136 (1955); see Mason v.

Burton, 720 F. App'x 241, 244-45 (6th Cir. 2017); Klein v. City of Jackson, 477 F. App'x

317, 320 (6th Cir. 2012). Similarly, although Plaintiffs’ allege that Chief Justice O’Connor’s

“creation and execution of a scheme, through the use of her powers and authority to

manage and staff Ohio’s civil courts, to prevent litigants with an opportunity to be heard

on their medical malpractice and related claims for decades after the case was filed, also

results in a denial of due process” (Doc. 15, PageID 139), the Court is not convinced by

their terse allegation of a “scheme” by Defendant. Plaintiffs’ argument equates delayed

trials with the denial of access to state courts and ultimately relates to their alleged

constitutional right to the resolution of the Durrani cases within a speedy period of time.

No such federal right exists. See Los Angeles Cty. Bar Ass'n v. Eu, 979 F.2d 697, 707

(9th Cir. 1992) (“[W]e are unwilling to suggest that the Constitution may dictate or even

countenance a time limit on the consideration a judge may give to a civil case.”).

III. CONCLUSION

Based on the foregoing, it is hereby ORDERED that Defendant’s Motion to Dismiss

(Doc. 7) is GRANTED and this matter is dismissed. Consequently, Plaintiffs’ Motion for

a Preliminary Injunction (Doc. 24) is DENIED as moot. This matter is CLOSED and

TERMINATED from the active docket of this Court.

IT IS SO ORDERED.

_s/ Michael R. Barrett_______

Michael R. Barrett, Judge

United States District Court