Lloyd v. Pokorny

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SUSAN LLOYD,

Case No. 2:20-cv-2928

Plaintiff, JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

v.

THOMAS POKORNY, et. al.,

Defendants.

OPINION AND ORDER

Defendants Portage County, Ohio (“Portage County”), Judge Thomas Pokorny (“Judge

Pokorny”), Portage County Assistant Prosecutor Chris Meduri (“Prosecutor Meduri”), Portage

County Clerk of Courts Jill Fankhauser1 (“Clerk of Courts Fankhauser”), Portage County

Courthouse (“Portage Courthouse”), and Portage County Court Reporter Toni DiNardo2 (“Court

Reporter DiNardo”) (collectively the “Portage Defendants”) have filed a Motion to Dismiss (ECF

No. 28). Plaintiff Susan Lloyd (“Plaintiff”) has responded (ECF No. 33) and the Portage

Defendants have replied (ECF No. 34). For the reasons stated herein, the Portage Defendants’

Motion to Dismiss (ECF No. 28) is GRANTED in part and DENIED without prejudice in part.

I.

Plaintiff filed this action on September 23, 2019 in the Eastern District of Pennsylvania.

(See Compl., ECF No. 1.) On June 5, 2020, the case was transferred to this Court. (See ECF

No. 45.) Plaintiff sued the following Defendants: Judge Pokorny, Chief Justice Maureen

1 Plaintiff sued the Portage County Clerk of Courts and Jill Fankhauser in her individual and official capacity. Because

Ms. Fankhauser is the Portage County Clerk of Courts the Court will treat this as one defendant.

2 The Court will refer to Clerk of Courts Fankhauser, Judge Pokorny, Court Reporter DiNardo, and Prosecutor Meduri

together as the “Individual Portage Defendants.”

O’Connor, the Supreme Court of Ohio, Scott Drexel, Amy Stone, the Ohio Office of the

Disciplinary Counsel, Jason Whitacre, Scott Flynn, Flynn, Keith, and Flynn, LLC, Lindsay

Molnar, David Perduk, Perduk and Associates Co., LLC, Prosecutor Meduri, the State of Ohio,

Portage County, Portage Courthouse, Clerk of Courts Fankhauser, Tory Reeves, Court Reporter

DiNardo, Joshua Thornsbery, and Michael Szabo (collectively “Defendants”). (See Compl. ¶¶ 4–

25.) Plaintiff sued the individual defendants in their personal and official capacities. Plaintiff’s

Complaint was 129 pages. (See id.) On December 11, 2019, in response to extensive Federal Rule

of Civil Procedure 12 briefing by several Defendants, Plaintiff amended her Complaint. (See Am.

Compl., ECF No. 23.) The Amended Complaint is 155 pages. (See id.)

Plaintiff’s Amended Complaint includes 44 causes of action all related to a civil case filed

in Portage County, Ohio, Lloyd v. Thornsbery, et al., No. 2016CV00230 (the “Thornsbery case.”)

(See id.) In the Thornsbery case Plaintiff sued a former neighbor and others who allegedly

harassed her. (Id. ¶ 27.) The defendants ultimately prevailed, and Plaintiff’s appeal is pending in

the Ohio Eleventh District Court of Appeals.3

The allegations in the Amended Complaint include violations of the United States

Constitution, violations of Ohio and federal criminal statutes, common law claims of abuse of

process, malicious prosecution, and bribery, violations of the appellate “abuse of discretion”

standard of review, violations of Ohio Sunshine laws, violations of various Federal Rules of Civil

Procedure, violations of various Ohio local rules of civil procedure, violations of Ohio Rules of

Professional Conduct, violations of the Ohio Rules of Superintendence of Ohio Courts, violations

3 The Court may take judicial notice of the existence of prior judicial proceedings. Ascentium Capital, LLC v. Cent.

USA Wireless, LLC, No. 1:17-cv-744, 2018 U.S. Dist. LEXIS 161510, at *7 (S.D. Ohio Sept. 21, 2018). The status

of Plaintiff’s appeal of the Thornsbery case can be found at https://services.portageco.com/eservices/home.page.2.

of the Fair Debt Collections Practices Act and Federal Trade Commission Debt Collection

Practices, and unlawful discrimination based on sex and disability. (Id. ¶ 4.)

Specifically, with regards to the Portage Defendants, Plaintiff alleges the following:

• Judge Pokorny: Plaintiff alleges the Supreme Court of Ohio appointed Judge Pokorny to

preside over the Thornsbery case. (Id. ¶ 5, 27, 31.) Plaintiff makes a series of allegations

regarding Judge Pokorny’s allegedly improper actions taken in this role. (Id. ¶ 2, 31–57,

245–46, 265–66, 291, 296, 314–16, 357–58, 440–43, 448–49, 451, 454, 457–58, 466–69,

473–77, 503–06, 516, 524, 538, 588, 614, 636, 640.) These actions include violating

federal and local rules of procedure, violating federal and state statutes, violating Plaintiff’s

civil rights and participating in a conspiracy against Plaintiff. (See id.)

• Portage Courthouse: Plaintiff includes her allegations against Judge Pokorny as against

the Portage Courthouse and also alleges the Portage Courthouse was prejudicial towards

her. (See id. ¶ 2, 31–57, 143, 245–46, 265–66, 291, 296, 314–16, 357–58, 440–43, 448–

49, 451, 454, 457–58, 466–69, 473–77, 503–06, 516, 524, 538, 588, 614, 636, 640.)

• Clerk of Courts Fankhauser: Plaintiff alleges Clerk of Courts Fankhauser violated the

Ohio Sunshine laws by refusing to provide her with transcripts and audio recordings of the

Thornsbery case. (Id. ¶ 20–21, 144–46.) Additionally, Plaintiff alleges Clerk of Courts

Fankhauser took other improper actions in her role as the Clerk of Courts including

violating Plaintiff’s civil rights and participating in a conspiracy against Plaintiff. (See id.)

• Court Reporter DiNardo: Court Reporter DiNardo was the court reporter in the

Thornsbery case. Plaintiff alleges Court Reporter DiNardo charged too high a rate for a

transcript, refused to release a partial transcript of the proceedings, violated Plaintiff’s civil

rights and participated in a conspiracy against Plaintiff. (Id. ¶ 76, 150–51.)

• Prosecutor Meduri: Plaintiff alleges that Prosecutor Meduri violated the Ohio Sunshine

laws when he failed to produce audio recordings from proceedings, violated the civil rights

of non-party Brian Ames by interrupting him or objecting to his comments in a public

meeting, and improperly declined to prosecute Joshua Thornsbery and Michael Szabo for

the criminal activity they engaged in. (Id. ¶ 134–37, 151, 257–58, 267, 338.)

• Portage County, Ohio: Plaintiff alleges that whenever she tries to post on an official

Portage County website, Portage County either blocks or deletes her posts which violates

her civil rights. (Id. ¶ 139.) Plaintiff also alleges Portage County does not respond to her

complaints about drug use in Portage County. (Id. ¶¶ 137, 140–41.)

Plaintiff’s Amended Complaint asks for a series of relief which can be divided into three

categories. First, Plaintiff asks for relief directly relating to the Thornsbery case and other state

court actions including: providing Plaintiff with a new trial and a new judge, amending Judge

Pokorny’s orders, dismissing the sanctions against Plaintiff ordered in the Thornsbery case,

dismissal of the determination that Plaintiff is a vexatious litigator made in the Thornsbery case,

Judge Pokorny’s recusal from the Thornsbery case and “every other case in Ohio,” reevaluation

of Plaintiff’s previously dismissed state court complaints, and transfer of the Thornsbery case out

of Portage County, Ohio. (See id. ¶¶ 691–97.) Next, Plaintiff asks for the following injunctive

relief: reevaluation of the criminal activity Plaintiff previously complained about, a public

apology, restoration of Plaintiff’s ability to post on Portage County and Ohio websites and social

media, training for Ohio officials on the use of service dogs, an order prohibiting Defendants from

violating other individuals’ civil rights, disbarment of Defendants Jason Whitcare, Scott Flynn,

Lindsay Molnar, David Perduk, Amy Stone, Chief Justice Maureen O’Connor, Judge Pokorny,

and Troy Reeves, removal of Court Reporter DiNardo’s court reporter license, and prosecution of

Michael Szabo and Joshua Thornsbery for crimes including drug use and violence. (See id.

¶¶ 698–99, 701–03, 706–08.) Finally, Plaintiff asks for monetary relief including: $100,000 in

actual and punitive damages, a fine imposed for violation of Plaintiff’s civil rights, expenses for

Plaintiff’s relocation out of Portage County, and compensation from Mr. Szabo and Mr.

Thornsbery for Plaintiff’s financial loss as a result of their criminal behavior. (See id. ¶¶ 700, 704–

05, 708.)

The Portage Defendants move to dismiss the claims against them for lack of subject-matter

jurisdiction and failure to state a claim upon which relief may be granted.4 (Defs.’ Mot. Dismiss

at 10–21, ECF No. 28.)

4 This motion was filed prior to the case’s transfer to this Court. The Portage Defendants also argued the Eastern

District of Pennsylvania lacked personal jurisdiction over them and the Eastern District of Pennsylvania was an

improper venue. (Defs.’ Mot. Dismiss at 6–10.) These arguments are now moot due to the transfer of the case.

Similarly, Plaintiff’s response asks the Court to transfer the case to the Southern District of Ohio. (See Pl.’s Resp. at

1.) This request is also moot.

II.

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks

subject matter jurisdiction. Without subject matter jurisdiction, a federal court lacks authority to

hear a case. Thornton v. Sw. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). “The Rooker-

Feldman doctrine states that district courts lack subject-matter jurisdiction over challenges to state

court determinations.” Caddell v. Campbell, No. 1:19-cv-91, 2020 U.S. Dist. LEXIS 24315, at

*11 (S.D. Ohio Feb. 12, 2020); see also Hall v. Callahan, 727 F.3d 450, 453 (6th Cir. 2013)

(“Federal district courts do not stand as appellate courts for decisions of state courts.”). Federal

courts must give full faith and credit to final judgments from state courts and lack jurisdiction to

review those decisions. See 28 U.S.C. § 1257. The Rooker-Feldman doctrine applies to any case

in which a plaintiff attempts to bring an impermissible attack on a state court judgment. Caddell,

2020 U.S. Dist. LEXIS 24315 at *12.

Additionally, a court lacks subject-matter jurisdiction when the Eleventh Amendment to

the United States Constitution grants sovereign immunity to the states against suits in federal

court.5 Seminole Tribe v. Florida, 517 U.S. 44, 54–59 (1996). “Under the Eleventh Amendment,

federal courts lack jurisdiction to hear suits by private citizens against a state unless the State

explicitly consents to the suit or unless Congress, pursuant to a valid exercise of power,

indisputably consents its intent to abrogate state immunity.” Bedford v. Kasich, No. 2:11-cv-351,

2011 U.S. Dist. LEXIS 51903, at *19 (S.D. Ohio May 4, 2011) (citing Port Auth. Trans-Hudson

Corp. v. Feeney, 495 U.S. 299, 304 (1990)). Additionally, “[a]n entity acting as an arm of the state

enjoys Eleventh Amendment immunity from federal suit to the same extent as the state itself.”

5 While the Portage Defendants did not expressly raise Eleventh Amendment immunity with regards to all claims to

which it is applicable, the Court may raise Eleventh Amendment immunity on its own. Cady v. Arenac Cnty., 574

F.3d 334, 345 (6th Cir. 2009); Yancey v. L.A. Superior Court, No. 5:03-CV-122, 2004 U.S. Dist. LEXIS 330, at *9

(W.D. Mich. Jan. 2, 2004) (citing Penhurst State, 465 U.S. at 121).

Yancey v. Los Angeles Superior Court, No. 5:03-cv-122, 2004 U.S. Dist. LEXIS 330, at *10 (W.D.

Mich. Jan. 2, 2004) (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47–51 (1994)).

Thus, Eleventh Amendment immunity extends to state officials sued in their official capacity.6

McCormick v. Miami Univ., No. 1:10-cv-345, 2011 U.S. Dist. LEXIS 48467, at *55–56 (S.D. Ohio

May 5, 2011) (citing Tucker v. Ohio Dep’t Rehab. & Corr., 157 F.3d 453, 457 (6th Cir. 1998)).

This is because a suit against a state official in his official capacity is not a suit against the official

but rather a suit against the official’s office and as such is no different than a suit against the state

itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). “[C]ounty officials who act in

the capacity of a state official in enforcing state law that affords no discretion can be considered a

state official and gain Eleventh Amendment Immunity.” Rice v. Leis, No. 1:04-CV-00021, 2005

U.S. Dist. LEXIS 31369, at *12 (S.D. Ohio Nov. 29, 2005) (citing Gottfried v. Med. Planning

Servs. Inc., 280 F.3d 684, 892–92 (6th Cir. 2002)).

Eleventh Amendment immunity for state officials is limited, however, by the doctrine of

Ex Parte Young, which the Supreme Court has described as applying “when a federal court

commands a state official to do nothing more than from refrain from violating federal law.” Va.

Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 248 (2011). In these instances, courts apply

a “legal fiction” that the state official is not the state for purposes of sovereign immunity. See id.

As a result, when a state official is sued for violating federal law and only for prospective, non-

monetary relief, such as an injunction, Eleventh Amendment immunity does not apply. See Ex

Parte Young, 209 U.S. 123, 15–60 (1908); Smith v. Oakland Cnty., 344 F. Supp. 2d 1030, 1056

6 With respect to prosecutors, although a city or county prosecutor is an employee of such city of county, if the

prosecutor is prosecuting state criminal law they are entitled to sovereign immunity and the suit against them cannot

stand. See Pusey v. City of Youngstown, 11 F.3d 652, 657–58 (6th Cir. 1993); Hertel v. Everett, No. 2:18-cv-179,

2018 U.S. Dist. LEXIS 138573, at *11 (S.D. Ohio Aug. 16, 2018). Plaintiff alleges Prosecutor Meduri failed to

prosecute state law such as physical assault and threatening murder. (Am. Compl. ¶ 137, 256–57.)

(E.D. Mich. 2004). To evaluate whether the Ex Parte Young doctrine applies, the Court need only

look to the allegations in the complaint, not the merits of the claim. Bedford, 2011 U.S. Dist.

LEXIS 51903 at *24 (citing Verizon MD. Inc. v. United States, 535 U.S. 635, 646 (2001)). This

doctrine does not apply to a state official’s violation of state law, to which Eleventh Amendment

immunity applies. Penhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984); see also

Ohioans Against Corp. Bailouts, LLC v. LaRose, 417 F. Supp. 3d 962, 975–76 (S.D. Ohio Oct. 23,

2019) (“A claim that a state official violates state law in carrying out his or her official duties is a

claim against the state, which is barred by the Eleventh Amendment, depriving a federal court of

jurisdiction to hear the matter.”).

III.

The Portage Defendants argue that the Court lacks subject matter jurisdiction over the case

because Plaintiff asks the Court to review the state court’s decisions in the Thornsbery case.

(Defs.’ Mot. Dismiss at 10–11.) Plaintiff contends she is entitled to bring this case because she

“has exhausted all of her state remedies” and because of “the Supremacy Clause of the U.S.

Constitution.” (Pl.’s Resp. at 14–15, 18–19, ECF No. 33.)

Plaintiff is asking for a series of different types of relief in this case some of which include:

a new trial with a new judge for the Thornsbery case, amendment of Judge Pokorny’s orders in the

Thornsbery case, dismissal of the sanctions against Plaintiff which were ordered in the Thornsbery

case, dismissal of the determination that Plaintiff is a vexatious litigator made in the Thornsbery

case, recusal by Judge Pokorny from the Thornsbery case and “every other case in Ohio,”

reevaluation of Plaintiff’s previously dismissed state court complaints, and transfer of the

Thornsbery case out of Portage County, Ohio. (Am. Compl. ¶¶ 691–97.) Additionally, many of

Plaintiff’s claims argue Defendants violated rules of procedure in the Thornsbery case, for

example, violations of the federal rules of civil procedure. (See id. ¶¶ 384–455, 465–96, 501–07,

529–30, 677–83.) With all of these requested forms of relief and alleged violations during the

civil trial, Plaintiff attempts to attack a final state court judgment. This Court does not have subject

matter jurisdiction over these claims under the Rooker-Feldman doctrine.7 See Caddell, 2020 U.S.

Dist. LEXIS 24315 at *11; Hall, 727 F.3d at 453; see also Yancey, 2004 U.S. Dist. LEXIS 330 at

* 8–10 (finding the district court did not have subject matter jurisdiction due to the Rooker-

Feldman doctrine in a case challenging a state court decision on various grounds including state

law, federal law, and the Constitution); McLynas v. Tennessee, No. 3:06-cv-00186, 2007 U.S. Dist.

LEXIS 7477, at *7 (E.D. Tenn. Feb. 2, 2007) (finding the court did not have jurisdiction to hear

the portion of the claims previously heard, considered, and/or decided by the Knoxville state

court). Thus, these claims are DISMISSED.8

Additionally, Portage Courthouse, a Portage Municipal Court, is immune from suit under

the Eleventh Amendment.9 The Court begins with the question of whether this defendant is an

“arm of the state.” See Smith, 344 F. Supp. 2d at 1053 (noting that for individuals to have Eleventh

Amendment immunity they must be “arms of the state” or “alter egos” of the state). Plaintiff

argues that the Eleventh Amendment does not protect municipalities. (Pl.’s Resp. at 14.) In the

Sixth Circuit, however, Ohio municipal courts are arms of the state and thus entitled to Eleventh

7 The Portage Defendants also ask the Court to abstain from deciding any claims against them in order respect the

rightful independence of state governments. (Defs.’ Mot. Dismiss at 12 (citing R.R. Comm’n of Tex. v. Pullman, 312

U.S. 496, 500–01 (1941).) The Court need not address this issue because it finds the Rooker-Feldman doctrine

requires the Court to dismiss all claims that seek to attack a state court judgment.

8 Plaintiff states in her introduction and conclusion that she would like her case stayed until her state court cases are

complete. (Pl.’s Resp. at 1, 25.) Plaintiff provides no law as to why this is proper or how this would then allow the

district court to rule in a way that would affect her state court judgment. This argument is without merit.

9 Plaintiff is unclear as to whether she intends to sue the actual Portage Courthouse as a location or whether she intends

to sue the Portage Municipal Court. This Section is applicable if she intends to sue the Portage Municipal Court where

the Thorsnbery case began.

Amendment immunity.10 Cent. Ohio Alt. Program v. Ballinger, No. 3:06CV01083, 2007 U.S.

Dist. LEXIS 19551, at *10–11 (N.D. Ohio Mar. 20, 2007) (“In the Sixth Circuit, Ohio municipal

courts are generally viewed as ‘arms of the state’ under the Eleventh Amendment.”); see also

Foster v. Walsh, 864 F.3d 416, 418–19 (6th Cir. 1988) (“The Akron Municipal Court is part of the

Ohio state court system, established by the Ohio state legislature, . . . subject to the supervision of

the Ohio Supreme Court, . . . may not be abolished by the city counsel, . . . [and] the employees of

the Akron Municipal Court are not city employees subject to the authority of the Akron Civil

Service Commission.”). Thus, the Portage Municipal Court is an arm of the state and thus, the suit

is essentially a suit against the state of Ohio. Ohio has not waived its immunity in federal court

and Congress has not abrogated it. See Ohio v. Madeline Marie Nursing Homes # 1 & # 2, 694

F.3d 449, 460 (6th Cir. 1982). Thus, the Portage Courthouse has Eleventh Amendment immunity

and all claims against it are DISMISSED.

Plaintiff also sues the Individual Portage Defendants in their official capacities for

damages, which is in essence a suit is against their employers. See Will, 491 U.S. at 7. As stated

above, the Court has found the Individual Portage Defendants’ employer, the Portage Courthouse

and/ or the State of Ohio, has Eleventh Amendment immunity. Additionally, the Individual

Portage Defendants were acting to enforce state law. See e.g., Ohio Rev. Code § 2301.50

10 As our sister district, the Northern District of Ohio, has recognized “the law is somewhat unsettled in this area in

the wake of rulings from the United States Supreme Court emphasizing the need to consider whether the state would

be legally liable for any judgment in a sovereign-immunity analysis.” Holt v. Bedford Mun. Court, No.1:18 CV 2996,

2019 U.S Dist. LEXIS 47114, at *4 n.18 (N.D. Ohio Mar. 21, 2019) (citing Alkire v. Irving, 330 F.3d 802, 812 (6th

Cir. 2003) (noting “[i]t is plain that the reasoning in Mumford, if not the result, is now incorrect in light of the Supreme

Court’s decision in [Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994),]” and remanding to the lower

court to consider which entity would pay the damages)). Nonetheless, the Sixth Circuit has not overruled its prior

decisions finding the municipal courts in Ohio to be arms of the state for purposes of Eleventh Amendment immunity.

Id.; see also Triplett v. Connor, 109 F. App’x 94, 96 n.4 (6th Cir. 2004) (acknowledging “some doubt about the

continued validity of Mumford’s reasoning,” but holding “we have not, however, decided that Mumford was

incorrect”); Ward v. City of Norwalk, 640 F. App’x 462, 465 (6th Cir. 2016) (“Alkire’s emphasis on the source-of-

payment factor does not change the conclusion that the Norwalk Municipal Court is an arm of the state for § 1983 and

Eleventh Amendment purposes, and plaintiffs’ money-damage claims against [defendants] in their official capacities

are therefore barred.”).

(providing the cost of court transcripts). Thus, the individual Portage Defendants have Eleventh

Amendment immunity for all claims against them in their official capacities for damages. See e.g.,

S.L. v. Peirce Twp. Bd. of Trs., No. 1:07cv986, 2009 U.S. Dist. LEXIS 31367, at *20–21 n.7 (S.D.

Ohio Mar. 26, 2009) (“[I]f [the] [p]laintiffs intended to sue [defendant] Judge Wyler in her official

capacity as a Common Pleas Court Judge, she would be entitled to Eleventh Amendment

Immunity.”); Doughty v. Tenn. Dep’t of Children’s Servs., No. 2016 U.S. Dist. LEXIS , at *10

(E.D. Tenn. Apr. 28, 2016) (“Because the official-capacity claims against [the individual

defendants employed by a state agency] are in essence suits against [the state agency] itself—an

‘arm of the state’ entitled to Eleventh Amendment immunity—they too are barred.”); Novel v.

Zapor, No. 2015 U.S. Dist. LEXIS 197441, at *13 (S.D. Ohio Mar. 11, 2015) (“Judges of the Knox

County Common Pleas Court sued in their official capacities are arms of the state entitled to

Eleventh Amendment immunity.”). Thus, the claims against the Individual Portage Defendants in

their official capacity for damages are DISMISSED.

Finally, there remains Plaintiff’s claims for prospective injunctive relief against the

Individual Portage Defendants.11 These claims involve allegations that the Individual Portage

Defendants are committing ongoing violations of both federal and state law. For example, the

Amended Complaint alleges that Judge Pokorny is violating the “Sunshine laws by refusing

[Plaintiff] audio of the trial [sic].” (Am. Compl. ¶ 47.) To the extent that Plaintiff asks for

injunctive relief for violations of state law the individual State Defendants have Eleventh

Amendment immunity. See Penhurst, 465 U.S. at 106. These claims are DISMISSED. To the

extent Plaintiff asks for prospective injunctive relief for ongoing violations of federal law,

11 The injunctive relief Plaintiff asks for requests that the Individual Portage Defendants take actions in their official

capacities such as restoring Plaintiff’s ability to write on public websites. (Am. Compl. ¶ 701.) Thus, the Court

construes the claims against the Individual Portage Defendants as in their official capacities only.

however, Plaintiff’s claims are not dismissed on the basis of lack of subject-matter jurisdiction.

Ex Parte Young, 209 U.S. at 60.

In sum, the following claims are dismissed because this Court lacks subject-matter-

jurisdiction: all claims that request interference with a state court judgment, all claims against the

Portage Courthouse, and all claims against the Individual Portage Defendants in their official

capacities for damages and for prospective injunctive relief arising out of violations of state law.

There remain claims against the Individual Portage Defendants for prospective relief for ongoing

violations of federal law and claims against them in their personal capacities for money damages

and claims against Portage County.

IV.

Federal Rule of Civil Procedure 12 authorizes dismissal of a lawsuit for “failure to state a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To meet this standard, the

complaint must allege sufficient facts to state a claim that is “plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). “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). In considering a

Rule 12(b)(6) motion to dismiss, the Court construes the complaint in the light most favorable to

the non-moving party, accepting as true all of plaintiff’s factual allegations. Gunasekera v. Irwin,

551 F.3d 461, 466 (6th Cir. 2009).

Nonetheless, the Court must read Rule 12(b)(6) in conjunction with Federal Rule of Civil

Procedure 8(a), requiring a short and plain statement of the claim showing that the plaintiff is

entitled to relief. Ogle v. BAC Home Loans Servicing LP, 924 F. Supp. 2d 902, 907 (S.D. Ohio

2013). Thus, the pleading’s factual allegations, assumed to be true, must do more than create mere

speculation or suspicion of a legally cognizable claim; they must show entitlement to relief.

League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). Further, “the

tenet that courts must accept a complaint’s allegations as true is inapplicable to threadbare recitals

of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 662.

As such, while a plaintiff is not required to set forth detailed factual allegations at the pleading

stage, a complaint must contain a basis upon which relief can be granted; a recitation of facts

intimating the “mere possibility of misconduct” will not suffice. See id. at 679;

Fed. R. Civ. P. 8(a).

Moreover, courts are called to “liberally construe pro se complaints and hold such

complaints to a less stringent standard than pleadings prepared by attorneys.” Frengler v. Gen.

Motors, 482 F. App’x 975, 976 (6th Cir. 2012) (citing Martin v. Overton, 391 F.3d 710, 712 (6th

Cir. 2004)). However, such “lenient treatment has limits” and courts “should not have to guess at

the nature of the claim asserted . . . .” Id. at 977 (internal quotations omitted).

V.

The Portage Defendants move to dismiss the claims against them for the following reasons:

(1) Portage County and Portage Courthouse are not entities capable of being sued; (2) Judge

Pokorny is entitled to absolute immunity; (3) Court Reporter DiNardo is entitled to quasi-judicial

immunity; (4) Plaintiff lacks standing to sue Prosecutor Meduri; (5) Claims against Clerk of Courts

Fankhauser, Portage Courthouse, Court Reporter DiNardo, and Prosecutor Meduri are exclusively

governed by the Ohio Rules of Superintendence; (6) Clerk of Courts Fankhauser, Prosecutor

Meduri, and Court Reporter DiNardo are entitled to qualified immunity; and (7) Clerk of Courts

Fankhauser, Prosecutor Meduri, and Court Reporter DiNardo are entitled to Ohio statutory

immunity. (See Defs.’ Mot. Dismiss at 15–21.)

1. Entities Capable of Being Sued

The Portage Defendants argue that Portage County and Portage Courthouse are not entities

capable of being sued. (Defs.’ Mot. Dismiss at 15.) Plaintiff does not address this argument in

her response.12 As such, Plaintiff waives opposition to dismissal. See Conrad v. Bank Nat’l Ass’n,

391 F. Supp. 3d 780, 791–92 (S.D. Ohio June 19, 2019) (“[The plaintiff] does not refute [the

defendant’s] characterization of [the claim], nor does [the plaintiff] respond in any way to [the

defendant’s] argument that this claim should be dismissed. Thus, [the plaintiff] appears to concede

this point and waives opposition to dismissal of this claim.”); see also Woods v. U.S. Bank Nat’l

Ass’n, No. 517CV2234, 2019 U.S. Dist. LEXIS 44901, at *6–7 (N.D. Ohio Mar. 19, 2019) (“A

party waives opposition to an argument by failing to address it in her responsive brief . . . the

[c]ourt is not required to consider the[] merits and may grant judgment in [the moving party’s]

favor.”); Ohio Star Transp., LLC v. Roadway Express, Inc., No. 2:09-cv-261, 2010 U.S. Dist.

LEXIS 95764, at *10 (S.D. Ohio Sept. 14, 2010) (“[The defendant] raises this argument, but [the

plaintiff] does not respond, thereby waiving its ability to challenge the argument and effectively

conceding the point.”). Even if Plaintiff had opposed the argument, the Portage Defendants’

argument is well-taken.

“Absent express statutory authority, a court can neither sue nor be sued in its own right.”

State ex rel. Cleveland Mun. Court v. Cleveland City Council, 296 N.E.2d 544, 546 (Ohio 1973).

“A court is merely a place in which justice is judicially administered. It is the exercise of judicial

power, by the proper officer or officers, at a time and place appointed by law.” Todd v. United

States, 158 U.S. 278, 284 (1895). Similarly, a county is not sui juris and is not capable of being

12 Plaintiff fails to respond to several of the Portage Defendants’ arguments as to why the claims should be dismissed

and instead spends the majority of her response to the motion to dismiss re-stating the factual allegations and the laws

she believes were violated as she did in the Amended Complaint. (See Pl.’s Resp.)

sued because countries are held accountable through their representatives. Hoskins v. Hamilton

Cty. Juvenile Court, No. 1:18-cv-305, 2018 U.S. Dist. LEXIS 183354, at *8 (S.D. Ohio Oct. 25,

2018); McGuire v. Ameritech Servs., 253 F. Supp. 2d 988, 1015 (S.D. Ohio 2003).

Plaintiff has not indicated any express statutory grant to enable her to sue these entities.

Portage County and the Portage Courthouse are both entities not capable of being sued. Thus, all

claims against Portage County and the Portage Courthouse13 are DISMISSED.

2. Absolute Judicial Immunity

The Portage Defendants argue that Judge Pokorny has absolute judicial immunity because

he did not act in clear absence of jurisdiction and each of the challenged acts were judicial acts.

(Defs.’ Mot. Dismiss at 17.) Plaintiff argues that Judge Pokorny does not have absolute judicial

immunity because he acted in absence of all jurisdiction as “a retired judge with no oath of office

and improperly assigned.” (Pl.’s Resp. at 10–11.) The Portage Defendants reply that while

Plaintiff is incorrect and Judge Pokorny was correctly appointed to the case, even if he was not, it

does not deprive him of his absolute immunity. (Reply Supp. Mot. Dismiss at 3–5, ECF No. 34.)

“As early as 1872, the [Supreme] Court recognized that it was ‘a general principle of the

highest importance to the proper administration of justice that a judicial officer, in exercising the

authority vested in him, [should] be free to act upon his own convictions, without apprehension of

personal consequences to himself.’” Stump v. Sparkmam, 435 U.S. 349, 356 (1978) (quoting

Bradley v. Fischer, 80 U.S. 335, 346 (1871)). Thus, judges cannot be held liable to civil actions

for their judicial acts. Id. “A judge will not be deprived of immunity because the action he took

was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to

13 The Court has already dismissed all claims against the Portage Courthouse under the Eleventh Amendment if the

Plaintiff intended to sue the Portage Municipal Court. See infra Section III. This Section applies if Plaintiff

intended to sue the actual courthouse.

liability only when he has acted in the clear absence of all jurisdiction.” Id. (citing Bradley, 80

U.S. at 351). Absolute judicial immunity applies when judges are sued for money damages. See

Barrett v. Harrington, 130 F.3d 246, 254 (6th Cir. 1997).

When a municipal court judge disqualifies himself from a case without an affidavit having

been filed against the judge, “the Chief justice of the Ohio Supreme Court possesses the exclusive

authority to appoint another judge.” State ex rel. Kline v. Carroll, 775 N.E.2d 517, 521 (Ohio

2002); see also Ohio Sup. R. 17(B); Ohio Const. art IV, § 5(A)(3). This law makes clear that

Judge Pokorny’s appointment was valid. Plaintiff claims, however, that Judge Pokorny was not

allowed to sit for 6 months as a judge. (See Compl. ¶¶ 31–32.) Even if this were true, which

Defendant contends it is not, the Sixth Circuit has addressed a similar situation and found that

when there is a defect in the judicial appointment process, the judge continues to act with de facto

authority for purposes of judicial immunity and therefore does not act in a clear absence of all

jurisdiction. See White v. Gerbitz, 892 F.2d 457, 462 (6th Cir. 1989); see also Williams v. Banner

Buick, Inc., 574 N.E.2d 579, 584–85 (Ohio Ct. App. 1989) (finding irregularity in the appointment

of the judge who rendered judgment made the judge a de facto acting municipal judge and the

judgment not open to attack on that ground).

Thus, even if Plaintiff’s contention is true and Judge Pokorny acted as a judge for longer

than prescribed, he was still acting as a de facto judge and thus, for purposes of judicial immunity

did not act in a clear absence of jurisdiction. Additionally, the acts which Plaintiff complains about

were all actions which Judge Pokorny took in connection with his role presiding over the

Thornsbery case and therefore were judicial acts. Judge Pokorny has absolute immunity. Thus,

all claims against Judge Pokorny in his individual capacity for damages are DISMISSED.

3. Quasi-Judicial Immunity

The Portage Defendants argue that Court Reporter DiNardo is entitled to quasi-judicial

immunity because the actions Plaintiff sues him for were taken in connection with the Thornsbery

case and were part of the judicial function. (Defs.’ Mot. Dismiss at 18.) Plaintiff contends that

Court Reporter DiNardo charged excess prices for transcripts and engaged in a verbal altercation

with Plaintiff over the transcript, which were acts outside of his judicial duties, therefore he is

without immunity. (Pl.’s Resp. at 13.)

Courts use a functional approach to determine when judicial officers are entitled to quasi-

judicial immunity. Forrester v. White, 484 U.S. 219, 224 (1988). Under this functional approach,

courts “examine the nature of the functions with which a particular official, [] has been lawfully

entrusted, and [they] seek to evaluate the effect that exposure to particular forms of liability would

likely have on the appropriate exercise of those functions.” Id. This quasi-judicial immunity only

extends to defendants sued in their individual capacities. See id.; Alkire, 330 F. 3d at 810–11. This

Court has previously applied quasi-judicial immunity to court reporters. Morrow v. Igleburger,

67 F.R.D. 675, 683–84 (S.D. Ohio 1974).

Plaintiff’s allegations against Court Reporter DiNardo all involve his duties with regards

to the transcripts in court cases. This function is closely tied to the judicial function and is one

which if subjected to liability would negatively affect the exercise of this function. Therefore,

Court Reporter DiNardo is immune from the claims in this case against him in his individual

capacity for damages. These claims are DISMISSED.

4. Standing to Sue Prosecutors

The Portage Defendants argue that Plaintiff lacks standing to sue Prosecutor Meduri for

failure to prosecute or any other actions related to his job as a prosecutor. (Defs.’ Mot. Dismiss at

18–20.) Plaintiff does not respond to this argument, and as such, waives opposition to dismissal

on these grounds. Conrad, 391 F. Supp. 3d at 791–92; see also Woods, 2019 U.S. Dist. LEXIS

4490 at *6–7; Ohio Star Transp., LLC, 2010 U.S. Dist. LEXIS 95764 at *10. Even if Plaintiff did

respond, the Portage Defendants’ argument is well-taken.

Our sister district court has explained that “[i] is well established that a private citizen lacks

a judicially cognizable interest in the prosecution or nonprosecution of another.” Fulson v.

Columbus, 801 F. Supp. 1, 6 (N.D. Ohio 1992) (citing Linda R. S. v. Richard D., 410 U.S. 614

(1973)). “Thus, courts have generally declined to recognize standing on the part of victims of

crimes to bring a § 1983 action based upon the lack of prosecution of others.” Id. (citing cases).

This is because a public official charged with the duty to prosecute or investigate a crime does not

owe that duty to any one member of the public, and thus, no one member can compel that official

to act. Id.

Here, Plaintiff lacks standing to sue Prosecutor Meduri for failure to investigate or

prosecute the alleged criminal activity of Thornsbery and others.14 Thus, all claims against

Prosecutor Meduri for failure to prosecute are DISMISSED.

Additionally, Plaintiff alleges in her Amended Complaint that Prosecutor Meduri violated

the law and the constitutional rights of non-party Brian Ames at a meeting when Prosecutor Meduri

interrupted Mr. Ames. (Am. Compl. ¶ 136.) Defendant argues Plaintiff does not have standing to

sue on behalf of Mr. Ames. (Defs.’ Mot. Dismiss at 19.) “Ordinarily, one may not claim standing

in this [c]ourt to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346

14 Plaintiff also mentions 18 U.S.C. §§ 241, 242 in her Amended Complaint as related to the criminal actions

Prosecutor Meduri failed to prosecute. These claims are also dismissed because neither statute provides a private right

of action. See United States v. Oguaji, 76 F. App’x 579, 580 (6th Cir. 2003); Moore v. City of Garfield Heights, No.

1:12-cv-1700, 2020 U.S. Dist. Lexis 164911, at *25–26 (N.D. Ohio Nov. 16, 2012). Similarly, Plaintiff sues for

Dereliction of Duties under Ohio Revised Code 2921.44, another criminal statute without a private cause of action

and thus, this claim is also dismissed. Boddie v. Landers, No. 15AP-962, 2016 Ohio App. LEXIS 1274, at *10 (Ohio

Ct. App. Mar. 31, 2016).

U.S. 249, 255 (1953). The Supreme Court has observed, however, “that its salutary rule against

third-party standing is not absolute.” Smith v. Jefferson Cty. Bd. Sch. Comm’rs, 641 F.3d 197, 207

(6th Cir. 2011) (citing Kowalski v. Tesmer, 543 U.S. 125 (2004)). Importantly for this case, in

order to assert a claim on behalf of another person there must be a “hinderance” to the third party’s

“ability to protect his own interests.” Kowalski, 543 U.S. at 130; see also Smith, 641 F.3d at 208–

09 (finding no third-party standing because there was “no indication that the [third-parties] face[d]

any obstacle in litigating their rights themselves”). Plaintiff has not alleged any hindrance on Mr.

Ames’ ability to protect himself and thus, does not have standing to bring claims on his behalf.

This claim is DISMISSED.

5. Ohio Rules of Superintendence

The Portage Defendants argue that claims arising out of an alleged deprivation of a court

transcript and audio recordings against Clerk of Courts Fankhauser, Portage Courthouse, Court

Reporter DiNardo, and Prosecutor Meduri are exclusively governed by the Ohio Rules of

Superintendence. (Defs.’ Mot. Dismiss at 20–21.) Plaintiff does not respond to this argument in

her response, and as such, waives opposition to dismissal on these grounds. Conrad, 391

F. Supp. 3d at 791–92; see also Woods, 2019 U.S. Dist. LEXIS 4490 at *6–7; Ohio Star Transp.,

LLC, 2010 U.S. Dist. LEXIS 95764 at *10. Even if Plaintiff did respond, the Portage Defendants’

argument is well-taken.

The Ohio Rules of Superintendence regulate public access to court records and “are the

sole vehicle for obtaining records in actions commenced after July 1, 2009.” State ex rel. Harris

v. Pureval, 121 N.E.3d 337, 345 (Ohio 2018) (emphasis in original) (citing Ohio R. of

Superintendence 45(A)). Thus, the Ohio Public Records Act is inapplicable to claims over court

records’ requests. See id. Importantly, “a person aggrieved by the failure of a court or clerk of

courts to comply with the Rules of Superintendence regarding access to court records may pursue

an action in mandamus” as their sole remedy. Id. at 345–46 (citing Ohio R. Superintendence

47(B)).

Plaintiff’s claims against Clerk of Courts Fankhauser, Portage Courthouse, Court Reporter

DiNardo, and Prosecutor Meduri include claims under the Sunshine Acts and Ohio Rules of

Superintendence. This, however, is not a mandamus action, and thus, all of these claims are

DISMISSED.

6. Qualified Immunity

The Portage Defendants argue that the Individual Portage Defendants are entitled to

qualified immunity from any remaining constitutional claims. (Defs.’ Mot. Dismiss at 21.)

Plaintiff does not respond to this argument in her response, and as such, waives opposition to

dismissal on these grounds. Conrad, 391 F. Supp. 3d at 791–92; see also Woods, 2019 U.S. Dist.

LEXIS 4490 at *6–7; Ohio Star Transp., LLC, 2010 U.S. Dist. LEXIS 95764 at *10. Even if

Plaintiff did respond, the Portage Defendants’ argument is well-taken.

Government officials sued in their individual capacities “are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The Portage Defendants have raised the qualified immunity defense and, thus, it is now

Plaintiffs’ burden to establish first, that Defendants violated a constitutional right and, second, that

the right was clearly established at the time the challenged conduct took place. Ashcroft v. al-

Kidd, 563 U.S. 731, 735 (2011). In the Sixth Circuit, qualified immunity can be decided on a

motion to dismiss. See Brown v. Mohr, No. 2:13-cv-0006, 2016 U.S. Dist. LEXIS 122292, at *36–

37 (S.D. Ohio Sept. 9, 2016) (citing Jackson v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005)).

“To survive the motion to dismiss on qualified immunity grounds, the plaintiff must allege

facts that ‘plausibly mak[e] out a claim that the defendant's conduct violated a constitutional right

that was clearly established law at the time, such that a reasonable officer would have known that

his conduct violated that right.’” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir.

2016) (quoting Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)). Plaintiff has not satisfied

this burden. Even if Plaintiff’s Amended Complaint establishes that constitutional rights were

violated, which is unclear, Plaintiff has not provided any law with which the Court can decide such

violated law was clearly established at the time it occurred. Thus, any remaining constitutional

claims against the individual Portage Defendants are DISMISSED.15

7. Statutory Immunity

The Portage Defendants argue that the Individual Portage Defendants are entitled to

statutory immunity on any remaining statutory claims. (Defs.’ Mot. Dismiss at 21.) Plaintiff does

not respond to this argument in her response, and as such, waives opposition to dismissal on these

grounds. Conrad, 391 F. Supp. 3d at 791–92; see also Woods, 2019 U.S. Dist. LEXIS 4490 at *6–

7; Ohio Star Transp., LLC, 2010 U.S. Dist. LEXIS 95764 at *10. Even if Plaintiff did respond,

the Portage Defendants’ argument is well-taken.

Under Ohio law, political subdivisions and employees of political subdivisions are immune

from actions to recover damages for injuries allegedly caused by any act or omission in connection

with a government or propriety function provided their actions are not manifestly outside the scope

of their responsibilities, malicious, in bath faith, wanton, or reckless. Ohio Rev. Code § 2744.03;

15 The Constitutional claims against the Portage Defendants in their individual capacities have been dismissed and

thus, the Court need not address the Portage Defendants argument that some aspects of these claims are precluded by

other cases. (See Defs.’ Mot. Dismiss at 13–15.) Additionally, even if the Court were to consider this argument it is

not clear that the Portage Defendants have provided enough detail about the previous cases that would allow the Court

to find preclusion.

Douglas v. Swing, No: 1:10-cv-14, 2011 U.S. Dist. LEXIS 88496, at *31 (S.D. Ohio Aug. 10,

2011). The Portage Defendants claim that each act or omission the Individual Portage Defendants

took were in connection with that individual’s function in the government and no exceptions apply.

Plaintiff does not argue otherwise. The Court agrees. Thus, any remaining statutory claims against

the individual Portage Defendants are DISMISSED.

8. Conclusion

The Portage Defendants’ motion to dismiss is GRANTED in that each of the specific

claims the Portage Defendants asked for dismissal of are dismissed. As a result, all claims asking

for a remedy that involves disturbing the state court judgment in the Thornsbery case are dismissed

under the Rooker-Feldman doctrine. All claims against the Portage Courthouse, the Individual

Portage Defendants in their official capacities for damages, and all claims against the Individual

Portage Defendants in their official capacities for violations of state law are dismissed due to lack

of subject-matter jurisdiction. All claims against Portage County are dismissed because these

entities are not sui juris. All claims against Judge Pokorny in his individual capacity for damages

are dismissed as a result of absolute immunity. All claims against Court Reporter DiNardo in his

individual capacity for judicial acts are dismissed as a result of quasi-judicial immunity. All claims

against Prosecutor Meduri for failure to prosecute or violation of Mr. Ames’ rights are dismissed

for lack of standing. All claims alleging a violation of the Sunshine laws are dismissed for these

cannot be brought in this action. Finally, all remaining constitutional claims and statutory claims

against the Individual Portage Defendants are dismissed because of qualified immunity and

statutory immunity.

The motion to dismiss cannot be granted in its entirety, however, because the motion asks

for every claim against the Portage Defendants to be dismissed but the Portage Defendants have

failed to ask for and justify dismissal of every claim. As a result of the Ex Parte Young doctrine

described above, there remain claims against the Individual Portage Defendants in their official

capacities for injunctive relief as a result of ongoing violations of federal law. Throughout

Plaintiff’s Complaint she alleges ongoing civil rights violations and as a remedy seeks: a public

apology, restoration of her freedom of speech, an order preventing Defendants from violating other

individuals’ civil rights, and that Court Reporter DiNardo lose his license. (Am. Compl. ¶¶ 698,

701–03, 707.)

The Court will DENY without prejudice the motion to dismiss in regard to claims which

the Portage Defendants did not present an argument for dismissal.16

9. Motion to Amend

Plaintiff’s Response asks the Court to allow Plaintiff to file a second amended Complaint

in the alternative to denying the motion to dismiss. (See Pl.’s Resp. at 25, ECF No. 33.) Plaintiff

does not indicate, however, what amendment/s she would like to make. (See id.) The Court cannot

evaluate the propriety of an amendment under Federal Rule of Civil Procedure 15 without

knowledge of the amendment Plaintiff seeks to make. Thus, the Motion to amend is DENIED.

VI.

For the reasons stated above, the Portage Defendants’ Motion to Dismiss (ECF No. 28) is

GRANTED in part and DENIED without prejudice in part. The Clerk is DIRECTED to

terminate Portage County, Ohio and Portage County Courthouse from the lawsuit.

IT IS SO ORDERED.

8/3/2020 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

16 The Court believes it likely Plaintiff has not provided enough factual allegations to state a claim for the remaining

claims. The Court cannot, however, sua sponte dismiss a claim for failure to state a claim without first giving Plaintiff

notice and an opportunity to amend. See Gooden v. City of Memphis, 29 F. App’x 350, 352 (6th Cir. 2002).