Jabbar v. Graham

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HAKIMAH JABBAR,

Plaintiff,

Case No. 2:20-cv-6406

v.

Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

JUDGE JAMES L. GRAHAM,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Hakimah Jabbar, who is proceeding pro se, brings this action against United States

District Court Judge Graham by filing a Complaint for Replevin, Immediate Deposition, and

Subpoena duces tecum. (Doc. 1-1). This matter is before the Undersigned for consideration of

Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc.1) and an initial screen of

Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).

Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who

render services in this action shall do so as if the costs had been prepaid. 28 U.S.C § 1915(a).

Furthermore, having performed an initial screen, it is RECOMMENDED that Plaintiff’s claims

be DISMISSED.

I. BACKGROUND

This is not Plaintiff’s first case against Defendant. See Jabbor v. Graham, No. 1:20-CV-

245, 2020 WL 1649802, at *1 (S.D. Ohio Apr. 3, 2020). The Court in Plaintiff’s first case, which

is nearly identical to this one, summarized the facts and procedural history:

Pursuant to a Preliminary Order of Forfeiture entered in [United States v. Deandre

Forrest, No. 2:17-CR-0158-1 (S.D. Ohio July 20, 2017)], plaintiff filed a third-party

petition claiming an interest in the property subject to the Order. [(citations

omitted)]. On January 16, 2018, Judge Graham granted the United States’ Motion

to Dismiss Jabbar’s forfeiture petition for failure to comply with 21 U.S.C. §

853(n). [(citations omitted)]. The Court issued a final order of forfeiture on July

30, 2018. [(citations omitted)].

Thereafter, on January 17, 2020, Jabbar filed a second Petition for a Civil Stalking

Protection Order in the Franklin County Court of Common Pleas. [(citations

omitted)]. The Petition assert[ed] that Judge Graham “has used gov’t (sic) agencies

and officials to steal my title, rights, and judicial claim to the forfeiture property of

Deandre Forrest 17-cr-158 . . . ” [(citations omitted)]. Jabbar’s Petition also

includes allegations that Judge Graham “used agents for local churches to send mail

to my house that was meant for the prosecutor.” [(citations omitted)]. Jabbar’s

Petition for an immediate Civil Stalking Protection Order was [subsequently]

denied.

Id. at *1. Plaintiff’s second petition for a Civil Stalking Protection Order was dismissed by this

Court on April 28, 2020. See id. Plaintiff now moves again to assert her interest in the forfeited

property subject to the order in United States v. Deandre Forrest, No. 2:17-CR-0158-1 (S.D. Ohio

July 20, 2017). (See generally Doc. 1).

While not entirely clear, Plaintiff seems to claim that Defendant, through the “prolongation

of the Presentencing Investigation Report,” is depriving her of her right to the forfeited property,

which is worth $28, 223.00. (Doc. 1-1 at 28). Specifically, she claims:

[Plaintiff] possesses a continuing, first priority interest in the forfeited property of

DeAndre Forrest, and is lawfully entitled to the interest. [Plaintiff] is entitled to the

immediate possession of the property. The United States of America wrongfully

hold and detain the property [] against [Plaintiff’s] interests. The value of the

property is $82,700,000,000,000.00.

(Id. at 5). Plaintiff seeks a wide range of relief, including: (1) the issuance of an order granting

her possession of property; (2) judgment against Defendant in the sum of $82.7 billion, for the

value of the property; (3) an additional judgment against Defendant of $84 billion, for his alleged

wrongful detention and use of the forfeited property; as well as (4) emergency depositions of

Defendant and multiple other court personnel. (Id. at 7).

II. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, 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). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth

“a short and plain statement of the claim showing that the pleader is entitled to relief.” In reviewing

her Complaint, the Court must construe it in favor of Plaintiff, accept all well-pleaded factual

allegations as true, and evaluate whether it contains “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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) (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that consists of

“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is

insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be

construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are

still required, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

III. DISCUSSION

While there are a number of fatal flaws to Plaintiff’s Complaint, the Undersigned addresses

the two most obvious ones below.

A. Frivolity

Plaintiff’s Complaint must be dismissed for a basic reason—it is duplicative of her first

case against Judge Graham. “A complaint is duplicative and subject to dismissal if the claims,

parties and available relief do not significantly differ from an earlier-filed action.” Cummings v.

Mason, No. 1:11-cv-649, 2011 WL 2745937, at *2 (W.D. Mich. July 13, 2011) (citing Serlin v.

Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)). Duplicative, however, does not mean

identical. Although the two complaints may not “significantly differ” from one another––the focus

is on “the substance of the complaint.” Id. (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th

Cir. 1988) (holding that a complaint was duplicative although different defendants were named

because it “repeat[ed] the same factual allegations” asserted in the earlier case)).

This case is duplicative of Plaintiff’s first case against Judge Graham and must be

dismissed as a result. Each case stems from her belief that she is entitled to government-forfeited

property. And both complaints allege Judge Graham engaged in a conspiracy to deprive Plaintiff

of her alleged right to the forfeited property and that he impeded Plaintiff’s attempts to serve and

depose him. (See generally Doc. 1-1); see also Graham, 2020 WL 1649802, at *1.

Accordingly, Plaintiff’s Complaint, which simply copies her previously litigated claims,

should be dismissed under 28 U.S.C. § 1915(e)(2) as “frivolous or malicious.” Smith v. City of

Detroit, No. 12-CV-14278, 2012 WL 7830033, at *3 (E.D. Mich. Oct. 31, 2012) (citing

McWilliams v. State of Colorado, 121 F.3d 573, 574 (10th Cir. 1997) (holding “that repetitious

litigation of virtually identical causes of action may be dismissed under the in forma pauperis

statute as frivolous or malicious”)).

B. Judicial Immunity

While Plaintiff’s Complaint may be dismissed for frivolity alone, it is worth also noting

that Defendant Judge Graham is immune from liability. Judicial immunity shields judges, and

other public officers, “from undue interference with their duties and from potentially disabling

threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). “Like other forms of official

immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of

damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity is overcome only if the

actions taken were not in the judge’s judicial capacity and if the actions taken were in absence of

all jurisdiction. Id. at 11–12.

The Court dismissed Plaintiff’s previous suit against Judge Graham because it was “clear

that the decisions made by Judge Graham in the federal forfeiture proceeding were functions

normally performed by judges.” Graham, 2020 WL 1649802, at *1. So too here. Like before,

Plaintiff alleges that Defendant Judge Graham “wrongfully detained” the forfeited property and is

therefore in “unlawful possession of [it].” (Doc. 1-1 at 4–5). She also claims that he “ordered a

Final Order of Forfeiture . . . in an [un]timley [sic] manner.” (Id.).

These allegations do not lead to an inference that Defendant Judge Graham was acting

outside of his judicial capacity in the federal forfeiture proceeding. Indeed, as discussed in

Plaintiff’s first case, the opposite is true. See Graham, 2020 WL 1649802, at *1 (dismissing

Plaintiff’s complaint as “[i]t [was] clear that the decisions made by Judge Graham in the federal

forfeiture proceeding were functions normally performed by judges”) (citing Stump v. Sparkman,

435 U.S. 349, 362 (1978)).

The same is true regarding Plaintiff’s allegation that Defendant Judge Graham “depriv[ed]

Plaintiff of her rights by conspiracy.” (Doc. 1-1 at 4–5). Again, Plaintiff alleges no facts from

which the Court could infer that Defendant Judge Graham acted in the absence of all jurisdiction.

See Graham, 2020 WL 1649802, at *1 (finding that Judge Graham was immune from this claim)

(citing Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001)). And Plaintiff’s Complaint should be

dismissed for this additional reason.

IV. CONCLUSION

Plaintiff’s request to proceed in forma pauperis is GRANTED. Based upon the foregoing,

however, it is RECOMMENDED that Plaintiff’s claim be DISMISSED. Should the Court adopt

this Report and Recommendation, it is additionally RECOMMENDED that the Court certify

pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting

this Report and Recommendation would not be taken in good faith and, consequently, leave for

Plaintiff to appeal in forma pauperis is DENIED.

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: December 22, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE