Deters v. Hammer

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ERIC C. DETERS

Case No. 1:20-cv-00362

Plaintiff,

Black, J.

v. Bowman, M.J.

MATTHEW HAMMER, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Eric Deters, proceeding pro se, initiated this action on October 19, 2020

by filing a complaint against Matthew Hammer and Mr. Hammer’s current law firm.1

Plaintiff alleges that Defendant Hammer is liable for defamation and false light under Ohio

law, and that Defendant McKenzie & Snyder, LLP is vicariously liable for Hammer’s

commission of those torts. (Doc. 1). Pursuant to local practice, the case has been

referred to the undersigned for initial consideration and a report and recommendation on

the Defendants’ pending motion for summary judgment. For the reasons that follow,

Defendants’ motion should be GRANTED.

I. Standard of Review

Discovery in this case remains ongoing through March 10, 2021, with a dispositive

motion deadline of April 12, 2021. However, Defendants filed a “first motion” for summary

judgment on October 19, 2020, which motion has been fully briefed by the parties.

1Plaintiff alleges that he initially filed suit in the Butler County Court of Common Pleas but voluntarily

dismissed on February 11, 2020. Plaintiff then re-filed suit in this Court, invoking diversity jurisdiction. The

complaint filed in this Court contains numerous references to exhibits, but no exhibits are attached.

Because it is abundantly clear from the undisputed facts that Defendants are entitled to

judgment as a matter of law on the basis of Hammer’s absolute immunity for his

statements, Defendants’ motion should be granted.

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts . . . in the light most favorable to the non-moving party.”

Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(e)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment—rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id.

After a moving party has carried its initial burden of showing that no genuine issues

of material fact remain in dispute, the burden shifts to the non-moving party to present

specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348 (1986). “The ‘mere possibility’ of a

factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)

(citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). In order to survive

summary judgment, the non-moving party must present probative evidence that supports

its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505

(1986). The non-moving party’s evidence “is to be believed, and all justifiable inferences

are to be drawn in his favor.” Id. at 255. The court determines whether the evidence

requires submission to a jury, or whether one party must prevail as a matter of law

because the issue is so one-sided. Id. at 251-52.

Although reasonable inferences must be drawn in favor of the opposing party, see

id. at 255, he must present significant probative evidence tending to support the

complaint. First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 290, 88 S.Ct. 1575

(1968). To demonstrate a genuine issue, the opposing party “must do more than simply

show that there is some metaphysical doubt as to the material facts . . . . Where the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party,

there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

II. Findings of Fact

Defendants’ motion is supported by the following facts, which are undisputed by

Plaintiff. (See Doc. 14-2; Doc. 16 at 1 “Plaintiff does not dispute the statement of facts

provided by Defendants in the Motion.”).

Defendant Hammer is an Ohio attorney and a current employee of McKenzie &

Snyder. McKenzie & Snyder is a domestic limited liability partnership with a primary place

of business in the City of Hamilton, Ohio. Before becoming associated with his current

firm, Hammer worked as an attorney with Plaintiff Eric Deters at the Deters Law Office

between January 2015 and February 2018, at which time he resigned.

Hammer previously had been interviewed by the Chief Assistant Disciplinary

Counsel for the Supreme Court of Ohio, Joseph M. Caligiuri, in connection with that

body’s investigation of Plaintiff. Attorney Caligiuri requested that Hammer give an

interview to the Office of Disciplinary Counsel for Kentucky regarding Hammer’s

experiences practicing law with Plaintiff. Caligiuri advised Hammer that it was his

responsibility as an attorney to cooperate with Carl Christiansen by answering questions

that the Kentucky Bar Association (“KBA”) had regarding Plaintiff. On May 15, 2018, in

Cincinnati, Ohio, Hammer spoke to Carl Christiansen, investigator and agent of the KBA,

in connection with Plaintiff’s application for reinstatement to the Bar in the Commonwealth

of Kentucky. In addition to the oral interview, Hammer provided a written statement to

Christiansen and/or the KBA.

Plaintiff alleges that he did not learn of the May 15, 2018 statements, which Plaintiff

alleges were defamatory, until August 28, 2018. (Complaint, Doc. 1 at ¶5). Plaintiff

alleges he is a Kentucky resident who “is a retired Ohio attorney and victim’s advocate

and spokesperson for Deters Law.” (Doc. 1 at ¶12). In his memorandum in opposition to

the motion, Plaintiff additionally describes himself as “the office manager” of Deters Law

Firm. (Doc. 16 at 10).

At present, Plaintiff remains unable to practice law for his namesake firm in any

state. Although Plaintiff was permitted to retire from Ohio, he remains under suspension

in Kentucky and in this Court.2 See Deters v. Ky. Bar Ass’n. 646 Fed. Appx. 468, 470

2Plaintiff was permitted to retire from Ohio practice on September 17, 2014. He also attempted to retire

from Kentucky but was prohibited from doing so under Kentucky Supreme Court Rule 3.480(1), which

prohibits withdrawal from membership during the pendency of disciplinary proceedings. Kentucky Bar

Ass’n v. Deters, 465 S.W.3d 30, 35 (Ky. 2015). His subsequent challenge to that rule was rebuffed for

failure to state any claim in Deters v. Ky. Bar Assoc., 130 F. Supp.3d 1038 (E.D. Ky. 2015). Plaintiff has

been disciplined and suspended from the practice of law on multiple occasions; his September 2014

suspension from this Court remains in effect, as does his suspension in Kentucky. See In Re Eric C. Deters,

Case No. 1:12-mc-042; see also https://www.kybar.org/members (accessed on January 29, 2021). Cases

involving disciplinary proceedings and/or Rule 11 sanctions against Deters include: Deters v. Ky. Bar Ass’n,

646 Fed. Appx. 468 (6th Cir. April 28, 2016), cert. denied, 137 S. Ct. 496 (Nov. 28, 2016); Deters v. Ky. Bar

Ass’n, 474 S.W.3d 299 (Ky. 2016); Ky Bar Ass’n v. Deters, 465 S.W.3d 30 (Ky. 2015); Deters v. Ky. Bar

Ass’n, 130 F. Supp.3d 1038 (E.D. Ky. 2015); Deters v. Ky. Bar Ass’n, Case No. 1:14-cv-192 (S.D. Ohio

2014). Kentucky Bar Ass’n v. Deters, 406 S.W.3d 812 (2013), cert. denied, 134 S. Ct. 965 (Jan. 13, 2014);

Deters v. Ky. Bar Ass’n, 408 S.W.3d 71 (Ky. 2012); Ky. Bar Ass’n. v. Deters, 360 S.W. 3d 224 (Ky. 2012);

Deters v. Kenton County, 2012 WL 512588 (Ky. Ct. App. Feb. 17, 2012); Deters v. Ky. Bar Ass’n, 2011 WL

5837172 (E.D. Ky. Nov. 21, 2011), aff’d, Case No. 11-6524 (6th Cir. Dec. 10, 2012); Deters v. Davis, 2011

WL 2417055 (E.D. Ky. June 13, 2011); Deters v. Davis, 2011 WL 127166 (E.D. Ky. Jan. 14, 2011); Deters

v. Huebener, 2009 WL 874607 (Ky. Ct. App. April 3, 2009). Plaintiff also has been suspended from the

(6th Cir. 2016) (“Since 2012, Deters has been suspended from the practice of law on

multiple occasions for violations of the Kentucky Rules of Professional Conduct, including

several instances of dishonesty…. Deters has unsuccessfully challenged the disciplinary

process multiple times in both state and federal court.”).

This lawsuit relates specifically to Plaintiff’s unsuccessful attempt to obtain

reinstatement in Kentucky.3 Specifically, Plaintiff alleges that multiple statements made

by Hammer during the course of his interview with Kentucky investigator Christiansen

were false, and that Hammer knew that the statements were false when he made them.

According to Plaintiff, Hammer’s statements provided “the primary claims used against

Plaintiff in his Kentucky reinstatement proceedings,” and “were used against him by the

Character & Fitness and the Board of Governors to recommend against his

reinstatement.” (Doc. 1 at ¶23).

Hammer has testified that he made the complained-of statements both to the KBA

investigator and to two attorneys involved in an investigation conducted by the Ohio Bar

Association. (Doc. 14-1, Affidavit at ¶¶8-11). An affidavit that reflects some of the

statements made to the KBA, dated May 11, 2018, is attached as an exhibit to

Defendants’ motion for summary judgment. (See Doc. 14-3 at 31-32). The complaint

contains a conclusory allegation that Hammer made similar statements to unidentified

practice of law in Florida. See The Florida Bar v. Deters, 118 So. 3d 808, 2013 WL 3388370 (Fla. June 27,

2013) (Table).

3The website for Deters Law is ericdeters.com. In a videotaped legal advertisement on that website, Plaintiff

states “I may not be licensed to practice law at the moment. Why? I retired in Ohio and I’m in the process

of being reinstated in Kentucky. But you know what? None of that matters. Why? I’m able to work on your

case no matter what. So when you come to Deters Law, you get the bulldog, and the team that I

assembled.” Id., (accessed on January 29, 2021, emphasis added).

“others” on unspecified dates, but Plaintiff has offered no evidence of other publication to

anyone else on any date.

III. Analysis

A. Choice of Law

Before discussing the merits of the pending motion, the undersigned must briefly

address a choice of law issue. Defendants’ motion relies primarily upon the assertion of

absolute immunity under Ohio law, but also cites to Kentucky Supreme Court rules setting

forth a similar privilege under Kentucky law. In his opposition to the motion, Plaintiff

vehemently disputes the applicability of Kentucky law. According to Plaintiff, Hammer

made the allegedly tortious statements in Ohio, Hammer resides and practices law in

Ohio, and Plaintiff’s federal lawsuit is based entirely on Ohio law for defamation and false

light and not Kentucky law. With the exception of the noted brief reference to Kentucky

Supreme Court rules, Defendants’ motion also presumes the applicability of Ohio law.

Because the parties only superficially discuss choice of law issues, the undersigned will

keep this portion of the analysis brief.

Choice of law issues become relevant when the law of the competing jurisdictions

is different. See Mulch Mfg., Inc. v. Advanced Polymer Solutions, LLC, 947 F.Supp.2d

841, 855 (S.D. Ohio 2013) (quoting Wendy's Int'l, Inc. v. Illinois Union Insur. Co., No.

2:05-cv-803, 2007 WL 710242, at *5 (S.D. Ohio Mar. 6, 2007)). Here, a preliminary

analysis suggests that differences may exist between the two jurisdictions for the claims

asserted by Plaintiff in this case.4

4For example, claims for defamation and false light under Kentucky law must be filed within a one-year

statute of limitations. See KRS 413.140. Given Plaintiff’s allegations that the statements were made in May

2018 and discovered in August 2018, with this federal suit not filed until October 19, 2020, Kentucky’s

shorter limitations period could impact the outcome of suit.

Assuming differences exist, “[a] federal court sitting in diversity applies the choice-

of-law rules of the forum state.” Mulch Mfg., Inc., 947 F.Supp.2d at 854 (citing Pedicini v.

Life Ins. Co. of Alabama, 682 F.3d 522, 526 (6th Cir. 2012)). For tort claims filed under

Ohio law, “a presumption is created that the law of the place of the injury

controls.’” Herndon v. Torres, 249 F. Supp. 3d 878, 884 (N.D. Ohio 2017)

(quoting Friedman v. Intervet Inc., 2010 WL 2817257 at *8 (N.D. Ohio July 16, 2010)).

Plaintiff suggests that the conduct causing the injury and the place of injury both occurred

in Ohio, although at least some damages are alleged to have occurred in Kentucky after

Kentucky denied Plaintiff’s application for reinstatement. Defendants both reside in Ohio

and conduct business in Ohio. One can infer from Plaintiff’s allegations, as well as from

publicly available state and federal court records, that Plaintiff conducts business in both

Ohio and Kentucky. Considering the very strong interests of Ohio on the record presented

concerning its grant of immunity to attorneys involved in judicial proceedings as well as

the position of all parties that Ohio law applies, the undersigned concludes that Ohio law

should in fact be applied.

B. Defendants Are Entitled to Absolute Immunity

Under Ohio law, Hammer is entitled to absolute immunity for the statements made.

See generally, Surace v. Wuliger, 25 Ohio St.3d 229, 495 N.E.2d 939 (1986). In his

opposition to Defendants’ motion, Plaintiff posits that Ohio’s immunity is limited “to

inquiries before the Ohio Bar Association” and cannot extend to an Ohio attorney’s

statements if those statements, despite being made in Ohio, were used in an ongoing

judicial proceeding in another state (Kentucky). Plaintiff’s theory would hypothetically

allow Hammer to claim absolute immunity for statements made during the course of the

Ohio disciplinary investigation but not for the identical statements that Hammer admittedly

shared with the KBA investigator.

Unsurprisingly, Plaintiff cites to no authority to support his position, which the

undersigned rejects as incompatible with Ohio law. Under that settled law, the key

element is whether the statements were made in the context of “a judicial proceeding” –

there is no additional jurisdictional qualifier that applies to defamation and false light

claims filed under Ohio law.5 In Surace, the Ohio Supreme Court explained the privilege

in this way:

[A]s a matter of public policy, under the doctrine of absolute privilege in a

judicial proceeding, a claim alleging that a defamatory statement was made

…does not state a cause of action where the allegedly defamatory

statement bears some reasonable relation to the judicial proceeding in

which it appears.

Surace v. Wuliger, 495 N.E.2d at 942-43.

KBA disciplinary proceedings are judicial proceedings. See Deters v. Davis, 2011

WL 127166 (E.D. Ky. Jan. 14, 2011) (holding that Plaintiff’s constitutional challenges to

ongoing state bar disciplinary proceeding were barred by the Younger abstention

doctrine, because the Kentucky bar disciplinary proceeding was a state judicial

proceeding); see also, generally Middlesex County Ethics Committee v. Garden State Bar

Association, 457 U.S. 423, 102 S.Ct. 2515 (1982). The reinstatement proceeding is also

a “judicial proceeding” because it examined whether the suspension previously imposed

should continue, or whether Plaintiff should be reinstated.

5Ohio has consistently expanded the application of absolute immunity, from oral testimony to written

statements made in judicial proceedings, and more recently to statements made in “quasi-judicial”

proceedings such as a university’s disciplinary hearing against a student. See Savoy v. University of Akron,

2014-Ohio 3043 15 N.E.430, 435 (Ohio Ct. App. 10th Dist. 2014).

Plaintiff’s statements were provided to the KBA investigator (at the request of the

Ohio Bar Association) in furtherance of Kentucky’s judicial proceeding. The fact that the

statements were made at the investigatory stage is of no consequence to the application

of immunity. See Hecht v. Levin, 613 N.E.2d 585, 588, 66 Ohio St.3d 458 (Ohio 1993)

(holding that a complaint filed with the grievance committee is part of a judicial

proceeding); Mootispaw v. Kiger, 1997 Ohio App. LEXIS 1461 at *3 (Ohio Ct. App. 12th

Dist. April 14, 1997) (holding that absolute privilege “extends to every step in the

proceeding, from beginning to end.”). Thus, Defendants are entitled to absolute immunity

for all of Hammer’s statements, because they occurred within the context of a judicial

proceeding. Accord Hecht, 613 N.E.2d at 590 (“[A] statement made in the course of an

attorney disciplinary proceeding enjoys an absolute privilege against a civil action based

thereon as long as the statement bears some reasonable relation to the proceeding.”).

Plaintiff’s primary argument in opposition to the application of absolute immunity is

meritless because it is contrary to settled Ohio law. He asserts that “the immunity does

not apply because [the statements] were not made in good faith.” (Doc. 16 at 2). Plaintiff

maintains that Hammer made “false” statements because he was a disgruntled employee

motivated by personal animus against Deters and a desire to financially benefit himself

and his new employer.6 (Id. at 7, 9).

6Plaintiff’s theory of liability against McKenzie & Snyder, L.L.P rests on respondeat superior and the

allegation that Hammer made the statements to promote his new firm’s interests. Hammer’s unrebutted

interrogatory responses reflect that he did not initiate any contact with any Deters Law Firm client after

leaving his employment, but that “[s]ome contacts contacted me because apparently Deters represented I

was in bad health.” (Doc. 14-3 at 50, Interrogatory 18). When contacted, Hammer advised “that I had

moved on from the firm and I would be working for M&S. If asked, I would only advise that their options

were to stay, follow me, or get a new lawyer.” (Id.) Defendant’s response to Interrogatory 19 reflects that

four former/current clients of Deters Law ultimately retained Defendants instead of continuing with Deters.

(Id. at 51).

Some eighty years ago in Bigelow v. Brumley, 37 N.E.2d 584, 138 Ohio St. 574

(Ohio 1941), the Ohio Supreme Court explained that the nature of the absolute privilege

– as opposed to “qualified privilege” – is that an “absolute privilege protects the publisher

of a false, defamatory statement even though it is made with actual malice, in bad faith

and with knowledge of its falsity; whereas the presence of such circumstances will defeat

the assertion of a qualified privilege.” Id., 37 N.E.2d at 588, 138 Ohio St. at 579. Twenty-

eight years ago in Hecht, the same court restated the doctrine this way:

Because statements made in judicial proceedings enjoy an absolute

privilege, we hold that a statement made in the course of an attorney

disciplinary proceeding enjoys an absolute privilege against a civil action

based thereon as long as the statement is relevant and material to the

proceeding. The privilege exists irrespective of the relationship between

complainant and attorney, and irrespective of whether the statement was

made in bad faith.

Hecht v. Levin, 613 N.E.2d at 588.

The relevancy and materiality of Hammer’s statements to the KBA disciplinary

proceeding are uncontested. Every single one of the alleged statements relates to

Plaintiff’s fitness to practice law, and/or whether he should be reinstated to said practice.

Plaintiff’s damages rely upon the fact that the statements were used in the KBA’s denial

of his reinstatement. (See Doc. 1 at ¶ 23; id. at ¶27, “Defendant Hammer knew that

Christiansen was an employee of the [KBA] and would publish his findings to members

of the KBA.”).7

7Although the complaint includes a conclusory allegation that Hammer repeated the statements to

unspecified “others,” Hammer’s affidavit admits to making the statements only within the context of Ohio’s

or Kentucky’s disciplinary proceedings, and Plaintiff has failed to cite to any other evidence of publication.

See Young v. Jones, 122 Ohio App.3d 539, 544, 702 N.E.2d 445 (6th Cir. 1997) (affirming grant of summary

judgment on defamation claim where plaintiff had failed to offer evidence that statements were made

outside of grievance process).

For many decades in decisions like Bigelow, Surace and Hecht, the Ohio Supreme

Court has consistently and repeatedly emphasized that absolute immunity (rather than

qualified immunity) applies to statements like those made by Defendant Hammer in this

case. “Although the result may be harsh in some instances and a party to a lawsuit may

possibly be harmed without legal recourse, on balance, a liberal rule of absolute immunity

is the better policy, as it prevents endless lawsuits because of alleged defamatory

statements in prior proceedings.” Surace, 25 Ohio St.3d at 234 (quoting Justice v.

Mowery, 69 Ohio App.2d 75, 430 N.E. 960 (Ohio Ct. App. 10th Dist., 1980)).

Strong public policy supports Ohio’s application of absolute immunity to statements

made by judges and other lawyers about another lawyer or former lawyer seeking

reinstatement:

Just as we held in Surace that the truth-seeking process in litigation

demands the free and unencumbered exchange of statements, so does the

process of maintaining the ethical standards of the legal profession. A

qualified privilege would open the door to retaliatory suits such as the one

in this case and would chill the reporting of attorney misconduct. We believe

to be overstated the warning that an absolute privilege will open a

“Pandora's box” of grievances against attorneys. The attorney disciplinary

process has been carefully designed to separate the wheat from the chaff.

A grievance is kept private until a panel of the board makes a finding of

probable cause and certifies it to the board. … Investigation and

independent review of a grievance occur at several stages before this court

makes its own independent determination of discipline. …These

procedures assure that clearly frivolous complaints are summarily

dismissed, with little emotional, professional, or financial toll on the subject

of the complaint. For these reasons, we conclude that the balance between

encouraging people to come forward with legitimate complaints and

protecting attorneys from harassment is best struck by means of absolute

immunity.

In addition, judges and lawyers are obligated by their codes of ethics to

report attorney misconduct of which they become aware. … The rule we

adopt today encourages judges and attorneys to observe their codes of

professional conduct without hesitation or fear of retaliation.

Hecht v. Levin, 613 N.E.2d at 589 (internal citations omitted). Consistent with Hecht,

Hammer testified that he provided the challenged statements in accordance with his

ethical obligations as a practicing attorney in Ohio.

Plaintiff’s remaining argument against the application of absolute immunity is

equally without merit. Plaintiff argues that no privilege applies to Hammer’s statements

because Plaintiff is merely “an employee of Deters Law and a victim’s advocate, not ...a

lawyer.” (Doc. 16 at 2). However, the fact that Plaintiff failed to obtain reinstatement to

the bar does not change the character or context of the statements, all of which were

made within the context of the KBA’s disciplinary proceedings in Plaintiff’s quest for

reinstatement. In any event, as previously stated, the Ohio privilege applies to statements

made against any person in any judicial proceeding. See, generally, Elling v. Graves, 94

Ohio App.3d 382, 640 N.E,2d 1156 (Ohio Ct. App. 6th Dist., 1994) (absolute privilege

applied to statements made in psychological report used in civil custody dispute).

C. Consideration of Sanctions

Many pro se litigants seek to file their federal complaints without payment of fees.

In those instances, Congress has given courts authority to screen out frivolous or

malicious litigation at the very earliest stages, at the time the complaint is filed and prior

to service upon any Defendant. See 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be

dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v.

Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). That includes cases in which the

defendant is immune from suit or when plaintiff claims a violation of a legal interest which

clearly does not exist. Neitzke, 490 U.S. at 327. Thus, through the type of preliminary

screening authorized under § 1915, the strain on judicial resources (as well as on the

defendants) is lessened by early dismissal.

Here, Plaintiff is not a pauper and avoided any initial screening under 28 U.S.C. §

1915(e) by paying the requisite filing fee. However, his extensive litigation experience

and history suggests that he either knew, or should have known, that absolute immunity

barred the instant lawsuit. Therefore, the undersigned is compelled to raise the question

as to whether some sanction should be imposed in this case, particularly in light of other

cases in which Plaintiff has been sanctioned for filing suit against those who are

absolutely immune for all claims. See, e.g., Deters v. Schweikert, Case No. 1:19-cv-204,

2019 WL 2290650 at * 8 (S.D. Ohio May 6, 2019) (recommending issuance of sua sponte

order directing pro se Plaintiff to show cause why a monetary sanction should not issue

based upon “patently frivolous claims and arguments” in clear violation of Rule 11),

adopted at 2019 WL 2289150; see also Deters v. Ky. Bar Ass’n, 130 F. Supp.3d 1038,

1048 (E.D. Ky 2015); Deters v. Davis, 2011 WL 2417055, at *5 (imposing sua sponte

Rule 11 sanctions against Deters at a time when he was proceeding pro se rather than

as an attorney in a representative capacity).

Even if a litigant pays a filing fee, if he repeatedly files frivolous or malicious

lawsuits, this Court may deem him to be a vexatious litigant, and impose pre-filing

restrictions to reduce the burden that such litigation places on judicial resources.

See Stewart v. Fleet Financial, 229 F.3d 1154, 2000 WL 1176881 (6th Cir. 2000)

(citing Feathers v. Chevron U.S.A., 141 F.3d 264, 269 (6th Cir. 1998)). Additionally,

Plaintiff previously has been sanctioned under Rule 11, which exists as a check on the

filing of even a single frivolous lawsuit. Rule 11(b) states that by filing a pleading, the

party

certifies that to the best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by

existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery....

Id.

If a pro se litigant fails to comply with Rule 11, a court “may impose [any]

appropriate sanction.” See Rule 11(c). A court may impose sanctions on its own initiative,

after directing the party “to show cause why conduct specifically described in the order

has not violated Rule 11(b).” See Rule 11(c)(3); Deters v. Schweikert, 2019 WL 2290650

at * 8. If imposed, a sanction “must be limited to what suffices to deter repetition of the

conduct” and “may include nonmonetary directives [or] an order to pay a penalty into

court.” Rule 11(c)(4).

Plaintiff’s conduct in the case of Deters v. Schweikert was more reprehensible

insofar as he had filed suit alleging the same patently-frivolous claims (against another

immune defendant) that had been dismissed by other courts. In the case presented,

Plaintiff voluntarily dismissed an earlier version of his lawsuit in state court, but there does

not appear to be a prior state or federal court ruling rejecting the exact same type of

defamation claims against a defendant who is immune from suit. In addition, this case is

being dismissed on summary judgment rather than under Rule 12, Fed. R. Civ. P.

Still, Plaintiff is skating on thin ice. Plaintiff has filed suit against defendants who

enjoy absolute immunity on multiple occasions, including this case, and either fails to

understand or willingly disregards that clear legal doctrine. Therefore, the undersigned

recommends consideration of two non-monetary sanctions: (1) an express warning to

Plaintiff that filing a further lawsuit against any defendant who enjoys absolute immunity

may result in sanctions, including but not limited to a declaration that Plaintiff is a

vexatious litigator; and (2) requiring Plaintiff to provide a pre-filing certification by a

licensed attorney prior to initiating another pro se suit that, under existing law or other

non-frivolous argument, the named defendant(s) are not immune from suit.

IV. Conclusion and Recommendation

For the reasons stated, it is RECOMMENDED THAT:

(1) Defendants’ motion for summary judgment (Doc. 13) be GRANTED and that

this case be dismissed;

(2) The Court consider whether the non-monetary sanctions discussed above

should be incorporated into any order of dismissal.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ERIC C. DETERS

Case No. 1:20-cv-00362

Plaintiff,

Black, J.

v. Bowman, M.J.

MATTHEW HAMMER, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).