In Re: Kyle Rohrig

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

In re: KYLE ROHRIG

Civil Action 2:21-cv-2266

Judge Sarah D. Morrison

Magistrate Judge Elizabeth P. Deavers

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff, who is proceeding without the assistance of counsel,1 moves this court for leave

to proceed in forma pauperis. (ECF No. 1.) 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).

This matter is before the Court sua sponte for an initial screen of Plaintiff’s Complaint as

required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons

that follow, it is RECOMMENDED that the Court DISMISS this action in its entirety.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

1 It is unclear whether Plaintiff is a resident of Ohio or Washington. Plaintiff signed his petition

and included a Tacoma, WA address. (ECF No. 1-1, at 4.) He also included a Canal

Winchester, Ohio address on his in forma pauperis application. (ECF No. 1, at 3.)

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To state a claim upon which relief may be granted, a plaintiff must satisfy the basic

federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

1Formerly 28 U.S.C. § 1915(d).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

In addition, a federal court has limited subject matter jurisdiction. “The basic statutory

grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which

provides for ‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of

citizenship’ jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question

jurisdiction is invoked when a plaintiff pleads a claim “arising under” the federal laws, the

Constitution, or treaties of the United States. Id. (citation omitted). For a federal court to have

diversity jurisdiction pursuant to Section 1332(a), there must be complete diversity, which means

that each plaintiff must be a citizen of a different state than each defendant, and the amount in

controversy must exceed $75,000. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

II.

Plaintiff, proceeding pro se, has submitted a document captioned as a “Motion for Writ of

Mandamus.” (ECF No.1-1.) In this document, Plaintiff states that he is “seeking a Motion for

Writ of Mandamus against Columbus Prosecution, and Judge O’Grady of Franklin County

Municipal Court to make them follow 18USC226(A) Full Faith and Credit to Protection Orders

to terminate all three CPO’s and charges against Plaintiff, prosecutorial misconduct/malicious

prosecution, Bardy v. Maryland (Brady’s Rule), Giglio v. United States (Giglio’s Rule),

4th/5th/8th amendments, and Stare desis….” (Id.)

Plaintiff’s allegations are difficult to follow. Exhibits attached to his motion indicate the

following: a civil stalking protection order was entered against Plaintiff by the Franklin County

Court of Common Pleas on February 6, 2019 (ECF No. 1-1, at 9); a warrant was issued in

September 2019 for a violation of a protective order (Id. at 8); charges against Plaintiff in Florida

were terminated in March 2021 (Id. at 6); and Plaintiff appeared before Judge Grady for an

arraignment on April 8, 2021 in State of Ohio v. Kyle Rohrig, Case No. 21 CRB 3653. (Id. at

11). Plaintiff’s attempt in his motion to connect the dots is of limited help but he states that “The

FL incident on 19MAR21 also directly affects being charged with ORC violation of CPO….”

(Id. at 2.) For the reasons that follow, this action will be dismissed for lack of subject matter

jurisdiction.

Most simply, the Court cannot grant Plaintiff’s requested relief because, under Federal

Rule of Civil Procedure 81(b), the writ of mandamus has been abolished. “Relief previously

available through [writs of mandamus] may be obtained by appropriate action or motion under

these rules.” Fed. R. Civ. P. 81(b). “[U]nder 28 U.S.C. § 1651 (All Writs Statute) federal courts

may issue all writs necessary or appropriate in aid of their respective jurisdictions, including

writs in the nature of mandamus.” Skaggs v. Jefferson Cir. Ct., No. 3:18-CV-P149-DJH, 2018

WL 2187723, at *1 (W.D. Ky. May 11, 2018) (citing Haggard v. Tennessee, 421 F.2d 1384,

1385 (6th Cir. 1970)). However, “[i]t is settled that a federal court has no general jurisdiction to

issue writs of mandamus where that is the only relief sought.” Id. (citing Haggard, at 1386).

That is the case here. Plaintiff has captioned his filing as seeking only mandamus relief. “In the

absence of special statutory authority [a federal court] can issue writs of mandamus only as

ancillary to and in aid of jurisdiction otherwise vested in it.” Id. While 28 U.S.C. § 1361 gives

the district courts “original jurisdiction of any action in the nature of mandamus to compel an

officer or employee of the United States or any agency thereof to perform a duty owed to the

plaintiff” (emphasis added), Plaintiff asks this Court to compel “Columbus Prosecution,” and

Judge O’Grady of Franklin County Municipal Court to perform an act. These are not officers,

employees, or agencies of the United States. Accordingly, Plaintiff’s filing is subject to

dismissal for lack of subject matter jurisdiction. Id. at *2.

Moreover, even construing Plaintiff’s pro se filing liberally as the Court is required to do,

there would be additional bars to the Court’s ability to grant Plaintiff relief. For example, if

Plaintiff had brought his action under 42 U.S.C. § 1983 more directly against either Judge

O’Grady or the prosecutor, to the extent Plaintiff is requesting that the Court involve itself in a

pending state court matter, the Court must abstain under the principles of Younger v. Harris, 401

U.S. 37 (1971). See, e.g., Skaggs, 2018 WL 2187723, at *2 (explaining that, to the extent

Plaintiff’s mandamus action seeking a prompt hearing on motion to vacate sentence could be

construed as a § 1983 action, Younger abstention prevented interference with on-going state

court proceedings.) Younger abstention derives from a desire to prevent federal courts from

interfering with the functions of state criminal prosecutions and to preserve equity and comity.

Doe v. Univ. of Kentucky, 860 F.3d 365, 368–69 (6th Cir. 2017). Abstention may occur when

three criteria are met: (1) state proceedings are currently pending; (2) the proceedings involve an

important state interest; and (3) the state proceedings will provide the federal plaintiff with an

adequate opportunity to raise his constitutional claims. Id. (citing Middlesex County Ethics

Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432-34 (1982)).

Plaintiff’s request that the Court order that all current charges against him be dropped

appears to arise in connection with a currently proceeding state criminal proceeding. At

minimum, the proceedings Plaintiff describes reasonably can be characterized as “akin” to one.

See Doe, 860 F.3d at 369 (recognizing that Younger precludes federal involvement in certain

proceedings that “are akin to criminal prosecutions). Under this circumstance, the State of Ohio

has an important interest in adjudicating the underlying action. Further, Plaintiff has not

articulated any reason to believe that the Ohio state courts will not fully and fairly litigate any

constitutional claims that may arise. In addition, Plaintiff alleges no unusual or extraordinary

circumstances sufficient to warrant federal intervention at this time. Therefore, even were the

Court to consider Plaintiff’s action as a § 1983 action, he has failed to show that the state courts

are unable to protect his interests at this time. Accordingly, the Court would abstain from

interfering in what appears to be Plaintiff’s on-going state court proceeding.

Finally, if Plaintiff had filed this action as a petition for writ of habeas corpus, such relief

would not be available to him. A federal court may not grant habeas corpus relief unless the

petitioner has exhausted all available state remedies or demonstrated their inadequacies. Skaggs,

2018 WL 2187723, at *3 (citing Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002) (“Habeas

corpus relief is available only if the applicant first exhausts remedies available in state court.”)).

Plaintiff has not done so here.

III.

Plaintiff’s application for leave to proceed in forma pauperis. (ECF No. 1) is

GRANTED. For all the foregoing reasons, it is RECOMMENDED that the Complaint in its

entirety be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2) for lack of

subject matter jurisdiction. It is FURTHER RECOMMENDED that the Court certify pursuant

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

Report and Recommendation would not be taken in good faith and, therefore, if Plaintiff moves

for leave to appeal in forma pauperis, that such request be denied. See Callihan v. Schneider,

178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105

F.3d 274, 277 (6th Cir. 1997).

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that party

may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

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

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

IT IS SO ORDERED.

Date: May 11, 2021 /s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE