Jackson v. Bachman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KASSANDRA JACKSON, Case No. 1:19-cv-422

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

MICHAEL BACHMAN, REPORT AND

Defendant. RECOMMENDATION

This matter is before the Court on defendant Michael Bahman’s motion to dismiss (Doc.

31), plaintiff Kassandra Jackson’s response (Doc. 33), and defendant’s reply (Doc. 34). Plaintiff

also filed a notice of additional authority (Doc. 35), attached to which is the Supreme Court of

Ohio’s opinion in a disciplinary action against defendant concerning the same incident at issue in

this matter.

I. BACKGROUND

The following facts are derived from plaintiff’s amended complaint (Doc. 24). Prior to

7:45 a.m. on September 4, 2018, plaintiff arrived at the Hamilton County, Ohio courthouse to

obtain a Civil Stalking Protection Order (CSPO) concerning a fellow church member. After

entering and completing the necessary paperwork, a Clerk of Court’s office employee notified

plaintiff that she had missed the 8:10 a.m. deadline by which CSPO petitions must be filed in

order to receive a same-day hearing. “Frustrated and confused,” plaintiff proceeded to then-

magistrate Bachman’s (defendant’s) fifth floor courtroom to request a hearing that day. (Doc.

24, PAGEID 234 at ¶ 12).

The events that followed were recorded by video without audio. Defendant’s courtroom

clerk, Donnie Long, talked with plaintiff for approximately two minutes and reiterated that her

case could not be heard that same day. The discussion was heated and defendant’s law clerk,

Alec Burkhart, observed the conversation from the courtroom via video recording and went to

the hallway “to attempt to diffuse the situation.” (Id., PAGEID 235 at ¶ 18). When it became

clear that no exception would be made for plaintiff, Mr. Burkhart walked back toward the

courtroom and plaintiff walked down the hallway toward the exit. None of the conversation

among plaintiff, Mr. Long, and Mr. Burkhart was picked up by the courtroom’s audio recording

system, but after its conclusion, the courtroom’s audio recording system reflects an audible

scream by plaintiff as she walked away from defendant’s courtroom’s entrance.

Approximately 10 seconds after the conversation concluded, defendant exited his

courtroom, pursued plaintiff, “pointed at her and ordered her to stop and return to the

courtroom.” (Id. , PAGEID 236 at ¶ 30). Defendant continued to yell and point at plaintiff,

eventually running after and catching up with her near the fifth floor stairwell. Defendant again

ordered her to return to his courtroom and plaintiff began walking in that direction—followed by

defendant. Plaintiff started to enter the main entrance of defendant’s courtroom, but defendant

“grabbed [plaintiff] with four fingers cupping her left should and his thumb in her neck and

redirected her to the side entrance of the courtroom. [] With his hand still firmly on her shoulder

and neck, [defendant] then forcibly directed [plaintiff] into the courtroom and then forced her

into a chair in the jury box.” (Id., PAGEID 237 at ¶¶ 35-36). The direct physical contact

between plaintiff and defendant lasted approximately 23 seconds.

Without telling plaintiff why she was being placed there or giving her an opportunity to

explain or otherwise respond, the following exchange occurred:

[Defendant to plaintiff]: Have a seat right in that jury box, and don’t move.

[Defendant to either Mr. Long or Mr. Burkhart]: “Get the sheriff up here.”

[Plaintiff]: “What? Why?”

[Defendant to plaintiff]: If you open your mouth one more time, you’re adding on

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to your misery ma’am.

[Plaintiff]: What?

[Defendant]: Stop. Now-now-now, let me see who is here for my 8:30 cases.

[Defendant calls several matters from his regularly scheduled docket.]

[Defendant]: . . . . Deputies, [plaintiff] is in your custody for contempt of court

for causing a ruckus which interrupted our hearing. Three days in jail.

[Plaintiff]: No. No. No. No.

[Defendant]: Don’t make it worse ma’am.

[Plaintiff resists deputies and screams several times.]

[Defendant]: Ten days.

[Defendant]: Why you sending me to jail? Because I came here to get help?

(Id., PAGEID 237-38 at ¶¶ 40-47).

Two days later, the administrative and presiding judge of the Hamilton County Court of

Common Pleas watched the video recording, mitigated plaintiff’s penalty, and ordered her

released from custody. After being informed that all of the judges of the Hamilton County Court

of Common Pleas felt that he should be let go, defendant resigned as magistrate.

Plaintiff originally filed her complaint pro se on June 14, 2019 (Doc. 3). In her amended

complaint (Doc. 24), she alleges deprivation of her procedural and substantive Fourteenth

Amendment due process rights under 42 U.S.C. § 1983 (Counts I and II), violation of her First

Amendment rights (Count III), and violations of Ohio law through assault (Count IV), battery

(Count V), negligence and gross negligence (Count VI), and negligent infliction of emotional

distress (Count VII).

Defendant moves to dismiss all counts under both Federal Rule of Civil Procedure

12(b)(1) and (b)(6). Defendant first asserts absolute judicial immunity from all claims, qualified

immunity from plaintiff’s constitutional claims, and immunity for plaintiff’s state law claims

under Ohio’s Political Subdivision Tort Liability Act (PSTLA). Defendant separately argues

that plaintiff’s claims should be dismissed for lack of subject matter jurisdiction under the

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Rooker-Feldman doctrine. See D.C. Ct. of App. v. Feldman, 460 U.S. 462, 476 (1983) (“[T]he

United States District Court is without authority to review final determinations of [state courts]

in judicial proceedings.”); Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923) (“The jurisdiction

possessed by the District Courts is strictly original.”). Finally, defendant argues that plaintiff’s

state law assault and battery claims are time-barred.

II. STANDARDS OF REVIEW

Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), “the plaintiff

has the burden of proving jurisdiction in order to survive the motion.” Uzielli v. Frank, 137 F.

App’x 795, 798 (6th Cir. 2005) (quoting Moir v. Greater Cleveland Reg’l Trans. Auth., 895 F.2d

266, 269 (6th Cir. 1990)). “A Rule 12(b)(1) motion to dismiss may constitute either a facial

attack or a factual attack.” FieldTurf USA, Inc. v. Sports Const. Grp., LLC, 507 F. Supp. 2d 801,

803 (N.D. Ohio 2007) (citing United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). Facial

attacks challenge the sufficiency of the jurisdictional allegations in the complaint, such that those

allegations must be taken as true and construed in the light most favorable to the nonmoving

party. Id. (citing Ritchie, 15 F.3d at 598). Defendant’s Rooker-Feldman argument constitutes a

facial attack on the sufficiency of the jurisdictional allegations of the amended complaint. See

Reguli v. Guffee, 371 F. App’x 590, 595 (6th Cir. 2010) (citing DLX, Inc. v. Ky., 381 F.3d 511,

516 (6th Cir. 2004), rev’d on other grounds as stated in Ladd v. Marchbanks, 971 F.3d 574, 578

(6th Cir. 2020) and construing Rooker-Feldman argument as a facial attack under Rule 12(b)(1)).

The Court therefore construes all allegations in the light most favorable to plaintiff for purposes

of defendant’s Rule 12(b)(1) motion.

Likewise, in deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all

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factual allegations as true and make reasonable inferences in favor of the non-moving party.

Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d

571, 575 (6th Cir. 2005)). Only “a short and plain statement of the claim showing that the

pleader is entitled to relief” is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he statement

need only give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Id. (internal quotation marks omitted) (quoting Erickson v. Pardus, 551 U.S. 89, 93

(2007)). Although the plaintiff need not plead specific facts, the “[f]actual allegations must be

enough to raise a right to relief above the speculative level” and to “state a claim to relief that is

plausible on its face.” Id. (alteration in original) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007)). “A plaintiff must ‘plead[] factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Id.

(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

III. ANALYSIS

A. Rooker-Feldman

The Court begins with the Rooker-Feldman doctrine, which implicates the subject matter

jurisdiction of this Court to consider plaintiff’s claims. See Durham v. Haslam, 528 F. App’x

559, 565 (6th Cir. 2013) (“[T]he Rooker-Feldman doctrine concerns the subject-matter

jurisdiction of the district court . . . and ‘federal courts have a duty to consider their subject

matter jurisdiction in regard to every case. . . .’”) (citing In re Squire, 617 F.3d 461, 465 (6th Cir.

2010) and quoting Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d

459, 465 (6th Cir. 2009)).

Defendant argues that plaintiff’s claims are barred by the Rooker-Feldman doctrine

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because they are, in effect, a collateral attack on her state court contempt conviction. Plaintiff

argues in response that the injuries alleged in her complaint are distinct from the state court

proceedings—emphasizing her position that “there was no case involving [her] before

[defendant] on the date in question.” (Pl.’s Resp., Doc. 33 at PAGEID 318).

The Rooker-Feldman doctrine “precludes ‘lower federal courts . . . from exercising

appellate jurisdiction over final state-court judgments.’” Skyway Inv. Corp. v. Tushman, 541 F.

App’x 536, 538 (6th Cir. 2013) (quoting Lance v. Dennis, 546 U.S. 459, 463 (2006)). The

doctrine is “confined to cases . . . brought by state-court losers complaining of injuries caused by

state-court judgments rendered before the district court proceedings commenced and inviting

district court review and rejection of those judgments.” Id. (quoting Exxon Mobil Corp. v. Saudi

Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Subject matter jurisdiction is lacking under the

Rooker-Feldman doctrine if: (1) the plaintiff is “the losing party in state court,” id. (quoting

Skinner v. Switzer, 562 U.S. 521, 531 (2011)); (2) the plaintiff is asking the district court to

“‘review and reject [ ]’ those judgments, which were ‘rendered before the district court

proceedings commenced,’” id. (quoting Exxon Mobil Corp., 544 U.S. at 284); and (3) the

plaintiff’s “injuries were ‘caused[ ]’ by the state-court judgment at issue.” Id. (quoting Exxon

Mobil Corp., 544 U.S. at 284). “The pertinent inquiry . . . is whether the ‘source of the injury’

upon which [the] plaintiff bases his federal claim is the state court judgment, not simply whether

the injury complained of is ‘inextricably intertwined’ with the state-court judgment.” Id.

(alteration in original) (quoting Kovacic v. Cuyahoga Cnty. Dep’t of Child. and Fam. Servs., 606

F.3d 301, 309 (6th Cir. 2010)) (quoting McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir.

2006)).

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Defendant relies primarily on a single case for his argument that the Rooker-Feldman

doctrine bars plaintiff’s claims: Arsan v. Keller, No. 3:17-cv-121, 2017 WL 6398734 (S.D. Ohio

Dec. 13, 2017). In that case, the plaintiff had been a party in a custody dispute. Id. at *1. She

alleged that the guardian ad litem’s testimony in that proceeding violated her Fourteenth

Amendment rights because it was based on ethnic, racial, and religious bias, and adversely

affected the result in the custody case. Id. at *2. The court granted the guardian ad litem’s

motion to dismiss on quasi-judicial immunity grounds. Id. at *3. The court remarked in a

footnote, however (without deciding and without the parties having briefed the issue), that it was

inclined to find that the Rooker-Feldman doctrine would deprive it of subject matter jurisdiction

over the plaintiff’s claims because “the [state court] proceedings and judgment . . . caused her

injuries. . . .” Id. at *4 n.4.

Plaintiff does not appear to disagree with defendant’s summation of applicable law,

relying on Garry v. Geils, 82 F.3d 1362, 1365-66 (7th Cir. 1996)1 (“If the injury alleged resulted

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from the state court judgment itself, Rooker[-]Feldman directs that the lower federal courts lack

jurisdiction. If the injury alleged is distinct from that judgment . . . res judicata may apply, but

Rooker[-]Feldman does not.”). Rather, she maintains that her injuries do not derive from

defendant’s contempt decision itself.

The Court does not find Arsan to be a useful basis for comparison. Aside from not

actually deciding the Rooker-Feldman issue, the plaintiff’s grievances in Arsan were tied to the

result of the custody proceeding. See Arsan, 2017 WL 6398734 at *2 (summarizing the

plaintiff’s claims as alleging that the defendant’s actions had an “adverse effect upon this

1 The Sixth Circuit has favorably cited this portion of the Seventh Circuit’s reasoning. See, e.g., Stemler v.

Florence, 350 F.3d 578, 589 (6th Cir. 2003).

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[custody] case” and “ensure[d] that custody of [her son] be given to [the boy’s father.]”). Here,

by contrast, plaintiff alleges claims of assault, battery, negligence, and negligent infliction of

emotional distress claims (Counts IV-VII) that are independent from defendant’s decision to

convict her of contempt and relate instead to defendant’s physical actions towards her. The

Court does not find that the Rooker-Feldman doctrine bars these claims.

There is one exception, however, which is the portion of plaintiff’s negligence claim

(Count VI) that explicitly relates to defendant’s decision to find plaintiff in direct contempt—

inviting this Court’s collateral ruling as to the substance of that decision.2 (See Doc. 24,

1F

PAGEID 248 at ¶¶ 149-50). As such, to the extent that Count VI of plaintiff’s amended

complaint alleges negligence in defendant’s decision to impose direct contempt, it is barred by

the Rooker-Feldman doctrine.

Plaintiff’s constitutional claims do not appear to implicate review of the merits of

defendant’s decision to find plaintiff in contempt. See Johnson v. Ohio Sup. Ct., 156 F. App’x

779, 782 (6th Cir. 2005) (the Rooker-Feldman doctrine bars jurisdiction in “(1) cases where . . .

issues raised and decided in the state courts are presented to the federal district courts for

reconsideration; and (2) cases where . . . the federal district courts must review the state court

2 The Sixth Circuit has summarized Ohio’s criminal contempt law as follows:

[C]riminal contempt . . . may be termed indirect or direct. See In re McGinty, [507 N.E.2d 441,

445 (Ohio Ct. App. 1986)]; In re Carroll, [501 N.E.2d 1204, 1208 (Ohio Ct. App. 1985)]. Indirect

contempt occurs when the contemnor’s actions occur outside the presence of the court. See In re

McGinty, 507 N.E.2d at 445; see also In re Gonzalez, [591 N.E.2d 1371, 1373 (Ohio Ct. App.

1990)]. Whereas, direct contempt “is an act ‘of misbehavior in the presence of or so near the court

or judge as to obstruct the administration of justice.[’”] In re McGinty, 507 N.E.2d at 445 (citing

Ohio Rev. Code § 2705.01). . . . [D]irect contempt may be summarily punished. . . .

Hanner v. O’Farrell, 142 F.3d 434, 1998 WL 136212 at *3 (6th Cir. 1998) (Table) (per curiam) (footnote omitted).

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judgments to resolve the federal claims.”) (citations omitted). Plaintiff’s procedural due process

claim concerns the deprivation of her opportunity to be heard, lack of counsel, and physical

abuse. (See Doc. 24, PAGEID 241 at ¶¶ 81-85). Plaintiff’s substantive due process claim is

premised on her “right to be free from state intrusions into realms of personal privacy and bodily

security through means so brutal, demeaning, and harmful as literally to shock the conscience.”

(Id., PAGEID 243 at ¶ 98). Finally, plaintiff’s First Amendment claim alleges that her contempt

conviction constituted illegal retaliation for protected speech. (Id., PAGEID 244 at ¶¶ 107-109).

Construed in plaintiff’s favor, none of these claims would necessarily disrupt the merits of the

contempt conviction itself. See Catz v. Chalker, 142 F.3d 279, 294 (6th Cir. 1998), opinion

amended on denial of reh’g on other grounds, 243 F.3d 234 (6th Cir. 2001) (reversing district’s

court’s denial of the plaintiff’s claim based on Rooker-Feldman where the plaintiff’s “due

process allegation d[id] not implicate the merits of the divorce decree, only the procedures

leading up to it.”).3

2F

In sum, only plaintiff’s negligence claim (Count VI)—as it relates to defendant’s finding

plaintiff in direct contempt—presents a Rooker-Feldman bar to this Court’s jurisdiction. To the

extent that plaintiff’s negligence claim relates to defendant’s physical actions (see Doc. 24,

PAGEID 248 at ¶ 151), neither it nor Counts I-V or VII implicate the doctrine.

B. Judicial Immunity

Defendant argues that he is entitled to absolute judicial immunity. He argues that all of

his actions toward plaintiff on September 4, 2018 were those normally performed by a judge and

3 The Sixth Circuit has since limited the applicability of certain parts of Catz in view of the Supreme Court’s more

recent decision in Exxon Mobil. See Coles v. Granville, 448 F.3d 853, 859 n.1 (6th Cir. 2006). The cited principle,

however, is unaffected by Exxon Mobil.

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were taken in his judicial capacity. Defendant also argues that, at most, plaintiff alleges that he

exceeded the scope of his jurisdiction and that such conduct remains shielded by absolute

judicial immunity.

Plaintiff argues in response that defendant’s actions were not those of a judge, but rather,

those of a deputy sheriff or bailiff. Plaintiff also argues that the initiation of contempt

proceedings is a non-judicial act. Finally, plaintiff argues that defendant acted in the absence of

all jurisdiction because “[s]he had done nothing to invoke the court’s jurisdiction” and “was

simply a member of the public who offended [defendant]’s sensitivities as to what constituted

decorum in the courthouse.” (Pl.’s Resp., Doc. 33 at PAGEID 312). Plaintiff emphasizes that

her scream, which appears to have triggered defendant’s actions, did not disrupt court

proceedings as reflected by the lack of any reference to a disturbance in defendant’s contempt

order; rather, she argues that only defendant’s actions were disruptive of court proceedings.

Defendant argues in reply that plaintiff’s arguments are either unsupported by authority

or supported by distinguishable authority. He also argues that plaintiff’s amended complaint

“concedes” that defendant’s actions were precipitated by her scream, “which interrupted the civil

forfeiture case in progress.” (Def.’s Reply, Doc. 34 at PAGEID 327).

Judges are largely immune from liability for acts they commit while functioning within

their judicial capacity. See Norfleet v. Renner, 924 F.3d 317, 319 (6th Cir. 2019) (citing Mireles

v. Waco, 502 U.S. 9, 9, 11-12 (1991) (per curiam)). A plaintiff will overcome a claim of judicial

immunity only where: 1) the judge’s actions were clearly non-judicial in nature and therefore

outside the scope of the judge’s judicial capacity; or 2) the judge’s actions were taken in the

absence of all jurisdiction. Mireles, 502 U.S. at 11-12 (citations omitted). The factors that are

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relevant to whether an act is judicial in nature are: 1) “the nature of the act itself, i.e., whether it

is a function normally performed by a judge”; and 2) “whether [the parties] dealt with the judge

in his judicial capacity.” Id. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)). The

analysis of whether a judge’s action for non-judicial is a functional one; “immunity is justified

and defined by the functions it protects and serves, not by the persons to whom it attaches.”

Morrison v. Lipscomb, 877 F.2d 463, 465 (6th Cir. 1989) (quoting Forrester v. White, 484 U.S.

219, 227 (1988)). Judges retain immunity if they exceed their jurisdiction, such as convicting a

defendant of a nonexistent crime, if they act in error, or if they act maliciously; judges lose

immunity if they act without jurisdiction, such as a probate judge trying a criminal case. Stump,

435 U.S. at 357 n.7 (citing Bradley v. Fisher, 80 U.S. 335, 352 (1871)).

Plaintiff’s amended complaint alleges that defendant took the following physical actions

toward her:

- [Defendant] pointed at her and ordered her to stop [walking down the hall]

and return to the courtroom.

- [Defendant] pursued [her] . . . yell[ed] at her, point[ed] at her and [told] her to

return.

- [Defendant] . . . ran toward [her] . . . and again ordered her to return to the

courtroom.

- [Defendant] followed her.

- [Defendant] grabbed [her] with four fingers cupping her left shoulder and his

thumb in her neck and redirected her to the side entrance of the courtroom.

- With his hand still firmly on her shoulder and neck, [defendant] forcibly

directed her into the courtroom and then forced her into a chair in the jury

box.

(Doc. 24, PAGEID 236-37 at ¶¶ 30-32, 34-36). After these alleged actions, defendant held

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plaintiff in contempt.

Plaintiff relies on Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984) for her proposition

that “the initiation of accusatory processes, such as criminal prosecutions or civil contempt

proceedings, is a non-judicial act that may subject a judge to liability.” (Doc. 33 at PAGEID

311). This statement unduly stretches the holding in Sevier. Therein, the defendant judge was

part of an arrangement by which he, as part of a contractual duty to collect overdue child support

payments, would “instruct[] staff members . . . to initiate criminal prosecutions against fathers

who are in arrears on their payments. The impending prosecutions [were] then used as leverage

to extract signatures on consent orders that [were] approved by [the defendant judge] without

hearings.” Sevier, 742 F.2d at 272. The defendant judge then, with the aid of a juvenile court

referee, “initiate[d] civil contempt proceedings against those fathers who d[id] not remain current

on their payments under the consent orders. These fathers [we]re either incarcerated or [we]re

required to make purge payments out of which [the defendant judge, the referee, and another

employee] receive[d] part of their salaries.” Id. Based on this unique fact pattern, the court

found that the combination of “initiating both the criminal prosecution and the civil contempt

proceeding” would constitute non-judicial acts if proven. Id. (emphasis added).

The isolated exercise of defendant’s contempt power at issue here is not akin to the facts

of Sevier. While it is less likely for an action to be judicial if it is not an adjudication between

parties, see Morrison, 877 F.2d at 466 (“Any time an action taken by a judge is not an

adjudication between parties, it is less likely that the act is a judicial one.”), the contempt power

is an inherently judicial power. See Ohio Rev. Code § 2705.01 (“A court, or judge at chambers,

may summarily punish a person guilty of misbehavior in the presence of or so near the court or

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judge as to obstruct the administration of justice.”) (emphasis added); Ohio Rev. Code § 2705.02

(“A person guilty of any of the following acts may be punished as for a contempt: (A)

Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a

court or officer. . . .”); King v. Love, 766 F.2d 962, 966 (6th Cir. 1985) (“[J]ailing persons for

contempt of court is a function normally performed by judges. . . .”).4 The Court therefore finds

3F

that to the extent that plaintiff’s claims concern defendant’s holding her in contempt, which

occurred in his courtroom and during normal business hours, his action was judicial in nature

pursuant to the first prong of the Mireles analysis. Plaintiff’s First Amendment claim (Count

III), premised on defendant “convict[ing plaintiff] for exercising the right to free speech” (Doc.

24, PAGEID 244 at ¶ 108), should therefore be dismissed on the basis of absolute judicial

immunity.5

4F

Plaintiff also argues, for purposes of the second prong of the Mireles analysis, that

defendant “took judicial action[s] . . . in the complete absence of any jurisdiction to act.” (Pl.’s

Resp., Doc. 33 at PAGEID 312). For this position, plaintiff relies on the facts that she was not a

party to a case before defendant on the day in question, she had not invoked the jurisdiction of

the court, she did not voluntarily enter his courtroom, and defendant’s imposition of contempt

did not adjudicate a dispute between parties. Plaintiff does not, however, cite any authority for

this proposition and, as just discussed, an Ohio court’s contempt power is not seriously

debatable. Plaintiff’s argument is more accurately described as one that defendant exceeded the

4 Plaintiff’s amended complaint admits as much: “As a Magistrate, Bachman had ultimate authority to impose

contempt sanctions under Ohio Civil Rule 53(D)(8).” (Doc. 24, PAGEID 238 at ¶ 49).

5 Plaintiff’s negligence claim (Count VI), to the extent that it is premised on defendant’s decision to impose direct

contempt, would also be protected by absolute judicial immunity based on this reasoning. The Court, however, has

already determined that it does not have subject matter jurisdiction over this claim based on the Rooker-Feldman

doctrine. See supra pp. 8-9.

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scope of his contempt power—a circumstance that does not disrupt absolute judicial immunity.

See Stump, 435 U.S. at 357 n.7 (citing Bradley v. Fisher, 80 U.S. at 352). The Court therefore

finds that defendant’s holding plaintiff in contempt did not occur in the absence of all

jurisdiction.

The nature of defendant’s remaining actions towards plaintiff—forming the basis of

Counts IV, V, VI (in part), and VII—is less clear. Defendant relies on Triplett v. Connor, 109 F.

App’x 94 (6th Cir. 2004), for his argument that all of his actions towards plaintiff were judicial

in nature. In Triplett, the defendant judge “knocked a tape recorder” from the plaintiff’s hand

“during a sidebar conference in the course of a housing discrimination trial in which [the

plaintiff] was a party defendant represented by counsel.” Id. at 95. The plaintiff also alleged that

the defendant judge put his hand on the plaintiff’s shoulder/neck area “in an effort to remove him

from a side room where a conference had been called.” Id. The Sixth Circuit concluded that

while the defendant judge “may have been better advised to enlist the aid of a deputy, it has been

long-established that it is a judge’s ‘obligation . . . to protect the sanctity and dignity of . . .

courtroom proceedings. . . .’” Id. at 96 (quoting Gregory v. Thompson, 500 F.2d 59, 64 (9th Cir.

1974) (quoting Mullins v. Oakley, 437 F.2d 1217, 1218 (4th Cir. 1971)) (internal quotation

marks omitted)).6

5F

6 The Ninth Circuit’s broader holding in Gregory, in fact, supports plaintiff’s position. Therein, the plaintiff (a non-

attorney) accompanied a defendant (an Army Sergeant) in a traffic violation case to the defendant judge’s courtroom

to inform the defendant that he wished to represent the Army Sergeant. Id. at 61. The defendant’s court was open

on this day, but no proceedings were taking place in the Army Sergeant’s case. Id. After informing the plaintiff that

a non-lawyer could not represent the Army Sergeant, a confrontation ensued, and the defendant forced the plaintiff

to the floor and beat him. Id. The plaintiff thereafter filed a § 1983 action. Id. The Ninth Circuit concluded that the

physical assault was not protected by absolute judicial immunity. Id. at 64. The court acknowledged that exercise

of the contempt power is “clearly judicial in character,” but it elaborated:

It may even be necessary in an isolated instance to use physical force to preserve order. Though

necessary, that does not mean the judge is immune. The decision to personally evict someone

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The Court finds the question of judicial immunity to be a close one as it relates to those

claims based on actions other than the imposition of contempt itself. The case law on the subject

of absolute judicial immunity involves highly unusual fact patterns making comparison and

analysis a unique challenge. Because of that, and given the Court’s conclusion on the question

of qualified immunity that follows, the Court finds it unnecessary to decide whether absolute

immunity applies to shield defendant from liability for the balance of his actions at issue in this

case.

In sum, the Court finds that defendant should be absolutely immune from liability related

to her First Amendment claim (Count III), which is based on defendant having held her in

contempt. As it relates to the balance of defendant’s actions on September 4, 2018, the Court

turns to the qualified immunity analysis.

from a courtroom by the use of physical force is simply not an act of a judicial nature, and is not

such as to require insulation in order that the decision be deliberately reached. A judicial act

within the meaning of the doctrine may normally be corrected on appeal. See Pierson v. Ray, [386

U.S. 547, 554 (1967)]. But when a judge exercises physical force in a courtroom, his decision is

not amenable to appellate correction. More importantly, we cannot believe that the purpose of the

judicial immunity doctrine—to promote ‘principled and fearless decision-making’—will suffer in

the slightest if it is held that judges who physically assault persons in their courtrooms have no

automatic immunity.

. . .

[The defendant’s] choice to perform an act similar to that normally performed by a sheriff or

bailiff should not result in his receiving absolute immunity for this act simply because he was a

judge at the time.

Id. at 64-65 (emphasis added).

In addition, the case relied on by the Gregory court for the quoted language in Triplett, Mullins, arose under facts

significantly different from those bar. In Mullins, the defendant judge allegedly slandered the plaintiff. 437 F.2d at

1218. The Fourth Circuit found “no doubt,” however, that the allegedly slanderous conversation concerned the

defendant judge’s belief that the plaintiff had been involved with improperly influencing the juries in active cases.

Id. The court in Mullins concluded that the defendant judge’s conduct with the plaintiff was “within his authority to

protect the sanctity and dignity of the courtroom proceedings” and that he was therefore immune, “even if done

improperly.” Id. The alleged courtroom-control impetus for defendant’s actions here is much less clear.

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C. Qualified Immunity

Defendant argues that plaintiff’s constitutional claims must fail because he did not violate

any of plaintiff’s clearly established constitutional rights. Plaintiff argues that defendant violated

her First Amendment right, as applied through the Fourteenth Amendment, to express criticism

of the Hamilton County Court of Common Pleas when it jailed her without due process.

As an initial matter, plaintiff’s response does not discuss her Fourteenth Amendment

procedural and substantive due process claims (Counts I and II). (See Doc. 33 at PAGEID 313-

15). The Court therefore finds that plaintiff has failed to meet her burden to show that defendant

is not entitled to qualified immunity on these claims and considers only her First Amendment

claim (Count III). See Rieves v. Town of Smyrna, Tenn., 959 F.3d 678, 695 (6th Cir. 2020)

(citing Burgess v. Fischer, 735 F.3d 462, 472 (6th Cir. 2013)) (“When defendants allege

qualified immunity as a defense, the plaintiffs bear the burden of showing that the defendants are

not entitled to qualified immunity.”).

The qualified-immunity doctrine “protects government officials 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.” Al-Lamadani v. Lang, 624 F. App’x

405, 409 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (internal

quotation marks omitted). The Court conducts a two-step inquiry when considering a claim for

qualified immunity. See id. (citing Pearson, 555 U.S. at 232). At the first step, the Court asks

whether the facts viewed in the light most favorable to the plaintiff show that the official has

violated the plaintiff’s constitutional rights. See id. (citing Pearson, 555 U.S. at 232). At the

second step, the Court asks whether the right was clearly established at the time of the violation.

16

Id. (citing Pearson, 555 U.S. at 232). “A right is clearly established if the contours of the right

are sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Id. (internal quotation marks, citation, and alterations omitted) (quoting Morrison v.

Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)). The Court may consider the steps

of the inquiry in the order it chooses. See id. (citing Pearson, 555 U.S. at 242). Plaintiff has the

burden to show that defendant is not entitled to qualified immunity. See id. (citing O’Malley v.

City of Flint, 652 F.3d 662, 667 (6th Cir. 2011)). A cognizable civil rights claim must contain

more than conclusory allegations and identify a specific constitutional right that has been

allegedly violated. Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996) (“[I]n

the context of a civil rights claim, . . . conclusory allegations of unconstitutional conduct without

specific factual allegations fail to state a claim under section 1983.”).

In her response, plaintiff characterizes her hallway scream as an “expressi[on of] her

dissatisfaction with the court system” and a “fleeting criticism of government” that is

constitutionally protected. (Doc. 33 at PAGEID 313, 315). See Rosenblatt v. Baer, 383 U.S. 75,

85 (1966) (“Criticism of government is at the very center of the constitutionally protected area of

free discussion.”). But the actual allegations of the amended complaint do not tie plaintiff’s

scream to any particular point of view about the Hamilton County Court of Common Pleas or the

government generally. In the amended complaint, plaintiff describes the yell passively and as

occurring after the conclusion of the hallway conversation about the Hamilton County court’s

procedures with defendant’s clerk. (See Doc. 24, PAGEID 235 at ¶¶ 23- 24) ((“[Plaintiff] turned

away and walked down the hallway towards the exit while Burkhart began to walk back toward

the courtroom. It was at this point that a single scream is heard on the courtroom audio

17

recording system.”). Later in the amended complaint, plaintiff characterizes the yell as “an

expression of frustration. . . .” (Id., PAGEID 241 at ¶¶ 82, 84). Nowhere in the amended

complaint, however, does she articulate a connection between her scream and a criticism of

government.

For the Court to find that governmental action was taken in retaliation for First

Amendment speech by a private citizen, plaintiff must prove that “1) [s]he engaged in protected

conduct, 2) the defendant took an adverse action that would deter a person of ordinary firmness

from continuing to engage in that conduct, and 3) the adverse action was taken at least in part

because of the exercise of the protected conduct.” Holzemer v. City of Memphis, 621 F.3d 512,

520 (6th Cir. 2010) (quoting Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005)).

Here, the Court finds that the complaint does not allege conduct deserving of constitutional

protection for purposes of prong one. As explained above, plaintiff’s amended complaint does

not sufficiently allege that her scream was constitutionally protected speech.

Plaintiff also characterizes her direct contempt conviction and jailing as a denial of her

“presumed [First Amendment] right of access the judiciary. . . .” (Pl.’s Resp., Doc. 33 at

PAGEID 313) (citing Huminski v. Corsones, 396 F.3d 53, 83-85 (2d Cir. 2004)). Huminski,

however, is distinguishable. The plaintiff in Huminski was a “long-time critic of the Vermont

justice system” who had been a criminal defendant in the Vermont court system. Id. at 58. After

the plaintiff disseminated his critiques of the Vermont justice system in various ways, several

Vermont officials “broadly prohibited [the plaintiff’s] presence in and around certain state

courthouses.” Id. At issue in Huminski were concerns about inhibiting a free “‘marketplace of

ideas’ about the conduct of judges and the judicial system.” Id. at 84 (citation omitted). By

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contrast, here, in addition to plaintiff not having actually alleged that she criticized the

government, plaintiff was not seeking access to the court in order to report on defendant or the

court system in general, and plaintiff’s contempt punishment was not aimed at broadly restricting

her access to court proceedings. The Court does not find that Huminski supports plaintiff’s

position.

Having distinguished Huminski, plaintiff’s First Amendment claim based on access to

judicial proceedings is otherwise insufficiently vague to state a claim for relief. Cf. Lillard, 76

F.3d at 726; United States v. Hoyt, No. 1:15-cr-1, 2016 WL 776595, at *2 (S.D. Ohio Feb. 29,

2016) (explaining that the First Amendment contains a “qualified right of public access to

judicial proceedings” determined based on (1) the tradition of accessibility in a given context and

(2) whether experience and logic dictate that the public should be involved in a particular judicial

proceeding) (emphasis added) (citing Press-Enter. Co. v. Superior Ct. of Cal. for Riverside

Cnty., 478 U.S. 1, 8-9 (1986)). Plaintiff makes no allegation that defendant prevented her from

accessing any particular judicial proceeding.

In sum, plaintiff does not rebut defendant’s assertion of qualified immunity related to her

Fourteenth Amendment claims (Counts I and II) and defendant is therefore entitled to qualified

immunity on these claims. Because plaintiff has failed to sufficiently allege that she engaged in

protected activity or was denied her presumed right of access to the judiciary under the First

Amendment, defendant is entitled to qualified immunity related to her First Amendment claim

(Count III).

D. State Law Claims

Based on the analysis above, the Court finds that Count VI of plaintiff’s amended

19

complaint should be dismissed, in part, on the basis of the Rooker-Feldman doctrine, Count III

should be dismissed on both absolute judicial and qualified immunity grounds, and Counts I and

II should be dismissed on qualified immunity grounds. This leaves only plaintiff’s state court

claims, over which the Court recommends declining jurisdiction given the preliminary status of

the proceedings. See Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244, 1254-55 (6th

Cir. 1996), amended on denial of reh’g, No. 95-5120, 1998 WL 117980 (6th Cir. Jan. 15, 1998)

(“When all federal claims are dismissed before trial, the balance of considerations usually will

point to dismissing the state law claims. . . .”) (citations omitted). There appear to be no

“unusual circumstances” to warrant retaining jurisdiction following dismissal of plaintiff’s

federal claims on Rule 12(b)(6) grounds. See id. at 1255 (quoting Gaff v. Fed. Deposit Ins.

Corp., 814 F.2d 311, 319 (6th Cir. 1987)). In the event the District Court should disagree,

however, the Court now addresses defendant’s arguments pertaining to plaintiff’s state law

claims.

1. Statute of Limitations

Defendant argues that plaintiff’s state law assault and battery claims are time-barred

under Ohio Revised Code § 2305.111(B). Under this code section, these causes of action accrue

on the date of the assault or battery if the plaintiff knows the identity of the person that allegedly

committed the tort and a claimant has one year to bring the action. Id. at § 2305.111(B)(1).

Defendant therefore argues that the state law tort causes of action accrued on September 4, 2018,

and that plaintiff’s June 19, 2020 amended complaint did not timely assert them.7

6F

7 The undersigned previously held that plaintiff’s first amended complaint (Doc. 24), filed within 21 days of

defendant’s first motion to dismiss (Doc. 17), was allowed as a matter of course under Fed. R. Civ. P. 15(a)(1). (See

Doc. 30 at PAGEID 284-85).

20

Plaintiff argues in response that her amended complaint relates back to the date of the

original pleading Rule 15, which states that “[a]n amendment to a pleading relates back to the

date of the original pleading when . . . (B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original

pleading. . . .” Fed. R. Civ. P. 15(c)(1)(B). Plaintiff notes that in addition to both complaints

clearly relating to the same set of facts, the original pro se complaint went so far as to

specifically reference “assault[]” and other physical contact initiated by defendant on plaintiff

such that defendant should not be unduly surprised by the allegations of the amended complaint.

(See Doc. 3 at PAGEID 12). Defendant does not respond to plaintiff’s argument on this issue in

his reply.

The Sixth Circuit has explained the relation-back analysis as follows:

Rule 15(c) is “‘based on the notion that once litigation involving particular

conduct or a given transaction or occurrence has been instituted, the parties are

not entitled to the protection of the statute of limitations against the later assertion

by amendment of defenses or claims that arise out of the same conduct,

transaction, or occurrence.’” [U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501

F.3d 493, 516 (6th Cir. 2007) (quoting Brown v. Shaner, 172 F.3d 927, 932 (6th

Cir. 1999)). In short, “a court will permit a party to add even a new legal theory

in an amended pleading as long as it arises out of the same transaction or

occurrence.” [Miller v. Am. Heavy Lift Shipping, 231 F.3d 242, 248 (6th Cir.

2000)]. Rule 15(c)(2) does not define the scope of the terms “conduct,

transaction, or occurrence.” When applying this standard to the facts of a given

case, we give meaning to those terms “not by generic or ideal notions of what

constitutes a ‘conduct, transaction, or occurrence,’ but instead by asking whether

the party asserting the statute of limitations defense had been placed on notice that

he could be called to answer for the allegations in the amended pleading.”

Bledsoe, 501 F.3d at 516 (citing Santamarina v. Sears, Roebuck & Co., 466 F.3d

570, 573 (7th Cir. 2006)) (“The criterion of relation back is whether the original

complaint gave the defendant enough notice of the nature and scope of the

plaintiff’s claim that he shouldn’t have been surprised by the amplification of the

allegations of the original complaint in the amended one.”). The Rule also must

be interpreted in light of the “fundamental tenor of the Rules,” which “is one of

liberality rather than technicality.” Miller, 231 F.3d at 248.

21

Hall v. Spencer Cnty., Ky., 583 F.3d 930, 934 (6th Cir. 2009).

The Court finds that plaintiff’s amended complaint satisfies the relation-back standard set

forth in Fed. R. Civ. P. 15(c)(1)(B). The “conduct, transaction, or occurrence” set out in the

original and amended complaints are identical. Id. The additional claims based on state law tort

theories of liability should not come as an unwarranted surprise to defendant. Considering the

liberal interpretation afforded to the Federal Rules of Civil Procedure, the Court finds that

plaintiff’s amendment should relate back to the date of the original complaint, June 4, 2019,

which is within Ohio’s one-year statute of limitations for plaintiff’s state law assault and battery

claims.

2. Political Subdivision Tort Liability Act

Defendant argues that plaintiff’s tort claims are barred by the PSTLA based on the facts

that the statute incorporates the doctrine of absolute judicial immunity and that no other

exceptions to the statute’s general grant of immunity apply. Plaintiff argues in response that the

PSTLA carves out exceptions to immunity that apply to defendant, including situations in which

an employee acts outside the scope of his authority, maliciously, wantonly, recklessly, or in bad

faith.

To determine whether a political subdivision enjoys immunity under the PSTLA, Ohio

courts generally employ a three-tiered analysis. Hortman v. Miamisburg, 852 N.E.2d 716, 718

(Ohio 2006). Courts are to first examine whether the political subdivision falls within the

general immunization from liability under Ohio Rev. Code § 2744.02(A). Id. Courts are to next

analyze whether an exception to immunity set out in Ohio Revised Code §§ 2744.02(B)(1)-(5)

applies. Id. Finally, courts are to determine whether a defense under Ohio Revised Code §

22

2744.03 applies to reinstate immunity. Id.

Under Ohio Revised Code § 2744.02, “a political subdivision is not liable in damages in

a civil action for injury, death, or loss to person or property allegedly caused by any act or

omission of the political subdivision or an employee of the political subdivision in connection

with a governmental or proprietary function.” Id. at § 2744.02(A) (emphasis added). A

“political subdivision” includes counties, such as Hamilton County. Id. at § 2744.01(F).

“Governmental function[s]” include the judicial, quasi-judicial, and prosecutorial functions as

well as law enforcement. Id. at §§ 2744.01(C)(2)(f), (i). Based on these provisions, the actions

by defendant alleged in the amended complaint would fall under the general immunization from

liability set forth in Ohio Revised Code § 2744.02(A).

Plaintiff does not argue that defendant’s actions fall within a broad exception to

immunity under Ohio Revised Code § 2744.02(B). Rather, she argues that defendant, as an

individual, fits within an exception to immunity laid out in Ohio Revised Code § 2744.03(A)(6).

See Chesher v. Neyer, 477 F.3d 784, 797 (6th Cir. 2007) (“Whether the defendants are liable as

individuals thus turns on the availability of statutory immunity. . . [and] whether any of the

immunity exceptions § 2744.03(A)(6) apply.”). As applicable to plaintiff’s argument, this code

section provides:

(6) In addition to any immunity or defense referred to in division (A)(7) of this

section . . . , the employee is immune from liability unless one of the following

applies:

(a) The employee’s acts or omissions were manifestly outside the scope of the

employee’s employment or official responsibilities;

(b) The employee’s acts or omissions were with malicious purpose, in bad faith,

or in a wanton or reckless manner. . . .”

23

Ohio Rev. Code § 2744.03(A)(6). Defendant, in turn, relies on the incorporation of judicial

immunity in the following subsection of the statute:

The political subdivision, and an employee who is a county prosecuting attorney,

city director of law, village solicitor, or similar chief legal officer of a political

subdivision, an assistant of any such person, or a judge of a court of this state is

entitled to any defense or immunity available at common law or established by the

Revised Code.

Id. at § 2744.03(A)(7) (emphasis added).

As the Court has already discussed, defendant’s holding plaintiff in contempt was a

judicial act that, at most, exceeded (as opposed to falling completely outside the bounds of) his

jurisdiction. To the extent the Rooker-Feldman doctrine were not applicable, Ohio Revised

Code § 2744.03(A)(7) would therefore incorporate the absolute judicial immunity discussed

above to shield defendant from liability for the portion of plaintiff’s state law negligence claim

premised on defendant’s finding plaintiff in direct contempt (Count VI). (See supra pp. 8-9, 13

n.5).

Plaintiff’s remaining state law tort claims (Counts IV, V, VI (to the extent premised on

defendant’s physical contact with plaintiff (see Pl.’s Am. Compl., Doc. 24, PAGEID 248 at ¶

151)), and VII) are not precluded by the statute’s incorporation of the absolute judicial immunity

doctrine. As such, the Court turns to Ohio Revised Code § 2744.03(A)(6) to determine whether

another exception to immunity may apply.

Plaintiff first argues that defendant’s actions were “manifestly outside the scope” of his

employment. Id. at § 2744.03(A)(6)(a). She relies on Jackson v. McDonald, 760 N.E.2d 24, 28

(Ohio Ct. App. 2001), for the proposition that an act falls within this category if it severs the

employee-employer relationship. In her amended complaint, plaintiff alleges that the incident at

24

bar resulted in the severing of defendant’s employment by Hamilton County, albeit indirectly.

(See Doc. 24, PAGEID 239 at ¶¶ 67-69) (alleging that the judges of the Hamilton County Court

of Common Pleas were leaning towards firing defendant for the incident at bar after viewing the

video recording and/or learning of its contents and that plaintiff decided to preemptively resign).

The Court acknowledges that “wrongful act[s], even if . . . unnecessary, unjustified,

excessive or improper” do not automatically remove an act from the scope of a defendant’s

employment for purposes of this exception. See Jackson, 760 N.E.2d at 28 (quoting Elliott v.

Ohio Dep’t of Rehab. & Corr., 637 N.E.2d 106, 108 (Ohio Ct. App. 1994)). At the motion to

dismiss stage, however, construing the facts alleged in a light most favorable to plaintiff, the

Court concludes that plaintiff has sufficiently alleged that plaintiff’s actions were manifestly

outside the scope of his employment based on his related resignation of his position as magistrate

for purposes of Ohio Revised Code § 2744.03(A)(6)(a).

Plaintiff also argues that defendant’s actions were either taken with malicious purpose, in

bad faith, or in a wanton or reckless manner. For purposes of Ohio Revised Code §

2744.03(A)(6)(b):

“Malice” is the willful and intentional design to harm another through conduct

that is unlawful or unjustified. Morrison[,529 F. Supp. 2d at 821] (citing [Cook v.

Cincinnati, 658 N.E.2d 814, 821 (Ohio Ct. App. 1995)]). “Bad faith” involves a

“dishonest purpose, conscious wrongdoing, the breach of a known duty through

some ulterior motive or ill will, as in the nature of fraud, or an actual intent to

mislead or deceive another.” Id. “Wanton misconduct” is the “failure to exercise

any care whatsoever.” Id.

Phillips v. City of Cincinnati, No. 1:18-cv-541, 2019 WL 2289277, at *9 (S.D. Ohio May 29,

2019) (quoting LeFever v. Ferguson, 956 F. Supp. 2d 819, 839 (S.D. Ohio 2013), aff’d, 645 F.

App’x 438 (6th Cir. 2016)). “[R]ecklessness is a perverse disregard of a known risk.” O’Toole

25

v. Denihan, 889 N.E.2d 505, 517 (Ohio 2008) (citations omitted).

Plaintiff’s amended complaint alleges that defendant acted “with malicious purpose, in

bad faith, or in a wanton or reckless manner.” (Doc. 24, PAGEID 240 at ¶ 76). Combined with

other allegations of the amended complaint (see id. at PAGEID 236-40), the Court finds that, at a

minimum, plaintiff sufficiently alleges that defendant took the actions giving rise to the claims in

Counts IV, V, VI (to the extent premised on defendant’s physical contact with plaintiff), and VII

in a wanton or reckless manner such that they could fall within an exception to immunity.

Additionally, “the issue of wanton misconduct [in the context of § 2744.03(A)(6)(b)] is normally

a jury question.” Fabrey v. McDonald Vill. Police Dep’t, 639 N.E.2d 31, 35 (Ohio 1994)

(citation omitted).

In sum, plaintiff has sufficiently alleged that defendant’s non-judicial actions fall within

at least one exception to the PSTLA. See Ohio Rev. Code §§ 2744.03(A)(6)(a), (b). The Court

therefore finds that, to the extent the District Court wishes to exercise supplemental jurisdiction

over plaintiff’s state law claims, dismissal under the PSTLA would be inappropriate at this stage

of the proceedings.

IV. CONCLUSION

The Court finds that plaintiff’s constitutional claims are barred by absolute judicial

(Count III) and qualified (Counts I-III) immunity. The Court finds that the Rooker-Feldman

doctrine bars consideration of plaintiff’s negligence claim (Count VI) in part and only to the

extent that it explicitly relates to defendant’s decision to find plaintiff in direct contempt.

Finally, while the Court finds that plaintiff’s state law claims (Counts IV-VII) should not be

dismissed under the PSTLA at this stage of the proceedings and that her assault and battery

26

claims (Counts IV and V) are not time-barred, the Court finds that the District Court should not

exercise supplemental jurisdiction over these claims given its conclusion that all federal claims

be dismissed.

IT IS THEREFORE RECOMMENDED THAT defendant’s motion to dismiss (Doc.

31) be GRANTED.

Karen L. Litkovitz

United States Magistrate Judge

27

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KASSANDRA JACKSON, Case No. 1:19-cv-422

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

MICHAEL BACHMAN,

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court

on timely motion for an extension. Such objections shall specify the portions of the Report

objected to and shall be accompanied by a memorandum of law in support of the objections. If

the Report and Recommendation is based in whole or in part upon matters occurring on the

record at an oral hearing, the objecting party shall promptly arrange for the transcription of the

record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems

sufficient, unless the assigned District Judge otherwise directs. A party may respond to

another party’s objections WITHIN 14 DAYS after being served with a copy thereof. 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).

28