Lott v. Washington County Common Pleas

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HARRY WILLIAM LOTT,

Plaintiff,

Civil Action 2:21-cv-4707

v. Judge James L. Graham

Magistrate Judge Chelsey M. Vascura

ATTORNEY GENERAL MIKE DEWINE, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Harry Wiliams Lott, an Ohio resident proceeding without the assistance of

counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. 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 also before the Court for the 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 pursuant to 28 U.S.C. § 1915(e)(2).

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

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), which

provides in pertinent part as follows:

(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 properly 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 also

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).

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

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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, when

considering a pro se plaintiff’s Complaint, a Court “must read [the allegations] with less

stringency . . . and accept the pro se plaintiff’s allegations as true, unless they are clearly

irrational or wholly incredible.” Reynosa v. Schultz, 282 F. App’x 386, 389 (6th Cir. 2008)

(citing Denton v. Hernandez, 504 U.S. 25, 33 (1992) (internal citation omitted).

II.

Plaintiff’s Complaint lacks clarity. As a threshold matter, Plaintiff improperly styles this

action as a habeas corpus petition. The scope of habeas corpus is prescribed by statute,

specifically 28 U.S.C. § 2241. The United States Supreme Court described the scope and nature

of habeas corpus as follows: “It is clear, not only from the language of [§§ 2241(c)(3) and

2254(a)], but also from the common-law history of the writ, that the essence of habeas corpus is

an attack by a person in custody upon the legality of that custody, and that the traditional

function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.

475, 484 (1973); see also 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application

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for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.”). Plaintiff is not incarcerated, so this is not a habeas corpus action.

As best as the undersigned can discern from his allegations, Plaintiff has been declared a

vexatious litigator by the Court of Common Pleas of Washington County, Ohio, pursuant to Ohio

Revised Code § 2323.52. It appears that Plaintiff seeks to challenge both the state court’s

judgment declaring him a vexatious litigator and also the constitutionality of § 2323.52. Neither

claim can proceed in this Court.

To the extent Plaintiff seeks relief from the state court’s determination that he is a

vexatious litigator, this Court lacks jurisdiction to hear such a claim. Federal courts lack

jurisdiction to adjudicate direct appeals from state-court judgments. See In re Cook, 551 F.3d

542, 548 (6th Cir. 2009) (“The Rooker-Feldman doctrine embodies the notion that appellate

review of state-court decisions and the validity of state judicial proceedings is limited to the

Supreme Court under 28 U.S.C. § 1257, and thus that federal district courts lack jurisdiction to

review such matters.”); Gottfried v. Med. Planning Servs., Inc., 142 F.3d 326, 330 (6th Cir.

1998) (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923)) (“Rooker–Feldman

stands for the simple (yet nonetheless confusing) proposition that lower federal courts do not

have jurisdiction to review a case litigated and decided in state court; only the United States

Supreme Court has jurisdiction to correct state court judgments.”); Hall v. Callahan, 727 F.3d

450, 453 (6th Cir. 2013) (same). Put another way, because only the United State Supreme Court

has jurisdiction to correct state-court judgments, if Plaintiff seeks to appeal a decision from the

Ohio Supreme Court, he may only do so through filing a petition for writ of certiorari to the

United States Supreme Court.

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To the extent Plaintiff seeks to challenge the constitutionality of § 2323.52, such a claim

is not foreclosed by the Rooker-Feldman Doctrine, but nevertheless lacks merit. Section 2323.52

of the Ohio Revised Code does not pose an absolute bar to litigation, but requires individuals

adjudged to be vexatious litigators to obtain leave of court before commencing legal proceedings

in Ohio courts. Ohio Rev. Code § 2323.52(D)(1)(a), (b), (3); see also Mayer v. Bristow, 91

Ohio St. 3d 3, 15 (2000) (§ 2323.52 “establishes a screening mechanism under which the

vexatious litigator can petition the declaring court, on a case-by-case basis, for a determination of

whether any proposed action is abusive or groundless”). The United States Court of Appeals for

the Sixth Circuit has rejected claims asserting that § 2323.52 is facially unconstitutional for

violating the First, Fifth, and Fourteenth Amendments. Hall, 727 F.3d at 456-57. Having

reviewed all of Plaintiff’s filings, the undersigned is unable to discern any other viable bases for

Plaintiff’s challenge to the constitutionality of § 2323.52.

For these reasons, it is RECOMMENDED that Plaintiff’s Complaint be DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.

III.

Plaintiff’s Motion for Leave to Proceed in Forma Pauperis is GRANTED. (ECF No.

1.) For the reasons set forth above, it is RECOMMENDED that the Court DISMISS this action

pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted. In

addition, it is RECOMMENDED that the Court DENY AS MOOT Plaintiff’s remaining

motions (ECF Nos. 2-4.)

PROCEDURE ON OBJECTIONS

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

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

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

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

determination of those portions of the Report or specified proposed findings or

recommendations to which objection is made. Upon proper objections, a Judge of this Court

may accept, reject, or modify, in whole or in part, the findings or recommendations made

herein, may receive further evidence or may recommit this matter to the Magistrate Judge with

instructions. 28 U.S.C. § 636(b)(1).

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

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

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

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

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

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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