Marshall v. Mingo

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEPHANIE MARSHALL,

Plaintiff,

Civil Action 2:21-cv-4838

v. Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

JUDGE MICHAEL H. THACKER, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Stephanie Marshall, an Ohio resident who is proceeding without the assistance

of counsel, brings this action against Stephanie Mingo, an Ohio state-court judge, and Stephen

Dunbar, a city prosecutor, seeking an order removing them from their positions. This matter is

before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C. §§ 1915(e) 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, the undersigned

RECOMMENDS that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to

state a claim on which relief may be granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. It is

ORDERED that Plaintiff be allowed to prosecute her action without prepayment of fees or costs

and that judicial officers who render services in this action shall do so as if the costs had been

prepaid.

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

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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

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, 374 F. App’x 612, 614 (6th Cir. 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)).

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II.

Plaintiff’s Complaint lacks clarity. Plaintiff alleges that “[t]his case starts out as a land

contract,” which was closed at some point and “later reopened by Stephen Dunbar,” who

Plaintiff identifies as a prosecuting attorney. (Pl.’s Compl. ECF No. 1-1 at PAGEID # 7.)

Plaintiff alleges that Judge Mingo’s “court lost control.” (Id. at PAGEID # 8.) Plaintiff alleges

that her appeal was dismissed by the environmental court, and she complains that she “was

removed from the case [even though she is] not the lawful owner of the property.” (Id. at

PAGEID # 9.) In terms of relief, Plaintiff asks that Judge Mingo be “temporarily removed from

her position” and also that Stephen Dunbar “be removed from his position.” (Id.)

All of Plaintiff’s claims must be dismissed. No matter how liberally the Court construes

Plaintiff’s Complaint, the defendants she sues are entitled to absolute immunity from civil

liability. Judges and prosecutors are entitled to absolute immunity from suit when acting within

the scope of their duties. See Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (judges immune);

Imber v. Pachtman, 424 U.S. 409, 427 (1976) (prosecutors immune for actions taken within the

scope of duty); Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted) (immunity only

overcome if actions taken are not within the judge’s judicial capacity or if the actions, “though

judicial in nature, [are] taken in the complete absence of all jurisdiction”). Plaintiff’s Complaint

contains no plausible allegations upon which this Court could rely to conclude that the

exceptions to judicial and prosecutorial immunity apply to exempt the state-court judge and

prosecutor she names. For these reasons, it is recommended that the Court dismiss this action

pursuant to § 1915(e)(2).

III.

For the reasons set forth above, it is RECOMMENDED that this action be dismissed

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

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

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).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE

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