Johari v. Ginther

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SAI-E JOHARI,

Plaintiff, :

v. Case No. 2:21-cv-4236

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

MAYOR ANDREW GINTHER, et

al., :

Defendants.

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s Report and

Recommendation dismissing Plaintiff Sai-E Johari’s claims against Defendants Joe

Villavicencio and John Doe pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 3). Plaintiff

has filed his Objection and filed a motion for Magistrate Judge Vascura’s recusal

and to deem her a “bully, vexatious jurisist [sic], and to be reported to the Bar

Association for discipline.” (ECF No. 5).

I. BACKGROUND

The Magistrate Judge granted Plaintiff’s request to proceed in forma

pauperis. (ECF No. 1). Plaintiff then filed a complaint bringing a variety of

unrelated claims against three defendants: Andrew Ginther, the Mayor of the City

of Columbus; Joe Villavicencio, the owner of the building where Plaintiff rents an

apartment; and John Doe, the occupant of another apartment in Plaintiff’s building.

(ECF No. 2). Having performed an initial screen, the Magistrate Judge severed and

dismissed Plaintiff’s claims against Mayor Andrew Ginther and recommends that

the Court dismiss Plaintiff’s remaining claims against Joe Villavicencio and John

Doe. (ECF No. 3). Plaintiff objects to this Report and Recommendation and seeks

the Magistrate Judge’s recusal. (ECF No. 5). Plaintiff then filed an addendum to his

Objection and Motion. (ECF No. 6). Despite the addendum being untimely filed as it

pertains to Plaintiff’s Objection, the Court will consider it.

II. PLAINTIFF’S OBJECTIONS

A. Standard of Review

If a party objects within the allotted time to a report and recommendation,

the Court “shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.”

28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

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

by the magistrate judge.” 28 U.S.C. § 636(b)(1).

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the

Complaint, or any portion of it, that is frivolous, malicious, fails to state a claim

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

immune from such relief. 28 U.S.C. § 1915(e)(2). “The dismissal standard

articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) governs dismissals for failure

state a claim under [28 U.S.C. § 1915(e)(2)(B)] because the relevant statutory

language tracks the language in Rule 12(b)(6).” Jones v. Domberski, No. 2:20-CV-

199, 2020 WL 5902516, at *1 (E.D. Tenn. Oct. 1, 2020) (citing Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (internal quotations omitted)).

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim

with sufficient specificity to “give the defendant fair notice of what the . . . claim is

and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (internal quotations omitted). A complaint that falls short of the Rule 8(a)

standard may be dismissed if it fails to state a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b)(6).

To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on

its face. A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. The plausibility standard is

not akin to a probability requirement, but it asks for more than a sheer

possibility that a defendant has acted unlawfully. Where a complaint pleads

facts that are merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations

omitted). The complaint need not contain detailed factual allegations, but it must

include more than labels, conclusions, and formulaic recitations of the elements of a

cause of action. Directv, Inc. v. Treesh, 487 F.3d, 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555). And although pro se complaints are to be construed liberally, Haines v.

Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are still required. Wells

v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

B. Analysis

Plaintiff raises three issues in his Objection, and the Court will address only

those issues. The Court adopts all other findings and recommendations of the

Magistrate Judge.

First, Plaintiff argues that the Magistrate Judge improperly severed and

dismissed without prejudice his claims against Defendant Mayor Andrew Ginther

and asks the Court to reinstate such claims. Plaintiff’s claims against Mayor

Ginther did not meet the joinder requirements of Federal Rule of Civil Procedure 20

because they did not “arise out of the same transaction, occurrence, or series of

transactions or occurrences as Plaintiff’s claims against Villavicencio and John

Doe.” (ECF No. 3, PageID 130); See also Fed. R. Civ. P. 20. When misjoinder under

Rule 20 occurs, the Court may sever any claim against a party, and the Magistrate

Judge did so here. Fed. R. Civ. P. 21.

Plaintiff now argues that a “causal connection [ ] affirmatively links all

[three] defendants.” (ECF No. 5, PageID 141). The causal connection being that

Defendant Villavicencio “aided and abetted” Mayor Ginther’s illegal immigration

policies by housing illegal immigrants like Defendant John Doe, who would not

have been in the apartment building but for the Mayor’s actions. Plaintiff does not

apply the correct standard as required by Rule 20. Even if he had, his attempt to

connect the effect of the Mayor’s immigration policies with the alleged actions of

Defendants John Doe and Villavicencio does not establish that the claims arose out

of the same transaction or occurrence. Accordingly, the Court declines Plaintiff’s

request to reinstate his claims against Defendant Mayor Andrew Ginther.

Second, Plaintiff argues that the Magistrate Judge improperly construed his

claims against Defendants John Doe and Villavicencio as being brought under

18 U.S.C. § 1983. (ECF No. 5, PageID 140). The Magistrate Judge recommends

dismissal of these § 1983 claims pursuant to § 1915(e)(2) because Plaintiff has not

alleged facts showing state action on the part of Defendant John Doe or Defendant

Villavicencio. (ECF No. 3, PageID 133–35). Plaintiff asserts that he did not bring

any claims against Defendants John Doe and Villavicencio under § 1983 yet makes

no argument indicating under what law or theory the claims were brought. The

Court therefore construes these claims as brought under § 1983. Plaintiff does not

address the state action issue, except to concede that Defendant Villavicencio is a

“private citizen.” (ECF No. 5, PageID 141). Accordingly, Plaintiff fails to meet basic

pleading requirements and has not alleged a viable § 1983 claim.

Lastly, Plaintiff objects to the Magistrate Judge recommending he be

declared a vexatious litigator. (ECF No. 3, PageID 134–35). In an apparent attempt

to show that he does not have a history of filing frivolous lawsuits, Plaintiff goes

into extensive detail about the facts and context surrounding several of his prior

cases. (ECF Nos. 5, 6). However, none of this information changes the fact that

Plaintiff has commenced eight lawsuits in this district (see Case Nos. 2:94-mc-54,

2:94-cv-764, 2:03-cv-950, 2:04-cv-644, 2:04-679, 2:05-cv-288, 2:05-cv-289), a lawsuit

in the Northern District of Ohio (Case No. 4:07-cv-2755), and five additional cases

in the Central District of California (Case Nos. 2:14-cv-2398, 2:14-cv-6361, 2:14-cv-

6364, 2:14-cv-6365, 2:19-5259). Of these twelve previous actions, five have been

dismissed as frivolous pursuant to 28 U.S.C. § 1915(e). (See S.D. Ohio Case Nos.

2:05-cv-288, 2:05-cv-289; N.D. Ohio Case No. 4:07-cv-2755; C.D. Cal. Case Nos. 2:14-

cv-2398, 2:14-cv-6365).

This Court has a constitutional obligation to protect itself from “conduct that

impedes [its] ability to perform [its] Article III functions and to prevent litigants

from encroaching on judicial resources that are legitimately needed by others.”

Meros v. Dimon, No. 2:17-cv-103, 2017 WL 6508723, at *9 (S.D. Ohio Dec. 20, 2017)

(quoting Johnson v. Univ. Housing, No. 2:06-cv-628, 2007 WL 4303728, at * 12 (S.D.

Ohio, Dec. 10, 2007) (citing Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir.

1986))). Because this is Plaintiff’s sixth lawsuit dismissed under 28 U.S.C.

§ 1915(e), the Court adopts the Magistrate Judge’s recommendation and deems

Plaintiff a vexatious litigator.

Plaintiff is hereby enjoined from filing any new actions without either

(a) submitting a certification from an attorney who is licensed to practice in this

Court or the State of Ohio, stating that there is a good faith basis for the claims

Plaintiff seeks to assert; or (b) tendering a proposed complaint for review by this

Court prior to the actual filing of the complaint in the Court’s docketing system.

Plaintiff shall also be required to include the captions and case numbers of all of his

prior actions should he file a complaint in this or any other court. See Filipas v.

Lemons, 835 F.2d 1145 (6th Cir. 1987) (upholding prefiling restrictions on vexatious

litigators).

III. MOTION FOR RECUSAL OF THE MAGISTRATE JUDGE

Plaintiff has also filed a Motion for Magistrate Judge Vascura to be Deemed a

Bully, Vexatious Jurist, and be Reported to the Bar Association for Discipline. (ECF

No. 5). Beyond the caption of the Motion, and stray remarks referring to the

Magistrate Judge’s September 3, 2021 Report and Recommendation (ECF No. 3) as

“scathing” and “in err,” Plaintiff does not explain how the Magistrate Judge acted in

a bullying or vexatious manner. Nor do the federal courts provide a mechanism for

judges to be deemed a “bully” or “vexatious.” However, construing Plaintiff’s

allegations liberally in light of Plaintiff’s pro se status, the Court construes

Plaintiff’s Motion as one for the Magistrate Judge to recuse herself.

A district judge or magistrate “shall” disqualify himself or herself in any

proceeding in which the judge’s “impartiality might reasonably be questioned.”

28 U.S.C. § 455(a). “[J]udicial rulings alone almost never constitute a valid basis for

a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, (1994). To

the contrary, “[a]lmost invariably, they are proper grounds for appeal, not for

recusal.” Id. A judge’s opinions are grounds for recusal only where they “derive[ ]

from an extrajudicial source” or “they reveal such a high degree of favoritism or

antagonism as to make fair judgment impossible.” Id. “[E]xpressions of impatience,

dissatisfaction, annoyance, and even anger” do not meet this high bar. Id. at 555–

56. Mere disagreement about the Court’s ruling in a case is not a ground for

disqualification or recusal. See id.; Garver v. United States of America, 846 F.2d

1029, 1031 (6th Cir. 1988).

Plaintiff’s Motion establishes only that he disagrees with the Magistrate

Judge’s rulings. Plaintiff has therefore not made any demonstration of bias or

partiality sufficient to require recusal.

Accordingly, Plaintiff’s Motion (ECF No. 5) is DENIED.

IV. CONCLUSION

Plaintiff’s Objections (ECF No. 5) are OVERRULED, and his claims are

dismissed without prejudice to Plaintiff filing his state-law claims against these

Defendants in state court. The Court ADOPTS the Magistrate Judge’s Report and

Recommendation (ECF No. 3).

The Court deems Plaintiff a vexatious litigator and enjoins him from filing

any new actions without either (a) submitting a certification from an attorney who

is licensed to practice in this Court or the State of Ohio, stating that there is a good

faith basis for the claims Plaintiff seeks to assert; or (b) tendering a proposed

complaint for review by this Court prior to the actual filing of the complaint in the

Court’s docketing system. Plaintiff shall also be required to include the captions and

case numbers of all of his prior actions should he file a complaint in this or any

other court.

The Court DENIES Plaintiff’s Motion for Magistrate Judge Vascura’s

Recusal. (ECF No. 5).

The Clerk is DIRECTED to TERMINATE this case from the docket records

of the United States District Court for the Southern District of Ohio, Eastern

Division.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE