Jones v. Hamilton County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LUCINDA JONES,

Plaintiff, Case No. 1:22-cv-134

v. McFarland, J.

Bowman, M.J.

HAMILTON COUNTY, et al.,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Lucinda Jones, having paid the requisite $400.00 filing fee and

proceeding pro se, initiated this litigation on March 11, 2022. (Doc. 1). On March 28,

2022, Plaintiff filed an amended complaint.1 (Doc. 7). Currently pending are two motions

to dismiss this case and Plaintiff’s motion to further amend her complaint. This case

has been referred to the undersigned magistrate judge for all pretrial proceedings,

including a Report and Recommendation on any dispositive motions. (Doc. 19). For

the reasons that follow, Defendants’ motions to dismiss should be granted, and

Plaintiff’s motion for leave to file a second amended complaint should be denied. In

addition, the undersigned recommends that the Court impose a monetary sanction upon

Plaintiff sua sponte for filing and continuing to litigate this frivolous lawsuit.

I. Procedural Background

Plaintiff’s amended complaint identifies three Defendants: Hamilton County, Hon.

David McKeague, and the Judicial Counsel for the U.S. Court of Appeals for the Sixth

Circuit. (Doc. 7). On April 13, 2022, Defendant Hamilton County filed a motion to

1Plaintiff filed her first amended complaint pursuant to Rule 15(a)(1), Fed. R. Civ. P.

dismiss the complaint for failure to state a claim. (Doc. 10). On June 28, 2022, the two

federal Defendants filed a separate motion to dismiss based upon a lack of jurisdiction,

and because Plaintiff’s claims are barred by absolute judicial immunity and sovereign

immunity. (Doc 14). Plaintiff has filed responses to both motions, along with a motion

seeking leave to file a second amended complaint in order to name additional federal

judges as defendants.

Plaintiff Jones states she is a licensed attorney against whom sanctions were

levied after a federal district court in Tennessee determined that she had filed a

frivolous lawsuit outside of the statute of limitations. (Doc. 7 at ¶¶1, 22-24). In the

above-captioned lawsuit, Plaintiff challenges a March 2020 decision by the Court of

Appeals for the Sixth Circuit that affirmed the Tennessee court’s sanctions award.

The underlying proceedings began in April 2017, when Jones and co-counsel

Valerie Vie (not a party herein) filed an employment discrimination suit on behalf of their

former clients, Katoria Williams and Demetri Faulkner, against both the Tennessee

School System and a supervisor, Marjorie Douglas. See Williams v. Shelby County

School System, Case No. 2:17-cv-2284 (W.D. Tenn.) (hereinafter “Williams suit”). No

one challenged the Williams plaintiffs’ right to file suit against the Shelby County School

System, but the court ultimately imposed sanctions after dismissing plaintiffs’ time-

barred claims against a former supervisor, Douglas.

Initially, the Williams suit was assigned to Senior U.S. District Judge Jon

McCalla. Douglas’s motion to dismiss was not ruled on by Judge McCalla but was

granted by U.S. District Judge Thomas Parker on May 2, 2018, following transfer of the

case to his docket. Judge Parker held that all of plaintiffs’ claims fell outside any

applicable statutes of limitations. See Williams, Case No. 2:17-cv-2284-TLP-cgc (ECF

Doc. 108); see also Williams v. Shelby Cnty. School System, 2020 WL 1190433, at *1

(6th Cir. March 12, 2020) (summarizing the underlying procedural background).

The Tennessee court rejected counsel’s “continuing violation” theory under 42

U.S.C. §1983 and held that a one-year limitations period applied to those claims. See

Williams, Case No. 2:17-cv-2284-TLP-cgc (ECF Doc. 108, PageID 1113). The court

held that any state law claims for emotional distress were also subject to a one-year

period, though the court pointed out that the third amended complaint failed to state a

claim “for any kind of emotional distress.” Id. Judge Parker allowed that a three-year

period might apply to a single claim for inducement to breach a contract filed solely by

Williams (and not by Faulkner), but reasoned that even if the longer period applied to

that single claim, it was still time-barred.2 (Id., PageID 1115). Judge Parker noted that

Faulkner’s separate claim “for wrongful termination of a tenured teacher is confusing, at

best.” (Id., PageID 1116). After pointing out flaws in Faulkner’s legal theory, including

that “any conceivable claims would be against… Defendant Shelby County Board of

Education” rather than Douglas, the court explained that any claim by Faulkner was

subject to a 30-day limitations period. (Id., PageID 1116).

Following entry of judgment in favor of Douglas, Williams and Faulkner

voluntarily dismissed their § 1983 claims against the Shelby County Board of Education.

(Id., Doc. 123). On August 29, 2018, Williams and Faulkner settled their sole remaining

Title VII claims against the Shelby County Board of Education. (Id., Doc. 140).

2The court suggested in a footnote that the statute of limitations for inducement to breach a contract might

be only one year. (Doc. 108 at 12, n.5).

After the court’s May 2, 2018 grant of her motion to dismiss, Douglas moved for

an award of sanctions. On February 7, 2019, the Tennessee district court partially

granted that motion. Judge Parker held Williams and Faulkner liable for $7,968.58 in

fees under Tenn. Code. Ann. § 29-20-113(a), a statute that permits fee-shifting for state

law claims filed against Douglas in her individual capacity. The court denied the

plaintiffs’ motion to certify a constitutional challenge to that statute to the Tennessee

Supreme Court. In addition, Judge Parker held that plaintiffs’ attorneys, Jones and Vie,

were personally liable for an additional $39,842.92 in fees under federal law, specifically

28 U.S.C. § 1927, for “multipl[ying] the proceedings in any case unreasonably and

vexatiously.” Williams v. Shelby Cnty. School System, Case No. 2:17-cv-02284, ECF

Doc. 163, 2019 WL 490354 at *6 (W.D. Tenn. Feb. 7, 2019).

Jones and Vie promptly appealed the February 7, 2019 sanctions award.

Months later, Williams and Faulkner filed a separate appeal concerning the

constitutionality of Tenn. Code Ann. § 29-20-113(a). In an unpublished opinion

authored by U.S. Senior Circuit Judge David McKeague, the Sixth Circuit rejected the

appeal filed by Williams and Faulkner3 as untimely. See Williams v. Shelby Cnty. School

System, 2020 WL 1190433, at *1 (6th Cir. March 12, 2020) (recounting procedural

history and rejecting the plaintiffs’ appeal as untimely “because, unlike [their] attorneys,

[Williams and Faulkner] didn't file a notice of appeal within thirty days of the district

court's February 7 order.”).

The Sixth Circuit went on to consider counsel’s timely appeal of the sanctions

award against them. The appellate court upheld that award under 28 U.S.C. § 1927,

3The Sixth Circuit referred to Williams and Faulkner collectively as “Williams.” Id., 2020 WL 1190433 at *1

n.1.

reasoning that the filing of a time-barred suit is a “classic example” of sanctionable

conduct and describing counsel’s “continuing violations” argument as “leaky at best,

frivolous at worst.” Id. at *2 (internal quotation and citation omitted). The Sixth Circuit

also criticized counsel’s argument that the trial court’s alleged “delay” in ruling on

Douglas’s motion to dismiss racked up the amount of attorney’s fees. “If Jones and Vie

wanted to avoid hefty sanctions, they should have dismissed the lawsuit themselves or

moved to withdraw soon after Douglas filed her motion to dismiss. They - not the district

court - were responsible for defense counsel's rising fees.” Id. at *3.

After the Sixth Circuit affirmed the sanctions award on March 12, 2020, Douglas

filed a new motion seeking additional fees for having to defend on appeal. On May 28,

2020 in a per curiam opinion, the Sixth Circuit panel denied that motion, despite noting

that the issue merited “close[] scrutiny.” Williams v. Shelby Cnty. School System, 815

Fed. Appx. 842, 846, 380 Ed. Law Rep. 191 (6th Cir. 2020). The majority described

counsel’s conduct on appeal as follows:

[Counsel] filed time-barred claims and then, on appeal, sought to lay

responsibility at the feet of the district court.

Williams, 2020 WL 1190433 at *2-3. Jones and Vie should have known

that blaming the district court and repeating their most meritless

arguments would fail.

Some of Jones and Vie's conduct is mitigated by the posture of their

appeal. They did not challenge the merits of the district court's holding that

the claims were time barred. They instead challenged the district court's

order sanctioning them for filing the claims in the first place. That is, Jones

and Vie argued the reasonableness of their views - not whether those

views were, in fact, correct - and challenged the district court's analysis. In

doing so, they raised three semi-colorable arguments. First, Jones and Vie

maintained that the claim for inducement to breach of contract was

arguably subject to a six-year statute of limitations. Second, they

challenged the district court's finding that the litigation was meant to “grind

down” Douglas, highlighting the limited nature of their discovery requests

and motions practice. Finally, they argued that the district court failed to

make the necessary findings of discrete acts of vexatious conduct, citing

caselaw to support their argument. Although the law was “solidly against

these new arguments,” they at least evidence some bases upon which

Jones and Vie might have believed that their appeal would gain

traction. Friedler v. Equitable Life Assurance Soc'y, 86 F. App'x 50, 57 (6th

Cir. 2003).

We exercise our discretion not to sanction Jones and Vie. Although their

conduct was unprofessional and serious enough to meet the standard for

imposing sanctions, the deterrent and compensatory purpose of sanctions

is adequately served by the nearly $40,000 judgment against them in the

district court. This is especially so given that Douglas would have had to

defend the sanctions order anyway in Williams and Faulkner's appeal. We

believe that further sanctions would serve no useful purpose. And when

“no useful purpose” would be served by imposing additional sanctions, we

may “decline to impose” them.… We thus decline to impose them here.

Id., 815 Fed. Appx. at 846-847 (citations omitted).

Judge McKeague dissented, explaining that he would have imposed additional

sanctions for continuing the litigation through a frivolous appeal.

I would… award monetary sanctions against Jones and Vie under 28

U.S.C. § 1927. No doubt the district court's sanctions order, our opinion

affirming that order, and the majority's opinion denying further sanctions

have sent a strong message to Jones and Vie. But there's still a “useful

purpose” in making them pay Douglas's fees on appeal. Flaherty v. Gas

Research Inst., 31 F.3d 451, 459 (7th Cir. 1994). Namely, their conduct

wasn't victimless: someone has to pay Douglas's lawyers for hours billed

on this frivolous appeal. If it's the Shelby County School System - really,

the public - that pays, those thousands of taxpayer dollars are better spent

on students, teachers, and schools. The equitable thing to do would be to

shield these innocent stakeholders from the expense of Jones and Vie's

frivolous appeal. See Hamilton v. Boise Cascade Exp., 519 F.3d 1197,

1205 (10th Cir. 2008) (“[T]he text of § 1927 ... indicates a purpose to

compensate victims of abusive litigation practices, not to deter and punish

offenders.”). If it's Douglas - the public servant - who pays, then she too

deserves to be spared. See id.

Williams v. Shelby Cnty. School System, 815 Fed. Appx. at 847.

Attorneys Jones and her co-counsel did not seek reconsideration en banc of the

March 12, 2020 decision, nor did Attorney Jones file a petition for writ of certiorari in the

United States Supreme Court. Instead, Jones filed a complaint of judicial misconduct

against both U.S. Circuit Judge McKeague and U.S. District Judge McCalla.4 (Doc. 7 at

2). When the Sixth Circuit Judicial Council did not immediately rule on her misconduct

complaint, Jones5 initiated this new federal lawsuit, naming as Defendants Hamilton

County, Ohio and Judge McKeague, as well as the Judicial Council of the U.S. Court of

Appeals for the Sixth Circuit. Plaintiff appears to have filed suit in the Southern District

of Ohio based upon the fact that the Sixth Circuit is based in the Potter Stewart U.S.

Courthouse in Cincinnati, Ohio.

In the above-captioned lawsuit, Jones generally alleges that Judge McKeague

and the Judicial Council violated her “due process” rights and that Judge McKeague

committed “judicial misconduct.” (Doc. 7 at 1-3, PageID 63-65). Citing to 42 U.S.C.

§1983, she sets forth two claims each against both federal Defendants: (Count I) a

deprivation of due process (¶¶ 41-54); and (Count II) a violation of her First Amendment

right to free speech (¶¶ 55-73).

II. Analysis

A. Hamilton County’s Motion to Dismiss

Unsurprisingly given that the complaint contains almost no mention of Defendant

Hamilton County, Hamilton County has moved to dismiss on grounds that Jones has

failed to identify either actions by the County or any rights that were violated by

Hamilton County.6 In addition, Hamilton County is not sui juris. In her response,

4As she did in her prior appeal of the Williams suit, Plaintiff alleges in the above-captioned case that

Judge McCalla was prejudiced against Plaintiff and her client and delayed ruling on the motion to dismiss

as punishment. (Doc. 7 at ¶¶ 35-36). As discussed, Douglas’s motion to dismiss remained pending until

the case was transferred to the docket of Judge Parker, who granted the motion.

5Ms. Vie withdrew from representation in the Williams suit on June 30, 2018, and did not join in this

lawsuit. (See Williams, supra, at Doc. 129).

6The complaint erroneously identifies Judge McKeague as a judge “of the United States Court of Appeal,

Plaintiff “does not oppose Hamilton County’s Motion to Dismiss.” (Doc. 11).

Accordingly, for the reasons stated in Hamilton County’s motion, all claims against that

Defendant should be dismissed.

B. Federal Defendants’ Motion to Dismiss

The two federal Defendants filed a joint motion to dismiss in which they challenge

this Court’s subject matter jurisdiction under Rule 12(b)(1) and further argue that

Plaintiff has failed to state any claim under Rule 12(b)(6). Defendants’ motion should be

granted. Plaintiff’s failure to state any remotely plausible claim underscores the lack of

subject matter jurisdiction over the complaint.

In her response to the federal Defendants’ motion, Plaintiff states that she “is not

continuing her claim against the Judicial Council.”7 (Doc. 15 at 4 n. 6, PageID 122; see

also id. at 12, n.9, PageID 130 (suggesting that she is “voluntarily dismissing her claims

against the Judicial Council.”). However, Plaintiff has not filed a formal motion under

Rule 41. Therefore, the undersigned recommends granting the joint motion of

Defendants in full.

1. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)

Federal courts are courts of limited jurisdiction. Plaintiff alleges jurisdiction under

both 28 U.S.C. § 1331 and 28 US.C. § 1332. (Doc. 7 at ¶6). Defendants’ motion raises

both facial and factual challenges to Plaintiff’s assertion of subject matter jurisdiction.

“When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction, the district court

must weigh the evidence and the plaintiff has the burden of proving that the court has

Hamilton County, Ohio.” (Doc. 7 at ¶3). The Sixth Circuit Court of Appeals is a federal court and is not

associated with the state court system.

7Plaintiff asserts that “Chief Judge Jeffrey S. Sutton signed an Order dismissing the judicial complaint” on

July 6, 2022. (Doc. 16 at 3, n. 2, PageID 135).

jurisdiction over the subject matter.” Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th

Cir. 2005) (additional citation omitted). Plaintiff has failed to carry that burden.

a. The Lack of Federal Question Jurisdiction

The statute creating federal question jurisdiction states that “district courts shall

have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. In her amended complaint, Plaintiff

alleges a violation of her civil rights under 42 U.S.C. § 1983 as providing the basis for

federal question jurisdiction. However, “[t]wo elements are essential to a claim

under §1983 - the conduct complained of must be committed under color of state law

and the conduct must have deprived the claimant of a right, privilege or immunity

protected by the United States Constitution or statutes.” Ana Leon T. v. Federal

Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir. 1987). Here, Plaintiff has failed

to state a plausible claim under § 1983 against Judge McKeague because, as a federal

judicial officer, he acts “under color of federal, and not state, law.” Id.; Haines v. Fed.

Motor Carrier Safety Admin., 814 F.3d 417, 429 (6th Cir. 2016) (“[A]s a general matter,

‘[t]he federal government and its officials are not subject to suit under [§ 1983]’”). The

Sixth Circuit Judicial Council likewise is a federal entity that is not subject to suit under

42 U.S.C. § 1983.

Plaintiff’s reference to attorney’s fees under 42 U.S.C. § 1988 similarly provides

no basis for the exercise of federal question jurisdiction. Plaintiff is entitled to fees

under § 1988 only if she prevails on her civil rights claim under § 1983. Since she

cannot state a plausible claim under §1983 as a matter of law, she likewise cannot state

a claim under § 1988. In addition, pro se litigants simply are not entitled to fees under

Civil Rights Attorney's Fees Awards Act, even where the litigant is a lawyer. See Kay v.

Ehrler, 499 U.S. 432 (1991).

b. The Lack of Diversity Jurisdiction

Plaintiff also alleges that diversity jurisdiction exists under 28 U.S.C. § 1332.

However, a foundational prerequisite for the exercise of diversity jurisdiction is diverse

citizenship of the parties, which Plaintiff alleges solely on “information and belief” in her

amended complaint and deletes entirely from her tendered second amended

complaint.8 Apart from that factual issue, however, Plaintiff must demonstrate that the

amount in controversy exceeds $75,000 in order to establish diversity jurisdiction. See

28 U.S.C. § 1332(a)(1). Here, the only monetary damages Plaintiff seeks are attorney’s

fees and costs under 42 U.S.C. §1988, for which no claim is stated. Even if she had

instead sought fees under state law, “[a]s a general rule, attorneys' fees are excludable

in determining the amount in controversy for purposes of diversity, unless the fees are

provided for by contract or where a statute mandates or expressly allows the payment

of such fees.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 376 (6th Cir. 2007).

Accordingly, Plaintiff has failed to state a basis for the exercise of diversity jurisdiction.

c. The Lack of Alternative Grounds for Jurisdiction

In another attempt to establish jurisdiction, Plaintiff cites to the Declaratory

Judgment Act, 28 U.S.C. §§ 2201 and 2202. However, that Act does not provide

an independent source of federal jurisdiction where federal jurisdiction does not

otherwise exist. Louisville & Nashville R. Co. v. Donovan, 713 F.2d 1243 (6th Cir.1983).

8Plaintiff, a resident of Wayne County Michigan, alleges “[u]pon information and belief” that “Judge

McKeague is a citizen and resident of Hamilton County.” (Doc. 7 at ¶¶1, 3). Plaintiff’s belief is in error.

Although the Sixth Circuit holds oral arguments in Cincinnati, Ohio, Judge McKeague has long resided in

Michigan. Plaintiff acknowledges as much by omitting her erroneous allegation from her tendered

amended complaint. (See Doc. 16-1).

Last but not least, this Court lacks subject matter jurisdiction to enter any of the

relief that Plaintiff seeks. At the heart of this lawsuit is Plaintiff’s disagreement with the

Sixth Circuit’s affirmance of a Tennessee district court’s award of monetary sanctions

against her for filing a frivolous time-barred lawsuit. Incredibly, Jones now asks this

district court to vacate the Sixth Circuit’s decision in the Williams suit. (Doc. 15 at 4,

PageID 122, citing Amended Complaint at ¶¶ 1-7, and stating “Plaintiff asks this Court

to: (1) declare the Panel violated her Fourteenth Amendment due process rights and

her First Amendment right; (2) issue an injunction rendering the March 12, 2020, ruling

null and void, and (3) award her attorneys’ fees, expenses, and costs.”; see also Doc.

16 at PageID 135, explaining that Plaintiff seeks “nullification/voidance of the Panel’s

March 12, 2020 ruling that Plaintiff filed a time-barred lawsuit and ordering sanctions

against her.”). As Defendants put it: “It is axiomatic that a federal district court lacks the

jurisdiction and authority to issue injunctive, declaratory, or mandamus relief to a federal

court of appeals or its officers.” (Doc. 14 at 15, PageID 116, collecting cases); see also

Panko v. Rodah, 606 F.2d 168, 171 n. 6 (7th Cir. 1979). Allowing such injunctive relief

“would be to permit, in effect, a ‘horizontal appeal’ from one district court to another or

even a ‘reverse review’ of a ruling of the court of appeals by a district court.” Olita v.

McCalla, 2022 WL 1644627 at *7 (W.D. Tenn. May 24, 2022) (citing Mullis v. U.S.

Bankr. Ct. for Dist. of Nev., 828 F.2d 1385, 1392-93 (9th Cir. 1987)). “Such collateral

attacks on the judgments, orders, decrees or decisions of federal courts are improper.”

Mullis, 828 F.2d at 1393. Thus, federal courts have consistently refused to entertain

such claims. See, e.g., Schmier v. U.S. Court of Appeals for the Ninth Circuit, 136

F.Supp.2d. 1048, 1050-51 (N.D.Cal. 2001) (noting “the dubious status” of a district

court's “jurisdiction to evaluate the validity of a higher court's rules”). In short, this Court

lacks subject matter jurisdiction over any of the claims asserted in this lawsuit.

In her response, Plaintiff suggests that the Sixth Circuit should have considered

her argument on the merits that “the statute of limitations for Williams and Faulkner …

was three years.” (Doc. 15 at 5, PageID 123). By asserting that a three-year limitations

period in Tenn. St. § 28-3-109(a)(3) applied to some unspecified claim(s) filed on

Faulkner’s behalf, Jones speculates that the Sixth Circuit “disregarded …Faulkner’s July

2014 termination date.” (Id.) But Jones’ premise – that the appellate court should have

re-examined the ruling that Williams’ and Faulkner’s claims were time-barred – is

wrong. Neither Jones nor anyone else filed an appeal of the May 2, 2018 dismissal of

all claims against Douglas as time-barred.9 The sole issue before the Sixth Circuit on

appeal was whether the Tennessee trial court had abused its discretion by imposing

sanctions against counsel on February 7, 2019. In fact, two of three judges on the Sixth

Circuit panel elected not to impose additional sanctions for the otherwise frivolous

appeal in part because of their favorable view that Jones had not “challenge[d] the

merits of the district court's holding that the claims were time barred,” and instead

challenged only the “reasonableness of” counsel’s legal views as opposed to “whether

those views were, in fact, correct….” Williams, 815 Fed. Appx. at 846.

9In its May 2018 dismissal of Williams’ and Faulkner’s claims against Douglas, the district court explained

that Tenn. Code Ann. § 28-3-109 (the statute that Plaintiff cites herein) was miscited by counsel and did

not apply to any of Faulkner’s claims. (Williams, Case No. 2:17-cv-02284, ECF Doc. 108, PageID 1116 n.

6; see also id. at PageID 1115, n.5). Plaintiff does not bother to specify how that state statute would

apply, or to which of Faulkner’s claims it might apply. However, her lack of specificity herein is irrelevant

because the unappealed May 2018 ruling is the law of the case.

2. Failure to State a Claim Under Rule 12(b)(6)

In addition to a lack of subject matter jurisdiction, Defendants seek dismissal

based upon Plaintiff’s failure to state any cognizable claims against them under Rule

12(b)(6). The Defendants’ well-taken argument underscores this Court’s lack of subject

matter jurisdiction.

a. Absolute Judicial Immunity

For example, Judge McKeague is entitled to absolute judicial immunity from the

above-captioned lawsuit. The immunity offered judicial officers in the performance of

judicial duties is not overcome by allegations that they acted in “bad faith,” maliciously,

corruptly or even “in excess of ... authority.” See Mireles v. Waco, 502 U.S. 9, 11 (1991)

(per curiam). Judges retain absolute immunity from liability as long as they are

performing judicial acts and have jurisdiction over the subject matter giving rise to the

suit against them. Id., 502 U.S. at 11-12; Stump v. Sparkman, 435 U.S. 349, 356-57

(1978); Stern v. Mascio, 262 F.3d 600, 607 (6th Cir.2001). “In the Sixth Circuit,

absolute immunity against federal judges extends to requests for injunctive and other

forms of equitable relief as well as to claims for damages.” Ward v. United States Dist.

Court for the Western Dist. of Tenn., No. 14–2707–T–DKV, 2015 WL 137204, at *1

(W.D. Tenn. Jan. 8, 2015) (citing Kipen v. Lawson, 57 Fed. Appx. 691, 691 (6th Cir.

2003); Newsome v. Merz, 17 Fed. Appx. 343, 345 (6th Cir. 2001)); see also Easterling

v. Rudduck, No. 1:14-cv-876, 2015 WL 1567844, at *5 (S.D. Ohio Apr. 6, 2015)

(Litkovitz, M.J.) (Report & Recommendation) (“That plaintiff seeks only equitable or

injunctive relief has no bearing on the” dismissal of a complaint against a

state judge entitled to absolute immunity from suit), adopted at 2015 WL 2452437 (S.D.

Ohio May 21, 2015) (Dlott, J.).

Plaintiff’s claims against Judge McKeague are based upon his authorship of the

March 12, 2020 majority opinion affirming an award of sanctions against counsel,

together with his related dissenting opinion on May 28, 2020. Plaintiff alleges that in

affirming the district court’s award of sanctions, Judge McKeague disregarded

Faulkner’s termination date, denied Plaintiff’s request for oral argument, and engaged in

“wrongful disciplinary action.” (Doc. 7 at ¶¶ 44, 57). However, all of the alleged actions

by Judge McKeague were undertaken in his role as a federal appellate judge.

In order to overcome judicial immunity, a plaintiff must demonstrate: (1) that the

judge was not functioning in a judicial capacity, or (2) the judge acted in the “complete

absence of all jurisdiction.” Mireles, 502 U.S. at 11-12. In conclusory fashion, Plaintiff

asserts that Judge McKeague and the other two appellate judges “departed from their

judicial function and were in the absence of all jurisdiction” because “they disregarded

Faulkner’s [termination date]” that Plaintiff now claims would have supported some

unspecified claim.10 (Doc. 15 at 10).

Plaintiff’s assertion is frankly ludicrous. The panel’s March 12, 2020 affirmance

was undeniably a judicial decision and embodies the essence of a judicial function.

“Issuing decisions and presiding over hearings, including sanctions hearings, are

functions typically performed by a judge.” Cooper v. Rapp, No. 2:16-CV-00163, 2016

WL 7337521 at *8 (S.D. Ohio Dec. 19, 2016), aff'd, 702 Fed. Appx. 328 (6th Cir. 2017).

“Grave procedural errors, including those involving due process, do not deprive an act

of its essentially judicial nature.” Robertson v. City of Grand Rapids, No. 1:06-CV-451,

10Again, Ms. Jones did not appeal the trial court’s May 2018 dismissal of all claims on statute of

limitations grounds. Her appeal was limited to challenging the trial court’s exercise of discretion to

imposed sanctions on February 7, 2019.

2008 WL 2224173 at *5 (W.D. Mich. May 27, 2008) (citing Stump v. Sparkman, 435

U.S. 349, 359 (1978), and Stern v. Mascio, 262 F.3d at 606-08). In fact, when counsel

appealed the district court’s sanctions order to the Sixth Circuit, she acknowledged that

the appellate court had jurisdiction.

The handful of cases cited by Plaintiff in opposition to dismissal are all easily

distinguishable. For example, in Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997),

a judge engaged in interviews with the media, accusing a former litigant who had

appeared before her of stalking her. Id. at 260-261. Those separate media

communications were outside of the judicial function because they “further[ed] no official

act or sanction” Id. at 261.11 Accord Harris v. Harvey, 605 F.2d 330 (6th Cir.1979)

(judge not entitled to judicial immunity for extra-judicial communications to the press and

city officials wherein he described the plaintiff as a fixer, a briber, and a sycophant).

Here, by contrast, Judge McKeague did not speak to the media about Ms. Jones at any

time and did nothing more than file the panel’s decision of record.12

In an attempt to circumvent the judicial immunity to which Judge McKeague is

clearly entitled, Plaintiff cites to Pulliam v. Allen, 466 U.S. 522 (1984), a case filed under

42 U.S.C. § 1983 prior to amendment of that civil rights statute. Pulliam has no

application here. As discussed above, §1983 does not apply to Judge McKeague or to

any federal official or entity. Moreover, even in Pulliam, the Supreme Court held that in

order to obtain equitable relief against a judge, a plaintiff must demonstrate that she has

11See also King v. Love, 766 F.2d 962 (6th Cir. 1985) (holding that state court magistrate was not entitled

to judicial immunity for falsely telling officers to arrest King on a warrant for another person, because

deliberately misleading police officers about the identity of the person sought in an arrest warrant well

after the warrant has been issued was not a judicial act).

12Although Plaintiff repeatedly refers to the March 12, 2020 opinion as “published,” it was merely filed of

record and is not a formally “published” Sixth Circuit opinion.

no adequate remedy at law and that she faces a “serious risk of irreparable harm.”

Pulliam, 466 U.S. at 537. Here, Plaintiff had an adequate remedy at law because she

could have: (1) requested reconsideration en banc by the full Court of Appeals; or (2)

filed a petition for writ of certiorari to seek further review by the Supreme Court. Plaintiff

did neither.13 “A new federal court action… is decidedly not a substitute for a forgone

appeal.” Olita v. McCalla, 2022 WL 1644627, at *8; see also, Newsome v. Merz, 17

Fed. Appx. 343, 345 (6th Cir. 2001) (Plaintiff had no claim for injunctive relief because

he had an adequate remedy at law by way of appeal); Flip v. Flanagan, 729 F. Supp.

1149, 1153-54 (N.D. Ohio 1989) (Plaintiff could not obtain equitable relief because he

had adequate remedies at law, like appeal or habeas corpus relief).

b. Sovereign Immunity

Just as Judge McKeague is entitled to judicial immunity, the Judicial Circuit is

entitled to sovereign immunity. “[J]udicial councils and other bodies comprised of

federal judges and courts are entitled to sovereign immunity.” Sanai v. Kozinski, 2021

WL 1339072, at *5 (N.D. Cal., April 9, 2021). The exercise of jurisdiction over a

governmental entity that is entitled to sovereign immunity “requires a clear statement

from the United States waiving sovereign immunity . . . together with a claim falling

within the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S.

465, 472 (2003); see also Reetz v. United States, 224 F.3d 794, 795 (6th Cir. 2000)

(holding that in the absence of a waiver of sovereign immunity, plaintiff’s claim must be

dismissed on jurisdictional grounds);

13In a footnote, Plaintiff asserts that she “was stricken with COVID in March 2020,” (Doc. 15 at PageID

127). Even if such facts were verifiable and could be considered, a reported period of personal illness in

March 2020 does not negate the availability of her legal remedy. Plaintiff could have moved for an

extension of time if needed or retained counsel to act on her behalf.

Plaintiff has failed to show the existence of any such waiver of sovereign

immunity. Certainly, § 1983 contains no such waiver and does not apply to the federal

Defendants. See also Sanai, 2021 WL 1339072 at *5-6 (discussing cases that hold that

judicial councils and judges sued in their official capacity are entitled to sovereign

immunity); Shemonsky v. Vanaskie, 2005 WL 2031140, at *4 (M.D. Pa. Aug. 16, 2005)

(plaintiff’s suit against the Third Circuit Judicial Council was barred because plaintiff

failed to identify an applicable waiver of sovereign immunity).

C. Plaintiff’s Motion for Leave to File a Second Amended Complaint

Plaintiff seeks leave to file a second amended complaint under Rule 15(a)(2),

Fed. R. Civ. P.14 (Doc. 16). In her tendered second amended complaint, Plaintiff

eliminates Hamilton County and the Judicial Council as Defendants, but seeks to add

two additional Sixth Circuit judges who served on the panel with Judge McKeague. She

continues to cite to 42 U.S.C. § 1983 as the basis for her claims.

Plaintiff’s motion to amend should be denied as futile because it would not

survive a motion to dismiss. “A court need not grant leave to amend… where

amendment would be ‘futile.’” Miller v. Calhoun County, 408 F.3d 803, 817 (6th Cir.

2005) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). As Plaintiff herself points out,

the allegations in the tendered second amended complaint are “materially the same” as

the allegations set forth in her first amended complaint. (Doc. 16 at PageID 137). For

all of the reasons discussed above, no amendment can salvage the fundamental

frivolousness of Plaintiff’s claims or establish jurisdiction in this Court.15

14Although Plaintiff also cites to amendment as of right under Rule 15(a)(1), that provision does not apply

on the record presented.

15In her reply memorandum, Plaintiff argues (for the first time) that her claims should be construed under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) rather than

D. This Court Should Impose Additional Sanctions

In addition to granting Defendants’ motions to dismiss and denying Plaintiff leave

to further amend, the undersigned recommends that the Court impose additional

sanctions upon Plaintiff sua sponte under its inherent authority, under 28 U.S.C. § 1927,

and/or under Rule 11, for filing and continuing to pursue this entirely frivolous lawsuit.

See generally, Chambers v. NASCO, Inc., 501 U.S. 32 (1991). Plaintiff filed this lawsuit

for an improper purpose - to evade monetary sanctions imposed against her by a

different federal district court, and the affirmance of that award by the Sixth Circuit Court

of Appeals. Rather than pursuing rehearing en banc or an appeal to the U.S. Supreme

Court to the extent she believed that the Sixth Circuit’s March 12, 2020 decision was in

error, she initiated new litigation in this Court, requiring this Court to expend additional

judicial resources reviewing both the new pleadings and the prior proceedings.

The original sanctions award was imposed in the Williams suit after the

Tennessee district court determined that counsel had multiplied the proceedings

“unreasonably and vexatiously” in violation of 28 U.S.C. § 1927. The Sixth Circuit

affirmed. However, in a split decision, the appellate court denied a subsequent motion

by Douglas seeking additional sanctions for the frivolous appeal. Notably, the majority

agreed that the appeal of the sanctions award was frivolous, but declined to impose

additional sanctions in part because counsel had not challenged the trial court’s earlier

(2018) ruling that the Williams and Faulkner claims were time-barred. The Sixth Circuit

also concluded that the existing sanctions award of nearly $40,000 should prove a

under 42 U.S.C. § 1983. However, federal judges are entitled to absolute immunity in Bivens actions

even for injunctive and other forms of equitable relief. Kipen v. Lawson, 57 Fed. Appx. 691 (6th Cir. 2003)

(federal judges’ absolute immunity “has also been extended to requests for injunctive relief”); Newsome v.

Merz, 17 Fed. Appx. at 345 (noting that “federal judges are immune from Bivens suits for equitable

relief”); Olita v. McCalla, Case No. 2:21-CV-2763, 2022 WL 1644627 at *7 (same).

sufficient deterrent to persuade counsel not to engage in future sanctionable conduct.

By filing this additional frivolous lawsuit without any basis for a viable claim and by

opposing the Defendants’ motions to dismiss and filing a motion to file a second

amended complaint, Plaintiff Jones has once again multiplied judicial proceedings

unreasonably and vexatiously, betraying the Sixth Circuit’s faith in the deterrent value of

the prior sanction. As a practicing attorney, Plaintiff knew better.16

In addition to the Court’s inherent authority to impose sanctions and its statutory

authority under 28 U.S.C. §1927, Rule 11 of the Federal Rules of Civil Procedure exists

as a check on the filing of even a single frivolous lawsuit. Rule 11(b) of the Federal

Rules of Civil Procedure applies to pro se litigants and attorneys alike, and states that

by filing a pleading, the party

certifies that to the best of the person's knowledge, information, and belief,

formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by

existing law or by a nonfrivolous argument for extending, modifying, or

reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery….

Id.

When a pro se litigant fails to comply with Rule 11 by filing a complaint in which

no claims are warranted by existing law or any nonfrivolous argument, a court “may

16Plaintiff’s references to a wholly inapplicable “continuing violations” legal theory in this lawsuit are nearly

identical in nature to her prior arguments in the Williams suit, which the Sixth Circuit then described as

“leaky at best, frivolous at worst.” At this point in time, Plaintiff’s arguments can only be described as

frivolous.

impose an appropriate sanction.” Rule 11(c). Specifically, under Rule 11(c)(3) a court

may impose sanctions on its own initiative, after directing the party “to show cause why

conduct specifically described in the order has not violated Rule 11(b).”17 Any sanction

“must be limited to what suffices to deter repetition of the conduct” and “may include

nonmonetary directives [or] an order to pay a penalty into court.” Rule 11(c)(4). Based

upon Plaintiff’s filing of this frivolous lawsuit, the undersigned recommends the issuance

of an order to “show cause” why a monetary penalty should not be paid into this Court

under Rule 11. In addition, the Court should consider a non-monetary penalty, such as

requiring Plaintiff to obtain the certification of another attorney before initiating any

future pro se case in this Court.

III. Conclusion and Recommendations

Accordingly, IT IS RECOMMENDED THAT:

(1) Defendants’ motions to dismiss (Docs. 10, 14) should be GRANTED, with this

case to be dismissed without prejudice for lack of subject matter jurisdiction under Rule

12(b)(1), or alternatively, to be dismissed with prejudice for failure to state any claim

under Rule 12(b)(6);

(2) Plaintiff’s motion to further amend her complaint (Doc. 16) should be

DENIED;

(3) The Court should impose a monetary sanction of $5,000.00 upon Plaintiff

sua sponte under its inherent authority and/or under 28 U.S.C. § 1927 for filing this

frivolous case in an attempt to continue litigating a case that she previously lost on

appeal, as well as for her opposition to Defendants’ motions to dismiss and motion to

further amend her frivolous complaint;

17A court may not impose a monetary sanction prior to issuing a show-cause order. Rule 11(c)(5).

(4) Alternatively, the Court should issue an order directing Plaintiff Jones to show

cause why the filing of the above-captioned complaint does not constitute a violation of

Rule 11(b), and why this Court should not impose both a monetary sanction of $5,000

and a pre-filing restriction that no further pro se complaint be accepted by Plaintiff for

filing in the Southern District of Ohio which has not first been certified as non-frivolous

by an attorney in good standing in this Court or the jurisdiction in which he or she is

admitted.

_s/Stephanie K. Bowman____

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law

in support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN (14) DAYS after being served with a copy of those objections. 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).