# Jones v. Hamilton County

> District Court, S.D. Ohio · September 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10380778

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10380778

## How later opinions describe it (automated extraction)

- holding that in the absence of a waiver of sovereign immunity, plaintiff’s claim must be dismissed on jurisdictional grounds
- holding that in the absence of a waiver of sovereign immunity, plaintiff’s claim must be dismissed on jurisdictional grounds

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10380778. Public record. Not legal advice.