Fernbach v. Hamilton County, Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

RICHARD FERNBACH, : Case No. 1:22-cv-644

:

Plaintiff, :

: District Judge Michael R. Barrett

vs. :

Magistrate Judge Stephanie K. Bowman

:

HAMILTON COUNTY OHIO, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATION

Plaintiff, a pre-trial detainee in the Hamilton County Justice Center, has filed a pro se

“Complaint/Petition for Ex Parte Injunction/Ex Parte Restraining Order” against the State of

Ohio, Hamilton County, and various other governmental and individual defendants. (See Doc.

1). By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to

28 U.S.C. § 1915.

This matter is before the Court for a sua sponte review of the complaint to determine

whether the complaint, or any portion of it, should be dismissed because it is frivolous,

malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a

defendant who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28

U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). This matter is also before the Court on

plaintiff’s motion for default judgment. (Doc. 8).

In enacting the original in forma pauperis statute, Congress recognized that a “litigant

whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an

economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v.

Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To

prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma

pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28

U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when

the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.

Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th

Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or

when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490

U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise

to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at

1199. The Court need not accept as true factual allegations that are “fantastic or delusional” in

reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)

(quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A

complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however,

the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal

standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim” under

§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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.”

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-

pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a

factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide

“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual

enhancement.” Id. at 557. The complaint must “give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Here, plaintiff, who describes himself as a “natural living soul blood and flesh man

human being,” seeks to challenge his underlying arrests and ongoing state-court prosecution in

Hamilton County Case No. B2106472. (Doc. 1, at PageID 3-7).1 Relying on principles of due

process, as well as, inter alia, the Uniform Commercial Code (UCC), the “Emergency Banking

Act [of] March 9, 1933,” the suspension of the Gold Standard, the “UNIDROIT Statute,”

maritime law, citations to definitions from the United States Code, and the Code of Federal

Regulations, plaintiff alleges that the defendants lack “complete and total” jurisdiction over him

1A search of the Hamilton County Clerk of Court’s website reveals that petitioner has a criminal matter

pending in Case No. B2106472. (Viewed at:

https://www.courtclerk.org/data/case_summary.php?sec=history&casenumber=B+2106472&submit.x=22&submit.y

=10.) This Court may take judicial notice of court records that are available online to members of the public. See

Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).

and challenges the amount of his bond and his representation by appointed counsel. (Doc. 1, at

PageID 2, 6-12). In his motion for default judgment and a separate “Addendum to Default

Judgment and Affidavit,” plaintiff also alleges, respectively, a state-law claim for malicious

prosecution and that he was threatened with being tased at a hearing if he “did not keep his

mouth shut.” (Doc. 8, at PageID 46; Doc. 9, at PageID 64).2

For relief, plaintiff seeks an “Order Ex Parte Injunction/Ex Parte Restraining Order

directed to Respondents forthwith.” (Doc. 1, at PageID 2).3

As explained below, the complaint is subject to dismissal for various reasons.

Specifically, plaintiff has failed to state a plausible federal claim, or the defendants are either

immune or are not state actors against whom a 42 U.S.C. § 1983 claim can be raised, or plaintiff

cannot raise claims relating to his ongoing state-court criminal proceedings in this civil action.

First, plaintiff’s claims against the State of Ohio must be dismissed because the State of

Ohio is immune from suit in this federal court. Absent an express waiver, the Eleventh

2In keeping with the liberal amendment policy of Fed. R. Civ. P. 15(a), the Court has considered these new

allegations in the screening of plaintiff’s complaint.

3The Court notes that plaintiff’s complaint “bears the hallmark of the sovereign citizen movement.” Woodson

v. Woodson, No. 22-MC-00003-TLP-TMP, 2022 WL 16985602, at *1 (W.D. Tenn. Feb. 18, 2022), report and

recommendation adopted, No. 222MC00003TLPTMP, 2022 WL 16963997 (W.D. Tenn. Nov. 16, 2022). The

Woodson court explains:

Sovereign citizens (or “sovereigns”) are a “loosely knit network” of individuals who express a

shared anti-government sentiment. United States v. Cook, No. 3:18-CR-00019, 2019 WL 2721305,

at *1 (E.D. Tenn. Jun. 28, 2019) (citing Joshua P. Weir, Sovereign Citizens: A Reasoned Response

to the Madness, 19 LEWIS & CLARK L. REV. 830, 834 (2015)). “Members of the contemporary

movement believe that with the passage of the Fourteenth Amendment, along with various

developments in commercial law (including the adoption of the Uniform Commercial Code

(“UCC”), abandonment of the gold standard, and creation of the Federal Reserve Bank), the modern-

day legal system has tricked people into giving up their ‘sovereign’ citizenship in order to receive

government benefits.” Id. (citing Weir, supra, at 837; Francis X. Sullivan, The “Usurping Octopus

of Jurisdictional/Authority”: The Legal Theories of the Sovereign Citizen Movement, 1999 WIS. L.

REV. 785, 795-813 (1999)).

Woodson, 2022 WL 16985602, at *1 (noting that “[s]overeign citizen pleadings are ‘dense, complex, and virtually

unreadable.’”) (quoting Cook, 2019 WL 2721305, at *1 (in turn quoting Sullivan, supra, at 796)).

Amendment to the United States Constitution bars suit against a State or one of its agencies or

departments in federal court regardless of the nature of the relief sought. Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89,

100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663

(1974). The State of Ohio has neither constitutionally nor statutorily waived its Eleventh

Amendment rights. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th Cir. 1999); State of Ohio

v. Madeline Marie Nursing Homes, 694 F.2d 449, 460 (6th Cir. 1982); Ohio Inns, Inc. v. Nye,

542 F.2d 673, 681 (6th Cir. 1976). Therefore, the State of Ohio is immune from suit in this case

and plaintiff's complaint should be dismissed as against it.

Likewise, plaintiff’s claims against defendant Judge Leslie Ghiz should be dismissed. It

is well-settled that judges are generally absolutely immune from civil suits. Bright v. Gallia

Cty., Ohio, 753 F.3d 639, 648-49 (6th Cir. 2014) (citing Barnes v. Winchell, 105 F.3d 1111, 1115

(6th Cir. 1997), in turn citing, inter alia, Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam)).

The absolute immunity accorded to judges extends not only to claims for damages, but also to

requests for injunctive and others forms of equitable relief. Mireles, 502 U.S. at 11 (“judicial

immunity is an immunity from suit, not just from ultimate assessment of damages”).

This far-reaching protection was adopted “for the benefit of the public, whose interest it

is that the judges should be at liberty to exercise their functions with independence and without

fear of consequences.” Pierson v. Ray, 386 U.S. 547, 554 (1967) (internal citation and quotation

marks omitted); see also Barnes, 105 F.3d at 1115 (quoting Antoine v. Byers & Anderson, Inc.,

508 U.S. 429, 435 (1993)) (“The doctrine of judicial immunity is justified ‘by a long-settled

understanding that the independent and impartial exercise of judgment vital to the judiciary

might be impaired by exposure to potential damages liability.’”).

Given the “strong policy justifications for the doctrine,” absolute judicial immunity can

be overcome only when the plaintiff’s claims are based on (1) non-judicial actions, such as

administrative acts unrelated to judicial proceedings; or (2) “actions, though judicial in nature,

[that are] taken in the complete absence of jurisdiction.” Bright, 753 F.3d at 649 (quoting

Mireles, 502 U.S. at 11-12). The Supreme Court has held that “whether an act . . . is a ‘judicial’

one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a

judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial

capacity.” Mireles, 502 U.S. at 12 (quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978)).

Absence of jurisdiction refers to the lack of subject matter jurisdiction. See, e.g., Bradley v.

Fisher, 80 U.S. 335, 351-52 (1871) (distinguishing “excess of jurisdiction” from “the clear

absence of all jurisdiction over the subject-matter”); Bright, 753 F.3d at 649 (quoting Holloway

v. Brush, 220 F.3d 767, 773 (6th Cir. 2000) (en banc), and Barnes, 105 F.3d at 1122) (“[o]nly in

the absence of subject matter jurisdiction are judicial actors devoid of the shield of immunity,”

whereas “[g]enerally, where a court has some subject matter jurisdiction, there is sufficient

jurisdiction for immunity purposes”). Therefore, as the Supreme Court has also made clear, 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, 502 U.S. at 11, 13 (and Supreme Court cases cited therein); see also

Bright, 753 F.3d at 649-50 (citing Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001)) (holding

that the district court erred in denying absolute judicial immunity to the defendant judge with

subject matter jurisdiction over the underlying criminal proceedings, who had engaged in actions

that “were petty, unethical, and unworthy of his office”).

It is clear from the face of plaintiff’s complaint that any complained-of actions on the part

of Judge Ghiz pertain entirely to alleged actions performed in plaintiff’s underlying criminal

action and, thus, to the performance of tasks and duties that were judicial in nature. (See, e.g.,

Doc. 1, at PageID 6-7). Cf. Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997) (quoting

Forrester v. White, 484 U.S. 219, 227 (1988)) (“The application of judicial immunity is simple

and noncontroversial when applied to ‘paradigmatic judicial acts,’ or acts of actual adjudication,

i.e., acts involved in resolving disputes between parties who have invoked the jurisdiction of the

court.”). Moreover, plaintiff’s allegations do not suggest that Judge Ghiz lacked subject matter

jurisdiction in the case at issue.4 As plaintiff does not allege facts that, when accepted as true,

show either of the exceptions to judicial immunity apply, Judge Ghiz is entitled to absolute

judicial immunity from plaintiff’s claims.

Similarly, defendant Hamilton County Ohio Prosecutor5 is entitled to prosecutorial

immunity. “Prosecutors are entitled to absolute immunity for conduct ‘intimately associated

with the judicial phase of the criminal process.’” Marietta v. Macomb County Enforcement

Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424 U.S. 409, 430

(1976)). This includes a county prosecutor’s initiation of a prosecution and presentation of the

4Although, as noted above, plaintiff asserts that the defendants lacked jurisdiction over him (see Doc. 1, at

PageID 3), plaintiff’s conclusory assertions are the type of “labels and conclusions” and “formulaic recitation of the

elements of a cause of action” that are insufficient to state a claim upon which relief may be granted. Iqbal, 556 U.S.

at 678.

5It is not clear from plaintiff’s complaint whether he is suing the individual prosecutor who initiated his

underlying criminal action or the Office of the Hamilton County Prosecutor. As set forth herein, to the extent plaintiff

is suing an individual prosecutor as a defendant, he or she is entitled to absolute immunity. To the extent plaintiff is

suing the Office of the Public Defender, it is “not sui juris, meaning [it is] not [an] independent legal entit[y] capable

of suing or being sued.” Lenard v. City of Cleveland, No. 1:17 CV 440, 2017 WL 2832903, at *2 (N.D. Ohio June

30, 2017). Even liberally construing such claims as against Hamilton County, the claims would fail because plaintiff

has not identified a particular Hamilton County policy or custom that the defendants were following or connected that

policy or custom to his alleged injuries. See id.

State’s case at trial. Imbler, 424 U.S. at 431. See also Jones v. Shankland, 800 F.2d 77, 80 (6th

Cir. 1986). A prosecutor’s initiation and presentation of a case to a grand jury falls within the

traditional functions of the prosecutor and is shielded by absolute immunity. Grant v.

Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989). Courts have consistently recognized that even

the knowing presentation of false testimony to a grand jury or a trial jury are actions protected by

absolute immunity. See Spurlock v. Thompson, 330 F.3d 791, 797-98 (6th Cir. 2004). See also

Imbler, 424 U.S. at 413, 430; Buckley v. Fitzsimmons, 509 U.S. 259, 267 n. 3 (1993). Such

“absolute prosecutorial immunity is not defeated by a showing that a prosecutor acted

wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498 n. 7 (6th Cir. 1998). In

this case, plaintiff’s claims against the Hamilton County Ohio Prosecutor are premised on the

prosecutor’s initiation and pursuit of criminal charges against plaintiff. (See, e.g., Doc. 1, at

PageID 6-7). Because these activities are intimately associated with the judicial phase of the

criminal process, defendant Hamilton County Ohio Prosecutor is entitled to immunity.

Next, to the extent that plaintiff relies on the UCC, the Emergency Banking Act of March

9, 1933, the suspension of the Gold Standard, the UNIDROIT Statute, maritime law, definitions

from the United States Code, and the Code of Federal Regulations to support his claims, he has

failed to state a claim upon which relief may be granted. See, e.g., Bey v. Jefferson, No. 2:17-

CV-1007-RMG-MGB, 2017 WL 9250348, at *5 (D.S.C. Apr. 24, 2017), report and

recommendation adopted, No. CV 2:17-1007-RMG, 2017 WL 1956979 (D.S.C. May 11, 2017)

(rejecting sovereign-citizen claims under the UCC); Mallory v. Obama, No. 1:15–CV–1090,

2015 WL 7722034, at *2 (W.D. Mich. Nov. 30, 2015) (rejecting sovereign-citizen claims under

the Emergency Banking Relief Act of 1933). See also United States v. Mundt, 29 F.3d 233, 237

(6th Cir.1994) (rejecting similar argument as being “without merit and patently frivolous.”). The

Court is unable to infer any plausible cause of action from plaintiff’s complaint under any of the

above cited federal provisions.

Nor has plaintiff stated a claim for relief under 42 U.S.C. § 1983.6 First, plaintiff’s

claims against Hamilton County should be dismissed. To state a claim for relief against

Hamilton County, plaintiff must allege that his alleged “injuries were the result of an

unconstitutional policy or custom of the County.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th

Cir. 1994). See Monell v. New York City Dept. of Social Servs.,436 U.S. 658, 694 (1978); Doe v.

Claiborne Cty., 103 F.3d 495, 507 (6th Cir. 1996). See also Polk Cty. v. Dodson, 454 U.S. 312

(1981) (municipal policy must be “moving force” behind constitutional deprivation).

Municipalities and other governmental entities cannot be held responsible for a constitutional

deprivation unless there is a direct causal link between a policy or custom and the alleged

deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cty., Ohio, 989 F.2d 885, 889 (6th

Cir. 1993). In this case, plaintiff has alleged no facts indicating that Hamilton County was acting

pursuant to a governmental policy or custom in allegedly violating plaintiff’s rights. Therefore,

plaintiff has failed to state a viable § 1983 claim against this defendant.

Plaintiff has also failed to state a claim against the Hamilton County Ohio Sheriff.

Plaintiff has not alleged that the Hamilton County Sheriff was personally involved in any alleged

unconstitutional activities. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Even liberally construing

plaintiff’s claims against the Sheriff as against Hamilton County, such claims would fail for the

reasons previously stated by the Court. See Monell, 436 U.S. at 691.

6The Court understands plaintiff’s remaining claims, for alleged violations of the Fourteenth Amendment’s

Due Process Clause and alleged threating conduct, to be brought under 42 U.S.C. § 1983. “Section 1983 provides a

private cause of action for the deprivation, under color of state law, of ‘rights . . . secured by the Constitution and

laws.’” See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 624 (1979) (Powell, J., concurring) (footnote

omitted).

Likewise, plaintiff’s claims against the Colrain Township Police Department are subject

to dismissal. This defendant is not “sui juris” and thus is not “capable of suing or being sued.”

Lenard, 2017 WL 2832903, at *2. And, as above, even liberally construing such claims as

against Colrain Township, plaintiff has not identified a particular Colrain Township policy or

custom that the defendants were following or connected that policy or custom to his alleged

injuries. Monell, 436 U.S. at 691.

In addition, plaintiff’s complaint fails to state a claim for relief under § 1983 against

defendant Donna S. Denham, his appointed defense attorney in his state criminal case. (See Doc.

1, at PageID 6-7).7 In order to maintain an action under § 1983, plaintiff must allege that the

person engaging in the conduct complained of was acting under color of state law and that this

conduct deprived plaintiff of some right secured by the Constitution or laws of the United States.

Graham v. National Collegiate Athletic Ass’n, 804 F.2d 953, 957 (6th Cir. 1986) (citing Parratt

v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams,

474 U.S. 327 (1986)). As a lawyer representing a client, defendant Denham was not a state actor

within the meaning of § 1983. See Polk County v. Dodson, 454 U.S. 312 (1981) (holding that

public defender does not act under color of state law for purposes of § 1983); McCord v. Bailey,

636 F.2d 606, 613 (D.C. Cir. 1979) (applying Polk County to retained criminal lawyers).

Plaintiff has thus failed to state a viable § 1983 claim against this defendant.

Moreover, plaintiff names various other individual defendants, several of whom are

named multiple times, e.g., William Elbert Fernbach, II, Seth Moore/8LSMoo, Seth Moore, Jon

7To the extent that plaintiff is also suing the Office of the Hamilton County Ohio Public Defender separately

from defendant Denham (see Doc. 1, at PageID 1), such a claim is subject to dismissal. As set forth above, plaintiff

has failed to allege that his rights were violated pursuant to an official Hamilton County policy or custom. See, e.g.,

Livingston v. Francis, No. 3:12 CV 2880, 2013 WL 395525, at *3 (N.D. Ohio Jan. 31, 2013) (dismissing Hamilton

County Public Defender).

Middendorf/81jmid, Jon Middendorf, Benjamin Gifford/81bgif, Benjamin Gifford, Johnathan

McMahon/81jmcm, and Johnathan McMahon, without any factual allegations establishing that

they are state actors. Because plaintiff has failed to allege that these defendants are state actors,

plaintiff has failed to state a § 1983 claim upon which relief may be granted against these

defendants. See Graham, 804 F.2d at 957.

Furthermore, plaintiff’s claim that he was threatened with being tased during a hearing is

subject to dismissal. It is well-settled that “[v]erbal harassment or idle threats by a state actor do

not create a constitutional violation and are insufficient to support a section 1983 claim for

relief.” Wingo v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam)

(citing Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987)); see also Chilcott v. Erie Cty. Domestic

Relations, 283 F. App’x 8, 11 (3d Cir. 2008) (and Sixth, Fifth and Tenth Circuit cases cited

therein). Cf. Fuller v. Tennessee Dep’t of Correction, No. 17-1145-JDT-CGC, 2018 WL

991547, at *4 (W.D. Tenn. Feb. 20, 2018) (“The mere threat to use a taser is insufficient to

support an Eighth Amendment claim of excessive force.”) (citing Pickard v. Hardy, No. 3:15-cv-

P305-DJH, 2016 WL 865327, at *4 (W.D. Ky. Mar. 2, 2016); Salvodon v. Ricotta, No. 07-CV-

174 (ENV) (LB), 2013 WL 3816728, at *6 (E.D.N.Y. July 22, 2013)); Johnson v. Unknown

Dellatifa, 357 F.3d 539, 545–46 (6th Cir. 2004).

Finally, to the extent that plaintiff seeks to bring Fourteenth Amendment due process

claims against “others unknown” arising out of his arrests and/or prosecution (see Doc. 1, at

PageID 1), such constitutional claims are also subject to dismissal.

Absent extraordinary circumstances, federal courts may not interfere with pending state

criminal proceedings in order to entertain constitutional challenges to the state proceedings.

Younger v. Harris, 401 U.S. 37 (1971). Under Younger, the federal court must abstain where

“(1) state proceedings are pending; (2) the state proceedings involve an important state interest;

and (3) the state proceeding will afford the plaintiff an adequate opportunity to raise his

constitutional claims.” Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir. 1995) (citing Nilsson v.

Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454 (6th Cir. 1989)). See also Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 11 (1987); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975).

Extraordinary circumstances barring abstention include “great and immediate” irreparable injury,

state law that is “flagrantly and patently violative of express constitutional prohibitions,” or “bad

faith, harassment, or any other unusual circumstance that would call for equitable relief”

Younger, 401 U.S. at 46, 53, 54. See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996).

All three factors supporting Younger abstention are present in this case. Because

plaintiff’s criminal case remains pending in state court, the first Younger factor is satisfied.

Second, the criminal case implicates an important state interest as state criminal prosecutions

have traditionally been considered an arena in which federal courts decline to interfere. See

Younger, 401 U.S. at 43-45. Third, there is no evidence that the state criminal proceedings

cannot provide an opportunity for plaintiff to raise any constitutional claims. Regarding this

factor, the federal court must presume that the state courts are able to protect the interests of a

federal plaintiff. Kelm, 44 F.3d at 420 (citing Pennzoil Co., 481 U.S. at 15). Plaintiff possesses

an adequate opportunity to raise any constitutional issues in his pending state-court action or in a

subsequent appeal. Because plaintiff has failed to allege facts suggesting the existence of

extraordinary circumstances barring abstention, abstention under Younger is appropriate.8

8In the event that plaintiff is convicted in the underlying state criminal case, the Court notes that a subsequent

§ 1983 civil rights action challenging the validity of those proceedings will not lie unless plaintiff has been successful

in having the conviction or sentence invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). If plaintiff is

convicted in state court and believes that his federal constitutional rights were violated, he may file an application for

a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 after exhausting state remedies. In this regard, the

Accordingly, in sum, plaintiff’s complaint (Doc. 1) should be DISMISSED with

prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception, in an

abundance of caution, of any Fourteenth Amendment due process claims against “others

unknown” arising out of his underlying arrests and/or state-court prosecution, which should be

DISMISSED without prejudice pursuant to the Younger abstention doctrine. See Loch v.

Watkins, 337 F.3d 574, 579 (6th Cir. 2003) (affirming dismissal of claims on the ground of

abstention). The Court should DECLINE to exercise supplemental jurisdiction over any

remaining state-law claims and DISMISS such claims without prejudice. 28 U.S.C.

§ 1367(c)(3).

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff’s complaint be DISMISSED with prejudice, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of any Fourteenth Amendment due

process claims against “others unknown” arising out of his underlying arrests and/or state-court

prosecution, which should be DISMISSED without prejudice.

2. In light of the above recommendation, the plaintiff’s motion for default judgment

(Doc. 8) be DENIED as moot.

3. The Court DECLINE to exercise supplemental jurisdiction over any remaining state-

law claims and DISMISS such claims without prejudice. 28 U.S.C. § 1367(c)(3).

4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith

Court notes that plaintiff has filed a separate habeas corpus action in this Court in Case No. 1:22-cv-646, raising the

same claims as are presented in the instant complaint. In a separate Report and Recommendation, issued this date,

the Court has recommended that the habeas petition be dismissed without prejudice under Younger to the extent that

it seeks to challenge the validity of petitioner’s state criminal proceedings.

and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,

114 F.3d 601 (6th Cir. 1997).

PROCEDURE ON OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. 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).

February 9, 2023 s/Stephanie K. Bowman

STEPHANIE K. BOWMAN

United States Magistrate Judge