Tingler v. Deters

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES L. TINGLER,

Plaintiff,

Case No. 2:23-cv-911

Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Elizabeth P. Deavers

CHIEF JUSTICE SHARON

KENNEDY, et al.,

Defendants.

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff Charles L. Tingler’s request for leave to proceed in forma pauperis under 28

U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) It is ORDERED that Plaintiff be

allowed to prosecute his action without prepayment of fees or costs and that judicial officers who

render services in this action shall do so as if the costs had been prepaid.

This matter is also before the Court for an initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

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

from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A. Having performed the initial screen of the

Complaint required by 28 U.S.C. §§ 1915(e), 1915A, for the reasons that follow, it is

RECOMMENDED that Plaintiff’s Complaint be DISMISSED in its entirety.

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

1 Formerly 28 U.S.C. § 1915(d).

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se ain complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th

Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “‘courts should not have to guess at the nature of the claim

asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 977 (6th Cir. 2012) (quoting Wells v.

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

II.

Plaintiff seeks injunctive relief against each of the seven Justices of the Supreme Court of

Ohio (collectively referred to herein as the “Supreme Court”), alleging that they improperly

“tagged [him] as a vexatious litigator as a form of retaliation against [him] because [he] [has]

filed grievances against them, reported criminal activity to law enforcement against them, and

[has] filed litigation against them,” and that they also “have retaliated against [him] for

petitioning the government for redress of grievances.” (ECF No. 1-1 at PAGEID # 53.) Plaintiff

seeks the following relief:

I would like the court to order the Justices to vacate the order declaring me as a

vexatious litigator, vacate the orders dismissing my complaints for a writ of

mandamus and reinstate the cases, and require all the justices to recuse themselves

from further participation in any cases where I am a party, and assign a judicial

panel to review the cases. I would ask for an additional order requiring Chief Justice

Kennedy to vacate the order dismissing my affidavit of disqualification against

Judge Tygh Tone of the Erie County Common Pleas Court, reinstate the case, and

assign a judge to review the case.

(Id. at PAGEID ## 55-56.) Plaintiff contends that the Supreme Court’s finding violated his

constitutional rights under the First Amendment and suggests (though he does not affirmatively

allege) that the finding also violated the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. (Id. at PAGEID ## 52-55.)

Plaintiff has failed to state a claim against Defendants, because his vexatious litigation is

not protected by the United States Constitution. Needless to say, Plaintiff is not the first

vexatious litigator in Ohio who has challenged the constitutionality of such a finding. It is well

settled that one’s Constitutional rights are not violated by being declared a vexatious litigator, as

Plaintiff suggests. Specifically, in Hall v. Callahan, 727 F.3d 450 (6th Cir. 2013), the United

States Court of Appeals for the Sixth Circuit rejected all of the very arguments Plaintiff asserts in

this action.

With regard to the First Amendment, for example, the Hall Court noted that “although

access to courts is a fundamental right, the ability to file frivolous lawsuits is not.” Hall, 727

F.3d at 456 (citing Bill Johnson’s Rests. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d

277 (1983) (“Just as false statements are not immunized by the First Amendment right to

freedom of speech, baseless litigation is not immunized by the First Amendment right to

petition.”) (citations omitted)). Because “vexatious conduct is not protected by the First

Amendment,” and because vexatious litigators are not banned from filing future lawsuits “as

long as those lawsuits have merit,” the Court held that being declared a vexatious litigator did

not infringe upon the First Amendment. Id. at 456-457.

The Hall Court also rejected the argument that Ohio’s vexatious litigator statute violated

the Due Process Clause, for two reasons. Id. at 457. First, Ohio’s vexatious litigator statute

“does not arbitrarily and capriciously deprive citizens of a constitutionally protected liberty or

property interest,” because it is “rationally related to legitimate ends, so it is not arbitrary.” Id.

(citing Grundstein v. Ohio, No. 1:06-cv-2381, 2006 WL 34999990, at *6; Regents of Univ. of

Mich. v. Ewing, 474 U.S. 214, 227, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)). And second, the

statute “also restrains narrowly only the conduct it seeks to prohibit, by providing a mechanism

by which even vexatious litigants can file meritorious actions.” Id.

Finally, the Hall Court held that the argument that Ohio’s vexatious litigator statute

violated the Equal Protection Clause “clearly has no merit,” because Plaintiff had failed to

“demonstrate that a discrimination of some substance has occurred which has not occurred

against other individuals who were similarly situated.” Id. (citing City of Cleburne, Texas v.

Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d. 313 (1985)).

The same holds true here, on all fronts. Specifically, the Supreme Court could not, and

did not, infringe upon Plaintiff’s First Amendment rights because vexatious conduct is not

protected by the First Amendment. The Supreme Court’s order specifically noted that Plaintiff

can “continu[e] or institut[e] legal proceedings” so long as he first obtains leave to do so. (ECF

No. 1-1 at PAGEID # 82.) For these reasons, and for the other reasons set forth in Hall, the

Supreme Court also did not infringe upon Plaintiff’s due process rights. And finally, because

Plaintiff has failed to identify any “similarly situated” individuals who were treated differently,

he also has failed to state an equal protection claim. Hall, 727 F.3d at 457.

Separately, Plaintiff alleges that the Supreme Court declared him to be a vexatious

litigator “as a form of retaliation.” (ECF No. 1-1 at PAGEID # 53.) But this does not save

Plaintiff’s Complaint, because in order to allege a retaliation claim, Plaintiff would need to have

engaged in constitutionally protected activity which motivated the allegedly retaliatory action.

Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (“[A]

plaintiff must show that (1) he was participating in a constitutionally protected activity; (2)

defendant's action injured plaintiff in a way “likely [to] chill a person of ordinary firmness from”

further participation in that activity; and (3) in part, plaintiff's constitutionally protected activity

motivated defendant's adverse action.”) (citations omitted). As discussed above, however,

Plaintiff’s vexatious litigation is not constitutionally protected. Hall, 747 F.3d at 456-457. To

this end, as the documents attached to Plaintiff’s Complaint make clear that the Supreme Court

only declared Plaintiff to be a vexatious litigator because of his abuse of the court process and

frivolous conduct:

{¶ 3} We may declare a person to be a vexatious litigator if he “habitually,

persistently, and without reasonable cause” files actions that are “not reasonably

well-grounded in fact or warranted by existing law or a good-faith argument for the

extension, modification, or reversal of existing law.” And we have a duty to name

as vexatious litigators those individuals who abuse the court process and engage in

frivolous conduct so that we may put an end to repeated and frivolous conduct that

substantially burdens our court system and deprives litigants of the prompt handling

of their cases.

{¶ 4} Reviewing Tingler's filings in this court, there is no doubt that we must

declare him a vexatious litigator to protect our court system and ensure that

other litigants--those who follow our rules and procedures--receive timely

resolution of their cases. Tingler has filed 84 original actions in this court since

December 2022 and shows no signs of stopping. He filed 63 original actions in

December 2022, 12 original actions in January 2023, and 9 original actions in

February 2023. While the sheer number of cases that Tingler has filed is only one

factor in the vexatious-litigator assessment, it is a significant factor here.

{¶ 5} Additionally, many of Tingler's original actions address similar issues and

contain nearly identical language claiming the failure of law-enforcement officials

and other government officials in various counties and municipalities in the state to

perform their duties. He also alleges, among other things, perjury and obstruction

of justice on the part of these officials. In some of his original actions, he makes

improper requests for grand-jury materials. The claims reviewed thus far have

been without merit; including this case, we have unanimously dismissed 22 of

his original actions, 17 of which were dismissed on the merits. And after

reviewing the claims in this case, I do not foresee that result changing.

{¶ 6} The justices, law clerks, filing clerks, and other court personnel have had to

review the 22 actions filed by Tingler that have already been adjudicated, and they

have reviewed or will have to review the remaining 62 pending actions. And the

county prosecutors, their employees, and other members of the state's legal system

have had to spend valuable time responding to all these lawsuits and motions. This

excessive use of court resources is unfair to other litigants in Ohio's court

system.

(ECF No. 1-1 at PAGEID ## 83-84 (internal citations omitted; emphasis added.) Accordingly,

Plaintiff’s own filing confirms that the Supreme Court provided more than sufficient explanation

that its finding was connected only to Plaintiff’s vexatious litigation, and not to Plaintiff’s

“grievances against them,” “report[s] [of] criminal activity against them,” “litigation against

them,” or “petition[s] [to] the government for a redress of grievances,” as Plaintiff theorizes.

Plaintiff’s allegations of retaliation are therefore based solely on “naked assertion[s] devoid of

further factual enhancement” and do not suffice. Iqbal, 556 U.S. at 678 (Twombly, 550 U.S. 544,

557 (2007)).

Finally, even if Plaintiff had otherwise stated a claim, arguendo, then this Court still

should dismiss Plaintiff’s Complaint under the Rooker-Feldman doctrine. In his Complaint,

Plaintiff seeks various forms of injunctive relief, hoping to undermine or reverse various state

court orders and judgments – the most prominent, of course, being Plaintiff’s effort “to vacate

the order declaring [him] as a vexatious litigator.” (ECF No. 1-1 at PAGEID ## 55-56.) This is

improper. A doctrine known as Rooker-Feldman further limits this Court’s jurisdiction to

adjudicate appeals from or collateral attacks on state-court rulings. See Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 476 (1983). “The Rooker-Feldman doctrine embodies the notion that appellate review of

state-court decisions and the validity of state judicial proceedings is limited to the Supreme Court

under 28 U.S.C. § 1257, and thus that federal district courts lack jurisdiction to review such

matters.” In re Cook, 551 F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine applies

to cases “brought by state-court losers complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544 U.S. 280, 284

(2005). “The pertinent question in determining whether a federal district court is precluded

under the Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a claim is

whether the source of the injury upon which plaintiff bases his federal claim is the state court

judgment.” In re Cook, 551 F.3d at 548 (internal quotation marks and citations omitted).

Accordingly, to the extent Plaintiff seeks to “vacate” the Supreme Court’s order,

Plaintiff’s claim is plainly barred by Rooker-Feldman and should be dismissed. Lloyd v.

Pokorny, No. 22-3321, 2023 WL 3294531, at *2 (6th Cir. Jan. 23, 2023), cert. denied, 143 S. Ct.

2620 (2023) (“To the extent that Lloyd seeks to undo the specific outcome of the [underlying]

case, her claims are barred by Rooker-Feldman and were properly dismissed by the district

court.”).

For these reasons, it is RECOMMENDED that Plaintiff’s claims be DISMISSED in

their entirety pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim for which relief can

be granted.

III.

For the reasons explained above, it is RECOMMENDED that Plaintiff’s Complaint be

DISMISSED in its entirety for failure to state a claim upon which relief can be granted. It is

FURTHER RECOMMENDED that 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 and therefore deny Plaintiff leave to appeal in forma pauperis.

See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review of by the District Judge

and waiver of the right to appeal the judgment of the District Court. Even when timely

objections are filed, appellate review of issues not raised in those objections is waived. Robert v.

Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report,

which fails to specify the issues of contention, does not suffice to preserve an issue for appeal . . .

.” (citation omitted)).

IT IS SO ORDERED.

Date: August 25, 2023 /s/ Elizabeth A. Preston Deavers__________

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE