The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WAEL NAWAR,
Plaintiff, :
Case No. 2:23-cv-800
v.
Judge Sarah D. Morrison
Magistrate Judge Kimberly A.
Jolson
JUDGE JAMES W. BROWN, et
al., :
Defendants.
OPINION AND ORDER
Wael Nawar filed this action against Judge James W. Brown and Magistrate
Kathleen M. Knisely. (ECF No. 1.) Judge Brown and Magistrate Knisely presided
over Mr. Nawar’s divorce and child custody proceedings in the Franklin County
Court of Common Pleas, Domestic Division. (See id., PAGEID # 3.) Mr. Nawar
amended his initial complaint in response to a motion to dismiss. The Amended
Complaint alleges that Judge Brown and Magistrate Knisely discriminated against
Mr. Nawar on the basis of his race, gender, and national origin, in violation of his
rights under the Fourteenth Amendment’s equal protection clause. (Am. Compl.,
ECF No. 9.) The matter is before the Court on a second Motion to Dismiss. (ECF No.
10.) Because Judge Brown and Magistrate Knisely are entitled to immunity, the
Motion is GRANTED.
I. BACKGROUND
All well-pleaded factual allegations in the Amended Complaint are
considered as true for purposes of the Motion to Dismiss. See Gavitt v. Born, 835
F.3d 623, 639–40 (6th Cir. 2016). The following summary draws from that Amended
Complaint.
Mr. Nawar “is an immigrant Egyptian American man[.]” (Am. Compl.,
PAGEID # 188.) Mr. Nawar was married to Hayam Soliman, and they have one
child together. (Id.) On March 3, 2021, Ms. Soliman filed for divorce in the Franklin
County Court of Common Pleas, Domestic Division. (Id.) At the time, Mr. Nawar
was living in Egypt, where divorce proceedings were also ongoing. (Id.) Judge
Brown and Magistrate Knisely were assigned to preside over the Ohio proceedings.
(Id.) Between the filing of the case and final judgment, Judge Brown and
Magistrate Knisely made certain rulings and entered certain orders, including (but
not limited to):
• An order declining to recognize a divorce decree from Egypt;
• A standard mutual restraining order;
• Orders on Mr. Nawar’s child custody and visitation rights; and
• Orders on Mr. Nawar’s father’s child visitation rights.
(See id., generally.) Mr. Nawar alleges that these orders reflect differential
treatment because they favor Ms. Soliman’s positions and, in Mr. Nawar’s view,
ignore evidence supporting his own. (See id., PAGEID # 192.)
Mr. Nawar also alleges that Judge Brown and Magistrate Knisley made
“several comments” about his and his father’s “race, nationalities and genders.” (Id.,
PAGEID # 221.) But he only details two such comments with any specificity. First,
on July 22, 2021, Judge Brown expressed that he “did not care about the Egyptian
divorce.” (Id., PAGEID # 191.) Second, on May 3, 2022, Magistrate Knisely made
comments about Mr. Nawar’s father’s accent, nationality, and “the place where he
lived.” (Id., PAGEID # 201.)
Mr. Nawar claims that he was deprived his right to equal protection under
the law. (Id., PAGEID # 221.) He seeks money damages, an injunction “requiring
[Judge Brown] to cease any discriminatory behavior, such as changing the terms of
a custody agreement or ensuring that [Judge Brown and Magistrate Knisely]
recuse[] themselves from any future cases involving [Mr. Nawar],” and a
“declaration that [Judge Brown and Magistrate Knisely’s] conduct violated the law
and/or [Mr. Nawar’s] rights.” (Id., PAGEID # 231.)
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim
with sufficient specificity to “give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (internal alteration and quotations omitted). A complaint which falls short of
the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). The Supreme Court has explained:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a probability requirement, but it asks
for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations
omitted). The complaint need not contain detailed factual allegations, but it must
include more than labels, conclusions, and formulaic recitations of the elements of a
cause of action. Id. (citing Twombly, 550 U.S. at 555.) “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. In reviewing a motion to dismiss, the Court “construe[s] the complaint
in the light most favorable to the plaintiff[.]” DirecTV, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007).
These standards apply equally when the plaintiff is pro se. Although a pro se
litigant is entitled to a liberal construction of his pleadings and filings, he still must
do more than assert bare legal conclusions, and the “complaint must contain either
direct or inferential allegations respecting all the material elements to sustain a
recovery under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th
Cir. 2005).
III. ANALYSIS
Using 42 U.S.C. § 1983, Mr. Nawar filed this action against Judge Brown and
Magistrate Knisely in their official and individual capacities.
A. Mr. Nawar cannot sustain his official capacity claims.
A lawsuit brought against a public official in her or his official capacity is
treated as a suit against the government entity, rather than the official personally,
as the entity is the real party in interest. Kentucky v. Graham, 473 U.S. 159, 166
(1985). A suit against Judge Brown and Magistrate Knisely is thus treated as a suit
against the Franklin County Court of Common Pleas.
Citing Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978),
Judge Brown and Magistrate Knisely argue that Mr. Nawar’s official capacity
claims fail because Mr. Nawar did not “identify any policy, custom, or procedure
that resulted in the alleged violation of his constitutional rights or that is persistent
and widespread.” (ECF No. 10, PAGEID # 432.) Monell establishes the standard for
determining municipal liability under § 1983. But the Court of Common Pleas “is
part of the Ohio state court system, established by the Ohio state legislature and
subject to the supervision of the Ohio Supreme Court.” (ECF No. 10, PAGEID # 434
(citing Ohio Const. art. IV, §§ 4, 5) (emphasis added).) So, the court is “an arm of the
state” and is not a municipality. Ward v. City of Norwalk, 640 F. App’x 462, 465 (6th
Cir. 2016). As a result, Mr. Nawar’s claims require analysis under Eleventh
Amendment sovereign immunity instead. “The Sixth Circuit has largely followed
the ‘jurisdiction bar’ approach [to Eleventh Amendment sovereign immunity] by
holding that a federal court can raise the question of sovereign immunity sua sponte
because it implicates important questions of federal-court jurisdiction and federal-
state comity.” Cady v. Arenac County, 574 F.3d 334, 344 (6th Cir. 2009) (internal
quotation and citation omitted). The analysis differs based on the relief sought,
which will guide the discussion below.
Money damages. The Eleventh Amendment “bars suits for monetary relief
against state officials sued in their official capacity.” Thiokol Corp. v. Dep’t of
Treas., State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993). Mr. Nawar’s
official capacity claim for money damages therefore fails.
Declaratory relief. The Eleventh Amendment also bars official-capacity claims
for retrospective declaratory relief. Green v. Mansour, 474 U.S. 64, 68 (1985) (“Both
prospective and retrospective relief implicate Eleventh Amendment concerns, but
the availability of prospective relief of the sort awarded in Ex parte Young gives life
to the Supremacy Clause. Remedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in assuring the
supremacy of that law. But compensatory or deterrence interests are insufficient to
overcome the dictates of the Eleventh Amendment.”) (internal citations omitted).
Because the declaratory relief Mr. Nawar seeks is retrospective in nature, that
claim also fails.
Injunctive relief. The Eleventh Amendment does not bar an official-capacity
claim for prospective injunctive relief. Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 n. 10 (1989) (citing Graham, 473 U.S. at 167, n.14; Ex parte Young, 209
U.S. 123 (1908)). But § 1983 provides that:
[I]n any action brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or declaratory relief
was unavailable.
42 U.S.C. § 1983, amended by Federal Courts Improvement Act of 1996, § 309(c),
Pub.L. No. 104–317, 110 Stat. 3847, 3853. Mr. Nawar does not allege that he
previously sought or obtained a declaratory decree against Judge Brown and
Magistrate Knisely. His claim for injunctive relief thus also fails. See Ward, 640 F.
App’x at 467.
The Motion to Dismiss is GRANTED as to the official capacity claims.
B. Judge Brown and Magistrate Knisely are entitled to judicial
immunity on Mr. Nawar’s individual capacity claims.
With respect to the individual capacity claims, Judge Brown and Magistrate
Knisely argue that they are absolutely immune from suit. (ECF No. 10, PAGEID
# 432.) The Court agrees. “It is well established that judges and other court officers
enjoy absolute immunity from suit on claims arising out of the performance of
judicial or quasi-judicial functions.” Foster v. Walsh, 864 F.2d 416, 417 (6th Cir.
1988). There are only two exceptions to judicial immunity:
First, a judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge’s judicial capacity. Second, a judge is not
immune for actions, though judicial in nature, taken in the complete
absence of all jurisdiction.
Mireles v. Waco, 502 U.S. 9, 11–12 (1991) (internal citations omitted).
Judge Brown and Magistrate Knisely acted in a judicial capacity when
presiding over Mr. Nawar’s divorce. Mr. Nawar’s Amended Complaint alleges in a
conclusory manner that the two “acted out of [their] jurisdiction” at various points
in the proceedings. (See Am. Compl., PAGEID # 198, 212.) His response to the
Motion to Dismiss does not further elaborate. (See ECF No. 13, generally.) On its
own review, the Court can find nothing in the Amended Complaint to support Mr.
Nawar’s assertion that Judge Brown or Magistrate Knisely acted in the complete
absence of jurisdiction.
Judge Brown and Magistrate Knisely are absolutely immune from suit. The
Motion to Dismiss is GRANTED as to the individual capacity claims.
IV. CONCLUSION
The Motion to Dismiss is GRANTED. Mr. Nawar’s Amended Complaint is
DISMISSED. The Clerk is DIRECTED to TERMINATE this case.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE