Nouri v. State of Ohio

UNITED STATES DISTRICT

COURT SOUTHERN DISTRICT

OF OHIO WESTERN DIVISION

LINDA NOURI, Case No. 1:22-cv-317

Plaintiff,

Hopkins, J.

vs Bowman, M.J.

STATE OF OHIO., et al.,

OHIO ATTORNEY GENERAL

DAVID ANTHONY YOST

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the court on Defendants’ motions to dismiss

Plaintiff’s Amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be granted (Docs. 21, 22) and the parties’

responsive memoranda. (Docs. 29, 30). Also before the Court is Plaintiff’s motion for

leave to amend the complaint (Doc. 32) and the parties’ responsive memoranda (Docs.

33, 34). The motions will be addressed in turn.

I. Background and Facts

This case arises out of a dispute regarding a lien and foreclosure action initiated

by Plaintiff’s condominium association. In May 2020, the Association required all

condominium unit owners to sign a waiver to gain access to the recreational facilities.

Doc. 20, ¶ 40. Plaintiff refused to sign the waiver, and when her demand to gain access

to the facilities without the waiver was denied, she refused to pay the condominium

assessment. Id. at ¶¶ 41-42. Because of her refusal to pay, the Association filed a lien

against Plaintiff pursuant to Ohio Rev. Code § 5311.18. Id. ¶¶ 45-46.

Thereafter, on June 1, 2022, Plaintiff filed the instant action pursuant to 42 U.S.C.

§ 1983 claiming a violation of due process rights and seeking declaratory and injunctive

relief, damages, and attorneys’ fees against Defendants State of Ohio, Hamilton County

Court of Common Pleas, Hon. Judge Terry Nestor, Hon. and Magistrate Anita Berding.

(Doc. 1, Pg 4-5). Plaintiff filed an Amended Complaint on August 22, 2022, adding

Hamilton County Recorder Scott Crowley and Hon. Magistrate Thomas Beridon, as well

as replacing the State of Ohio with Ohio Attorney General David A. Yost as a Defendant.

(Doc 20. ¶¶ 2-6). Hamilton County Court of Common Pleas is not named as a defendant

in the amended complaint.

Defendants now move to dismiss Plaintiff’s amended complaint. (Docs. 21, 22).

For the reasons that follow, the undersigned finds Defendants’ motions are well-taken.

II. Motions to Dismiss

A. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of

the claims. The court is required to construe the complaint in the light most favorable

to the Plaintiff and accept all well-pleaded factual allegations in the complaint as true.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business

Services, 135 F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept

conclusions of law or unwarranted inferences which are presented as factual

allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1974). A

complaint must contain either direct or reasonable inferential allegations that support

all material elements necessary to sustain a recovery under some viable legal theory.

Lewis v. ACB, 135 F.3d at 405 (internal citations omitted). “While a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a

plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations

omitted); Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d

545, 548 (6th Cir. 2007). Even though a complaint need not contain “detailed” factual

allegations, its “[f]actual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Id. (citations omitted).

B. Defendants’ motions to dismiss are well-taken

Here, Judge Nestor, Magistrates Berding and Beridon and Recorder Crowley

(hereinafter, the “County Defendants”) contend that dismissal of Plaintiff’s Amended

Complaint is appropriate under Federal Rule of Civil Procedure Rule 12(b)(6) for failure

to state a claim upon which relief may be granted. Namely, Defendants argue that

Plaintiff’s Amended Complaint fails to include basic and minimal factual allegations in

order to state a claim for relief. The County Defendants further argue that Plaintiff’s lacks

standing.

Additionally, Defendant David A. Yost maintains that Plaintiff’s claim against him

is barred by the Eleventh Amendment. Defendants’ contentions are well-taken.

At the outset, the County Defendants contend that Plaintiff lacks standing. The

undersigned agrees. That lack of standing means that the Court cannot consider the

merits of Plaintiff’s claims but rather must dismiss the case on jurisdictional grounds.

“Standing stems from the Constitution’s mandate that federal courts may decide only

‘Cases’ or ‘Controversies.’” Vonderhaar v. Vill. of Evendale, 906 F.3d 397, 400–01 (6th

Cir. 2018) (citing U.S. Const. art. III, § 2, cl. 1). Consistent with that language, standing

is designed to ensure that courts decide live disputes, rather than “issue advisory

opinions or address statutes ‘in the abstract.’” L.W. by & through Williams v. Skrmetti,

73 F.4th 408, 415 (6th Cir. 2023) (quoting California v. Texas, 141 S. Ct. 2104, 2115

(2021)). Because Article III standing is a prerequisite to subject-matter jurisdiction, a

court may evaluate the issue at any time, even sua sponte. Duncan v. Liberty Mut. Ins.

Co., 854 F. App’x 652, 663 (6th Cir. 2021), cert. denied, 142 S. Ct. 767 (2022), (citing

Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007)).

Standing requires that the plaintiff has “(1) suffered an injury in fact, (2) that is

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338,

(2016) (citation omitted). Additionally, “[t]o establish injury in fact, a plaintiff must show

that he or she suffered an invasion of a legally protected interest that is concrete and

particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339

Here, Plaintiff’s amended complaint fails to allege sufficient facts to establish that

the County Defendants are liable for any state or federal violation. In this regard, the

County Defendants assert that they are mentioned only three times in the amended

complaint. Namely, Plaintiff identifies Hamilton County Recorder Scott Crowley, Judge

Terry Nestor, Chief Magistrate Anita Berding, and Chief Magistrate Thomas Beridon as

"Parties" in her complaint. Doc. 20, ¶¶ 4-6. Next, Plaintiff alleges that Hamilton County

Recorder Scott Crowley "recorded the lien, encumbering Ms. Nouri's property." (Doc.

20, ¶ 47). Last, the County Defendants are mentioned in Plaintiff’s prayer for relief. Id.

at p20. Such allegations fail to show how any of the County Defendants actions or

inactions violated Plaintiff’s constitutional rights. Thus, Plaintiff lacks standing under

Article III because she has shown nothing even hinting at a traceable injury in fact.

In the event the reviewing Court determines that Plaintiff has standing, her

amended complaint fails to allege sufficient facts to establish that the County

Defendants are liable for any state or federal violation, and therefore is properly

dismissed pursuant to Fed.R.Civ. P. 12(b)(b). As detailed above, the County

Defendants assert that they are mentioned only three times in the amended complaint.

Such allegations fail to show how any of the County Defendants actions or inactions

violated Plaintiff’s constitutional rights. As such, Plaintiff’s complaint fails to “contain

either direct or inferential allegations respecting all the material elements to sustain a

recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shop, Inc.,

859 F.2d 434, 437 (6th Cir. 1988). See also Perry v. UPS, 90 F. App’x 860, 862 (6th Cir.

2004) (dismissing pro se plaintiff’s complaint where the pleading offered only labels and

conclusions).

Moreover, to the extent that Plaintiff has sued Hamilton County Recorder Scott

Crowley, Judge Nestor, and Magistrates Beridon and Berding in their official capacities,

such claims are barred. See Monell v. Dep't of Soc. Services, 436 U.S. 658, 690 n.55

(1978)) (holding that “neither a State nor its officials acting in their official capacities are

persons” who may be held liable for constitutional violations in a § 1983 action); see

also Turker v. Ohio Dep't of Rehab. & Corr., 157 F.3d 453, 456 (6th Cir. 1998) (and

cases cited therein) (“It is well-established that a plaintiff cannot sue a state agency or

any of its employees in their official capacities for monetary damages.”).

Additionally, Plaintiff’s claims against Ohio Attorney General David Yost are

barred by the Eleventh Amendment. “[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit against the official's office,'

i.e., against the State.” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.2008)

(internal citations omitted). The Eleventh Amendment proscribes lawsuits in which

States or the State’s agencies or departments are named as defendants. Pennhurst

State School & Hosp. v. Halderman, 465 U.S. 89 (1984). There are three exceptions to

a State’s sovereign immunity: (1) when the State consents to the suit. (2) when the

exception set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)

applies, and (3) when Congress has clearly and expressly abrogated the state’s

immunity. Puckett v. Lexington-Fayette Urban Cty. Govt., 833 F.3d 590 (6th Cir. 2016).

Here, the State of Ohio has not waived its sovereign immunity and has not consented

to this suit. Congress has not abrogated the State’s Eleventh Amendment immunity in

§ 1983 or in the Declaratory Judgement Act. The Ex parte Young exception does not

apply to general enforcement authority of a defendant, and the defendant must have

enforced or threatened to enforce an unconstitutional statute. See EMW Women’s

Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2019). Accordingly, Plaintiff’s

claims against Ohio Attorney General David A. Yost are barred Eleventh Amendment

of the United States Constitution.

For these reasons, Defendants’ motions to dismiss are well-taken and should be

granted.1

1 Because Plaintiff's federal claims should be dismissed, this court should also decline to exercise

supplemental jurisdiction over any pendant state claims. 28 U.S.C. § 1367(c)(3); see Musson Theatrical v.

Fed. Express Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996) (“When all federal claims are dismissed before

trial, the balance of considerations usually will point to dismissing the state law claims ...”).

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

Also before the Court is Plaintiff’s motion for leave to file a second amended

complaint. On February 23, 2023, Plaintiff filed a motion for leave to file a Second

Amended Complaint (Doc. 32). However, Plaintiff did not attach the proposed

amended complaint to her motion. Thereafter, on May 4, 2023, the Court ordered

Plaintiff to file her proposed amended complaint within ten (10) days of the filing of the

Order. (Doc. 37). The Order specifically warned Plaintiff that her failure to comply with

the Order could result in denial of her motion to amend. Id. To date, no such filing

has been made. As such, Plaintiff’s failure to comply with the Court Show Cause Order

and failure to provide a copy of her proposed second amended complaint warrant

denial of her motion for leave to amend.

III. Conclusion

IT IS RECOMMENDED THAT Defendants’ motions to dismiss (Docs. 21, 22) be

GRANTED, Plaintiff’s motion for leave to file a second amended complaint (Doc. 32) be

DENIED; and this matter be CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT

COURT SOUTHERN DISTRICT

OF OHIO WESTERN DIVISION

LINDA NOURI, Case No. 1:22-cv-317

Plaintiff,

Hopkins, J.

vs Bowman, M.J.

STATE OF OHIO., et al.,

OHIO ATTORNEY GENERAL

DAVID ANTHONY YOST

Defendants.

NOTICE

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

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

being served with a copy thereof. 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 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).