earl v. Hamilton County Municpal Criminal Court State of Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DWIGHT E. JONES, Case No. 1:24-cv-657

Plaintiff,

Hopkins, J.

vs. Litkovitz, M.J.

HAMILTON COUNTY

MUNICIPAL CRIMINAL COURT, et al., REPORT AND

Defendants. RECOMMENDATION

Plaintiff, a resident of Cincinnati, Ohio, has filed a pro se civil complaint against

Hamilton County Municipal Criminal Court, the Hamilton County Prosecutor’s Office, US

Bank National Association as Trustee, Hamilton County Municipal Court Judge Dwayne

Mallory, Police Officer Jeff Butler, Credit Suisse First Boston Mortgage Securities

Corporation, and John Does 1-100. (Doc. 1-1). By separate Order, plaintiff has been granted

leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

This matter is now 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 28 U.S.C. § 1915(e)(2)(B).

Screening of Complaint

A. Legal Standard

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). 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, 490

U.S. at 328-29; 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). 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

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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).

B. Plaintiff’s Complaint

Mr. Jones’s complaint is difficult to decipher. As such, the Court quotes his factual

allegations, in part, verbatim. The complaint alleges:

31. On September 5, 2024 two bailiffs officers from HAMILTON COUNTY

MUNICIPAL CRIMINAL COURT, STATE OF OHIO knocked on the door of

3548 Larkspur Avenue, Cincinnati, Ohio and affiant answered the door and the

bailiffs stated the affiant and anyone in the home had to leave.

32. Affiant then asked under what authority and the bailiff stated he has an order

from a judge and affiant stated he has not receive any order from a court stating that

affiant had to leave and the bailiff pointed to a peace of paper in his hand and said

that this is a judges order but never gave affiant the any papers.

33. Affiant ask bailiff if he had a judges order with an affidavit attached which is a

requirement affiant stated the bailiff just stated he has a judges order.

34. Affiant then stated without receiving a judges order with an affidavit attach

stating what and who is to be seize I, affiant would not leave.

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35. Bailiff never gave affiant any order but then made a phone call to the local

police.

36. Officer JEFF BUTLER with badge number P282 then showed up and explain

to affiant that if affiant did not leave you will be arrested.

37. Affiant then showed Officer JEFF BUTLER with badge number P282 a writ of

habeas and 1983 complaint between the Judge and affiant and Officer JEFF

BUTLER with badge number P282 then stated that the documents do not matter

because the bailiff has a judges (sic) order.

38. Affiant then explain to Officer JEFF BUTLER with badge number P282 affiant

has not receive an order from a judge and the bailiff pointed at papers in his hand

again.

39. Officer JEFF BUTLER with badge number P282 then stated that affiant had to

leave are (sic) be arrested and I, affiant stated without receiving an order from a

judge with an attach affidavit which required by law, I affiant would not leave.

40. then officer JEFF BUTLER badge number P282 arrested affiant and kidnap

affiant without a warrant signed by a judge with an affidavit attached on September

5, 2024, nor is there any evidence to the contrary.

41. This was and is a (sic) injury to affiant.

42. All codes, rules and regulations are for government authorities only not

human/creatures in accordance with God’s law. All codes, rules and regulations are

unconstitutional and lack due process... “Supreme Court Ruling Rodrigues vs. Ray

Donovan,” U.S. Department of labor 769 F. 2d 1344, 1348,(1985).

43. The common law is the real law, the Supreme Law of the land. The codes, rules,

regulation, policy and statues are “not the law” Supreme Court Ruling Self vs.

Rhay, 61 Wn (2nd) 261.

44. affiant organic living soul corpus delicti American National but not a UNITED

STATES Citizen on the American land jurisdiction and the real party(s) in interest,

agent through the Office of Executor for the estate/trust/corporate entity (ens legis)

alleged named DWIGHT E JONES was kidnapped as surety for DWIGHT E.

JONES in violation of his faith proverbs 22 verse 26.

45. Affiant organic living soul corpus delicti American National but not a UNITED

STATES Citizen never waive his right to a trial by Jury of its peers (American

Nationals).

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46. affiant organic living soul corpus delicti American National but not a UNITED

STATES Citizen agent through the Office of the Executor for estate/trust/corporate

entity (ens legis) alleged named DWIGHT E JONES never give HAMILTON

COUNTY MUNICIPAL CRIMINAL COURT, STATE OF OHIO express written

authorization or consent to use the above Estate property.

47. affiant organic living soul corpus delicti American National but NOT a

UNITED STATES Citizen agent through the Office of the Executor for

estate/trust/corporate entity (ens legis) alleged named DWIGHT E JONES

DWIGHT E JONES have no option for a trial by jury of peers in TRESPASS case.

48. united states constitution of America as ratified on December 15, 1791 to

include the bill of rights Article VI [2][3] that the judge must honor, defend, protect,

obey by this supreme controlling mandatory law requirement to ensure all Due

Process and constitutional procedures judges must perform regardless. FAILURE

to do so results in TREASON.

49. Dawne Mallory cannot Act to over-ride united states constitution of America

as ratified on December 15, 1791 to include the bill of rights Article VI [2][3],

Supremacy Clause and constitutional Oath and ignore Due Process without the

Jury, causing a complete lack of Subject Matter Jurisdiction.

50. HAMILTON COUNTY MUNICIPAL CRIMAINAL (sic) COURT, STATE

OF OHIO cannot Act to over-ride united states constitution of America as ratified

on December 15, 1791 to include the bill of rights Article VI [2][3], Supremacy

Clause and constitutional Oath and ignore Due Process without the Jury, causing a

complete lack of Subject Matter Jurisdiction.

***

(Doc. 1-1 at PAGEID 10-12). The remaining allegations of the complaint continue in the same

vein and are virtually incomprehensible. Plaintiff seeks monetary and injunctive relief.

C. Resolution

It appears plaintiff is invoking the Court’s federal question jurisdiction pursuant to 42

U.S.C. § 1983. For the reasons that follow, the complaint must be dismissed for failure to state

a claim for relief or because the defendants are immune from suit.

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The complaint must be dismissed against the Hamilton County Municipal Criminal Court

because this defendant is not an entity capable of being sued in a 42 U.S.C. § 1983 action.

Capacity to sue or be sued in the United States District Courts is governed by Fed. R. Civ. P. 17,

which provides in pertinent part: “In all other cases capacity to sue or be sued shall be

determined by the law of the state in which the district court is held. . . .” Fed. R. Civ. P. 17(b).

The Ohio Supreme Court has concluded that Ohio courts are not sui juris. “Absent express

statutory authority, a court can neither sue nor be sued in its own right.” Malone v. Court of

Common Pleas of Cuyahoga County, 45 Ohio St.2d 245, 248, 344 N.E.2d 126 (1976) (quoting

State ex rel. Cleveland Municipal Court v. Cleveland City Council, 34 Ohio St.2d 120, 121, 296

N.E.2d 544 (1973)). See Harsh v. City of Franklin, Ohio, No. 1:07-cv-874, 2009 WL 806653,

at *4-5 (S.D. Ohio March 26, 2009) (holding the Warren County, Ohio Court of Common Pleas

and City of Franklin Municipal Court not sui juris). Therefore, the complaint should be

dismissed against the Hamilton County Municipal Criminal Court.

Likewise, the Hamilton County Prosecutor’s Office is not a “person” within the meaning

of § 1983 or a legal entity capable of being sued. See Nalls v. Montgomery Cnty. Prosecutor’s

Off., No. 3:22-cv-243, 2023 WL 369955, at *5 (S.D. Ohio Jan. 24, 2023) (report and

recommendation), adopted, 2023 WL 2081575 (S.D. Ohio Feb. 17, 2023); Howard v. Hamilton

Cnty. Just. Ctr., No. 1:19-cv-926, 2019 WL 6686863, at *2 (S.D. Ohio Nov. 13, 2019) (report

and recommendation), adopted, 2019 WL 6682153 (S.D. Ohio Dec. 6, 2019) (“a prosecutor’s

office is not an entity capable of being sued”); Henry v. Allen, No. 1:13-cv-701, 2013 WL

9839229, at *4 (S.D. Ohio Dec. 20, 2013) (report and recommendation) (finding that the

Hamilton County Prosecutor’s Office is not a legal entity capable of being sued), adopted, 2014

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WL 5475275 (S.D. Ohio Oct. 29, 2014). Therefore, the complaint against the Hamilton County

Prosecutor’s Office should be dismissed.

Plaintiff names defendant Judge Mallory in his official and individual capacities. Aside

from naming Judge Mallory in the caption of the complaint and identifying him as a party, the

only allegation against Judge Mallory is contained in Paragraph 49, suggesting that Judge

Mallory overrode or violated the United States Constitution. (Doc. 1-1 at PAGEID 12).

As an initial matter, the Court is unable to discern any possible claim against Judge

Mallory based on the sparse allegations in the complaint. Plaintiff generally alleges that

defendant Mallory violated his rights, but he never alleges how Mallory did this.

In any event, Judge Mallory is immune from suit in both his official and individual

capacity. A claim against Judge Mallory in his official capacity as a judge of the Hamilton

County Municipal Court is the same as a claim against the State of Ohio. See Mumford v.

Basinski, 105 F.3d 264, 269 (6th Cir. 1997) (concluding that an Ohio common pleas court was an

arm of the state and a claim against a judge of that court was a claim against the state); Laborers’

Int’l Union of N. Am., Loc. 860 v. Neff, 29 F.4th 325, 331 (6th Cir. 2022) (identifying many

decisions that agree that “the courts in a State’s third branch of government count as arms of the

State”); Ward v. City of Norwalk, 640 F. App’x 462, 465 (6th Cir. 2016) (“the Norwalk

Municipal Court is an arm of the state for § 1983 and Eleventh Amendment purposes”).

“Because official capacity suits against state officials are suits against their employer—the

state—[the state’s sovereign] immunity also extends to such officers in their official capacities.”

Williams v. Parikh, 708 F. Supp. 3d 1345, 1355 (S.D. Ohio 2023) (citing Pennhurst State Sch. &

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Hosp. v. Halderman, 465 U.S. 89, 100-02 (1984) and Will v. Mich. Dep’t of State Police, 491

U.S. 58, 71 (1989)).

“There are three exceptions to a State’s sovereign immunity” under the Eleventh

Amendment: when Congress has abrogated it, when the State has consented to suit, or when the

Ex Parte Young exception applies. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.

2008) (citing Kovacevich v. Kent State Univ., 224 F.3d 806, 817 (6th Cir. 2000) and Ex parte

Young, 209 U.S. 123 (1908)). The first two exceptions do not apply here, as “Ohio has not

consented to suits in federal court nor has Congress abrogated Ohio’s immunity under § 1983.”

Smith v. DeWine, 476 F. Supp. 3d 635, 652 (S.D. Ohio 2020). The third exception (the Ex Parte

Young exception) which allows some state officials to be sued in their official capacity for purely

prospective injunctive relief, also does not apply. “That is because the Ex parte Young

exception expressly prohibits injunctions directed toward state judicial officers regarding their

adjudication of the cases and controversies put before them.” Williams, 708 F. Supp. 3d at 1355

(citing Ex Parte Young, 209 U.S. at 163 (explaining that “an injunction against a state court” or

its “machinery” “would be a violation of the whole scheme of our government”)) (emphasis in

original). As no exception applies, all claims against Judge Mallory in his official capacity are

barred by the State of Ohio’s sovereign immunity under the Eleventh Amendment and should be

dismissed with prejudice.

Section 1983 itself “bars injunctive relief against ‘a judicial officer for an act or omission

taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or

declaratory relief was unavailable.”’ Wright v. Finley, No. 1:19-cv-819, 2021 WL 680243, *4

(S.D. Ohio Feb. 22, 2021) (McFarland, J.) (quoting 42 U.S.C. § 1983). “Thus, the statute

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generally prohibits suits for injunctive relief against judicial officers but provides exceptions for

violations of declaratory decrees or the unavailability of declaratory relief,”—factors that

plaintiff has not alleged here and do not otherwise appear to apply. Id. All claims for

injunctive relief under § 1983 against Judge Mallory in his individual capacity should therefore

be dismissed with prejudice. See Ward v. City of Norwalk, 640 F. App’x 462, 467 (6th Cir.

2016) (concluding that a district court “properly dismissed plaintiffs’ claim [against a judicial

officer] seeking injunctive relief, because the plain language of § 1983 allows suits for

injunctions only after a litigant has sought a declaratory judgment”).

Finally, the complaint should be dismissed against defendant Judge Mallory in his

individual capacity because judges are afforded absolute immunity from damages for acts they

commit while functioning within their judicial capacity. See Mireles v. Waco, 502 U.S. 9, 9-

10 (1991) (per curiam); Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d

246, 255 (6th Cir. 1997). Judges retain absolute immunity from liability even if they act

maliciously or corruptly, as long as they are performing judicial acts and have jurisdiction over

the subject matter giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-

57 (1978). See also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766

F.2d 962 (6th Cir. 1985). Plaintiff’s complaint alleges no facts to plausibly suggest that

defendant Mallory presided over a matter in which he was without subject matter jurisdiction,

performed non-judicial acts, or otherwise violated plaintiff’s rights. Accordingly, the

complaint against defendant Mallory should be dismissed.

Liberally construed, the complaint appears to allege that defendant Officer Butler arrested

plaintiff without a warrant or probable cause in violation of the Fourth Amendment to the United

9

States Constitution. While plaintiff’s brief allegations against defendant Officer Butler in his

individual capacity may state a claim under the Fourth Amendment (unreasonable search and

seizure), the Court should not consider this claim at this time. “Lacking extraordinary

circumstances, a federal court cannot enjoin a pending state criminal proceeding.” WXYZ, Inc.

v. Hand, 658 F.2d 420, 423 (6th Cir. 1981) (citing Parker v. Turner, 626 F.2d 1 (6th Cir. 1980)

and Younger v. Harris, 401 U.S. 37 (1971)). Under the Younger abstention doctrine, a federal

court must abstain from considering claims 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)).

The conditions for Younger abstention are met here. First, the Court takes judicial notice

that, at the time this case was filed, and as of the date of this writing, after plaintiff’s September

5, 2024 arrest, he was charged with criminal trespass, and the case was assigned to Judge

Dwayne Mallory. See State of Ohio v. Dwight E. Jones, 24 CRB 15305 (Hamilton County

Municipal Court). (available by name or case number search at https://www.courtclerk.org/

records-search (last accessed Dec. 10, 2024). 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)) (courts may take judicial

notice of court records available online to the public). Second, the criminal case involves

important state interests; “the prosecution of crimes implicates the important state interests of

interpreting statutes and maintaining law and order within a state.” Folley v. Banks, No. 20-

3554, 2020 WL 9813535, *2 (6th Cir. Aug. 31, 2020). Third, there is no indication that the state

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proceedings cannot provide an opportunity for plaintiff to raise his constitutional claims against

the defendant Butler. Federal courts must presume that state courts are able to protect the

interests of a federal plaintiff. Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995) (citing Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)).

Plaintiff has not identified any extraordinary circumstances that would overcome the

Younger abstention doctrine. Extraordinary circumstances 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 also Fieger v. Thomas, 74 F.3d 740, 750

(6th Cir. 1996). These exceptions are narrowly interpreted. Kalniz v. Ohio State Dental Bd.,

699 F. Supp. 2d 966, 973 (S.D. Ohio 2010) (citations omitted). Here, the allegation in the

complaint against defendant Butler do not present such extraordinary circumstances and do not

rise to the level of egregious bad faith or harassment required for an exception to Younger

abstention. See Perez v. Ledesma, 401 U.S. 82, 85 (1971) (the bad faith exception applies

“[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith

without hope of obtaining a valid conviction and . . . in other extraordinary circumstances where

irreparable injury can be shown.”). Accordingly, the undersigned concludes that this Court

should abstain from considering the claims against defendant Officer Butler.

Having concluded that Younger abstention applies, the Court must now determine

whether to stay or dismiss plaintiff’s claim against defendant Butler. “Whether the plaintiff[ ]

seek[s] a legal versus an equitable remedy controls how the district court disposes of the case

after holding that the Younger doctrine applies to it.” Nimer v. Litchfiled Tp. Bd. of Trustees,

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707 F.3d 699, 702 (6th Cir. 2013). When a plaintiff seeks an equitable remedy, the district court

may exercise its discretion to dismiss the action without prejudice. Louisville Country Club v.

Ky. Comm’n on Human Rights, 221 F.3d 1335 (Table), 2000 WL 921015, *1 (6th Cir. June 26,

2000). When a plaintiff seeks a purely legal remedy, however, the court should stay the action.

Nimer, 707 F.3d at 702 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 (1996));

James v. Hampton, 513 Fed. Appx. 471, 478 (6th Cir. 2013).

Here, plaintiff seeks both equitable and legal remedies. (Doc. 1-1 at PAGEID 16-18).

Plaintiff’s monetary demand requires a stay of the claim against defendant Butler under Younger.

Nimer, 707 F.3d at 702. A stay “avoids the cost of refiling, allows the plaintiff[] to retain their

place on the court docket, and avoids placing plaintiff[ ] in a potentially difficult position of

refiling his case before the statute of limitations expires.” Brindley v. McCullen, 61 F.3d 507,

509 (6th Cir. 1995). As such, the Court recommends that plaintiff’s Fourth Amendment claim

against defendant Butler be stayed pending resolution of the underlying state criminal

proceedings.

To the extent plaintiff names defendant Officer Butler in his official capacity, the claim

must be dismissed. Plaintiff’s claim against defendant Butler in his official capacity is in reality

an official capacity claim against Hamilton County, the entity of which defendant Butler is an

agent. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). See also

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Plaintiff’s complaint fails to state a claim

for relief under § 1983 against Hamilton County because municipalities and counties are not

vicariously liable for the actions of their employees under § 1983. “It is firmly established that

a municipality, or as in this case a county, cannot be held liable under § 1983 for an injury

inflicted solely by its employees or agents.” Gregory v. Shelby County, Tenn., 220 F.3d 433,

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441 (6th Cir. 2000) (citing Monell, 436 U.S. at 694). To state a claim for relief against

Hamilton County for his alleged injuries, plaintiff must allege that “those 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, 436 U.S. at 694; Doe v. Claiborne County, 103 F.3d 495, 507 (6th

Cir. 1996). See also Polk County v. Dodson, 454 U.S. 312 (1981) (municipal policy must be

“moving force” behind constitutional deprivation). “The ‘official policy’ requirement [of

Monell ] was intended to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is limited to action for which the

municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)

(emphasis in original). 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 County,

Ohio, 989 F.2d 885, 889 (6th Cir. 1993).

Plaintiff’s complaint fails to allege any facts showing that defendant Butler acted

pursuant to a particular policy or custom of Hamilton County in allegedly violating his civil

rights. Therefore, plaintiff’s complaint fails to state a claim upon which relief may be granted

against defendant Butler in his official capacity.

Finally, aside from listing the Credit Suisse First Boston Mortgage Securities Corporation

and U.S. Bank National Association as defendants in the caption of the amended complaint and

in the listing of parties, plaintiff’s complaint fails to allege any wrongdoing on the part of these

defendants. To avoid dismissal, the complaint must give defendants Credit Suisse First Boston

Mortgage Securities Corporation and U.S. Bank National Association “fair notice of what the . . .

claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

13

curiam). In the absence of any allegations of fact against defendants Credit Suisse First Boston

Mortgage Securities Corporation and U.S. Bank National Association, the complaint should be

dismissed as to these defendants.

The remainder of the complaint is rambling, difficult to decipher, and virtually

incomprehensible. Plaintiff’s complaint provides no factual content or context from which the

Court may reasonably infer that the named defendants violated plaintiff’s rights. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Accordingly, the remainder of the complaint fails to state a

claim upon which relief may be granted and should be dismissed under 28 U.S.C.

§ 1915(e)(2)(B).

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B) with the exception of plaintiff’s Fourth amendment claim against defendant

Officer Butler.

2. The Court abstain from exercising its jurisdiction over plaintiff’s Fourth Amendment

claim against defendant Butler and stay the claim pending the conclusion of the state court

criminal proceedings.

3. The Court certify pursuant to 28 U.S.C. § 1915(a) 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. Plaintiff remains free to

apply to proceed in forma pauperis in the Court of Appeals. See Callihan v.

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Schneider, 178 F.3d 800, 803 (6th Cir. 1999), overruling in part Floyd v. United States Postal

Serv., 105 F.3d 274, 277 (6th Cir. 1997).

Karen L. Litkovitz

United States Magistrate Judge

15

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DWIGHT E. JONES, Case No. 1:24-cv-657

Plaintiff,

Hopkins, J.

vs. Litkovitz, M.J.

HAMILTON COUNTY

MUNICIPAL CRIMINAL COURT, et al.,

Defendants.

NOTICE

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).

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