Wolfe v. McCarthy

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROBERT L. WOLFE,

Plaintiff, Case No. 2:25-cv-00092

v. District Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

JUDGE GEORGE P. MCCARTHY,

et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Robert L. Wolfe, an Ohio resident proceeding pro se, brings this action against

Defendants Judge George P. McCarthy, Judge Patrick Lang, Magistrate John Perrin, and Clerk

Candy S. Russell. (Doc. 1 at 1). This matter is before the Undersigned on Plaintiff’s Motion to

Leave to Proceed in forma pauperis (Doc. 5) and for an initial screen of Plaintiff’s Complaint (Doc.

1) under 28 U.S.C. § 1915(e)(2).

The Undersigned GRANTS Plaintiff’s Motion for Leave to Proceed in forma pauperis. And

the Undersigned RECOMMENDS that Plaintiff’s Complaint be DISMISSED.

I. BACKGROUND

Two months ago, Plaintiff filed a nearly identical complaint in this Court. See Wolfe v.

Athens County Common Pleas, et al., Case No. 2:24-cv-4309 (S.D. Ohio Dec. 27, 2024) (Doc. 1-

1). The Undersigned briefly summarizes his allegations again.

Plaintiff is upset about what happened in state court. (See generally Doc. 1-1). On

February 23, 2023, Plaintiff was served with an ex parte civil stalking protection order. (Id. at 1;

Doc. 1 at 4). A full hearing on that order was scheduled for February 28, 2023, in the Athens

County Court of Common Pleas. (Doc. 1 at 4). Plaintiff appeared for the hearing but asked

Defendant Judge McCarthy for a continuance. (Doc. 1-1 at 2). Defendant Judge McCarthy granted

his request, but the full hearing never happened. (Id.; Doc. 1 at 4). Instead, Defendant Judge Lang

decided the matter without a hearing and issued a final civil protection order. (Doc. 1-1 at 1–2, 4).

Because of that order, Plaintiff’s firearms were confiscated. (Doc. 1 at 5).

Like in his previous complaint, Plaintiff brings claims under 42 U.S.C. § 1983 for

violations of his constitutional rights under the Second and Fourteenth Amendments. (Id. at 3).

As relief, Plaintiff seeks an injunction ordering the Athens County Court of Common Pleas to

vacate the protection order and return his firearms, and Plaintiff wants “punitive damages.” (Id.

at 5).

II. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). Complaints by pro se litigants are to be construed liberally and held to less stringent

standards than those prepared by attorneys. Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

Nonetheless, “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th

Cir. 1989).

These essentials are not burdensome. A complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief” and providing “the grounds

for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1), (2); see also Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (requiring a complaint to provide enough facts to give the defendant with

“fair notice of what the . . . claim is and the grounds upon which it rests” (internal quotation

omitted)). At this stage, the Court must construe Plaintiff’s Complaint in his favor, accept all well-

pleaded factual allegations as true, and evaluate whether it contains “enough facts to state a claim

to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(citing Twombly, 550 U.S. at 556). Consequently, this means a complaint with only “labels and

conclusions” cannot survive the pleadings. Id. at 662 (internal quotation and quotation marks

removed).

III. DISCUSSION

As mentioned, Plaintiff’s Complaint is largely duplicative of a previously dismissed

complaint. See Wolfe, Case No. 2:24-cv-4309 (S.D. Ohio Dec. 27, 2024) (Doc. 1). The Court

dismissed that case because of pleading deficiencies, immunity defenses, and jurisdictional

defects. Wolfe v. Athens Cnty. Ct. of Common Pleas, No. 2:24-cv-4309, 2025 WL 41899, at *2

(S.D. Ohio Jan. 7, 2025), report and recommendation adopted, No. 2:24-cv-4309, 2025 WL

278442 (S.D. Ohio Jan. 23, 2025). In his new Complaint, Plaintiff tries to fix some of those

problems. (Doc. 1-1 (providing more details about the underlying events and arguing Defendants

are not entitled to immunity)). But just like before, the Court cannot give Plaintiff what he wants.

To start, the Court does not have jurisdiction to grant Plaintiff’s request for injunctive

relief. Under the Rooker-Feldman doctrine, federal courts are prohibited “from conducting

appellate review of final state-court judgments.” VanderKodde v. Mary Jane M. Elliott, P.C., 951

F.3d 397, 402 (6th Cir. 2020) (internal quotation omitted) (noting that such jurisdiction lies only

with the United States Supreme Court). The doctrine is implicated “not only when a party attempts

to expressly appeal a state court decision to a lower federal court, but also whenever the issues

raised in the federal action implicate the validity of the state court proceedings.” Gentry v. Tenn.

Bd. of Jud. Conduct, No. 3:17-cv-00020, 2017 WL 6462348, at *4 (M.D. Tenn. Sept. 26, 2017)

(citing McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2007)). If the source of the injury

alleged in the federal complaint is a state court judgment, Rooker-Feldman bars the claim.

VanderKodde, 951 F.3d at 402.

Here, Plaintiff asks the Court to (1) vacate the civil protection order, and (2) direct

Defendants to return his firearms. (Doc. 1-1 at 5–6; Doc. 1 at 5). Though he says he does not seek

to “retry” his state court case, the source of his injury is the protection order itself. (Doc. 1-1 at

2); see also Berry v. Schmitt, 688 F.3d 290, 299 (6th Cir. 2012) (saying courts must examine the

relief requested to determine if Rooker-Feldman applies). To vacate that order, the Court would

have to examine and reject Defendant Judge Lang’s decision. Rooker-Feldman bars precisely that

type of review. See Johnson v. Ohio Sup. Ct., 156 F. App’x 779, 782–83 (6th Cir. 2005) (saying

federal courts do not have jurisdiction to review state court judgments or hear lawsuits “that are,

in substance, appeals from state court judgments”); Johnson v. Cuyahoga Cnty. Ct. of Common

Pleas Domestic Rels., No. 1:18-cv-2521, 2019 WL 969449, at *1 (N.D. Ohio Feb. 28, 2019)

(concluding the Rooker-Feldman doctrine prevented the court from overturning a state court’s civil

protection order); Dunina v. Hein, No. 3:06-cv-383, 2007 WL 496355, at *4 (S.D. Ohio Feb. 12,

2007) (declining to overturn a state court’s domestic relations order under Rooker-Feldman).

More still, Defendants enjoy immunity. Judicial immunity is absolute; it shields judges

and other public officers not only from monetary damages but from suit entirely. Mireles v. Waco,

502 U.S. 9, 11 (1991); see also Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982) (explaining judicial

immunity exists to protect judges “from undue interference with their duties and from potentially

disabling threats of liability”); Foster v. Walsh, 864 F.2d 416, 417–18 (6th Cir. 1988) (saying court

clerks also “enjoy absolute immunity from suit”). For that reason, “judicial immunity is not

overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be

resolved without engaging in discovery and eventual trial.” Mireles, 502 U.S. at 11 (internal

citation omitted); see also Morgan v. Bd. of Pro. Resp. of the Sup. Ct. of Tennessee, 63 F.4th 510,

518 (6th Cir. 2023) (“[A]ll of a judge’s actions taken in an official judicial capacity are immune

from suit.”). Instead, it is overcome only if the judge acted outside of her judicial capacity or

beyond her jurisdiction. Mireles, 502 U.S. at 11–12.

Clearly, Plaintiff challenges actions Defendants took as judges and state court officers.

(Doc. 1-1 at 2–4 (discussing Defendants’ issuance of protection orders, preparation of court forms,

and failure to hold a hearing)); see Mackey v. Berryman, No. 17-cv-12359, 2019 WL 197000, at

*5 (E.D. Mich. Jan. 15, 2019) (saying the issuance of a protection order is “a classically judicial

function”). Plaintiff tries to claim that Defendants are not immune because their conduct resulted

in a “sham process.” (Doc. 1 at 4; see also Doc. 1-1 at 1–2 (saying the Defendants’ conduct

showed there was “skullduggery afoot”)). At most, these are allegations of bad faith, malice, or

bias. They do not suggest Defendants acted without jurisdiction, and they are nowhere near

enough to overcome judicial immunity. See Mireles, 502 U.S. at 11–12; Hughes v. Duncan, 636

F.Supp.3d 879, 889–90 (M.D. Tenn. Oct. 20, 2022) (“[J]udicial immunity forecloses [a plaintiff’s]

claim based on a judge’s alleged failure to hold a hearing.” (internal quotations and quotation

marks omitted)); Huffer v. Bogen, 503 F.App’x 455, 461 (6th Cir. 2012) (finding a court clerk who

implemented a domestic violence order as a judge instructed was protected by judicial immunity).

Therefore, the Undersigned RECOMMENDS that Plaintiff’s Complaint (Doc. 1-1) be

DISMSSED. The Undersigned also WARNS Plaintiff that if he files duplicative lawsuits in the

future, the Court may place filing restrictions upon him. See Feathers v. Chevron U.S.A., Inc., 141

F.3d 264, 269 (6th Cir. 1998) (noting courts can impose prefiling restrictions “in matters with a

history of repetitive or vexatious litigation”).

IV. CONCLUSION

The Undersigned GRANTS Plaintiff’s Motion for Leave to Proceed in forma pauperis.

(Doc. 5). And the Undersigned RECOMMENDS that his Complaint (Doc. 1-1) be DISMISSED.

IT IS SO ORDERED.

Date: March 3, 2025 /s/Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence, or may

recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).