Taper v. Branch

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

JOSHUA TAPER, : Case No. 1:24-cv-600

:

Plaintiff, :

: District Judge Michael R. Barrett

vs. :

Magistrate Judge Kimberly A. Jolson

:

JENNIFER BRANCH, et al., :

:

Defendants. :

:

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Lebanon Correctional Institution (LeCI), has filed a pro se civil

rights Complaint under 42 U.S.C. §§ 1981, 1982, 1983, 1985, and Ohio state law. (Doc. 1).

Plaintiff names five Defendants, solely in their individual capacities: Hamilton County Court of

Common Pleas Judge Jennifer Branch, LeCI Warden Douglas Luneke, Ohio Department of

Rehabilitation and Correction (ODRC) Director Annette Chambers-Smith, Governor Richard

Michael DeWine, and Ohio Attorney General David Anthony Yost. (Id. at 2–3, 16). The Court

also understands Plaintiff brings claims against the State of Ohio. (Id. at 12). By separate Order,

Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

This matter is 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 Prison Litigation Reform Act (PLRA) of 1995 § 804, 28

U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Also before the Court are Plaintiff’s

Motions for Recusal under 28 U.S.C. § 455(a)(b) (Docs. 7, 9, 10); to Change Venue pursuant to

28 U.S.C. § 1404(2)(b)(c) (Docs. 4, 8); and to obtain a Certificate of Appealability (Doc. 14).

For the reasons set forth below, it is RECOMMENDED that the Complaint (Doc. 1) be

DISMISSED. Plaintiff’s Motions (Docs. 4, 7, 8, 9, 10, 14) are DENIED.

I. THE “THREE STRIKES” PROVISION OF THE PLRA

At the outset, the Undersigned notes that Plaintiff is a frequent filer in this Court. Besides

this case, he has filed two additional civil rights cases. (See Taper v. Branch, et al., No. 1:23-cv-

806 (S.D. Ohio) (hereinafter “Civil Rights Case #1”); Taper v. Tabor et al., No. 1:24-cv-159 (S.D.

Ohio) (hereinafter “Civil Rights Case #2”)). And he has filed two habeas corpus actions. (Taper

v. Warden Lebanon Correctional Institution, 1:24-cv-00184 (S.D. Ohio) (severed from Civil

Rights Case #1) (hereinafter “Habeas Corpus Case #1”); Taper v. Luneke, No. 1-24-cv-602 (S.D.

Ohio) (hereinafter “Habeas Corpus Case #2”)).

As discussed in more detail below, there is considerable overlap between his cases. For

example, both Civil Rights Cases #1 and this case assert that Plaintiff should be granted relief, in

part, based on the same grounds as those presented in his two habeas petitions. (Compare Civil

Rights Case #1, Doc. 21 at 16 (asserting when he was originally arrested, Plaintiff was denied a

parent or lawyer while he was interrogated by police) with Habeas Corpus Case #1, Doc. 29 at 6

(asserting the same); compare Doc. 1 at 16 (asserting that absent a proper bindover procedure, the

juvenile court has exclusive subject matter jurisdiction over his criminal case) with Habeas Corpus

Case #2, Doc. 1 at 11 (asserting the same)). And Plaintiff continually asserts that his arrest and

subsequent incarceration qualify as “kidnapping.” (See, e.g., Doc. 1 at 13; Civil Rights Case #1,

Doc. 21 at 16; Habeas Corpus Case #1, Doc. 29 at 6).

Plaintiff’s prolificacy does not stop there. Within individual cases, Plaintiff tends to file

successive, superfluous, or frivolous motions. (See, e.g., Docs. 7 (motion for recusal), 9 (same),

10 (same); Civil Rights Case #1 (filing twelve “amendments” to evidence, defendants, or claims

beyond his operative pleading amendments); Habeas Case #1 (filing thirteen “memorandums in

support” of his habeas petition)). All told, the judicial resources spent screening Plaintiff’s civil

rights claims and considering his habeas petitions—which have largely been dismissed—is vast.

(But see Civil Rights Case #2, Doc. 5 (allowing less than half of Plaintiff’s fifteen claims to

proceed beyond an initial screen)).

Especially considering the tax Plaintiff’s filing history puts on this Court, the Undersigned

is obliged to consider as a threshold matter whether Plaintiff has accumulated any strikes under

the PLRA. While this Court cannot bind later courts that may consider whether Plaintiff has

already accumulated three strikes, the Court can recommend that a case be treated as a strike as

defined by 28 U.S.C. § 1915(g). See Simons v. Washington, 996 F.3d 350, 353 (6th Cir. 2021)

(“Even if the ruling court may not be able to bind later courts to a strike characterization, it often

will make sense for the court that dismisses a prisoner’s suit to make a non-binding strike

recommendation—sometimes what amounts to a strike warning.”). Prior to examining which of

Plaintiff’s civil rights cases count as strikes however, a discussion of the Sixth Circuit’s recent

opinion Crump v. Blue, 121 F.4th 1108 (2024), is necessary.

A. Crump’s Effect on the Three-Strikes Rule

The Undersigned begins with a brief overview of the PLRA and prisoner litigation.

Generally, a filing fee is required to initiate a federal lawsuit. See 28 U.S.C. § 1914(a). If,

however, a litigant cannot afford to pay, a litigant may file a motion for leave to proceed in forma

pauperis. See 28 U.S.C. § 1915(a)(1). If granted in forma pauperis status, the Court may waive

the fee entirely, require only partial payment, or order periodic payments over time. Id.; see also

28 U.S.C. § 1915(b)(1)–(4).

But different rules apply to prisoners. The statute requires that prisoners bringing civil

actions pay the filing fee in full, though it can be paid in periodic installments. See McGore v.

Wrigglesworth, 114 F.3d 601, 604–08 (6th Cir. 1997) (explaining how filing fees and costs are

calculated and assessed for prisoners). And there is more. Concerned that the payment structure

would not be enough of an impediment against “frivolous and vexatious prisoner litigation,”

Congress included a three-strikes provision. In re Alea, 286 F.3d 378, 380 (6th Cir. 2002). The

rule provides “that a prisoner may not ‘bring a civil action or appeal a judgment’ in forma pauperis

if the prisoner has three or more times ‘brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

which relief can be granted.’” Crump, 121 F.4th at 1110–11 (quoting 28 U.S.C. § 1915(g)).

In the nearly thirty years since its enactment, courts have assessed strikes under the PLRA

to prisoners whose complaints were dismissed outright. Wilson v. Yaklich, 148 F.3d 596, 602 (6th

Cir. 1998) (noting the PLRA was enacted in 1996)). This includes complaints encompassing both

claims “covered by” the PLRA and claims “not covered by” PLRA—“mixed-claim actions” as the

Sixth Circuit has named them. 121 F.4th at 1110; see, e.g., Coleman v. Tollefson, 733 F.3d 175,

178 (6th Cir. 2013) (assessing three strikes after successive complaints were dismissed on

immunity and pleading standards grounds, and where the courts declined to exercise supplemental

jurisdiction over state-law claims); Boles v. Matthews, No. 97-5874, 173 F.3d 854 (Table), 1999

WL 183472, at *2 (6th Cir. Mar. 15, 1999) (unpublished table decision) (assessing a third strike

where the district court dismissed the complaint for lack of jurisdiction under the Rooker-Feldman

doctrine); cf. Simons v. Washington, 996 F.3d 350, 354 (6th Cir. 2021) (declining to overrule the

assessment of a strike where the district court dismissed the prisoner’s federal claims on the merits

and declined to exercise supplemental jurisdiction over his state-law claims).

Then, in 2024, Horace Crump challenged the district court’s denial of his in forma pauperis

request on the basis that he had accumulated three strikes. Crump, 121 F.4th at 1110. The Sixth

Circuit agreed that two of his previous actions should not be assessed as strikes under the PLRA

because they were “mixed-claim” actions. Id. at 1110, 1112. The panel explained its logic.

Crump’s first challenged strike was assessed in a case where the district court dismissed

Crump’s federal claims for failure to state a claim. Id. at 1112 (citation omitted). The district

court concurrently declined to exercise supplemental jurisdiction over his related state-law claims.

Id. (citation omitted). The Sixth Circuit held this dismissal was not a strike “because the dismissal

of Crump’s state-law claims falls outside of the three-strikes rule’s enumerated grounds, [so] his

action does too.” Id. at 1112. In other words, the fact that the decision was “mixed” was fatal to

the strike assessment.

Similarly, Crump’s second challenged strike was assessed in a case where some of

Crump’s federal claims were dismissed for failure to state a claim, while others were barred by

Eleventh Amendment sovereign immunity. Id. (citation omitted). This, too, was outside the

PLRA’s strike zone because Eleventh Amendment immunity “does not appear on the list of

grounds for a cognizable strike.” Id. at 1112–13. Put another way, “[a]n Eleventh Amendment

dismissal does not necessarily count as frivolous. It does not necessarily count as malicious. And

it does not count as a failure to state a claim.” Id. at 1112 (also noting dismissals under Eleventh

Amendment immunity fall under Rule 12(b)(1) purview for “lack of subject-matter jurisdiction,”

not Rule 12(b)(6)’s “failure to state a claim” language); see also Jones v. Lineberry, No. 24-5684,

2025 WL 521313, at *1–2 (6th Cir. Feb. 10, 2025) (holding that complaints dismissed under the

Rooker-Feldman doctrine or on judicial immunity grounds should not be assessed as strikes). So,

again, the “mixed” nature of the dismissal did not allow the lower court to assess a strike. The

Sixth Circuit ultimately remanded the case for further consideration of Crump’s in forma pauperis

status. Crump, 121 F.4th at 1115.

All in all, Crump stands for the notion that “all claims in a complaint, not just some of

them, must be dismissed on grounds listed in the [PLRA] for the dismissal to count as a strike.”

Id. at 1111; see also Jones, 2025 WL 521313, at *2 (not assessing strikes where complaints were

“dismissed in whole or in part for grounds other than those listed in the PLRA’s three-strikes

provision.”). This holding upends years of strike assessment jurisprudence in the lower courts and

reigns in the Sixth Circuit’s own strike-related precedent. Crump, 121 F.4th at 1113 (citing Pointer

v. Wilkinson, 502 F.3d 369 (6th Cir. 2007) (assessing a strike where the prisoner’s claims were

dismissed for failure to exhaust and failure to state a claim)). And litigants now have a strike

workaround. As the Crump panel acknowledged, prisoners can now add “meritless state-law

claims or claims against immune defendants to their federal claims to try to avoid strikes.” 121

F.4th at 1114. To avoid this result, the panel advised that “[a] district court facing that situation

retains the authority to dismiss such a claim, label the claim as frivolous, and assess a strike.” Id.

at 1114–15.

Practically, however, this approach raises its own problems. For example, more often than

not, to label a state-law claim as frivolous, a district court must necessarily reach the claim itself.

This is at odds with what district courts have been instructed to do when presented with state-law

claims. “The Supreme Court has cautioned that ‘a federal court’s determination of state-law claims

could conflict with the principle of comity to the States and with the promotion of justice between

the litigating parties.’” Plain Loc. Sch. Dist. Bd. of Educ. v. DeWine, 486 F.Supp.3d 1173, 1195

(S.D. Ohio 2020) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349–50 (1988)).

Therefore, if a district court dismisses a plaintiff’s federal claims, “it should not ordinarily reach

the plaintiff’s state-law claims.” Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir.

2006); see also Crump, 121 F.4th at 1115–16 (Readler, J., concurring) (saying the “traditional ‘rule

of thumb’” is to decline to adjudicate state-law claims if the federal claims are dismissed before

trial). In fact, courts should do so only when judicial economy overwhelmingly “outweigh[s] [the]

concern over needlessly deciding state law issues.” Moon, 465 F.3d at 728 (internal quotation

omitted); see also Province v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 (6th Cir. 1986)

(stating only “overwhelming interests in judicial economy” allow courts to decide state-law claims

once federal claims are dismissed); Durant v. Servicemaster Co., 109 F. App’x 27, 31 (6th Cir.

2004) (finding the court would have abused its discretion if it exercised supplemental jurisdiction

over certain state-law claims). On these principles, it is unlikely that the lower courts pre-Crump

would have elected to reach state-law claims in a PLRA-complaint if all federal claims were

dismissed. But for future cases, as here, Crump requires district courts to choose between these

competing directives.

Issues of immunity present a similar dilemma. As noted in Crump, “[t]here is nothing

necessarily frivolous or malicious in bringing an action for which the court lacks jurisdiction.”

121 F.4th at 1113 (quoting Thompson v. DEA, 492 F.3d 428, 437 (D.C. Cir. 2007)); see also Cohen

v. Corr. Corp. of Am., 439 F. App’x 489, 492 (6th Cir. 2011) (“[A] prisoner’s invocation of federal

jurisdiction in and of itself may be frivolous where there is ‘no possible ground upon which a

reasoned argument can be made to sustain [ ] jurisdiction.’” (citation omitted)). Yet the concepts

of immunity, jurisdiction, and frivolity are not always clear-cut. See, e.g., Neitzke v. Williams, 490

U.S. 319, 325 (1989) (holding a complaint “is frivolous where it lacks an arguable basis either in

law or in fact”); Cohen, 439 F. App’x at 491–92 (assessing three strikes and finding a complaint

was frivolous on appeal, even though the complaint was originally dismissed for lack of

jurisdiction); Carlock v. Williams, 182 F.3d 916 (Table) (6th Cir. 1999) (“Since there is no basis

for federal jurisdiction apparent on the face of Carlock’s complaint . . . the district court properly

dismissed the action as frivolous and for lack of subject matter jurisdiction.”); compare Jones,

2025 WL 521313, at *2 (considering a dismissal based on “absolute judicial immunity” and

concluding “[a] dismissal based on immunity . . . does not count as a PLRA strike”) with Burnham

v. Friedland, No. 21-3888, 2022 WL 3046966 (6th Cir. Aug. 2, 2022) (Thapar, J., concurring)

(“[J]udicial immunity isn’t a jurisdictional doctrine; it’s an affirmative defense that goes to the

merits.”). The overlap will likely necessitate circular parsing of past PLRA screens to determine

whether a dismissal qualifies as a strike.

What’s more, the panel’s proposal that the district courts simply label a claim against an

immune party as frivolous suggests that lower courts could or should leapfrog over “threshold

issues of judicial administration,” Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015), like subject-

matter jurisdiction, to overcome a “strike proofed” complaint. See also Rogers v. Stratton Ind.,

Inc., 798 F.2d 913, 917 (6th Cir. 1986) (“[I]f a court does not have jurisdiction, ipso facto, it cannot

address the merits of a complaint.”). While judicial efficiency may have guided district courts to

rest dismissals solely on these threshold issues in the past, now “giving cases more attention at the

front end to ensure that strikes are properly awarded” must take priority. Crump, 121 F.4th at 1116

(Readler, J., concurring).

Going forward, courts now have the benefit of Crump’s guidance. Past opinions avoiding

state-law questions or applying immunities, however, cannot be rewritten. Instead, the Court must,

as here, reassess those decisions under Crump.

B. Plaintiff’s Assessed Strikes Under Crump

Discussed in more detail below, this Court dismissed a similar case filed by Plaintiff, Civil

Rights Case #1, which alleged twenty-four state and federal claims against over thirty Defendants.

The Court dismissed claims based on Heck, failure to state a claim, and misjoinder of unrelated

claims. (Civil Rights Case #1, Docs. 54, 62). Judicial, quasi-judicial, and prosecutorial immunity

also formed the basis for dismissal of certain claims. (Id.). Finally, the Court declined to exercise

supplemental jurisdiction over other state-law claims. (Id.). In the end, because the Court

dismissed claims for reasons beyond the three enumerated in the PLRA strike provision, and

because the Court did not label those claims frivolous, the Court cannot now recommend that Civil

Rights Case #1 be treated as a strike. Crump, 121 F.4th at 1114.

The same is true of Civil Rights Case #2. Because certain claims in that case were allowed

to proceed beyond an initial screen, the strike provision of the PLRA does not apply.

With Crump’s guidance, the Undersigned treats this case differently. As explained below,

all of Plaintiff’s claims are recommended to be dismissed for failure to state a claim and for

frivolousness. These are reasons expressly enumerated in the PLRA strike provision. 28 U.S.C.

§ 1915(g). Accordingly, the Undersigned RECOMMENDS that this dismissal count as a strike

under 28 U.S.C. § 1915(g).

II. SCREENING OF THE COMPLAINT

Under the PLRA, the Undersigned now screens Plaintiff’s Complaint before turning to his

other pending motions.

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 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) and 1915A(b)(1). 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 v. Williams,

490 U.S. 319, 328–29 (1989); 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) and 1915A(b)(1). 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)). Still, 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 (“[D]ismissal 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

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. Factual Allegations

Plaintiff’s claims (Doc. 1) are largely duplicative of claims that he raised in Civil Rights

Case #1. As mentioned, his claims in that case were dismissed as either barred by Heck v.

Humphrey, 512 U.S. 477 (1994), or failing to state a claim upon which relief could be granted. As

in the earlier action, Plaintiff challenges his underlying 2015 Hamilton County, Ohio, conviction

by guilty plea to reduced charges of involuntary manslaughter with a firearm specification. (See

generally Doc. 1). See also https://www.courtclerk.org/records-search/case-number-search/

(containing a copy of the docket in Plaintiff’s Hamilton County Common Pleas criminal matter at

Case No. B1406354); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980)

(citation omitted) (stating federal courts may take judicial notice of proceedings in other courts of

record). Plaintiff further challenges the denial of his 2023 state-court motion for judicial release.

(Doc. 1). His Complaint alleges that six Defendants violated his rights under the United States

constitution and state law. (Id.).

Plaintiff first claims that he “was kidnapped, abducted and unlawfully detained 10 years

ago by the [S]tate of Ohio.” (Doc. 1 at 12). More specifically, Plaintiff says that, on September

4, 2014, an unnamed, non-defendant detective took him from high school without his parents’

consent, brought him to an interrogation room, denied his request for a lawyer, and told him that

he “must confess before he can leave all while [he] was handcuffed to a chair.” (Id.). Relying on

these allegations, Plaintiff again asserts that his conviction arose from “a void judgment on a[n]

illegal contract.” (Id. at 13).

Relatedly, Plaintiff alleges that he “alerted [Judge Branch] about the unlawfulness of his

false arrest an[d] the conviction on record at the judicial hearing that occurred in Hamilton County

justice center courtroom.” (Doc. 1 at 16). Plaintiff asserts, however, that he “was ignored” and

his motion for judicial release was “completely denied.” (Id.). He further asserts that Judge

Branch “was without right to continue the illegal proceeding due to the fact the trial court lacked

subject-matter jurisdiction due to an improper bindover.” (Id.). Plaintiff also says that Warden

Luneke “unlawfully [held] plaintiff against his will for defendant Jennifer Branch.” (Id. at 19).

Plaintiff’s allegations related to his incarceration do not stop there. Plaintiff says that

ODRC Director Chambers-Smith “refus[ed] to release plaintiff from unlawful custody after it been

proven to be unlawful.” (Id. at 21). And Ohio Attorney General Yost “had direct knowledge of

[Plaintiff’s] unlawful conviction but failed to help plaintiff instead he insisted on helping

defendants by filing a motion to dismiss” in Civil Rights Case #2. (Id. at 23). Finally, Governor

DeWine “fail[ed] to release [him] from unlawful custody.” (Id. at 26).

For these alleged wrongs, Plaintiff seeks injunctive relief in the form of release from prison

and return of unspecified “real property,” declaratory relief, and monetary damages. (Doc. 1 at

13, 21, 23, 25, 28).

C. Analysis

Liberally construed, see Erickson, 551 U.S. 94, and based on the above allegations,

Plaintiff’s Complaint raises six groups of claims:

1. Defendant State of Ohio (a) was negligent in violation of state law (Doc. 1 at 12);

(b) engaged in fraud in violation of state law (id. at 13); (c) kidnapped, abducted, and falsely

imprisoned Plaintiff in violation of state law (id.); (d) took Plaintiff’s “property . . . which resulted

in defamation” presumably in violation of state law (id.); and (e) violated Plaintiff’s rights under

the First, Second, Fifth, Sixth, Eighth, and Fourteenth Amendments (id. at 15).

2. Defendant Judge Branch (a) improperly denied his 2023 motion for judicial release

in violation of the Fourteenth Amendment and state law; and (b) continued his false imprisonment

in violation of the First, Second, Fifth, Sixth, Eighth, and Fourteenth Amendments and state law

(id. at 16–18).

3. Defendant Warden Luneke (a) falsely imprisoned Plaintiff in violation of state law

(id. at 19); and (b) violated Plaintiff’s rights under the First, Second, Fifth, Sixth, Eighth, and

Fourteenth Amendments (id. at 20).

4. Defendant ODRC Director Chambers-Smith (a) falsely imprisoned Plaintiff in

violation of state law (id. at 21); and (b) violated Plaintiff’s rights under the First, Second, Fifth,

Sixth, Eighth, and Fourteenth Amendments (id. at 22).

5. Defendant Ohio Attorney General Yost (a) falsely imprisoned Plaintiff in violation

of state law (id. at 23); and (b) violated Plaintiff’s rights under the First, Second, Fifth, Sixth,

Eighth, and Fourteenth Amendments (id. at 24–25).

6. Defendant Governor DeWine (a) engaged in tortious behavior and falsely

imprisoned Plaintiff in violation of state law (id. at 26); and (b) violated Plaintiff’s rights under

the First, Second, Fifth, Sixth, Eighth, and Fourteenth Amendments (id. at 27).

In the end, Plaintiff’s Complaint is subject to dismissal in its entirety. 28 U.S.C.

§§ 1915(e)(2)(B); § 1915A(b).

1. Plaintiff’s Federal Claims against Defendants State of Ohio, Warden

Luneke, ODRC Director Chambers-Smith, Ohio Attorney General Yost, and

Governor DeWine

Although variously presented as violations of the First, Second, Fifth, Sixth, Eighth, and

Fourteenth Amendments, and under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, Plaintiff’s federal

claims against each of Defendants State of Ohio, Warden Luneke, ODRC Director Chambers-

Smith, Ohio Attorney General Yost, and Governor DeWine are premised on his assertion that his

2015 conviction and sentence were unlawful and should be dismissed. (See Doc. 1 at 13

(“[P]laintiff claims arise[] from a void judgment on an illegal contract.”)).

As the Court explained in Civil Rights Case #1, (Doc. 54 at 17; Doc. 62 at 1–2), the United

States Supreme Court held in Heck v. Humphry, 512 U.S. 477 (1994), that a civil action under 42

U.S.C. § 1983 cannot proceed if the action serves to undermine a criminal conviction not reversed

on appeal or vacated by expungement or by writ of habeas corpus. Heck, 512 U.S. at 486–87. See

also Foster v. Lazalde, No. EP18CV00049, 2018 WL 1251923, at *3 (W.D. Tex. Mar. 9, 2018)

(“The rule in Heck is not limited to claims challenging the validity of criminal convictions. Rather,

it applies to many ancillary criminal rulings, because challenging these rulings would necessarily

imply the validity of a plaintiff’s imprisonment.”) (citing cases); Amaker v. Weiner, 179 F.3d 48,

52 (2d Cir. 1999) (“Heck therefore applies with respect not only to plaintiff’s § 1983 claim but

also to his §§ 1981, 1985(3) and 1986 claims.”).

As before, Plaintiff has failed to demonstrate that his conviction and sentence have been

reversed, expunged, or called into question. See Heck, 512 U.S. at 486–87. Accordingly,

Plaintiff’s federal claims against Defendants State of Ohio, Warden Luneke, ODRC Director

Chambers-Smith, Ohio Attorney General Yost, and Governor DeWine are “duplicative [of the

challenges he brought to his 2015 conviction and sentence in Civil Rights Case #1] and subject to

dismissal as frivolous.” McElroy v. Ropos, No. 1:23-cv-1715, 2023 WL 8236661, at *2 (N.D.

Ohio Nov. 28, 2023). Though frivolousness forms the basis for the dismissal of these claims, the

Undersigned separately notes that the State of Ohio is immune under the Eleventh Amendment,

regardless of the nature of the relief sought. Arbino v. Ohio, No. 1:12 CV 0203, 2012 WL 1756856,

at *2 (S.D. Ohio April 2, 2012). The exceptions to the Eleventh Amendment bar of suits in federal

court against a state do not apply in this case. At bottom, the State of Ohio has neither

constitutionally nor statutorily waived its Eleventh Amendment rights. See Mixon v. State of Ohio,

193 F.3d 389, 397 (6th Cir. 1999); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449,

460 (6th Cir. 1982); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 681 (6th Cir. 1976); see also Will v.

Mich. Dept. of State Police, 491 U.S. 58 (1989).

Next, Plaintiff’s claims under 42 U.S.C. § 1982, (see Doc. 1 at 12–13), are subject to

dismissal for another reason. There are no factual allegations in the Complaint describing whether

or how any of Defendants violated § 1982, which provides: “All citizens of the United States shall

have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. Plaintiff

merely demands in his requests for relief that Defendants “return [unspecified] real property.” (See

Doc. 1 at 13, 21, 23, 25, 28). Plaintiff’s undeveloped and speculative § 1982 claim should therefore

also be dismissed under Iqbal. See Iqbal, 556 U.S. at 678 (conclusory allegations are insufficient

“to state a claim to relief that is plausible on its face”).

Nor can Plaintiff state a claim against Defendant Yost for pleadings filed by an assistant

attorney general in a separate civil-rights case. If Plaintiff disagrees with a motion by an opposing

party, he should oppose it in accordance with the Federal Rules of Civil Procedure, not challenge

the filing in a separate action. Cf. Beckley v. City of Bos., No. 04-10909, 2005 WL 2149705, at *1

(D. Mass. Sept. 7, 2005) (“[I]f plaintiff disagrees with a motion by defendant, he shall oppose it,

instead of moving to strike it.”). And though failure to state a claim forms the basis for this

dismissal, Defendant Yost is also immune from liability for this claim. See Childs v. State of Ohio,

72 F.3d 129 (6th Cir. 1995) (citing Ellison v. Stephens, 581 F.2d 584, 585 (6th Cir. 1978))

(“Defendants . . . were properly dismissed because they enjoyed immunity from liability for their

acts in defending the state against a claim under § 1983.”). See also McConnell v. King, 42 F.3d

471, 472 (8th Cir. 1994) (citing Murphy v. Morris, 849 F.2d 1101, 1105 (8th Cir. 1988)) (“The

assistant attorneys general were absolutely immune from claims related to their advocacy functions

in defending state officers in civil rights suits.”).

Accordingly, Plaintiff’s federal claims against Defendants State of Ohio, Warden Luneke,

ODRC Director Chambers-Smith, Ohio Attorney General Yost, and Governor DeWine are subject

to dismissal for failing to state a claim and for frivolousness.

2. Plaintiff’s Federal Claims against Defendant Branch

As set forth above, Plaintiff sues Defendant Judge Branch for denying his 2023 motion for

judicial release. Previously, the Court held that Judge Branch is entitled to judicial immunity from

Plaintiff’s claims. (See Civil Rights Case #1, Doc. 54 at 14; Doc. 62 at 1–2). This Court also held

that Plaintiff’s challenge to the denial of his motion for judicial release fails to state a constitutional

claim for relief because there is no constitutional right to early release from prison. (See id., Doc.

54 at 17) (citing McQuistan v. Sheldon, No. 1:20-CV-00656, 2023 WL 2634128, at *25 (N.D.

Ohio Feb. 10, 2023), report and recommendation adopted, No. 1:20-CV-00656, 2023 WL

2633534 (N.D. Ohio Mar. 24, 2023)). Because Plaintiff seemingly alleges the same here, these

claims should be dismissed as frivolous and malicious. See Miller v. Gregg, No. 2:23-CV-169,

2023 WL 6119073 (W.D. Mich. Sept. 19, 2023) (“[C]ourts have held that an in forma pauperis

complaint that merely repeats pending or previously litigated claims may be dismissed under 28

U.S.C. § 1915(e)(2)(i) as frivolous or malicious.”) (collecting cases).

3. Plaintiff’s State Claims Against all Defendants

Finally, Plaintiff’s state law claims should also be dismissed for frivolity and failure to

state a claim.

To begin, to the extent Plaintiff alleges any Defendant is liable for kidnapping, abduction,

unlawful restraint, theft, aggravated trespass, or criminal trespass, (see, e.g., Doc. 1 at 27 (citing

Ohio Revised Code §§ 2905.01, 2905.02, 2905.03, and 2911.21)), Plaintiff, as a private citizen, is

not permitted to sue under a criminal statute. See Kelly v. City of New Phila., No. 5:11CV474,

2011 WL 3705151, at *2–3 (N.D. Ohio Aug. 22, 2011) (quoting United States v. Oguaju, 76 F.

App’x 579, 581 (6th Cir. 2003)) (“The district court properly dismissed [plaintiff’s] claim pursuant

to [two criminal statutes] because [he] has no private right of action under either of these criminal

statutes.”). And “[w]here a plaintiff has no private right of action, a plaintiff has not stated a claim

upon which relief can be granted.” Flood v. Reed, No. 2:16-CV-778, 2017 WL 1021364, at *3–4

(S.D. Ohio Mar. 16, 2017) (citing Kafele v. Frank & Woolridge Co., 108 F. App’x. 307, 308–09

(6th Cir. 2004)).

Plaintiff also alleges that all Defendants either falsely imprisoned him or “continued” a

false imprisonment. Viewing Plaintiff’s complaint as a whole, it is obvious that these allegations

are just another way to attack his original sentence and the denial of judicial release. (See, e.g.,

Doc. 1 at 17 (alleging Defendant the State of Ohio wrongly has confined him for ten years because,

in Plaintiff’s opinion, his judgment should be voided)). A civil lawsuit is not the proper vehicle

for that challenge, so these claims should be dismissed as frivolous and malicious. Heck, 512 U.S.

477, 486 (1994) (discussing the “hoary principle that civil tort actions are not appropriate vehicles

for challenging the validity of outstanding criminal judgments . . . .”); (see also Civil Rights Case

#1, Doc. 54 at 17 (noting Plaintiff’s similar Section 1983 claim is barred by Heck)).

Finally, as to Plaintiff’s claims of fraud, defamation, or negligence against the State of

Ohio, (Doc. 1 at 13), Plaintiff’s allegations fail to provide the factual specificity required to state

a claim. (See, e.g., id. (alleging only that an “illegal contract” with the State of Ohio was “done

through extrinsic fraud” and that “fraudulent representation[s]” were made at his judicial release

proceedings concerning his initial criminal case) (alleging only that the State of Ohio’s actions

“resulted in defamation”)); see Iqbal, 556 U.S. at 678 (conclusory allegations are insufficient “to

state a claim to relief that is plausible on its face”). See also AAA Installers v. Sears Holdings

Corp., 764 F. Supp. 2d 931, 939 (S.D. Ohio 2011) (listing the six elements of fraud in Ohio and

noting that an allegation of fraud must “state the specific circumstances surrounding the alleged

fraud with particularity” (citation omitted)); Gosden v. Louis, 687 N.E.2d 481, 488 (Ohio Ct. App.

1996) (listing the five elements of defamation). Though Plaintiff attempts to list the elements of

“actionable negligence,” (Doc. 1 at 14), it is wholly unclear how the State of Ohio was meant to

be negligent. (Id. at 14–15 (merely citing to his previous case as a whole and discussing his judicial

release hearing); see also id. at 12–13 (only discussing negligent acts in the context of

jurisdiction)). In this, too, Plaintiff has failed to state a claim upon which relief may be granted.

All told, Plaintiff’s state claims against all Defendants should be subject to dismissal for

failing to state a claim and for frivolousness.

II. REMAINING MOTIONS

Lastly, the Undersigned turns to Plaintiff’s other motions, beginning with Plaintiff’s

motions for recusal (Docs. 7, 9, 10). Judges are bound by the recusal standard set forth in 28

U.S.C. § 455(a), which provides that any United States judge “shall disqualify [herself] in any

proceeding in which [her] impartiality might reasonably be questioned.” Ragozzine v. Youngstown

State Univ., 783 F.3d 1077, 1079 (6th Cir. 2015) (quoting 28 U.S.C. § 455(a)). Section 455(a)

requires a judge to recuse herself “if a reasonable, objective person, knowing all of the

circumstances, would have questioned the judge’s impartiality.” Id. (quoting Hughes v. United

States, 899 F.2d 1495, 1501 (6th Cir. 1990)) (discussing 28 U.S.C. § 455(a)). “[J]udicial rulings

alone almost never constitute a valid basis for a bias or partiality motion.” Burley v. Gagacki, 834

F.3d 606, 617 (6th Cir. 2016) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here,

Plaintiff has made no allegations that indicate that the District Judge’s or the Undersigned’s

impartiality might reasonably be questioned in this case. Plaintiff has alleged no circumstances

that create an appearance of bias. Accordingly, disqualification is neither necessary nor

appropriate. Plaintiff’s motions for recusal are DENIED. (Docs. 7, 9, 10)

Next, the Court considers Plaintiff’s motions for change of venue. (Docs. 4, 8). Although

styled as motions for change of venue, the motions are, in effect, additional motions for recusal.

As set forth above, recusal is inappropriate. Further, Plaintiff has offered no basis for transferring

this case, which is subject to dismissal, to another court. Plaintiff’s motions for change of venue

are DENIED. (Docs. 4, 8)

Plaintiff also filed a motion for a certificate of appealability. (Doc. 14). As provided in 28

U.S.C. § 2253, unless a judge issues a certificate of appealability, an appeal may not be taken to

the court of appeals from “the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court; or the final order in a proceeding under

section 2255.” See also Fed. R. App. P. 22(b). But this is not a habeas action. (See Doc. 1 at 3

(indicating Plaintiff brings this action under Section 1983)). So, Plaintiff does not need a

certificate of appealability before appealing the dismissal of this action. See, e.g., Johnson v. CCA-

Ne. Ohio Corr. Ctr. Warden, 21 F. App’x 330, 332 (6th Cir. 2001) (“Since this case is properly

construed as brought under § 1983, and not under § 2254, [plaintiff] does not require a certificate

of appealability.”); McGore v. U.S. Dist. Ct. Judges, No. 24-CV-11510, 2024 WL 4728903, at *1

(E.D. Mich. Oct. 9, 2024). Accordingly, Plaintiff’s motion (Doc. 14) is DENIED as moot.

To end, the Undersigned WARNS Plaintiff that should he continue to file repetitive and

frivolous lawsuits, the Court may place additional filing restrictions upon him or even declare him

a vexatious litigator.

IT IS THEREFORE RECOMMENDED THAT:

1. The Court DISMISS Plaintiff’s claims against Defendants WITH PREJUDICE.

28 U.S.C. §§ 1915(e)(2)(B); § 1915A(b).

2. The Court RECOMMEND that this dismissal count as a strike under 28 U.S.C.

§ 1915(g).

3. The Court certify pursuant to 28 U.S.C. § 1915(e)(2)(B) that for the foregoing

reasons an appeal of any Order adopting this Report and Recommendation would not be taken in

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

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s motions for recusal (Docs. 7, 9, 10) are DENIED.

2. Plaintiff’s motions for change of venue (Docs. 4, 8) are DENIED.

3. Plaintiff’s motion for a certificate of appealability (Doc. 14) is DENIED as moot.

4. The CLERK OF COURT update the docket in this case to include the State of

Ohio as a named Defendant.

IT IS SO ORDERED.

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

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

PROCEDURE ON OBJECTIONS:

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).