The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOHNNY LEE DUWE,
Plaintiff, : Case No. 3:25-cv-099
District Judge Thomas M. Rose
- vs - Magistrate Judge Michael R. Merz
THE HONORABLE MARY E. MONTGOMERY
In her official capacity as Judge of the Montgomery
County, Ohio, Court of Common Pleas, et al.,
Defendants. :
REPORT AND RECOMMENDATIONS
This is a case brought pro se by Plaintiff Johnny Lee Duwe against Montgomery County, Ohio,
Common Pleas Judge Mary Montgomery; Montgomery County Prosecutor Mathias H. Heck, Jr.; and
Jennifer Buschur, an Assistant Prosecuting Attorney in Mr. Heck’s office. All Defendants are sued in their
official capacities. The case is before the Court on Plaintiff’s Emergency Motion for a Preliminary
Injunction (ECF No. 3) and Defendants’ Motion to Dismiss (ECF No. 12).
District Judge Rose referred the case to the undersigned after both other Magistrate Judges at the
Dayton location of court recused themselves (ECF No. 14). Both pending motions are classified as
“dispositive” under 28 U.S.C. § 636(b) so that an assigned Magistrate Judge must file a report and
recommendations on their disposition rather than deciding them in the first instance.
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This case arises out of a criminal case in the Montgomery County Court of Common Pleas (Case
No. 2018-CR-02590; hereinafter the “Criminal Case”) in which Plaintiff was indicted for illegal possession
of a firearm in a liquor permit premises. As soon as the case was referred, the undersigned ordered the
Defendants to file a record of proceedings in the Criminal Case (ECF No. 18) and they have done so (ECF
No. 19; hereinafter the “State Court Record”). Plaintiff was also notified that his response to the Motion to
Dismiss was required to be filed by May 27, 2025 (ECF No. 17). That date has passed and Plaintiff has not
filed any opposition.
Defendants seek dismissal on two bases: (1) insufficiency of service of process and (2) failure to
state a claim on which relief can be granted. Fed.R.Civ.P. 12(b)(b)(5) and (6). Both these defenses are
properly presented in a motion to dismiss. Fed.R.Civ.P. 12(b).
Service of Process
Although he has not opposed the Motion to Dismiss, Plaintiff has filed two Affidavits relating to
service, both on April 10,2025 (ECF Nos. 5 & 6) and a Supplemental Notice of Service Confirmation (ECF
No. 9). In the Affidavit of Service by certified mail, he swears that
On March 26th, 2025, service of process was carried out by my
spouse, Lisa Anne Duwe (See Affidavit of Service by Non-Party,
filed contemporaneously [ECF No. 6]), who is over the age of 18
and is not a party to this action. She personally prepared and caused
to be mailed true and correct copies of the Summons and Verified
Complaint for Declaratory and Injunctive Relief, along with all
required attachments, to the following Defendants via United States
Postal Service Certified Mail, Return Receipt Requested (green
card), requiring signature at delivery.
(ECF No. 5, PageID 99.) In the companion Affidavit, Lisa Anne Duwe swears that she is not a
party to the case and that
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On March 26th, 2025, I personally prepared and caused to be mailed
true and correct copies of the Summons, Verified Complaint for
Declaratory and Injunctive Relief, and accompanying documents to
the following Defendants, using United States Postal Service
Certified Mail, Return Receipt Requested (green card), requiring
recipient signature.
(ECF No. 6, PageID 103.)
Plaintiff’s own Affidavit continues:
3. The mailings were sent with Return Receipt Requested, and I am
currently awaiting return of the signed green cards (PS Form 3811)
as physical evidence of receipt.
4. Upon receipt of the signed return receipts, I will promptly
supplement the record with copies of those documents.
5. I respectfully request that the Court accept this sworn affidavit,
along with the Certified Mail tracking numbers and delivery
confirmations, as provisional evidence of service upon the named
Defendants until the original signed return receipts are filed.
(ECF No. 6, PageID 100.) As of the date of this Report, the Return Receipt cards have not been
filed. Plaintiff’s Supplemental Notice of Service Conformation includes what purport to be
scanned images of the return receipt cards, but the originals have not been received by the Clerk.
As Defendants point out, the Local Rules of this Court provide a specific required method
for making service by certified mail:
If a party elects to use Ohio certified mail service, it must be done
as follows (emphasis supplied):
(a) The attorney of record or the serving party shall address the
envelope to the person to be served and shall place a copy of the
summons and complaint or other document to be served in the
envelope. The attorney of record or the serving party shall also
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affix to the back of the envelope the domestic return receipt card,
PS Form 3811 (the “green card”) showing the name of sender as
“Clerk, United States District Court, Southern District of Ohio”
at the appropriate address, with the certified mail number affixed
to the front of the envelope and the case number shown in a
conspicuous location on the return receipt card. The instructions
to the delivering postal employee shall require the employee to
show to whom delivered, date of delivery, and address where
delivered. The attorney of record or the serving party shall affix
adequate postage to the envelope and deliver it to the Clerk who
shall cause it to be mailed.
(b) The Clerk shall enter the fact of mailing on the docket and make
a similar entry when the return receipt is received. If the
envelope is returned with an endorsement showing failure of
delivery, the Clerk shall promptly notify, electronically or by
regular mail, the attorney of record or the serving party. The
Clerk shall enter the fact of notification on the docket and shall
file the return receipt or returned envelope in the records of the
action.
(c) If service of process is refused or was unclaimed, the Clerk shall
promptly notify the attorney of record or the serving party. If the
attorney of record or the serving party, after notification, files
with the Clerk a request for ordinary mail service accompanied
by an envelope containing the summons and complaint or other
document to be served with adequate postage affixed to the
envelope, the Clerk shall send the envelope to the defendant at
the address set forth in the caption of the complaint or at the
address set forth in instructions to the Clerk. The attorney of
record or the serving party shall also prepare for the Clerk’s use
a certificate of mailing that shall be signed by the Clerk or a
Deputy Clerk and filed at the time of mailing. The attorney of
record or the serving party shall also endorse the answer day
(twenty-one days after the date of mailing shown on the
certificate of mailing) on the summons sent by ordinary mail. If
the ordinary mail is returned undelivered, the Clerk shall
promptly notify the attorney of record or the serving party
electronically or by mail.
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S. D. Ohio Civ. R. 4.2. Plaintiff has not complied with S. D. Ohio Civ. R. 4.2. Defendant’s Motion
to Dismiss for Insufficiency of Service of Process is therefore well taken and should be sustained.
On that basis and particularly since Plaintiff has taken no apparent steps to cure the deficiencies
since they were called to his attention, the Complaint should be dismissed without prejudice on
that basis.
Failure to State A Claim
Plaintiff purports to bring this case pursuant to the Declaratory Judgment Act (28 U. S.C.
§ 2201), and Rule 65 of the Federal Rules of Civil Procedure.” Neither of those enactments creates
a cause of action; instead they provide remedies for deprivations under substantive statutes or the
common law. However, in the same paragraph he notes he is
alleging violations of his constitutional rights under the Second,
Fourth, Sixth and Fourteenth Amendments to the United States
Constitution. Plaintiff seeks redress for the unlawful exercise of
jurisdiction, denial of due process, unconstitutional enforcement of
state law, and unlawful deprivation of property, and respectfully
requests this Honorable Court to grant relief as set forth below.
(Complaint, ECF No. 1, PageID 2).
42 U.S.C. § 1983, R.S. § 1979, was adopted as part of the Act of April 20, 1871, and reads,
as amended:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
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deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress , except
that in any action brought against a judicial officer, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia.
The statute creates a cause of action sounding essentially in tort on behalf of any person deprived
of a federal constitutional right by someone acting under color of state law. City of Monterey v.
Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School
District v. Stachura, 477 U.S. 299 (1986); Carey v. Piphus, 435 U.S. 247 (1978); Monroe v. Pape,
365 U.S. 167 (1961).
As a pro se litigant, Plaintiff is entitled to a liberal construction of his pleadings. Haines
v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). The
Magistrate Judge construes the Complaint as purporting to state a claim for relief under 42 U.S.C.
§ 1983.
However, the relief Plaintiff seeks – injunctive relief to enjoin a pending criminal
proceeding in state court – compels this Court to abstain from entertaining the suit. Younger v.
Harris, 401 U.S. 37 (1971), requires federal courts to abstain where (1) state proceedings are
pending; (2) the state proceedings involve an important state interest; and (3) the state proceedings
will afford the plaintiff an adequate opportunity to raise his constitutional claims. Middlesex
County Ethics Comm’n v. Garden State Bar Ass’n., 457 U.S. 423, 432 (1982); Kelm v. Hyatt, 44
F.3d 415, 419 (6th Cir. 1995); Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454
(6th Cir. 1989); Ohio Civil Rights Com. v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986).
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The pending criminal action against Plaintiff qualifies for Younger abstention. The
criminal case is pending and has been pending for some time. The case involves an important state
interest: enforcing firearms restrictions in liquor establishments. The Common Pleas Court is an
Ohio court of general jurisdiction which is empowered to resolve the issues Plaintiff raises and
particularly whether his conduct is protected from state regulation under the Second Amendment.
See McDonald v. Chicago, 561 U.S. 742, n. 14 (2010).
Plaintiff would prefer to have his claims resolved without running the risk of imprisonment
if he should lose. For that reasons he has filed dispositive motions in the Criminal Case which
have apparently not been decided. However, the State of Ohio does not deal with criminal cases
in absentia and is under no constitutional obligation to do so. If Plaintiff were to appear and post
the bond already set, the Ohio speedy trial statute (which is much stricter than the Sixth
Amendment requirement) would start to run and the Common Pleas Court would be obliged to
decide the objections Plaintiff raises. However, the stalemate between the State of Ohio and
Plaintiff arises from Plaintiff’s failure to engage with Ohio criminal process.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that
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Complaint be dismissed without prejudice (1) for lack of sufficient service of process and (2) as
barred by the abstention doctrine announced in Younger v. Harris, supra.
May 28, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. 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. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #