Berman v. Supreme Court of Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN BERMAN,

Plaintiff, Case No. 2:25-cv-531

v. District Judge Algenon L. Marbley

Magistrate Judge Kimberly A. Jolson

SUPREME COURT OF OHIO,

Defendant.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Undersigned on Plaintiff’s Motions for Leave to Proceed in forma

pauperis (Docs. 1, 5); his Motion Requesting Electronic Filing Rights (Doc. 1-5); and the initial

screen of his Complaint (Doc. 1-1) under 28 U.S.C. § 1915(e)(2). Plaintiff’s second Motion for in

forma pauperis status (Doc. 5) is GRANTED, and his first Motion (Doc. 1) is DENIED as moot.

Plaintiff’s Motion Requesting Electronic Filing Rights is also DENIED. (Doc. 1-5).

After screening Plaintiff’s Complaint as required, the Undersigned RECOMMENDS that

this action be DISMISSED.

I. 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).

But this leniency is not boundless, and “it is not within the purview of the district court to conjure

up claims never presented.” Frengler v. Gen. Motors, 482 F. App’x 975, 977 (6th Cir. 2012). Nor

is it the Court’s role to “ferret out the strongest cause of action on behalf of pro se litigants” or

advise “litigants as to what legal theories they should pursue.” Young Bok Song v. Gipson, 423 F.

App’x 506, 510 (6th Cir. 2011) (considering the sua sponte dismissal of an amended complaint

under 28 U.S.C. § 1915(e)(2)). At bottom, “basic pleading essentials” are still required, regardless

of whether an individual proceeds pro se. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

These essentials are not onerous or overly burdensome. A complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. P.

8(a)(2), and provide the defendant with “fair notice of what the . . . claim is and the grounds upon

which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation omitted).

In reviewing Plaintiff’s Complaint at this stage, the Court must construe it 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.” Id. 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). While this standard does not require “detailed factual

allegations, . . . [a] pleading that offers labels and conclusions” is insufficient. Id. at 678 (citation

modified). In the end, the Court must dismiss the Complaint “if it tenders naked assertions devoid

of further factual enhancement.” Id. (citation modified).

II. DISCUSSION

Plaintiff’s Complaint is bare bones. He alleges that he has pending cases in an “Ohio Court

of Common Pleas,” as well as an “Ohio appeals court.” (Doc. 1-1 at 2). In late April or early May

2025, he visited the Supreme Court of Ohio’s website to file grievances against Ohio lawyers.

(Id.). But the website, Plaintiff says, “requires a person filing a grievance against an Ohio

lawyer . . . to click the slider button shown that forces him to answer YES to: ‘Do you agree to

maintain the confidentiality of your grievance?’” (Id. (quoting Doc. 1-2)). Simply put, Plaintiff

says he cannot file a grievance unless he agrees to keep it confidential. (Id. at 2–3); see also Ohio

Government of the Bar Rule V, § 8(A)(1) (saying that materials related to consideration of attorney

grievances “shall be kept confidential” prior to a determination of probable cause, with some

exceptions). Plaintiff asserts that this confidentiality requirement “violates [his] right to petition

the Ohio government for redress of grievances, by requiring him to agree to this code of silence.”

(Id. at 3). As a result, he sues the Supreme Court of Ohio under 42 U.S.C. § 1983 for alleged

violations of his First and Fourteenth Amendment rights and seeks declaratory and injunctive

relief. (Id.).

Even construing the Complaint liberally as the Undersigned must do, Plaintiff fails to state

a claim. Under the Eleventh Amendment of the United States Constitution, “an unconsenting state

is . . . immune from suits filed in federal court by one of its own citizens[.]” Metz v. Sup. Ct. of

Ohio, 46 F. App’x 228, 237 (6th Cir. 2002). Because the state of Ohio has not waived its Eleventh

Amendment immunity in federal court, the Court lacks jurisdiction over Plaintiff’s claims against

the Supreme Court of Ohio. See Haller v. Lipps, No. 1:11-cv-291, 2011 WL 7300284, at *6 (S.D.

Ohio Dec. 28, 2011) (saying the state of Ohio has not waived its Eleventh Amendment immunity,

and Congress did not do so in enacting Section 1983), report and recommendation adopted, No.

1:11-cv-291, 2012 WL 479083 (S.D. Ohio Feb. 14, 2012), appeal dismissed, No. 12-4161 (6th

Cir. Nov. 30, 2012); Metz, 46 F. App’x at 237; Mixon v. State of Ohio, 193 F.3d 389, 396–97 (6th

Cir. 1999).

Further, the Supreme Court of Ohio is not a legal entity that can be sued under Section

1983. The Supreme Court of Ohio has held that Ohio courts are not sui juris. Williams v. Franklin

Cnty. Mun. Ct., No. 2:10-cv-1155, 2011 WL 13160383, at *3 (S.D. Ohio Aug. 22, 2011) (citing

Malone v. Ct. of Common Pleas of Cuyahoga Cnty., 344 N.E.2d 126, 128–29 (Ohio 1976)); see

also Fed. R. Civ. P. 17(b)(3) (providing the “law of the state where the [federal district] court is

located” determines who has the capacity to be sued in federal court). In other words, “absent

express statutory authority,” the Supreme Court of Ohio “can neither sue or be sued in its own

right.” Tingler v. Ohio Gen. Assembly, No. 2:24-cv-468, 2024 WL 1464373, at *3 (S.D. Ohio Feb.

21, 2024) , report and recommendation adopted, No. 2:24-cv-468, 2024 WL 1172770 (S.D. Ohio

Mar. 19, 2024); see also Arbino v. Ohio, No. 1:12-cv-203, 2012 WL 1756856, at *2 (S.D. Ohio

Apr. 2, 2012), report and recommendation adopted, No. 1:12-cv-203, 2012 WL 1755828 (S.D.

Ohio May 16, 2012); Terry v. Kennedy, No. 2:24-cv-1200, 2025 WL 948919, at *5 (S.D. Ohio

Mar. 28, 2025). Consequently, Plaintiff’s Section 1983 claims against the Supreme Court of Ohio

must be dismissed.

Even if the Supreme Court of Ohio could be sued in this Court, Plaintiff’s allegations are

too scant to proceed past an initial screen. Plaintiff alleges that the Supreme Court of Ohio’s

confidentiality requirement for attorney grievances violates his rights under the First and

Fourteenth Amendments. (Doc. 1-1 at 3; see also Doc. 1-2). More specifically, he says the

requirement violates his right to petition the government. (Doc. 1-1 at 3).

Though the First Amendment guarantees individuals the right to petition the government,

Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), Plaintiff does not explain how the

confidentiality requirement prevents him from filing his grievance. (Doc. 1-1 at 3 (saying the

requirement forces him to agree to a “code of silence,” but not that he cannot file his grievance));

see, e.g., Tomlin v. City of Eubank, No. 5:22-cv-200, 2023 WL 3391409, at *3 (E.D. Ky. May 11,

2023) (dismissing a First Amendment right-to-petition claim where the plaintiffs did not allege

that the denial of their public records requests prevented them from filing their requests); McCain

v. Hermann Law Off., No. 5:09-cv-165, 2010 WL 3322708, at *5 (D. Vt. July 7, 2010) (dismissing

a similar First Amendment claim based upon a rule requiring materials to be kept confidential

“prior to the filing of formal disciplinary proceeding”); cf. EJS Props., LLC v. City of Toledo, 698

F.3d 845, 863–64 (6th Cir. 2012) (considering whether the defendant’s conduct “chilled” or

meaningfully infringed on the plaintiff’s right to petition the government).

What’s more, Plaintiff does not explain how the Supreme Court of Ohio otherwise violated

his rights under the Fourteenth Amendment. See Wyley v. Cuyahoga Cnty., No. 1:25-cv-230, 2025

WL 1581054, at *2–3 (N.D. Ohio June 4, 2025) (finding a complaint did not meet minimum

pleading requirements where it did not say how the defendant violated the plaintiff’s constitutional

rights). At bottom, Plaintiff’s allegations are too thin to provide fair notice of the factual and legal

grounds underlying his claims. See Twombly, 550 U.S. at 555 (requiring a complaint “give the

defendant fair notice of what the claim is and the grounds upon which it rests” (citation modified));

Fed. R. Civ. P. 8(a)(2) (saying a complaint must contain “a short and plain statement showing that

the pleader is entitled to relief”).

In sum, the Supreme Court of Ohio cannot be sued in federal court, and Plaintiff’s

Complaint fails to state a claim upon which relief can be granted. Therefore, the Undersigned

RECOMMENDS that the Complaint (Doc. 1-1) be DISMISSED.

In light of this recommendation, the Undersigned DENIES Plaintiff’s Motion Requesting

Electronic Filing Rights. (Doc. 1-5); see Needham v. Butler Cnty. Jail, No. 1:19-cv-294, 2019 WL

5883643, at *2 (S.D. Ohio Nov. 12, 2019) (noting that the “grant of electronic filing privileges is a

privilege granted to pro se litigants in the discretion of this Court”).

III. CONCLUSION

Plaintiff’s second Motion for Leave to Proceed in forma pauperis (Doc. 5) is GRANTED,

and his first Motion for in forma pauperis status (Doc. 1) is DENIED as moot. The Undersigned

also DENIES Plaintiff’s Motion Requesting Electronic Filing Rights. (Doc. 1-5).

After conducting the required initial screen under 28 U.S.C. § 1915(e), the Undersigned

RECOMMENDS that the Complaint (Doc. 1-1) be DISMISSED.

Date: June 13, 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 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).