Givens v. Longwell

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREG P. GIVENS,

Plaintiff,

v. Civil Action 2:25-cv-593

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

JOHN D. LONGWELL, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Greg P. Givens, an Ohio resident proceeding without the assistance of counsel,

has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. All judicial officers who render

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is also before the Court for the initial screen of Plaintiff’s Complaint as

required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which 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. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, the undersigned

RECOMMENDS that Plaintiff’s Complaint be DISMISSED for failure to state a claim on

which relief can be granted and for lack of subject-matter jurisdiction under 28 U.S.C.

§ 1915(e)(2). As a result, it is further RECOMMENDED that Defendants’ Motion to Dismiss

(ECF No. 3) and Plaintiff’s Motion for Protective Order (ECF No. 2) be DENIED AS MOOT.

It is further RECOMMENDED that Defendants’ Motion for Sanctions Pursuant to Fed. R. Civ.

P. 11 (ECF No. 4) be GRANTED IN PART and DENIED IN PART.

I. INITIAL SCREEN

A. Standard of Review

1. Failure to State a Claim

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In

doing so, however, “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.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e), which

provides in pertinent part as follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted. . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. See

also 28 U.S.C. § 1915A (requiring a court to conduct a screening of “a complaint in a civil action

in which a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity . . . [to] identify cognizable claims or dismiss the complaint, or any portion

of the complaint [that is] frivolous, malicious, or fails to state a claim upon which relief may be

granted”).

Further, to properly state a claim upon which relief may be granted, a plaintiff must

satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a).

See also Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil

Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under

Rule 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “detailed factual allegations, a pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

Facial plausibility is established “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted). Further, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

2. Lack of Subject-Matter Jurisdiction

Under 28 U.S.C. § 1915(e), the federal in forma pauperis statute, Courts must sua sponte

dismiss an action upon determining that an in forma pauperis complaint fails to state a claim on

which relief can be granted. Thus, a typical initial screen involves consideration of the merits of

the claims asserted. In this case, however, upon review of Plaintiff’s Complaint, the undersigned

determines that it is unnecessary to consider the merits of the claims he advances because this

Court lacks subject-matter jurisdiction to hear such claims. When the face of the complaint

provides no basis for federal jurisdiction, the Court may dismiss an action as frivolous and for

lack of subject-matter jurisdiction under both 28 U.S.C. § 1915(e)(2)(B) and Federal Rule of

Civil Procedure 12(h)(3). Williams v. Cincy Urb. Apts., No. 1:10-cv-153, 2010 WL 883846, at *2

n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at *2

(6th Cir. June 22, 1999) (table)).

B. Analysis

Plaintiff’s Complaint centers on a parcel of real property formerly owned by his

grandfather, Joseph V. Givens, and located on Highland Avenue, Shadyside, Ohio. The property

was sold to Defendant John D. Longwell at a tax foreclosure sale, and the sale was confirmed by

the Belmont County Court of Common Pleas on June 15, 2022. (See Belmont County Docket,

Case No. 21 TF 004.) Plaintiff alleges that Defendant Longwell and his attorney, Defendant

Bradley A. Powell, conspired to deprive Plaintiff of the real property and several million dollars’

worth of personal property also located there, constituting violations of the Racketeer Influenced

and Corrupt Organizations Act, 18 U.S.C. § 1964, mail fraud under 18 U.S.C. § 1341, and grand

larceny. Plaintiff further asserts claims under the National Historic Preservation Act, 54 U.S.C.

§ 300101, et seq., and the False Claims Act, 31 U.S.C. § 3729, et seq. (Compl., ECF No. 1-2.)

Although Plaintiff’s Complaint lacks clarity, it seems that the crux of his allegations is

that Defendants fraudulently obtained the Highland Avenue property in violation of Plaintiff’s

rights. But the tax foreclosure sale of the property was approved by the Belmont County Court of

Common Pleas. This means that any action in federal court seeking to vitiate that approval would

be barred by the Rooker-Feldman doctrine. See Rooker v. Fidelity Tr. Co., 263 U.S. 413, 415–16

(1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983). “The

Rooker-Feldman doctrine embodies the notion that appellate review of state-court decisions and

the validity of state judicial proceedings is limited to the Supreme Court under 28 U.S.C. § 1257,

and thus that federal district courts lack jurisdiction to review such matters.” In re Cook, 551

F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine applies to cases “brought by state-

court losers complaining of injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and rejection of those

judgments.” Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544 U.S. 280, 284 (2005). “The

pertinent question in determining whether a federal district court is precluded under the Rooker-

Feldman doctrine from exercising subject-matter jurisdiction over a claim is whether the source

of the injury upon which plaintiff bases his federal claim is the state court judgment.” In re Cook,

551 F.3d at 548 (cleaned up). Because Plaintiff’s injury stems from the tax foreclosure sale,

which was approved by a state court, this Court lacks jurisdiction over Plaintiff’s claims.

But even if this action were not barred by Rooker-Feldman, Plaintiff’s allegations are

largely conclusory. As to his claims under RICO, the federal mail fraud statute, and the False

Claims Act, Plaintiff does not explain how Defendants’ actions in purchasing the property at a

tax foreclosure sale violated any of Plaintiff’s rights. Plaintiff alleges only that Defendants made

unspecified false statements concerning the property that resulted in harm to Plaintiff. Plaintiff

does not identify the statements themselves or explain why they are false. These allegations are

precisely the kind of “naked assertion devoid of further factual enhancement” that do not suffice

under Iqbal. See 556 U.S. at 678. Plaintiff’s RICO, mail fraud, and False Claims Act claims must

therefore be dismissed.

Plaintiff’s claims under the National Historic Preservation Act also fail. Plaintiff alleges

that Defendants “intentionally misrepresented the historical designation” of the property,

“causing damage to a protected historic site.” (Compl. 6, ECF No. 1-2.) But Plaintiff’s

Complaint further alleges that “the subject property . . . qualifies for federal historic preservation

protections” and that “[t]he property should be considered for inclusion in the National Register

of Historic Places . . . .” (Id. at 7) (emphasis added). Plaintiff’s allegations, therefore, make it

clear that the property has not, in fact, been designated as a historic property under the National

Historic Preservation Act. As a result, Defendants’ representations to that effect were not false

and could not have resulted in harm to a protected historic site. Any claims under the National

Historic Preservation Act must therefore be dismissed.

Finally, Plaintiff does not specify the authority for his “grand larceny” claim, but

regardless of its source, this claim also fails. None of the federal embezzlement and theft

offenses enumerated in 18 U.S.C. Chapter 31 would apply to Plaintiff’s allegations, because

those statutes do not govern theft of private property. Even they did, they would not provide

Plaintiff with a private right of action to enforce them. See Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994) (criminal statutes do not generally

create private causes of action).

To the extent that Plaintiff advances a claim for civil theft, or conversion, that claim

would be governed by state law. See, e.g., RJ Control Consultants, Inc. v. Multiject, LLC, 100

F.4th 659, 665 (6th Cir. 2024) (characterizing conversion as a state-law claim); Ohio Rev. Code

§ 2307.60 (state statute creating damages remedy for theft victims). But this Court lacks original

jurisdiction over state-law claims unless Plaintiff establishes the parties are citizens of different

states. See 28 U.S.C. § 1332(a). Plaintiff’s Complaint identifies all parties as residents of Ohio;

thus, he cannot rely on diversity jurisdiction to maintain these claims in federal court. And

because the undersigned recommends dismissal of all of Plaintiff’s federal claims, it is further

recommended that the Court decline to exercise supplemental jurisdiction under 28 U.S.C.

§ 1367 over Plaintiff’s state-law claims. See Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009)

(“If the federal claims are dismissed before trial, the state claims generally should be dismissed

as well.”).

Because the undersigned recommends dismissal of Plaintiff’s Complaint in its entirety

under 28 U.S.C. § 1915(e)(2), the undersigned further recommends that Defendants’ Motion to

Dismiss (ECF No. 3) and Plaintiff’s Motion for Protective Order (ECF No. 2) be DENIED AS

MOOT.

II. MOTION FOR SANCTIONS

In addition to dismissal of the case, Defendants move for an award of sanctions against

Plaintiff under Federal Rule of Civil Procedure 11. (ECF No. 4.) Specifically, Defendants

request an order deeming Plaintiff to be a vexatious litigator (such that Plaintiff must either

“have a licensed attorney in the federal jurisdiction where he intends to file a lawsuit to sign off

on any pleading filed on his behalf and/or to file a Motion for Leave to Proceed before he is

permitted to file any pleading in federal court”) and for an award of attorney’s fees.

This is the second lawsuit that Plaintiff has filed in this Court against Defendant

Longwell relating to the Highland Avenue property (see Case No. 2:22-cv-3221). The prior suit

in this court was dismissed for failure to state a claim. (See ECF No. 19.) Further, Plaintiff has

sued Longwell six times in the Belmont County Court of Common Pleas (see Case Nos. 22 CV

206, 22 CV 207, 22 CV 208, 22 CV 241, 22 CV 242, 22 CV 243). All six of these Belmont

County cases were dismissed for failure to prosecute, and all six dismissals were affirmed by the

Court of Appeals of Ohio for the Seventh District (see Givens v. Longwell, 2023-Ohio-3330;

Givens v. Longwell, 2023-Ohio-3379). Moreover, the Belmont County Court of Common Pleas

deemed Plaintiff to be a vexatious litigator on July 20, 2023 under Ohio Rev. Code § 2323.52.

(See Case No. 22 CV 356.) That vexatious litigator designation was also affirmed by the Seventh

District Court of Appeals on April 3, 2024. (See Case No. 23 BE 0036.)

“Federal courts have recognized their own inherent power and constitutional obligation to

protect themselves from conduct that impedes their ability to perform their Article III functions

and to prevent litigants from encroaching on judicial resources that are legitimately needed by

others.” Meros v. Dimon, No. 2:17-cv-103, 2017 WL 6508723, at *9 (S.D. Ohio Dec. 20, 2017)

(quoting Johnson v. Univ. Housing, No. 2:06-cv-628, 2007 WL 4303728, at * 12 (S.D. Ohio,

Dec. 10, 2007) (citing Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir. 1986))). The Sixth

Circuit has upheld various prefiling restrictions trial courts have imposed on vexatious litigators.

See, e.g., Filipas v. Lemons, 835 F.2d 1145 (6th Cir. 1987); Feathers v. Chevron U.S.A., 141

F.3d 264, 269 (6th Cir. 1998); Wrenn v. Vanderbilt Univ. Hosp., Nos. 94-5453, 94-5593, 1995

WL 111480 (6th Cir. Mar. 15, 1995).

Given that this is the eighth lawsuit Plaintiff has filed against Defendant Longwell and

the eighth recommended dismissal, it is RECOMMENDED that the Court GRANT IN PART

Defendants’ Motion for Sanctions by deeming Plaintiff a vexatious litigator and enjoining him

from filing any new actions without either (a) submitting a certification from an attorney who is

licensed to practice in this Court or the State of Ohio, stating that there is a good faith basis for

the claims Plaintiff seeks to assert; or (b) tendering a proposed complaint for review by this

Court prior to the actual filing of the complaint in the Court’s docketing system. It is further

RECOMMENDED that Plaintiff be required to include the captions and case numbers of all of

his prior actions should he file a complaint in this or any other court.

It is RECOMMENDED, however, that Defendants’ request for an award of attorney’s

fees be DENIED. While there is little doubt that the repetitive litigation filed by Plaintiff has

been time consuming, costly, and cumbersome for Defendants, monetary sanctions against an

indigent pro se litigant is too harsh a result in this case. Additionally, Defendants’ Motion for

Sanctions does not include any assertion that they complied with Rule 11’s safe harbor filing

requirements as necessary before sanctions may issue under Rule 11.

III. DISPOSITION

For the reasons above, Plaintiff’s motion for leave to proceed in forma pauperis (ECF

No. 1) is GRANTED. It is RECOMMENDED that Plaintiff’s Complaint be DISMISSED for

failure to state a claim on which relief can be granted and for lack of subject-matter jurisdiction

under 28 U.S.C. § 1915(e)(2). As a result, it is further RECOMMENDED that Defendants’

Motion to Dismiss (ECF No. 3) and Plaintiff’s Motion for Protective Order (ECF No. 2) be

DENIED AS MOOT. It is further RECOMMENDED that Defendants’ Motion for Sanctions

(ECF No. 4) be GRANTED IN PART and DENIED IN PART as outlined above.

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 District 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 District 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).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE