United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
34, 40, 41, 42, 44, 45]
Y. PEARSON UNITED STATES DISTRICT JUDGE.
before the Court are Plaintiff's Motion for Appointment
of Counsel (ECF No. 34), Motion to Amend his
Complaint (ECF No. 40) and Motion to Extend Time to
Serve (ECF No. 45); Defendants Marilou Burns, Steven
Grimm, Ralph Hanson, Glen Johnson, J.L. Norwood, Bill Story,
and Harrell Watts' (the “Federal Defendants”)
Motion to Dismiss (ECF No. 41); Defendants Thomas M.
Baronzzi, Anthony J. Dattillio, James A. Fredericka, and
Emily Clark Weston's (the “County
Defendants”) Motion for Judgment on the Pleadings
(ECF No. 42); and Defendants Mike DeWine and John
Kasich's (“State Defendants”) Motion to
Dismiss (ECF No. 44). For the following reasons, the
Court denies Plaintiffs' Motions and grant
Keelan Harris, a prisoner at FCI Elkton, sought to marry his
then-fiancée, Marcela Bedoya. ECF No. 1 at PageID
#: 3, ¶ 21. Although he properly initiated FCI
Elkton's internal marriage procedures, he was informed
that he could not obtain a marriage license. Id. at
PageID #: 3-4, ¶¶ 21-27. Pursuant to Ohio
Rev. Code § 3101.05, parties seeking a marriage
license must “personally appear in the probate court
within the county where either resides, or, if neither is a
resident of this state, where the marriage is expected to be
solemnized.” Ohio Rev. Code § 3101.05.
The local clerk of courts would not send an employee to the
prison to issue a license and the prison declined
Plaintiff's request for an escorted trip to the probate
court. ECF No. 1 at PageID#: 4-5, ¶¶
28-42. Because there was no other way for a prisoner to
satisfy the personal-appearance requirement, Plaintiff was
unable to obtain a marriage license.
sought relief through the prison's grievance process, and
wrote letters to state and federal officials seeking
assistance. ECF No. 1 at PageID#: 4-5, ¶¶
28-42. When Plaintiff's grievances, and their
appeals, were denied, Plaintiff brought suit under 42 U.S.C.
§ 1983 against various state and federal officials and
employees contending that Defendants violated his
constitutional right to be married. ECF No. 1 at PageID
#: 7-8, ¶¶ 47-57. Plaintiff seeks declaratory,
injunctive, and monetary relief. Id. at PageID #: 12-13,
Court reviewed Plaintiff's Complaint pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915(A). After
dismissing Plaintiff's claims against the United States,
United States Attorney General Loretta Lynch, and Charles
Samuel Jr., the Court permitted Plaintiff's action to
proceed against all other Defendants. ECF No. 7 at PageID
Court appointed pro bono counsel to represent
Plaintiff. ECF No. 11. Because the Columbiana
County, Ohio Court of Common Pleas had recently acquired
videoconference technology, Plaintiff's counsel and
Defendants were able to devise a program by which inmates
could obtain marriage licenses via video conference.
Defendant Judge Thomas M. Baronzzi, who had previously denied
Plaintiff's request to appear via video
conference, vacated his order and granted Plaintiff's
request in light of the court's new technological
acquisition. ECF No. 36-1 at PageID #: 336. The
Federal and County Defendants confirmed that the video
conference connection was successfully tested, FCI Elkton
updated its Institution Supplement on Marriage accordingly,
and the updated Supplement was issued to prisoners. ECF
Nos. 46, 54.
notified the Court that he no longer intended to wed. ECF
No. 38. Plaintiff moved to amend his Complaint and
extend time to serve. ECF Nos. 40, 45. The Federal
Defendants and State Defendants moved to dismiss
Plaintiff's Complaint. ECF Nos. 41, 44. The
County Defendants moved for judgment on the pleadings.
ECF No. 42.
Claims for Declaratory and Injunctive Claims Against All
Defendants argue that Plaintiff's claims for injunctive
and declaratory relief are moot, and, therefore, the Court
lacks subject-matter jurisdiction. ECF No. 41-1 at PageID
#: 362-64; ECF No. 42-1 at PageID #: 374-76;
ECF No. 44 at PageID #: 412-14. For the following
reasons, the Court grants the Motions to Dismiss and the
Motion for Judgment on the Pleadings regarding
Plaintiff's claims for declaratory and injunctive relief.
Rule of Civil Procedure 12(b)(1) allows dismissal of
claims for “lack of jurisdiction over the subject
matter.” Fed. R. Civ. P. 12(b)(1).
“Article III, § 2, of the Constitution limits the
jurisdiction of federal courts to ‘Cases' and
‘Controversies, ' which restricts the authority of
federal courts to resolving ‘the legal rights of
litigants in actual controversies.'” Genesis
Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528 (2013)
(quoting Valley Forge Christian College v. Ams. United
for Separation of Church & State, Inc., 454 U.S.
464, 471 (1982)). Otherwise put, federal courts do not have
jurisdiction over cases that are “moot, ” meaning
those in which the plaintiff no longer has a legally
cognizable interest in the outcome of the action.
Id.; McPherson v. Michigan High Sch. Athletic
Ass'n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en
banc). A controversy must exist throughout the course of
litigation. Alvarez v. Smith, 558 U.S. 87, 92
(2009). “If an intervening circumstance deprives the
plaintiff of a ‘personal stake in the outcome of the
lawsuit, ' at any point during litigation, the action can
no longer proceed and must be dismissed as moot.”
Symczyk, 133 S.Ct. at 1528 (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78 (1990)).
test for mootness is whether the relief sought would, if
granted, make a difference to the legal interests of the
parties.” Bowman v. Corr. Corp. of Am., 350
F.3d 537, 550 (6th Cir. 2003) (quoting McPherson,
119 F.3d at 458). A reviewing court will determine not
whether the complained-of activity has ceased, but whether it
can be properly remedied by the court. Coal. for
Gov't Procurement v. Fed. Prison Indus., Inc., 365
F.3d 435, 458 (6th Cir. 2004). “[A] case is moot only
where no effective relief for the alleged violation can be
seeks a preliminary and permanent injunction ordering
Defendants to issue a marriage license to Plaintiff and his
fiancée, assist Plaintiff in obtaining a marriage
license and completing the marriage ceremony, as well as a
declaration that Ohio Rev. Code §
3101.05(A)‘s “personal appearance”
requirement is unconstitutional. ECF No. 1 at PageID #:
12, ¶¶ 80-82. Because Plaintiff no longer
intends to wed, the Court is unable to issue any declaratory
or injunctive relief that would affect Plaintiff or provide
him with relief. Such an order would be purely advisory.
Plaintiff no longer intends to wed, he argues that his claims
for declaratory and injunctive relief are not moot because
the intent not to marry is a direct result of
Defendants' actions; Plaintiff may decide to marry in the
future, and Defendants could deny his marriage or any
inmate's marriage based on any perceived “security
concerns” they see fit; and Plaintiff's injury is
“capable of repetition, yet evading review.”
ECF No. 40. These arguments are either inapplicable
to this case or insufficient to overcome the mootness of
that Plaintiff's decision not to marry was influenced by
Defendants' actions is of no matter to the case's
mootness. Because Plaintiff does not intend to marry,
ordering Defendants to allow Plaintiff to marry will not
afford him any relief. To the extent Plaintiff argues that
the case falls within the “voluntary cessation”
exception to mootness, this argument is without merit.
Ordinarily, a defendant's voluntary cessation of an
illegal activity is insufficient to render litigation moot.
Friends of the Earth v. Laidlaw Environmental Svcs.,
528 U.S. 167, 169 (2000) (citing City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)).
“[I]f it did, the courts would be compelled to leave
‘[t]he defendant . . . free to return to his old
ways.'” Id. (citing City of
Mesquite, 455 U.S. at 289, n.10). In this instance, it
is not Defendants' voluntary conduct, but Plaintiff's
decision not to marry, that moots the case.
arguments that he might decide to marry in the future, and
that a future marriage application might be denied based on
“security concerns, ” is too speculative a harm
to permit Plaintiff's case to move forward. “[T]o
satisfy Article III's standing requirements, a plaintiff
must show (1) it has suffered an ‘injury in fact'
that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical . . . .”
Laidlaw, 528 U.S. at 181. Plaintiff's harm
assumes a series of events-that he decides to remarry, that
he applies for a marriage license while still in prison, and
that Defendants illegally deny his marriage license-that are
too hypothetical and speculative to create the type of
“actual controversy” over which this Court would
have jurisdiction. Similarly, the Court does not have
jurisdiction over Plaintiff's argument that other
inmates' marriage requests might be denied.
“Generally, [a litigant] must assert his own legal
rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties.”
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (citing
Warth v. Seldin, 422 U.S. 490, 499 (1975)). In the
event that another inmate is denied the right to marry, that
inmate will have to bring his own suit, unless Plaintiff can
demonstrate some stake in that litigation or a basis for
third-party standing. Id. at 130 (permitting
third-party standing only when the party asserting the right
has a “close” relationship with the person who
possesses the right, and the possessor's ability to
protect his own interest is hindered).
Plaintiff's argument that the case is of the type
“capable of repetition, yet evading review” is
without merit. In order to satisfy this exception to the
mootness doctrine, a plaintiff must show “(1) the
challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration; and (2) there
was a reasonable expectation that the same complaining party
would be subjected to the same action again.”
Chirco v. Gateway Oaks, L.L.C., 384 F.3d 307, 309
(6th Cir. 2004) (citing Weinstein v. Bradford, 423
U.S. 147, 148 (1975)).
Plaintiff's injury fails on the first prong, there is no
need to consider the second prong. Plaintiff's injury is
that he was prohibited from marrying, in violation of his
right to marry. In the event Plaintiff is barred from
securing a marriage license again, there is nothing about
this injury that is so inherently brief that it could not
wait out the course of litigation. For example, if not for
Plaintiff and his fiancée's decision not to marry,
they would still remain affianced to this day, and could
remain engaged until the Court renders its judgment. In
contrast, a woman's pregnancy, Roe v. Wade, 410
U.S. 113, 125 (1973) or a trial court's order banning
news media access to a specific trial, Nebraska Press
Ass'n v. Stuart, 427 U.S. 539, 546-47
(1975) will not outlast even the fastest litigation,
no matter what the plaintiff does to keep the case from
becoming moot. Accordingly, Plaintiff's injury does not
fall within this exception to the mootness doctrine.
these reasons, the Court finds that Plaintiff's claims
for declaratory and injunctive relief are moot, and
dismisses, without prejudice, any claims for declaratory and
injunctive relief for lack of subject-matter jurisdiction.
Accordingly, only Plaintiff's claims for monetary relief
Claims for Monetary Relief Against Federal Defendants and
Plaintiff's Motion to Extend Time to
Federal Defendants move to dismiss Plaintiff's claims
against them, in their official and individual capacities,
for lack of personal jurisdiction, pursuant to Federal
Rule of Civil Procedure 12(b)(2). The party resisting a
Rule 12(b)(2) motion to dismiss bears the burden of
demonstrating that personal jurisdiction exists. Air
Prods. and Controls, Inc. v. Safetech Intern., Inc., 503
F.3d 544, 549 (6th Cir. 2007). If the court rules on the
motion to dismiss without an evidentiary hearing, the
resisting party need only make a prima facie showing
that jurisdiction exists. CompuServe, Inc. v.
Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996).
claims for monetary relief against the Federal Defendants are
dismissed for lack of personal jurisdiction, as Plaintiff has
failed to properly serve the Federal Defendants. A plaintiff
filing a Bivens claim against a federal officer in
her individual capacity must perfect service on the United
States and personal service on each defendant within 90 days
of filing the complaint. Fed. R. Civ. P. 4(i)(3);
4(m). Lack of proper service is a jurisdictional
defect, and “without such personal service, a district
court is without jurisdiction to render judgment against the
defendant.” Harris v. City of Cleveland, 7 F.
App'x 452, 456 (6th Cir. 2001) (citing Friedman v.
Estate of Presser, 929 F.2d 1151, 1157 (6th Cir. 1991)
and Ecclesiastical Order of Ism of Am, Inc. v.
Chasin, 845 F.2d 113, 116 (6th Cir. 1988)). Unless the
plaintiff can show good cause as to why service was not
perfected, the case must be dismissed. Abel v. Harp,
122 F. App'x 248, 250 (6th Cir. 2005) (quoting Byrd
v. Stone, 94 F.3d 217, 219 (6th Cir. 1996)).
Service on Defendants Burns and Hanson
failed to properly serve Defendants Burns and Hanson
individually. To perfect personal service on a United States
officer, the plaintiff must comply with Rule 4(i)(3)
by serving the United States and serving the officer under
Rule 4(e), (f), or (g). Fed. R. Civ. P.
4(i)(3). Rule 4(f) and 4(g) concern
service on officers in a foreign country and on minors or
incompetent persons, neither of which is applicable in this
case. Accordingly, only service pursuant to Rule
4(e) is relevant. Rule 4(e) instructs:
(e) Serving an Individual Within a Judicial District of the
United States. Unless federal law provides otherwise, an
individual-other than a minor, an incompetent person, or a
person whose waiver has been filed-may be served in a
judicial district of the United States by:
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where
the district court is ...