United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, Magistrate Judge United States District Court
Gerald Burton, a resident of Middletown, Ohio, brings this
action against Warren County Common Pleas Judge Joseph W.
Kirby, Angela Herrick (aka Burton), and "State of Ohio
(Ohio Supreme Court)." 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 spontc review of plaintiff s 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. 28 U.S.C. § 1915(e)(2)(B).
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 has 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). 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).
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). A complaint filed
by Si 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)). By the same token, however, the complaint "must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcrofi 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 ("dismissal standard articulated in
Iqbal and Twombly governs dismissals for
failure to state a claim" under §§ 1915A(b)(1)
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. Attain, 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).
pro se complaint alleges that his father, Richard Burton,
died intestate in 2014. He alleges that while Cindy Burton,
his sister, had Power of Attorney for all relevant matters of
the estate, Angela Herrick (aka Burton), a resident of
Florida, represented that she was the wife of Richard Burton.
In February 2015, Judge Kirby appointed Angela Herrick
fiduciary and administrator of the estate based on "a
presumptive document of her marriage to Richard Burton."
(Doc. 1 at 7). Plaintiff challenged this appointment and
disputed the validity of the marriage of Ms. Herrick to his
father. Plaintiff filed several motions in the probate court
contesting the validity of the marriage, alleging that Ms.
Herrick "abandoned the marriage" and perpetrated a
fraud on the court. He also alleged that his father had a
common law marriage with Marsha Burton and, therefore, his
father's subsequent marriage to Angela Herrick Burton was
void. Judge Kirby ruled that Ms. Herrick was the presumptive
wife of the decedent who had legal right to the
decedent's property. Plaintiff alleges Judge Kirby
"created bias and prejudice which led to barriers being
raised as a means of a fair settlement to the
controversies." (Doc. 1-1 at 5). He alleges Judge Kirby
was unfair, did not follow the law, and denied his motions
without giving a reason. Plaintiff states his rights as a pro
se litigant in the state court action were prejudiced because
Judge Kirby creatively interpreted the law and neglected
facts. Plaintiff unsuccessfully appealed Judge Kirby's
ruling to the Ohio Court of Appeals and the Ohio Supreme
Court. Plaintiff alleges that the foregoing actions violated
his right to due process under the law.
relief, plaintiff seeks an injunction "commanding the
State of Ohio and Judge Joseph W. Kirby to rescind the order
and entry, " declaratory relief, and damages.
allegations are insufficient to state a claim with an
arguable basis in law over which this federal Court has
subject matter jurisdiction.
to the extent plaintiff may be invoking the diversity
jurisdiction of the Court under 28 U.S.C. § 1332(a), the
complaint reveals such jurisdiction is lacking. In order for
diversity jurisdiction pursuant to § 1332(a) to lie, the
citizenship of the plaintiff must be "diverse from the
citizenship of each defendant" thereby ensuring
"complete diversity." Caterpillar Inc. v.
Lewis, 519 U.S. 61, 68 (1996) (citing State Farm
Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531
(1967)); see also Napletana v. Hillsdale College,
385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North
American Res. Corp., 809 F.Supp. 546, 551 (S.D. Ohio
1992). In this case, plaintiff, Judge Kirby, and the Ohio
Supreme Court are domiciled in Ohio. Therefore, there is no
complete diversity of citizenship among the parties.
Accordingly, this Court lacks subject matter jurisdiction on
the basis of diversity of citizenship over any alleged state
the Court is without federal question jurisdiction over the
complaint. District courts also have original federal
question jurisdiction over cases "arising under the
Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. In order to invoke the Court's
federal question jurisdiction pursuant to 28 U.S.C. §
1331, plaintiff must allege facts showing the cause of action
involves an issue of federal law. See Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 63 (1987). The undersigned
is unable to discern from the facts alleged in the complaint
any federal statutory or constitutional provision that
applies to give rise to an actionable claim for relief.
Court does not have jurisdiction to rescind the state
court's judgment finding Ms. Herrick to be the
presumptive wife of the decedent and awarding her the
property of the decedent. The federal courts lack authority
under the Rooker-Feldman doctrine to sit as a state
appellate court to review state court determinations. See
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923). The Rooker-Feldman doctrine
"stands for the proposition that a federal district may
not hear an appeal of a case already litigated in the state
court." United States v. Owens, 54 F.3d 271,
274 (6th Cir. 1995). The Supreme Court more recently
reaffirmed that the Rooker-Feldman doctrine applies
where, as here, a case is brought by a loser in a state court
action, complaining of injuries caused by the state
court's judgment rendered before the district court
proceedings commenced and inviting the district court to
review and reject that judgment. See Exxon Mobile Corp.
v. Saudia Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The crucial question is whether the "source of
injury" upon which the plaintiff bases his federal claim
is a state court judgment. Lawrence v. Welch, 531
F.3d 364, 368 (6th Cir. 2008); see also Mines v. Franklin
Savings & Loan, No. I:09cv914, 2011 WL 882976, at *2
(S.D. Ohio Jan. 31, 2011) (Bowman, M.J.) (Report &
Recommendation), adopted, 2011 WL 886128 (S.D. Ohio
Mar. 10, 2011) (Weber, J.). "If the source of the injury
is the state court decision, then the Rooker-Feldman
doctrine would prevent the district court from asserting
jurisdiction.'" Lawrence, 531 F.3d at 368
(quoting McCormick v. Braverman, 451 F.3d 382, 394
(6th Cir. 2006)).
plaintiff directly challenges the state court's decision
appointing Ms. Hedrick administrator of the decedent's
estate and explicitly requests a reversal of that decision.
The concrete actions that give rise to plaintiffs claims for
relief arise solely from actions taken by the defendants in
the state-court proceedings and from the state court's
substantive rulings in those proceedings. Construing the
complaint liberally, it can only be interpreted as a request
for review of the court's judgment in the state court
case. Although plaintiff has alleged that defendants engaged
in misconduct during the state proceedings, the source of
plaintiff s injury derives solely from the state court's
decision finding Ms. Herrick to be the presumptive wife of
the decedent and naming her as the administrator of the
decedent's estate. Cf. Hillman v. Edwards, No.
2:11-cv-601, 2011 WL 4711979, at *2 (S.D. Ohio Oct.6, 2011)
(rejecting the argument that the plaintiff stated an
"independent claim" to the extent the
"underlying state action was based on allegations that
the named Defendant engaged in misconduct"). Indeed, in
a similar case where the plaintiff alleged that the defendant
and defendant's attorney committed fraud by lying in a
state court proceeding to obtain summary judgment in the
defendant's favor, the Seventh Circuit held that the
federal district court lacked jurisdiction to consider the
plaintiffs "due process" claim because it was
"a thinly disguised effort to overturn the [state court]
judgment, " was "inextricably linked" with the
state court's judgment, and was thus barred from review
under the Rooker-Feldman doctrine. See Dick v.
Towles, 67 Fed.Appx. 965, 967 (7th Cir. 2003).
may not invoke the federal jurisdiction of the Court by
couching his claims in terms of a civil rights action. Any
review of the due process claim asserted by plaintiff in this
context would require the Court to review the specific issues
addressed in the state probate court proceedings. This Court
lacks jurisdiction to review the state court proceedings or
grant the relief plaintiff requests. Accordingly, his
complaint should be dismissed for lack of subject matter
alternative, plaintiffs complaint seeks relief from
defendants who are immune from such relief or fails to state
a claim upon which relief may be granted. Plaintiffs claims
against Judge Kirby are barred by judicial immunity. Judges
are afforded absolute immunity from § 1983 liability for
acts they commit while functioning within their judicial
capacity. "Like other forms of official immunity,
judicial immunity is an immunity from suit, not just from
ultimate assessment of damages." Mireles v.
Waco,502 U.S. 9, 11 (1991); Pierson v. Ray,386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d
246, 255 (6th Cir. 1997). Judges retain absolute immunity
from liability even if they act maliciously or corruptly, as
long as they are performing judicial acts and have
jurisdiction over the subject matter giving rise to the suit
against them. Stump v. Sparkman,435 U.S. 349,
356-57 (1978). See also Brookings v. Clunk, 389 F.3d
614, 617 (6th Cir. 2004); Stern v. Mascio, 262 F.3d
600, 607 (6th Cir. 2001). It is clear that the decisions made
by Judge Kirby in the state court action were functions