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Burton v. Kirby

United States District Court, S.D. Ohio, Western Division

November 15, 2017

GERALD BURTON, Plaintiff,
v.
JOSEPH W. KIRBY, et al., Defendants.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, Magistrate Judge United States District Court

         Plaintiff 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).

         In 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).

         Congress 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) and 1915(e)(2)(B)(ii)).

         "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." 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).

         Plaintiffs 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.

         As 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.

         Plaintiffs allegations are insufficient to state a claim with an arguable basis in law over which this federal Court has subject matter jurisdiction.

         First, 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 law claims.

         Second, 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.

         The 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)).

         Here, 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).

         Plaintiff 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 jurisdiction.

         In the 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 normally ...


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