United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE
Plaintiff Kimberly Lynn Bonds filed this action against
Cuyahoga County Common Pleas Court Judge Pamela A. Barker,
Cuyahoga County Common Pleas Court Magistrate Judge Paul
Lucas, Attorney Benjamin Hoen, and Third Federal Savings &
Loan of Cleveland (“Third Federal”). In the
Complaint, Plaintiff challenges Defendants' actions and
decisions in the course of a state court foreclosure action.
She seeks monetary damages.
also filed an Application to Proceed In Forma
Pauperis (ECF No. 2). That Application is granted.
purchased property located at 3398 W. 88th Street, Cleveland,
Ohio 44102-4859 and, on May 3, 2004, signed a note from Third
Federal in the amount of $ 83, 900.00 to finance the
purchase. The note was secured by a mortgage on the property.
Plaintiff contends she attempted to make a partial payment on
the mortgage on January 7, 2017, but was told there was a
block on the account due to missed payments. Plaintiff then
received misguided advice from an acquaintance who informed
her that all mortgages are frauds, that the bank is fully
paid when the promissory note is signed by the borrower, the
borrower receives nothing of value in the transaction, and
therefore does not really owe any money to the bank in
repayment of the mortgage. While Plaintiff attempted to get
Third Federal to acknowledge and accept this theory of
non-liability and respond accordingly, Third Federal retained
the services of Benjamin Hoen from the law firm of Weltman,
Weinberg & Reis Co., LPA and filed a foreclosure lawsuit.
Plaintiff presented her theory to the Magistrate Judge and to
the Common Pleas Court Judge but neither of them accepted it.
Third Federal filed a Motion for Summary Judgment, which the
Court granted on September 11, 2017. The Court denied her
Motion for the Appointment of Counsel, as well as her Motion
to require Third Federal to produce the original promissory
note. She indicates she is seeking relief under 42 U.S.C.
§ 1983 and Title VII, 42 U.S.C. § 2000e. She
requests an award of monetary damages for all of the payments
she made on the mortgage, and “any payments made during
securitization with [the] promissory note owned by Kimberly
Lynn Bonds.” (ECF No. 5 at 6). She calculates this
amount to be $100, 000.00.
pro se pleadings are liberally construed, Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
Court is required to dismiss an in forma pauperis action
under 28 U.S.C. §1915(e) if it fails to state a claim
upon which relief can be granted, or if it lacks an arguable
basis in law or fact. Neitzke v. Williams, 490 U.S.
319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th
Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). An action has no arguable
basis in law when a Defendant is immune from suit or when a
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 v.
Hernandez, 504 U.S. 25, 32 (1992); Lawler, 898 F.2d at
determining whether the Plaintiff has stated a claim upon
which relief can be granted, the Court must construe the
Complaint in the light most favorable to the Plaintiff,
accept all factual allegations as true, and determine whether
the Complaint contains “enough fact to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
Plaintiff's obligation to provide the grounds for relief
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. Although a Complaint need
not contain detailed factual allegations, its “factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the Complaint are true.” Id.
The Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986). The
Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662,
677-678 (2009), further explains the
“plausibility” requirement, stating that “
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. Furthermore,
“the plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a Defendant acted
unlawfully.” Id. This determination is a
“context-specific task that requires the reviewing
Court to draw on its judicial experience and common
initial matter, Plaintiff cannot file an action in federal
court to relitigate matters that were already decided in
state court proceedings. Federal Courts must give the same
preclusive effect to a state-court judgment as that judgment
receives in the state court. 28 U.S.C. § 1738;
Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir.
2007); Young v. Twp. of Green Oak, 471 F.3d 674, 680
(6th Cir. 2006). In other words, if Plaintiff would be barred
from litigating the matter again in state court, she cannot
avoid that procedural bar by filing the action in federal
court instead of state court. This Court must therefore
decide whether Plaintiff's challenge to the validity of
her mortgage would be barred if she had filed this action in
state court. To do that, this Court must apply Ohio's law
on preclusion. Migra v. Warren City School District Board
of Educ.465 U.S. 75, 81 (1984).
Ohio, the doctrine of res judicata encompasses the two
related concepts of claim preclusion and issue preclusion.
State ex rel. Davis v. Pub. Emp. Ret. Bd., 120 Ohio
St.3d 386, 392, 899 N.E.2d 975, 981 (2008). Under claim
preclusion, “a valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim
arising out of the transaction or occurrence that was the
subject matter of the previous action.” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 382 (1995). The
doctrine of claim preclusion encompasses “all claims
which were or might have been litigated in a first
lawsuit.” Id. By contrast, issue preclusion,
or collateral estoppel, “precludes the relitigation of
an issue that has been actually and necessarily litigated and
determined in a prior action.” MetroHealth Med.
Ctr. v. Hoffman-LaRoche, Inc., 80 Ohio St.3d 212, 217
(1997). Issue preclusion applies when a fact or issue
“(1) was actually and directly litigated in the prior
action; (2) was passed upon and determined by a court of
competent jurisdiction; and (3) when the party against whom
[issue preclusion] is asserted was a party in privity with a
party to the prior action.” Thompson v. Wing,
70 Ohio St.3d 176, 183 (1994).
case, issue preclusion would apply to bar Plaintiff from
litigating the validity of her mortgage. Plaintiff asserted
her theory for relief from the mortgage obligation to the
state court and the court rejected it. They necessarily
decided the mortgage was valid and the debt was owed, when
they granted summary judgment in favor of Third Federal. This
Court must give full faith and credit to that state court
judgment. Plaintiff is barred by the doctrine of res judicata
from relitigating that issue in federal court.
addition, even if this action was not barred, Plaintiff has
not stated a viable federal cause of action. Plaintiff
indicates she is bringing this case under Title VII and 42
U.S.C. § 1983. Title VII applies to employment
discrimination, which is not at issue here. She fails to
state a claim for relief under Title VII.
establish a prima facie case under 42 U.S.C. § 1983,
Plaintiff must assert that a person acting under color of
state law deprived her of rights, privileges, or immunities
secured by the Constitution or laws of the United States.
Parratt v. Taylor,451 U.S. 527, 535 (1981).
Generally, to be considered to have acted “under color
of state law, ” the Defendant must be a state or local
government official or employee. Benjamin Hoen and Third
Federal are private parties, not government entities or
officials. A private party may be found to have acted under
color of state law to establish the first element of this
cause of action only when the party “acted together
with or obtained significant aid from state officials”
and did so to such a degree that its actions may properly be
characterized as “state action.” Lugar v.
Edmondson Oil Co.,457 U.S. 922, 937 (1982). An
individual may also be considered a state actor if he or she
exercises powers traditionally reserved to a state.
Jackson v. Metropolitan Edison Co., 419 ...