United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
a resident of Cincinnati, Ohio and former prisoner at the
Hamilton County Justice Center,  brings this civil rights
action against defendant Judge Gwen Bender. 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 sponte review
of the 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. See Prison Litigation
Reform Act of 1995 § 804, 28 U.S.C. §
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 a 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.'” Ashcroft 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)).
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. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain “detailed factual
allegations, ” it must provide “more than an
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).
who is proceeding pro se, brings this § 1983 action
against defendant Judge Gwen Bender. (See Doc. 1-1,
Complaint at PageID 8). Plaintiff claims that Judge Bender
“did knowingly and willingly commit false arrest and
false imprisonment violating Plaintiff's First, Fourth,
Fifth, Sixth and Fourteenth Amendment rights to the United
States Constitution.” (Id. at PageID 11).
Plaintiff brings his complaint in connection with a January
22, 2018 proceeding regarding a traffic code violation.
According to plaintiff, “Defendant was immediately told
this plaintiff has not and will not participate in her
proceedings.” (Id.). In response, Judge Bender
allegedly stated “so Mr. Shabazz is not here” and
ordered “a $10, 000 arrest capias for Mr. Shabazz but
sent this Plaintiff back to jail with no pending issues
against him.” (Id.). Plaintiff further alleges
that Judge Bender “took it upon herself to enter a plea
on the record stating the plea is entered on ‘behalf of
Mr. Shabazz.'” (Id. at PageID 10). In
doing so, plaintiff alleges that Judge Bender's
“rogue actions” violated his constitutional
rights. (Id. at PageID 11).
relief, plaintiff seeks for the Court to “send
recommendation and report on ethics and Title 18 violations
to federal prosecutor against defendant and her handler,
” to “order forensic accounting audit trial on
defendant's proceedings against plaintiff to be done by
IRS or Army Corp of Engineers, ” release from the
Hamilton County Justice Center, and damages. (Id. at
complaint is subject to dismissal at the screening stage for
failure to state a claim upon which relief may be granted by
to the extent plaintiff challenges the legality of his
custody or is seeking release from custody, his sole federal
remedy is a writ of habeas corpus. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); Hadley v.
Werner, 753 F.2d 514, 516 (6th Cir. 1985). Plaintiff may
not pursue habeas corpus relief through a civil rights action
under Section 1983.
complaint should also be dismissed because judges are
afforded absolute immunity from damages for acts they commit
while functioning within their judicial capacity. 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 Stern v. Mascio, 262 F.3d
600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962
(6th Cir. 1985). It appears that the actions challenged by
plaintiff are functions normally performed by judges and are
therefore judicial acts. Stump, 435 U.S. at 362. In
addition, plaintiff has not alleged facts indicating that the
defendant acted “in the complete absence of all
jurisdiction.” Stern, 262 F.3d at 607.
Accordingly, the complaint fails to state a claim for which
relief may be granted against the judicial defendant because
she is entitled to absolute judicial immunity for the actions
alleged in the complaint.
in sum, the complaint should be dismissed pursuant to 28
U.S.C. §§ 1915(e)(2)(B) because plaintiff has
failed to state a claim upon which relief may be granted
against any of the named defendants.
IS THEREFORE RECOMMENDED THAT:
plaintiff's complaint be DISMISSED with
prejudice pursuant to 28 ...