United States District Court, S.D. Ohio, Western Division
THEODORE K. DAVIS, JR., Plaintiff,
BARBARA SCHNEIDER CARTER, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
26, 2019, Plaintiff, proceeding pro se, paid the requisite
filing fee and filed the above-captioned case. On the same
date, Plaintiff filed two motions, which are appropriately
construed as motions seeking preliminary injunctive relief
and/or a temporary restraining order. Pursuant to local
practice, this case has been referred to the undersigned
magistrate judge. For the reasons that follow, the
undersigned now recommends that this case be DISMISSED
sua sponte for lack of subject matter jurisdiction,
or alternatively, for failure to state any claim. Consistent
with the recommended dismissal, Plaintiff's two pending
motions should be DENIED.
31, 2019, the same plaintiff filed a motion seeking leave to
file No. 1:19-cv-414 in this Court in forma
pauperis, or without payment of fees. (Doc. 1). On June
6, 2019, the undersigned granted Plaintiff's motion in
the referenced case,  but simultaneously filed a Report and
Recommendation that recommended the dismissal of
Plaintiff's complaint with prejudice, pursuant to 28
U.S.C. § 1915(e)(2)(B). (See No. 1:19-cv-414, Docs. 2,
4). On June 19, 2019, Plaintiff filed objections to the
dismissal of his case with prejudice. (Doc. 5).
Plaintiff's objections, together with the R&R, remain
pending before the district judge, as does Plaintiff's
more recently filed motion to voluntarily dismiss his
original case. (Id., Docs. 4-6).
same date Plaintiff moved to voluntarily dismiss No.
1:19-cv-414, Plaintiff opened the above-captioned new case by
paying the requisite filing fee. Plaintiff's new 19-page
complaint is accompanied by 26 pages of
exhibits. Despite asserting new causes of action,
all allegations in the above-captioned case relate to state
court domestic relations proceedings. However, while No.
1:19-cv-414 named only Judge Schneider Carter, Plaintiff
names as additional Defendants his ex-wife's attorneys
including the Lampe Law Office, LLC, two individual attorneys
from that office (M. Lynn Lampe and Adam C. Gedling), and his
ex-wife, Kim Davis. The exhibits to the new complaint,
together with the allegations contained therein, confirm that
Plaintiff is alleging that his ex-wife and her counsel
engaged in improper conduct in the domestic relations case
over which Judge Schneider Carter presides. Plaintiff alleges
violations of his Fourteenth Amendment rights, and asserts
claims of extortion, coercion, racketeering, violations of 42
U.S.C. § 1983, fraud on the court, and illegal ex parte
communication. (Doc. 1 at 2). All claims are based on state
court proceedings and/or rulings issued by Judge Schneider
Carter between February 2018 and June 12, 2019. As relief,
Plaintiff seeks an Order overturning the state court's
prior rulings, various forms of monetary damages including
attorney's fees, and “other relief that the Court
deems just and proper.” (Id. at 15).
stated, Plaintiff filed two motions with his complaint: (1)
Motion for “Relief of Judgment, Vacate the Order(s)
DR2013-12 1277 Butler County, Ohio, (Doc. 3); and (2)
Emergency Motion to Stay Support Order DR1013-12-1277, (Doc.
4). Both motions are construed as motions seeking preliminary
injunctive relief and/or a temporary restraining order. In
the first motion, Plaintiff seeks “an emergency hearing
to STAY all previous orders [of the state court] and support
since Plaintiff has been overpaying support beginning
December 2014, and the ex-spouse has not only hindered
efforts to determine her true income but committed fraud and
other criminal acts that justifies an immediate
relief.” (Doc. 3 at 7). In the second “Emergency
Motion, ” Plaintiff similarly seeks a “Stay of
the $1550.00 [previously ordered by the state court] plus 2%
paid to CSEA…until the conclusion through the court,
of this case.” (Doc. 4 at 2).
This Case Should Be Dismissed Sua Sponte
Plaintiff paid the full filing fee in his new case, his
complaint is not subject to statutory sua sponte
screening under 28 U.S.C. § 1915(e). Nevertheless, this
Court retains the authority to dismiss frivolous lawsuits
under Apple v. Glenn, 183 F.3d 477, 479 (6th Cir.
1999). Moreover, a federal court has the obligation to
dismiss a lawsuit at any time that it determines it is
without subject matter jurisdiction.
Defendant Schneider Carter is Entitled to Immunity
previously noted in No. 1:19-cv-414, the first identified
Defendant is an Ohio state court judge in the Domestic
Relations Division of the Butler County Court. For all the
reasons stated in the R&R filed in that case, Judge
Schneider Carter is entitled to absolute judicial immunity
and should be dismissed from this lawsuit. See Mireles v.
Waco, 502 U.S. 9, 11 (1991); Pearson v. Ray,
386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d
246, 255 (6th Cir. 1997). Judges retain absolute immunity
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);
Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001).
Plaintiff's new allegations that Judge Schneider Carter
engaged in ex parte communications with his ex-wife
or her attorneys during her oversight of the state court
proceedings do not overcome her absolute immunity.
Alexander v. Rosen, 804 F.3d 1203, 1208 (6th Cir.
The Court Lacks Subject Matter Jurisdiction; Alternatively,
the Complaint Fails to State Any Claim
courts are courts of limited jurisdiction. Plaintiff's
latest complaint lacks factual content or context from which
the Court may reasonably infer the basis for federal
jurisdiction over any claim that Plaintiff may have against
any identified Defendant.
Plaintiff invokes federal question jurisdiction, no such
jurisdiction exists. For this Court to have federal question
jurisdiction pursuant to 28 U.S.C. § 1331, a 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). Plaintiff challenges the
outcome of a family law dispute that arose in state court.
(See, e.g., Doc. 1 at 6, “Through trial
Plaintiff will prove the $10, ...