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Niepsuj v. J.G.

United States District Court, N.D. Ohio, Eastern Division

December 16, 2019

J.G. (O.S. Court No. 2809), DEFENDANT.



         Before the Court is the motion to dismiss filed by defendant, Judge Joseph Giulitto (“Judge Giulitto” or “defendant”), pursuant to Fed.R.Civ.P. 12(b)(2), 12(b)(3), and 12(b)(6). (Doc. No. 11 [“MTD”].) Plaintiff, Vincent Niepsuj (“Niepsuj” or “plaintiff), has filed a response in opposition. (Doc. No. 15 [“Opp'n”].) Judge Giulitto filed a reply. (Doc. No. 16 [“Reply”].) For the reasons set forth herein, defendant's motion to dismiss is GRANTED.

         I. BACKGROUND

         Niepsuj, proceeding pro se, filed this action in the Western District of New York on April 2, 2018. (See Doc. No. 1.) He filed an amended complaint on October 3, 2019 (hereinafter “complaint”), naming only “J.G. (O.S. Court No. 2809)” as a defendant.[1] (Doc. No. 6 [“Compl.”].) Niepsuj's complaint is difficult to parse but-based on review of the entire record-it appears that Niepsuj's grievances stem from a civil protection order (“CPO”) that was issued against him in March 2016 by the defendant, a visiting judge in the Summit County Domestic Relations Court.

         Niepsuj appealed the CPO and on August 9, 2017, Ohio's Ninth District Court of Appeals-finding that Judge Giulitto abused his discretion in issuing the order-vacated the CPO. (Compl., Ex. 7[2] at 126-40[3].) Niepsuj then filed this § 1983 action alleging that Judge Giulitto violated his First and Fourteenth Amendment rights by issuing the CPO. (See Compl. at 52-53.) Niepsuj also appears to be challenging the constitutionality of Ohio Rev. Code § 3113.31, which governs CPOs.

         On November 30, 2018, Judge Giulitto filed the instant motion seeking dismissal on several grounds, including failure to state a claim, improper venue, and lack of personal jurisdiction over him in New York. (See MTD at 175-77.) Niepsuj filed a brief opposing the motion to dismiss and, alternatively, asked the New York District Court to dismiss his action without prejudice if the court found that it lacked jurisdiction over the defendant, or to “transfer venue” to the Northern District of Ohio. (See Opp'n. at 186.) On March 21, 2019, the District Court for the Western District of New York granted Niepsuj's motion to change venue and transferred the case “to the Northern District of Ohio while leaving defendant's motion to dismiss … pending.” (Doc. No. 20 at 234-35.) With the venue and jurisdictional issues remedied, the sole issue before the Court is whether the complaint states a claim upon which relief can be granted under Rule 12(b)(6). It does not.


         A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H. Elliot Co., Inc. v. Caribbean Util. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). A court must dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). To state a claim, the complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.] Fed.R.Civ.P. 8(a)(2). Although this standard is liberal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[4] Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570 (citation omitted).

         When considering a motion to dismiss, all allegations of fact by the non-moving party are accepted as true and construed in the light most favorable to that party. See Grindstaff v. Green, 133 F.3d 416, 421 (citing Meador v. Cabinet for Human Res., 902 F.2d 474, 475 (6th Cir. 1990)). The Court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).


         A. Mootness[5]

         The decision of the Ohio Court of Appeals terminated the controversy in Niepsuj's favor and rendered this action moot. While Judge Giulitto did not move to dismiss for mootness, '"the question of mootness is ... one which a federal court must resolve before it assumes jurisdiction.'” Locke v. Brown, No. 3:18-cv-697-RGJ, 2019 WL 4675390, at *3 (W.D. Ky. Sept. 25, 2019) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)).

         The only relief Niepsuj seeks in his complaint is declaratory relief in connection with the lawfulness of the CPO and the constitutionality of Ohio Rev. Code § 3113.31. (Compl. at 69.) Although “declaratory relief is available against state courts under § 1983[, ]” such claims are only actionable “when a live controversy continues to exist.” Ward v. City of Norwalk, 640 Fed.Appx. 462, 468 (6th Cir. 2016) (citations omitted). In other words, constitutional standing, mootness, and other jurisprudential doctrines apply to declaratory relief actions. Cooper v. Rapp, 702 Fed.Appx. 328, 333 (6th Cir. 2017) (noting that declaratory relief is limited by abstention doctrines and Article III 's case-or-controversy requirement).

         The mootness doctrine requires that there be a live case or controversy at the time the district court decides the case. Sullivan v. Benningfield,920 F.3d 401, 410 (6th Cir. 2019); Cleveland Branch, N.A.A.CP. v. City of Parma,263 F.3d 513, 530 (6th Cir. 2001) (“A federal court has no authority to render a decision upon moot questions or to declare rules of law that cannot affect the matter at issue.”). If events occur that “deprive the court of its ability to give meaningful relief, then the case is moot and must be dismissed.” Sullivan, 920 F.3d at 410 (quoting Ailor v. City of Maynardville,368 F.3d 587, 596 (6th Cir. 2004) (internal quotation marks omitted)). “The test for mootness is whether the relief sought would, if granted, make a ...

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