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holding that judges in state domestic relations proceedings were absolutely immune from suit for money damages in case where the plaintiff alleged they deprived him of his constitutional rights during those proceedings
Summary of this case from Steele v. SteeleOpinion
Case No. C2-01-528
March 26, 2002
OPINION AND ORDER
As originally filed, this case named as defendants Plaintiff's ex-wife, Dawn M. Sterling, her attorney, Sandra W. Davis, an Ohio Common Pleas Court Domestic Relations Magistrate, Kevin J. Trotter, and the county in which he sits, Fairfield County, Ohio, as well as its Sheriff and other county officers and "John and Jane Does yet to be named." The Amended Complaint adds as defendants a retired Ohio Common Pleas Judge, Charles Knapp, and the county where he has allegedly been appointed to sit on further proceedings in the Sterlings' original divorce case, Muskingum County, Ohio, as well as that county's Sheriff and other county officers.
In the introductory paragraph of the Amended Complaint, Plaintiff states that the action is brought:
. . . to obtain redress for the deprivation and conspiracy to deprive Plaintiff of his federally protected rights, and corresponding Ohio State Constitutional rights, . . . and for intentional infliction of emotional distress, defamation, negligence, violation of substantive, and procedure (sic) due process, Title 42 U.S.C. § 1986, 1985, 1983.
The Amended Complaint contains seven separate counts, as to each of which the Plaintiff seeks $75,000 in compensatory damages and an additional $100,000 in punitive damages. Plaintiff also generally seeks an injunction requiring dismissal of a domestic violence case against him in Fairfield County, Ohio, and that defendants, their agents, servants or employees be restrained from harassing, intimidating or threatening him.
It is far from clear from whom these damages are sought, but it appears that Count I may apply only to the two counties mentioned, that Count V may apply only to the two judicial officers and, perhaps, their two counties of appointment, and that Count VI may apply only to Plaintiff's former wife and her attorney.
The Amended Complaint contains over four pages of factual allegations in some 38 single-spaced paragraphs. From these it is clear that this case has entirely to do with four related civil proceedings, all filed in the Domestic Relations Division of one Ohio Court of Common Pleas or another and each having Plaintiff Gary Brent Sterling and Defendant Dawn M. Sterling as parties. Those cases are Muskingum County Case No. 99-0893 (the Sterling's 1999 divorce proceeding filed by Mr. Sterling); Muskingum County Case No. DA2001-0026 (Petition for a Domestic Violence Civil Protection Order , filed Jan. 11, 2001 by Ms Sterling); Fairfield County Case No. 01-DR-32 (a second Petition for a Domestic Violence Civil Protection Order, filed Jan. 19, 2001 by Ms Sterling); and Muskingum County Case No. DH2001-0085 (Petition for a Domestic Violence Civil Protection Order, filed Jan. 29, 2001 by Mr. Sterling, in which Ms Sterling later also filed a petition on March 12, 2001).
Defendant Kevin Trotter is named a defendant based on his alleged actions as a Magistrate in, or in connection with, Fairfield County Case No. 01-DR-32. Amd. Comp. ¶¶ 4, 20, 23-31, 35-37, 40-47. Defendant Charles Knapp is named as a defendant based on his alleged actions in, or in connection with, Muskingum County Case No. DA99-0983. Amd. Comp. ¶¶ 9, 48-49. Defendants Dawn Sterling and her attorney Sandra Davis are named defendants based on alleged actions in, or in connection with, the four domestic relations cases named above. Amd. Comp. ¶¶ 5, 6, 13-18, 21-22, 39, 75-76.
It appears from Plaintiff's assertions on the second page of his Brief in Support of Plaintiff's Motion for Temporary Restraining Order (Doc. 21) that Judge Knapp is now assigned to both Case No. DA99-0893 and Case No. DH2001-0085, which the Muskingum County court has recently considered together.
This case is now before the Court on the motion of defendants Magistrate Trotter, Judge Knapp, Fairfield County, and Muskingum County to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted. Doc. 16. Additionally, Judge Knapp has filed a separate motion pursuant to Rules 12(b)(1) and (6), Fed.R.Civ.P., for dismissal with prejudice of all claims against him (Doc. 22), which the Court will consider in conjunction with the earlier, joint motion, since Plaintiff has had an opportunity to respond to both and has done so. Doc. 27. Also before the Court at this time is Defendant Sandra Davis' Motion for Summary Judgment. Doc. 30. In considering these motions, the Court will also examine the various claims included in Plaintiff's Amended Complaint to determine the nature and extent of federal jurisdiction.
As a court of limited jurisdiction, a federal court has a duty to examine questions of jurisdiction sua sponte where appropriate. See Anderson v. Charter Township of Ypsilanti, 71 F. Supp.2d 730, 733 (E.D. Mich. 1999) (citing Miclifer v. Nimishillen Tuscarawas Ry. Co., 13 F.3d 184, 189 (6th Cir. 1993)).
Plaintiff asserts this Court has jurisdiction under 28 U.S.C. § 1331 (civil actions arising under the Constitution, laws or treaties of the United States) and § 1343 (certain types of civil rights actions). Amd. Comp. ¶ 2 The Court agrees that, superficially at least, Counts III, IV, V, and possibly Counts I and VII might fit the jurisdiction granted by those statutes. It is also clear, however, that Counts II (intentional infliction of emotional distress) and VI (defamation), at most, state only state law claims of which the Court would have only supplemental jurisdiction under 28 U.S.C. § 1367, if it otherwise has original jurisdiction. On initial examination, the Court concludes that even a reasonably careful reading of several of the federal counts shows they are fatally deficient. The Court will first discuss the federal counts in order, after which it will rule as necessary on the two counts that make claims under state law.
COUNT I
Count I of the Amended Complaint claims that "Defendants" (presumably, Fairfield and Muskingum Counties and their two named sheriffs, Dave Phalen and Bob Stevenson, respectively) breeched their duty "to properly hire, train, and supervise, and securing (sic) personnel to respect the Constitutional rights of the Plaintiff." Amd. Comp. ¶ 51. Although it is possible under certain circumstances for counties to be held liable under 42 U.S.C. § 1983 for their officers' violation of constitutional rights, liability may not be imposed merely on a theory of respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). For liability to attach to the counties here Plaintiff would have to show (1) that the counties pursued an official custom or policy of failing to adequately train, supervise, or discipline their officers and (2) that such policy or custom was adopted by official makers of policy with "deliberate indifference" to the constitutional rights of persons affected by the policy or custom. Haverstick Enterprises Inc. v. Financial Federal Credit, Inc., 32 F.3d 989, 996 n. 8 (6th Cir. 1994) (citing City of Canton v. Harris, 489 U.S. 378, 387-88 (1989)).
Each of the counties is named as a party together with its sheriff, who is identified as that county's "executive officer." Amd. Comp., ¶¶ 7, 9. In view of this form of pleading and the lack of any other specific allegations against the two named sheriffs, the action is properly treated as being against the two governmental entities, rather that as against the two individuals. See Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989); Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21 (1991)).
Plaintiff titles this count "NEGLIGENCE"; but because he elsewhere relies generally on the federal Constitution and civil rights statutes (Amd. Comp. ¶ 2), the Court will assume he also means to allege violation of federal constitutional rights by the counties.
In this case, there is no possibility Plaintiff can make such a showing, because the two judicial officers in question are not county officers. The Domestic Relations Division of an Ohio Court of Common Pleas "is not a segment of county government, but an arm of the state for purposes of section 1983 liability and Eleventh Amendment immunity analysis." Mumford v. Basinski, 105 F.3d 264, 269 (6th Cir. 1997). In any event, the actions of the judicial officers alleged here would not provide a basis under Monel standards for imposing monetary damages liability upon their counties of jurisdiction, if they were county officers. See Johnson v. Turner, 125 F.3d 324, 335-36 (6th Cir. 1997). It is therefore clear that the "negligence allegations" of Count I here fail to state a federal claim upon which this Court could grant relief of any kind against the counties or their sheriffs.
COUNT III
Plaintiff's Count III expressly relies on 42 U.S.C. § 1983.
To state a claim under § 1983, the plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.
Leach, 891 F.2d at 1244 (quoting West v. Atkins, 487 U.S. 42, 48 (1988), citations omitted). The two defendants named in Count III are Magistrate Trotter and Judge Knapp. Plaintiff alleges that they acted under color of state law in denying various of his constitutional rights in conducting the state domestic relations proceedings referred to in earlier paragraphs. Amd. Comp. ¶¶ 58-61. As noted above, these two defendants have moved to be dismissed, contending that the complaint fails to state a claim upon which relief can granted against them, because of their judicial immunity in the circumstances alleged.
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Mann v. Conlin, 22 F.3d 100, 103 (6th Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). This Court concludes that is the case here insofar as Plaintiff's claims for money damages against the two judicial officers are concerned, because of their absolute judicial immunity.
. . . . A judge performing his judicial functions is absolutely immune from suit seeking money damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per curiam); Mann v. Conlin, 22 F.3d 100, 103 (6th Cir. 1994). Judicial immunity is available to judges presiding over courts of both general and limited jurisdiction. King v. Love, 766 F.2d 962, 966 (6th Cir. 1985). Immunity is available even if a judge acts erroneously, corruptly, of in excess of his jurisdiction. Mireles, 502 U.S. at 11-12; King, 766 F.2d at 965. One who acts as the judge's designee, and who carries out a function for which the judge is immune, is likewise protected. Bush v. Ranch, 38 F.3d 842, 847 (6th Cir. 1994). . . .
Johnson at 333 (parallel citations omitted) (applying rule to judge and juvenile court referees). There are two recognized exceptions to this immunity from money damages: (1) where the judge acts in a non-judicial capacity; and (2) where the judge acts in complete absence of all jurisdiction. Ibid., citing Mireles at 11-12; Mann at 103. The Court finds that neither of these exceptions applies to either of the judicial officers' actions alleged in the Amended Complaint here. So far as appears from the pleadings, each was acting in a judicial capacity and within the basic jurisdiction of his judicial office.
Plaintiff also seeks injunctive relief, and judicial immunity is not a bar to granting such relief in a proper case. However, another doctrine is applicable in the circumstances of this case. In Mann, our circuit affirmed dismissal of a 42 U.S.C. § 1983 action in a similar case against a state domestic relations judge, on grounds that judicial immunity barred the damages claim and that the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), required the federal court to abstain from granting equitable relief.
. . . . Although "judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity," Pulliam v. Allen, 466 U.S. 522, 541-42 (1984), a federal court should abstain from hearing challenges to a state's exercise of its jurisdiction in civil cases if the state's interest is so important that exercising federal jurisdiction would disrupt the comity between federal and state courts. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987).
Mann, 22 F.3d at 105 (parallel citations omitted).
Quoting Nilsson v. Rupert Bronson Chicarelli Co. 888 F.2d 452, 454 (6th Cir. 1989), the Mann court stated the rule as follows:
A federal court should abstain whenever it determines "(1) that state proceeding are pending; (2) that the state proceedings involve an important state interest; and (3) that the state proceedings will afford the plaintiff an adequate opportunity to raise his constitutional claims."
Mann at 105. Here, it is clear that the state domestic relations proceedings were pending at the time this case was filed, which satisfies the first criteria for Younger abstention. Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir. 1995). Further, our circuit has held that such proceedings do involve paramount state interests and therefore qualify under the second Younger test. Id. at 420 (citing Ankenbrandt v. Richards, 504 U.S. 712 (1992)). Finally, in Kelm, a case that involved both parties and issues similar to this one, the Sixth Circuit concluded that the Ohio courts do provide an adequate forum for such plaintiff's constitutional claims and that the third criterion for Younger abstention was also satisfied. For the same reasons, this Court concludes that such criteria are similarly satisfied here.
Because it appears our circuit also holds that § 1983 damage claims may not properly be dismissed on abstention grounds (see Kelm at 421, citing Litteral v. Bach, 869 F.2d 297, 298 (6th Cir. 1989)), the Court must examine whether Plaintiff here has stated any such viable damage claims under that section. For reasons explained above, it is clear that he has not done so with respect to Magistrate Trotter and Judge Knapp or their respective counties. Thus, only Defendants Dawn Sterling and her counsel Sandra Davis remain as possible subjects for damage claims in Count III, although the Court notes it is not entirely clear those two are actually complained of in that count. See Amd. Comp. ¶¶ 59-62.
In general, neither litigants nor their counsel are "state actors" for purposes of stating a viable § 1983 claim merely because they are making use of the state's courts and or its laws. See, e.g., McDougald v. Jensen, 786 F.2d 1465, 1488-89 (11th Cir. 1986); Kelm at 421-22; Dahlberg v. Becker, 748 F.2d 85, 90-93 (2nd Cir. 1984); Miller v. Compton, 122 F.3d 1094, 97-98 (8th Cir. 1997). Based on such cases as Dennis v. Sparks, 449 U.S. 24 (1980), and Tower v. Glover, 467 U.S. 914 (1984), however, courts recognize an exception to the general rule where it is alleged that either private litigants or their counsel have acted in concert with state officials, even ones who may themselves be immune, to deprive a plaintiff of United States constitutional or statutory rights. See, e.g., Stone v. Holzberger, 807 F. Supp. 1325, 1349 (S.D. Oh. 1992); Worrall v. Irwin, 890 F. Supp. 696, 704-05 (S.D. Oh. 1994). Count III does not allege such action, but Plaintiff's Count IV does make the bare allegation of a conspiracy among Defendants Trotter, Davis, Sterling, Knapp, and others unknown (¶ 65), which, theoretically at least, might support a § 1983 claim under this exception. In this case, for the reasons explained below, the Court concludes that such allegation, and any other possibly applicable allegations of the Amended Complaint, are plainly insufficient to do so.
It is well settled that a complaint containing only "conclusory allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss." Leon v. Murphy, 988 F.2d 303, 311 (2nd Cir. 1993). The failure to allege overt acts by conspirators in furtherance of conspiracy, Leon, 988 F.2d at 311, or to allege any acts indicating the existence of a conspiracy, will warrant the dismissal of a claim alleging a conspiracy to violate civil rights. See Polur v. Raffe, 912 F.2d 52, 56 (2dn Cir. 1990, cert. denied, 499 U.S. 499 U.S. 937, . . . (1991).
Federico v. Board of Education of Public Schools, 955 F. Supp. 194, 201 (S.D.N.Y. 1997) (parallel and further citations omitted); see Crabtree by Crabtree v. Muchmore, 904 F.2d 1475, 1476 (10th Cir. 1990). Further, "merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge." Dennis v. Sparks, 449 U.S. at 28. Mere passive acquiescence to a court order does not suffice to establish the existence of a conspiracy. See Lintz v. Skipsky, 807 F. Supp. 1299, 1307-08 (W.D. Mich. 1992), aff'd, 25 F.3d 304 (6th Cir. 1994).
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), all well-pleaded allegations must be taken as true and be construed most favorably toward the nonmovant. Schuer v. Rhodes, 416 U.S. 232, 236 (1974); Mayer v. Mylod, 988 F.2d 635, 637 (6th Cir. 1993). On the other hand, while a court may not grant a Rule 12(b)(6) motion based on mere disbelief of a complaint's factual allegations, Lawler v. Marshall, 898 F.2d 1196, 1199 (6th Cir. 1990), the court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Because Plaintiff is proceeding pro Se, the Court also must employ less stringent standards than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, "[e]ven under the notice pleading of the Federal Rules of Civil Procedure and the liberal interpretation given to pro se pleadings, a complaint must include allegations respecting all material elements of all claims asserted; bare legal conclusions attached to narrated facts will not suffice." McCrum v. Elkhart County Dept. of Public Welfare, 806 F. Supp. 203, 207 (N.D.Ind. 1992) (citing Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991) and Strauss v. Chicago, 760 F.2d 765, 768 (7th Cir. 1985)). To the same effect, see Caldwell v. District of Columbia, 901 F. Supp. 7, 9 (D.D.C. 1995) (citing Henthorn v. Department of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994)).
Although not a case involving pro se pleadings, it appears clear from Lillard v. Shelby County Board of Education, 76 F.3d 716 (6th Cir. 1996), that our circuit follows essentially the same rule.
. . . . This court has held, in the context of a civil rights claim, that conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under section 1983. Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir 1986). "Some factual basis for such claims must be set forth in the pleadings." Id.
Lillard at 726. "It is not enough," said the Chapman court "for a complaint under § 1983 to contain mere conclusory allegations of unconstitutional conduct by persons acting under color of state law." 808 F.3d at 465. "[W]e are required to accept only well pleaded facts as true, L'Orange v. Medical Protective Co., 394 F.2d 57 (6th Cir. [1968]), not the legal conclusions that may be alleged or that may be drawn from the pleaded facts." Ibid., quoting Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 1971).
Chapman was decided before the Supreme Court's decision in Leatherman v. Tarrant Co. Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993), which rejects a heightened pleading requirement for civil rights claims against governmental entities (where immunity principles have no application). As at least four circuit courts have since noted, however, Leatherman involved a municipal defendant, and the Court expressly did not consider whether its "qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." ( 507 U.S. 167). See Kimberlin v. Quinlin, 6 F.3d 789, 794 (D.C. Cir. 1993) (vacated on other grounds, 515 U.S. 321 (1995)); Jordan by Jordan v. Jackson, 15 F.3d 333, 340 (4th Cir. 1994); Richardson v. Oldham, 12 F.3d 1373, 1380 (5th Cir. 1994); Branch v. Tunnell, 14 F.3d 449, 456 (9th Cir. 1994). In Kimberlin, the D.C. Circuit concluded that "because the [Supreme] Court did not address heightened pleading in individual capacity suits, our precedent requiring that standard in such suits remains the governing law of this circuit." 6 F.3d 794, n. 9. Similarly, Chapman apparently continues to be the Sixth Circuit's governing law in individual capacity cases.
For two reasons, the Court concludes that this rule is particularly apposite in this case. First, the Court's jurisdiction turns upon determination of this issue, for if there is no conspiracy involving Defendants Sterling and/or Davis and at least one of the two state judicial officers, then there is no state actor against whom the Plaintiff can proceed under § 1983. As the Third Circuit pointed out in Darr v. Wolfe, 767 F.2d 79, 81 (1985):
. . . Moreover, allegations against a judge supplying the necessary state action in a civil rights suit under § 1983 should be especially specific in order that purely private action may not be converted into state action merely by including the judge as a defendant in the action.
Second, acceptance of such conclusory allegations risks unwarranted involvement of the judicial officer as a witness in discovery and perhaps trial, even though he can not be made a defendant because of judicial immunity. Thus, one of the purposes of such immunity — freedom from unwarranted involvement in burdensome legal proceedings — would be impaired, if not defeated. See discussion relative to official immunity in Mitchell v. Forsyth, 105 U.S. 525-26 (1985).
Even if the Court gives Count III the most liberal interpretation to be accorded pro se pleadings and considers that count as incorporating not only all previous allegations but also those following in later counts (such as Count IV's conspiracy allegation), the Court finds there are insufficient allegations of action under color of state law to support a claim under 42 U.S.C. § 1983. The factual allegations of the various defendants actions, even if all proved, would not be sufficient to submit the question of a conspiracy involving either judicial officer and one of the other defendants to a jury. The Court therefore concludes that Count III fails to state a claim upon which it could grant relief.
Because dismissal of this count as to Defendants Sterling and Davis would be sua sponte, neither of those defendants having filed a motion to dismiss, the Court considers that it is required to give Plaintiff an opportunity to amend his pleadings or otherwise respond to the ruling, as well as to give such defendants an opportunity to respond to whatever Plaintiff may do. See Tingler v. Marshall, 716 F.2d 1109, 1111-12 (6th Cir. 1983); Catz v. Chalker, 142 F.3d 279, 286 (6th Cir. 1998); see also Darr at 81; Branum v. Clark, 927 F.2d 698, 705 (2nd Cir. 1991). As a Pennsylvania district court did in similar circumstances in Humphrey v. Court of Common Pleas of York County, 640 F. Supp. 1239, 1244 (M.D. Pa. 1986), this Court will advise Mr. Sterling that his pleadings are subject to the provisions of Rule 11 of the Federal Rules of Civil Procedure, for violation of which it is possible that he could be subject to imposition of sanctions by the Court.
As particularly pertinent here, that by submitting pleadings, a party is certifying that to the best of his "knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, — [the pleading} is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needlessly increase the cost of litigation. . . [and that] the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(1) and (4).
COUNT IV
In Count IV, Plaintiff alleges a conspiracy among Defendants Trotter, Davis, Sterling, Knapp, and unknown others to deprive Plaintiff of equal protection and privileges and immunities under law, in violation of 42 U.S.C. § 1985. To invoke the protection of Section 1985, however, a plaintiff must show "the conspiracy was motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus[.]'" Haverstick Enterprises Inc. at 994 (quoting United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 829 (1983). As was the case in Pravda, cited in the footnote below, Plaintiff here "has not alleged any racial or other traditionally cognizable class based discriminatory animus. In fact, Plaintiff does not make any allegations in his complaint that could conceivably be construed to support these claims." 956 F. Supp. 180-81. The circuits appear in general agreement that this situation warrants dismissal for failure to state an actionable claim. See Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975); Gleason v. McBride, 869 F.2d 688, 695, (2nd Cir. 1989); Carchman v. Korman Corp., 594 F.2d 354 (3rd Cir. 1979); Rogers v. Tolson, 582 F.2d 315, 317 (4th Cir. 1978); Ohio Inns, Inc. v. Nye, 542 F.2d 673 (6th Cir. 1976); Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973); Wilhelm v. Continental Tire Co., 720 F.2d 1173, 1176 (10th Cir. 1983); see also Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985).
Both the Supreme Court and the Sixth Circuit were specifically referring to the provisions of Section 1985(3), and Plaintiff may argue here that he seeks to rely on the second clause of Section 1985(2); but courts generally agree that the second clause of Section 1985(2) carries the same pleading requirement as Section 1985(3). See Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975); Herrmann v. Moore, 576 F.2d 453, 457-58 (2nd Cir. 1978); Pravda v. City of Albany. N.Y., 956 F. Supp. 174, 180 (N.D.N.Y. 1997) ("It is well settled that a plaintiff attempting to establish a claim under 42 U.S.C. § 1985 (2), clause 2, or § 1985(3), must demonstrate that the defendant under consideration acted with class-based invidiously discriminatory animus.")
Some courts apparently require that a pro se plaintiff such as Mr. Sterling be given an opportunity to amend to remedy such defect. See Mian v. Donaldson, Lufkin Jenrette Securities, 7 F.3d 1085, 1088 (2nd Cir. 1993); Estes-El v. Town of Indian Lake, 954 F. Supp. 527, 532 (N.D.N.Y. 1997); Darr, 767 F.2d at 81. Although the Court has not found that to be the necessary rule in this circuit (Cf. Haverstick Enterprises Inc. v. Financial Federal Credit, Inc., 803 F. Supp. 1251, 1259-60, (E.D.Mich. 1994), (aff'd, Haverstock Enterprises, 32 F.3d 989, supra)), and other courts have already rejected proposed § 1985(3) classes made up of divorced fathers engaged in custody disputes (see Humphrey v. Court of Common Pleas of York County, 640 F. Supp. 1239, 1243 (M.D.Pa. 1986)) and pro se plaintiffs (see Eitel v. Holland, 787 F.2d 995, 1000 (5th Cir. 1986)), the only two classes in which it appears Plaintiff here might claim membership for § 1985 purposes, Plaintiff will, for the reasons discussed above, also be given the opportunity to amend this count..
COUNT V
In Count V, Plaintiff also claims violation of 42 U.S.C. § 1986 by Magistrate Trotter and Judge Knapp for not carrying out their sworn duties to protect him. It is clear, however, that a valid claim can be stated under § 1986 only if the complaint states a valid claim under § 1985. See Haverstick Enterprises, 32 F.3d at 994 (citing Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir. 1980)); Mian, 7 F.3d at 1088; McCalden v. California Library Assoc., 955 F.2d 1214, (9th Cir. 1990). Like Count IV, Count V therefore also fails to state a claim upon which this Court can grant relief. Furthermore, because the two judicial officers are absolutely immune from Plaintiff's damage claims and, for reasons discussed above, Court is abstaining from consideration any claims for equitable relief, there is no reason to grant leave to amend this count.
COUNT VII
Plaintiff's Count VII does not expressly rely for jurisdiction on any specific statutory provision, but Plaintiff complains that the defendants' improper and malicious actions are an attempt to punish him because he is representing himself, thereby depriving him of rights "guaranteed by the First Amendment of the United States Constitution." Amd. Comp., ¶ 81. As noted above, courts have already rejected the idea that either pro se or divorced father plaintiffs constitute a class whose members may invoke the protections of §§ 1985 and 1986. Because Plaintiff does not have a cause of action under the First Amendment or the Constitution directly, his Count VII would have to proceed under 42 U.S.C. § 1983. See Henderson v. Corrections Corp. of America, 918 F. Supp. 204, 208-209 (E.D. Tenn. 1996) (citing Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), citing Thomas v. Shipka, 818 F.2d 496, 499 (6th Cir. 1987)). However, for reasons discussed above in connection with Count III, the Court concludes that Plaintiff can not proceed on this count under § 1983, either. Count VII should therefore also be dismissed for failure to state a claim upon which relief can be granted with leave to amend.
Vacated on other grounds, 872 F.2d 772, 773 (1989).
COUNTS II and VI
Having ruled for the reasons stated above that all federal claims should be dismissed, this Court will decline to exercise whatever supplemental jurisdiction it may have to entertain Plaintiff's state law claims in Count II (Intentional Infliction of Emotional Distress) and Count VI (Defamation) unless Plaintiff can successfully amend his complaint. 28 U.S.C. § 1367 (c); see Landfleld v. Marion General Hospital Inc., 994 F.2d 1178, 1182 (6th Cir. 1992)(Generally, if federal claims are dismissed before trial, state law claims should be dismissed as well. Citing Taylor v. First of America Bank-Wayne, 973 F.2d 1284 (6th Cir. 1992) and United Mine Workers v. Gibbs, 383 U.S. 715 (1966)).
As with any claims for equitable relief under Counts III, IV, V, and VII, the Court expresses no opinion about the adequacy of these counts to state claims upon which relief could be granted under state law. It is simply that it would be at the least anomalous in a case where the Court bases dismissal of some federal claims on abstention doctrine then to exercise discretionary supplemental jurisdiction under § 1367(c) to hear other, purely state claims.
Consistent with the above, the Court makes the following rulings:
The motion to dismiss of Defendants Fairfield County and Muskingum County, including their respective sheriffs Dave Phalen and Bob Stevenson, (Doc. 16) is GRANTED with prejudice as to Counts I, III, IV, V, and VII of the Amended Complaint;
The motions to dismiss of Defendants Magistrate Trotter and Judge Knapp (Docs. 16 and 22) are GRANTED with prejudice as to damages claims in Counts I, III, IV, V, and VII of the Amended Complaint and without prejudice as to equitable claims under Counts III, IV, V, and VII, since state court proceedings are not completed.
On the Court's own motion, Defendants Sterling and Davis are DISMISSED with prejudice as to Counts I and V and without prejudice as to Counts III, IV, and VII;
The Court declines to exercise its discretionary supplemental jurisdiction over the state law claims in Counts II and VI, and the remainder of the Amended Complaint (Doc. 7) is DISMISSED without prejudice.
Plaintiff may, within twenty days of the date of this order, seek leave to amend Counts III, IV, and/or VII of the present Amended Complaint to set forth, if possible, sufficient factual allegations to support claims upon which this Court could grant relief under 42 U.S.C. § 1983 and/or § 1985 against one or more of the defendants not dismissed with prejudice herein. Plaintiff is reminded that he may subject himself to sanctions under Rule 11 if any such amendments are lacking in evidential support or are found to be filed for improper purpose.
In view of the above rulings, Defendant Davis' pending Motion for Summary Judgment (Doc. 30) is DENIED as moot.
IT IS SO ORDERED.