Duwe v. Montgomery
3:25-cv-00099
| S.D. Ohio | Jun 30, 2025Background
- Plaintiff Johnny Lee Duwe filed suit against Judge Mary E. Montgomery (Montgomery County, Ohio), Prosecuting Attorney Mathias H. Heck, Jr., and Assistant Prosecutor Jenifer Buschur, all in their official capacities, regarding a pending state criminal case.
- Duwe had been indicted for unlawful possession of a firearm in a liquor permit premises; he has never appeared to enter a plea in the criminal case.
- Defendants moved to dismiss under Fed.R.Civ.P. 12(b)(5) (insufficient service) and 12(b)(6) (failure to state a claim).
- The Magistrate Judge recommended dismissal for insufficient service, making the other grounds moot.
- Duwe, currently incarcerated, challenged the sufficiency of service rules, requested U.S. Marshal service, and sought injunctive relief against the state prosecution.
- The District Court overruled his objections, dismissed the action without prejudice, and denied injunctive relief based on abstention doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of service of process | Actual notice is enough; spouse's service should be sufficient; marshal should serve due to incarceration | Service by spouse noncompliant with local rules; move to dismiss under 12(b)(5) | Service was insufficient; dismissal without prejudice and no order to marshal. |
| Flexibility in procedural rules | Houston v. Lack requires flexibility for prisoners; strict service rules create unconstitutional barriers | Local rule is valid and provides accountability; no Houston violation | Strict compliance is required; no due process violation found. |
| Injunctive relief against state proceedings | Injunctive relief should issue to halt pending criminal case | Federal courts should abstain per Younger v. Harris | Younger abstention applies; injunctive relief denied. |
| Alleged judicial bias | Magistrate's tone shows bias; leniency to defendants on deadlines | Defendants followed rules; extension given to plaintiff by court | No bias found; language in report not prejudicial under Liteky. |
Key Cases Cited
- Gerber v. Riordan, 649 F.3d 514 (6th Cir. 2011) (actual notice and general appearance discussed in the context of service of process)
- Murphy Bros., Inc. v. Michetti Pipe Stringing, 526 U.S. 344 (U.S. 1999) (service must precede obligation to respond to complaint)
- Houston v. Lack, 487 U.S. 266 (U.S. 1988) (prisoner’s filing considered filed when delivered to prison officials)
- Younger v. Harris, 401 U.S. 37 (U.S. 1971) (federal courts abstain from interfering with ongoing state criminal prosecutions)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (explaining standard for judicial recusal based on bias or prejudice)