CaSe: 1214-CV-00943-S.]D-KLL DOC #Z 5 Filed: 02/09/15 Page: l Of 9 PAGE|D #Z 23 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DOUGLAS Pl-llLLlP BUSH, Case No. l:l4-cv-943 Plaintiff Dlott, .l. vs. Litl504 U.S. 25" date_filed="1992-05-04" court="SCOTUS" case_name="Denton v. Hernandez">504 U.S. 25, 31 (1992) (quoting Nel`lzke v. Wi[fiam.s', 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in CaSe: 1214-CV-00943-S.]D-KLL DOC #Z 5 Filed: O2/09/15 Page: 2 Of 9 PAGE|D #Z 24 forma pauperis complaint if they are satisfied that the action is frivolous or malicious lei; see also 28 U.S.C. §§ 1915(e)(2)(l3)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or laW. Nez`lzke v. Wi`llicmis, 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">490 U.S. 319, 328-29 (1989)', see also Lowler v. Marshall, 898 F.2d 1196, l 198 (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. Nei'tzke, 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">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.2cl at l 199. The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing a complaint for frivolousness Hi'll v. Lappin, 630 F.3d 468, 471 (6tl'1 Cir. 2010) (quoting Nei`fzke, 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">490 U.S. at 328). Congress also has authorized the sun 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) and l915A(b)(l). A complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyei'S.” Erickson v. Pardns, 551 U.S. 89" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gomble, 429 U.S. 97" date_filed="1976-11-30" court="SCOTUS" case_name="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.”’ Ashero# v_ lqbol, 556 U.S. 662" date_filed="2009-05-18" court="SCOTUS" case_name="Ashcroft v. Iqbal">556 U.S. 662, 678 (2009) (quoting Bell Aflonll`c Cor'p. v. Twonib[y, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 (“dismissal standard articulated in Iqbo] and Twombly governs dismissals for failure to state a claim” under §§ 1915A(b)(l) and 1915(e)(2)(B)(ii)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the CaSe: 1214-CV-00943-S.]D-KLL DOC #Z 5 Filed: O2/09/15 Page: 3 Of 9 PAGE|D #Z 25 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” lqbol, 556 U.S. 662" date_filed="2009-05-18" court="SCOTUS" case_name="Ashcroft v. Iqbal">556 U.S. at 678 (citing Two)nbly, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. 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.” Twonib]y, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. at 555 (quoting Poposon v. A!lai`n, 478 U.S. 265" date_filed="1986-07-01" court="SCOTUS" case_name="Papasan v. Allain">478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual allegations,” it must provide "more than an unadorned, the-defendant-unlawfully-hai'med-me accusation.” [qbol, 556 U.S. at 678 (citing Twombly, 550 U.S. 544" date_filed="2007-05-21" court="SCOTUS" case_name="Bell Atlantic Corp. v. Twombly">550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation ofthe 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." lot at 557. Tlie complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Eri`ckson, 551 U.S. 89" date_filed="2007-06-04" court="SCOTUS" case_name="Erickson v. Pardus">551 U.S. at 93 (citations omitted). Plaintiff, who is proceeding pro se, brings this action against the following defendants: the United States Court of Appeals for the Sixth Circuit; Sixth Circuit judges Alice Batchelder, .ludge Cole and Judge Guy; and Judge Forester. (See Doc. 1, at PAGEID#: l, 3), Construing the complaint liberally, and after taking judicial notice of two Sixth Circuit cases cited by plaintiffin the caption of his complaint (i'.e., Case Nos. 10-2566 and 13-1818),l it appears that plaintiff is complaining about the following rulings that were made in the two cases: (1) in Case No. 10- 2566, the denial on September 12, 2011 of plaintiffs Rule 60(b) motion to reopen a habeas proceeding challenging a 2001 l\/Iichigan conviction, which was construed as a second/successive petition for a writ of habeas corpus under 28 U.S.C. § 2254; and (2) in Case l This Court "may take judicial notice ol`proceedings in other courts ofrecord.” Rodi`c v. Thi`siledown lincng Cl'iib, [ne., 615 F_2d 736, 738 (6th Cir. 1980) (quoting Grnno'der v. Pub."."c Bank, 417 F.2d 75" date_filed="1969-10-15" court="6th Cir." case_name="Harry Granader In His Individual Capacities of His Separarte Businesses v. Public Bank">417 F.2d 75, 82-83 (6th Cir. 1969)). L.».) CaSe: 1214-CV-00943-S.]D-KLL DOC #Z 5 Filed: O2/09/15 Page: 4 Of 9 PAGE|D #Z 26 No. 13-1818, the denial on November 25, 2013 of plaintiff s motion for an order authorizing the district court, which had transferred the case to the Sixtli Circuit, to consider a successive habeas corpus petition challenging the same Michigan conviction ln Case No. 10-2566, Judges Cole and Forester were on the three-judge panel that denied plaintist Rule 60(b) motion, and in Case No. 13-1818, Judges Guy and Cole were on the panel that denied plaintiff permission to file a successive habeas petition. ln the complaint, plaintiff claims that he was denied due process, equal protection and "access to the courts” because the judges (l) "`[r]efused to accept claims as true, unless or until proven not true”; (2) "[r]efused to engage and assess each of the 8 issues presented and supported by court documents”; (3) “[i]ssued blanket denials”; and (4) failed to adequately review his Rule 60(b) motion (See Doc. 1, at PAGEID#: 4). Plaintiff also generally asserts a claim of “retaliation” for exercising his constitutional rights (See io’. ). As relief, plaintiff seeks “summary judgment” and a "`civil ruling,” as weil as 820,000,000 in “general damages"' and $5,000,000 in “punitive damages.” (]o’., at PAGEID#: 5). Plaintiff’s complaint is subject to dismissal at the screening stage. As an initial matter, to the extent that plaintiff seeks to bring an action against the United States Court of Appeals for the Sixth Circuit, his claim must fail. As another lower court within the Sixth Circuit recently reasoned in an analogous case brought against a federal district court1 The United States enjoys absolute sovereign immunity from suit except to the extent to which it has waived such imiriunity. ln Bi`vens v. Si`x Unknown Feo’. Norcoli`cs Agents, 403 U.S. 388" date_filed="1971-06-21" court="SCOTUS" case_name="Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics">403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreine Court found that the Fourth Arnendment constituted a waiver of sovereign immunity in actions against federal officers sued in their individual capacities Bi`vens has not, however7 been expanded to include actions against the United States itself, or against federal agencies, including the federal courts. . . . Accordingly, Bi`vens provides no basis for raising constitutional claims against the United States, the United States District Court, or the “federal legal system.” CaSe: 1214-CV-OO943-S.]D-KLL DOC #Z 5 Filed: O2/O9/15 Page: 5 Ol 9 PAGE|D #Z 27 Worcl v. U.S. Disl_ Cour/_for the Wesrern Di'sf. QfTenn., No. l4-2707-T-DKV, 2015 WL 137204, at *1 (W.D. Tenn. Jan. 8, 2015).2 Fui‘thermore_, to the extent plaintiff brings Bi'vens claims against four federal judges, it is well-settled that j udicial officers are generally absolutely immune from civil suits for money damages Bri'gl’zl v. Gnlli'o Cn!y., Ohi`o, 753 F.3d 639" date_filed="2014-06-03" court="6th Cir." case_name="Robert Bright v. Gallia Cnty., Ohio">753 F.3d 639, 648-49 (6th Cir. 2014) (citing Bo'rnes v. anchell, 105 F.3d llll, 1115 (6th Cir. 1997), in turn citing Mireles v. Woco, 502 U.S. 9" date_filed="1991-10-21" court="SCOTUS" case_name="Mireles v. Waco">502 U.S. 9, 9 (1991) (per curiam); Forresler v. Whi`te, 484 U.S. 219" date_filed="1988-01-12" court="SCOTUS" case_name="Forrester v. White">484 U.S. 219 (1988); Stnmp v. Sporkmon, 435 U.S. 349" date_filed="1978-06-05" court="SCOTUS" case_name="Stump v. Sparkman">435 U.S. 349 (1978)), peti'rionfor cerl.filecl, Nos. 14-877, 14A465 (U.S. lan. 16_ 2015). ln the Sixth Circuit, absolute immunity against federal judges extends to requests for injunctive and others forms of equitable reliefas well as to claims of damages Warcl, supro, 2015 WL 137204, at *l (citing Kipen v. Lowson, 57 F. App’x 691" date_filed="2003-03-13" court="6th Cir." case_name="Kipen v. Lawson">57 F. App’x 691, 691 (6th Cir. 2003); Nen.»'some v. Merz, 17 F. App’x 343" date_filed="2001-08-21" court="6th Cir." case_name="Newsome v. Merz">17 F. App’x 343, 345 (6th Cir. 2001 )) (disinissing on screening a prisoner complaint against a federal district court for the alleged violation of the plaintiffs civil rights during a suppression hearirlg); See also Arnolcl v. Greeley, No. 2:l4cv58, 2014 WL 1878914, at *2 (W.D. l\/lich. l\/Iay 12, 2014); Dirncan v. The Dep'l ofJustz`ee, No. 2:07-10164, 2007 Wh 1584198, at ”‘3 (E.D. Mich. l\/lay 31, 2007). This far-reaching protection was not adopted “for the protection or benefit ofa malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” Pierson v. Roy, 386 U.S. 547" date_filed="1967-04-11" court="SCOTUS" case_name="Pierson v. Ray">386 U.S. 547, 554 (1967) (internal citation and quotation marks omitted); see also Barnes, 105 F.3d at 1115 (quoting Aniolne v. Byei-‘s & Anderson, lnc., 508 U.S. 429" date_filed="1993-06-07" court="SCOTUS" case_name="Antoine v. Byers & Anderson, Inc.">508 U.S. 429, 435 (1993)) (“The 2 ln Waro', the district court also found no “`alternative basis” for the exercise ofjurisdiction over the United States. Wnrd, supra, 20l5 WL 137204, at *2. ln so finding, the court reasoned that even ifthe claims against the district court could be construed as arising under the Federal Tort Claims Act, “judicial immunity” would apply to bar review ofany such claim. See ."cl. 5 CaSe: 1214-CV-OO943-S.]D-KLL DOC #Z 5 Filed: O2/O9/15 Page: 6 Ol 9 PAGE|D #Z 28 doctrine of judicial immunity is justified ‘by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability.”"). Given the “strong policy justifications for the doctrine,” absolute judicial immunity can be overcome only when the plaintiffs claims are based on (1) non-judicial actions, such as administrative acts unrelated to judicial proceedings; or (2) “actions, though judicial in nature, [that are] taken in the complete absence of jurisdiction.” Bri'ghl, 753 F.3d 639" date_filed="2014-06-03" court="6th Cir." case_name="Robert Bright v. Gallia Cnty., Ohio">753 F.3d at 649 (quoting Mfreles, 502 U.S. 9" date_filed="1991-10-21" court="SCOTUS" case_name="Mireles v. Waco">502 U.S. at 1 1-12). The Supreme Court has held that “whether an act . . . is a ‘judicial’ one relate[s] to the nature of the act itself_, i`. e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Mi`reles, 502 U.S. 9" date_filed="1991-10-21" court="SCOTUS" case_name="Mireles v. Waco">502 U.S. at 12 (quoting anrnp, 435 U.S. 349" date_filed="1978-06-05" court="SCOTUS" case_name="Stump v. Sparkman">435 U.S. at 362). Absence ofjurisdiction refers to the lack of subject matter jurisdiction See, e.g., Brodley v. Fi'sher, 80 U.S. 335" date_filed="1872-04-18" court="SCOTUS" case_name="Bradley v. Fisher">80 U.S. 335, 351-52 (1871) (distinguishing “excess of jurisdiction” from “the clear absence of all jurisdiction over the subject-matter”); Bright, 753 F.3d 639" date_filed="2014-06-03" court="6th Cir." case_name="Robert Bright v. Gallia Cnty., Ohio">753 F.3d at 649 (quoting Hollowoy v. Brush, 220 F.3d 767" date_filed="2000-07-31" court="6th Cir." case_name="Sammye R. Holloway v. Sally Brush Clermont County, Ohio">220 F.3d 767, 773 (6th Cir. 2000) (en banc), and Bcirnes, 105 F.3d at l 122) (“[o]nly in the absence of subject matter jurisdiction are judicial actors devoid of the shield of immunity,” whereas “[g]enerally, where a court has some subject matter jurisdiction there is sufficient jurisdiction for immunity purposes”). Therefore, as the Supreme Court has also made clear, the immunity offered judicial officers in the performance of judicial duties is not overcome by allegations that they acted in “bad faith,” maliciously, corruptly or even “in excess of . . . authority.” See Mi`reles,502 U.S. at 1 1, 13 (and Supreme Court cases cited therein); see also Bri`ght, 753 F.3d 639" date_filed="2014-06-03" court="6th Cir." case_name="Robert Bright v. Gallia Cnty., Ohio">753 F.3d at 649-50 (citing Si‘ern v. Masci`o, 262 F.3d 600" date_filed="2001-08-24" court="6th Cir." case_name="Stephen M. Stern and Christopher D. Becker v. John J. Mascio">262 F.3d 600, 607 (6th Cir. 2001)) (holding that the district court erred in denying CaSe: 1214-CV-OO943-S.]D-KLL DOC #Z 5 Filed: O2/O9/15 Page: 7 Ol 9 PAGE|D #Z 29 absolute judicial immunity to the defendant judge with subject matter jurisdiction over the underlying criminal proceedings, who had engaged in actions that “were petty, unethicalJ and unworthy of his office”). ln the instant case, plaintiff s claims which are based solely on actions taken by the judges in ruling on his motions in Sixth Circuit Case Nos. 10-2566 and 13-1818, clearly pertain to the performance of tasks that were judicial in nature. Furthermore, plaintiffs allegations do not even remotely suggest that the judges lacked subject matter jurisdiction over those matters lndeed, in affirming on appeal the district court’s denial of plaintiffs Rule 60(b) motion in Case No. 10-2566, and denying plaintiffs motion in Case No. 13-1818 requesting authorization for the district court to consider a successive habeas petition, the Sixth Circuit judges acted within the scope of their official duties as judges and clearly had jurisdictional authority to preside over those matters This action is, tlierefore, appropriately subject to summary dismissal at the screening stage for failure to state a claim upon which relief may be granted by this Court. Cf Metzenl)arnn v, Nugenr, 55 F. App’x 729" date_filed="2003-02-03" court="6th Cir." case_name="Metzenbaum v. Nugent">55 F. App’x 729, 730 (6th Cir. 2003) (affirming sara sponte dismissal of complaint because the complaint brought against a judge entitled to “absolute judicial immunity"` was “unsubstantial and absolutely devoid of merit”); Forbash v. Zales/ci`, 20 F. App’x 481" date_filed="2001-09-26" court="6th Cir." case_name="Forbush v. Zaleski">20 F. App’x 481, 482 (6th Cir. 2001) (same)', see also Bush v. Rorncn, 38 F.3d 842" date_filed="1994-10-26" court="6th Cir." case_name="Charlene Bush, Wife John Bush, Husband v. David Rauch D. Brad Campbell, Individually and Officially">38 F.3d 842, 847-48 (6th Cir. 1994)) (dismissing civil rights complaint for damages brought against federal judicial employees, including the clerks of court for the Sixth Circuit and a Kentucky district court); Gregory v. United States, No. 12-2693-STA-T1\/IP, 2013 WL 3874752, at *6 (W.D. Tenn. .luly 25, 2013) (saa sponte dismissing complaint brought against a federal district court judge who refused to recuse himself CaSe: 1214-CV-OO943-S.]D-KLL DOC #Z 5 Filed: O2/O9/15 Page: 8 Ol 9 PAGE|D #Z 30 from a case and “issued unfavorable orders” in that case); Thomas v. Arinslrong, No. 3:08cv229, 2008 WL 474065, at *2 (N.D. Ohio Feb. 19, 2008) (summarily dismissing complaint brought against a United States Magistrate ludge for issuing “sham legal process” when she signed a warrant for the plaintiffs arrest). Accordingly, in sum, the complaint should be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because plaintiff has failed to state a claim upon which relief may be granted IT IS THEREFORE RECOMMENDED TI-IAT: l. The plaintiffs complaint (Doc, 1) be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 2. The Court certify pursuant to 28 U.S.C. § 191 5(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiffleave to appeal informer pauperis See MeGore v. Wrigglesworrh, 114 F.3d 601" date_filed="1997-06-11" court="6th Cir." case_name="Darryl McGore v. Gene L. Wrigglesworth, Chief Sheriff Richard Chinelli, Administrator Ingham County Sheriff's Department">114 F.3d 601 (6th Cir. 1997). leeg;,gn nexengage Karen L. Litkovitz United States l\/lagistrate ludgeU CaSe: 1214-CV-OO943-S.]D-KLL DOC #Z 5 Filed: O2/O9/15 Page: 9 Ol 9 PAGE|D #Z 31 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION DOUGLAS PHILLIP BUSH. Case No. 1:14-cv-943 Plaintiff, Dlott, J. vs Litkovitz, l\/l..l . JUDGE ALICE BACTHELDER, et al., Defendants. NOTICE Pursuarit to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served with a copy thereof That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections A party shall respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy of those objections Failure to make objections in accordance with this procedure may forfeit rights on appeal See Thoinas v. Arn. 474 U.S. 140" date_filed="1986-01-27" court="SCOTUS" case_name="Thomas v. Arn">474 U.S. 140 (1985); United Stortes v, Walters, 638 F.2d 947" date_filed="1981-01-20" court="6th Cir." case_name="United States v. W. R. Walters, United States of America v. Two Hundred Sixty-Two Firearms">638 F.2d 947 (6th Cir. 1981). cbc