Bonds v. Barker, CASE NO. 1:18CV1149

Decision Date19 June 2018
Docket NumberCASE NO. 1:18CV1149
PartiesKIMBERLY L. BONDS, Plaintiff, v. PAMELA A. BARKER, et. al, Defendants.
CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

al, Defendants.

CASE NO. 1:18CV1149


June 19, 2018




This matter is before the Court on the Complaint of pro se Plaintiff Kimberly Bonds ("Bonds" or "Plaintiff") (ECF DKT #1) and Plaintiff's Motion for Emergency Temporary Restraining Order (ECF DKT #10).1 Plaintiff also filed a Motion to Proceed in Forma Paupersis (ECF DKT #2), and that Motion is granted.

For the following reasons, this case is dismissed and Plaintiff's Motion for an Emergency Temporary Restraining Order is denied.


On May 18, 2018, Bonds filed a Complaint against Cuyahoga County Common Pleas Court Judge Pamela A. Barker ("Barker"), Cuyahoga County Common Pleas Court Magistrate Judge Paul H. Lucas ("Lucas"), Attorney Benjamin N. Hoen ("Hoen") and Attorney Roy J. Schechter ("Schechter") (collectively, "Defendants"). According to the Complaint, this case originated in the Cuyahoga County Court of Common Pleas where Third Federal Savings and

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Loan Bank ("Third Federal") filed a foreclosure action against Bonds on March 20, 2017 - Case No. CV-17-877564 ("State Case"). Barker was the presiding judge, Lucas was the magistrate judge and Hoen was the attorney of record for Third Federal.

Barker granted summary judgment to Third Federal in the State Case and Bonds appealed to the Eighth District Court of Appeals - CA-18-106746.2 According to the public docket, Schechter and Hoen represented Third Federal in the appeal. On May 15, 2018, the Eighth District Court of Appeals granted Third Federal's motion to dismiss the appeal as moot because the property at issue in the State Case3 was sold and the proceeds distributed and no stay was obtained in the trial court.

The civil cover sheet Bonds filed with the Complaint identifies a related case in the Northern District of Ohio - Case No. 1:17 CV 1932 ("Related Case"). Proceeding pro se and in forma pauperis, Bonds brought the Related Case on September 13, 2017 against Barker, Lucas, Hoen and Third Federal. In that case, Bonds challenged those defendants' actions and decisions in the State Case pursuant to 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e. (see Related Case ECF DKT #8 at 1-2). On February 21, 2018, the Related Case was dismissed pursuant to 28 U.S.C. § 1915(e) because: (1) res judicata barred Bonds from relitigating the validity of her mortgage (id. at 4-5); (2) Hoen and Third Federal are private parties and Bonds did not allege any facts to suggest that they were state actors and subject to suit under § 1983 (id. at 5-6); (3) Barker

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and Lucas are immune from suit under § 1983 (id. at 6-7); and (4) no relief is available under Title VII because employment discrimination was not at issue (id. at 5).

Bonds brings the instant action pursuant to 18 U.S.C. § 472, 473 and 474, which relate to counterfeit obligations and securities. Plaintiff makes no specific factual allegations against any of the Defendants, nor specifies the relief sought. But the crux of the Complaint is that when the State Case was filed, Third Federal did not own the mortgage and note and, therefore, lacked standing to bring a foreclosure action (see ECF DKT # 1 at 6).4 Bonds' Motion for a Temporary Restraining Order asks this Court to stop her eviction from the Property on the grounds that Third Federal lacks standing and "ownership," and "no original wet inked Security Instrument was ever recovered after being requested numerous times[.]" (ECF DKT #10 at 1.)


A. Standard of Review

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982), federal district courts are expressly required under 28 U.S.C. § 1915(e)(2)(B) to screen all in forma pauperis actions and to dismiss before service any such action that is frivolous or malicious, fails to state a claim on which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. The standard for dismissal articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

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(2007) with respect to Fed. R. Civ. P. 12(b)(6) also governs dismissal under § 1915(e)(2)(B)). Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Therefore, in order to survive scrutiny under § 1915(e)(2)(B), a pro se complaint must set forth sufficient factual matter, accepted as true, to state a plausible claim for relief. Anson v. Corr. Corp. of Am., 529 F. App'x 558, 559 (6th Cir. 2013) ("Section 1915(e)(2)(B) authorizes dismissal if the action fails to state a plausible claim for relief or is frivolous.").

B. Analysis

1. Immunity

As an initial matter, Barker and Lucas are the judicial officers that were assigned to the State Case and must be dismissed from this action because they are immune from suit. Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam); King v. McCree, 573 F. App'x 430, 438 (6th Cir. 2014) (same) (citing Mireles, 502 U.S. at 11). Bonds alleges no plausible facts that suggest Baker's and Lucas' actions in the State Case were undertaken outside of their judicial capacity, or that they lacked subject matter jurisdiction over Third Federal's foreclosure action, both of which would operate as an exception to immunity. Mireles, 502 U.S. at 11-12 (1991) (a judge is not immune from liability for nonjudicial actions and for actions taken in the absence of jurisdiction); King, 573 F. App'x at 438 and n.4 (same). Therefore, to the extent that Bonds seeks money damages, Barker and Lucas are immune from suit and are dismissed from this case pursuant to § 1915(e)(2)(B).

2. Res Judicata

Under Fed. R. Civ. P. 8(c), res judicata is an affirmative defense that is waived if not raised in a responsive pleading and courts generally lack the ability to raise that defense sua

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sponte. See Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988). In special circumstances, however, a court may sua sponte raise the issue. Arizona v. California, 530 U.S. 392, 412 (2000). Such a special circumstance occurs when "a court is on notice that the issue presented has been previously decided." Spehar v. City of Mentor, Ohio, No. 1:12-CV-2855, 2013 WL 3190695, at *3 (N.D. Ohio June 21, 2013) (citing Arizona, 530 U.S. at 412) (further citation omitted). Where, as here, "the allegations in the Complaint on their face demonstrate that the action is barred by the affirmative defense, the Court may take notice of the defense and dismiss the action for failure to state a claim upon which relief can be granted." Id. (citing Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012)).

Bonds seeks to relitigate the foreclosure action by claiming that Third Federal lacked standing to bring the State Case because it did not hold the note and mortgage. But Bonds cannot litigate in federal court a matter that she would be barred from litigating again in state court under Ohio law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) ("It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered."); In re Fordu, 201 F.3d 693, 703 (6th Cir. 1999) (same) (citing 28 U.S.C. § 1738; Migra, 465 U.S. at 81) (further citation omitted).

In Ohio, the doctrine of res judicata includes both claim preclusion and issue preclusion. Grava v. Parkman Twp., 73 Ohio St. 3d 379, 381, 653 N.E.2d 226, 228 (1995). Claim preclusion bars "all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Id. 73 Ohio St. 3d at 382, 653 N.E.2d at 229; Carroll v. City of Cleveland, 522 F. App'x 299, 303 (6th Cir. 2013) (same)

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(quoting Grava). Claim preclusion applies if: (1) the subsequent claim arises out of the transaction or occurrence that was the subject matter of a previous action; (2) a prior final, valid decision was rendered on the merits by a court of competent jurisdiction in the first action; (3) the second action involves the same parties, or their privies, as the first; and (4) the second...

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