Deters v. Schweikert

• Decision Date: 06 May 2019
• Docket Number: Case No. 1:19-cv-0024
• Parties: ERIC C. DETERS Plaintiff, v. MARK SCHWEIKERT, Defendant
• Court: U.S. District Court — Southern District of Ohio

ERIC C. DETERS Plaintiff, v. MARK SCHWEIKERT, Defendant

Case No. 1:19-cv-0024

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

May 6, 2019

Dlott, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

I. Factual and Procedural Background

Plaintiff Eric Deters, proceeding pro se, initiated this action on January 8, 2019 by filing a 93-page complaint, consisting of 400 numbered paragraphs and supported by 244 pages of attached exhibits.¹ Plaintiff identifies himself as a "retired Ohio attorney who works at Deters Law in many capacities including as a trial consultant and paralegal in the courtroom during hearings and trials." (Doc. 1, Complaint at ¶1). Relevant to his complaint in this case is the fact that Plaintiff is not licensed to practice law for his namesake firm in any state.² Although Plaintiff was permitted to retire from Ohio, he remains under suspension in Kentucky and in this Court.³ See Deters v. Ky. Bar Ass'n.646 Fed. Appx. 468, 470 (6th Cir. 2016) ("Since 2012, Deters has been suspended from the practice of law on multiple occasions for violations of the Kentucky Rules of Professional Conduct, including several instances of dishonesty.... Deters has unsuccessfully challenged the disciplinary process multiple times in both state and federal court.").

The instant case arises in the context of Deters' current employment. Despite his inability to practice law, Deters alleges that he holds a constitutional right to continue to appear before Ohio courts, working for his prior firm as a "trial consultant and paralegal in the courtroom during hearings and trials" in the same cases in which he once practiced as an attorney. (Complaint, Doc. 1 at ¶1). The cases that underly the above-captioned complaint involve Dr. Durrani, a spine surgeon who fled the jurisdiction of this Court during the pendency of criminal proceedings against him, see United States v. Abubakar Atiq Durrani, Case No. 1:13-cr-84, but who continues as a named defendant in hundreds of civil lawsuits pending against him in both state and federal courts. Plaintiff alleges that Deters Law continues to represent "approximately 528 clients... in medical malpractice and fraud lawsuits for unnecessary spine surgeries" against Dr. Durrani and associateddefendants. (Id. at ¶74). Although most of the Durrani cases are presently being litigated in the state courts, some remain in this Court.

In this case, Plaintiff has sued Hamilton County Court of Common Pleas Judge Mark Schweikert as the judicial officer "overseeing the Dr. Durrani cases by special assignment of [Ohio] Chief Justice O'Connor." (Id. at ¶3). Judge Schweikert is named solely in his official capacity. (Id.) Plaintiff and/or Deters Law "and the lawyers assisting Deters Law" have repeatedly attempted to force Judge Schweikert to recuse. (Id. at ¶¶20-21). In fact, Deters Law has filed multiple lawsuits in this federal Court in an attempt to "challeng[e] [Judge] Mark Schweikert's authority to serve, the Ohio recusal process, being unconstitutional and his not properly handling the cases and his attempt to make Durrani Plaintiffs pay over $1 million in advance of costs." (Id. at ¶25, citing Case Nos. 1:18-cv-3452; 1:18-cv-139; 1:18-cv-599; 1:18-cv-699).⁴ Although a few of the referenced cases remain pending, the Sixth Circuit recently affirmed the dismissal of one such case based upon the doctrine of Younger abstention. See Aaron v. O'Connor, Case No. 1:17-cv-846, aff'd at 914 F.3d 1010 (6th Cir. Jan. 30, 2019).

Rather than challenging Judge Schweikert's authority to preside over the state court Durrani proceedings, in the above-captioned case Plaintiff challenges one of Judge Schweikert's rulings. On October 4, 2018, Judge Schweikert filed an order that excludes Deters from further participation in all state court Durrani proceedings, both pretrial and trial, and regardless of the state court judicial officer presiding, "unless leave is otherwise granted." (Doc. 1-1 at 4). The Order states:

It appearing to the Court that Mr. Eric Deters has routinely attended proceedings related to the Durrani Litigation as an associate of the Deters Law Firm; and

It appearing that Mr. Eric Deters and the Attorneys associated with him and the Deters Law Firm have been repeatedly warned about his disruptions in the proceedings and that continued disruptions would result in sanctions; and

It further appearing that on October 3, 2018, during a pretrial on the record in the case of Corry Wright v. Abubakar Atiq Durrani, Case NO. A1402534, Mr. Eric Deters once again caused a physical disruption to the proceedings by his outrageous physical conduct as well as his vocal address to the record without leave or admission further distracting the Court and the other participants in the proceeding.

IT IS THEREFORE ORDERED that Mr. Eric Deters is excluded from attending the proceedings in the Durrani Litigation, whether or not the Court is in session and regardless of which judicial officer is conducting the proceedings, unless leave is otherwise granted, and until further order of the Court.

In addition to Mr. Eric Deters, counsel designated in the case, who are associated with Mr. Eric Deters and the Deters Law Firm shall be responsible for his full compliance herewith. Failure to comply with this order may result in contempt and sanctions therefore.

This order given on the record in chambers before all counsel on October 4, 2018 and personally delivered and served on Frederick Johnson, counsel for the Plaintiff, and ordered to be personally served by Mr. Johnson or Mr. Eric Deters, his associate. Mr. Johnson shall report below on a copy of this order that he has completed this service as directed.

(Id. at 3-4).

Plaintiff alleges that the referenced Order amounts to an unconstitutional and "unfair 'Eric Deters' Rule." (Doc. 1 at ¶2). Borrowing and restating from other cases the Deters Law Firm's numerous allegations of bias and prejudice by Judge Schweikert and Chief Judge Maureen O'Connor (who is not a named defendant in this case), Plaintiff alleges herein that "the Court's sanction was a form of contempt without a hearing, a violation of Deters Law and my right to have a hearing on the contempt." (Id. at ¶24).Plaintiff asserts a constitutional right to appear in state court Durrani proceedings, citing the "open courts" provision of the Ohio Constitution and the Free Speech and Free Press Clauses of the First Amendment to the United States Constitution. (Id. at ¶400). Notwithstanding the length of his complaint, Plaintiff articulates only one claim. (Id. at ¶¶398-400). Thus, in "Count I," Plaintiff seeks "an Order protecting his rights to attend Durrani trials." (Id. at 92). More generally, Plaintiff seeks declaratory and injunctive relief, costs, and attorney's fees based upon "42 U.S.C. § 1983, 28 U.S.C. § 1331, 28 U.S.C. § 1343, the United States Constitution, the Ohio Constitution (Article 1, § 16), and other [unspecified] applicable law." (Id. at ¶5).

Pursuant to local practice, this case has been referred to the undersigned magistrate judge for initial consideration and a report and recommendation on any dispositive motions. This matter is now before the court on cross motions for judgment on the pleadings (Docs. 8, 13) and the parties' responsive memoranda (Docs. 12, 15).⁵ Upon careful consideration of the record in this matter, the undersigned recommends that Plaintiff's 12(c) motion be denied and that Defendant's 12(c) motion be granted.

II. Analysis

A. Standard of Review

A district court reviews a Rule 12(c) motion for judgment on the pleadings under the same standard applicable to a Rule 12(b)(6) motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). Accordingly, "we construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter oflaw." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination rests primarily upon the allegations of the complaint, "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account." Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis omitted).

B. Defendant Judge Schweikert is Entitled to Absolute Immunity for all claims for injunctive relief

Plaintiff seeks relief under 42 U.S.C. § 1983, which prohibits a person who acts "under color of state law" from depriving another of a right or privilege "secured by the Constitution" or laws of the United States. Graham v. National Collegiate Athletic Ass'n, 804 F.2d 953, 957 (6th Cir.1986) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986)). However, the order challenged by Plaintiff here was issued by Judge Schweikert in the performance of his judicial duties. Under the statute and controlling Supreme Court authority, state court judges are afforded absolute immunity from damages for acts they commit while functioning within their judicial capacity. Mireles v. Waco, 502 U.S. 9, 11 (1991); Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). Judges retain absolute immunity from liability even if they act maliciously or corruptly, as long as they are performing judicial acts and have jurisdiction over the subject matter giving rise to the suit against them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); see also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. Love, 766 F.2d 962 (6th Cir. 1985).

Only two exceptions to immunity apply: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not...