Easterling v. State

• Decision Date: 16 August 2013
• Docket Number: Case No. 3:13-cv-024
• Citation: Easterling v. State, Case No. 3:13-cv-024 (S.D. Ohio Aug 16, 2013)
• Parties: WARREN EASTERLING, Petitioner, v. STATE OF OHIO, Respondent.
• Court: U.S. District Court — Southern District of Ohio

WARREN EASTERLING, Petitioner,

v.STATE OF OHIO, Respondent.

Case No. 3:13-cv-024

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

August 16, 2013

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Warren Easterling brought this mandamus action pro se to obtain permanent injunctive relief against the enforcement of Ohio's vexatious litigator statute, Ohio Revised Code § 2323.52 (the "Statute"), on the grounds it violates a number of his federal constitutional rights. The case is before the Court on Petitioner's Amended Motion for Permanent Injunction (Doc. No. 27) and Respondent's Motion to Dismiss the Amended Complaint (Doc. No. 32). Easterling has responded with what he labels a Motion to Overrule, (Doc. No. 35).

This is one of several cases filed by Easterling in this Court attempting to obtain relief from operation of the Statute. Prior (3:12-cv-300) and subsequent (3:13-cv-106) cases have been dismissed on grounds of judicial or sovereign immunity or under the Rooker-Feldman doctrine. It appears, however, that with the substitution of Attorney General Mike DeWine as the sole Respondent, the controversy is structured to permit a decision on the merits. Easterling has himself been declared a vexatious litigator by the Common Pleas Court of Greene County in Case No. 2010 CV 1267 (Order, Exhibit 1 to Doc. No. 4). Respondent does not contestEasterling's standing to challenge the statute and the Court finds there is a constitutionally adequate case or controversy between the parties.

The Allegedly Offending Statute

The Statute is set out in full in the Appendix. Briefly, it enables an Ohio Common Pleas Court, on suit of a person or the chief legal officer of a number of political entities, to declare a person a "vexatious litigator." Once that declaration is made, the person thus designated must obtain leave of court before taking various acts in litigation, including instituting legal proceedings. Leave is not to be granted unless the court finds that "the proceedings or application are not an abuse of process and that there are reasonable grounds for the proceedings or application." Ohio Revised Code § 2323.52(F)(1).

Plaintiff's Claims of Unconstitutionality

Petitioner does not state any statutory or common law basis for his case. However, since all his claims assert he is being deprived of federal constitutional rights by the State of Ohio, the case is properly seen as arising under 42 U.S.C. § 1983 which provides a private right of action for persons with claims of this nature.

In Count One of the Amended Complaint, Easterling asserts that the Statute violates the Supremacy Clause of the United States Constitution (Art. VI, Cl. 2) by "undermin[ing] or limit[ing] the reach of the 5th and 14th amendments" by somehow leaving the State of Ohio free to comply with federal law in some cases and defy it in others. (Proposed Amended Complaint, Doc. No. 30,PageID 239.)

In Count Two Easterling asserts the Statute violates the principles of federalism embodied in the Tenth Amendment. Id. at PageID 241. In Count Three he claims the Statute violates 42 U.S.C. § 1985 by depriving persons of rights or privileges granted to citizens of the United States.

In Count Four Easterling asserts the Statute violates the Due Process Clause of the Fourteenth Amendment in a number of ways. First Easterling asserts "[t]he requirement to seek leave of court to enjoy ones [sic] constitutionally granted rights and the potential of being denied the same based on a court order born from a state statute is a direct violation of the rights granted in the Fourteenth Amendment of the U.S. Constitution . . . by giving state court judges 'the opportunity to exterminate legitimate claims based solely on the judges [sic] opinion of whether it is an abuse of process or groundless."' Id. at PageID 243. The screening mechanism is alleged to be vague. Id. at 244. Although the Statute provides that leave will be granted even to a person classified as a vexatious litigator if he or she can show injury, damages, and a legal basis, Easterling projects that judges will exceed their authority and decide on the basis of whether he or she likes the case or the party against whom it is brought. Id. at PageID 244.

Easterling continues Count Four by asserting the State has no compelling need for the Statute which would in any event be "secondary to the intent of Congress." Id. at 246. Attorneys, including prosecutors, are alleged to file many baseless lawsuits so that the Statute discriminates against pro se litigants unfairly. Id. at PageID 247. The definitions of the Statute are alleged to be vague and ambiguous. Finally, Easterling asserts it violates the law of standing to allow a person who was not a party to the case in which someone was declared a vexatious litigator to rely on that designation. Id. at PageID 250.

In Count Five Easterling alleges the Statute violates the Privileges and Immunities and Equal Protection Clauses by discriminating against pro se litigants. Id. at PageID 252-53. Count Six asserts the Statute violates the incorporation doctrine. Id. at PageID 254. Count Seven again raises Easterling's claim that third parties should not be able to use a vexatious litigator designation obtained by another person. Id. at PageID 254-56.

Count Eight alleges the Statute violates rights to due process and free access to the courts. Id. at PageID 256-60. The statute is said to impose cruel and unusual punishment. Id. In Count Nine the Statute is alleged to violate the Case or Controversy Clause of Article III by allowing reliance on a vexatious litigator designation by third parties. Id. at 260-62.

The Pending Motions

Based on the claims made in the Amended Complaint, Petitioner seeks preliminary and permanent injunctive relief against enforcement of the vexatious litigator statute, "requiring the respondent to repeal the same." Id. at PageID 262 and Doc. No. 27.

Respondent seeks dismissal of the Amended Complaint in its entirety, asserting that it fails to state a claim upon which relief can be granted (Motion, Doc. No. 32, PageID 279).

Standard of Review

For a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6)

Respondent's Motion is made under Fed. R. Civ. P. 12(b)(6). "The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it isnot a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1356 at 294 (1990); see also Gex v. Toys "R" Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the Supreme Court:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(" Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 (quoting Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii 1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161 L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation) ("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase").

Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), specifically disapproving of the proposition that "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"); see also Association of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all areas of federal law and not just in the antitrust context in which it was announced.

For purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232 (1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir. 1990). A pro se litigant is entitled to liberal construction of his or her pleadings. Haines v. Kerner, 404 U.S. 519 (1972); ...