Steele v. Steele

• Decision Date: 03 July 2012
• Docket Number: Case No. 1:12-cv-439
• Parties: JOHN KEVIN STEELE, Plaintiff, v. KIMBERLY ANN STEELE et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

JOHN KEVIN STEELE, Plaintiff,

v.KIMBERLY ANN STEELE et al., Defendants.

Case No. 1:12-cv-439

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: July 3, 2012

Spiegel, J.

Litkovitz, M.J.

REPORT AND

RECOMMENDATION

Plaintiff, who resides in Butler County, Ohio, has filed a pro se pleading entitled "Verified Complaint for Fraud, Constitutional Violations, and Damages, with Notice and Petition for Warrant of Removal." (See Doc. 1, Complaint). By separate Order issued this date, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of plaintiff's complaint/petition to determine whether the pleading, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

Congress has authorized federal courts to dismiss an in forma pauperis complaint if satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504 U.S. 25, 31 (1992); see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint maybe dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (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. Neitzke, 490U.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.2d at 1199. The Court need not accept as true factual allegations that are "fantastic or delusional" in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).

Congress has also authorized the sua sponte dismissal of complaints which fail to state a claim upon which relief maybe granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii). Although a plaintiff's pro se complaint must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers," the complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted)). The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); see also Hill, 630 F.3d at 470-71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim" under §§ 1915(e)(2)(B)(ii) and 1915A(b)(l)).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing 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." Twombly, 550 U.S. at 555 (quoting 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-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the 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." Id. at 557.

Plaintiff brings this action against his ex-wife, Kimberly Ann Steele; the Commonwealth of Kentucky; the County of Shelby, Kentucky; John David Myles, a Shelby County judge; Stephen K. Mershon, a former Shelby County judge; Gilmore Dutton, an attorney who formerly represented plaintiff's ex-wife; Brian Gowin, an attorney who is currently representing plaintiff's ex-wife; and Martin F. McDonald, a judge who replaced defendant Mershon on the Shelby County court. (See Doc. 1, Complaint, pp. 9-10). The complaint is rambling, but plaintiff essentially challenges actions taken in a divorce proceeding initiated by defendant Kimberly Ann Steele in Shelby County, Kentucky, which resulted in the dissolution of their marriage and the alleged deprivation of his "parental-child relationships." (Id., p. 14). Plaintiff specifically alleges that "Defendant Myles, empowered by Defendant Kentucky and Defendant Shelby County, improperly acted in his judicial function to unilaterally terminate the Petitioner-Plaintiff father's pre-existing custodial rights, arbitrarily naming him as a new 'non-custodial' parent,. . . further attaching a lien of child support upon him, and further depriving him of his residence and also directly interfering with the normal and necessary operations of said family business." (Id.). Plaintiff further alleges that defendant Dutton "affirmatively participate^] in each of the unlawful judicial events" as counsel for plaintiff's ex-wife. (Id., p. 15). Plaintiff states defendant Gowin replaced Dutton as counsel for plaintiff's ex-wife and that defendant Mershon replacedMyles as the judge presiding over the "family court case of now a decade." (Id.). Finally, plaintiff alleges that defendant Mershon "never bothered to submit his oath of office to the proper authorities," and therefore, is not "actually a lawful and properly-valid judge in the entire context of the instant state court matters." (Id.).

Plaintiff avers that although defendant Kimberly Ann Steele resided in Kentucky when she "filed for dissolution in Shelby County, Kentucky, she almost immediately (after receiving 'temporary' custody by initial dissolution filing), within several months later, had already completed apparent prior plans to move to Cincinnati, Ohio." (Id.). Plaintiff claims that "six months later, i.e., several years ago now, all state and federal 'uniform' laws regarding interstate child custody proceedings mandated that any pending family law actions be transferred to the same jurisdiction of the minor children, themselves, which was in Ohio, not Kentucky." (Id.). Plaintiff contends that because he, his ex-wife, and their remaining minor children have resided in Ohio "for quite some time," Kentucky is "no longer authorized to continue any jurisdiction or proceedings over the Steele family" and that the proceedings which have taken place in the Kentucky case these past several years are, therefore, "unlawful" and "void." (Id., pp. 15-17).

Plaintiff alleges that over the course of the years the Shelby County court has subjected him to "severely onerous" child support payment obligations; has implemented "contempt actions including jail time" against him on several occasions without providing him with due process; and has "fraudulently, falsely, arbitrarily and capriciously" awarded his ex-wife with "all appreciable real estate, property, assets and monies, while simultaneously 'awarding' [him] with all of the family debt and virtually and literally nothing of substantive value as to tangible assets or property." (Id., pp. 16-17) (emphasis in original). Plaintiff states that he is bringing thisaction for "instant removal and full complaint for civil damages along with declaratory relief because the "same wholly fraudulent state court, now with yet another new judge who has absolutely no history with this case, has recently set the case for yet another child support hearing, yet still fraudulently attempting to collect VOID child support debt... and once again threatening another imminent and false jailing of Petitioner-Plaintiff, who has been left with nothing for years, had everything literally stolen from him by 'legal' action of this same Shelby County court system." (Id., pp. 17-18) (emphasis in original). Plaintiff states that he is entitled to relief based on claims of gender discrimination, false arrests and wrongful imprisonments, and fraud and theft. (Id., pp. 18-20).

Plaintiff asserts that this Court has jurisdiction over the "cause of action for removal and civil complaint" under the removal provisions set forth in 28 U.S.C. §§ 1443 and 1446(b), as well as under 28 U.S.C. §§1331 and 1367 and 42 U.S.C. § 1983. The undersigned disagrees and finds that the complaint/petition is subject to dismissal for lack of subject matter jurisdiction.

First, the Court lacks jurisdiction over the cause of action to the extent that plaintiff requests that the Shelby County, Kentucky domestic relations case be removed to this Ohio federal district court. 28 U.S.C. § 1443 provides that certain "civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.'''' (Emphasis added).¹ The Kentucky case that plaintiff seeks to remove is obviously not pending inthis Ohio federal judicial district.² Therefore, federal removal statutory provisions do not apply and cannot be invoked by plaintiff for obtaining this Court's jurisdiction over his cause of action.

Second, to the extent that plaintiff seeks to file an original complaint against the defendants for damages and declaratory relief, the Court lacks subject matter jurisdiction to consider plaintiff's claims.

Plaintiff alleges that jurisdiction lies under 28 U.S.C. § 1331, which provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution,...