IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HARRY WILLIAM LOTT,

Plaintiff,

vs. Civil Action 2:12-cv-1089

Judge Sargus

Magistrate Judge King

MARIETTA MUNICIPAL COURT,

et al.,

Defendants.

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff’s motion for leave to proceed without prepayment of

fees or costs, Doc. No. 1, is GRANTED. All judicial officers who

render services in this action shall do so as if the costs had been

prepaid. However, having performed the initial screen of the

Complaint required by 28 U.S.C. § 1915(e), the Court recommends that

this action be dismissed for lack of subject matter jurisdiction and

for failure to state a claim for relief.

Plaintiff, who is proceeding without the assistance of counsel,

claims that he was denied his constitutional rights when his demand

for a jury trial in the Marietta Municipal Court on a charge of

speeding was denied by Judge Janet Dyar Welch. The Complaint asks

that the prosecution of the traffic matter be enjoined and that

plaintiff be awarded monetary damages. Named as defendants are the

Marietta Municipal Court and Judge Welch.

An Ohio municipal court is a component of state government and is

therefore insulated from private federal court litigation by the

Eleventh Amendment. See Pucci v. Nineteenth Dist. Court, 628 F.3d 752

(6th Cir. 2010). See also Smith v. Leis, 407 Fed. Appx. 918, 932 n. 10

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(6th Cir. 2011). This Court therefore lacks jurisdiction to entertain

plaintiff’s claim against the defendant Municipal Court.

Moreover, plaintiff’s claims against the defendant judge for

injunctive and monetary relief cannot proceed. Federal courts

generally may not enjoin or stay on-going state court proceedings. 

Younger v. Harris, 401 U.S. 37 (1971). If plaintiff concludes that

error has occurred in those state court proceedings, his proper remedy

is to pursue an appeal from those proceedings – even to the United

States Supreme Court. See 28 U.S.C. § 1257.

Judges are absolutely immune from liability for damages arising

out of the performance of their judicial functions. Mireles v. Waco,

502 U.S. 9, 9-10 (1991); Stump v. Sparkman, 435 U.S. 349, 355-56

(1978); Pierson v. Ray, 396 U.S. 547, 553-54 (1967). Whether a

judge’s action is judicial for purposes of immunity turns on “whether

the function in question is a ‘truly judicial act []’ or an act []

that simply happen[s] to have been done by judges.’” Sparks v.

Character and Fitness Committee of Kentucky, 859 F.2d 428 (6th Cir.

1988)(quoting Forrester v. White, 484 U.S. 219 (1988)). The

determination whether a party has a right to a jury trial is a

judicial function; defendant Judge Welch is therefore immune from

plaintiff’s claim for damages.

It is therefore RECOMMENDED that this action be dismissed for

lack of subject matter jurisdiction and for failure to state a claim

upon which relief can be granted.

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If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and of the right to appeal the

decision of the District Court adopting the Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

November 29, 2012

Date

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