UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

STEVE BAYES,

Plaintiff,

 Civil Action 2:12-cv-1104

v. Judge Edmund A. Sargus, Jr.

 Magistrate Judge Elizabeth P. Deavers

SCOTT BELLINGER, et al.,

Defendants.

REPORT AND RECOMMENDATION

 Plaintiff, Steve Bayes, an Ohio resident proceeding without the assistance of counsel,

brings this action against Scott Bellinger, his court-appointed guardian, and Regency Manor, a

privately-owned healthcare center. It appears that Plaintiff is requesting the Court to reverse the

state probate court’s appointment of Mr. Bellinger as a guardian and enjoin Mr. Bellinger from

acting as his guardian. This matter is before the Court for the initial screen of Plaintiff’s

Amended Complaint as required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to

recommend dismissal of Plaintiff’s Complaint, or any portion of it, which 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. 28 U.S.C. § 1915(e)(2). Having performed the initial screen,

for the reasons that follow, the undersigned RECOMMENDS that the Court DISMISS this

action for failure to assert any claim with an arguable basis in law over which this Court has

subject matter jurisdiction. 

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I.

 On March 31, 2013, the Probate Court of Franklin County, Ohio, issued a letter of

authority appointing Defendant Bellinger as Plaintiff’s guardian for an indefinite term.1

Bellinger remains Plaintiff’s guardian. Plaintiff filed the instant action on November 30, 2012. 

As best the Court can discern, Plaintiff alleges that he was unable to attend an unspecified court

hearing in violation of his due process rights because Bellinger told him to come to the wrong

court. He further alleges that Bellinger cared only about getting paid. Plaintiff states he would

“like to appeal [his] guardianship” and seeks injunctive relief against Bellinger. (Compl. 3, ECF

No. 1-2.) 

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

 as part of the

1

Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of Plaintiff’s

state-court proceedings in the Probate Court of Franklin County, Ohio, Case Number 477165,

which are a matter of public record. See Fed. R. Evid. 201(b) and (c) (a court “may take judicial

notice on its own” of facts “not subject to reasonable dispute because it . . . can be accurately and

readily determined from sources whose accuracy can not reasonably be questioned”); Scarso v.

Cuyahoga Cty. Dep’t of Human Serv., 1990 WL 169645, at * 2 (6th Cir. Nov. 2, 1990) (“In

determining the legal efficacy of plaintiff’s complaint, the lower court properly took judicial

notice of facts in the public record, specifically the records of state court proceedings.”)

(citations omitted). 

2

Formerly 28 U.S.C. § 1915(d). 

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statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. See

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). 

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements

set forth in Federal Rule of Civil Procedure 8(a). Under Federal Rule of Civil Procedure 8(a)(2),

a complaint must contain a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although this pleading standard does not require

“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 

Further, a complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss

for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, “a

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complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. In considering whether this facial

plausibility standard is met, a Court must construe the complaint in the light most favorable to

the non-moving party, accept all factual allegations as true, and make reasonable inferences in

favor of the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross &

Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations omitted). The Court is not required,

however, to accept as true mere legal conclusions unsupported by factual allegations. Iqbal, 556

U.S. at 678 (citing Twombly, 550 U.S. at 555). In addition, the Court holds pro se complaints

“‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett v. Belmont

Cnty. Sheriff’s Dep’t, No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting

Haines v. Kerner, 404 U.S. 519, 520 (1972)). 

Further, when the face of the complaint provides no basis for federal jurisdiction, the

Court may dismiss an action as frivolous and for lack of subject matter jurisdiction under both 28

U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3). Williams v. Cincy Urban Apts., No.

1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams,

182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999) (table)).

III.

The undersigned concludes that Plaintiff has failed to assert any claim with an arguable

basis in law over which this Court has subject matter jurisdiction. “‘Federal courts are courts of

limited jurisdiction.’” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). “The basic statutory grants of federal court

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subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for

‘[f]ederal-question’ jurisdiction, and § 1332, which provides for ‘[d]iversity of citizenship

jurisdiction.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). 

A doctrine known as Rooker-Feldman further limits this Court’s jurisdiction to

adjudicate appeals from or collateral attacks on state-court rulings. See Rooker v. Fidelity Trust

Co., 263 U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 476 (1983). “The Rooker-Feldman doctrine embodies the notion that appellate review of

state-court decisions and the validity of state judicial proceedings is limited to the Supreme

Court under 28 U.S.C. § 1257, and thus that federal district courts lack jurisdiction to review

such matters.” In re Cook, 551 F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine

applies to cases “brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Ind. Corp., 544

U.S. 280, 284 (2005). “The pertinent question in determining whether a federal district court is

precluded under the Rooker-Feldman doctrine from exercising subject-matter jurisdiction over a

claim is whether the ‘source of the injury’ upon which plaintiff bases his federal claim is the

state court judgment.” In re Cook, 551 F.3d at 548. 

Applying the foregoing, the undersigned concludes that the Rooker-Feldman doctrine

operates to bar this Court from exercise of jurisdiction over this action. Plaintiff’s

characterization of this action as an appeal of his guardianship, coupled with his request for an

injunction against Mr. Bellinger from serving as his guardian, make clear that the source of his

injury is the state probate court’s appointment and continued retention of Bellinger as his

guardian. See Young v. Murphy, 90 F.3d 1225, 1229–31 (7th Cir. 1996) (holding that the

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Rooker-Feldman doctrine barred consideration of the plaintiff’s due process claim premised

upon his failure to receive adequate notice of the state-court competency hearing, explaining that

the plaintiff’s “injury resulted from the state court judgment of incompetency and not from the

alleged denial of due process”). Accordingly, dismissal of the instant action is recommended. 

See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject matter

jurisdiction, the court must dismiss the action.”); accord Williams v. Cincy Urban Apts., No.

1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010) (citing Carlock v. Williams,

No. 98-5545, 1999 WL 454880, at *2 (6th Cir. June 22, 1999)) (“Where there is no basis for

federal jurisdiction apparent on the face of the complaint a court may dismiss the action as

frivolous and for lack of subject matter jurisdiction . . . .”). 

 IV.

In sum, it is RECOMMENDED that the Court DISMISS Plaintiff’s action pursuant to 

28 U.S.C. § 1915(e)(2)(B) and Rule 12(h)(3) for failure to assert any claims with an arguable

basis in law over which this Court has subject matter jurisdiction. 

 PROCEDURE ON OBJECTIONS

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 in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the 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

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)). 

IT IS SO ORDERED. 

Date: December 27, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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