NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1276n.06
No. 12-3335
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT MARK R. W EL L MAN; GI NA S. WEL L MAN, Plaintiffs-Appellants,

v. PNC BA NK, a subsidiary o f The PNC Financ ial Service s Group, I nc., a Pennsy lvania Corporation, succe ssor to National City Mortg ag e Co.; P. RANDAL L KNECE, i ndividually and in his officia l capa city as t he J udg e of Pickaway County , Ohio, Common Pleas Court; PETER B. AB EL E, indiv i dually and in his officia l capa city as a J udg e of the Four th Distri ct C ourt of Appea ls for Pickaway Cou n ty , O h io ; RO GER L

. KL I NE, individually and in his officia l capa city as a J udg e of the Fo u rth District Court of Appeals for Pi ckaw ay County , Ohio; WI L L I AM H. HARSHA, individual l y and in his officia l capa city

as a J udg e of the Fourth District Court of Appea ls for Pickaway County , Ohio; MATTHEW W. MCFARL AND, individually and in his officia l capa city as a J udg e of the Four

th District C ourt of Appea ls for Pickaway County , Ohio; PI CKAWAY COUNTY, OHI O, Def

endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U N IT E D S T A T E S DIS T R IC T COURT FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: KETHL EDGE a nd WHI TE, Circuit J udg es; L UDI NGTON , District J udg e. *

PER CURI AM. Mark and Gina Wellman appea l the distri ct court’s dismiss al of their complaint filed under

42 U.S.C. § 1983 for failure to state a c laim. We AFF I RM.

The Honora

ble Thomas L

. L udington, United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 12-3335

W ellman, et al. v. PNC Bank, e t al. The Wellmans’ complaint arose out of a fore closure action i n s tate court in which the Wellmans, as m ortg ag ors, were the defe ndants. I n t h eir present complaint, the W ellmans alleg ed the fo l l o wing fac ts, which we acc ept as true: National City Mortg ag e Company (NCMC) beg an fore closure proce eding s ag ainst the Wellmans in the Pickaway County Court of Common Pleas in
1996 and ag ain in 2002. The Wellmans and NCMC “attempted to enter i n t o ” a settlement forbe ara nce ag ree ment in 2003. NCMC filed a motion to enfor ce the ag ree ment, and afte r a fiftee nminute hear ing, the co m m o n pleas court g rante d NCMC’s motion and dismiss ed the Wellmans’
counter claim. NCMC alleg edly “per petra ted willful and malicious fra ud” in the motion proce eding by prese nting a copy of the settlement forbe ara nce ag ree ment that was not validly executed and by submitt ing a false aff

idavit from i ts vice president. The W ellmans wer e unaware that the balance claimed by NCMC in the settlement forbe ara nce ag ree ment was arbitra rily inflated when they signe d the ag ree ment, and they discovere d that NCMC had falsified the amount due when they obtained the
pay ment history for their acc ount in 2004. Acc ording to the Wellman s , NC M C d i d not own the mortg ag e when it filed the fore closure action in 2002, as NCMC had assig ned the mortg ag e in 1995 and did not obtain rea ssignment until 2007. The Wellmans claim NCMC then improperly prepa red that assig nment purporting to be eff ec t i v e as of Marc h 5, 2002. The Pickaway County Court of
Common Pleas and the Four th District Court of Appea ls alleg edly ignor ed NCMC’s fra ud by simply enfor cing the settlement for bear ance ag ree ment. Seeking compensa tory and punit ive damage s pursuant to § 1983, the Wellmans filed t heir complaint ag ainst PNC B ank, the succe ssor to N CMC; Pickaway County Court of Common Pleas
J udg e P. Randall Knec e, in his individual a nd officia l c apac ities; F ourth District Court of Appea ls
J udg es Peter B. Abele, Roge r L

. Kline, Wil liam H. Har sha, and Matthew W. McF arla nd, in their

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W ellman, et al. v. PNC Bank, e t al. individual and officia l capa cities; and Pickaway County (collec tively , Def endants). The Wellmans claimed that Def

endan ts violated their rig hts to due proce ss and equal protec tion under the
Four teenth Amendment in connec tion with the fore closure action. Def endants moved to dismiss the Wellmans’ compl aint for failure to state a claim pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6), and the district court g rante d the motion. This ti mely appea l followed.
We revie w de novo a distric t co u rt ’s dismiss al of a complaint for failure to state a claim.
McG lone v. Bell , 681 F.3d 718, 731 (6th Cir. 2012)

. “To survive a motion to dismiss , a complaint
must contain sufficie nt fac tual matter, acc epted as true, to ‘state a claim to relief that is plausible on its fac e.’ ” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). The district court held that PNC was entitled to dismiss al beca use it was not a state actor for
purposes of § 1983. “A § 1983 claim must satisfy two elements: 1) the d ep ri v at i o n of a rig ht

secur ed by the Constit ution or laws of the United States and 2) the depriva tio n was cause d by a
person acting under color of state law.” Tahfs v. Proctor , 316 F.3d 584, 590 (6th Cir. 2003) (citation omitted ). The Wellmans contend on appea l that PNC conspired with the state-c ourt judge s, rende ring it liable under § 1983. “I f a private party has conspired wi t h s tate officia ls to violate constit u t i o n al rig hts, then that party qualifies as a state actor and may be held liable pursuant to § 1983

. . . .” Cooper v. Parrish , 203 F.3d 937, 952 n.2 ( 6th Cir. 2000). But “merely resor ting to the courts and being on the winning side of a lawsu i t d o es not make a party a co-c onspirator or a joint actor with the judge .” Denn i s v. S p a r ks , 449 U.S. 24, 28 (1980). Rather, to plead a § 1983 conspirac y , t h e W el l mans must alleg e that: “(1) a si ng le pl an ex isted, (2) the conspirator s share d

a conspirator ial objective to deprive the plaintiffs of their constitutional rig hts, and (3) an overt act
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W ellman, et al. v. PNC Bank, e t al.

was committed.” Rev is v. Meldrum , 489 F.3d 273, 290 (6th Cir. 2007). As the district court

corr ectly held, the Wellmans failed to plead the exis tence of a co n s p i ra cy betwee n PNC and the
state-c ourt judg es eve n in a conc lusory fashion. The district court dismiss ed the state-c ourt judge s based on absolute judicial immunit y . A 1 judge perf

orming judicial functions i s absolutely immune from sui t s ee king monetary relief , even if ac ting e rrone ously , maliciously , or in excess of the judg e’s a uthority

. See M

ireles v. W

aco , 502
U.S. 9, 9–10 (1991) (p er cu ri am ); S t ump v. Sparkman , 435 U.S. 349, 356 (1978). A judge is not immune i n t wo ci rc u m s t ance s: (1) when t he judge acts in a nonjudi cial capac ity , or (2) when the judge acts in the c omplete abse nce of all jurisdiction. Mireles , 502 U.S. a t 11–12. The Wellmans
arg ue that the state-c ourt judge s acte d in the absenc e of jurisdiction b ec au se the fore closure complaint was void ab initio due to the invalid retroa ctive assig nment of the mortg ag e. A judge acts in the complete absenc e of all jurisdiction only if the matter upo n wh i ch t h e j udg e acts is clea rly outside the subject matter of the court over which the judge presides. Stern v. Mascio , 262 F.3d 600,
607–08 (6th Cir. 2001). The Ohio co u rt s of common pleas have “orig inal jurisdiction in all civil

case s in which the sum or matter in dispute exceeds the exclusive orig inal j u ri s diction of county courts,” including fore closure actions. Ohio Rev. Code § 2305.01; see Ohio Const. art. I V, § 4(B ); Buck ma n v. Go l d

b latt , 314 N.E.2d 188, 189 (Ohio Ct. App. 1974). Ohio county courts have exclusive or igina l jur isdiction for the re cover y of sums not e x cee ding five hundred dollars in c ivil actions, Ohio Rev. Code § 1907.03(A) , an d t h e Wellmans do not claim that the state-c ourt

The district court dismiss ed J udg e Har sha beca use he did not sit on the appellate panel that 1 aff irmed the judg ment of fore closure. On appea l, the Wellmans do not a ddress the district court’s ruling with respe ct t o J udg e Harsh a and have theref ore abandone d the i ssue. See United States v. Johnson , 440 F.3d 832, 845–46 ( 6th Cir. 2006). -4-No. 12-3335

W ellman, et al. v. PNC Bank, e t al. fore closure action involved a sum that would have vested exclusive jurisdiction in the county court.
L ack of standing to bring a fore closure action does not deprive the common pleas court of subjectmatter jurisdiction. See W ash. Mut. B a nk, F.A. v. W allace , 957 N.E.2d 92, 100 (Ohio Ct. App. 2011). The Ohio courts of appea ls have jurisdiction over appea ls from Ohio’s inferior courts. Ohio
Const. art. I V, § 3(B )(2) ; Ohio Rev. Code § 2501.02. Be cause the fore closure action and the appea l

wer e within the subject-matter jurisdiction of their courts, th e d i strict court proper ly held that the
state-c ourt judg es we re e ntitled to absolute judicial imm unity

. The district court held that Pickaway County cannot be held liable for the actions of the statecourt judge s. Counties cannot be held liable under § 1983 based on responde at superior; rathe r, “liability only attache s wher e a custom, policy , or prac tice at t ri butable to the [county ] was the ‘moving forc e’ behind the violation of the plaintiff’s c onstitut ional rig hts.” Hey erman v. Cnty. of Calhoun , 680 F.3d 642, 647–48 (6th Cir. 2012) (citation omitted). The Wellmans arg ue on appea l that the state-c ourt judge s, acting in the absenc e of jurisdiction, car

ried out an unconstitutional policy

an d that their actions as policy maker s rende red Pickaway County liable under § 1 9 8 3

. S u ch alleg ations are absent from t h ei r co m plaint, which fails to mention any policy or policy making authority

. Moreove r, the Wellmans fail to identify the purported county poli cy u n d erly ing the judge s’ actions, and they cite no authority for the proposition that Ohio state-c ourt judge s are county policy maker s. As the district court corr ec t l y o b s erved, state-c ourt judge s are members of an independe nt br anch of the Ohio g overnme nt. Acc ording ly , the district court proper ly held that the Wellmans failed to state a § 1983 c laim ag ainst Pickaway County

. For the fore g oing r easons, we AFF I RM the district court’s judg ment.

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