IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Paul Sinkovitz,

Plaintiff,

v. Case No. 2:17-cv-712

G. Drew Rolston, et al.,

Defendants.

ORDER

This is a pro se action filed by Paul Sinkovitz, a state

inmate, against G. Drew Rolston, an attorney, and Judge Jeffrey

Simmons, a state-court judge. This matter is before the court for

consideration of the magistrate judge’s report and recommendation

(Doc. 3). The magistrate judge conducted an initial screen of

plaintiff’s complaint pursuant to 28 U.S.C. §§1915(e)(2) and 1915A,

and recommended that this action be dismissed pursuant to

§1915(e)(2) for failure to state a claim on which relief may be

granted.

If a party objects within the allotted time to a report and

recommendation, the court “shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. §636(b)(1);

see also Fed. R. Civ. P. 72(b). Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C.

§636(b)(1). On October 3, 2017, plaintiff filed a document

entitled “MOVE FOREWARD [sic] GRANT MY DAY IN COURT” which the

court will construe as an objection to the report and

recommendation.
As the magistrate judge correctly explained, 28 U.S.C.

§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. Grinter v. Knight, 532 F.3d 567, 572

(6th Cir. 2008). Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard. See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.

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

1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6)

construe the complaint in a light most favorable to the plaintiff,

accepting all well-pleaded allegations in the complaint as true,

and determining whether plaintiff undoubtedly can prove no set of

facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

necessary to sustain a recovery under some viable legal theory.” 

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). Conclusory

allegations or legal conclusions masquerading as factual

allegations will not suffice. Id. While the complaint need not

contain detailed factual allegations, the “[f]actual allegations

must be enough to raise the claimed right to relief above the

speculative level” and “state a claim that to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007). Where the facts pleaded do not permit the

2
court to infer more than the mere possibility of misconduct, the

complaint has not shown that the pleader is entitled to relief as

required under Federal Rule of Civil Procedure 8(a)(2). Id.

The magistrate judge noted that plaintiff’s complaint appears

to allege that Judge Simmons presided over a domestic matter in

which plaintiff was a party. Plaintiff alleges in conclusory

fashion that Judge Simmons somehow violated his constitutional

rights. The magistrate judge correctly concluded that plaintiff’s

claim against Judge Simmons is barred by the doctrine of judicial

immunity, which protects judges from suit for acts performed in

their judicial capacities. No facts are alleged in the complaint

which would suggest that this defense would not apply here. The

magistrate judge correctly noted that, although G. Drew Rolston is

named as a defendant, the complaint contains no factual allegations

concerning any acts performed by this defendant. Plaintiff also

refers to RICO (the Racketeer Influenced and Corrupt Organizations

Act) but the complaint contains no factual allegations to support

a claim under RICO. 

In his objection, plaintiff offers no argument as to why the

magistrate judge’s observations were incorrect. Rather, he makes

additional conclusory and nonsensical allegations, and refers to

another attorney who is not named as a defendant in this case. The

court concludes that the magistrate judge did not err in concluding

that the complaint fails to state a claim on which relief may be

granted.

Defendant Rolston has also filed motions to declare plaintiff

a vexatious litigator. However, he has not identified any previous

law suits filed by plaintiff which would support such a finding. 

3
The motions to declare plaintiff a vexatious litigator will be

denied.

In accordance with the foregoing, the court denies plaintiff’s

objection (Doc. 19), and adopts the report and recommendation (Doc.

3). This action is hereby dismissed pursuant to 28 U.S.C.

§1915(e)(2)(B)(ii) for failure to state a claim for which relief

may be granted. The clerk shall enter judgement dismissing this

case. The motions to dismiss filed by defendant Simmons (Doc. 2)

and defendant Rolston (Docs. 7 and 16) are moot. The motions to

declare plaintiff a vexatious litigator (Docs. 6 and 16) are

denied.

Date: October 19, 2017 s/James L. Graham 

 James L. Graham

 United States District Judge

 

4