UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NAJASHI-TEKENU SHABAZZ-EL BEY, Case No. 1:18-cv-81

Plaintiff,

Barrett, J.

vs. Bowman, M.J.

GWEN BENDER, REPORT AND

Defendant. RECOMMENDATION

Plaintiff, a resident of Cincinnati, Ohio and former prisoner at the Hamilton County 

Justice Center,

1 brings this civil rights action against defendant Judge Gwen Bender. By 

separate Order, 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 the complaint to 

determine whether the complaint, 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 Prison Litigation Reform Act of 

1995 § 804, 28 U.S.C. § 1915(e)(2)(B).

In enacting the original in forma pauperis statute, 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.” Denton 

v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). 

To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in 

forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see 

also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the 

 1 When plaintiff initiated this action he was a prisoner at the Hamilton County Justice Center. On March 20, 2018, 

plaintiff filed a notice of change of address, indicating that he is no longer a prisoner. (See Doc. 4). 
2

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, 490 

U.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 also has authorized the sua sponte dismissal of complaints that fail to state a 

claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed 

by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than 

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) 

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, 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 Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); 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 §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“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-
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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. The complaint must “give the defendant fair notice of what the . . . 

claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Plaintiff, who is proceeding pro se, brings this § 1983 action against defendant Judge

Gwen Bender. (See Doc. 1-1, Complaint at PageID 8). Plaintiff claims that Judge Bender “did 

knowingly and willingly commit false arrest and false imprisonment violating Plaintiff’s First, 

Fourth, Fifth, Sixth and Fourteenth Amendment rights to the United States Constitution.” (Id. at 

PageID 11). Plaintiff brings his complaint in connection with a January 22, 2018 proceeding 

regarding a traffic code violation. According to plaintiff, “Defendant was immediately told this 

plaintiff has not and will not participate in her proceedings.” (Id.). In response, Judge Bender 

allegedly stated “so Mr. Shabazz is not here” and ordered “a $10,000 arrest capias for Mr. 

Shabazz but sent this Plaintiff back to jail with no pending issues against him.” (Id.). Plaintiff 

further alleges that Judge Bender “took it upon herself to enter a plea on the record stating the 

plea is entered on ‘behalf of Mr. Shabazz.’” (Id. at PageID 10). In doing so, plaintiff alleges that 

Judge Bender’s “rogue actions” violated his constitutional rights. (Id. at PageID 11). 

For relief, plaintiff seeks for the Court to “send recommendation and report on ethics and 
4

Title 18 violations to federal prosecutor against defendant and her handler,” to “order forensic 

accounting audit trial on defendant’s proceedings against plaintiff to be done by IRS or Army 

Corp of Engineers,” release from the Hamilton County Justice Center, and damages. (Id. at 

PageID 12). 

Plaintiff’s complaint is subject to dismissal at the screening stage for failure to state a 

claim upon which relief may be granted by this Court. 

First, to the extent plaintiff challenges the legality of his custody or is seeking release 

from custody, his sole federal remedy is a writ of habeas corpus. See Preiser v. Rodriguez, 411 

U.S. 475, 500 (1973); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir. 1985). Plaintiff may not 

pursue habeas corpus relief through a civil rights action under Section 1983. 

Plaintiff’s complaint should also be dismissed because judges are afforded absolute 

immunity from damages for acts they commit while functioning within their judicial capacity. 

Mireles v. Waco, 502 U.S. 9, 11 (1991); Pierson v. Ray, 386 U.S. 547 (1967); Barrett v. 

Harrington, 130 F.3d 246, 255 (6th Cir. 1997). Judges retain absolute immunity from liability 

even if they act maliciously or corruptly, as long as they are performing judicial acts and have 

jurisdiction over the subject matter giving rise to the suit against them. Stump v. Sparkman, 435 

U.S. 349, 356-57 (1978). See also Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001); King v. 

Love, 766 F.2d 962 (6th Cir. 1985). It appears that the actions challenged by plaintiff are 

functions normally performed by judges and are therefore judicial acts. Stump, 435 U.S. at 362. 

In addition, plaintiff has not alleged facts indicating that the defendant acted “in the complete 

absence of all jurisdiction.” Stern, 262 F.3d at 607. Accordingly, the complaint fails to state a 

claim for which relief may be granted against the judicial defendant because she is entitled to 
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absolute judicial immunity for the actions alleged in the complaint. 

Accordingly, in sum, the complaint should be dismissed pursuant to 28 U.S.C. §§ 

1915(e)(2)(B) because plaintiff has failed to state a claim upon which relief may be granted 

against any of the named defendants.

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff=s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 

1915(e)(2)(B).

2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an 

appeal of any Order adopting this Report and Recommendation would not be taken in good faith 

and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to 

proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800, 

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Serv., 105 F.3d 274, 277 

(6th Cir. 1997).

s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NAJASHI-TEKENU SHABAZZ-EL BEY, Case No. 1:18-cv-81

Plaintiff,

Barrett, J.

vs. Bowman, M.J.

GWEN BENDER, REPORT AND

Defendant. RECOMMENDATION

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after 

being served with a copy thereof. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of the 

R&R objected to, and shall be accompanied by a memorandum of law in support of the 

objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after 

being served with a copy of those objections. Failure to make objections in accordance with this 

procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States 

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