UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANTUAN BURRESS-EL,

Case No. 1:18-cv-254

Plaintiff, Barrett, J.

Bowman, M.J.

v. 

DAVID KELLEY, et al.,

Defendants.

REPORT AND RECOMMENDATION

On January 19, 2018, Plaintiff Antuan Burress-El1 filed an unsigned motion 

seeking leave to file a fourth complaint in this Court in forma pauperis, or without 

payment of fees. (Doc. 1). Attached to Plaintiff’s motion/application is a copy of the 

proposed complaint. (Doc. 1-2). The Defendants are identified as David Kelley and 

Melissa Powers. The undersigned takes judicial notice of the fact that David Kelley is a 

Magistrate in the Hamilton County Juvenile Court, and that Melissa Powers is a 

Hamilton County Juvenile Court Judge. 

I. General Screening Authority

By separate Order issued this date, Plaintiff has been granted leave to proceed 

in forma pauperis pursuant to 28 U.S.C. § 1915. The complaint itself is now before the 

Court for a sua sponte review to determine whether the complaint, or any portion of it, 

 1

Plaintiff has filed four prior lawsuits in this Court, virtually all of which have been dismissed at the 

screening level, including Case Nos. 1:17-cv-866-TSB-KLL, 1:18-cv-40-MRB-SKB, 1:18-cv-64-SJD-KLL, 

and 2:18-cv-98-ALM-CMV. Two additional lawsuits were filed in 2014 under the name Antuan L. Burress 

(with the same address and what appears to be the same signature, other than the absence of the “El” 

portion of his current surname). See Case Nos. 1:14-cv-390, 1:14-cv-391.

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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 28 U.S.C. § 1915(e)(2)(B).

Congress has authorized federal courts to dismiss an in forma pauperis

complaint if satisfied that the action is frivolous or malicious. Denton v. Hernandez, 504 

U.S. 25, 31 (1992); see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be 

dismissed as frivolous when the 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 Afantastic 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 has also authorized the sua sponte dismissal of complaints which fail 

to state a claim upon which relief may be granted. See 28 U.S.C. § 1915 (e)(2)(B)(ii). 

Although a plaintiff’s pro se complaint must be “liberally construed” and “held to less 

stringent standards than formal pleadings drafted by lawyers,” the complaint must “give 

the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” 

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Estelle v. Gamble, 429 

U.S. 97, 106 (1976), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

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(internal citation and quotation omitted)). 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 Twombly, 550 U.S. at 570); see also Hill v. 

Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010)(“dismissal standard articulated in Iqbal

and Twombly governs dismissals for failure to state a claim” under §§ 1915(e)(2)(B)(ii) 

and 1915A(b)(1)).

“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-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, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting 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.

II. Allegations Of Complaint

Plaintiff’s complaint alleges, in relevant part, that Plaintiff “was robbed of my 

inalienable rights February 15, 2018,” that the Defendants deprived Plaintiff of 

unspecified constitutional rights, that Magistrate Kelley “trespassed by attempting to 

threaten i: a man,” and that Judge Powers “trespassed by terminating my parental rights 

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without due process of judicial law.” (Doc. 1-1 at 3). Plaintiff further asserts “a claim 

against David Kelley and Melissa Powers to clear my name of character assassination 

made against i a man.” (Id.) In his claim for relief, Plaintiff monetary compensation in 

the amount of $1,000.00 per day against Defendant Kelley, and “charges of $1.5 million 

...from Melissa Powers for her abuse of power against a citizen who has no felonies or 

judicial case of domestic violence, POS, or neglect.” (Doc. 1-1 at 4). 

The remainder of Plaintiff’s complaint consists of miscellaneous documents 

attached as exhibits, including but not limited to what purports to be text from Black’s 

Law Dictionary, a screen shot of a page from a government educational resource 

website on “Understanding Federal and State Courts,” and provisions on “professional 

liability insurance” that purport to be from the U.S. Department of State Foreign Affairs 

Manual Volume 3.

2 Additionally, Plaintiff has attached documents from what appears to 

be a pending case in Hamilton County Juvenile Court, Case No. P/15/001124 Z, 

assigned to Magistrate Kelley, and notifying Antuan L. Burress that a hearing before 

that judicial official has been continued to April 11, 2018 at 9:45 a.m. (See Doc. 1-1 at 

21 (Order continuing hearing); id. at 20 (notifying Plaintiff of hearing to be held the same 

date at 9:45 a.m.). The date that Magistrate Kelley signed his Order continuing the 

hearing has been circled, and corresponds with the only date referenced in Plaintiff’s 

federal complaint: February 15, 2018. 

III. Analysis of Claims

Under relevant screening standards and federal law, Plaintiff’s complaint should 

be dismissed in its entirety. The complaint lacks factual content or context from which 

 2

Similar provisions from the same policy manual were attached to Plaintiff’s last lawsuit, Case No. 1:18-

cv-40.

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the Court may reasonably infer the basis for federal jurisdiction over any claim that 

Plaintiff may have against the Defendant. To the extent that Plaintiff may be invoking 

the diversity jurisdiction of this Court under 28 U.S.C. § 1332(a), the complaint reveals 

such jurisdiction is lacking. The citizenship of the Plaintiff is not diverse from that of the 

Defendants.

The Court is also without federal question jurisdiction over the complaint. In 

order to invoke the Court’s federal question jurisdiction pursuant to 28 U.S.C. § 1331, 

plaintiff must allege facts showing the cause of action involves an issue of federal law. 

See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Although difficult to decipher, 

it appears that Plaintiff is challenging an ongoing family law dispute in state court

relating to a termination of his parental rights.

3

 

More than a century ago, the United States Supreme Court proclaimed that “[t]he 

whole subject of the domestic relations of husband and wife, parent and child, belongs 

to the laws of the states and not to the laws of the United States.” In re Burrus, 136 U.S. 

586 (1890). Thus, under the Burrus abstention doctrine, federal courts have universally 

declined to exercise jurisdiction in domestic relations cases in which a complaint 

contains only conclusory assertions that a plaintiff is entitled to relief because of the 

state's constitutional violations, where those assertions are “a mere pretense and the 

suit is actually concerned with domestic relations issues.” Danforth v. Celebrezze, 76 

Fed. App'x 615, 616 (6th Cir. 2002).

Although it is possible for federal jurisdiction to attach where a litigant presents 

an independent claim that challenges the constitutionality of a state official's action, see 

 3

Plaintiff has presented similar claims in several of his prior lawsuits, which have also been summarily 

dismissed at the screening level. See, e.g., Case No. 1:14-cv-391.

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Pittman v. Cuyahoga County Dep't of Children and Family Servs., 241 Fed. App'x 285, 

287–290 (6th Cir. 2007), multiple reasons counsel against the assumption of federal 

jurisdiction in this case. Those reasons include, but are not limited to, the fact that 

Plaintiff’s factual allegations are insufficient to state any cognizable claim, and the only 

identified Defendants are state judicial officers who are absolutely immune from suit. 

Even if this Court otherwise had jurisdiction, it would be required to abstain from 

interfering in what appears to be an ongoing state court proceeding. See also, 

generally, Younger v. Harris, 401 U.S. 37 (1971). 

In short, this Court lacks subject matter jurisdiction over Plaintiff's claims because 

they fall exclusively within the jurisdiction of the state courts. Plaintiff's conclusory 

references to violations of his civil rights are not sufficient—even if they did not merit 

dismissal under Fed.R.Civ.P. 12(b)(6)—to grant federal jurisdiction. Accordingly, 

Plaintiff’s complaint should be dismissed for lack of federal jurisdiction and for failure to 

state a claim upon which relief may be granted. 

IV. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT all claims contained in 

Plaintiff’s complaint be dismissed with prejudice, pursuant to 28 U.S.C. §1915(e)(2)(B). 

In addition, because Plaintiff now has filed several lawsuits that relate to claims arising 

out of Hamilton County Juvenile Court proceedings, Plaintiff is FOREWARNED that 

additional attempts to file similar lawsuits will not only be summarily dismissed at the 

screening level, but may invite sanctions from this Court if deemed to be vexatious. 

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANTUAN BURRESS-EL,

Case No. 1:18-cv-254

Plaintiff, Barrett, J.

Bowman, M.J.

v. 

DAVID KELLEY, et al.,

Defendants.

NOTICE

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

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

of the filing date of this R&R. 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 (14) 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).

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