UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Daniel L. Hellmuth,

Plaintiff, Case No. 1:18-cv-00397

v. Judge Michael R. Barrett

Leanne Hood, et al.,

Defendants.

ORDER 

This matter is before the Court on the Magistrate Judge’s Report and 

Recommendation (“R&R”), (Doc. 16), and Supplemental R&R, (Doc. 47). Plaintiff is 

proceeding pro se and filed a document titled “Motion to Estoppel” which the Court 

construes as objections to the R&R, (Doc. 17), and also filed objections to the 

Supplemental R&R, (Doc. 48); see Erickson v. Pardus, 551 U.S. 89, 94 (2007). 

Defendant Lynn Busch-Heyman, (Doc. 53), Defendant Rodney Mutterspaw, (Doc. 54), 

and Defendant Leanne Hood, (Doc. 59), filed responses to Plaintiff’s objections to the 

Supplemental R&R. The Court has reviewed the filings in this matter and it is ripe for 

review. The Magistrate Judge accurately summarized the factual and procedural 

background of this case and the Court will repeat that background only when necessary 

to address Plaintiff’s objections or the responses thereto.

I. STANDARD OF REVIEW

Under 28 U.S.C. §636(b)(1), determinations made by a Magistrate Judge are 

subject to the review of the district court. With respect to non-dispositive matters, and 
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when the Court receives timely objections to an R&R, “the district judge in the case must 

consider timely objections and modify or set aside any part of the order that is clearly 

erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). With respect to dispositive matters, 

and when the Court receives timely objections to an R&R, the “district judge must 

determine de novo any part of the magistrate judge’s disposition that has been properly 

objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge may accept, reject, or modify 

the recommended disposition; receive further evidence; or return the matter to the 

magistrate judge with instructions.” Id.

II. BACKGROUND

The Magistrate Judge recommends that the Court dismiss this matter with 

prejudice, as the Court lacks subject matter jurisdiction, as Plaintiff does not assert a claim 

under federal law or establish diversity jurisdiction. (Doc. 16). She acknowledges that

Plaintiff references alleged violations of his civil rights; however, after a review of the 

Amended Complaint, she finds that his arguments relate to a state court dispute, 

originating in the Butler County Court of Common Pleas, regarding the proper ownership 

of residential property. Id. (citing Doc. 4).

In his objections, Plaintiff reiterates that Defendant Leanne Hood’s statements, 

made during the course of the state court proceedings to the Trenton Police Department, 

and found in a Trenton Police Department Incident Report, that Plaintiff has “a C[oncealed 

carry weapon (“CCW”)]” and is a “VETERAN WHO HAS BEEN MENTALLY UNSTABLE” 
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are inaccurate.1 (Doc. 17 at PageID 69). He contends that this case deals with 

“Constitutional violation[s]” involving “the attempt by [Defendant] Hood under the color of 

law to orchestrate [his] death by police shooting” and is not the same as his residential 

property dispute. (Id.).

In the Supplemental R&R, the Magistrate Judge recommends (1) denying 

Plaintiff’s filing titled “Motion to Amend Statement of the Claim,” (Doc. 23); (2) granting 

Defendant James C. Smith’s Motion to Dismiss and Defendant Lynn Busch-Heyman’s 

Motion to Dismiss, (Docs. 18, 20); (3) denying all remaining pending motions, (Docs. 3, 

24, 25, 27, 28, 31, 32, 38, 41, 44, 46); and (4) dismissing this matter with prejudice. (Doc. 

47).

In his objections to the Supplemental R&R, Plaintiff (1) disagrees with the 

Magistrate Judge’s characterization of the Trenton Police Department Incident Report, 

while reiterating that Defendant Hood’s statements are inaccurate and the Trenton Police 

Department recorded them without a proper investigation; (2) alleges that Defendants 

Busch-Heyman and Smith had an ex-parte communication regarding the Trenton Police 

Department Incident Report during the state court proceedings; (3) alleges that the state 

court only ruled on one of his motions and “[t]here were claims of Fraud Upon the Court” 

“but his filings were ignored” by state court judges; (4) argues that, contrary to the 

Magistrate Judge’s finding, none of Defendant Smith’s statements are protected by 

absolute privilege both because “the statements [were] made during an ex parte between 

[Defendant] Smith and [Defendant] Heyman” and ”[n]obody conducted a proper 

 1 In his Amended Complaint, Plaintiff states that Defendant Hood’s statements were an attempt to set him 

“up for a Police shooting” and “contain the INTENT, that [Defendant] Hood was hopeful a police shooting 

would take place.” (Doc. 4 at PageID 17, 18). 
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investigation of [his] claims;” (5) argues that, contrary to the Magistrate Judge’s finding, 

Defendant Busch-Heyman is not immune from this federal lawsuit because of various 

actions she took, or did not take, during the state court proceedings; (6) alleges that 

Defendant Busch-Heyman violated his “rights to Ohio Rules of Common Pleas Court, 

2.03,” “Ohio Judicial Code, RULE 2.3,” “Ohio Judicial Code, RULE 2.6,” “his 1st

Amendment rights of Free Speech,” his 5th Amendment due process rights to a proper 

investigation of the alleged ex parte communication between Defendants Busch-Heyman 

and Smith, “his 7th Amendment right to have a jury court;” and (7) asserts that, contrary 

to the Magistrate Judge’s findings, “[c]ases involving violations of the Bill of Rights in the 

U.S. Constitution by an Honorably Discharged Disabled Veteran are definitely within the 

Federal Court’s jurisdiction.” (Doc. 48). He concludes that neither the state court nor this 

Court have conducted “a proper investigation.” (Id.). 

III. ANALYSIS

The Court is first compelled to comment on Plaintiff’s filings titled “Statement of 

Claim,” “Brief,” and “Motion to Amend Statement of Claim” and his assertion that he 

“reserves the right to amend the filing of” certain documents. (Doc. 1) (Initial Complaint); 

(Doc. 4) (Amended Complaint); (Doc. 8) (“Statement of Claim”); (Doc. 9) (“Brief”); (Doc. 

23) (“Motion to Amend Statement of Claim”).

Rule 7 of the Federal Rules of Civil Procedure (“Rules”) provides that only certain 

pleadings are allowed. FED. R. CIV. P. 7(a). Rule 7 lists “a complaint” as a permissible 

pleading and does not list “a statement of claim” or “a brief.” Id.; see Dearing v. Mahalma, 

No. 1:11-cv-204, 2011 WL 3739029, at *6 (S.D. Ohio Aug. 24, 2011). To the extent that 
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Plaintiff believes he properly filed a “Statement of Claim,” “Brief,” or “Motion to Amend 

Statement of Claim,” that facts, arguments, or claims that relate to his Amended 

Complaint are properly before the Court by his filing of those documents, or that the Court 

should consider facts, arguments, or claims in those documents to be part of his Amended 

Complaint, he is incorrect. Those documents, (Docs. 8, 9, 23), are not properly before 

the Court. See FED. R. CIV. P. 7(a).

Rule 15 governs amendments to pleadings before trial. FED. R. CIV. P. 15(a). A

party can amend a “pleading once as a matter of course within” twenty-one days of 

serving the pleading or, “if the pleading is one to which a responsive pleading is required, 

21 days after service of a responsive pleading or 21 days after service of a motion under 

Rule 12(b), (e), or (f), whichever is earlier.”2 FED. R. CIV. P. 15(a)(1). Otherwise “a party 

may amend its pleading only with the opposing party's written consent or the court's 

leave.” Fed. R. Civ. P. 15(a)(2). Consequently, to the extent that Plaintiff believes that 

his assertion that he “reserves the right to amend the filing of this [Amended] Complaint,”3

is sufficient to allow him to do so, he is incorrect and he, like all parties before the Court, 

must abide by the Federal Rules of Civil Procedure. (Doc. 4 at PageID 16); see Wells v. 

Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Hellmuth v. Hood et al., Case No. 

1:18-cv-340-MRB-KLL, (Doc 29 at PageID 151, n1, report and recommendation).

Plaintiff neither specifically objects to the Magistrate Judge’s recommendation that 

 2 To be clear, the filing of an amended complaint renders an initial complaint a nullity, because an amended 

complaint supersedes all prior complaints. See Drake v. City of Detroit, Michigan, 266 Fed.Appx. 444, 448 

(6th Cir. 2008); see also Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007). 

So, when Plaintiff chose to file his timely Amended Complaint, (Doc. 4), his Initial Complaint, (Doc. 1), was 

no longer legally operative. Stated otherwise, after Plaintiff chose to file his Amended Complaint, neither 

the Magistrate Judge nor the undersigned had to rely on the Initial Complaint or the arguments therein.

3 Presumably by filing the documents titled “Statement of Claim,” “Brief,” and “Motion to Amend Statement 

of Claim.” See (Docs. 8, 9, 23).
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the Court deny his filing titled “Motion to Amend Statement of the Claim” nor cites that 

filing in his objections. (Doc. 48). In light of Plaintiff’s obligation to follow the Federal 

Rules of Civil Procedure and failure to do so without any explanation, in any filing, the

Court agrees with the Magistrate Judge’s recommendation that his filing titled “Motion to 

Amend Statement of the Claim” be denied, as it is not properly before the Court. See

FED. R. CIV. P. 7, 15; see also Wells, 891 F.2d at 594. The Court will deny the filing titled 

“Motion to Amend Statement of the Claim.” (Doc. 23).

Turning to the Magistrate Judge’s findings, she found that this Court lacks subject 

matter jurisdiction over this matter, as Plaintiff’s Amended Complaint fails to either assert 

a claim under federal law or establish diversity jurisdiction. (Docs. 16, 47). Plaintiff offers 

bare disagreements with the Magistrate Judge’s findings, introduces new facts and 

allegations against certain Defendants, or references claims not found in his Amended 

Complaint. Compare (Docs. 17, 48), with (Doc. 4).

However, general disagreements with the Magistrate Judge fall short of Plaintiff’s

obligation to make specific objections to an R&R. See Howard v. Sec'y of Health & 

Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Aldrich v. Bock, 32 F.Supp .2d 

743, 747 (E.D.Mich.2004) (“An ‘objection’ that does nothing more than state a 

disagreement with a magistrate [judge]'s suggested resolution, or simply summarizes 

what has been presented before, is not an ‘objection’ as that term is used in this context.”)

Similarly, the Court declines to accept Plaintiff’s invitation to allow and consider 

new facts and allegations against certain Defendants at this point in the proceedings. See

Morse v. Specialized Loan Servicing, LLC, No. 2:16-CV-689, 2018 WL 1725693, at *2 

(S.D. Ohio Apr. 10, 2018) (“It is well established that a district court has discretion, but is 
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not required, to consider evidence presented for the first time in a party’s objection to a 

magistrate judge’s recommendation.”) (citing Thompson v. Richardson, No. 1:12-cv1332, 2013 WL 4780265, at *1 (W.D. Mich. Sept. 5, 2013) (internal citations omitted)). 

 Moreover, and to be clear, for Plaintiff to bring this action in this Court, the Court 

must have subject matter jurisdiction over the claims. Although he cites the 1st, 5th, 7th, 

Amendments in his objections to the Supplemental R&R, (Doc. 48), his Amended 

Complaint does not reference those Amendments or contain arguments that could 

liberally construed as falling under those Amendments. (Doc. 4); see Erickson, 551 U.S. 

at 94. Plaintiff fails to explain—outside of baldly concluding that he has, in fact, presented

arguments under the U.S. Constitution—how the facts and arguments in his Amended 

Complaint grant this Court subject matter jurisdiction. See e.g., 28 U.S.C. § § 1330 (suits 

against foreign states), 1331 (federal question), and § 1332 (diversity). Although the 

Court can liberally interpret Plaintiff’s Amended Complaint and objections, it cannot 

manufacture arguments on his behalf and agrees it lacks subject matter jurisdiction, as 

he fails to raise any claims under federal law or established diversity jurisdiction. Finally, 

although the Court appreciates and commends Plaintiff’s service in the Republic of 

Vietnam, to the extent that he believes such service confers this Court with jurisdiction in 

over any claims found in his Amended Complaint, he is misunderstood.

III. CONCLUSION

In light of the above, it is hereby ORDERED that

1. the R&R and Supplemental R&R, (Docs. 16, 47), are ADOPTED and Plaintiff’s 

objections, (Docs. 17, 48), are OVERRULED;
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2. Plaintiff’s filing titled “Motion to Amend Statement of the Claim,” (Doc. 23), is 

DENIED;

3. Defendants’ Motions to Dismiss, (Docs. 18, 20), are GRANTED;

4. This matter is DISMISSED WITH PREJUDICE for lack of subject matter 

jurisdiction; and

5. All remaining pending motions or filings, (Docs. 3, 24, 25, 27, 28, 31, 32, 38, 

41, 44, 46, 55, 614 and 62), are DENIED AS MOOT.

The Court further CERTIFIES that, pursuant to 28 U.S.C. § 1915(a), an appeal of 

this Order would not be taken in good faith and DENIES Plaintiff leave to appeal in forma 

pauperis.

 IT IS SO ORDERED.

/s Michael R. Barrett______

Michael R. Barrett, Judge

United States District Court

 4 The Court notes that Plaintiff filed Documents 55 and 61 after the Magistrate Judge expressly informed 

the parties that “[t]he parties are further notified that no additional motions shall be filed in this matter 

pending the District Judge’s disposition of this Report and Recommendation.” (Doc. 47, n2).