Kenneth Burnham; Columbia Park Water and Sewer System v. Carolyn Friedland, in her official capacity as Judge/Actor of the State of Ohio

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0312n.06
No. 21-3888
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENNETH BURNHAM; COLUMBIA PARK
WATER AND SEWER SYSTEM,
Plaintiffs-Appellants,
v.
CAROLYN FRIEDLAND, in her official capacity
as Judge/Actor of the State of Ohio,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: GILMAN, GRIFFIN, and THAPAR, Circuit Judges.
GRIFFIN, J., delivered the opinion of the court in which GILMAN and THAPAR, JJ.,
joined. THAPAR, J. (pg. 4), delivered a separate concurring opinion.
GRIFFIN, Circuit Judge.
Plaintiffs allege that a state trial-court judge committed an unconstitutional taking by
issuing a summary judgment order adverse to them. The district court sua sponte dismissed
plaintiffs’ complaint after finding that defendant was entitled to judicial immunity. We affirm.
I.
In 2004, plaintiff Kenneth Burnham purchased a wastewater treatment facility in Ohio
known as Columbia Park Water and Sewer System, a licensed Ohio public utility. The treatment
facility was in a mobile home park, which became the subject of a foreclosure action brought by
U.S. Bank. In that action, plaintiffs maintained that “[t]he subject facility and the Plaintiffs were
not a party to any mortgage in the foreclosure action and did not owe U.S. Bank any monies under

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the mortgage,” and filed counterclaims against U.S. Bank to that effect. U.S. Bank filed a motion
for summary judgment on those counterclaims, which the trial judge, defendant Carolyn Friedland,
granted. The effect of Judge Friedland’s order was to “divest[] and destroy[] all rights of the
Plaintiffs” by “transferr[ing] [their] property rights to a private party [r]eceiver” as part of the
foreclosure action.
Plaintiffs then filed a complaint in federal district court, alleging that Judge Friedland
effected a taking without due process and just compensation, in violation of the Fifth Amendment,
when she granted U.S. Bank’s motion for summary judgment. Before Judge Friedland was served,
the district court found that she was entitled to judicial immunity because plaintiffs had failed to
state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6).
Accordingly, the court sua sponte dismissed the complaint. Plaintiffs timely appealed.
II.
We review de novo the district court’s dismissal of a complaint under Rule 12(b)(6). In re
Fifth Third Early Access Cash Advance Litig., 925 F.3d 265, 275–76 (6th Cir. 2019). Accepting
the allegations in the complaint as true and drawing all reasonable inferences in plaintiffs’ favor,
we must determine whether the complaint plausibly states a claim for relief. Id. at 276.
“Generally, a district court may not sua sponte dismiss a complaint where the filing fee has
been paid unless the court gives the plaintiff the opportunity to amend the complaint.” Apple v.
Glenn, 183 F.3d 477, 479 (6th Cir. 1999). “Nevertheless, a district court may, at any time, sua
sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure when the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Id.

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Judges are absolutely immune from suits under 42 U.S.C. § 1983 arising out of their
performance of judicial functions. Pierson v. Ray, 386 U.S. 547, 553–54 (1967). This immunity
extends even to judicial acts performed maliciously, corruptly, in bad faith, or in error. Brookings
v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004). There are only two exceptions to judicial immunity:
A judge is not immune from suits for acts that are (1) not judicial in nature or (2) performed without
jurisdiction. Id.
Here, plaintiffs’ claims, as detailed by the plain language of their complaint, are wholly
devoid of merit. Plaintiffs challenge “an official act, a judicial summary judgment Order[.]” And
they concede that Judge Friedland “acted under the color of the law of the State of Ohio when
issuing the Order[.]” They do not claim that Judge Friedland lacked the jurisdiction or authority
to take the property, but that she did so improperly by not ordering just compensation. Thus,
plaintiffs have acknowledged that Judge Friedland took a judicial action that was properly within
her jurisdiction as an Ohio judge. Because the complaint does not even attempt to circumvent
judicial immunity, it is wholly implausible and devoid of merit. Thus, although the district court
should have given plaintiffs an opportunity to amend their complaint before dismissing it under
Rule 12(b)(6), the total lack of plausibility in plaintiffs’ complaint reveals this to be one of the rare
circumstances in which it is appropriate to dismiss the complaint for lack of subject-matter
jurisdiction under Rule 12(b)(1). See Apple, 183 F.3d at 479–80. We may affirm a judgment “for
reasons other than those stated by the lower court.” Id. Therefore, we affirm the district court’s
dismissal of plaintiffs’ complaint.
III.
For these reasons, we affirm the judgment of the district court.

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THAPAR, Circuit Judge, concurring. Too often courts describe issues as jurisdictional
when they are really merits based. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998).
The doctrine we apply here is just one more example of that. The Supreme Court has told us that
we lack jurisdiction over claims that are “devoid of merit, wholly insubstantial, obviously
frivolous, plainly unsubstantial, or no longer open to discussion.” Hagans v. Lavine, 415 U.S. 528,
536–37 (1974) (cleaned up). And the majority correctly finds that Burnham’s claim is “devoid of
merit” because judicial immunity will bar him from recovery.
But judicial immunity isn’t a jurisdictional doctrine; it’s an affirmative defense that goes
to the merits. See, e.g., Bright v. Gallia County, 753 F.3d 639, 648–50 (6th Cir. 2014). Thus, we
rely entirely on the merits to determine that the district court lacked jurisdiction.
Although I’m skeptical of this doctrine, it’s been neither overruled nor abandoned. So I
concur.

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