Nix et al v. Dufon et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JESSE EDWARD NIX, et al.,
Plaintiff,
v.
JEFFERY DUFON, et al.,
Defendants.
______________________________/
Hon. Hala Y. Jarbou
Case No. 1:26-cv-352
REPORT AND RECOMMENDATION
Plaintiffs Jesse Edward Nix and Caitlyn Gayle Horton filed their pro se complaint on
February 2, 2022, in this action against Defendants Jeffrey Dufon,1 Circuit Court Judge in the 36th
Circuit Court of Van Buren County; Thresa Schyper, identified as lawyer, GAL (guardian ad
litem), administrative assistant for Van Buren County Circuit Court; Jessica Bishop, MDHHS
HHSCPS Social Services Child Protection Removal Agent; and Margret O’Connor. Plaintiffs
allege that their lawsuit arises out of the removal of their children in October 2025 and is brought
under federal law, specifically:
Federal Tort Claims Act, 28 U.S.C. 2671, Federal Transfer 28 U.S.C. 1404a, Class
Action Suit CFR, ABA Model Rule 1.8(f), 18 U.S.C. 371 conspiracy to defraud,
model code of professional responsibility, 18 U.S.C. 241[,] 242 deprivation, Cohen
doctrine, Title 31 [illegible] 3 Chap 38S 3802, 1978 Ethics in Gov. Act[,]
Lobb[y]ing Disclosure Act of 1995, common interest doc[trine], [and] the Hague
Convention Act.
(ECF No. 1 at PageID.3.)
On February 2, 2026, I granted Plaintiffs leave to proceed in forma pauperis. (ECF No.
5.) Accordingly, I have conducted an initial review of the complaint pursuant to 28 U.S.C.
1 Plaintiffs misspell Defendant Dufon’s first name incorrectly as Jeffery.
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§ 1915(e)(2) to determine whether it is frivolous or malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.
Based on this review, I recommend that the Court dismiss this action for lack of subject matter
jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted.
I. Background
Plaintiffs allege that their children were taken by force at night on October 11, 2025,
pursuant to an ex parte order that specified a different address than the one from which the children
were removed. (ECF No. 1 at PageID.4.) Plaintiffs allege that, although they committed no crime
and have not been charged, their children have not been returned to them. (Id.)
II. Discussion
A. 	Lack of Jurisdiction
Although Plaintiffs cite several federal laws, these references provide no basis for federal
jurisdiction. It is well established that a plaintiff’s mere reference to federal law is insufficient to
give rise to federal-question jurisdiction. See Avitts v. Amoco Prod. Co., 53 F.3d 690, 694 (5th Cir.
1995) (“[S]ubject matter jurisdiction cannot be created by simple reference to federal law. Subject
matter jurisdiction can be created only by pleading a cause of action within the district court’s
original jurisdiction.”); Grimes v. Lucas Cnty. Child Support Enf't, No. 3:18CV2524, 2018 WL
6040743, at *2 n.3 (N.D. Ohio Nov. 19, 2018) (dismissing complaint for want of subject matter
jurisdiction despite the plaintiff’s references to federal criminal statutes barring deprivation of
constitutional rights); McKeague v. Matsuura, No. 08-00571, 2009 WL 89112, at *2 (D. Haw. Jan.
12, 2009) (“Although Plaintiff cites to a handful of federal criminal statutes, he fails to sufficiently
demonstrate that his claims arise under federal law.”).
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Moreover, many of Plaintiffs’ references to federal law are plainly inapplicable. The
Federal Tort Claims Act “applies to civil claims against the United States, not state actors.” Kohn
v. Piazza, No. 16-cv-11418, 2017 WL 4081845, at *2 (E.D. Mich. Sept. 15, 2017). No Defendant
is a federal employee or officer. Next, 18 U.S.C. §§ 241, 242, and 371 are criminal statutes that
provide no private right of action. See United States v. Oguaju, 76 F. App’x 579, 581 (6th Cir.
2003) (affirming dismissal of claim pursuant to Section 242 because there is no private right of
action under this criminal statute); Selmon-Austin v. Wells Fargo Bank, No. 2:21-CV-02724, 2022
WL 3337274, at *5 (W.D. Tenn. May 4, 2022), report and recommendation adopted, 2022 WL
18141470 (W.D. Tenn. Sept. 7, 2022) (“The plain language of Sections 241, 242, and 245 reveals
that they each are criminal statutes that do not provide for a private right of action.”); Smith v.
Taylor-Pedersen, No. 5:17-cv-11532, 2018 WL 2376567, at *6 (E.D. Mich. Apr. 30, 2018)
(dismissing claims under numerous criminal statutes, including 18 U.S.C. § 371, for lack of a
private right of action). Likewise, the Ethics in Government Act, 2 U.S.C. § 701(d), and the
Lobbying Disclosure Act of 1995, 2 U.S.C. § 1601 et seq., have nothing to do with the alleged
removal of Plaintiffs’ children. Therefore, the Court should dismiss this action for lack of subject
matter jurisdiction.
B. 	Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right to relief above the speculative level on the assumption that all of the complaint’s
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations
and footnote omitted).
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As the Supreme Court has held, to satisfy this rule, a 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). This plausibility standard “is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief.” Id. (internal quotation marks omitted). As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 marks a
notable and generous departure from the hypertechnical, code-pleading regime of
a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. 	Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged— but it has not “show[n]”—“that the pleader is entitled to relief.”
Id. at 678–79 (internal citations omitted).
Plaintiffs’ claims fail under this standard because they make no specific factual allegation
against any Defendant. It is a basic pleading essential that a plaintiff attribute factual allegations
to particular defendants. See Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995) (where a complaint
failed to allege wrongdoing by a particular defendant, it fell “far short of the standard that is
necessary to weed out meritless claims”). Where a person is named as a defendant without an
allegation of specific conduct, the complaint is subject to dismissal, even under the liberal
construction afforded to pro se complaints. See Rodriguez v. Jabe, No. 90-1010, 1990 WL 82722,
at *1 (6th Cir. June 19, 1990) (“Plaintiff’s claims against those individuals are without a basis in
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law as the complaint is totally devoid of allegations as to them which would suggest their
involvement in the events leading to his injuries”); see also Potter v. Clark, 497 F.2d 1206, 1207
(7th Cir. 1974).
Apart from the foregoing deficiency, even if Plaintiffs’ factual allegations applied to all
Defendants, there is no cognizable federal claim alleged in the complaint.
Last, although Plaintiffs do not allege Defendant Dufon’s role in their claims, to the extent
they sue him for damages for actions taken in his judicial capacity, their claims are barred by
absolute judicial immunity. It is well established that a judge is absolutely immune from suit
seeking monetary relief, so long as the judge was performing judicial functions. See Mireles v.
Waco, 502 U.S. 9, 9–10 (1991). “[J]udicial immunity is an immunity from suit, not just from
ultimate assessment of damages.” Id. at 11. A judge is not immune (1) where the judge’s alleged
actions were not taken in the judge’s judicial capacity, or (2) where the actions, although judicial
in nature, were taken in the complete absence of jurisdiction. Mireles, 502 U.S. at 11–12. “[T]he
scope of the judge’s jurisdiction must be construed broadly where the issue is the immunity of the
judge. A judge will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only when he
has acted in the ‘clear absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356–57
(1978) (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)). Again, while Plaintiffs do not allege
any act by Defendant Dufon giving rise to a cognizable claim, he is entitled to absolute immunity
to the extent they sue him for actions taken in the child removal proceeding.
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IV. Conclusion
For the foregoing reasons, I recommend that the Court dismiss Plaintiffs’ complaint for
lack of subject matter jurisdiction. Alternatively, I recommend that it be dismissed for failure to
state a claim.
The Court must also decide whether an appeal of this action would be in good faith within
the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir.
1997). Good faith is judged objectively, Coppedge v. United States, 369 U.S. 438, 445 (1962), and
an appeal is not taken in good faith if the issue presented is frivolous, defined as lacking an
arguable basis either in fact or law. See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.
2001). For the same reasons that I recommend dismissal of the action, I discern no good faith basis
for an appeal and recommend that, should Plaintiffs appeal this decision, the Court assess the
$605.00 appellate filing fee pursuant to Section 1915(b)(1), see McGore, 114 F.3d at 610-11.
Date: February 4, 2026 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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