Newberry v. McFadden et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
MARK ANTHONY NEWBERRY,
Plaintiff,
vs.
MONTGOMERY COUNTY
CHILDREN SERVICES, et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
Case No. 3:25-cv-00175
District Judge Michael J. Newman
Magistrate Judge Caroline H. Gentry
ORDER AND REPORT AND RECOMMENDATION
This case comes before the undersigned Magistrate Judge to rule on several
pending matters. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion
to Join City of Dayton as Defendant (Doc. No. 25), ORDERS that the Second Amended
Complaint (Doc. No. 26) constitute the operative pleading in this matter, and ORDERS
Plaintiff to perfect service of the summons and Second Amended Complaint upon the
City of Dayton and Montgomery County Children Services ONLY. The undersigned
RECOMMENDS that District Judge Newman (1) DISMISS WITH PREJUDICE all
claims against Defendants McFadden, Davis, Burton, Wilhelm, and Montgomery County
Job and Family Services—and certain claims against Montgomery County Children
Services—for lack of subject-matter jurisdiction, and (2) DENY AS MOOT Plaintiff’s
remaining Motions (Doc. Nos. 15, 16 & 17).
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 1 of 10 PAGEID #: <pageID>

2
I. 	BACKGROUND
Plaintiff, who is proceeding without the assistance of counsel,1 filed this civil
rights lawsuit in June 2025 against Defendants Montgomery County Children Services
(“MCCS”), MCCS Caseworker McFadden, MCCS Supervisor Davis, MCCS Supervisor
Burton, and Montgomery County Job and Family Services (“MCJFS”). (Complaint, Doc.
No. 3, PageID 30; Amended Complaint, Doc. No. 5, PageID 39-40.) The facts alleged in
the Amended Complaint appear to relate to two distinct sets of claims.2
First, Plaintiff alleges that on October 22, 2013, Defendant MCCS placed a foster
home next to his residence that “was operated by individuals with a known prior history
involving children, and this was never disclosed.” (Id. at PageID 40.) He alleges that
“[t]his reckless placement caused severe disruption, fear, and retaliation.” (Id.) Attached
to the Amended Complaint are police reports that allegedly relate to the foster home. (Id.
at PageID 50-58.) The Court will refer to these allegations as the “Foster Home Claims.”
Second, Plaintiff alleges that he regularly cares for his grandchildren and that
Defendants MCCS, McFadden, Davis and Burton have subjected him “to retaliatory
visits, vague accusations, and psychological pressure.” (Doc. No. 5, PageID 41.)
1 The Court notes that although Plaintiff originally sought and was granted permission to proceed in
forma pauperis, he later paid the full filing fee.
2 When considering a pro se complaint—that is, a complaint filed without the assistance of a lawyer—this
Court must liberally construe it and hold it “to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). This standard may require “active interpretation in
some cases [in order] to construe a pro se petition to encompass any allegation stating federal relief.”
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). Nevertheless, a pro se complaint must adhere to the
“basic pleading essentials” and the Court should not have to guess at the nature of the claim asserted.”
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Instead, 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.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 2 of 10 PAGEID #: <pageID>

3
Attached to the Amended Complaint are photographs that allegedly portray a MCCS
caseworker and two Sheriff’s deputies. (Id. at PageID 44-49.) Plaintiff alleges that these
photographs “document confrontational and unclear actions by Children Services staff.”
For relief, Plaintiff seeks a 90-day restriction that prohibits contact by MCCS or its
employees, and multi-million-dollar penalties for every visit made by MCCS. (Id. at
PageID 41-42.) The Court will refer to these allegations as the “MCCS Contact Claims.”
Plaintiff subsequently complained that Defendant Guardian Ad Litem (GAL)
Jennifer Wilhelm3 attempted to visit his grandchildren after this lawsuit was filed. (See
Doc. Nos. 9, 11, 13, 15, 16 & 17.) On July 16, 2025, Plaintiff reportedly told Wilhelm
that her attempt to visit his grandchildren in his home violated this federal lawsuit. (Doc.
No. 11, PageID 94-100.) In response, Wilhelm reportedly stated that “Judge Julie Bruns
ordered I’m permitted to talk to them.” (Doc. No. 13, PageID 103.)
On July 28, 2025, Plaintiff filed three Motions relating to Defendant Wilhelm’s
attempts to visit his grandchildren in his home. First, in his Motion to Deny Immunity
Claim and Strike Defense (Doc. No. 15), Plaintiff argues that Wilhelm should not receive
any immunity in this lawsuit. Next, in his Motion for Injunctive Relief and Declaratory
Judgment (Doc. No. 16), Plaintiff requests an order enjoining Wilhelm “from enforcing
a state court order that directly conflicts with the jurisdiction and proceedings of this
federal action.” (Id. at PageID 115 (emphasis added).) Plaintiff explains that the state
3 Although Plaintiff refers to GAL Wilhelm as a “Defendant” in various filings, he did not name her as a
Defendant in either the Amended Complaint or the Second Amended Complaint. Nevertheless, the Court
will liberally construe Plaintiff’s pleadings as naming GAL Wilhelm as a Defendant and will recommend
that all claims against her be dismissed with prejudice.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 3 of 10 PAGEID #: <pageID>

4
court order was issued by Judge Julie Bruns (id.), who presides in the Montgomery
County Juvenile Court. Plaintiff asks this federal Court to declare that it has the
exclusive authority to decide all custody-related matters:
Plaintiff also seeks a declaratory judgment that the federal court has
exclusive jurisdiction over the matters before it, including custody-related
investigations that intersect with the claims of constitutional deprivation,
defamation, and retaliation. Wilhelm’s attempt to act under a state juvenile
order, despite explicit notification of this federal proceeding, creates legal
confusion and interference.
Such a declaration would clarify that all actions by state officials related to
the subject matter of this case must be subordinated to the authority of this
Court, and that any contradictory state orders are to be deemed without
effect to the extent they conflict with federal proceedings.
(Doc. No. 16, PageID 116.) Finally, in his Supreme Strike Motion to Strip Immunity
(Doc. No. 17), Plaintiff reiterates that Defendant Wilhelm should be denied immunity.
On August 7, 2025, the Court issued an Order to Show Cause (Doc. No. 22). In
that Order, the Court explained that it cannot decide appeals from state court orders or
child custody disputes and must abstain from interfering with pending state proceedings.
(Id. at PageID 137-38.) The Court noted that “[a]lthough Plaintiff’s filings suggest that
there are pending state court proceedings, the nature and status of those proceedings are
unclear.” (Id. at PageID 138.) Therefore, the Court ordered Plaintiff to show cause why
the Court should not abstain from considering his claims in this lawsuit. (Id.)
Although Plaintiff filed a Response to the Order to Show Cause (Doc. No. 23), it
did not respond to the issues raised in that Order. On the same day, however, Plaintiff
filed a Second Amended Complaint (Doc. No. 26) and a Motion to Join City of Dayton as
Defendant (Doc. No. 25) that focus exclusively upon his Foster Home Claims.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 4 of 10 PAGEID #: <pageID>

5
II. 	PLAINTIFF’S FOSTER HOME CLAIMS
Because Plaintiff paid the filing fee, this Court is not required to screen his pro se
claims to determine whether they should be dismissed as frivolous or for failure to state a
claim upon which relief can be granted. Therefore, Plaintiff may proceed at this time with
his Foster Home Claims. However, as no factual allegations support plausible Foster
Home Claims against any of the other named Defendants, Plaintiff may only proceed
with these claims against the City of Dayton and Montgomery County Children Services.
Accordingly, the undersigned GRANTS Plaintiff’s Motion to Join City of Dayton
as Defendant (Doc. No. 25), ORDERS that the Second Amended Complaint (Doc. No.
26) constitute the operative pleading in this matter, and ORDERS Plaintiff to perfect
service of the summons and Second Amended Complaint upon the City of Dayton and
Montgomery County Children Services ONLY.
III. 	PLAINTIFF’S MCCS CONTACT CLAIMS
Although this Court is not required to screen Plaintiff’s pro se claims, it is
required to determine whether it has subject-matter jurisdiction. See Fed. R. Civ. P.
12(h)(3). For the reasons set forth below, the undersigned concludes that the Court lacks
subject-matter jurisdiction over Plaintiff’s MCCS Contact Claims. Accordingly, the
undersigned RECOMMENDS that District Judge Newman (1) DISMISS WITH
PREJUDICE the MCCS Contact Claims against all Defendants for lack of subject-
matter jurisdiction, and (2) DENY AS MOOT Plaintiff’s remaining Motions (Doc. Nos.
15, 16 & 17), which deal exclusively with the MCCS Contact Claims.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 5 of 10 PAGEID #: <pageID>

6
A. 	This Federal Court Lacks Jurisdiction Over Plaintiff’s MCCS Contact
Claims Under the Domestic Relations Exception.
“The domestic relations exception precludes federal courts from hearing cases that
‘involv[e] the issuance of a divorce, alimony, or child custody decree.’” Alexander v.
Rosen, 804 F.3d 1203, 1205 (6th Cir. 2015) (quoting Ankenbrandt v. Richards, 504 U.S.
689, 704 (1992)). This exception is narrow and only applies if “a plaintiff positively sues
in federal court for divorce, alimony, or child custody, or seeks to modify or interpret an
existing divorce, alimony, or child-custody decree.” Id. (citation omitted, emphasis
added). The remedy sought by the plaintiff determines whether the exception applies.
Greenberg v. Slatery, No. 22-5886, 2023 U.S. App. LEXIS 7334, 2023 WL 2771640, at
*2 (6th Cir. Mar. 28, 2023).
Here, Plaintiff has asked this Court to nullify the Juvenile Court’s order and
prohibit GAL Wilhelm from enforcing that order by conducting home visits. Plaintiff
also has asked the Court to impose multi-million-dollar penalties for every visit made by
MCCS employees. The nature of the requested relief plainly “seeks to modify” the
Juvenile Court order and therefore brings the MCCS Contact Claims within the domestic
relations exception. Accordingly, this Court lacks subject-matter jurisdiction over
Plaintiff’s MCCS Contact Claims.
B. 	If the Challenged Juvenile Court Order Is Based Upon a Final
Judgment, This Federal Court Lacks Jurisdiction Over Plaintiff’s
MCCS Contact Claims Under the Rooker-Feldman Doctrine.
It is unclear whether the Juvenile Court order that Plaintiff seeks to nullify is based
upon a final judgment or involves a pending proceeding. If the challenged Juvenile Court
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 6 of 10 PAGEID #: <pageID>

7
order is based upon a final judgment, then this Court lacks jurisdiction over Plaintiff’s
MCCS Contact Claims under the Rooker-Feldman doctrine. See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16 (1983) and Rooker v. Fidelity Trust
Co., 263 U.S. 413, 415-16 (1923). Under that doctrine, federal district courts lack
jurisdiction over cases filed by litigants who lost in state court and “complain of injuries
caused by the earlier state-court judgments.” Exxon Mobil, 544 U.S. at 284 (cleaned up).
As the Sixth Circuit Court of Appeals explained in a similar case:
Suppose a state court, based purely on state law, terminates a father’s
parental rights and orders the state to take custody of his son. If the father
sues in federal court for the return of his son on grounds that the state
judgment violates his federal substantive due-process rights as a parent, he
is complaining of an injury caused by the state judgment and seeking its
reversal. This he may not do, regardless of whether he raised any
constitutional claims in state court, because only the Supreme Court may
hear appeals from state-court judgments.
McCormick v. Braverman, 451 F.3d 382, 394 (6th Cir. 2006) (quoting Hoblock v. Albany
County Bd. of Elections, 422 F.3d 77, 87-88 (2d Cir. 2005)). A plaintiff cannot avoid this
jurisdictional problem “by couching [her] claims . . . in terms of a civil rights action.”
Smith v. Lawrence Cnty. Sheriff’s Dep’t., 84 F. App’x 562, 563 (6th Cir. 2003).
Accordingly, if the challenged Juvenile Court order relates to a proceeding that led
to a final judgment, then the Rooker-Feldman doctrine applies and bars this Court from
exercising jurisdiction over Plaintiff’s MCCS Contact Claims.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 7 of 10 PAGEID #: <pageID>

8
C. 	If the Challenged Juvenile Court Order Was Issued in a Pending Case,
This Federal Court Lacks Jurisdiction Over Plaintiff’s MCCS Contact
Claims Under the Younger Abstention Doctrine.
If, however, the challenged Juvenile Court order was issued in an ongoing case,
then the Younger abstention doctrine applies. See Younger v. Harris, 401 U.S. 37 (1971).
Absent extraordinary circumstances, federal courts may not interfere with pending state
proceedings by hearing constitutional challenges to those proceedings. Instead, a federal
court must abstain under Younger from adjudicating a plaintiff’s claims where “[1] state
proceedings are pending; [2] the state proceedings involve an important state interest; and
[3] the state proceeding will afford the plaintiff an adequate opportunity to raise [his]
constitutional claims.” Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir. 1995).
Here, assuming arguendo that the child custody proceeding is pending, the Court
finds that it involves an important state interest and will afford Plaintiff an adequate
opportunity to raise any constitutional claims. Accordingly, if the challenged Juvenile
Court order was issued in a pending proceeding, then the Younger abstention doctrine
bars this Court from exercising jurisdiction over Plaintiff’s MCCS Contact Claims.
III. 	CONCLUSION
For the reasons stated, the undersigned Magistrate Judge GRANTS Plaintiff’s
Motion to Join City of Dayton as Defendant (Doc. No. 25), ORDERS that the Second
Amended Complaint (Doc. No. 26) constitute the operative pleading in this matter, and
ORDERS Plaintiff to perfect service of the summons and Second Amended Complaint
upon the City of Dayton and Montgomery County Children Services ONLY.
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 8 of 10 PAGEID #: <pageID>

9
The undersigned further RECOMMENDS that District Judge Newman (1)
DISMISS WITH PREJUDICE all claims against Defendants McFadden, Davis,
Burton, Wilhelm, and Montgomery County Job and Family Services—and the MCCS
Contact Claims against Montgomery County Children Services—for lack of subject-
matter jurisdiction, and (2) DENY AS MOOT Plaintiff’s remaining Motions (Doc. Nos.
15, 16 & 17), which deal exclusively with the MCCS Contact Claims.
Plaintiff may file objections to these recommendations as discussed in the Notice
below.
IT IS SO ORDERED AND RECOMMENDED.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge
Notice of Procedure on Objections to this Report and Recommendation
If any party objects to this Report and Recommendation (“R&R”), the party may
serve and file specific, written objections to it within fourteen (14) days after being
served with a copy of it. Fed. R. Civ. P. 72(b). 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. The Court may extend the fourteen-day objections period if a timely
motion for an extension of time is filed.
A District Judge of this Court will make a de novo determination of those portions
of the R&R to which objection is made. Upon proper objection, a District Judge of this
Court may accept, reject, or modify, in whole or in part, the findings or recommendations
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 9 of 10 PAGEID #: <pageID>

10
made herein, may receive further evidence or may recommit this matter to the Magistrate
Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the R&R will result in
a waiver of the right to have the District Judge review the R&R de novo, and will also
operate as a waiver of the right to appeal the decision of the District Court adopting the
R&R. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947
(6th Cir. 1981).
Case: 3:25-cv-00175-MJN-CHG Doc #: 29 Filed: 12/10/25 Page: 10 of 10 PAGEID #: <pageID>