Russell A. Kelm v. C. Hyatt

cashing using checks of her dead name sentence,” might have an effect on her

sister 9, Twitty’s

Appellee’s Brief at “commission of

new crimes while still under the contempt

of the district court demonstrates a judicial authority and indicates that she

would not benefit from a further extension of generally

trust.” Id. at 6. See United States (3d Camarata, Cir.1987) 828 F.2d

(“Courts granted exceptional degree ‘an flexibility’ determining grant when to

probation, equal flexibility and are left an revoke[J”), denied,

determining when cert.

484 98 L.Ed.2d justifiably

Because the district court re- Twitty’s probation

voked when it learned

that she had committed new crimes after guilty

pleading respectful- in district

ly dissent. KELM, Plaintiff-Appellant,

Russell A. HYATT, al., Defendants-Appellees.

C. et

No. 93-3141. Appeals,

United States Court of

Sixth Circuit.

Argued March

Decided Jan. briefed), (argued

Russell A. Kelm Schwartz, Kelm, Rubenstein, & Warren briefed), Harris, (argued and Mark S. Coco McClellan, Cox, Columbus, OH, Binau & for plaintiff-appellant. (briefed), City Attorney’s B. Redick

Glenn Columbus, City Harland H. Office for the briefed), (argued Hale Carol Johnson briefed), Columbus, OH, King (argued and defendants-appellees. for (briefed), Legal Zingg Elaine 0. Aid Soc. Columbus, Columbus, OH, Legal Aid Columbus, amicus curiae. Soc. BATCHELDER, KEITH and Before: JOINER, Judges; and District Circuit Judge.* J.,

KEITH, opinion delivered JOINER, D.J., joined. in which BATCHELDER, 422-26), (pp. J. delivered concurring part separate opinion dissenting part.

KEITH, Judge. Circuit (“Kelm”) ap- A. Kelm Appellant Russell peals the district court’s dismissal of his com- grounds plaint on abstention and the denial of bilateral class certification his challenging constitutionality of two Ohio below, For the reasons stated we statutes. AFFIRM the district court’s dismissal claims for relief on absten- sponte grounds, and sua dismiss Kelm’s tion monetary damages for failure to claim for a claim. decline to reach the mer- We * Joiner, gan, sitting by designation. United States Charles W. The Honorable Judge of Michi- for the Eastern District District challenges sought Kelm’s constitutional or the attack and hospital. its of treatment at local certification. April denial of class On she and obtained a (“CPO”) Civil Protection Order her I. Facts husband from the domestic relations court to Ohio Revised Code wife, 3113.31. January Ap- Kelm sued his Kelm, Amy in pellee for divorce an Ohio April On sought Russell Kelm party relations court. Neither is domestic restraining against and obtained a order fact, fond of the other. Kelm characteriz- Amy Kelm. Russell Kelm’s order restrained suffering from both and a es his wife PMS Amy physically attacking Kelm from him and depressive engaging manic disorder and in destroying any personal from of his or real day Conversely, violence “28 intervals.” property. restraining order was ob- Amy any psychoses, Kelm denies and instead tained based on the Amy same incident history recounts the of Kelm’s domestic vio- used to against obtain her CPO Russell against lence her. Kelm. Over the course the divorce Section 3113.31 enables victims of domestic Amy ings, temporary Kelm obtained three parte protection violence to receive an ex civil restraining pursuant orders to Ohio Rule of (1) by fifing order petition detailing: the 75(H) (“Rule 75(H)”).1 Procedure Rule Civil violence”; “nature and extent of the domestic 75(H) parties in pro- allows both a divorce (2) relationship the respondent, between the ceeding to disposing restrain the other from victim; petitioner, the and the and the subject pending of assets to division within a requested. relief Ohio Rev.Code Ann. similarly divorce case. Kelm a Rule obtained 3113.31(C)(Anderson 1992).2 § parte The ex 75(H) restraining against Amy order Kelm. grant possession orders often exclusive of the 75(H) Although Rule authorizes the issu- residence and pe- household furniture to the restraining hearing, ance of orders without a titioner. may request party either amendment of the any fact, at orders time. Kelm filed a order, Upon request parte for an ex the modify restraining motion to the first order domestic relations court must hold an ex May which was denied June 1990. parte hearing day petition is filed. sought and obtained modification cause,3 petitioner good Where the shows restraining of the second At order. an Octo- may any court permitted order relief under hearing, ber 1991 judge domestic relations 3114.31(E) necessary § protect family opportunity request offered Kelm an fur- or household member vio- ther modification of the orders but parte lence.4 Where the ex order removes refused. respondent grants from exclusive and/or alleges physically petitioner, Russell Kelm use of the residence to the injured shortly attacked and her hearing after he must schedule a full to be held divorce, escaped days filed for and that she the within parte hearing.5 seven the ex order, January prohib- spondent 1. The first issued in to leave the marital residence and not disposing parties’ property. return; ited Kelm from of the granting temporary custody, to visitation, orders order, April preclud- The second issued in support; requir- and financial orders distributing ed Kelm's law firm from certain ing counseling; permitting petitioner and orders order, assets to him. The last dated June vehicle, goods, to use a motor household and prohibited brokerage Kelm’s stock firm from dis- furnishings, agreement pursu- etc. No order or tributing assets to him. any ant to this statute can affect title to real 3113.31(E)(4) property. § Ohio Rev’.CodeAnn. parallel procedure 2. Ohio created criminal (Anderson 1992). passed § the time it 3113.31. See Ohio Rev.Code 2919.25, (Anderson 1992). seq. §Ann. et granted petitioner, If exclusive use is not to the present danger Immediate and of domestic vio- granted, hearing but other relief is full shall good lence constitutes cause. See Ohio Rev.Code days parte hearing. be held within ten of the ex 3113.31(D) (Anderson 1992). §Ann. are; 4.Included in the available relief orders to abuse; requiring refrain from further orders re- Moore, Moose, and D. E. R. Moore Follmar. of the given notice full must be

Respondent against Deputy Sheriff heard. also filed suit opportunity be He hearing Weber, clerk Park- Barbara Sharon any of a law officer authorizes The statute hurst, Amy Kelm. The aforementioned provisions to enforce agency enforcement Appellees in the instant case. are the in- order. Enforcement alleged II the unconstitutionali- Counts and respondent to remove power cludes 75(H) sought ty § and Rule 3113.31 appropriate. Ohio where premises from the U.S.C. (Anderson 3113.31(F)(3) Ann. Rev.Code III and IV 1983. Counts 1992). any parte ex order The duration of the CPO alleging service and execution of its year from the date to one limited process of law violation denied him due issuance. chal- V and 42 U.S.C. 1983. Counts VI Amy 12, 1990, seeing Kelm after April On antenuptial agree- validity of an lenged the testimony, court found hearing her the and Kelm and his wife. ment between requiring and issued CPO “good cause” violence and from further refrain Kelm 1992, of Kelm certification April In The court marital residence. the vacate plaintiff action. The class a bilateral class 19, hearing April for a full scheduled will persons in Ohio who are or included all Amy entered day, and Kelm Kelm On that subject to civil orders be and/or settling the agreement handwritten into a restraining temporary orders. The defen- to the Pursuant violence case. officers, police sheriff included all dant class her CPO Amy withdrew agreement, Kelm non-judicial personnel deputies, and court a new CPO agreed not to file for petition and enforcing protective and charged With agreement also incident. on this based restraining orders. to live in Amy and the children Kelm allowed 1992, September In the district court de- home, temporary custo- granted the marital Subsequently, Kelm nied class certification. Kelm, provid- Amy and dy of the children III voluntarily agreed count and withdrew support. This and child visitation ed for abeyance. Addition- hold V and VI counts temporary as a order was entered agreement ally, specifically noted that defendants divorce. pending in the Parkhurst were not included and Weber modify attempted to Subsequently, remaining for scope of his claim within the First, he unsuc- agreement. or aside the set 80-82) (JA re- damages. pp. negotiate changes with cessfully tried maining the district before counts coercion, Next, alleging he attorney. (1) relief, individually and sought: agreement. to vacate the a motion filed class, proce- alleging the two Ohio appeal in filed a notice Kelm then written, dures, plaintiffs pro- denied due Tenth Dis- proceeding pending divorce (2) law; damages as an individual cess alleging, among other Appeals trict Court alleging to 42 U.S.C. unconstitutionality of the statuto- things, the deprived of the CPO and execution service of do- relief to ry granting victims scheme pro- liberty property without him of due court dismissed Kelm’s violence. mestic separate All filed defendants cess law. appealed wrong finding he had appeal motions dismiss. pending appeal within and that order appealable final order. proceeding was not a 1992, grant- district court In December propriety again appealed the 12(b)(6) motion to dis- Amy Kelm’s Rule ed statute.- CPO Ohio’s grounds delineated on miss moot and raised found the issues Harris, Younger v. appeal. his dismissed (1971). timely appeal This 27 L.Ed.2d 669 count a six Kelm filed In October followed. complaint in the United States

class District of for the Southern Court District II. Discussion Police Offi- Columbus against several Ohio argues: Litchfield, appeal Kelm Kaylor, D. B. On Hyatt, A. C. cers: (1) improperly ings the district court dismissed important when state interests are in grounds; the case on abstention 423, 432, volved.” 457 U.S. (1982) (citations 73 L.Ed.2d 116 (2) 75(H) omit the Rule and the Civil Protection ted). Later, the Court extended the Youn procedures Order “violate fundamental ger principles to Process”; proceedings. state civil

Due Texaco, Inc., Pennzoil Co. (3) the district court abused its discretion by denying bilateral class certification. Pennzoil, the Court held that federal courts Because we find that the district court must abstain hearing challenges from properly injunc- dismissed Kelm’s claims for pending state proceedings where the state’s grounds, tive relief on abstention we do not important interest is so that exercising feder reach the denial of class certification. Addi- al disrupt would comity be tionally, we decline to rule on the constitu- tween federal and state courts. tionality of the Ohio statutes at Al- issue. Interpreting authorities, the above we though improper abstention was on Kelm’s have held that requires Younger federal claim, damages sponte we sua dismiss his (1) courts to abstain where: claim for because Kelm failed to (2) ings pending; proceedings state a viable claim. discuss each We hold- important interest; involve an ing below. proceedings will plaintiff afford the an opportunity to raise his constitu- Younger Proper A. Abstention was tional claims. Nilsson v. Ruppert, Bronson First, argues the district that court Co., (6th & Chicarelli 888 F.2d by dismissing erred claims for his Cir.1989). Applying these criteria to this relief on grounds abstention as enunciated in case, Younger proper. was Harris, Younger v. 91 S.Ct. (1971). argues absten- Proceeding 1. A Pending State inappropriate tion is his rights for “civil chal- First, we have held that “if pro a state lenge” to two provi- Ohio domestic relations ceeding pending is at the time the action is alleges sions. He by the district erred in filed federal the first criteria for abstaining challenged proce- because the Younger abstention is satisfied.” Federal pre-judgment dures are and his claims do not Express Corp. v. Tennessee Pub. Serv. the underlying affect merits of the divorce Comm’n, (6th Cir.1991), 925 F.2d disagree. case. We denied, cert. Here, the district court found that (1991). L.Ed.2d 35 Here it undisputed pending the implicated divorce important that underlying the pending divorce case was regarding state issues the resolution of do at Thus, the time he filed his federal action. disputes. mestic further found the first Younger element of is satisfied. although that provide the Ohio courts adequate opportunity present his Proceedings 2. The State Involved challenges, constitutional he has Important declined to State Interests do so. We review de novo district court’s Next, specifically not does ar decision to abstain Younger. under See gue proceedings that the state do not involve Conlin, (6th Cir.1994). Mann v. 22 F.3d 100 important argues He instead interests. below, As discussed the district court cor first, Younger that apply does not to civil rectly Younger dismissed on the basis of the rights second, actions and that because the doctrine. challenged pre-judgment statutes do not af Harris, Younger

In the Court fect underlying the merits of the divorce case required that a they federal court abstain from per do not important se involve enjoining pending proceed- First, state criminal rights interests. Younger was a civil ing. County In Middlesex Ethics Comm. v. consistently and we have extended its Ass’n, Garden State Bar applied the Court principles to actions filed Younger Mann, “to non-criminal e.g. Further, at 104-05. al- validity “pre- challenging before challenged procedures are the divorce

though the 75(H) 75(H) restraining property orders. allocates the Rule judgment,” Rule during pendency of custody and child Initially, presume we must actions, protec- offers 3113.31 divorce protect interests state courts are able great has violence. Ohio domestic tion from Pennzoil, plaintiff. 481 U.S. at of the federal regulating domestic vio- in state interests Pennzoil, the Court property from both protecting lence and judges because all state court noted These pending divorce. tradi- parties to a Constitution, bound the United States qualify issues relations tional domestic federal courts: ele- under second important state issues judges inter- cannot assume that state will fact, recently af- we Younger. ment of procedural pret ambiguities in state law to the under- abstain where firmed a decision to presentation of federal claims.... bar domestic relations be- lying involved issues Accordingly, litigant when a has not at- proceedings involve relations cause domestic present his federal claims in tempted to state interests. “paramount” proceedings, a federal related state-court recently Further, Supreme Court out procedures assume that state court should supporting exclu policy considerations adequate remedy, lined afford an will jurisdiction over divorce matters. unambiguous authority sive state to the absence — Richards, U.S.-, Ankenbrandt contrary. See L.Ed.2d 468 plain- Id. at 107 S.Ct. at 1528. Ankenbrandt, narrowed although Court prove inadequacy of the state tiff must “domestic rela traditional scope of the courts. did not overrule exception,” the Court tions those be- The facts Pennzoil resemble holding that rela prior decisions its Pennzoil, party sought In fore us. of state concern.” area tions is “a traditional alleging pursuant 1983 Texas Sims, 415, 435, 442 U.S. e.g. Moore party did ings violated the Constitution. The (1979). 2371, 2383, In L.Ed.2d 994 S.Ct. present claims to the state court. not these fact, “spe noted the Court the Ankenbrandt and the The district court did not -abstain developed state tribunals proficiency cial Appeals Supreme affirmed. The Court of handling a half in century and past over the finding Younger abstention Court reversed granting such in the that arise the issues appropriate. reversing, the Court was — at-, at 2215 S.Ct. decrees.” “open court significance noted the of Texas’ added). Here, challenged (emphasis provides that all courts shall provision” which underlying divorce and statutes affect provided, to all in- open, be and remedies satisfy thus interests important involve jured open persons. Based on Texas’ courts Younger criteria. ing the second plaintiffs attempt provision and the failure to courts, to secure relief the state Court Provide an The Courts State plaintiff did not meet its burden to found the Adequate Opportunity to Raise inadequacy courts. prove the of the state Claims Constitutional Similarly, prove Kelm has failed inadequacy of the courts. As was the courts can- Ohio Finally, argues the Ohio Pennzoil, “open has an courts opportunity to raise case in Ohio adequate an provide not 1, § provision” found in Article 16 of the alleges he claims. his constitutional Here, courts procedures Constitution. the Ohio challenge be- Ohio can not the CPO question their given us no reason to her CPO. He have cause Kelm withdrew Kelm’s con- inadequate ability willingness or to address are be- argues also Ohio courts questions. the Ohio stitutional Because until the settlement cause he must wait fact, Against passage National Coalition Do- of Arkansas’ tic violence. See the 1991 after act, every Violence; the United state of new civil World Almanac 839 mestic The statutory protect provides scheme to States (noting to four mil- that in 1989 between three These statutes re- of domestic violence. victims wives). their lion men abused pervasiveness of domes- flect the seriousness and provide courts an forum for Kelm’s immunity. policy Public well established claims, constitutional grant the third criterion of law qualified immunity gov to those Thus, Younger is satisfied. abstention was ernment perform officials who discretionary proper in this case. functions and whose conduct does not violate clearly statutory established or constitutional Challenges

B. Kelm’s Constitutional rights. Fitzgerald, Harlow v. 2727, 2732-33, above, L.Ed.2d 396 As discussed because abstention (1982); Ray, Pierson v. proper, we decline to reach the merits of 1213, 1217-18, (1967). S.Ct. 18 L.Ed.2d 288 challenges constitutionality an protected “Whether official by qualified procedures. Similarly, the Ohio proper may immunity held personally be Hable for any dismissal moots discussion of denial allegedly unlawful generally action of class turns certification. ‘objective on legal reasonableness’ of the C. Kelm Failed to State Hght assessed legal rules that Damages a Claim for ‘clearly were established’ time it was taken.” Anderson v. Creighton, 483 U.S. Next, we must address Kelm’s claim for 635, 639, 107 3034,3038, S.Ct. 97 L.Ed.2d 523 monetary damages. Court has proceedings held that where state can not party’s relief, address a claim for monetary Clearly, citizens must be afforded due improper abstention is for this claim. See process deprivation life, before Hberty or Deakins v. Monaghan, 484 U.S. Here, property. however, when officers (1988) (“the Dis- CPO, § executed the 3113.31 was constitu trict Court has no discretion to rath- dismiss tional procedures its presumed were ad stay er than to claims for monetary relief equate. “clearly there was no estab that cannot be pro- redressed Hshed” with law which the officers failed to ceedings”). Bach, applied Litieral v. we Instead, comply. rightfully the officers exe Deakins and held that a district court erred cuted a presumably CPO to a con by dismissing money damages claim on officers, therefore, statute. stitutional (6th grounds. 869 F.2d qualified entitled to immunity and Kelm’s Cir.1989). Here, although the district court claim must them fail. dismissed the entire case on abstention grounds, the district court did not be- err Against Amy 2. Kelm’s Claim Kelm cause, below, as discussed Kelm failed to Although specifically Kelm never included state a viable damages. claim for Amy claim, damages Kelm within his he al- damages pursuant §to 1983 leged she that “invoked the for the service and execution of April 12 relations obtaining court in a which, Kelm, CPO according to constituted a through perjury, pohce CPO [and] notified peace breach of the wrongful and a arrest officers to enforce it material through mis- depriving thus liberty property him of and prior statements about service and an imme- process without due of law. Because Kelm this, diate threat of Construing violence.” specifically dismissed defendants Parkhurst complaint broadly, allegations we read these claim, damages Weber from his we must attempt as an damages Amy to seek from examine whether he stated a claim viable Kelm. against remaining defendants —the seven police Columbus officers who served and exe- correctly in notes that some CPO, wife, cuted the Amy and his Kelm. § private parties. instances 1983 extends to 1983, To a establish viable claim under Against 1. Kelm’s Claim however, prove Amy Kelm must first that Police Columbus Officers him deprived guaranteed right of a First, assuming validity statute, of under color of the challenged allegations, Kelm’s police the Columbus offi second properly that her actions attrib were protected cers are by qualified state, nonetheless qualified utable to the i.e. that she as a 422 Brothers, Brooks, sponte dismiss grounds, and we sua v. tion Flagg Inc. actor. state 1729, 1733, monetary 156, remaining claim for 149, 56 Kelm’s 98 S.Ct. U.S.

436 (1978); Wolotsky v. also to state a claim. see for failure 185 L.Ed.2d Cir.1992). (6th 1331, Huhn, 1335 F.2d 960 a state Here, BATCHELDER, Kelm utilized although Judge, Circuit qualifies statute, prove she dissenting part. can not that concurring part in in a state actor. adjudi- agree from While I that abstention Co., the Court Oil Lugar v. Edmondson equitable claims is cating Russell parties can be deemed private that found Harris, 37, Younger v. 401 U.S. proper under color of state law when acting under the be (1971), 746, my 91 S.Ct. conjunction officials acting in with state principles analysis of the abstention differs proceedings. 457 garnishment or attachment majori- employed by the from that somewhat 2744, 922, 482 73 L.Ed.2d U.S. Also, agree I that ty that result. reach however, noted, further The Court damages is not claims dismissal of party utilizes an private even where Monaghan, 484 light of Deakins v. proper statute, allegedly unconstitutional 523, 98 L.Ed.2d U.S. S.Ct. not on the terms of must focus courts respectfully but dissent from of the defen- on the character statute but majority’s to address the decision Lugar, 457 U.S. at 1983 suit. dants to sepa- merits. I therefore write claims on the 2754-55. Court ex- 102 S.Ct. at rately. “[ajetion by private party pur- plained that statute, something this without suant I. more, justify a charac- not sufficient found Youn- this case district as a ‘state actor.’” party of that terization applicable ger to Kelm’s constitu- ap- tional relief. An claims party qualifies as a “state Whether peals the decision to abstain de court reviews of each the circumstances varies with actor” Beauchane, F.2d Traughber v. novo. has articulated sever the Court ease. (6th Cir.1985). 673, 676 in different contexts. al to be used tests Court refused Younger, Adams, e.g., Terry 345 U.S. v. enjoin prosecution under the Califor (1953) (“public function” 97 L.Ed. 1152 Syndicalism purpose Act for the nia Criminal Alabama, test); Marsh determining federal that statute’s constitu (“state compul 90 L.Ed. S.Ct. doing, tionality. In so the Court created Co., test); Kress & Adickes v. S.H. sion” policy precedent for a fundamental 1598, 1615, 26 L.Ed.2d 90 court interference with federal Brothers, (1970) (“nexus” test); Flagg proceedings. Younger, 401 U.S. at Brooks, Inc. grounded this 750. The Court 91 S.Ct. at (1978) (“joint action test” for L.Ed.2d comity, equity, and feder policy of notions attachments). Even prejudgment of eases component ab equity alism. counsels to their stretch the above tests when we moving party ade has an stention “when limits, Amy qualify as a Kelm does not outer remedy at and will not quate law suffer damage claim actor. injury equitable if relief.” irreparable denied We, therefore, fail. sua against her must 43-44, Comity at 750. Id. at 91 S.Ct. reflects damage claim for fail sponte dismiss Kelm’s Id. respect for state institutions. to state a claim. ure sensitivity Similarly, requires to federalism protect primarily prerogative the states’ III. Conclusion Id.; v. state interests. see also Zalman above, we AF- the reasons stated For (6th 199, Cir. Armstrong, 802 F.2d 201-02 the decision of the Honorable Sandra FIRM 1986). Beckwith, Judge for United States District S. civil Ohio, Younger extended to some dismissing has been of Southern District Texaco, See, v. e.g., Pennzoil Co. on absten- contexts. claims for Inc., 1, 107 1519, involving parte 95 L.Ed.2d in case temporary 481 U.S. S.Ct. ex child (1987) (state order); custody Turner, interference suit tortious Parker v. 626 F.2d contract); (6th Cir.1980). Rights 1, Furthermore, with Ohio Civil Comm’n 4 & n. 7 Schs., Inc., 619, Dayton Christian civil quasi-criminal order is in na- (state 2718, ture, 106 S.Ct. 91 L.Ed.2d 512 making policy Younger directly agency proceeding); administrative Therefore, apt. the state proceeding in- Huffman Ltd., Pursue, 420 U.S. 95 S.Ct. volves Ohio’s ordering vital interest in the (1975) (civil involving 43 L.Ed.2d 482 suit divorcing parties’ prevention affairs and the statute). state nuisance In Middlesex Coun of domestic violence. Ass’n, ty Ethics Comm. v. Garden State Bar majority’s While I find the use of Anken 423, 102 S.Ct. 73 L.Ed.2d 116 — Richards, U.S.-, brandt v. (1982), Supreme analy Court defined the misleading, I First, determining sis for when to abstain. agree that Ankenbrandt does not hinder the pending proceeding? is there a Sec Younger conclusion that proper abstention is ond, proceeding implicate important does the equitable as to Kelm’s claims. Ankenbrandt Third, state interests? is there an brought involved a tort suit in federal court opportunity challenges to raise constitutional a citizen of Missouri her former proceeding? If the answer companion, husband and his female both citi questions yes, each of these is the federal plaintiff zens of Louisiana. mon at must abstain. Id. at etary damages alleged for the defendants’ 2521.1 children, abuse of her whose father is the plaintiff’s ex-husband. The district court dis A.' missed the grounds, case on two abstention action, At time Kelm filed this federal exception the domestic relations to fed proceeding pending. state divorce diversity jurisdiction, eral and the court of prong This satisfies the first of the Middle- appeals unpublished affirmed in an opinion. Morris, inquiry. e.g., sex Kenner v. at-, 112 S.Ct. at 2209. (6th Cir.1979) 22, 24 (finding F.2d appropriate alimony proceeding pend- where courts, reversing lower ing). proceeding Whether the state divorce vitality Court confirmed the of the domestic is, pending purposes now is irrelevant for exception diversity juris relations to federal analysis. the abstention See Pennzoil Co. v. diction, exception’s ap but circumscribed the Texaco, Inc., 17 n. plication. -, Id. a 112 S.Ct. at t — (1987) (finding 1529 n. L.Ed.2d language 2213-15. opin While some proceeding satisfy Middlesex test suggests exception ion that the is limited though rehearing even state court denied due divorce, requesting suits the issuance of a default); Zalman, procedural 802 F.2d at alimony, decree, custody or child the Court’s 202-05. abstention, discussion of which is a doctrine question jurisdiction, distinct from the

B. not,rule does out the relevance of abstention principles in cases where the proceeding The state divorce domestic rela fulfills the exception prong inapplicable. second tions Id. at- inquiry. of the Middlesex It is -, Therefore, well-recognized 2215-16. Ank- area primarily speak relations is a state enbrandt does not to the issue of interest. See Sims, 415, 435, Moore 442 Younger v. U.S. 99 S.Ct. whether the second is sat criterion 2371, 2383, (abstaining in isfied this case. Rather, Citing Express Corp. merely authority. Federal v. TennesseePublic not Sixth Circuit it is Comm’n, (6th Cir.), Service 925 F.2d 962 cert. explicitly by Supreme laid out the Court in Mid denied, 116 L.Ed.2d dlesex, 457 U.S. at 102 S.Ct. at 2521. Ruppert, and Nilsson v. Bronson & Express, Nilsson and Federal the Sixth Circuit Co., (6th Cir.1989), Chicarelli 888 F.2d 452 the merely precedent, followed as we Court majority credits the Sixth Circuit with the deriva are bound to do. three-pronged tion of this test. But this test is claim, not due to the merits of the responds to Kelm’s to reach majority also authority, unwillingness or lack of but due to Younger abstention that argument

broad court rights cases. The of Kelm’s claims. The to civil the mootness apply not does rights writes, “Younger party may appeal was a civil not a that a majority reasoned consistently its granted request. extended judgment have that was at his action and we filed actions principles impor I think it is op. at 419. § See 1983.” attempted challenge the has not phrase statement. clarify this

tant to 75(H) in constitutionality of Rule Ohio an has come to mean rights action” “civil circumstances, such the court. Under rights of the civil under one filed action adequate: presumed proceedings court challenge a facial Younger involved statutes. [Wjhen attempted not litigant has Amendment on First statute to a state in claims related state- present his federal government grounds, not a suit should proceedings, a federal court rights statute. There a civil official under' an procedures will afford assume that state in the fore, rights civil Younger was a remedy, in the absence of unam- creates and First Amendment sense that the contrary. said, authority agree biguous rights. That with protects civil properly extends majority Younger that Texaco, Inc., 1, 15, Pennzoil Co. v. rights civil stat under the to federal suits (1987). 95 L.Ed.2d Pennzoil, e.g., utes. contends, however, filing ap- that an 1983); (action under 42 U.S.C. the divorce peal prior to the resolution of (6th Cir.) Conlin, 22 F.3d 100 Mann be fruitless because the TROs case would — U.S.-, denied, (same), cert. are, CPO, interlocutory merely like the 130 L.Ed.2d therefore insists the state nature. Kelm because, inadequate proven courts are C. courts attempts appeal, his two analysis prong of the abstention The third con- opportunity no for review of afford adequacy of focuses on the stitutionality and TROs until the of CPOs the constitutional proceeding to entertain divorce case. resolution of the attempted to challenges. has twice persuasive. Kelm argument is not constitutionality of Ohio Re- challenge the argument only, and raised this issue at oral First, in state court. 3313.31 vised Code authority” “unambiguous he has not offered granted in a although had been the CPO delay proposition that the entailed case, for the Kelm filed separate domestic violence finality him an applying the doctrine denies ac- pending divorce appeal in the notice of adequate opportunity for review and redress. tion, granting seeking to contest Indeed, that, suggests notwithstand- case law appeals dismissed state court CPO. The doctrine, finality ing delay in the granting inherent finding that the order appeal, opportunity to raise constitutional claims divorce action an filed the CPO had been though opportunity adequate even such violence action but the domestic as well as only upon appellate review. Watts final, In re arises appealable order. See not a (6th Cir.1988), Burkhart, (Franklin Kelm, Cty.Ct.App. 854 F.2d 839 90AP-623 No. 1991). grounds, case later heard en banc on other Kelm obtained the Then Mar. opportunity plaintiff contended that domestic violence dismissal which, inadequate claims was ease, inadvertently to raise constitutional remained had Board of Medical because the administrative parties’ settlement. pending despite the dismissal, claims were not again Examiners had concluded his appeal Kelm filed This scope of review. dispute consti- within the Board’s opportunity to seeking an opportunity for found that the statute. Court tutionality of the Ohio CPO proceeding was 92AP-1683, Kelm, review of the administrative 1993 WL Kelm v. No. 1993), (Franklin inadequate purposes of abstention not Cty.Ct.App. June unpersuaded that Watts 1510, analysis: dismissed, “[W]e N.E.2d 622 67 Ohio St.3d adequate opportunity (1993), will not have court of refused appeals 658 the state

425 point Younger claims at some abstention under raise Ms constitutional similar circum- stances). Id. at 848. This proceedings.” well-grounded in was Su- Court’s decision II. authority involving analogous

preme Court Rights See Ohio Civil Comm’n v. situations. The district court also abstained from ad- Schs., Inc., 619, 477 Dayton Christian U.S. judicating monetary Kelm’s claims for 2718, 2723-24, 629, 106 S.Ct. § 42 Citing under U.S.C. 1983. Deakins v. (1986); County Ethics Middlesex Comm. 193, Monaghan, 523, 98 Ass’n, 423, Bar 436 & Garden State Bach, L.Ed.2d 529 Litteral n. 2523-24 & n. (6th Cir.1989), majority F.2d 297 inde- (noting that re- L.Ed.2d pendently addresses Kelm’s claim for mone- proceeding view of the admimstrative tary damages § under because absten- available and even where interlocu- improper tion is [pending] pro- “where denied). tory review had been ceedings party’s can not address a claim for relief_” monetary op. See at 421. The Moreover, there is no indication in the majority qualified immunity then affords delay will harm Kelm’s interests. record police the Columbus officers finds the therefore, withdrawn; The CPO has been requirement lacking respect state action with imposition even if the of the CPO caused reasons, Kelm.3 For these the ma- injury, constitutional wMch I not do jority § damages dismisses the claims concede, injury no can accrue. further Un- for failure to state a claim. 75(H), may petition der Rule for vaca- agree I majority with the that Deakins and any or modification of the TRO at time. tion Litteral bar monetary dismissal of Kelm’s Presumably, one for a motion basis to vacate grounds. claims on abstention OMocourts of alleged unconstitutionality is the of the rule pleas may against common entertain actions Indeed, that authorized the TROs. § state actors based on 42 U.S.C. 1983. received of the TROs several times. review Trustees, Schwarz v. Board 31 Ohio St.3d postponement hearing.on (1987); 510 N.E.2d 808 Jackson v. until a the constitutional claims issuance of Kurtz, App.2d 152, 65 Ohio 416 N.E.2d 1064 pro- final order does not render the state (1979). Russell Kelm the divorce action filed ceedings inadequate purposes Younger for in the domestic relations division of the court abstention.2 pleas County. of common for Franklin I Accordingly, properly acknowledge gives the district court ab- that Ohio law adjudicating judges capacity stained from Kelm’s claims for relations the same to receive Conlin, equitable pleas judges, relief. See Mann v. as the common see (6th Cir.1994) 2301.03(A) (Anderson (applying § F.3d 105-06 Ohio Rev.Code Ann. assessing adequacy filing § court rather than 1983 action observes, ings, majority similarity imper- "The facts in Penn- in federal court. Even this op. fect, however, resemble those before us.” See at any zoil because Texaco failed to raise misleading. this statement is did think Pennzoil of its constitutional claims in state see id. temporary not involve civil or re- at S.Ct. at while Kelm straining order in the context of a divorce action. (those CPO) respecting raised some and not it, Far from involved a state suit Penn- Pennzoil (those TROs). respecting others brought against for zoil Texaco tortious interfer- agreement purchase ence with Pennzoil's majority 3. The does not address the 1983 lia- Pennzoil, Getty from Oil Co. at stock bility of defendants Parkhurst and Weber be- jury 107 S.Ct. at 1522. After the verdict specifically cause "Kelm dismissed defendants Texaco, entry judgment, but before Texaco damages and Weber his Parkhurst from alleg- filed federal suit under U.S.C. 1983 Op. at claim....” 421. This characterization of ing procedures that the Texas enforcement respect Kelm's actions with to Parkhurst and judgment violated Texaco’s constitutional Rather, quite stat- Weber is not accurate. 6-7, rights. Id. at 1523-24. ed in a memorandum to the district court that Complaint "there was no intention in the similarity The relevant is not between the "facts,” scope proce- [Parkhurst Weber] but between Texaco’s and Kelm’s include within present dural failure to constitutional claims to of" the claim. however, parties have cited Supp.1992); statute, and I am

to this Court no Ohio COMPANY, In re The JULIEN Debtor. none, actually granting domes- aware of Ohio COMPANY, INC., OAKLAND GIN courts over

tic relations Defendant-Appellant, monetary damages. Similarly, the claims for any identified Ohio case in parties have not court in fact exer- a domestic relations which MARLOW, Jack Trustee for the Julien jurisdiction. such

cised Company, Plaintiff-Appellee. majority’s application of Dea- While the No. 93-6201. proper, I find the re- kins and Litteral majority’s analysis inadvisa- mainder Appeals, United States Court of time the district court ordered ble. At the Sixth Circuit. grounds, on abstention the defen- dismissal summary judgment dants’ motions for were Argued Sept.

pending. Because the district court ab- Decided Jan. adjudicating damages stained from claims, a rul- the district court never issued Upon

ing the claims’ merits. review of on record, say I cannot with conviction that allege any

Kelm is unable to set facts against police claim

which will state a Similarly, Lugar under

officers. Co., Inc.,

Edmondson Oil it is con- a claim

ceivable that Kelm states on her invocation of state Kelm based securing a in-

procedures for CPO and the executing

volvement of the officers Also, question arises whether the

order. summary judg-

defendants are entitled immunity qualified on or an anal-

ment based

ogous good faith defense. See id. at 942 n. at 2756 n. 23. Under the facts case, Court, the district not this this in the first instance wheth-

should determine plead-

er claims fail on the summary judgment.

ings on motion for or

Accordingly, I remand Kelm’s dam- would

ages claims to the district court for consider-

ation.

Case Details

Case Name: Russell A. Kelm v. C. Hyatt

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 18, 1995

Citation: 44 F.3d 415

Docket Number: 93-3141

Court Abbreviation: 6th Cir.