Howard v. Whitbeck

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 31, 2004
• Docket: 03-1396
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Howard v. Whitbeck, et al. No. 03-1396 ELECTRONIC CITATION: 2004 FED App. 0286P (6th Cir.) File Name: 04a0286p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Sarah M. Riley, WARNER, NORCROSS & FOR THE SIXTH CIRCUIT JUDD, Grand Rapids, Michigan, for Appellant. Kevin R. _________________ Himebaugh, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Sarah M. JAMES L. HOWARD , X Riley, WARNER, NORCROSS & JUDD, Grand Rapids, Plaintiff-Appellant, - Michigan, for Appellant. Kevin R. Himebaugh, OFFICE OF - THE ATTORNEY GENERAL, Lansing, Michigan, for - No. 03-1396 Appellees. v. - > _________________ , WILLIAM C. WHITBECK , Chief - OPINION Judge of the Michigan Court - _________________ of Appeals; MAURA D. - CORRIGAN , Chief Justice of - KAREN NELSON MOORE, Circuit Judge. Michigan the Michigan Supreme Court, - prisoner James L. Howard (“Howard”) appeals from the Defendants-Appellees. - district court’s dismissal of his § 1983 suit for lack of subject - matter jurisdiction on the basis of the Rooker-Feldman N doctrine. Howard had filed suit against William C. Whitbeck Appeal from the United States District Court (“Whitbeck”), Chief Judge of the Michigan Court of Appeals, for the Western District of Michigan at Lansing. and Maura D. Corrigan (“Corrigan”), Chief Justice of the No. 02-00093—Wendell A. Miles, District Judge. Michigan Supreme Court, alleging that he had been denied access to the courts under MCL § 600.2963, requiring certain Argued: June 11, 2004 filing fees to be paid by prisoners before filing civil suits. Howard previously had appeals rejected by both the Michigan Decided and Filed: August 31, 2004 Court of Appeals and the Michigan Supreme Court for failure to pay filing fees. While the district court was correct to Before: SILER, MOORE, and BALDOCK, Circuit dismiss Howard’s claim that § 600.2963 was unconstitutional Judges.* as applied to him, as that claim is barred by Rooker-Feldman, we conclude that the district court erred in deciding the merits of Howard’s general challenge to the statute in deciding it lacked subject matter jurisdiction. The failure of a claim on the merits does not divest the district court of jurisdiction. * We therefore hold that the district court erred in dismissing The Ho norable B obb y R. B aldock, Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

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that part of the complaint, and REVERSE the judgment of Supreme Court,” complaining that requiring two filing fees the district court. and denying the indigency application had been in error and that MCL § 600.2963(8), requiring filing fees for prior cases I. BACKGROUND to be paid in full before subsequent suits can be filed, was unconstitutional. J.A. at 14-15 (Compl.). Because Howard Given Howard’s pro se status in the Michigan courts and in did not pay the initial partial filing fee required by the filing his initial complaint in the United States district court,1 February 26 order and refile his pleadings with that fee, his and the sparse nature of the state-court records filed in the appeal was not officially filed. district court, the procedural history of Howard’s suit in the state courts is not entirely clear on appeal. On September 20, The application Howard submitted to the Michigan 2000, Howard and two other prisoners, James Tomzek Supreme Court does not appear in the Joint Appendix, but the (“Tomzek”) and Stuart Trosky (“Trosky”), filed suit in the docket sheet for Howard’s suit in the Michigan Court of Ingham County Circuit Court, complaining of prison Appeals indicates that he filed an “Inter Application” to the conditions, namely environmental tobacco smoke. On Michigan Supreme Court on March 21, 2002. J.A. at 127. A September 12, 2001, the suit was dismissed, presumably on motion to waive fees for the appeal to the Michigan Supreme the merits, as it was after extensive briefing. Along with the Court appears on the Court of Appeals docket sheet as well; appeal filed by Tomzek and Howard,2 a motion to waive fees the entries for both “Sct Motion:Waive Fees” and was filed on January 2, 2002. When that motion was “SctOrder:Denying Motion” are dated March 25, 2002, J.A. docketed, it was classified as only having been filed for at 127, but Howard’s appellate brief indicates that he filed the Tomzek, and Howard’s federal complaint seems to indicate waiver at the same time as his application (i.e., March 21). that this was the case: “Plaintiff and Mr. Tomzek filed a The Michigan Supreme Court Order of March 25, 2002 claim of appeal along with a motion for waiver of fees and required an initial partial filing fee of $21.00, which Howard costs and prisoner account statement for Mr. Tomzek.” Joint did not pay, and his appeal to the Michigan Supreme Court Appendix (“J.A.”) at 12 (Compl.). It appears from Howard’s was dismissed on May 8, 2002. On May 10, Howard complaint that he and Tomzek believed only one fee was submitted a “Motion For Show Cause Hearing” to the necessary, and so filed a waiver for just Tomzek. The waiver Michigan Court of Appeals, alleging three errors: the “split motion is not in the Joint Appendix, nor does it appear to filing fee” (requiring money from both Howard and Tomzek); have been part of the record in the district court. In any case, the denial of his motion for waiver of the fee; and that the that motion was denied on February 26, 2002, by Chief Judge refusal to file Howard’s appeal had resulted in a constitutional Whitbeck. Tomzek paid the partial fee he had been directed violation. J.A. at 137-38 (Mot. For Show Cause Hr’g). This to pay; Howard instead filed “an application to the Michigan motion was returned to Howard on May 15 because he no longer had an appeal pending in the Michigan Court of Appeals. 1 Counsel was appointed by the district court subsequent to the filing On June 11, 2002, Howard filed a complaint in the United of Ho ward ’s complaint, and the same appo inted counsel represents States District Court for the Western District of Michigan, Ho ward on ap peal. asking for a declaratory judgment and a preliminary 2 injunction against Chief Justice Corrigan and Chief Judge No explanation appears for Tro sky’s nonparticipation in subsequent litigation. Whitbeck requiring them to accept his appeals despite his No. 03-1396 Howard v. Whitbeck, et al. 5 6 Howard v. Whitbeck, et al. No. 03-1396

failure to pay his filing fees. A motion to dismiss on the basis § 600.2963. Indigent prisoners; filing of civil action of the Rooker-Feldman doctrine was filed on August 9, 2002, or appeal in civil action; submission of by Chief Justice Corrigan and Chief Judge Whitbeck. institutional account for payment of Counsel was appointed for Howard on October 7, 2002, who filing fees filed a response to the motion to dismiss and a motion for summary judgment on November 15, 2002. On March 19, Sec. 2963. (1) If a prisoner under the jurisdiction of the 2003, the district court granted Chief Justice Corrigan and department of corrections submits for filing a civil action Chief Judge Whitbeck’s motion to dismiss. Howard filed a as plaintiff in a court of this state or submits for filing an timely notice of appeal. appeal in a civil action in a court of this state and states that he or she is indigent and therefore is unable to pay II. ANALYSIS the filing fee and costs required by law, the prisoner making the claim of indigency shall submit to the court A. Standard of Review a certified copy of his or her institutional account, showing the current balance in the account and a We normally review de novo the district court’s decision to 12-month history of deposits and withdrawals for the dismiss for lack of subject matter jurisdiction under Federal account. The court then shall order the prisoner to pay Rule of Civil Procedure 12(b)(1). See COB Clearinghouse fees and costs as provided in this section. The court shall Corp. v. Aetna United States Healthcare, Inc., 362 F.3d 877, suspend the filing of the civil action or appeal until the 880 (6th Cir. 2004). Where the district court does not merely filing fee or initial partial filing fee ordered under analyze the complaint on its face, but instead inquires into the subsection (2) or (3) is received by the court. If the court factual predicates for jurisdiction, the decision on the Rule orders that a prisoner pay a filing fee or partial filing fee, 12(b)(1) motion resolves a “factual” challenge rather than a all documents submitted by the prisoner that relate to that “facial” challenge, and we review the district court’s factual action or appeal shall be returned to the prisoner by the findings for clear error. See RMI Titanium Co. v. court along with 2 certified copies of the court order. An Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. additional certified copy of the court order shall be sent 1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. to the department of corrections facility where the 1994); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d prisoner is housed. The prisoner then shall, within 21 320, 325 (6th Cir. 1990). While this is a “factual” challenge, days after the date of the court order, resubmit to the as the parties submitted exhibits relating to the state-court court all documents relating to the action or appeal, proceedings, the district court made no factual findings that accompanied by the required filing fee or partial filing would require deference. fee and 1 certified copy of the court order. If the filing fee or initial partial filing fee is not received within 21 B. The Statute days after the day on which it was ordered, the court shall not file that action or appeal, and shall return to the The Michigan statute at issue, requiring the payment of plaintiff all documents submitted by the plaintiff that partial filing fees before an action or appeal will be docketed, relate to that action or appeal. reads in its entirety: (2) If, upon commencement of the civil action or the filing of the appeal, the balance in the prisoner's institutional account equals or exceeds the full amount of No. 03-1396 Howard v. Whitbeck, et al. 7 8 Howard v. Whitbeck, et al. No. 03-1396

the filing fee required by law, the court shall order the (6) The total amount collected from a prisoner under prisoner to pay that amount. subsections (3) to (5) shall not exceed the full amount of (3) If, upon commencement of the civil action or the the filing fee and costs required by law. filing of the appeal, the balance in the prisoner's (7) For purposes of this section, the fact of a prisoner's institutional account is less than the full amount of the incarceration cannot be the sole basis for a determination filing fee required by law, the court shall require the of indigency. However, this section shall not prohibit a prisoner to pay an initial partial filing fee in an amount prisoner from commencing a civil action or filing an equal to 50% of the greater of the following: appeal in a civil action if the prisoner has no assets and (a) The average monthly deposits to the prisoner's no means by which to pay the initial partial filing fee. If institutional account for the 12 months preceding the date the court, pursuant to court rule, waives or suspends the on which the civil action is commenced or the appeal is payment of fees and costs in an action described in filed. subsection (1) because the prisoner has no assets and no (b) The average monthly balance in the prisoner's means by which to pay the initial partial filing fee, the institutional account for the 12 months preceding the date court shall order the fees and costs to be paid by the on which the civil action is commenced or the appeal is prisoner in the manner provided in this section when the filed. reason for the waiver or suspension no longer exists. (4) In determining the balance in a prisoner's (8) A prisoner who has failed to pay outstanding fees institutional account for purposes of subsection (2) or (3), and costs as required under this section shall not the court shall disregard amounts in the institutional commence a new civil action or appeal until the account that are required by law or by another court order outstanding fees and costs have been paid. to be paid for any other purposes. (9) If a prisoner is ordered by a court to make monthly (5) In addition to an initial partial filing fee under payments for the purpose of paying the balance of filing subsection (3), the court shall order the prisoner to make fees or costs under this section, the agency having monthly payments in an amount equal to 50% of the custody of the prisoner shall remove those amounts from deposits made to the account. Payments under this the institutional account of the prisoner subject to the subsection shall continue until the full amount of the order and, when an amount equal to the balance of the filing fee is paid. The collection of payments from the filing fees or costs due is removed, remit that amount as account, and their remittal by the department of directed in the order. corrections, shall be conducted as provided in section 68 of 1953 PA 232, MCL 791.268. If costs are assessed MCL § 600.2963 (2000). against a prisoner, and if the balance of the prisoner's institutional account is not sufficient to pay the full C. The Rooker-Feldman Doctrine amount of the costs assessed, the court shall order the prisoner to make payments in the same manner required The Rooker-Feldman doctrine, named for Rooker v. in this section for the payment of filing fees, and the full Fidelity Trust Co., 263 U.S. 413 (1923), and District of amount of the costs shall be collected and paid in the Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), manner provided in this subsection and in section 68 of bars attempts by a federal plaintiff to receive appellate review 1953 PA 232, MCL 791.268. No. 03-1396 Howard v. Whitbeck, et al. 9 10 Howard v. Whitbeck, et al. No. 03-1396

of a state-court decision in a federal district court.3 Two before it. Where federal relief can only be predicated categories of claims are barred by Rooker-Feldman: those upon a conviction that the state court was wrong, it is which allege some injury arising directly from the state difficult to conceive the federal proceeding as, in court’s judgments, and those which allege an injury predating substance, anything other than a prohibited appeal of the the state-court’s judgments but which are still “inextricably state-court judgment. intertwined” with state-court judgments. In determining whether a claim is in the first category, we look to the nature See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386, of the relief demanded and the particular injury alleged; “‘the 391 (6th Cir. 2002); Anderson v. Charter Township of fundamental and appropriate question to ask is whether the Ypsilanti, 266 F.3d 487, 492-94 (6th Cir. 2001) (applying injury alleged by the federal plaintiff resulted from the state “inextricably intertwined” test to hold abstention appropriate). court judgment itself or is distinct from that judgment.’” Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th An exception to the doctrine is that where a claim Cir. 2003). In determining whether a claim is in the second represents a “general challenge . . . to a state law implicated” category, we look to Justice Marshall’s test in Pennzoil Co. v. in the state decision, the federal courts have jurisdiction over Texaco Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring): that general challenge. Catz v. Chalker, 142 F.3d 279, 294-95 (6th Cir. 1998); see also Feldman, 460 U.S. at 482-83 (“To [T]he federal claim is inextricably intertwined with the the extent that Hickey and Feldman mounted a general state-court judgment if the federal claim succeeds only to challenge to the constitutionality of Rule 46I(b)(3), however, the extent that the state court wrongly decided the issues the District Court did have subject-matter jurisdiction over their complaints.”). However, even where a general constitutional attack is mounted, the state proceedings may 3 foreclose the federal claim under the doctrine of res judicata. The doctrine flows in large part from “the p ropo sition that Congress See Feldman, 460 U.S. at 487-88 (“[W]e expressly do not has conferred appellate jurisdiction over state court judgments upon only one federal court, the Sup reme Court of the U nited S tates.” Tho mas D. reach the question of whether the doctrine of res judicata Rowe, Jr., Rooker-Feldman: Worth Only the Powder to Blow it Up?, 74 forecloses litigation on these elements of the complaints.”). N OTRE D AME L. R EV . 1081, 1081 (1999). Its frequent use in the lower federal courts in recent years has been met with c ritical commentary. See D. The District Court’s Decision Barry Friedman & Ja mes E . Gaylo rd, Rooker-Feldman, From the Ground Up, 74 N OTRE D AME L. R EV . 1129, 11 33 (199 9) (calling for Feldman to The district court, after describing the Rooker-Feldman be overruled); Suza nna Sherry, Judicial Federalism in the Trenches: The Rooker-Feldman Doctrine in Action, 74 N OTRE D AME L. R EV . 1085, doctrine, classified Howard’s claim as an as-applied 1087-89 (1999) (describing “explosive growth” of the doctrine). W e note challenge. Howard’s complaint alleges that § 600.2963 is in passing that when Feldman was decide d, a party aggrieved by a state- unconstitutional in denying access to the courts to indigents court decisio n “against the validity of a treaty or Act o f Congress, or in who are unable to pay the initial partial filing fee. The district favor of the validity of a state statute attacked upon federal grounds” was court reasoned that because § 600.2963(7) allows for waiver entitled to mandatory review in the Supreme Court. R IC H A R D H. F A LL ON of that fee, the statute was capable of constitutional ET AL ., H ART & W ECHSLER ’ S T HE F EDERAL C O U R T S A N D T HE F EDERAL S YSTEM , at 494 (4th ed. 1 996 ). The elimination o f mandatory review in application, and Howard could only be complaining of the 1988 may affect the continuing vitality of the logic underlying Rooker- application of the statute to his particular case. J.A. at 214. Feldman, but we are of course bound to follow that precedent of the Having concluded that the “general challenge” exception to Supreme Court and prior precedent of our own court that mandates the the Rooker-Feldman doctrine did not apply, the district court application of the doctrine. No. 03-1396 Howard v. Whitbeck, et al. 11 12 Howard v. Whitbeck, et al. No. 03-1396

went on to determine that Howard’s federal claim was Feldman does not mean that the facial challenge cannot be inextricably intertwined with the state-court decision, because allowed to proceed. J.A. at 10 (Compl.) (Howard seeks for Howard to prevail, the district court “would necessarily be declaratory judgment that “both the defendants refusal to file forced to conclude that Defendants’ interpretation and Plaintiff’s appeal and portions of said statute is application of the statute was improper.” J.A. at 215. Finally, unconstitutional” (emphases added)); see Feldman, 460 U.S. the district court noted that while Howard had fairly asserted at 482-88. We conclude that Howard’s complaint fairly a challenge to § 600.2963(8)—because subsection 8 bars presented a facial constitutional challenge over which the future actions, its application would be challenged district court had jurisdiction. prospectively, and Rooker-Feldman would not apply—Howard lacked standing due to his failure to allege Howard’s remaining arguments, presumably directed that he had any claim or appeal that he intended to file. J.A. towards preserving his “as-applied” challenge or a broader at 219-20. general challenge, all fail. First, Howard argues that the Michigan courts’ actions were not “judicial determinations” E. Claims of Error within the meaning of Feldman, which distinguished judicial determinations from legislative determinations in concluding On appeal, Howard does not contest the district court’s that bar membership decisions were judicial in nature. conclusion that he lacked standing to challenge subsection 8, 460 U.S. at 478-79. Howard’s main argument is that the but he does argue that the Rooker-Feldman doctrine does not courts could not exercise discretion because of the mandatory apply both because the actions of defendants in this matter language in subsection 1. Howard asserts that despite the were not “judicial acts” under Feldman, and because he has plain language of subsection 7, the safety-valve provision, mounted a general challenge to § 600.2963. While this because subsection 1 includes the mandatory language former argument fails, we conclude that Howard’s complaint “shall,” the Michigan courts have read subsection 7 out of the fairly presented a general challenge to the statute, sufficient statute. In Keenan v. Department of Corrections, 644 N.W. to give the district court jurisdiction. Whether or not 2d 756, 757 (Mich. 2002), the Michigan Supreme Court held Howard’s general challenge to the Michigan statute would that the phrase “outstanding fees and costs” in subsection 8 ultimately succeed is irrelevant to the question of subject includes fees which are currently being paid on installment, matter jurisdiction, as long as the claim presented is not even if full payment will eventually be made. Keenan had frivolous. See Musson Theatrical, Inc. v. Fed. Express Corp., filed a previous action, from which fees were still 89 F.3d 1244, 1248-49 (6th Cir. 1996) (in responding to a outstanding, and was attempting to proceed in a subsequent motion under Rule 12(b)(1), “the plaintiff can survive the action; the court did not allow the subsequent action because motion by showing any arguable basis in law for the claim of the outstanding fees, despite Keenan’s regular payments by made”). Although Chief Justice Corrigan and Chief Judge installment. It is unclear where Howard finds any reference Whitbeck take issue with whether or not Howard’s pro se to subsection 7 in Keenan; there is no indication that Keenan complaint fairly alleged a facial challenge, the district court applied for a waiver of fees in his initial action, or any sort of was correct to conclude that it did. While the thrust of the waiver or suspension of the operation of subsection 8 in the complaint is definitely an “as-applied” challenge, the subsequent action. The court noted that Keenan argued “that language used clearly indicates that the statute itself is also he has not ‘failed’ to pay outstanding fees [under subsection being challenged as unconstitutional, and under Feldman the 8] because the remainder of the filing fee is being taken out of dismissal of the as-applied claim on the basis of Rooker- his account on a monthly basis,” id., and rejected his No. 03-1396 Howard v. Whitbeck, et al. 13 14 Howard v. Whitbeck, et al. No. 03-1396

interpretation as contrary to the plain language of the statute. is not persuasive at the outset, because his case is most While Keenan is disturbing in that it operates to bar properly analyzed in the first category of Rooker-Feldman subsequent actions where plaintiffs are paying to the fullest of cases, where the complained-of injury is the decision of the their ability, the injury suffered by Keenan is not that state court. Howard seeks the sort of direct appeal of the complained of by Howard. Keenan provides no support for state-court decisions which is not allowed, except to the Howard’s specific claim of statutory meaning, however much extent that he mounts a general constitutional challenge to the support it provides for his general argument that the Michigan statute. Additionally, it is impossible to determine whether courts have applied § 600.2963 in a draconian fashion. his case is inextricably intertwined with the state-court decisions, because we do not have the actual motions for In Palmer v. Oakland Circuit Judge, 621 N.W. 2d 221, 221 waiver filed with the Michigan courts. It is entirely possible (Mich. 2001), however, the Michigan Supreme Court held that Howard included in those motions constitutional that merely because a prisoner had a zero account balance arguments, in which case the Michigan courts necessarily “does not necessarily mean that a prisoner” is qualified for rejected those arguments in refusing to waive his initial filing waiver under subsection 7. To hold otherwise would give fees. In any case, however, Howard is clearly barred from “the calculation provisions of subsections (3) and (4) . . . no bringing an as-applied challenge under the first category of effect.” Id.; see also Bennett v. McBride, No. 01-1939, 2003 Rooker-Feldman; that the Michigan courts may not have WL 1870913, *3 (6th Cir. Apr. 8, 2003) (citing Palmer and decided the exact issues he brings before this court, a claim noting, “Under Michigan law, a prisoner’s present account impossible to analyze on appeal, does not change the nature balance of zero does not necessarily mean that the prisoner is of the decision and relief he seeks from this court. entitled to a waiver of an initial partial filing fee”). The statute, as authoritatively construed by the highest court of the Howard finally argues that the statute is unconstitutional for state, thus allows prisoners who have insufficient funds to pay a number of reasons. As mentioned above, it is quite possible a filing fee to be denied the right to file a claim or an appeal. that res judicata principles will foreclose the district court As discussed above, however, the Michigan courts have from reaching the merits of this claim, so remand is the construed the statute to allow waivers in certain conditions, appropriate course, especially in the absence of the motions but not to require them whenever a prisoner is unable to pay submitted by Howard to the Michigan courts that will an initial partial filing fee. This may be unconstitutional, but partially determine the res judicata effect of the prior it still allows discretion: it allows waivers in situations where judgments. prisoners have a zero balance, it merely does not require them. In rejecting Howard’s motions to waive the filing fees, III. CONCLUSION the Michigan courts made judicial decisions that under state law they had discretion in making. We therefore cannot reach The district court’s judgment is REVERSED and the case the greater question of whether those decisions violate the is REMANDED for further proceedings not inconsistent with Constitution, as to reach that question would be to sit in this opinion. review of the Michigan courts in violation of the Rooker- Feldman doctrine. Howard then argues that the issues in his federal claim are not inextricably intertwined with the state-court claims. This