Russell A. Kelm v. C. Hyatt

44 F.3d 415, 1995 U.S. App. LEXIS 815, 1995 WL 15387

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 18, 1995
• Docket: 93-3141
• Status: Published

Opinions

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

KEITH, Circuit Judge.

Appellant Russell A. Kelm (“Kelm”) appeals the district court’s dismissal of his complaint on abstention grounds and the denial of bilateral class certification in his action challenging the constitutionality of two Ohio statutes. For the reasons stated below, we AFFIRM the district court’s dismissal of Kelm’s claims for injunctive relief on abstention grounds, and sua sponte dismiss Kelm’s claim for monetary damages for failure to state a claim. We decline to reach the merits of Kelm’s constitutional challenges or the denial of class certification.

I. Facts

In January 1990, Kelm sued his wife, Ap-pellee Amy Kelm, for divorce in an Ohio domestic relations court. Neither party is fond of the other. In fact, Kelm characterizes his wife as suffering from both PMS and a manic depressive disorder and engaging in violence in “28 day intervals.” Conversely, Amy Kelm denies any psychoses, and instead recounts the history of Kelm’s domestic violence against her.

Over the course of the divorce proceedings, Amy Kelm obtained three temporary restraining orders pursuant to Ohio Rule of Civil Procedure 75(H) (“Rule 75(H)”).¹ Rule 75(H) allows both parties in a divorce proceeding to restrain the other from disposing of assets subject to division within a pending divorce case. Kelm similarly obtained a Rule 75(H) restraining order against Amy Kelm.

Although Rule 75(H) authorizes the issuance of restraining orders without a hearing, either party may request amendment of the orders at any time. In fact, Kelm filed a motion to modify the first restraining order which was denied in June 1990. In May 1991, Kelm sought and obtained modification of the second restraining order. At an October 1991 hearing, a domestic relations judge offered Kelm an opportunity to request further modification of the orders but Kelm refused.

Amy Kelm alleges Russell Kelm physically attacked and injured her shortly after he filed for divorce, and that she escaped the attack and sought treatment at local hospital. On April 12, 1990, she sought and obtained a Civil Protection Order (“CPO”) against her husband from the domestic relations court pursuant to Ohio Revised Code § 3113.31.

On April 12, 1990, Russell Kelm sought and obtained a restraining order against Amy Kelm. Russell Kelm’s order restrained Amy Kelm from physically attacking him and from destroying any of his personal or real property. The restraining order was obtained based on the same incident Amy Kelm used to obtain her CPO against Russell Kelm.

Section 3113.31 enables victims of domestic violence to receive an ex parte civil protection order by fifing a petition detailing: (1) the “nature and extent of the domestic violence”; (2) the relationship between the respondent, the petitioner, and the victim; and (3) the relief requested. Ohio Rev.Code Ann. § 3113.31(C) (Anderson 1992).² The ex parte orders often grant exclusive possession of the residence and household furniture to the petitioner.

Upon a request for an ex parte order, the domestic relations court must hold an ex parte hearing the day the petition is filed. Where the petitioner shows good cause,³ the court may order any relief permitted under § 3114.31(E) necessary to protect the family or household member against domestic violence.⁴ Where the ex parte order removes the respondent from and/or grants exclusive use of the residence to the petitioner, the court must schedule a full hearing to be held within seven days of the ex parte hearing.⁵ Respondent must be given notice of the full hearing and an opportunity to be heard.

The statute authorizes any officer of a law enforcement agency to enforce the provisions of the protection order. Enforcement includes the power to remove the respondent from the premises where appropriate. Ohio Rev.Code Ann. § 3113.31(F)(3) (Anderson 1992). The duration of any ex parte order is limited to one year from the date of its issuance.

On April 12, 1990, after seeing Amy Kelm and hearing her testimony, the court found “good cause” and issued a CPO requiring that Kelm refrain from further violence and vacate the marital residence. The court scheduled a full hearing for April 19, 1990. On that day, Kelm and Amy Kelm entered into a handwritten agreement settling the domestic violence case. Pursuant to the agreement, Amy Kelm withdrew her CPO petition and agreed not to file for a new CPO based on this incident. The agreement also allowed Amy Kelm and the children to live in the marital home, granted temporary custody of the children to Amy Kelm, and provided for visitation and child support. This agreement was entered as a temporary order in the pending divorce.

Subsequently, Kelm attempted to modify or set aside the agreement. First, he unsuccessfully tried to negotiate changes with Amy Kelm’s attorney. Next, alleging coercion, he filed a motion to vacate the agreement. Kelm then filed a notice of appeal in the pending divorce proceeding in the Tenth District Court of Appeals alleging, among other things, the unconstitutionality of the statutory scheme granting relief to victims of domestic violence. The court dismissed Kelm’s appeal finding he had appealed the wrong order and that the appeal within the pending proceeding was not a final appealable order. In 1992, Kelm again appealed the propriety of Ohio’s CPO statute.- In 1993, the court found the issues raised by Kelm moot and dismissed his appeal.

In October 1991, Kelm filed a six count class action complaint in the United States District Court for the Southern District of Ohio against several Columbus Police Officers: C. Hyatt, A. Litchfield, D. Kaylor, B. Moose, E. Moore, R. Moore and D. Follmar. He also filed suit against Deputy Sheriff Sharon Weber, court clerk Barbara Park-hurst, and Amy Kelm. The aforementioned are the Appellees in the instant case. Counts I and II alleged the unconstitutionality of § 3113.31 and Rule 75(H) and sought injunctive relief pursuant to 42 U.S.C. § 1983. Counts III and IV sought damages alleging the service and execution of the CPO denied him due process of law in violation of 42 U.S.C. § 1983. Counts V and VI challenged the validity of an antenuptial agreement between Kelm and his wife.

In April 1992, Kelm sought certification of a bilateral class action. The plaintiff class included all persons in Ohio who are or will be subject to civil protection orders and/or temporary restraining orders. The defendant class included all police officers, sheriff deputies, and non-judicial court personnel charged With enforcing the protective and restraining orders.

In September 1992, the district court denied class certification. Subsequently, Kelm voluntarily withdrew count III and agreed to hold counts V and VI in abeyance. Additionally, Kelm specifically noted that defendants Weber and Parkhurst were not included within the scope of his remaining claim for damages. (JA pp. 80-82) Thus, Kelm’s remaining counts before the district court sought: (1) injunctive relief, individually and for the class, alleging the two Ohio procedures, as written, denied plaintiffs due process of law; and (2) damages as an individual pursuant to 42 U.S.C. § 1983 alleging the service and execution of the CPO deprived him of liberty and property without due process of law. All defendants filed separate motions to dismiss.

In December 1992, the district court granted Amy Kelm’s Rule 12(b)(6) motion to dismiss on abstention grounds delineated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). This timely appeal followed.

II. Discussion

On appeal Kelm argues:

(1) the district court improperly dismissed the case on abstention grounds;

(2) the Rule 75(H) and the Civil Protection Order procedures “violate fundamental Due Process”; and

(3) the district court abused its discretion by denying bilateral class certification.

Because we find that the district court properly dismissed Kelm’s claims for injunc-tive relief on abstention grounds, we do not reach the denial of class certification. Additionally, we decline to rule on the constitutionality of the Ohio statutes at issue. Although abstention was improper on Kelm’s damages claim, we sua sponte dismiss his claim for damages because Kelm failed to state a viable claim. We discuss each holding below.

A. Younger Abstention was Proper

First, Kelm argues that the district court erred by dismissing his claims for injunctive relief on abstention grounds as enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Kelm argues abstention is inappropriate for his “civil rights challenge” to two Ohio domestic relations provisions. He alleges the district court erred by abstaining because the challenged procedures are pre-judgment and his claims do not affect the merits of the underlying divorce case. We disagree.

Here, the district court found that the pending divorce implicated important state issues regarding the resolution of domestic disputes. The court further found that although the Ohio courts provide an adequate opportunity for Kelm to present his constitutional challenges, he has declined to do so. We review de novo a district court’s decision to abstain under Younger. See Mann v. Conlin, 22 F.3d 100 (6th Cir.1994). As discussed below, the district court correctly dismissed on the basis of the Younger doctrine.

In Younger v. Harris, the Supreme Court required that a federal court abstain from enjoining a pending state criminal proceeding. In Middlesex County Ethics Comm. v. Garden State Bar Ass’n, the Court applied Younger “to non-criminal judicial proceedings when important state interests are involved.” 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) (citations omitted). Later, the Court extended the Younger principles to state civil proceedings. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17, 107 S.Ct. 1519, 1529, 95 L.Ed.2d 1 (1987). In Pennzoil, the Court held that federal courts must abstain from hearing challenges to pending state proceedings where the state’s interest is so important that exercising federal jurisdiction would disrupt the comity between federal and state courts. Id.

Interpreting the above authorities, we have held that Younger requires federal courts to abstain where: (1) state proceedings are pending; (2) the state proceedings involve an important state interest; and (3) the state proceedings will afford the plaintiff an adequate opportunity to raise his constitutional claims. Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452, 454 (6th Cir.1989). Applying these criteria to this case, Younger abstention was proper.

1. A State Proceeding was Pending

First, we have held that “if a state proceeding is pending at the time the action is filed in federal court, the first criteria for Younger abstention is satisfied.” Federal Express Corp. v. Tennessee Pub. Serv. Comm’n, 925 F.2d 962, 969 (6th Cir.1991), cert. denied, 502 U.S. 812, 112 S.Ct. 59, 116 L.Ed.2d 35 (1991). Here it is undisputed that the underlying divorce case was pending at the time he filed his federal action. Thus, the first element of Younger is satisfied.

2. The State Proceedings Involved Important State Interests

Next, Kelm does not specifically argue that the state proceedings do not involve important state interests. He instead argues first, that Younger does not apply to civil rights actions and second, that because the challenged pre-judgment statutes do not affect the merits of the underlying divorce case they do not per se involve important state interests. First, Younger was a civil rights action and we have consistently extended its principles to actions filed pursuant to § 1983. See, e.g. Mann, at 104-05. Further, although the challenged procedures are “prejudgment,” Rule 75(H) allocates property and child custody during the pendency of divorce actions, and § 3113.31 offers protection from domestic violence. Ohio has great state interests in regulating domestic violence ⁶ and in protecting property from both parties to a pending divorce. These traditional domestic relations issues qualify as important state issues under the second element of Younger. In fact, we recently affirmed a decision to abstain where the underlying issues involved domestic relations because domestic relations proceedings involve “paramount” state interests. Id.

Further, the Supreme Court recently outlined policy considerations supporting exclusive state jurisdiction over divorce matters. See Ankenbrandt v. Richards, — U.S.-, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992). In Ankenbrandt, although the Court narrowed the scope of the traditional “domestic relations exception,” the Court did not overrule its prior decisions holding that domestic relations is “a traditional area of state concern.” See, e.g. Moore v. Sims, 442 U.S. 415, 435, 99 S.Ct. 2371, 2383, 60 L.Ed.2d 994 (1979). In fact, the Ankenbrandt Court noted the “special proficiency developed by state tribunals over the past century and a half in handling the issues that arise in the granting of such decrees.” — U.S. at-, 112 S.Ct. at 2215 (emphasis added). Here, the challenged statutes affect the underlying divorce and involve important state interests thus satisfying the second Younger criteria.

3. The State Courts Provide an Adequate Opportunity to Raise Constitutional Claims

Finally, Kelm argues the Ohio courts cannot provide an adequate opportunity to raise his constitutional claims. Kelm alleges he can not challenge the CPO procedures because Amy Kelm withdrew her CPO. He also argues Ohio courts are inadequate because he must wait until the settlement of the divorce before challenging the validity of the Rule 75(H) restraining orders.

Initially, we must presume that the state courts are able to protect the interests of the federal plaintiff. Pennzoil, 481 U.S. at 1, 107 S.Ct. at 1521. In Pennzoil, the Court noted because all state court judges are bound by the United States Constitution, federal courts:

cannot assume that state judges will interpret ambiguities in state procedural law to bar presentation of federal claims.... Accordingly, when a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.

Id. at 15, 107 S.Ct. at 1528. Thus, the plaintiff must prove the inadequacy of the state courts.

The facts in Pennzoil resemble those before us. In Pennzoil, a party sought relief pursuant to § 1983 alleging Texas proceedings violated the Constitution. The party did not present these claims to the state court. The district court did not -abstain and the Court of Appeals affirmed. The Supreme Court reversed finding Younger abstention was appropriate. In reversing, the Court noted the significance of Texas’ “open court provision” which provides that all courts shall be open, and remedies provided, to all injured persons. Based on Texas’ open courts provision and the plaintiffs failure to attempt to secure relief in the state courts, the Court found the plaintiff did not meet its burden to prove the inadequacy of the state courts.

Similarly, Kelm has failed to prove the inadequacy of the Ohio courts. As was the case in Pennzoil, Ohio has an “open courts provision” found in Article 1, § 16 of the Ohio Constitution. Here, the Ohio courts have given us no reason to question their ability or willingness to address Kelm’s constitutional questions. Because the Ohio courts provide an adequate forum for Kelm’s constitutional claims, the third criterion of Younger is satisfied. Thus, abstention was proper in this case.

B. Kelm’s Constitutional Challenges

As discussed above, because abstention was proper, we decline to reach the merits of Kelm’s challenges to the constitutionality of the Ohio procedures. Similarly, the proper dismissal moots any discussion of the denial of class certification.

C. Kelm Failed to State a Claim for Damages

Next, we must address Kelm’s claim for monetary damages. The Supreme Court has held that where state proceedings can not address a party’s claim for monetary relief, abstention is improper for this claim. See Deakins v. Monaghan, 484 U.S. 193, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) (“the District Court has no discretion to dismiss rather than to stay claims for monetary relief that cannot be redressed in the state proceedings”). In Litieral v. Bach, we applied Deakins and held that a district court erred by dismissing a money damages claim on abstention grounds. 869 F.2d 297, 298 (6th Cir.1989). Here, although the district court dismissed the entire case on abstention grounds, the district court did not err because, as discussed below, Kelm failed to state a viable claim for damages.

Kelm sought damages pursuant to § 1983 for the service and execution of the April 12 CPO which, according to Kelm, constituted a breach of the peace and a wrongful arrest thus depriving him of liberty and property without due process of law. Because Kelm specifically dismissed defendants Parkhurst and Weber from his damages claim, we must examine whether he stated a viable claim against the remaining defendants — the seven Columbus police officers who served and executed the CPO, and his wife, Amy Kelm.

1. Kelm’s Claim Against the Columbus Police Officers

First, assuming the validity of Kelm’s allegations, the Columbus police officers are nonetheless protected by qualified immunity. Public policy and well established law grant qualified immunity to those government officials who perform discretionary functions and whose conduct does not violate clearly established statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S.Ct. 2727, 2732-33, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). “Whether an official protected by qualified immunity may be held personally Hable for an allegedly unlawful action generally turns on the ‘objective legal reasonableness’ of the action assessed in Hght of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).

Clearly, citizens must be afforded due process before a deprivation of life, Hberty or property. Here, however, when the officers executed the CPO, § 3113.31 was constitutional and its procedures were presumed adequate. Thus, there was no “clearly estabHshed” law with which the officers failed to comply. Instead, the officers rightfully executed a CPO pursuant to a presumably constitutional statute. The officers, therefore, are entitled to qualified immunity and Kelm’s damages claim against them must fail.

2. Kelm’s Claim Against Amy Kelm

Although Kelm never specifically included Amy Kelm within his damages claim, he alleged that she “invoked the jurisdiction of the domestic relations court in obtaining a CPO through perjury, [and] notified pohce officers to enforce it through material misstatements about prior service and an immediate threat of violence.” Construing this, complaint broadly, we read these allegations as an attempt to seek damages from Amy Kelm.

Kelm correctly notes that in some instances § 1983 extends to private parties. To establish a viable claim under § 1983, however, Kelm must prove first that Amy Kelm deprived him of a guaranteed right under color of the challenged statute, and second that her actions were properly attributable to the state, i.e. that she qualified as a state actor. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978); see also Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). Here, although Amy Kelm utilized a state statute, Kelm can not prove that she qualifies as a state actor.

In Lugar v. Edmondson Oil Co., the Court found that private parties can be deemed to be acting under the color of state law when acting in conjunction with state officials in garnishment or attachment proceedings. 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Court further noted, however, that even where a private party utilizes an allegedly unconstitutional state statute, courts must focus not on the terms of the statute but on the character of the defendants to the § 1983 suit. Lugar, 457 U.S. at 939, 102 S.Ct. at 2754-55. The Court explained that “[ajetion by a private party pursuant to this statute, without something more, was not sufficient to justify a characterization of that party as a ‘state actor.’” Id.

Whether a party qualifies as a “state actor” varies with the circumstances of each ease. Thus, the Court has articulated several tests to be used in different contexts. See, e.g., Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) (“public function” test); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (“state compulsion” test); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 1615, 26 L.Ed.2d 142 (1970) (“nexus” test); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (“joint action test” for eases of prejudgment attachments). Even when we stretch the above tests to their outer limits, Amy Kelm does not qualify as a state actor. Thus, Kelm’s damage claim against her must fail. We, therefore, sua sponte dismiss Kelm’s damage claim for failure to state a claim.

III. Conclusion

For the reasons stated above, we AFFIRM the decision of the Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, dismissing Kelm’s claims for injunctive relief on abstention grounds, and we sua sponte dismiss Kelm’s remaining claim for monetary relief for failure to state a claim.

1 . The first order, issued in January 1990, prohibited Kelm from disposing of the parties’ property. The second order, issued in April 1991, precluded Kelm's law firm from distributing certain assets to him. The last order, dated June 1991, prohibited Kelm’s stock brokerage firm from distributing assets to him.

2 . Ohio created a parallel criminal procedure at the time it passed § 3113.31. See Ohio Rev.Code Ann. § 2919.25, et seq. (Anderson 1992).

3 . Immediate and present danger of domestic violence constitutes good cause. See Ohio Rev.Code Ann. § 3113.31(D) (Anderson 1992).

4 .Included in the available relief are; orders to refrain from further abuse; orders requiring respondent to leave the marital residence and not to return; orders granting temporary custody, visitation, and financial support; orders requiring counseling; and orders permitting petitioner to use a motor vehicle, household goods, and furnishings, etc. No order or agreement pursuant to this statute can affect title to any real property. Ohio Rev’.Code Ann. § 3113.31(E)(4) (Anderson 1992).

5 . If exclusive use is not granted to the petitioner, but other relief is granted, the full hearing shall be held within ten days of the ex parte hearing.

6 . In fact, after the 1991 passage of Arkansas’ new civil protection act, every state of the United States provides a statutory scheme to protect victims of domestic violence. These statutes reflect the seriousness and pervasiveness of domestic violence. See National Coalition Against Domestic Violence; The World Almanac 839 (1989) (noting that in 1989 between three to four million men abused their wives).