UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHANCE CATUDAL,

Plaintiff,

Civil Action 2:12-cv-00197

v. Judge Gregory L. Frost

Magistrate Judge E.A. Preston Deavers

KIM A. BROWNE, et al.,

Defendants.

REPORT AND RECOMMENDATION

On March 8, 2012 the Court granted Plaintiff leave to proceed with his action in forma

pauperis. This matter is now before the Court for an initial screen of Plaintiff’s Complaint

pursuant to 28 U.S.C. § 1915(e)(2). For the following reasons it is RECOMMENDED that the

Court DISMISS Plaintiff’s action against Defendants.

I.

This action arises out of divorce and child custody proceedings in Ohio state court

involving Plaintiff and his daughter. Plaintiff names Magistrate William Sieloff and Judge Kim

A. Browne, both of the Franklin County Court of Common Pleas, and Chief Justice Maureen

O’Connor, of the Ohio Supreme Court, as Defendants. Additionally, Plaintiff attempts to bring

claims against Bryan Bowen, his ex-wife’s attorney, and Christopher E. Heckert, former

guardian ad litem for Plaintiff’s daughter, for their roles in the proceedings. Plaintiff, who is

proceeding pro se, purports to bring this action under 42 U.S.C. § 1983 for violations of his due

process and equal protection rights.

Plaintiff seeks declaratory and injunctive relief. Plaintiff specifically requests a new

divorce trial and that the Court force Defendants to recuse themselves from the proceedings. 

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Additionally, Plaintiff seeks monetary damages against Defendant Heckert. The Complaint

indicates that his divorce and child custody proceedings are still ongoing in state court.

II.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. 

Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court’s

determination that the action fails to state a claim upon which relief may be granted. See Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. § 1915(e)(2)(B)(ii)); but see Younis v. Pinnacle

1

 Formerly 28 U.S.C. § 1915(d). 

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Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010) (requiring the Court to construe pro se pleadings

liberally). Additionally, when the face of the complaint provides no basis for federal

jurisdiction, the Court may dismiss an action as frivolous and for lack of subject matter

jurisdiction under both 28 U.S.C. § 1915(e)(2)(B) and Fed. R. Civ. P. 12(h)(3). Williams v.

Cincy Urban Apts., No. 1:10-cv-153, 2010 WL 883846, at *2 n.1 (S.D. Ohio Mar. 9, 2010)

(citing Carlock v. Williams, 182 F.3d 916, 1999 WL 454880, at *2 (6th Cir. June 22, 1999)

(table)); cf. also O'Neill v. Coughlan, 511 F.3d 638, 642 (6th Cir. 2008) (“[A]bstention may be

raised by the court sua sponte.”).

III.

A. Judicial Defendants

As noted above, Plaintiff brings claims against Magistrate Sieloff, Judge Browne, and

Chief Justice O’Connor, based on the roles they have played in Plaintiff’s divorce and child

custody proceedings. The undersigned finds that the Court lacks jurisdiction over these claims,

or in the alternative, should abstain from exercising jurisdiction over these claims.

1. Rooker-Feldman Doctrine

“The Rooker-Feldman doctrine embodies the notion that appellate review of state court

decisions and the validity of state judicial proceedings is limited to the Supreme Court under 28

U.S.C. § 1257, and thus that federal district courts lack jurisdiction to review such matters.” In

re Cook, 551 F.3d 542, 548 (6th Cir. 2009). The Rooker-Feldman doctrine applies to cases

“brought by state-court losers complaining of injuries caused by state-court judgments rendered

before the district court proceedings commenced and inviting district court review and rejection

of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 

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Pursuant to the Rooker-Feldman doctrine, “lower federal courts lack subject matter jurisdiction

to review the decisions of state courts.” Givens v. Homecomings Fin., 278 F. App’x 607, 608–09

(6th Cir. 2008) (citations omitted).

The Rooker-Feldman doctrine applies when a party bringing an action in federal district

court “complain[s] of an injury caused by the state-court judgment and seek[s] review and

rejection of that judgment.” Exxon Mobil, 544 U.S. at 291. Consequently, “[t]he pertinent

question in determining whether a federal district court is precluded under the Rooker-Feldman

doctrine from exercising subject-matter jurisdiction over a claim is whether the ‘source of the

injury’ upon which plaintiff bases his federal claim is the state court judgment.” In re Cook, 551

F.3d at 548. “This is true regardless of whether the party challenges the validity of the state

court judgment on constitutional grounds.” Id.; see also Sturgis v. Hayes, 283 F. App’x 309, 313

(6th Cir. 2008) (“[T]he Rooker-Feldman doctrine applies when a plaintiff asserts before a federal

district court that a state court judgment itself was unconstitutional or in violation of federal

law.”) (internal quotations omitted).

Furthermore, the United States Court of Appeals for the Sixth Circuit has provided that

“in the field of domestic relations, it has been [its] consistent policy to refuse to exercise

jurisdiction over claims which seek to collaterally attack a state court judgment . . . .” Stephens

v. Hayes, 374 F. App’x 620, 623 (6th Cir. 2010). “Although this domestic relations exception to

federal jurisdiction does not apply to a civil action that merely has domestic relations

overtones . . . federal courts lack jurisdiction where the action is a mere pretense and the suit is

actually concerned with domestic relations issues.” Danforth v. Celebrezze, 76 F. App’x 615,

616–17 (6th Cir. 2003) (holding, pursuant to the domestic relations exception and the Rooker4

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Feldman doctrine, that the Court lacked jurisdiction over a § 1983 action where the

constitutional claims were conclusory and “a pretense to obtain federal review of domestic

relations matters”).

Here, the undersigned finds that the Court lacks jurisdiction. Plaintiff attempts to frame

his action as a civil rights action under § 1983, frequently contending, in conclusory fashion, that

the judicial Defendants have violated his equal protection and due process rights. A fair reading

of Plaintiff’s Complaint, however, reveals that he is actually challenging the various rulings of

the judicial Defendants, which ultimately resulted in the October 19, 2011 divorce decree

denying him legal custody over his daughter. Tellingly, the injunctive relief Plaintiff ultimately

seeks is another divorce trial. In other terms, the sources of Plaintiff’s injuries are the rulings

and divorce decree judgment of the state court. Because Plaintiff’s claims against the judicial

Defendants seek the Court to review the state court decisions in his divorce and child custody

proceedings, the Rooker-Feldman doctrine applies. Accordingly, the Court lacks jurisdiction

over these claims.

2. Younger Abstention

Even assuming that the Rooker-Feldman doctrine does not apply to this case, the Court

should still abstain from jurisdiction. “The Supreme Court’s decision in Younger v. Harris, [401

U.S. 37 (1971),] ‘counsels federal-court abstention when there is a pending state proceeding’ and

‘reflects a strong policy against federal intervention in state judicial processes in the absence of

great and immediate irreparable injury to the federal plaintiff.’” Meyers v. Franklin Cnty. Court

of Common Pleas, 23 F. App’x 201, 204 (6th Cir. 2001) (quoting Moore v. Sims, 442 U.S. 415,

423 (1979)). Accordingly, “Younger abstention requires a federal court to abstain from granting

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injunctive or declaratory relief that would interfere with pending state judicial proceedings.” 

O’Neill v. Coughlan, 511 F.3d 638, 643 (6th Cir. 2008). “A federal court should abstain only

when three criteria are met, specifically: (1) the underlying proceedings constitute an ongoing

state judicial proceeding; (2) the proceedings implicate important state interests; and (3) there is

an adequate opportunity to raise constitutional challenges in the course of the underlying

proceeding.” Danner v. Bd. of Prof’l Responsibility of the Tn. Sup. Ct., 277 F. App’x 575, 578

(6th Cir. 2008).

In this case, the undersigned concludes that Plaintiff’s claims against the judicial

Defendants meet the Younger abstention requirements. As a preliminary matter, the declaratory

and injunctive relief Plaintiff seeks would clearly interfere with state court proceedings. Plaintiff

specifically requests a new divorce trial and recusal of all the judicial Defendants from the

underlying state court proceedings. Furthermore, the state proceedings are ongoing within the

meaning of the Younger abstention doctrine because Plaintiff has a pending appeal from the

divorce decree at issue. See Danner, 277 F. App’x at 579 (“The action remains pending until a

litigant has exhausted his state remedies.”). Additionally, matters related to domestic relations

undoubtably concern important state interests. See Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir.

1995). Finally, with regard to the last factor, the Court generally must presume that state courts

will protect the federal plaintiff’s constitutional interests. Meyers, 23 F. App’x at 205; see also

Mowen v. Clermont Cnty., Ohio, No. 1:07cv323, 2008 WL 269520, at *7 (S.D. Ohio Jan 29,

2008) (“[T]he Sixth Circuit has found that Ohio courts provide parents with an adequate

opportunity to raise constitutional challenges in custody proceedings.”) Here, Plaintiff has not

alleged sufficient facts to overcome this presumption. Rather, “case law suggests that the state

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courts do provide an adequate forum.” Meyers, 23 F. App’x at 205.

Because the Younger abstention requirements are met, the Court should abstain from

exercising jurisdiction over Plaintiff’s claims against the judicial Defendants. Since Plaintiff

seeks equitable relief through his claims against the judicial Defendants, dismissal is the

appropriate course. See Meyers, 23 F. App’x at 206 (holding that based on Younger abstention it

was proper for a district court to dismiss claims for injunctive and declaratory relief).

B. Defendants Bowen and Heckert

In addition to the judicial Defendants, Plaintiff attempts to bring § 1983 claims against

Defendants Bowen and Heckert. Plaintiff contends that Defendant Bowen’s actions in the

underlying state proceedings, as counsel for Plaintiff’s ex-wife, violated his constitutional rights.

Additionally, Plaintiff brings a claim against Defendant Heckert, alleging that he was bias in

performing his duties as guardian ad litem.

Even assuming the Court may properly exercise jurisdiction over these actions, Plaintiff

fails to state a claim against both Defendants.2

 First, Plaintiff fails to state a facially plausible

§ 1983 claim against Defendant Bowen. In order to succeed on a § 1983 claim, Plaintiff must

demonstrate that Defendant Bowen “acted under color of law . . . .” Johnson-Kurek v. Abu-Absi,

423 F.3d 590, 595 (6th Cir. 2005). “It is well-settled that a lawyer representing a client is not a

state actor ‘under color of law’ within the meaning of § 1983.” Dallas v. Holmes, 137 F. App’x

2

 Plaintiff has pending state court actions against both of these Defendants for damages. 

Unlike his claims against the judicial Defendants, however, there is no indication that he is using

his current claims against Defendants Bowen and Heckert to interfere with the pending state

court cases. Cf. Devlin v. Kalm, 594 F.3d 893, 895 (6th Cir. 2010) (“Younger does not apply

when the federal plaintiffs are also plaintiffs in the state court action and the plaintiffs are not

attempting to use the federal courts to shield them from state court enforcement efforts.”)

(internal quotations omitted).

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746, 752 (6th Cir. 2005) (citing Polk County v. Dodson, 454 U.S. 312, 318 (1981)). After all, the

lawyer’s duties are to the client and not the state. In this case, Plaintiff contends that Defendant

Bowen violated his constitutional rights while representing Anna Catudal. Under these

circumstances, Defendant Bowen is not a state actor for the purposes of § 1983.

Second, Plaintiff also fails to state a viable claim against Defendant Heckert. To the

extent Plaintiff seeks damages, Defendant Heckert is entitled to immunity for the performance of

his role as guardian ad litem. See Abessolo v. Smith, No. 1:11–cv–680, 2012 WL 668773, at *7

(S.D. Ohio Feb. 29, 2012) (Report & Recommendation) (“‘[G]uardians ad litem are entitled to

absolute quasi-judicial immunity for performing job duties that are a part of the judicial process,’

even if the plaintiff alleges that their testimony was false or that they conspired with others.”)

(quoting Kolley v. Adult Protective Servs., 786 F.Supp.2d 1277, 1298 (E.D. Mich. 2011)); see

also Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (“A failure to grant immunity

would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial

proceedings.”). Additionally, various federal courts have held that guardians ad litem are not

state actors for the purposes of § 1983. See, e.g., Long v. Pend Oreille Cnty. Sheriff's Dept., 385

F. App’x. 641, 642 (9th Cir. 2010) (holding that a guardian ad litem was not a state actor for the

purposes of § 1983); Hennelly v. Flor de Maria Oliva, 237 F. App’x 318, 320 (10th Cir. 2010)

(“[G]uardians ad litem are not state actors for purposes of § 1983 . . . .”). Such authority is

persuasive because, similar to a private attorney’s duty to his or her client, a guardian ad litem

“owes his or her undivided loyalty to the minor, not the state.” Meeker v. Kercher, 782 F.2d

153, 155 (10th Cir. 1986).

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IV.

For the above reasons, it is RECOMMENDED that the Court DISMISS Plaintiff’s

action against Defendants.

V.

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge's report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: March 29, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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