IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Lonny Bristow, :

 Plaintiff, : Case No. 2:12-cv-0045

 v. : 

Robert D. Nichols, : JUDGE EDMUND A. SARGUS, JR.

 Defendant. : Magistrate Judge Kemp

 

 REPORT AND RECOMMDATION

Plaintiff, Lonny Bristow, has filed a complaint and an

application for leave to proceed in forma pauperis. Mr.

Bristow’s complaint seeks punitive damages and declaratory relief

against Madison County Common Pleas Judge Robert D. Nichols. The

case is now before the Court to conduct an initial screening

pursuant to 28 U.S.C. §1915(e)(2). For the following reasons, 

although Mr. Bristow’s request for leave to proceed in forma

pauperis will be granted, it will be recommended that the case be

dismissed.

I. Factual Background

The facts which Mr. Bristow alleges in his complaint may be

summarized as follows. Mr. Bristow is a defendant in a case now

pending in the Court of Common Pleas of Madison County, Ohio,

captioned Deborah A. Timmerman Cooper v. Lonny Bristow and

bearing case number DRH-2011-0212. The case is assigned to

presiding Madison County Common Pleas Court Judge Robert D.

Nichols.

According to Mr. Bristow, Judge Nichols entered an order in

that case on January 3, 2012, which Mr. Bristow describes as 

“a final appealable order.” Mr. Bristow appealed that order to

the Twelfth District Court of Appeals on January 6, 2012. 

Although the complaint does not describe the nature of the order,

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a review of the Madison County Court of Common Pleas online

docket for case number DRH-2011-0212 (which can be found at 

http://12.32.69.178/cgi-bin/cdocket.cgi?pre=DRH&num=20110212

&sub=&type=DR&acc) indicates that the plaintiff in that case

sought a civil stalking protection order against Mr. Bristow and

that the Court’s January 3, 2012 order was an order of protection

effective until December 17, 2016. The Court is entitled to take

judicial notice of facts appearing on a state court online

docket. Lynch v. Leis,382 F.3d 642,647 n.5 (6th Cir. 2004).

 On January 11, 2012, five days after Mr. Bristow filed his

notice of appeal, Judge Nichols ordered him to appear before the

Madison County Sheriff for a monitoring device to be attached. 

Mr. Bristow’s complaint alleges that this order was issued in 

retaliation for Mr. Bristow’s having filed the notice of appeal.

As relief, the complaint asks for a declaratory judgment that Mr.

Bristow’s constitutional rights were violated by the order and

that he be awarded punitive damages in the amount of $25,000.00. 

II. Legal Standard

Under 28 U.S.C. § 1915(a)(1), this Court may authorize the

commencement of a civil case without prepayment of fees or costs

if the person seeking to file the case submits an affidavit

demonstrating that the person is unable to pay such fees and

costs. However, 28 U.S.C. § 1915(e)(2) requires the Court “to

dismiss the case at any time if the court determines that ...(B)

the action or appeal (i) is frivolous or malicious [or] (ii)

fails to state a claim on which relief may be granted [or] seeks

monetary relief against a defendant who is immune from such

relief.” A suit is frivolous if it lacks any arguable foundation

in either fact or law. Neitzke v. Williams, 490 U.S. 319 (1989).

A complaint fails to state a claim upon which relief can be

granted, if, after accepting as true all well-pleaded allegations

of the complaint, the allegations do not “raise a right to relief

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above the speculative level.” Bell Atl. Corp v. Twombly, 550

U.S. 544 (2007). The Court is mindful that pro se complaints are

to be construed liberally in favor of the pro se party. Haines v.

Kerner, 404 U.S. 519 (1972). The Court of Appeals has held that

section 1915(e)(2)’s initial screening requirement applies to

complaints filed by non-prisoners as well as prisoners. Baker v.

Wayne County Family Independence Agency, 75 Fed. Appx. 501, 502

(6th Cir. 2003)(citation omitted). It is with these standards in

mind that the Court conducts its initial screening of the

complaint submitted by Mr. Bristow.

III. Discussion

A. Declaratory Relief

The first type of relief requested in Mr. Bristow’s

complaint is a declaratory judgment to the effect that Judge

Nichols’ January 11, 2012 order violated Mr. Bristow’s

constitutional rights because it was issued in retaliation for

Mr. Bristow’s having exercised his right to appeal the civil

protection order issued on January 3, 2012. The Court will

assume, for purposes of determining if the complaint states a

viable claim for relief, that the order was, in fact, retaliatory

in nature, and that the complaint sets forth a claim which

contains the elements of a cause of action under 42 U.S.C. §1983

- that is, the violation of a citizen’s constitutional right

(here, the First Amendment right of access to the courts, or a

Fourteenth Amendment Due Process right) by a person acting under

color of state law. See, e.g. Flagg Bros. v. Brooks, 436 U.S.

149, 155 (1978). Nevertheless, this is not a claim on which a

federal court may grant declaratory relief.

In the seminal case of Younger v. Harris, 401 U.S. 37

(1971), the Supreme Court held that when injunctive relief

requested from a United States District Court would, if issued,

interfere with the progress of a pending state criminal

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proceeding, the court should abstain from exercising jurisdiction

and dismiss the case. The decision was based upon federalism

grounds; as the Supreme Court explained, federal courts are very

hesitant to interfere with the progress of state-initiated

criminal prosecutions out of respect for the sovereignty of the

States, and should do so only if the state court defendant (who

is also the federal court plaintiff) can show that the state

courts do not afford the opportunity for constitutional issues to

be litigated there (so that there is no adequate legal remedy in

the context of the state court proceeding) or if the prosecution

is proceeding in bad faith or threatens the federal court

plaintiff with great and immediate harm. 

On the same day that Younger was decided, the Supreme Court

also considered whether these principles applied equally to the

issuance of declaratory relief. In Samuels v. Mackell, 401 U.S.

66 (1971), the Supreme Court held that they did, extending the

Younger abstention doctrine to requests for declaratory relief,

at least where granting a declaratory judgment would have the

potential to interfere with an ongoing state court criminal

proceeding. The Court reasoned that if the state court refused

to recognize the validity of the declaratory judgment, the next

logical step would be an enforcement proceeding in federal court,

and that should the court enforce its declaratory judgment by way

of an injunction, the result would be “a clearly improper

interference with the state proceedings.” Id. at 72. Even if

that did not occur, however, “the declaratory relief alone has

virtually the same practical impact as a formal injunction

would,” and is barred for the same reason as an injunction would

be. Id.

Both Younger and Samuels involved pending state criminal

prosecutions. The Younger doctrine was quickly enlarged,

however, to apply to any state proceeding in which the state has

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a substantial interest - even those in which the state is not

strictly a party to the action. See, e.g., Huffman v. Pursue,

Ltd., 420 U.S. 592 (1975) (civil nuisance proceeding); Trainor v.

Hernandez, 431 U.S. 434 (1977) (state civil fraud proceeding);

Juidice v. Vail, 430 U.S. 327 (1977) (state contempt proceeding);

see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (private

civil case involving a challenge to state appellate bond

proceedings). The question here is whether a state court

proceeding in which an individual unrelated to the alleged

stalker obtains a civil protection order is one to which Younger

applies. 

The Sixth Circuit Court of Appeals has held that Younger

abstention is justified when the following three elements are

present: (1) there is a pending state court proceeding; (2) the

proceeding involves a significant state interest; and (3) the

federal court plaintiff has an adequate opportunity to raise

their federal constitutional challenges in state court. Sun

Refining & Marketing Co. v. Brennan, 921 F.2d 635, 639 (6th Cir.

1990).

Regarding the first element, “the proper time of reference

for determining the applicability of Younger abstention is the

time that the federal complaint is filed.” Id. Here, there is

no question that a state court proceeding was pending when Mr.

Bristow filed his complaint. He had just taken an appeal from

the civil protection order, and the state court had not yet ruled

on the appeal. A case is pending for Younger purposes even if

trial court proceedings have concluded and the matter is on

appeal. See Foster v. Kassulke, 898 F.2d 1144, 1146 (6th Cir.

1990)(Younger’s bar to injunctive relief “applies to state

appellate proceedings as well as state trials”). Thus, this

element is satisfied. 

Turning to the second element, a state civil court

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proceeding may involve an important state interest requiring

abstention, even when the state is not a party to the case. See,

e.g., Kelm v. Hyatt, 44 F.3d 415 (6th Cir. 1995). In Kelm, the

court held that Younger abstention was appropriate where the

plaintiff’s complaint alleged that the execution of a state court

civil protection order deprived him of his due process rights. 

The Kelm court held that regulating domestic violence and the

allocation of property and child custody during divorce

proceedings were traditional domestic relations issues involving

a significant state interest. Kelm, 44 F.3d at 420.

Here, it does not appear that the underlying case involves a

domestic relations issue. Rather, the Court may take judicial

notice of the fact that Mr. Bristow was, at one time, a state

prisoner, and that Ms. Timmerman-Cooper, the state court

plaintiff, is the Warden of the London Correctional Institution. 

Nevertheless, this type of proceeding implicates important state

interests. As one Ohio appellate court has noted, stalking

orders issued under Ohio Rev. Code §2903.214 “are an important

part of the overall legislative scheme that is designed to allow

the police and the courts to act before a victim is harmed by a

stalker.” Lindsay v. Jackson, 2000 WL 1268810, *2 (Hamilton

County App. 2000). This Court has little difficulty concluding

that a state court case initiated by a private party, but seeking

protection from the state courts in the form of a stalking order

authorized by §2903.214, is a proceeding to which Younger

applies.

Finally, turning to the third element, Mr. Bristow has not

alleged that he has raised his constitutional claim in state

court, nor has he alleged that the state court system does not

allow him to do so. In this situation, the federal courts “must

presume that the state courts are able to protect the interests

of the federal plaintiff.” Kelm, supra, at 420, citing Pennzoil,

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supra, at 15. There is no reason why Mr. Bristow cannot seek

relief from the state appellate court, in the context of his

pending appeal, should he believe that Judge Nichols’ order is

unconstitutional. Therefore, all of the Younger elements are

satisfied, and abstention - including the dismissal of this

action - is mandatory.

There is also a second reason why the Court cannot entertain

Mr. Bristow’s claim for declaratory relief. Should the Court

review Judge Nichols’ order for its constitutionality, it would,

in essence, be serving in the role of an appellate court. But

the jurisdiction of the United States District Courts is

original, not appellate. See District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923). This seemingly straightforward

jurisdictional principle has become known as the Rooker-Feldman

doctrine. Often, however, it can be somewhat difficult to

determine if the matter before the district court is actually an

appeal of a state court order. If the federal court plaintiff

does not explicitly state that he is appealing a state court

order or judgment, but it is clear that the injury about which he

complains was caused by the actions of the state court, the

Rooker-Feldman doctrine applies. As the Court of Appeals has

explained, “[t]he inquiry ... is the source of the injury the

plaintiff alleges in the federal complaint. If the source of the

injury is the state court decision, then the Rooker-Feldman

doctrine would prevent the district court from asserting

jurisdiction.” McCormick v. Braverman, 451 F.3d 382, 393 (6th 

Cir. 2006).

Here, it is true that Mr. Bristow is not arguing that Judge

Nichols’ decision is inherently flawed, but rather that even if

it were an otherwise legitimate order, it was issued under

circumstances that amounted to a constitutional violation. 

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Still, the source of the injury about which Mr. Bristow complains

is the order itself, and not any action caused by the state court

plaintiff, Warden Timmerman-Cooper. Thus, this case also appears

to fit neatly within the contours of the Rooker-Feldman doctrine,

although, given the clear application of the Younger abstention

doctrine to the facts of the case, that determination is not

strictly necessary. Either way, the Court may not grant Mr.

Bristow declaratory relief based on the claim asserted in his

complaint.

 B. Claim for Monetary Damages

Mr. Bristow has also asked for an award of money damages

against Judge Nichols, again based on the alleged

unconstitutionality of the January 11, 2012 order. He claims not

only that the order was issued in retaliation for the appeal, but

that because a notice of appeal had been filed, Judge Nichols

acted in the absence of jurisdiction. These allegations do not

save this claim from dismissal.

First, the same principles which led the Supreme Court, in

Younger v. Harris, to bar equitable relief which would interfere

with the progress of state judicial proceedings, counsel against

entertaining a claim for money damages while those proceedings

are pending. See Carroll v. City of Mount Clemens, 139 F.3d

1072, 1075 (6th Cir. 1998)(an “action for damages under 42 U.S.C.

§1983 ... is a textbook case for Younger abstention”). However,

in such a case, abstention in the form of a stay of the federal

court proceedings rather than outright dismissal appears to be

the proper course of action. Id. Dismissal is appropriate here

for a different reason, however; Judge Nichols, as a state court

judge acting in a judicial capacity, is absolutely immune from a

suit for money damages based on the issuance of his order.

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As a general rule, judges are entitled to absolute immunity

from civil liability regardless of the consequences which follow

from their judicial acts. "It is well- established that judges

of courts of general jurisdiction are immune from liability for

their judicial acts.... Except for acts in the 'clear absence'

of jurisdiction, judicial immunity is absolute." Sparks v.

Kentucky Character & Fitness Committee, 818 F.2d 541, 542 (6th

Cir.1987), vacated, 484 U.S. 1022 (1988), aff'd on

reconsideration, 859 F.2d 428 (6th Cir.1988), citing Bradley v.

Fisher, 80 U.S. (13 Wall.) 335 (1871); Stump v. Sparkman, 435

U.S. 349 (1978); King v. Love, 766 F.2d 962 (6th Cir.), cert.

denied 474 U.S. 971 (1985).

 Bradley stands for the proposition that, at common law, a

judge enjoys absolute immunity from the consequences of judicial

acts, premised upon the concern that if such immunity were not

available, judges would constantly be the subject of lawsuits by

unsuccessful or dissatisfied litigants, and that the risk of

personal liability and the interference with a judicial function

posed by the availability of such lawsuits would make it

impossible either for judges to carry out their functions or to

encourage persons to become judges in the first instance. That

common-law principle was extended to liability under 42 U.S.C. §

1983 by Pierson v. Ray, 386 U.S. 547 (1967). As more completely

explained in Stump v. Sparkman, supra, the immunity does not

disappear even if the judicial act "was in error, was done

maliciously, or was in excess of [the judge's] authority";

liability attaches only to acts taken in the "'clear absence of

all jurisdiction.'" Id. at 356-57, quoting Bradley v. Fisher,

supra.

If a judge acts in some capacity other than a judicial

capacity, judicial immunity does not apply. Forrester v. White,

484 U.S. 219 (1988); see Crooks v. Maynard, 913 F.2d 699, 700

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(9th Cir.1990)("Absolute judicial immunity only applies to

judicial acts and not to administrative, legislative, and

executive functions that a judge may perform"). It is not always

clear which acts of a judge are "judicial" and which are not. 

The test is a functional one. The court must consider the nature

of the act, not the identity of the actor. "Any time an action

taken by a judge is not an adjudication between parties, it is

less likely that the act is a judicial one." Morrison v.

Lipscomb, 877 F.2d 463, 466 (6th Cir.1989). However, if the act

helps to determine the rights and liabilities of parties to a

lawsuit, it may be a judicial act even if it does not fall into

the traditional category of deciding a case.

Once the court determines that an act is of a judicial

nature - that is, one ordinarily performed by a judge - and the

persons dealing with the judge reasonably understand his actions

to have been so performed, unless there is unequivocal proof that

the judge acted in the clear absence of all jurisdiction, he or

she is absolutely immune from a suit for money damages brought

under §1983. 

 In this case, Judge Nichols performed a judicial act by

issuing an order. The specific order in question - directing Mr.

Bristow to appear for purposes of being fitted with an electronic

monitor - is an act which a state court judge is authorized to

perform under Revised Code §2903.214(E)(1)(b) (“the court may

order that the respondent be electronically monitored for a

period of time and under the terms and conditions that the court

determines are appropriate”). The only possible reason why

judicial immunity would not apply here is if Judge Nichols acted

“in the clear absence of all jurisdiction” by issuing the order

after Mr. Bristow had filed a notice of appeal. 

It is generally true, in Ohio, that once an appeal is

properly taken, the trial court loses jurisdiction over the case. 

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That rule is not absolute, however; as the state appellate courts

note, “the filing of a notice of appeal generally divests the

trial court of jurisdiction to act except over issues not 

inconsistent with the appellate court's jurisdiction ....” 

Estate of Beavers v. Knapp, 175 Ohio App. 3d 758, 788-89

(Franklin Co. App. 2008). For the following reasons, the order

issued by Judge Nichols appears to be the type of order that is

not inconsistent with the jurisdiction of the appeals court.

There is no question that the order granting protection to

Warden Timmerman-Cooper was not stayed at the time Judge Nichols

ordered Mr. Bristow to appear before the Madison County Sheriff. 

The Ohio Rules of Procedure provide that a stay of an order

granting injunctive relief may be obtained from either the trial

court or the appellate court. See Ohio R. App. P. 7(A); Ohio R.

Civ. P. 62(A). Absent a stay, the order remains in effect and

the trial court has jurisdiction to enforce it. See Hosta v.

Chrysler, 172 Ohio App. 3d 654, 662 (Montgomery Co. App.

2007)(“[w]hen a permanent injunction has been issued by the trial

court on the merits of a claim, the court has continuing

jurisdiction to enforce the injunction”); Northfield Park

Associates v. Northeast Ohio Harness, 36 Ohio App. 3d 14, 26

(Cuyahoga Co. App. 1987)(“[t]he appellants took no action to

obtain a stay under the provisions of Civ.R. 62 to stay the

enforcement of the judgment rendered against them. Accordingly,

it was within the power of the trial court to issue an order to

enforce its judgment”). If the mere filing of a notice of appeal

divested the trial court of that continuing jurisdiction, the

notice of appeal would have the effect of automatically staying

the order, but that is not the case. “A trial court is [only]

deprived of its authority to enforce such a judgment ... if there

is an order staying its execution pending the outcome of an

appeal.” Dandino v. Finkbeiner, 1995 WL 628222 (Lucas Co. App.

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Oct. 27, 1995). The same principle holds true in federal

jurisprudence; once a permanent injunction issues, and even if a

notice of appeal has been filed, “[u]ntil the judgment has been

properly stayed or superseded, the district court may enforce it

....” United States v. Revie, 834 F.2d 1198, 1205 (5th Cir.

1987).

Here, the order about which Mr. Bristow complains was

clearly in the nature of an order enforcing the prior protection

order. Judge Nichols had already determined that Warden

Timmerman-Cooper was entitled to such an order, and by directing

Mr. Bristow to appear for the electronic monitor to be attached,

he was simply enforcing the prior order. It seems plain to this

Court that he had the jurisdiction to do so absent a stay of his

protection order. Even if he did not, however, it is arguable

that he did. That is inconsistent with the clear absence of all

jurisdiction which must be shown in order to overcome absolute

judicial immunity, and therefore Mr. Bristow cannot obtain relief

on his claim for money damages against Judge Nichols.

 IV. Recommended Disposition

For all of these reasons, Mr. Bristow’s request for leave to

proceed in forma pauperis (#1) is granted. Further, it is

recommended that the complaint be dismissed for failure to state

a claim upon which relief may be granted. If this recommendation

is adopted, a copy of the complaint, the Report and

Recommendation, and the dismissal order should be mailed to the

defendant. 

V. Procedure on Objections

 If any party objects to this Report and Recommendation,

that party may, within fourteen days of the date of this Report,

file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s).

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A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a waiver

of the right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

Unites States Magistrate Judge

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