NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0532n.06 No. 12-3708 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

SHARON HALL; JAMES CODY, ) ) P laintif fs-App ellants, ) ) v. ) ) HONORABLE LYNNE S. CALLAHAN, in h er ) off icial capacity; HONORABLE PA TRICIA A. ) COSGROVE, in her off icial capacity; ) HONORABLE P AUL J. G ALLAGHER, in hi s ) off icial capacity; HONORABLE JUDY ) HUNTER, in h er official capacity; ) HONORABLE ALISON MCCARTY, in her ) off icial capacity; HONORABLE TAMMY ) ON AP P EAL FR OM THE O’BRIEN, in h er official capacity; ) UNITED STAT ES DIS TRICT HONORABLE TOM P ARK ER, in h is ) COURT F OR THE NORT HERN off icial capacity; HONORABLE MARY ) DISTRICT OF OHIO MARGARET ROWLANDS, in her off icial ) capacity; HONORABLE ELINORE MARSH ) STO RMER, in her off

icial capacity; ) HONORABLE THOMAS A. TE ODOSIO , in ) his of fi cial capacity; HONORABLE EVE ) BEL F ANCE, in her off

icial capacity; ) HONORABLE DONNA CA RR, in her ) off icial capacity; HONORABLE CLAIR E. ) DICK INSON, in his of

fi cial capacity; ) HONORABLE CARLA M OORE, in her ) off icial capacity; HONORABLE BE TH ) WHITMORE, in her off icial capacity; ) HONORABLE JUDITH CROSS, i n her ) off icial capacity; SUMM IT COUNTY COURT ) OF COMMON P LEAS; NINTH DIS TRICT ) COURT OF AP P EALS, ) ) Defendan ts-Appellees. )BEFORE: M ARTIN, SUHRHEINRICH and GIBBONS, Circuit Judges.

SUHRHEINRICH, Circuit Judge. Plaintiffs-Appellants Sharon Hall and J ames Cody appea l the district court’s dis m i s s al of their § 1983 ac t i o n wh i ch challeng ed, on sever al constitutional g rounds, a state court judgme nt decla ring t h em to be vexatious litigators under Ohio Rev. Code § 2323.52. The district court dismiss ed Plaintiffs’ due proce ss, equal prote ction, and as- applied constitutional challeng es under the Rooke r-Feldman doctrine and held that the v ex ati ous litigator state statute was fac ially constitutional. For the f

ollowing r easons, we AFF I RM the decision of the district cour t. I. Background A. State Trial Court Sharon Hall and J ames Cody (collec tively , “Plaintiffs”) filed a number of pro se complaints 1
ag ainst their neighb o r, M i ch ael Harig , and several other individuals. Har ig subsequently broug ht

an action ag ainst Plaintiffs in the Summi t C o u n ty Court of Common Pleas, seeking to desig nate Plaintiffs as vexatious l itigator s under Ohio Revised Code § 2323.52 (the “ Statute”). The case was assig ned to visiti ng J udg e J udith Cross (“Judge Cross”). Although J udg e Cross

never issued a pre- trial order , met with t h e l itigants, or set a briefing schedule , she desig nated Plaintiffs as vexatious litigators in a sua sponte summary judgme nt order an d d i smissed any

rema ining c laims in the other civil case s broug ht by Plaintiffs.

The docket sheet ref

lects that Plaintiff-Appellant Cody died on J uly 12, 2012, afte r this 1 appea l was filed. The ref

ore, this opinion is moot with respec t to Cody

.

2B. State Court of Ap peals Plaintiffs r etained c ounsel and a ttempted to appea l the decision to the Ninth D istrict Court of Appea ls. Howeve r, Plaintiffs failed to seek leave to appea l, as require d by the Statute. Under the Statute, no appellate proce eding s may be instit uted by vexatious litigators without l ea v e of the appellate court. Ohio Rev. Cod e § 2 3 2 3

. 5 2 (D)( 3) & (I ). As a result, Plaintiffs’ appea l was dismiss ed. Subsequently , P l ai n t i ff s filed a motion for leave to continue their appea l. They also
reque sted that the Ninth District rec onsider their dismiss al. The Ninth District denied both motions and dismiss ed their appea l as untimely

. Plaintiffs then filed an appea l with the Ohio Supreme Court, which dec lined jurisdiction and dismiss ed the a ppeal. C. F ederal Distr ict Court Plaintiffs proce eded to file a § 1983 claim in the United States District Court for the Norther n District of Ohio (the “District Court”). The complaint orig inally named as defe ndants J udg e Cross, the Summi t County Court of Common Pleas and its judge s, the Ninth District Court of Appea ls and its judge s, and the State of Ohio. The State of Ohi o wa s l ater voluntarily dismiss ed. Plaintiffs advanc ed three claims: (1) that J udg e C ro s s ’s s ua sponte dismiss al vi olated their due process and equal protec tion rig hts; (2) that the Statute was unconstitutional as-a pplied; and (3) that the Statute was fa cially

unconstitutional. Def endants moved to dismiss the action pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6)

or, in the alternative, moved for judgme nt on the pleadin gs p u rs u an t to Fe dera l Rule of Civil Procedur e 12(c)

. On November 17, 2011, the District Court held a hear ing o n t h e d ispositi ve motions. P laintiffs wer e per mitted to file a supplemental brief, and Def endants were permitted to respond.

3After the supplement al b ri efing was completed on Dec ember 9, 2011, the District Court

issued a decision on May 10, 2012, g ranting Def endants’ motion. The District Court found that the R o o k e r- F e ld m a n d o c trine barr ed it from considering Plaintiffs’ challeng e to J udg e Cr o s s ’ s ju d g me n t,

as well as Plaintiffs’ as-a pplied constitutional challeng e, beca u s e “i t i s cl ear to the court that the plaintiffs want this court to revie w and reje ct J udg e Cross’s decision.” The District Court also ruled

t h at the Statute was constitutional, ag ree ing with the rea soning set forth in Grundstein v. Ohio , a fede ral district court case finding the Statute constitutional. No. 1:06 CV 2381, 2006 WL 3499990 (N.D. Ohio Dec

. 5, 2006). Plaintiffs perf ecte d an appea l to this court in a timely manner on J une 8, 2012. II. Jurisd iction This court has jurisdiction to revie w the decision of t h e Di s t ri ct Court under 28 U.S.C. § 1291, beca

use this is an appea l from a f inal judgme nt as to all parties a nd all claims. III. Stand ard of Review This court reviews both motions to dismiss for failure to state a claim and motions for judgme nt on the pleading s under a de novo standard. Ziegler v. IBP Hog Marke t, Inc. , 249 F.3d 509, 511-12 (6th Cir. 2001). I n revie wing either motion, this court must “construe that complaint in the light most favor able t o t h e plaintiff, acc ept all of the complaint’s fac tual alleg ations as true, and deter mine whethe r t h e p l aintiff undoubtedly can prove no set of fac ts in support of his claim that would entitle him to relief .” Ziegler , 249 F.3d at 511-12. The District Court’s application of the Rooke r-Feldman doctrine is revie wed de novo. Evans v. Cordray, 424 F. App’x 537, 538 (6th Cir. 2011).

4IV. Analysis

Plaintiffs asser

t that the District Court err ed in dismiss ing their claims that: (1) J udg e Cross’s

sua sponte summary judgme nt ruling violated Plaintiffs’ due proce ss and equal protec tion rig hts; (2) the S tatute i s unconstitutional as applied to Plaintiffs’ case ; and (3) the S tatute is unconstitutional on its face

. A. Due P roce ss and Equ al P rote ction Challenges Plaintiffs alleg e that the District Court e rre d by ref using to enter

tain their claim that during the state court proce eding s, J udg e Cross violated their due proce ss and equal protec tion rig hts by sua sponte g ranting summa ry j u d gm ent ag ainst them without meeting with the litigants or setting a briefing schedule

. I n the District Court, Plaintiffs soug ht decla ratory relief to void J udg e Cross’s judgme nt and also injunctive relief to preve nt Def endants from enfor cing J udg e Cross’s judgme nt. The District Court ruled that the claim was ba rre d by the Rooke r-Feldman doctrine. Fe dera l district courts do not stand as appellate courts for decisions of state co u rt s . S ee Rooke r v. Fidelity Trust Co. , 263 U.S. 413 (1923); Dist. of Columbia Court of Appeals v. Feldman , 460 U.S. 462 (1983). The Rooke r-Feldman doctrine “p re v ents a fede ral court from exercising jurisdiction over a claim alleg ing err or in a state court decision.” Luber v. Sprague , 90 F. App’x 908, 910 (6th Cir. 2004). Fe dera l courts’ “author ity to revie w a state court’s judgme nt” is vested “solely in [t he Supreme] Court.” Exx on Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 292 (2005). On the other hand, the Rooke r-Feldman doctrine does not b ar “a district court from exercising subject-matter jurisdiction simply beca use a party attemp t s t o l itigate in fede ral court a matter previously litigated in state court.” Exx on Mobil, 544 U.S. at 293; see also Evans , 424 F. App’x at 537.

5Plaintiffs set forth sever al arg uments as to why their claims should not have been barr ed by the Rooke r-Feldman doctrine. F irst, Plainti ffs a rgue that they

are “not see king the vacation of the

state cour t judgment,” but that they are “see king a

decla ration that [their] rig hts were violated and

an injunction as to the enfor ceme nt of the judgme nt.” But Plaintiffs’ complaint twice reque sted that the District Court decla

re J udg e Cross’s decision void b ec ause she alleg edly violated their due
proce ss and equal protec tion rig hts by sua sponte ruling ag ainst them in summary judgme nt without meeting with the litigants or setting a briefing schedule

. As the District Court noted, it would have been impossibl e to void the state court judgme nt without “disturbing ” it. Fur thermore , if this court
construes Rooke r-Feldman to allow attacks on a state cour

t’s proce dural e rror , then federa l courts could extensively revie w state court trial proce eding s, a task belong ing to state appellate courts. There fore , we reje ct Plaintiffs’ argument that t h ey wer e not direc tly attacking the state court judgme nt. Next, Plaintiffs cite McCormick v. Braverm an for the contention that if “ther e is some other

source of injury , such as a third party ’s actions, then the plaintiff asser ts an independe nt claim” that is not barr ed by Rooke r-Feldman

. McCormick v. Braverman, 451 F.3d 382, 393 (6th Cir. 2006). I n McCormick

, the plaintiff lost the state proce eding beca use a third party perpe t u at ed fr au d and misrepre sentation, which cau s ed an ad v erse judgme nt ag ainst the plaintiff. Id. at 392-93. Her e, Plaintiffs claim that J udg e Cross was a third party who injured them with her actions during the state
court proce eding

. Howeve r, J udg e Cross was not a third party , but the presiding judge

. This direc tly implicates Ro o ke r -F

el d man conce rns. Indeed, the McCormick court expli citly noted that err ors made by state cour

t judge s are barr ed fr om considera tion. Id. at 394.

6Moreove r, even if J udg e Cross had conducte d her proce eding s err oneously , Plaintiffs could

have direc t l y ap p ea l ed to the state appellate court. Howeve r, the appea l was not hear d beca use Plaintiffs made an err or in filing for the appea l. Fur thermore , Plaintiffs failed to appea l to the United States Supreme Court under 28 U.S.C. § 1257. The District Court was corr ect to rule that Plaintiffs’ challeng e to the state c ourt proce edingwas ba rre d by Rooke r-Feldman

. B. As-Applied Cons titutional Chal lenge Plaintiffs contend that the Dis trict Court err ed in ruling that the Rooke r -F el d ma n doctrine barr ed their as-a

p p l i ed constitutional challeng e. I n the District Court, Plaintiffs alleg ed that the Statute was unconstitutional “as applied and on its fac e” beca use “[a]t all tim es following their desig nation as vexatious litigators,

. . . [t hey ] wer e repr esente d by counsel, includ i n g the time at which they filed their notice of appea l.” They argued that the Statute was overbr oad beca use it fails to disti ng uish betwee n pro se litiga nts and li tiga

nts repr esente d by counsel, the la tter of whom a

re subject t o Ohio Civil Rule 11, which prohibit s counsel fr om filing vex atious lawsuits, and sought a dec lara tion that the Statute is unconstit utional as applied a nd on its face

. T o the ex tent Plaintiffs seek a decla ration t hat t he S tatute i s unconstitutional as app l i ed i n the prior state court proce eding and relieving them from that judgme nt, the District Court corr ectly ruled that Rooke r-Feldman bars their as-a pplied challeng e to the Statute. See, e.g., Carter v. Burns , 524 F.3d 796, 798 (6th Cir. 2008) (holding that the Rooke r-Feldman doctrine barr ed a prisoner’ s asapplied constitutional challeng e to a Tenne ssee collater al revie w statu t e b ec ause the prisoner’ s alleg ed injury was “an injury from the prior state-c ourt deter minations”); Howard v. W hitbeck, 382 F.3d 633, 641 (6th Cir. 2004) (hol ding that the Rooke r-Feldman doctrine barr ed a prisoner’ s as7applied cha lleng e to a Michig an statute re quiring filing fee pay ments beca

use i t would undermine an existi ng state cour

t judgment)

. To the extent Plaintiffs’ as-a pplied claim see ks a decla ration that the Statute is unconstitutional when litigants are repr esente d by counsel in future case s, the claim is not ripe beca use Plaintiffs have not alleg ed that they have filed or prese ntly intend to file any new lawsuits. See Lawrence v. W

elch , 531 F.3d 364, 373-74 (6th Cir. 2008) (Sutton, J ., concur ring ) (holding that, to the extent the attorney plaintiff asked the court to enjoin the reje ction of future bar applications, his claim was not ripe beca use the court could not know if the plaintiff would file a subsequent bar application, or whether a subsequent application would be reje cted by the Michig an Boa rd of L aw Ex aminers)

. Cf. Berry v. Schmitt , 688 F.3d 290, 298 (6th Cir. 2012) (holding that, to the extent that

2

t he attorney plaintiff challeng ed a war ning letter he rec eived from the state bar for criti ci z i n g a leg islative ethics commission, his claim was ripe beca use he had “shown an imm i n en t threa t of
p ro s ec u t ion” by alleg ing “an intention to eng ag e in speec h prohibited by [t he war ning letter]”); Fieger v. Ferry , 471 F.3d 637, 643 (6th Cir. 2006) (holding that, to the extent that the plaintiff asked the court to enjoin the continued enfor ceme nt of the Michig an rec usal rule allowing for the defe ndant judge s to hear his case s on the Michig an Supreme Court, his claim was ripe beca use the court could

rea sonably conclude that there was “a signific ant, rathe r than remote, possibili ty ” that the plaintiff would rea ppear in front of the Michig an Supreme Court); Hood v. Keller , 341 F.3d 593, 597-98 (6th Cir. 2003) (holding that, to the extent the plaintiff asked the court to enjoin the state from enfor cing

a statute requiring that he obtain a permit to speak on public g rounds, his claim was ripe beca use he

J udg e Sutton’s concur

renc e was joined by J udg e Roge rs, g iving t h at o p i nion controlling 2 weig ht with reg ard to ripe ness. See B erry v . Schmitt , 688 F.3d 290, 301 n. 3 ( 6th Cir. 2012). 8alleg ed a “continued threa t of enfor ceme nt” of the statute, which would “chill and deter ” his prese nt and future speec h). There fore , we do not rea ch t h e m er i ts of Plaintiffs’ as-a pplied constitutional challeng e. 3 This leaves Plaintiffs’ f

acia l challeng e. C. F acial Constitutional Ch allenge Plaintiffs appeal the District Court’s dismiss al of their g ener al challeng e to the constitutionalit y of the Statute. I n their complaint, Plaintiffs soug ht a decla ration that the Statute is
Although we do not rea ch the Rooke r-Feldman issue beca use the claim is not ripe, we note 3 that the Rooke r-Feldman d o ct ri ne does not bar as-a pplied constitutional challeng es seeking prospec tive relief

as long as “the source of [the plaintiff]'s alleg ed injury is not the pa st state court judgme nts” but “the purported unconstitutionalit y of [t he statute] as applied in future case s.” Fieger , 471 F.3d at 646. See also Berry, 688 F.3d at 300 (holding that the plaintiff’s action was not barr ed by Rooke r-Feldman beca

use he “[did] not reque st relief ” from the state decision itself but “[sought] relief that would allow him to eng ag e in future protec ted speec h”); Hood , 341 F.3d at 598 (holding that the plaintiff’s action was not barr ed by Rooke r-Feldman b ec ause the plaintiff had “not challeng ed h i s s tate court criminal trespass conviction,” but soug ht prospec tive injunctive and decla ratory relief

). Cf

. W elch, 531 F.3d at 370-71 (holding that the plaintiff’s action was barr ed by Rooke r-Feldman beca

use “while the redr ess [t he plainff] seeks

. . . is forwa rd-looking , the claim is nonetheless premised on the same past injury ”) (non-major ity opinion); Loriz v. Connaughton, 233 F. App’x 469, 475 (6th Cir. 2007) (holding that the plaintiff’s action was barr ed by Rooke r-Feldman beca use “[i] n order for the district court to g rant the reque sted decla ratory or injunctive relief ,” the district court “would be forced to revie w t he decisions” of s t at e courts). I n fac t, on one occasion, this court held that an a s-applied c onstitut ional challeng e to t he very same statute a t issue was not barr ed by Rooke r-Feldman. Evans , 424 F. App’x at 540-41. The plaintiff in Evans , who had been desig nated a vexatious litigator by a past state court judgme nt, was i n t h e middle of an ong oing divorce proce eding

. Id. at 537-38. After two of his motions in the divorce proce eding wer e denied beca use he had failed to file leave as require d by the vexatious litigator statute, he challeng ed the constitutionalit y of the vexatious litigator statute as applied to divorce proce eding s in the future. Id. We held that beca

use the source of the plaintiff’s injury was “Ohio’s alleg edly unconstitutional prese nt and future enfor ceme nt [of the vexatious litigator statute] in divorce proce eding s,” and not the prior state court decision desig nating the plaintiff as a vexatio u s l i tigator, his claim was not b arred by Rooke r-Feldman. Id. at 540-41. Howeve r, the prese nt case is arguably differ ent fr o m Evans beca

use the Evans plaintiff’s alleg ed injury was the alleg ed unconstitutionalit y of the statute “as applied in divorce proce eding s,” which was “not an issue in the vexatio u s -l itigator case and there fore prese nted no basis for an appea l.” Id. at 541. I n contra st, Plaintiffs’ alleg ed injuries wer e all issues from Judge Cross’s c ase, w hich could have been a ppeale d. 9fac ially unconstituti o nal for violating the First, Fifth, and Four teenth Amendments. The District Court held that Rooke r-Feldman did not bar a “g ener al challeng e to the constitutionalit y of the state law applied in the state action.” Tropf v. Fidelity Nat’l Titl e Ins. Co., 289 F.3d 929, 937 (6th Cir. 2002) (quoting Catz v. C

halker , 142 F.3d 279, 293 (6th Cir. 1998)). Howeve r, t he D i s t ri ct C o u rt nonetheless dismissed the cla im beca use it found that the Statute was c onstitut ional as a ma tter of law, adopting the rea soning of Grundstein v. Ohio. 2006 WL 3499990 at *3-7. The Gr u n d s t ei n plaintiff ar gu ed that the Statute was unconstitutional on its fac e beca use it violated the First and Four teen t h Amendments. Id. at *3. Apply ing a rational basis test, the Grundstein court held that the S tatute was constitutional beca use i t did “not a rb i t ra ri ly and capriciously deprive citizens of a constitutionally pro t ec t ed l i b erty or proper ty interest.” Id. at *6. Plaintiffs now challeng e the District Court’s relianc e on Grundstein. Plaintiffs arg

ue that Grundstein v. Ohio applied the incorre ct standard of revie w. Plaintiffs claim that strict scrutiny should have been applied beca use acc ess to the courthouse is a fundame ntal rig ht. Sweke l v. City of River Rouge , 119 F.3d 1259, 1261 (6th Cir. 1997). Howeve r, Plaintiffs fail

to r ealize that althoug h acc ess to c ourts is a fundame ntal rig ht, the ability to f ile frivolous lawsuits is not. Bill Johnson’s Rests. v. NLRB , 461 U.S. 731, 743 (1983) (“Jus t as false statements are not immuniz ed by the First Amendment rig ht to fre edom of speec h, basele ss litigation is not immuniz ed by the First Amendment right t o petition.”) (citations omitted). As the Grundstein court held, the Statute specifica lly

targ ets basele ss liti g ation. Ohio Rev. Code Ann. § 2323.52 (2002)

. Plaintiffs also argue that the Statute is overbr oad and that there are less restric tive means to
preve nt vexatious litigation, namely requiring that all vexatious litigators be repr esente d by counsel, who, in turn, are g overne d by Ohio Civil Rule 11. Howeve r, as the Grundstein court rea soned, the

10Statute is not overbr oad beca use it “is not aimed at constitutionally protec ted speec h” and provides

a proce dure for meritorious claims to be hear d, even when they are filed by vexatious litigators. Grundstein , 2006 WL 3499990 at *5. Ne x t , P l aint iffs claim that the Statute violates the First Amendment rig ht to fre e speec h. Howeve r, as the Grundstein court rea soned, vexatious conduct is not protec ted b y t h e First Amendment. Id. at *3-4. Fur thermore , constitutionally protec ted speec h is not banned by the Statute beca use it does not preve nt vexatious litigators from filing future lawsuits as long as those lawsuits have me rit. I n addition, Plaintiffs contend that the S tatute vi olates t he Due Process Cl ause. However,

as the Grundstein court rea soned, the Statute does not ar bitrarily and ca priciously deprive citizens of a constitutionally protec ted liberty or proper ty interest. Id. at *6. As the Grundstein court held, and as w e note a

bove, the Statute is rationally rela ted to leg itimate ends, so it is not arbitrary

. See Rege nts of Univ. of Mich. v. Ewing , 474 U.S. 214, 227 (1985). The Statute also restra ins narr owly only the conduc t it seeks to prohibit, by providing a mec hanism by which even vexatious li tiga nts can f ile meritorious ac tions. Finally , Plaintiffs claim that the Statute violates the Equal Protection Clause. This argument clea rly has no merit. I n making an equal protec tion challeng e, the plaintiff must demonstra te that a discrimination of some substance has occur red which has not occ urre d ag ainst other individuals who wer e simil arly situated. City of Cleburne, Texas v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985). Plaintiffs have not identified two g roups, nor how the Statute treats them diffe rently

. I n sum, the District Court’s relianc e on G r u n d s te in in r e je c ti n g Pl a in

ti f f s ’ fac ial constitutional challeng e wa s not in error.

11V. Conclusion

For the fore g oing r easons, we AFF I RM the District Court judgment.

12