Kelm v. Hyatt

• Decision Date: 18 January 1995
• Docket Number: No. 93-3141,93-3141
• Citation: 44 F.3d 415
• Parties: Russell A. KELM, Plaintiff-Appellant, v. C. HYATT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 415

44 F.3d 415

Russell A. KELM, Plaintiff-Appellant, v. C. HYATT, et al., Defendants-Appellees.

No. 93-3141.

United States Court of Appeals Sixth Circuit.

Argued March 14, 1994.

Decided Jan. 18, 1995.

Russell A. Kelm (argued and briefed), Schwartz, Kelm, Warren & Rubenstein, Mark S. Coco (argued and briefed), Harris, McClellan, Binau & Cox, Columbus, OH, for plaintiff-appellant.

Glenn B. Redick (briefed), City Attorney's Office for the City of Columbus, Harland H. Hale (argued and briefed), Carol Johnson King (argued and briefed), Columbus, OH, for defendants-appellees.

Elaine O. Zingg (briefed), Legal Aid Soc. of Columbus, Columbus, OH, for Legal Aid Soc. of Columbus, amicus curiae.

Before: KEITH and BATCHELDER, Circuit Judges; and JOINER, District Judge. ^*

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, Appellee 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 Sec. 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 filing 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. Sec. 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 Sec. 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. Sec. 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 Parkhurst, and Amy Kelm. The aforementioned are the Appellees in the instant case. Counts I and II alleged the unconstitutionality of Sec. 3113.31 and Rule 75(H) and sought injunctive relief pursuant to 42 U.S.C. Sec. 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. Sec. 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. Sec. 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 injunctive 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...