Prewitt v. Woessner et al

Filing 3

Memorandum Opinion and Order dismissing 1 Complaint. Judge Jack Zouhary on 1/29/13. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Andrew W. Prewitt,

Case No. 3:13 CV 101
Plaintiff,

MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
David Woessner, et al.,
Defendants.

Pro se Plaintiff Andrew Prewitt filed this action against Wood County Court of Common
Pleas, Juvenile Division Judge David Woessner and Keith Sparrow. Plaintiff alleges his constitutional
rights were violated during the course of ongoing state juvenile court proceedings. He seeks
injunctive relief.
BACKGROUND
Plaintiff appears to be involved in legal proceedings relating to parental custody of his minor
child. He alleges these proceedings are currently ongoing and pending before Judge Woessner in the
Juvenile Division of the Court of Common Pleas of Wood County, Ohio. See Prewitt v. Zielinski,
Case No. 04 JF 0174 (Wood County Ct. Common Pleas). According to documents attached to the
Complaint, Judge Woessner appointed Sparrow to serve as guardian ad litem (“GAL”) for Plaintiff’s
child in April 2011 (Doc. 1-1 at 1–2).
Plaintiff alleges Sparrow has behaved inappropriately on a number of occasions since his GAL
appointment. Specifically, Plaintiff claims Sparrow (1) misrepresented his role as the minor child’s

attorney; (2) made false claims and statements against Plaintiff; (3) refused to investigate the alleged
assault of the child; and (4) acted in an abrasive, disrespectful manner towards Plaintiff. Plaintiff also
claims Sparrow refused to honor a verbal agreement that Plaintiff would receive sole custody of the
minor child if Plaintiff dropped all contempt charges against the child’s mother and the mother moved
out of Ohio. Plaintiff states he filed numerous grievances and motions regarding Sparrow’s allegedly
improper behavior, but Judge Woessner failed to remedy the situation. He claims that by failing to
“control Sparrow,” Judge Woessner is implicitly condoning Sparrow’s behavior and exhibiting a
biased attitude.
Plaintiff filed the instant Complaint on January 15, 2013 (Doc. 1), claiming violations of his
constitutional right to be a parent under the Fifth, Ninth and Fourteenth Amendments; his equal
protection and due process rights; and his right to associate with his children under the First
Amendment (Doc. 1 at 8). Plaintiff also claims Defendants’ actions violate 42 U.S.C. § 1981, 5
U.S.C. § 8507, and 28 U.S.C. § 144 (Doc. 1 at 2).
Plaintiff seeks an injunction (1) ordering Judge Woessner to remove Sparrow from the
“ongoing litigation” in his Wood County juvenile court proceedings, and (2) instructing Judge
Woessner to fulfill the alleged verbal agreement between Plaintiff and Sparrow referenced above
(Doc. 1 at 9). He does not seek monetary relief.
STANDARD OF REVIEW
This Court notes Plaintiff paid the $350 filing fee in this case and, therefore, the screening
provisions set forth in 28 U.S.C. § 1915(e) do not apply. See Benson v. O’Brian, 179 F.3d 1014, 1017
(6th Cir. 1999). The Sixth Circuit has explained that, “[g]enerally, a district court may not sua sponte
dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the

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opportunity to amend the complaint.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999); see also
Tingler v. Marshall, 716 F.2d 1109, 1111–12 (6th Cir. 1983) (requiring a district court to give
unambiguous notice of its own motion to dismiss and to notify parties of a reasonable date by which
they must respond).
A district court may, however, sua sponte dismiss a complaint at any time pursuant to Federal
Civil Rule 12(b)(1) for lack of subject matter jurisdiction “when the allegations of a complaint are
totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to
discussion.” Apple, 183 F.3d at 479 (citing Hagans v. Levin, 415 U.S. 528, 536-37 (1974)). In other
words, a district court may sua sponte dismiss a claim under Rule 12(b)(1) where that claim lacks the
“legal plausibility necessary to invoke federal subject matter jurisdiction.” Id. at 480. Under these
circumstances, a district court need not provide a plaintiff an opportunity to amend his/her complaint.
Id. at 479; see also Tingler, 716 F.2d at 1111.
ANALYSIS
In the instant case, Plaintiff’s constitutional claims derive from alleged misconduct by Sparrow
in his role as GAL in Plaintiff’s underlying state custody proceedings, as well as Judge Woessner’s
alleged failure to “control” Sparrow’s behavior. Plaintiff does not seek monetary relief; rather, he
asks this Court to intervene in these ongoing state proceedings in order to remove Sparrow as GAL
and enforce an alleged verbal agreement whereby Plaintiff would receive sole custody of his minor
child. For the following reasons, this Court finds it must abstain from intervening in Plaintiff’s state
court proceedings.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that principles of comity
prelude federal courts from interfering with pending state proceedings involving important state

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interests unless extraordinary circumstances are present. Id. at 44–45. As that Court explained, “[t]he
notion of ‘comity’ includes ‘a proper respect for state functions, a recognition of the fact that the
entire country is made up of a Union of separate state governments, and a continuance of the belief
that the National Government will fare best if the States and their institutions are left free to perform
their separate functions in their separate ways.” Id. Thus, when a person is involved in an ongoing
state action implicating important state matters, he or she cannot interfere with the pending state
action by maintaining a parallel federal action involving claims that could have been raised in the state
case. Watts v. Burkhart, 854 F.2d 839, 844–48 (6th Cir. 1988).
Applying these principles, abstention is appropriate if: (1) state proceedings are on-going, (2)
the state proceedings implicate important state interests, and (3) the state proceedings afford an
adequate opportunity to raise federal questions. Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir.
2006). The Supreme Court has indicated that “[t]he policies underlying Younger are fully applicable
to noncriminal judicial proceedings when important state interests are involved.” Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
All three factors supporting abstention are present here. First, Plaintiff repeatedly alleges the
custody proceedings at issue are “ongoing,” thereby satisfying the first factor (Doc. 1 at 7, 9).
Second, resolution of domestic relations matters, including child custody proceedings, implicate
important state interests. See Akenbrandt v. Richards, 504 U.S. 689, 703 (1992) (stating that the
power to regulate domestic relations, such as child custody decrees, are within the realm of state, not
federal, law). Indeed, the Sixth Circuit has upheld the dismissal of claims on abstention grounds
“where the underlying issues involved domestic relations because domestic relations involve

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‘paramount’ state interests.” Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir. 1995); see also Farkas v.
Ohio, 2012 WL 3600201, at *3 (S.D. Ohio 2012).
With respect to the third factor, the pertinent inquiry is whether the state proceedings afford
an adequate opportunity to raise the federal claims. Moore v. Sims, 442 U.S. 415, 430 (1979). The
burden at this point rests on the plaintiff to demonstrate that state procedural law bars presentation
of his federal constitutional claims. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987). When a
plaintiff has not attempted to present his federal claims in the state court proceedings, the federal court
should assume that state procedures will afford an adequate remedy, in the absence of “unambiguous
authority to the contrary.” Id. at 15. Here, Plaintiff has not set forth facts which reasonably suggest
the Ohio courts cannot or will not provide an adequate opportunity for him to raise his constitutional
claims. Consequently, this Court finds the third factor supporting Younger abstention is present.
In light of the above, this Court finds all three requirements of Younger are satisfied and this
Court must abstain from intervening in the ongoing Wood County juvenile court proceedings at issue.
Thus, although Plaintiff has paid the filing fee in the instant case, this Court finds his claims lack the
“legal plausibility necessary to invoke federal subject matter jurisdiction.” Apple, 183 F.3d at 479.
Sua sponte dismissal is, therefore, appropriate.
CONCLUSION
Accordingly, and for all the reasons set forth above, this action is dismissed.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
January 29, 2013

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