Chappel v. Hunter

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAWN M. CHAPPEL, Case No. 1:23-cv-728

Plaintiff, Cole, J.

Bowman, M.J.

v.

MAGISTRATE DAVID M. HUNTER, et al.,

Defendants.

REPORT AND RECOMMENDATION

On November 7, 2023, Plaintiff Dawn Chappel, proceeding pro se, filed an

application seeking to initiate the above-captioned case in forma pauperis, or without

payment of a filing fee. By separate Order, Plaintiff has been granted leave to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915. This matter is now before the Court for a

sua sponte review of the complaint to determine whether the complaint, or any portion of

it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which

relief may be granted or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2)(B).

For the reasons that follow, the undersigned recommends that Plaintiff’s complaint,

as well as a separately tendered petition for writ of habeas corpus, be DISMISSED.1

1Plaintiff has attached multiple documents to her application to proceed in forma pauperis including: a

motion to obtain electronic case filing rights, a motion to receive service by email, requests for Waiver of

Service and USM-285 forms, and a “writ of habeas corpus.” Consistent with this Report and

Recommendation (“R&R”), all non-dispositive motions are denied as moot. Because it is dispositive, this

R&R includes analysis of her petition for writ of habeas corpus.

I. The Screening Standard

In enacting the original in forma pauperis statute, 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.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized

federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action

is frivolous or malicious. Id.; see also 28 U.S.C. § 1915(e)(2)(B)(i). A complaint may be

dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable

basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v.

Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis

when the defendant is immune from suit or when plaintiff claims a violation of a legal

interest which clearly does not exist. Neitzke, 490 U.S. at 327.

Congress also has authorized the sua sponte dismissal of complaints that fail to

state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). A complaint

filed by a pro se plaintiff must be “liberally construed” and “held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,

however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d

at 470-71 (“dismissal standard articulated in Iqbal and Twombly governs dismissals for

failure to state a claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept

all well-pleaded factual allegations as true, but need not “accept as true a legal conclusion

couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain,

478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed factual

allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that

offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. The complaint

must “give the defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Erickson, 551 U.S. at 93 (citations omitted).

II. Plaintiff’s Prior Litigation

The undersigned takes judicial notice that Plaintiff previously filed a federal case

involving the same state protective custody proceedings that form the basis of the

above-captioned lawsuit. See Chappel v. Adams County Children’s Services, et al., No.

1:22-cv-747-SJD-KLL In that case, Plaintiff sued Adams County Childrens’ Services

(“ACCS”) and Ashlee Moore, a caseworker with ACCS. On initial screening, Magistrate

Judge Karen Litkovitz filed a Report and Recommendation (“R&R”) that recommended

the sua sponte dismissal of Plaintiff’s prior complaint with prejudice. In a Supplemental

R&R, Magistrate Judge Litkovitz recommended the denial of Plaintiff’s motion to amend

her complaint. On May 19, 2023, U.S. District Judge Susan Dlott adopted the original

R&R as written and the Supplemental R&R with modification. The Court held that both

Plaintiff’s original claims and her proposed amended complaint were equally barred for

lack of jurisdiction based on the Rooker-Feldman doctrine, and also were barred under

Younger abstention to the extent that the child custody proceedings that formed the

basis of Plaintiff’s federal complaint remained ongoing in Adams County. See Chappel

v. Adams Cnty. Children's Services, No. 22-cv-747, 2023 WL 4191724, *3-4 and n.8

(S.D. Ohio May 19, 2023); see also id., *7 n.12. In the alternative, the Court concluded

that Plaintiff’s proposed amended complaint failed to state any claim for relief against

either ACCS or Moore.

III. Allegations of Current Complaint

Plaintiff’s new complaint consists of 12 single-spaced neatly typed pages, followed

by 223 pages of exhibits. Notably, Plaintiff’s current complaint concerns the same Adams

County Juvenile Court proceedings at issue in Plaintiff’s prior lawsuit. Plaintiff alleges that

she is the mother of two minor children, identified herein as “E.M” and “T.C.” (Doc. 1-7,

¶1, PageID 38). Although her allegations are somewhat difficult to follow, they are

additionally fleshed out in her exhibits.

Plaintiff generally alleges that E.M. and T.C. were wrongfully removed from her

custody2 by Adams County Juvenile Court in November 2022, that her civil rights were

violated during the investigation and removal process, and subsequently through

improper drug screening including multiple false positive tests. Plaintiff identifies as

Defendants two state court judicial officers: Magistrate David Hunter and Adams County

2The record reflects that Adams County also removed the child(ren) from the father’s custody and subjected

him to drug screening. However, because Plaintiff alone brings this action, allegations regarding any other

parent or guardian are omitted unless necessary for context.

Court of Common Pleas Judge Brett Spencer. As additional Defendants, Plaintiff names

two public defenders, Tyler Cantrell and Sarah Shelton; Adams County guardian ad litem

(“GAL”) Mackenzie Carrington; the Adams County Board of Commissioners; and Shayla

Tumbleson, a Peer Recovery Specialist at the Adams County Health Department. (Id.,

¶¶1-8, PageID 37-38).

Plaintiff alleges that on October 12, 2022, Adams County Children’s Protective

Services (“Agency”)3 visited Plaintiff’s home during an investigation of a complaint of

neglect of an infant born to a non-party identified as “A.C.”4 An exhibit attached to the

complaint reflects that the Agency had temporary custody of A.C.’s four other children at

the time, and was seeking permanent custody. Although Plaintiff denies that A.C. or her

infant were living with her, social workers and the local police chief located them at

Plaintiff’s home, and immediately took the infant into custody. (See id., PageID 63-64).

The Agency did not enter and inspect Plaintiff’s home at that time. But a social

worker filed a complaint the next day to investigate Plaintiff and the safety of her two minor

children. Plaintiff alleges that caseworker Ashlee Moore5 later visited her home on

October 17 when Plaintiff was not home. On November 8, Plaintiff alleges that Ms. Moore

filed a false complaint that lacked evidence of any immediate danger to the children. (See,

e.g., Doc. 1-7,¶5, PageID 39; see also id., PageID 56, 11/8/22 complaint requesting

protective supervision and an order to allow the Agency to enter Plaintiff’s home to

conduct a safety review based on “concerns for the safety of the children due to the home

3Despite the minor difference in the name used by Plaintiff, the Agency identified in the current complaint

appears to be the same entity previously identified by Plaintiff in her prior lawsuit.

4Plaintiff includes among the many exhibits attached to her complaint numerous documents related to

“A.C.,” who allegedly had substance use disorder/addiction issues, and other individuals who are not parties

to this federal case. Plaintiff cites to the exhibits as evidence of past wrongdoing by the Adams County

social workers and judicial officers regarding other juvenile court cases.

5Ms. Moore was a Defendant in Plaintiff’s prior lawsuit, No. 1:22-cv-747-SJD-KLL.

being filthy, drug use occurring in the home and… non-compliance” with the Agency’s

repeated attempts to inspect the home).

On November 8, 2022, Magistrate Hunter signed an ex parte order granting the

Agency “protective supervision of the minor children,” and directing Plaintiff and others to

permit the Agency “to access the residence where the child[ren) are located to ensure

their safety.” (Id., PageID 54, 58). Magistrate Hunter set a hearing for November 23, 2022.

He appointed GAL Mackenzi Carrington to appear on behalf of Plaintiff’s minor children,

and appointed Public Defender Sarah Shelton to represent Plaintiff. The November 8

order directs Plaintiff to contact Ms. Shelton “within 72 hours of this hearing and submit

an affidavit of indigency and a $25.00 application fee.” (Id., PageID 60-61).

Plaintiff alleges that the Agency waited until November 14, 2022 before it removed

her two children from her home through “coercion” by Ms. Moore, accompanied by

Plaintiff’s landlord and the local police chief. Plaintiff complains that the November 8 order

shown to her at the time lacked indicia that it had been filed of record. (Doc. 1-7, ¶7,

PageID 39). Though the children were initially placed with a grandmother, they were later

placed into foster care.

On November 23, 2022 Plaintiff appeared for the scheduled hearing. The state

court’s order recites that Plaintiff had not made contact with her appointed attorney prior

to the hearing as required by the November 8 Order, and that drug screening that day

reflected that “[b]oth parents tested positive…, Mother for methamphetamine and

amphetamine and Father for Methamphetamine, amphetamine, and marijuana.” (Id.,

PageID 69). The Order further states:

Mother has a prior drug screen at ACCSB for methamphetamine and

amphetamine which she contested and the results were confirmed by the

lab. Both parents disputed the results and denied use. After considering the

behavior and demeanor of both parties at the hearing, the Court finds their

denials lack credibility.

(Id.) The Court granted temporary custody to remain with Adams County and set a

schedule for parental visitation and drug screening, with the next hearing date set for

February 23, 2023. Judge Spencer adopted Magistrate Hunter’s decision as the judgment

of the Court.

On December 20, 2022, Attorney Shelton moved to withdraw from representation

based on new employment with Clermont County. (Id., PageID 104). The Court appointed

Public Defender Tyler Cantrell to represent Plaintiff in her place. (Id., PageID 105). Mr.

Cantrell appeared with Plaintiff at a hearing held on February 23, 2023. Based on a finding

that Plaintiff had failed to pass 5 substance abuse screens, the Court ordered temporary

custody for the children to continue with Adams County. (Id., PageID 75).6 Both parents

continued to deny any substance abuse at the hearing. And in her complaint, Plaintiff

generally disputes the drug screen results as improperly administered and/or as reflecting

false positives. (Id., PageID 76).

Plaintiff sets forth seven separate causes of action against the various

Defendants. In her first cause of action, Plaintiff alleges that the state court relied upon

false evidence provided by the Agency and “may have … backdated” its November 8

order “to obscure a warrantless entry” on November 14, 2022 when it removed Plaintiff’s

children from her home. (Doc. 1-7, ¶11, PageID 39). This first cause of action sets forth

6Plaintiff has attached records that reflect that Plaintiff was negative on 12/12/22, but positive for

methamphetamines on 12/16/11. She was negative on 12/30/22, but positive for methamphetamines again

on 1/9/23. She was negative on 1/13/23, but positive on 1/17/23 for alcohol, amphetamines, MDMA,

methamphetamine. On 1/27/23, she was positive again for methamphetamines. (See Doc. 1-7, PageID

76).

alternative theories of wrongdoing including a “conspiracy” in violation of “Section 1985”:

The actions of the defendants… appear to be either part of a broader

conspiracy to impede, hinder, obstruct, or defeat the due course of

justice…[in what] would be a direct violation of the Plaintiff's right to equal

protection under the laws. Alternatively, they may involve document

tampering to manipulate the evidence in the Plaintiff's case.

(Id., ¶ 13).

To support her first claim, Plaintiff points to exhibits that she alleges reflect “a

pattern of non-compliance with reporting requirements” in other custody cases in Adams

County. (Id., ¶ 17). She alleges that in her own case, non-party caseworkers made “false”

statements and illegally affixed Plaintiff’s signature to a document “using some sort of

editing device….” (Id., ¶18). She alleges that the Court’s statement in its November 23,

2022 order that a prior drug screen at ACCSB had been “confirmed by lab” was “a

misrepresentation.” (Id. ¶19, PageID 40-41). And she alleges that the court wrongfully

“ignored” a motion in which Plaintiff sought to remove the case from Adams County

Juvenile Court to this federal Court. (Id., ¶20) She vaguely alleges that multiple

defendants violated her “procedural due process rights.” (Id., ¶30, PageID 42).

In her second cause of action, Plaintiff alleges that the state court lacked

jurisdiction to enter its “void” orders, because there was “no emergency or imminent

circumstances present” concerning the children that would have required their removal

on November 14, 2022. (Id., ¶ 34, PageID 43).

In her third cause of action, Plaintiff alleges that she was denied her right to counsel

and right to present evidence. Despite the fact that she was represented, Plaintiff alleges

that neither Ms. Shelton nor Mr. Cantrell “sufficiently advocated for the Plaintiff’s rights”

or objected to the “wrongful restrictions imposed upon the Plaintiff” regarding drug

screens. (See Id., ¶41-43, PageID 44). Plaintiff alleges that at the November 23, 2022

hearing, Magistrate Hunter “declined to review relevant documents” that Plaintiff

submitted, instead giving them to Attorney Shelton, who failed to present them. When Ms.

Shelton later withdrew, she allegedly took Plaintiff’s evidence with her. (Id., ¶ 37, PageID

43). Plaintiff also submits a photograph of Ms. Shelton with a CPS employee at a concert

posted on social media, which Plaintiff argues “raises concerns about potential bias and

conflicts of interest.” (Id., ¶ 42, citing PageID 103).

Plaintiff alleges that the appointment of Tyler Cantrell as replacement counsel

continued to violate her rights. State court records reflect that on April 7, 2023, Attorney

Cantrell initiated an eviction action against Plaintiff on behalf of Adams Metropolitan. See

Case No. CVG2300162. On May 1, 2023, Plaintiff filed a motion with the state court

alleging a conflict of interest based on the fact that Mr. Cantrell was “currently suing me

in a separate case.” (Id., PageID 106). The state court promptly granted Plaintiff’s motion

for replacement counsel, and new Public Defender Anthony Baker appeared on Plaintiff’s

behalf at the hearing held on May 3, 2023. (Id., PageID 71).

In her fourth cause of action, Plaintiff generally alleges that Defendants violated

state law as well as her constitutional rights under the Fourth, Fifth and Fourteenth

Amendments by using faulty drug screens and procedures. (Id., ¶¶ 46-53, PageID 44-

45).

In her fifth cause of action, Plaintiff alleges that Defendants “displayed a prejudiced

attitude toward individuals with addition issues, which could have affected their ability to

fairly adjudicate the Plaintiff’s case.” (Id., ¶56, PageID 45). Plaintiff further alleges that

“untrained individuals have been allowed” to perform drug tests and that:

[C]ase documents suggest confirmation testing was done, but this is falsely

reported. Proper procedures were not followed by the county. The plaintiff

contends that the test results were also falsely reported during the 11/23/22

hearing. Ashlee Moore’s response to Magistrate Hunter has been

documented in the audio transcript

(Id., ¶ 57, PageID 45).

In her sixth cause of action, Plaintiff alleges that the children’s GAL demonstrated

“negligence and failure to act in the best interest of the children” when she

recommended “no contact” at the May 3, 2023 hearing “despite the plaintiff never having

neglected or abused her children,” and when she made the same recommendation on

November 1, 2023. (Id., ¶63). Plaintiff complains that the GAL did not take into account

the children’s desires and therefore breached her responsibilities and jeopardized

Plaintiff’s “right to family life.” (Id., ¶¶ 67-68, PageID 46-47).

In her seventh and final cause of action, (see generally ¶¶ 69-76. PageID 47),

Plaintiff alleges that the Adams County Health Department allowed unlicensed

individuals to conduct assessments and to hold substance abuse counseling sessions.

Which “potentially” violates Plaintiff’s due process rights. Plaintiff alleges that a new

assessment was conducted on May 31, 2023 by Defendant Shayla Tumbleson, who

also supervised relapse prevention sessions every two weeks. On September 27 during

a relapse prevention session, Ms. Tumbleson explained the process for conducting

random drug tests at the health department. However, on October 3, 2023, Ms.

Tumbleson allegedly insisted on Plaintiff submitting to a drug test elsewhere. Plaintiff

was “[u]ncomfortable” with the specified location and instead went to a health

department appointment. Plaintiff alleges that Defendant Tumbleson then cancelled the

October 4 relapse prevention appointment and “falsely marked the plaintiff as missing”

her October 3 appointment. Plaintiff also allegedly discovered “discrepancies in

insurance billing” including charges for services under a provider’s name that Plaintiff

has never seen. Plaintiff alleges that she discovered that Defendant Tumbleson used

the name of another provider and lacks the proper license to perform drug assessments

or counseling.

IV. Analysis

A. Plaintiff’s Separate Petition for Writ of Habeas Corpus

Before addressing the seven claims set forth in Plaintiff’s tendered civil complaint,

the undersigned briefly discusses a separately tendered petition for writ of habeas corpus

that Plaintiff seeks to file “on behalf of my children….” (Doc. 1-6, PageID 35). Plaintiff’s

habeas corpus petition is improper in part because a non-attorney pro se litigant cannot

represent anyone’s interests other than her own. In short, Plaintiff cannot represent her

minor children. “[P]arents cannot appear pro se on behalf of their minor children because

a minor's personal cause of action is her own and does not belong to

her parent or representative.” Shepherd v. Wellman, 313 F.3d 963, 970–71 (6th Cir.

2002); Lawson v. Edwardsburg Pub. Sch., 751 F. Supp. 1257, 1258–59 (W.D. Mich.

1990) (litigant has the right to act as his or her own counsel under 28 U.S.C. § 1654 but

may not represent the interests of his or her minor child without counsel).

Thus, this R&R recommends the dismissal of the petition for writ of habeas corpus

filed “on behalf of” Plaintiff’s minor children.

B. Plaintiff’s Civil Complaint Should be Dismissed

For the reasons that follow, the undersigned also recommends the dismissal of

Plaintiff’s civil complaint.

1. This Court Lacks Jurisdiction

For this Court to have federal question jurisdiction pursuant to 28 U.S.C. § 1331,

a plaintiff must allege facts showing the cause of action involves an issue of federal law.

See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Here, Plaintiff’s claims generally

challenge the procedures, orders and decisions of the Adams County Court of Common

Pleas, Juvenile Court Division.

More than a century ago, the United States Supreme Court proclaimed that “[t]he

whole subject of the domestic relations of husband and wife, parent and child, belongs to

the laws of the states and not to the laws of the United States.” In re Burrus, 136 U.S. 586

(1890).Thus, under the Burrus abstention doctrine, federal courts have universally

declined to exercise jurisdiction in domestic relations cases in which a complaint contains

only conclusory assertions that a plaintiff is entitled to relief because of alleged

constitutional violations, where those assertions are “a mere pretense and the suit is

actually concerned with domestic relations issues.” Danforth v. Celebrezze, 76 Fed. App'x

615, 616 (6th Cir. 2002). In Ankenbrandt v. Richards, 504 U.S. 689, 704, 112 S. Ct. 2206

(1992), the Supreme Court reaffirmed that the domestic relations exception precludes

federal courts from hearing cases “involving the issuance of a divorce, alimony, or child

custody decree.” Nearly all of Plaintiff’s claims fall squarely within the domestic relations

exception. Accord Stephens v. Hayes, 374 Fed. Appx. 620, 623 (6th Cir. 2010)

That most of Plaintiff’s claims are precluded by the Burrus abstention doctrine is

obvious from her prayer for relief. Plaintiff seeks a declaration “that the agency’s

misinterpretation of [drug] test results constitutes a violation of Plaintiff’s rights,” and for

this Court to reverse all “court orders issued in the state court” against her. (Doc. 1-7,

PageID 48). She also seeks the following additional injunctive relief: (1) an “investigation

into the drug screening practices of the Adams County Juvenile Court and Children’s

Services Agency to ensure compliance with established legal standards”; (2) “intervention

to prevent the continued reporting of presumptive positive test results without proper

confirmation”; (3) the “cessation of the use of rapid drug screen devices designated for

forensic use only, and a requirement of the use of accurate and validated drug screening

methods”; and (4) a directive “restraining Defendants from further violation of Plaintiff’s

rights.” (Doc. 1-7, PageID 48). Last, she seeks compensatory and punitive monetary

damages. (Id.)

Multiple reasons counsel against the assumption of federal jurisdiction for such

claims. Adams County is immune from liability for monetary damages under the Eleventh

Amendment, as are individual employees of Adams County to the extent they are named

in their official capacities. “Under § 1983 and the Eleventh Amendment, the Juvenile Court

is considered an arm of the state and cannot be subject to a § 1983 or any other suit for

monetary relief.” Meyers v. Franklin Cnty. Court of Common Pleas, 81 Fed. Appx. 49, 55,

2003 WL 22718238, at *6 (6th Cir. 2003) (quoting Mumford v. Basinski, 105 F.3d 264,

269 (6th Cir.1997)).

Many claims also are subject to dismissal because they are filed against individual

Defendants who are absolutely immune from suit, including Judge Spencer and

Magistrate Hunter. See Mireles v. Waco, 502 U.S. 9, 11 (1991); Pearson v. Ray, 386 U.S.

547 (1967); Barrett v. Harrington, 130 F.3d 246, 255 (6th Cir. 1997). Judges retain

absolute immunity even if they act maliciously or corruptly, as long as they are performing

judicial acts and have jurisdiction over the subject matter giving rise to the suit against

them. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Stern v. Mascio, 262 F.3d 600,

607 (6th Cir. 2001).

Likewise, GAL Carrington, as an advisor to the court, occupies a position that is

“squarely within the judicial process” and therefore is also entitled to absolute immunity

from suit under federal law.7 Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984)

(citing Briscoe v. LaHue, 460 U.S. 325, 325 (1983)). A guardian ad litem also enjoys

absolute immunity under Ohio law. See Kriwinsky v. Deligianis, No. 1:22-cv-1599, 2023

WL 4421634, at *3 (N.D. Ohio May 10, 2023); see also, generally, Pittman v. Cuyahoga

Cnty. Dept. of Children and Family Services, 640 F.3d 716, 726 (6th Cir. 2011) (quoting

Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 422-23 (6th Cir. 2001) (holding that social

worker had absolute immunity including for actions taken during the underlying

investigation, when that investigation was “intimately related to the judicial phase of child

custody proceedings”).

The Sixth Circuit has consistently applied the domestic relations exception to

cases such as this one. But even if the referenced proceedings did not concern domestic

relations, this Court would lack jurisdiction to review claims based solely on state court

rulings. As explained by this Court in its dismissal of Plaintiff’s prior case in this Court, No.

1:23-cv-747-SJD-KLL, the Rooker-Feldman doctrine bars direct review of state court

decisions. See generally Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 148

(1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303

(1983).

7The position occupied by Defendant Tumbleson, an employee of the Adams County Health Department is

less clear. Ms. Tumbleson may be entitled to quasi-judicial immunity for actions undertaken at the direction

of the state court. But because there are myriad reasons to dismiss this lawsuit, the undersigned declines

to reach this separate issue.

The Rooker-Feldman doctrine “is a narrow rule based on the idea that

federal appellate jurisdiction over a state court decision lies exclusively with

the Supreme Court, and not lower federal courts.” Durham v. Haslam, 528

F. App'x 559, 563 (6th Cir. 2013). The Rooker-Feldman doctrine bars “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 Indust. Corp., 544 U.S. 280, 284 (2005). However, it

does not “stop a district court from exercising subject matter jurisdiction

simply because a party attempts to litigate in federal court a matter

previously litigated in state court.” Id. at 293. To determine whether the

Rooker-Feldman doctrine bars a claim, the court must first look to the

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

Cunningham v. Dep't of Children's Servs., 842 F. App'x 959, 963 (6th Cir.

2021). If the source of the injury claimed is the state-court judgment,

Rooker-Feldman applies and the Court lacks jurisdiction. Id. The source of

the injury is determined by the requested relief. Id. With respect to child

custody cases, the Sixth Circuit has drawn a distinction between injuries

stemming from a juvenile court order itself and those stemming from

defendants' conduct in the preparation and issuance of that order. Id. at

964. Injuries stemming from the former are barred by the Rooker-Feldman

doctrine, but those from the latter are not. Id.

In the Complaint, Plaintiff seeks reversal of the magistrate judge's juvenile

court orders relating to custody. She also seeks compensatory and punitive

damages for her alleged loss of privacy and emotional distress from when

Moore executed the juvenile court order and allegedly violated her civil

rights. These alleged violations occurred because, as Plaintiff alleges,

Moore lied to coerce the juvenile court judge into entering an order allowing

her to enter Plaintiff's home and/or gain custody of her children. The source

of the injury, therefore, is the juvenile court order, and the requested relief

flows from that order. Thus, the Court agrees with the Magistrate Judge's

conclusion that the Rooker-Feldman doctrine would bar the Court's subject

matter jurisdiction over the claim seeking reversal of the juvenile court

magistrate judge's order temporarily removing plaintiff's children from her

custody.

Chappel, 2023 WL 4191724, *3-4 (internal footnote omitted).

In a Supplemental R&R, Magistrate Judge Litkovitz reasoned that Rooker-

Feldman might not apply to the proposed amended complaint because Plaintiff had

dropped her request for reversal of the Juvenile Court’s orders in the tendered amended

complaint.8 Judge Dlott disagreed with that portion of the Supplemental R&R.

Acknowledging a split in the case law discussed by Magistrate Judge Litkovitz, the Court

found more persuasive the reasoning of cases that have applied Rooker-Feldman to

similar facts. See Chappel, 2023 WL 4191724 at *7 (citing Hall v. Bush, No. 1:20-cv-731,

2021 WL 4239855, at *6 (W.D. Mich. July 21, 2021), report and recommendation adopted,

2021 WL 3750164 (W.D. Mich. Aug. 25, 2021)).

On the other hand, Judge Dlott agreed with Magistrate Judge Litkovitz that the

Younger abstention doctrine also barred Plaintiff’s claims. Plaintiff’s new complaint makes

clear that the Adams County Juvenile Court proceedings remain ongoing. Therefore, the

undersigned incorporates the Court’s prior analysis concerning Younger abstention as

fully applicable to all remaining claims in this lawsuit:

The abstention doctrine articulated in Younger v. Harris, 401 U.S. 37

(1971)… continues to present a jurisdictional bar to most of plaintiff's claims

in her proposed amended complaint. Absent extraordinary circumstances,

federal courts may not interfere with pending state proceedings in order to

entertain constitutional challenges to the state proceedings. Id. Under

Younger, the federal court must abstain where “[1] state proceedings are

pending; [2] the state proceedings involve an important state interest; and

8Under Rooker-Feldman, federal jurisdiction may still attach where a litigant presents an independent claim

that challenges the constitutionality of a state official's action. In the previously dismissed case, the Court

pointed out that Plaintiff had failed to state any independent claim, in part because she failed to properly

sue the Adams County Board of Commissioners. The Court reasoned that even if she had named the Board

as a defendant, her “claim would fail because she did not allege that a specific policy, custom, or decision

of the Adams County Board of Commissioners caused her alleged constitutional injury as required by

Monell v. Department of Social Services, 436 U.S. 658 (1978).” Chappel, 2023 WL 4191724, at *4 (S.D.

Ohio May 19, 2023). In her new complaint, Plaintiff does name the Adams County Board of Commissioners

as well as an individual who supervised the drug screening tests, Adams County Peer Supervision

Specialist Tumbleson. But even if the new claim is liberally construed as alleging that the Board’s

implementation of its drug screening policies caused Plaintiff’s injuries, Plaintiff’s claims against the Board

and Ms. Tumbleson still would be barred by Younger abstention.

[3] the state proceeding will afford the plaintiff an adequate opportunity to

raise his constitutional claims.” Kelm v. Hyatt, 44 F.3d 415, 419 (6th Cir.

1995) (citing Nilsson v. Ruppert, Bronson & Chicarelli Co., 888 F.2d 452,

454 (6th Cir. 1989)). See also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11

(1987); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975). Extraordinary

circumstances barring abstention include “great and immediate” irreparable

injury, state law that is “flagrantly and patently violative of express

constitutional prohibitions,” or “bad faith, harassment, or any other unusual

circumstance that would call for equitable relief.” Younger, 401 U.S. at 46,

53, 54. See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996).

All three factors supporting Younger abstention are present in this case.

First, it appears the dependency case is currently pending in the Adams

County juvenile court…. See Huffman, 420 U.S. at 608; Loch v. Watkins,

337 F.3d 574, 578 (6th Cir. 2003); Foster v. Kassulke, 898 F.2d 1144, 1146

(6th Cir. 1990). Second, the dependency case implicates the important state

interests in child custody and parental rights. See Meyers v. Franklin Cnty.

Ct. Com. Pl., 23 F. App'x 201, 204 (6th Cir. 2001) (Younger abstention case

stating that “cases out of the Supreme Court and this Court make it clear

that abstention is generally appropriate in matters of family relations such

as child custody”). See also Younger, 401 U.S. at 43-45. Third, there is no

allegation that the state juvenile court proceedings cannot provide an

opportunity for plaintiff to raise any constitutional claims in connection with

the dependency proceedings. See Furr-Barry v. Underwood, 59 F. App'x

796, 797 (6th Cir. 2003) (affirming the application of Younger where a case

was pending in a Tennessee juvenile court, because “there was no

evidence that the state court proceedings did not provide an opportunity for

[the plaintiff] to raise her constitutional claims[ ]”). Therefore, abstention

under Younger is appropriate.

Nor has plaintiff alleged facts showing the existence of extraordinary

circumstances barring the application of Younger abstention. …[She] does

not explain why plaintiff could not raise her proposed constitutional claims

in the Adams County juvenile court. For the reasons stated above, the Court

concludes that adherence to the Younger abstention doctrine is required in

this case as to plaintiff's First, Fourth, and Fourteenth Amendment claims

and 42 U.S.C. § 1985 conspiracy claim related to the Adams County

juvenile court proceedings.

Chappel, 2023 WL 2568300, at *4-5 (S.D. Ohio March 20, 2023) (R&R), adopted at

Chappel, 2023 WL 4191724, at *4, n.8 and at *7 n.12. In short, Younger abstention

provides another firm jurisdictional bar to the claims presented in Plaintiff’s new complaint.

See also generally Kelm v. Hyatt, 44 F.3d at 419-421.

2. Plaintiff’s Failure to State a Claim Against Public Defenders

In addition to the jurisdictional issues and the absolute judicial immunity enjoyed

by the state court judicial officers and the guardian ad litem, Plaintiff’s claims against her

two public defenders are subject to summary dismissal under 42 U.S.C. § 1983 for failure

to state a claim. “It is firmly established that a defense attorney, regardless of whether he

is a public defender or private attorney, is not a state actor for purposes of § 1983.” Jordan

v. Kentucky, No. 3: 09 CV 424, 2009 WL 2163113, at *4 (6th Cir. July 16, 2009),

citing Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445 (1981). In other words, Plaintiff

cannot state a §1983 claim against either of the public defenders who previously

represented her.

3. The Preclusive Effect of this Court’s Prior Judgment

As stated, the above-captioned case arises out of the same set of operative facts

as presented in Plaintiff’s prior case. Plaintiff’s new allegations mirror many of her prior

allegations. For example, Plaintiff previously complained that drug tests showed a “false

positive” and were inaccurate because they were for “forensic use only,” were “not

approved by the FDA,” and used cut-off levels that differ from those used by the

Department of Health and Human Services. (See No. 1:22-cv-747, Doc. 1 (complaint) at

¶¶20-21, 23-26, 28-31, PageID 4-5). Plaintiff also complained about being forced to

subject herself to drug screen tests at the location dictated by the Agency based on a lack

of “trust” in its ability to administer accurate tests. (Id. at ¶34, PageID 6). Plaintiff

previously presented due process claims relating to the alleged coercive process by

which her children were first removed and a “conspiracy” claim; both claims were rejected.

See Chappel, 2023 WL 4191724, at *7-8; see also id., 2023 WL 2568300, at *6 (R&R).

But other allegations and claims appear to be new, as is the list of target Defendants.

Still, the similarity of allegations in Plaintiff’s prior complaint - a pleading that was

dismissed by this Court with prejudice under 28 U.S.C. § 1915(e) - raises questions about

claim preclusion, or res judicata. “The Sixth Circuit has stated that the doctrine of res

judicata may be raised by the district court, sua sponte, ‘in the interest[ ] of ... the

promotion of judicial economy.’” Daniel v. McQuiggin, No. 2:08-CV-13293, 2009 WL

960296, at *2 (E.D. Mich. Apr. 7, 2009) (quoting Holloway Constr. Co. v. United States

Dep't of Labor, 891 F.2d 1211, 1212 (6th Cir. 1989)). Because this Court is on notice of

its own prior rulings, it is appropriate to raise the issue sua sponte here. The fact that

Plaintiff has appealed this Court’s ruling presents no bar to the finality of this Court’s prior

judgment. “[I]t is well established that a final trial court judgment operates as res judicata

while an appeal is pending.” Commodities Export Co. v. U.S. Customs Service, 957 F.2d

223, 228 (6th Cir.1992).

Claim preclusion bars Plaintiff’s “new and improved” claims here because she

could have included the same claims in her previous case.

Just as the addition of new claims does not prevent dismissal on res judicata

grounds, the addition of “new and improved” target Defendants does not

preclude summary dismissal. Claim preclusion remains appropriate if a

plaintiff could have named a party in the prior lawsuit but did not. See

Southall v. Holland, 2021 WL 396688 at *6 (M.D. Tenn. Feb. 3, 2021); see

also generally, Randles v. Gregart, 965 F.2d 90, 93 (6th Cir. 1992) (per

curiam) (upholding dismissal of successive complaint against new

defendants, collecting cases and citing generally United States v. Mendoza,

464 U.S. 154, 158-59 (1984); Parkland Hosiery Co. v. Shore, 439 U.S. 322,

331(1979)); see also Heritage Hills Fellowship v. Plouff, 555 F. Supp. 1290,

1295-96 (E.D. Mich. 1983). In Gregart, the Sixth Circuit also cited with

approval Hazzard v. Weinberger, 382 F. Supp. 225, 226-229 (S.D.N.Y.

1974), aff'd, 519 F.2d 1397 (2d Cir. 1975), in which the court held that

nonmutual claim preclusion is appropriate when a pro se litigant brings

repeated actions upon the same operative facts with slight changes in legal

theories and “cast of characters-defendants.”

Bardes v. Bush, No. 1:22-cv-290, 2022 WL 7121518, at *6 (S.D. Ohio, Oct. 12, 2022).

Thus, claim preclusion provides one more reason to dismiss this lawsuit with prejudice

under 28 U.S.C. § 1915(e)(2)(B).

V. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT Plaintiff’s new civil

complaint be DISMISSED with prejudice under 28 U.S.C. § 1915(e)(2)(B), and that her

tendered petition for writ of habeas corpus be dismissed based on Plaintiff’s inability to

represent her children as a pro se litigant.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAWN M. CHAPPEL, Case No. 1:23-cv-728

Plaintiff, Cole, J.

Bowman, M.J.

v.

MAGISTRATE DAVID M. HUNTER, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).