Edelstein v. Flottman

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

KIMBERLY EDELSTEIN, et al., : Case No. 1:23-cv-754

Plaintiffs, Judge Matthew W. McFarland

v. Magistrate Judge Stephanie K. Bowman

JUDGE ANN FLOTTMAN, et al.,

Defendants.

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation (Doc. 10) and

Supplemental Report and Recommendation (Doc. 23) of United States Magistrate Judge

Stephanie K. Bowman. Plaintiffs filed Objections to both Reports (Docs. 12, 25), and

Defendants responded to those Objections (Docs. 17, 27.) Additionally, Plaintiffs’ Motion

for Leave to File a Reply to Defendants’ Response (Doc. 20), Plaintiffs’ Third Motion for

Temporary Restraining Order (Doc. 26), and Second Motion for Leave to File Reply (Doc.

28) are before the Court. Finding these matters ripe for review, the Court will address

each in turn.

I. Report and Recommendation

The Court first considers the Report and Recommendation (“Report”) of

Magistrate Judge Bowman (Doc. 10), to whom this case is referred pursuant to 28 U.S.C.

§ 636(b). In this initial Report, Magistrate Judge Bowman recommended that this Court

dismiss this case without prejudice due to the lack of subject matter jurisdiction and deny

Plaintiffs’ Motion for a Temporary Restraining Order (“TRO”) (Doc. 6). (Report, Doc. 10,

Pg. ID 98.)

A. Plaintiffs’ General Objections

Plaintiffs object to Magistrate Judge Bowman’s findings, stating that they are

“confused how a federal court could declare that a citizen’s religious observances are

frivolous and dismissal is warranted.” (Objections, Doc. 12, Pg. ID 129.) But, the Report

does not deem Plaintiffs’ religious beliefs to be frivolous. Instead, Magistrate Judge

Bowman found that the Court lacked subject matter jurisdiction over the underlying legal

claims in the Complaint and that the well-established legal doctrines of abstention and

judicial immunity bar Plaintiffs’ requested relief. (See Report, Doc. 10, Pg. ID 94-98.) The

Sixth Circuit has affirmed the practice of sua sponte dismissal in such circumstances. See,

e.g., Metzenbaum v. Nugent, 55 F. App’x 729, 730 (6th Cir. 2003) (concluding that sua sponte

dismissal was proper when defendant was entitled to absolute judicial immunity);

Danforth v. Celebrezze, 76 F. App’x 615, 616-17 (6th Cir. 2003) (concluding that district court

had properly dismissed, sua sponte, plaintiff's claims, which constituted an

impermissible attack on state court domestic relations proceedings).

B. Plaintiffs’ Objections Related to Burrus Abstention

Next, throughout their Objections, Plaintiffs repeatedly emphasize that their suit

involves constitutional claims. (See, e.g., Objections, Doc. 12, Pg. ID 125, 132.) As the Sixth

Circuit has instructed, however, “[i]t is incumbent upon the district court to sift through

the claims of the complaint to determine the true character of the dispute to be

adjudicated.” Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1216 (6th Cir. 1981). “When

analyzing the applicability of the domestic-relations exception, [courts] must focus on the

remedy that the plaintiff seeks: Does the plaintiff seek an issuance or modification or

enforcement of a divorce, alimony, or child-custody decree?” Chevalier v. Est. of Barnhart,

803 F.3d 789, 797 (6th Cir. 2015). In performing this task, Magistrate Judge Bowman

correctly concluded that “[aJll of Plaintiffs’ claims fall squarely within the domestic

relations exception” to jurisdiction because “[a]ll of their requests seek to overturn prior

state court domestic relations decisions, to dictate future custodial decisions, and to

award monetary damages to both Plaintiffs based on past judicial decisions.” (Report,

Doc. 10, Pg. ID 95.)

The Court does not obtain jurisdiction over this domestic relations matter merely

because Plaintiffs cloak their Complaint with constitutional language. See, e.g., Greenberg

v. Slatery, No. 22-CV-5886, 2023 WL 2771640, at *2 (6th Cir. Mar. 28, 2023) (affirming

abstention when “[t]he core of all six of [plaintiff's] claims, although cloaked in the

language of constitutional torts, attacks the validity of the state court’s judgment in the

divorce and child-custody proceedings and seeks its nullification as the primary form of

relief’); Firestone v. Cleveland Tr. Co., 654 F.2d 1212, 1215 (6th Cir. 1981) (“Even when

brought under the guise of a federal question action, a suit whose substance is domestic

relations generally will not be entertained in a federal court.”); Abessolo v. Smith, No. 1:11-

CV-680, 2012 WL 668773, at *3 (S.D. Ohio Feb. 29, 2012), report and recommendation adopted,

No. 1:11-CV-00680, 2012 WL 1564321 (S.D. Ohio May 2, 2012) (applying Burrus abstention

to a matter involving constitutional claims “stem[ming] from an ongoing child custody

and protection case in which Plaintiff, the biological father, is unhappy with both the

process and the result of past and current state judicial decisions”).

C. Plaintiffs’ Objections Related to Rooker-Feldman Abstention

Next, Plaintiffs argue that Magistrate Judge Bowman incorrectly applied the

Rooker-Feldman doctrine. (Objections, Doc. 12, Pg. ID 128.) The Rooker-Feldman doctrine of

abstention “stands for the . . . proposition that lower federal courts do not have

jurisdiction to review a case litigated and decided in state court; only the United States

Supreme Court has jurisdiction to correct state court judgments.” Gottfried v. Med.

Planning Servs., 142 F.3d 326, 330 (6th Cir. 1998). Plaintiffs argue that this doctrine is

inapplicable because there has only been a temporary order regarding visitation issued

by Judge Flottman—not a final decision. (Objections, Doc. 12, Pg. ID 128.) But, as the Sixth

Circuit has held, the Rooker-Feldman doctrine applies to interlocutory orders too. See Pieper

v. Am. Arb, Ass’n., 336 F.3d 458, 462 (6th Cir. 2003); Hancock v. Miller, 852 F. App’x 914,

922 (6th Cir. 2021).

D. Plaintiffs’ Objections to Younger Abstention

Plaintiffs also object to Magistrate Judge Bowman’s finding that the doctrine of

Younger abstention applies to aspects of this matter. (Objections, Doc. 12, Pg. ID 128.) In

order for Younger abstention to apply, three conditions must be met: (1) state proceedings

are pending, (2) the state proceedings involve an important state interest, and (3) the state

proceedings will afford the plaintiff an adequate opportunity to raise the constitutional

claims. Parker v. Com. of Ky., Bd. of Dentistry, 818 F.2d 504, 508 (6th Cir. 1987) (citing

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)).

Plaintiffs object that the state proceedings have since concluded. (Objections, Doc.

12, Pg. ID 128.) Courts, however, “should look to whether a state proceeding was pending

at the time the federal complaint was filed.” Meyers v. Franklin Cnty. Ct. of Common Pleas,

23 F. App’x 201, 204 (6th Cir. 2001) (citing Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir.

2000)); see also James v. Hampton, 513 F. App’x 471, 474 (6th Cir. 2013). This condition is

satisfied here because state proceedings were ongoing when Plaintiffs filed their

Complaint. (See Compl., Doc. 2, { 32; Motion for Injunctive Relief, Doc. 6.)

Furthermore, Plaintiffs object that “there is no opportunity to raise this federal

question as Judge Flottman is unwilling to entertain such arguments and to adhere to her

oath to uphold the Constitution. There is no other avenue for redress of grievances but

the federal court.” (Objections, Doc. 128, Pg. ID 128.) Under this requirement for Younger,

Plaintiffs bear the burden of demonstrating that state law barred presentation of their

constitutional claims. See Squire v. Coughlan, 469 F.3d 551, 556 (6th Cir. 2006). But,

Plaintiffs state that they had previously brought their arguments within the state system

and also appear to recognize their ability to appeal final decisions of the state court within

the state system. (See Second Objections, Doc. 25, Pg. ID 233, 256.) Moreover, Plaintiffs

have not met their burden in showing that “state law clearly bars the interposition of the

constitutional claims.” Am. Family Prepaid Legal Corp. v. Columbus Bar Ass’n, 498 F.3d 328,

334 (6th Cir. 2007) (cleaned up); see also Shafizadeh v. Bowles, 476 F. App’x 71, 73 (6th Cir.

2012) (concluding that the state appellate process gave plaintiff an adequate opportunity

to raise his grievances concerning the presiding judge in a divorce case whom plaintiff

alleged was biased against him).

E. Plaintiffs’ Objections Relating to Judge Flottman, Magistrate

Webb, and Kimberly Kent's Entitlement to Judicial Immunity

Plaintiffs’ Complaint also runs aground on judicial immunity. Judges retain

absolute immunity when performing judicial acts— even erroneous or malicious ones —

as long as they did not act in the clear absence of all jurisdiction. Stump v. Sparkman, 435

USS. 349, 356-57 (1978). Here, Plaintiffs object that Defendants acted in the complete

absence of all jurisdiction and that their actions were not judicial in nature. (Objections,

Doc. 12, Pg. ID 122-27.) The Court addresses each objection in turn.

1. Judge Flottman Did Not Act in the Clear Absence of All

Jurisdiction

Plaintiffs argue that Judge Flottman was “effectively acting outside her

jurisdiction” because venue was improper. (Objections, Doc. 12, Pg. ID 123-24.) But this

conclusion does not follow. In Cunningham v. Department of Children’s Services, the Sixth

Circuit explained that “to the extent that venue might have been improper in Rutherford

County, there were no indications that [the judge] acted in the ‘complete absence of all

jurisdiction.” 842 F. App’x 959, 964 (6th Cir. 2021). Rather, although the judge “may have

committed error by finding venue to be proper, it was merely procedural error, which is

protected by judicial immunity.” Id. at 965 (citing Stern v. Mascio, 262 F.3d 600, 607 (6th

Cir. 2001) (“Even grave procedural errors or acts taken when no statute purports to confer

on the court the authority purportedly exercised will not deprive a judge of judicial

immunity.”)). So, even if the domestic relations matter took place in the improper venue,

Judge Flottman would nevertheless be entitled to judicial immunity.

2. Judge Flottman and Magistrate Webb Performed Judicial Acts

Plaintiffs object that Magistrate Craig Webb performed non-judicial acts by (1)

verbally refusing admittance into a final hearing, (2) refusing to allow a licensed attorney

access to the record to make an objection, and (3) making a false statement in a written

decision that was punitive in nature. (Objections, Doc. 12, Pg. ID 123.) Plaintiffs also

contend that Judge Flottman made inflammatory personal comments that violated

Plaintiffs’ rights. (Id.) Although Plaintiffs state that these “acts [are] not typically judicial,”

they fail to provide legal support for this conclusion. ([d.) To be sure, these acts were all

intertwined with Magistrate Webb’s and Judge Flottman’s judicial activities and are

therefore covered by judicial immunity. Plaintiffs’ contention that these actions were

unethical or violated Plaintiffs’ rights does not change this conclusion.

An act by a judge constitutes a judicial act when it is a “function normally

performed by a judge” and when the parties “dealt with the judge in his judicial

capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). In fact, the actions of Judge

Flottman and Magistrate Webb may be considered “paradigmatic judicial act[s]” since

they involved “the resolution of a dispute between parties who have invoked the

jurisdiction of the court.” Morrison v. Lipscomb, 877 F.2d 463, 465 (6th Cir. 1989). Plaintiffs

appear to implicitly recognize this conclusion: “If Judge Flottman held to her oath and

acted to protect the civil rights of the Plaintiffs, then this action would not be necessary.”

(Objections, Doc. 12, Pg. ID 132.)

3. Kimberly Kent Performed Judicial Acts

Turning to Defendant Kimberly Kent, Plaintiffs argue that Kent—a social

worker—is not entitled to immunity because she was not a “judicial officer” or acting

within a “judicial capacity.” (Objections, Doc. 12, Pg. ID 126.) Instead, Plaintiffs contend

that Kent was “at best, support staff to the court performing an administrative function.”

(Id.) However, “[iJmmunity rests not on status or title but on the function performed.”

Salyer v. Patrick, 874 F.2d 374, 378 (6th Cir. 1989). And, as Magistrate Judge Bowman

correctly determined, Plaintiffs’ claims against Kent all arise from her judicial functions.

(Report, Doc. 10, Pg. ID 97.)

Plaintiffs allege that Kent issued a “Partial Evaluation Report Regarding Parenting

Time” that suggested Plaintiff Edelstein only be allowed to see Plaintiff S.E. on the

weekends. (Compl., Doc. 2, { 166.) Tellingly, Plaintiffs further allege that this report was

“effectively a custody recommendation as it removed Plaintiff S.E. from his mother’s

primary care.” (Id. at J 167, 185.) The Sixth Circuit has held that a social worker involved

in an investigation and recommendation to a court about a child’s situation is entitled to

absolute immunity for this work since it is “intimately related to the judicial phase of the

child custody proceedings.” Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416, 423 (6th Cir.

2001) (“The function of devising the plan for court-approval is intimately related to the

judicial phase of the child custody proceedings.”); see also Pittman v. Cuyahoga Cnty. Dept.

of Child. & Fam. Servs. 640 F.3d 716, 725-26 (6th Cir. 2011).1

1 The Court would also note that Kent’s role was starkly different from that of the clerk in the out-

of-circuit case cited by Plaintiffs. (See Objections, Doc. 12, Pg. ID 127.) In Courthouse News Service

Plaintiffs also object that Kent is not entitled to immunity because she (1) failed to

maintain privacy during the interview, (2) failed to investigate the truthfulness of

information received, (3) allowed a third party to give false information without

providing Plaintiff Edelstein an opportunity to respond, and (4) issued her report based

on animosity towards Plaintiff Edelstein. (Objections, Doc. 12, Pg. ID 127.) But, again,

each of these contentions revolve around Kent's duties to the Court. See, e.g., Rippy ex rel.

Rippy v. Hattaway, 270 F.3d 416, 422-23 (6th Cir. 2001). For all these reasons, Plaintiffs’

Objections to the Report are not well taken and are therefore overruled.

II. Motions For Leave to File Reply or Motion to Strike

On December 19, 2023, Plaintiffs filed a motion for leave to file a reply to

Defendants’ Response to their Objections or, in the alternative, a motion to strike

Defendants’ Response. (Motion for Leave, Doc. 20.) Plaintiffs contend that they should

be granted leave to file a Reply to brief the law presented in Defendants’ Response or, in

the alternative, that Defendants’ Response should be stricken for being non-responsive

to Plaintiffs’ Objection. (Id. at Pg. ID 176.) After reviewing both Plaintiffs’ Objections and

Defendants’ Response, the Court finds that Plaintiffs had an adequate opportunity to

address Magistrate Judge Bowman’s findings in the Report. Further briefing of the matter

is unnecessary, and that Defendants’ Response should not be stricken. Plaintiffs’ motion

(Doc. 20) is therefore denied.

v. Forman, a district court concluded that because a clerk’s “nondiscretionary duty to docket

complaints does not require the exercise of independent judicial judgment .. . [,] it is not an act

taken in a ‘judicial capacity.’” 601 F. Supp. 3d 1236, 1247 (N.D. Fla. 2022).

On January 31, 2024, Plaintiffs filed a Second Motion for Leave to File Reply (Doc.

28) and attached additional support for her Objections to Magistrate Judge Bowman's

Supplemental Report and Recommendation. The Court is unpersuaded that Plaintiffs’

new arguments would alter its analysis and denies Plaintiffs’ motion (Doc. 28).

III. Supplemental Report and Recommendation

The Court now considers Magistrate Judge Bowman’s Supplemental Report and

Recommendation (“Supplemental Report”) (Doc. 23). On December 22, 2023, Plaintiffs

filed a Supplemental Memorandum Supporting Emergency Motion for Injunctive Relief

(Doc. 21). Then, on December 26, 2023, Plaintiffs filed an Amended Complaint, adding

an additional claim of Fourteenth Amendment Loss of Parental Rights (Kidnapping)

(Doc. 22). Magistrate Judge Bowman filed a Supplemental Report in which she again

recommended that this matter be dismissed for lack of subject matter jurisdiction and

that the pending motion for a temporary restraining order be denied (Doc. 23).

Specifically, Magistrate Judge Bowman noted that Plaintiffs’ Amended Complaint suffers

from the same deficiencies as the original Complaint because Plaintiffs’ “newest claim

amounts to nothing more than a new criticism of Judge Flottman’s judicial actions and

rulings in the underlying state court custody case.” (Supplemental Report, Doc. 23, Peg.

ID 222-25.)

Plaintiffs’ Objections to the Supplemental Report focus upon the question of Judge

Flottman’s absolute immunity in this matter. (See Second Objections, Doc. 25, Pg. ID 232.)

Plaintiffs argue that absolute immunity should not apply “(1) for acts outside a judge’s

jurisdiction; (2) for non-judicial acts; (3) where the official is incompetent; (4) where the

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official knowingly violates the law; (5) where the official falsifies the record of evidence;

and (6) where the official makes a false statement.” (Id. at Pg. ID 255.) While Plaintiffs cite

qualified immunity case law throughout their Objections, absolute judicial immunity and

qualified immunity are distinct legal doctrines.2 And, as for absolute judicial immunity,

there are only two exceptions: non-judicial acts or acts taken in the complete absence of

all jurisdiction. See Bright v. Gallia County, Ohio, 753 F.3d 639, 649 (6th Cir. 2014) (citing

Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Plaintiffs appear to recognize this well-

established jurisprudence elsewhere in their Objections. (See, e.g., Second Objections, Doc.

25, Pg. ID 240, 244-45.)

The Court therefore views Plaintiffs’ Objections through the framework of these

two exceptions. Turning to jurisdiction, Plaintiffs object, again, that Judge Flottman was

presiding over the case without proper venue. (Second Objections, Doc. 25, Pg. ID 245.)

But, as explained above, improper venue does not rise to the level of a judge acting in the

complete absence of all jurisdiction. See Cunningham v. Dept. of Children’s Servs., 842 F.

App’x 959, 964 (6th Cir. 2021); Stern v. Mascio, 262 F.3d 600, 607 (6th Cir. 2001).

Next, Plaintiffs argue that Judge Flottman’s acts of “failing to follow the

procedural safeguards to protect a child, and especially maneuvering certain procedures

to disadvantage one parent, go beyond the scope of protection provided under this ‘grave

procedural errors’ umbrella.” (Second Objections, Doc. 25, Pg. ID 246.) But, Plaintiffs do

2 Plaintiffs also cite to the Supremacy Clause. (See Second Objections, Doc. 25, Pg. ID 253.) While

the Supremacy Clause “instructs courts what to do when state and federal law clash, [it] is silent

regarding who may enforce federal law in court, and in what circumstances they may do so.”

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 325 (2015).

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not support this conclusion with case law. The Court finds that Judge Flottman’s

actions—even if they were to be considered “grave” procedural errors—“are not

rendered any less judicial for absolute judicial immunity purposes.” Barnes v. Winchell,

105 F.3d 1111, 1121 (6th Cir. 1997); see also Cameron v. Seitz, 38 F.3d 264, 272 (6th Cir. 1994).

Plaintiffs further argue that immunity should not apply because Judge Flottman’s

acts arose from her “personal vendetta, personal agenda, or political agenda.” (Second

Objections, Doc. 25, Pg. ID 252.) Supreme Court precedent says otherwise. A judge’s

judicial acts “alleged to have been done maliciously or corruptly” are still subject to

absolute judicial immunity. Stump v. Sparkman, 435 U.S, 349, 356 (1978) (quotation

omitted); Mireles v. Waco, 502 U.S. 9, 11 (1991) (explaining that “judicial immunity is not

overcome by allegations of bad faith or malice”).

Plaintiffs’ next argument that Judge Flottman committed non-judicial acts by

“act[ing] as an opponent in [the] case or, at times, as an advocate for a party” is similarly

unpersuasive. (Second Objections, Doc. 25, Pg. ID 249.) As the Sixth Circuit has explained,

“even if a particular act is not a function normally performed by a judge, the court must

look to the particular act’s relation to a general function normally performed by a judge.”

Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004). Here, Judge Flottman’s acts pertained

to the paradigmatic judicial function of resolving the dispute before her, and the parties

dealt with her in her judicial capacity. For all these reasons, Plaintiffs’ Objections to the

Supplemental Report are not well taken.

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IV. Plaintiffs’ Third Emergency Motion for Ex-Parte Injunctive Relief

On January 16, 2024, Plaintiffs filed a Third Emergency Motion for Ex-Parte

Injunctive Relief and Hearing (“Third Motion for TRO,” Doc. 26), which largely tracks

the Supplemental TRO that Magistrate Judge Bowman recommended denying in the

Supplemental Report. (Supplemental Report, Doc. 23, Pg. ID 226.) Plaintiffs’ Third

Motion for TRO seeks two forms of relief: (1) an ex parte temporary restraining order to

correct Judge Flottman’s action of removing Plaintiff S.E. from his mother and (2)

injunctive relief regarding the final decree of divorce by the court. (Third Motion for TRO,

Doc. 26, Pg. ID 258.) The Court denies Plaintiffs’ request for a temporary restraining order

to correct Judge Flottman’s child custody decisions because it agrees with Magistrate

Judge Bowman’s finding that it “does not change the prior analysis.” (Supplemental

Report, Doc. 23, Pg. ID 226.)

Plaintiffs added the requested relief concerning the final divorce decree after

Magistrate Judge Bowman’s consideration of the matter. Nevertheless, this relief is

similar to the relief Plaintiffs have sought throughout this litigation. (See Motion for TRO,

Doc. 6, Pg. ID 74 (seeking stay of divorce proceedings)). Therefore, for the reasons

previously explained, it is similarly barred by Burrus abstention, see Ex parte Burrus, 136

U.S. 586 (1890) and the Rooker-Feldman doctrine. The Court denies Plaintiff's Third Motion

for TRO.

CONCLUSION

As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the

Court has made a de novo review of the record in this case. Plaintiffs’ Objections (Docs.

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12, 25) are not well taken and, therefore, OVERRULED. Accordingly, the Court ORDERS

the following:

(1) The Report and Recommendation (Doc. 10) is ADOPTED in its entirety;

(2) The Supplemental Report and Recommendation (Doc. 23) is ADOPTED in its

entirety;

(3) Plaintiffs’ Motion for Leave to File Reply or, in the alternative, Motion to Strike

Defendants’ Response to Objections as Non-Responsive (Doc. 20), is DENIED;

(4) Plaintiffs’ Motion for Temporary Restraining Order (Doc. 6) is DENIED;

(5) Plaintiffs’ Third Motion for Temporary Restraining Order (Doc. 26) is

DENIED;

(6) Plaintiffs’ Second Motion for Leave to File Reply (Doc. 28) is DENIED; and

(7) This case is DISMISSED WITHOUT PREJUDICE and TERMINATED from

the docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

By:

JUDGE MATTHEW W. McFARLAND

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