Frieda Aaron v. Maureen O'Connor

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0013p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRIEDA AARON, et al., ┐

Plaintiffs-Appellants, │

│

> No. 18-3452

v. │

│

│

MAUREEN O’CONNOR and MARK R. SCHWEIKERT, in │

their official capacities, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:17-cv-00846—Michael R. Barrett, District Judge.

Decided and Filed: January 30, 2019

Before: MERRITT, GUY, and MOORE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Robert A. Winter, Jr., Fort Mitchell, Kentucky, for Appellants. Nicole M.

Koppitch, Steven T. Voigt, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Appellee O’Connor. Lawrence E. Barbiere, Katherine L. Barbiere, SCHROEDER,

MAUNDRELL, BARBIERE & POWERS, Mason, Ohio, for Appellee Schweikert.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. A large group of plaintiffs brought medical

malpractice claims in Ohio state court against a doctor who operated on them and against several

hospitals where he worked. The plaintiffs allege that the judge presiding over their case, Judge

Mark R. Schweikert, and Chief Justice Maureen O’Connor of the Ohio Supreme Court were

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biased against their claims. In accordance with Ohio law, they filed affidavits of disqualification

against Judge Schweikert, and requested that Chief Justice O’Connor recuse herself from

deciding Judge Schweikert’s disqualification. Soon thereafter, they filed the instant suit in the

United States District Court for the Southern District of Ohio, asking that the court enjoin Chief

Justice O’Connor from ruling on the affidavit of disqualification pertaining to Judge Schweikert

and enjoin Judge Schweikert from taking any action in their cases before the affidavit of

disqualification was ruled upon. Because the Younger abstention doctrine applies to this

situation, we AFFIRM the district court’s decision to abstain from hearing the plaintiffs’ claims

and dismiss the case. However, we REMAND so that the district court can amend its order to

dismiss the case without prejudice.

I. BACKGROUND

The plaintiffs, former patients who underwent back surgery with Dr. Abubakar Atiq

Durrani, M.D., brought suit in Ohio state courts against Durrani and several hospitals in the

Cincinnati area seeking tort damages for medical malpractice. R. 1 (Compl. at 7) (Page ID #7).

Numerous cases, involving over 500 plaintiffs, have been litigated for over five years in state

courts before several judges. Id. at 1, 7, 20–25 (Page ID #1, 7, 20–25). The plaintiffs allege that

Justice Maureen O’Connor, the Chief Justice of the Supreme Court of Ohio, eventually

appointed Judge Mark R. Schweikert, a Hamilton County Court of Common Pleas Judge, to

oversee the Durrani cases. Appellants Br. at 4; R. 1 (Compl. at 15, 35) (Page ID #15, 35). The

plaintiffs’ complaint expresses their disagreement with several of Judge Schweikert’s decisions

regarding the litigation and alleges that Chief Justice O’Connor “has informed and does inform

Judge Mark Schweikert how to rule on issues before him and he has followed her orders.” Id. at

25 (Page ID #25). Due to their perception that Judge Schweikert and Chief Justice O’Connor

were biased against them and that that bias was impacting the litigation, on December 15, 2017,

the plaintiffs’ counsel filed an “Affidavit of Disqualification of Chief Justice Maureen O’Connor

and Judge Mark Schweikert” with the Clerk of the Supreme Court of Ohio. R. 1-1 (Aff. of

Disqualification) (Page ID #55). The affidavit alleged that Chief Justice O’Connor and Judge

Schweikert have “a bias and a prejudice against Plaintiffs and their claims.” Id. (Page ID #56).

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Ohio Revised Code § 2701.03 provides for the disqualification of the judge assigned to a

state-court case in certain circumstances. “If a judge of the court of common pleas . . . allegedly

is related to or has a bias or prejudice for or against a party to a proceeding pending before the

court . . . the party’s counsel may file an affidavit of disqualification with the clerk of the

supreme court.” OHIO REV. CODE § 2701.03(A). The affidavit must include “specific

allegations on which the claim of interest, bias, prejudice, or disqualification is based and the

facts to support each of those allegations.” OHIO REV. CODE § 2701.03(B)(1). Filing of the

affidavit “deprives the judge against whom the affidavit was filed of any authority to preside in

the proceeding until the chief justice of the supreme court, or a justice of the supreme court

designated by the chief justice, rules on the affidavit.” OHIO REV. CODE § 2701.03(D)(1).

The plaintiffs’ affidavit of disqualification also argued that Chief Justice O’Connor

should not be permitted to decide Judge Schweikert’s disqualification because of the plaintiffs’

allegation that she herself is biased against them. Ohio Supreme Court Rule of Practice § 4.04

provides for the disqualification and recusal of state supreme court justices in certain

circumstances.1 Section 4.04(B)(1) provides that “[a] party to a case pending before the [Ohio]

Supreme Court . . . may request the recusal of a justice by filing a request with the Clerk of the

[Ohio] Supreme Court.” The request must be supported by an affidavit explaining why the

recusal is requested and including factual support. Ohio S. Ct. Prac. R. § 4.04(B)(1). Then,

“[t]he justice named in the request shall submit a written response to the Clerk indicating

whether the justice will recuse from the case.” The Clerk shall provide the parties with the

response. Ohio S. Ct. Prac. R. § 4.04(C).

On December 18, 2017, three days after filing their affidavit with the Clerk of the

Supreme Court of Ohio, the plaintiffs filed suit against Chief Justice O’Connor and Judge

Schweikert in federal district court alleging due process violations under 42 U.S.C. § 1983.

They sought an injunction preventing Chief Justice O’Connor from ruling on their earlier-filed

1The district court noted that it was “not convinced Plaintiffs have properly sought the recusal of Chief

Justice O’Connor” because the plaintiffs had “filed a combined Affidavit of Disqualification, seeking to disqualify

Judge Schweikert and asking a justice other than Chief Justice O’Connor to rule on it. In support, Plaintiffs cite S.

Ct. Prac. R. 14.6. There is, however, no Rule 14.6.” R. 34 (Op. and Order at 10 n.6) (Page ID #1764). On appeal,

the plaintiffs have cited the relevant provision of the Ohio Supreme Court Rules of Practice.

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affidavit of disqualification and preventing Judge Schweikert “from taking any action on their

cases” before the affidavit of disqualification is ruled upon. R. 1 (Compl. at 2) (Page ID #2). It

appears that the injunction that the plaintiffs sought against Judge Schweikert merely asked the

federal district court to enjoin him from violating Ohio Revised Code § 2701.03(D)(1), which

deprived him of authority to continue presiding over the state case until the affidavit of

disqualification was ruled upon. The Supreme Court of Ohio appears to have sought to comply

with Ohio Revised Code § 2701.03(D)(1) by issuing its December 20, 2017 letter to Judge

Schweikert informing him of the affidavit that had been filed seeking his disqualification and

instructing that “no further judicial rulings should be made by [him] until the affidavit has been

ruled on by Chief Justice Maureen O’Connor or a justice of the Ohio Supreme Court designated

by the chief justice . . . .” R. 29-1 (Page ID #1554).

On December 27, 2017, the district court informed the parties that it intended to rule on

the preliminary issue of abstention under Younger v. Harris, 401 U.S. 37 (1971), before

addressing the merits of the complaint. R. 34 (Op. and Order) (Page ID #1755). Accordingly,

the parties briefed the court on whether Younger abstention applies and the court heard oral

arguments on the issue. Id. On January 26, 2018, the district court held that Younger abstention

applied and dismissed the federal case with prejudice. Id. at 10 (Page ID #1764). The plaintiffs

moved to alter or amend the judgment of the district court. R. 36 (Pl. Mot. to Alter or Amend)

(Page ID #1766). The district court denied the plaintiffs’ motion to alter or amend its judgment

on April 13, 2018. R. 47 (Order) (Page ID #2090). Plaintiffs then timely filed their notice of

appeal. R. 48 (Notice of Appeal) (Page ID #2093).

During the pendency of their federal suit, the plaintiffs filed in state court additional

affidavits of disqualification against Judge Schweikert. O’Connor Br. at 5. After the district

court’s original dismissal of the case, Chief Justice O’Connor denied the plaintiffs’ affidavits of

disqualification on February 5, 2018. Schweikert Br. at 3. The plaintiffs then filed additional

affidavits seeking the disqualification of Judge Schweikert. Schweikert Br. at 3. On February

26, 2018, Chief Justice O’Connor denied those additional affidavits of disqualification. Id.

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II. DISCUSSION

A. Standard of Review

We review de novo the district court’s judgment abstaining from hearing a case under the

Younger doctrine. Doe v. Univ. of Kentucky, 860 F.3d 365, 368 (6th Cir. 2017).

B. Mootness

Defendant Schweikert argues that the plaintiffs’ claims are moot because “[s]ince the

filing of their Motion for injunctive relief, Chief Justice O’Connor has ruled upon, and

summarily dismissed, seventeen Affidavits of Disqualification filed by Plaintiffs’ [sic] against

Judge Schweikert and Judge Schweikert is currently presiding over the underlying medical

malpractice actions involving the Plaintiffs.” Schweikert Br. at 20. We address mootness before

we address Younger abstention because mootness is a jurisdictional issue. See Rettig v. Kent

City Sch. Dist., 788 F.2d 328, 330 (6th Cir. 1986). If a case is moot, the “case or controversy”

requirement of Article III of the Constitution is not satisfied and we do not have jurisdiction to

hear the case. Id. The abstention doctrines, however, assume jurisdiction but decline to exercise

it in limited circumstances. See, e.g., Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013).

“[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631

(1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The plaintiffs argue that the

case should not be considered moot because it falls under an exception that allows for judicial

review when “the challenged activity is capable of repetition, yet evading review.” Reply Br. at

7–9 (quoting Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005), cert. denied, 547 U.S.

1178 (2006)). “This exception applies when ‘(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be subjected to the same action again.’”

Lawrence, 430 F.3d at 371 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Because

the plaintiffs assert that this exception to the normal mootness rule applies, they bear the burden

of demonstrating that both criteria are met. See id.

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The plaintiffs have carried their burden and satisfied both prongs. First, the challenged

action was completed nearly immediately after the district court entered judgment, and before the

case could reach the court of appeals. The district court decided to abstain from hearing the case

on January 26, 2018. The plaintiffs filed their motion to alter judgment on February 5, 2018.

Chief Justice O’Connor denied the affidavits of disqualification on the same day, ruling on them

herself (rather than deferring to another justice) and concluding that Judge Schweikert could

continue to preside over the litigation. Therefore, her challenged action (failing to recuse herself

from ruling on the affidavits for Judge Schweikert’s disqualification) had already been

completed before its validity could be fully litigated on appeal in this court. See Speer v. City of

Oregon, 847 F.2d 310, 311 (6th Cir. 1988) (finding the first prong satisfied where the plaintiff

sought an injunction requiring her name to be placed on an electoral ballot, but the election had

already passed by the time the court of appeals heard her claim). The second prong is satisfied if

“the controversy [is] capable of repetition and not . . . whether the claimant ha[s] demonstrated

that a recurrence of the dispute [is] more probable than not.” Lawrence, 430 F.3d at 371

(quoting Honig v. Doe, 484 U.S. 305, 319 n.6 (1988)) (emphasis in original). There is a

reasonable expectation that the plaintiffs will file another affidavit of disqualification for Judge

Schweikert, request the recusal of Chief Justice O’Connor in ruling on it, and still have the Ohio

Chief Justice determine the merit of the affidavit of disqualification. The plaintiffs have already

filed additional affidavits of disqualification and the Ohio Chief Justice has denied them.

Schweikert Br. at 3. The state litigation is ongoing, and the situation is certainly capable of

repeating itself.

C. Younger Analysis

We generally “are obliged to decide cases within the scope of federal jurisdiction.”

Sprint, 571 U.S. at 72. However, in certain circumstances, allowing a federal suit to proceed

threatens “undue interference with state proceedings,” and the proper course is for the federal

court to abstain from entertaining the action. Id.; see Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 10

(1987) (quoting Younger v. Harris, 401 U.S. 37, 44 (1971)). The Younger breed of abstention

requires abstention in three different circumstances outlined in New Orleans Public Service, Inc.

v. Council of New Orleans (“NOPSI”), 491 U.S. 350 (1989). The Supreme Court has noted that

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these three categories are the “exception[]” rather than the rule. Sprint, 571 U.S. at 73 (quoting

NOPSI, 491 U.S. at 367). First, we may abstain under Younger “when there is an ongoing state

criminal prosecution.” Doe, 860 F.3d at 369. Second, we may abstain when there is a civil

enforcement proceeding that is “akin to [a] criminal prosecution[].” Sprint, 571 U.S. at 72.

Third, we may abstain when there is a “civil proceeding[] involving certain orders that are

uniquely in furtherance of the state courts’ ability to perform their judicial functions.” NOPSI,

491 U.S. at 368.

The prototypical examples of situations falling within this third category are Juidice v.

Vail, 430 U.S. 327 (1977), and Pennzoil. In Juidice, a state-court judgment debtor filed suit in

federal court against a state-court justice asking the federal court to enjoin the state-court justice

from enforcing the state contempt statute against him. 430 U.S. at 328–30. The Supreme Court

concluded that Younger abstention applied, deeming the “vital consideration” to be “the notion

of ‘comity,’ that is, a proper respect for state functions . . . .” Id. at 334 (quoting Huffman v.

Pursue, Ltd., 420 U.S. 592, 601 (1975)) (citation and quotation marks omitted). Federal

abstention was proper, avoiding intrusion into “the contempt process, through which [the state]

vindicates the regular operation of its judicial system.” Id. at 335. In Pennzoil, Texaco filed a

suit in federal court seeking to enjoin Pennzoil from enforcing a jury verdict rendered against

Texaco by a Texas state court. 481 U.S. at 6. The Supreme Court held that abstention under

Younger was appropriate there as well, consistent with its repeated recognition “that the States

have important interests in administering certain aspects of their judicial systems.” Id. at 12–13.

The Court determined that the Texas state court’s ability to enforce its own jury verdicts was

necessary not only “to vindicate and preserve the private interests of competing litigants,” but

also to “stand[] in aid of the authority of the judicial system, so that its orders and judgments are

not rendered nugatory.” Id. at 13 (quoting Juidice, 430 U.S. at 336 n.12).

We conclude that the ability of the courts of the State of Ohio to determine when recusal

of a judge or justice is appropriate and to administer the recusal decision process in accordance

with state law operates “uniquely in furtherance of the state courts’ ability to perform their

judicial functions.” NOPSI, 491 U.S. at 368. In previous decisions, we have held that Younger

abstention applies under the third NOPSI category where plaintiffs sought federal injunctions

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requiring the recusal of state-court judges. Shafizadeh v. Bowles, 476 F. App’x 71, 72–73 (6th

Cir. 2012) (abstaining under Younger where a plaintiff sought “an injunction to direct the judge

who presided over [his] divorce to remove himself from the case,” alleging that the judge was

biased against him); Gilbert v. Ferry, 401 F.3d 411, 419 (6th Cir. 2005) (concluding that

Younger demanded abstention where plaintiffs sought a federal-court declaration that the failure

of four justices of the Michigan Supreme Court to recuse themselves from an ongoing state-court

cases violated the plaintiffs’ constitutional rights); Bodell v. McDonald, 4 F. App’x 276, 279 (6th

Cir. 2001) (concluding that Younger abstention applied where a plaintiff “asked the district court

to enter an order preventing [a certain state judge] from presiding over any cases involving [the

plaintiff]”); see also Strand v. Dawson, 468 F. App’x 910, 911 (10th Cir. 2012) (affirming

district court’s dismissal on Younger grounds of suit against state court judge who “refused to

recuse himself in a pending state court eviction action involving Plaintiffs”); Thomas v. Piccione,

No. 13-425, 2014 WL 1653066, at *5 (W.D. Pa. Apr. 24, 2014) (concluding that abstention

under Younger was appropriate, reasoning that “[i]n asking [the federal district court] to order

the recusal of [the state court judge], plaintiff indirectly challenges Pennsylvania courts’ process

for judicial recusals”).

The plaintiffs here argue for a narrow construction of the third NOPSI category, positing

that because “[h]ere there was no order or judgment of an Ohio court that will be implicated by

this Court’s exercise of jurisdiction,” Younger abstention cannot apply. Appellants Br. at 13, 16.

Defendants counter that the plaintiffs propose an overly narrow reading of the third category that

cannot be correct due to the Supreme Court’s decision in Pennzoil. O’Connor Br. at 16. The

defendants offer the truer interpretation of Younger precedent.

In Pennzoil, Texaco filed its federal suit before the Texas court entered judgment for

Pennzoil, asking the federal court “to enjoin Pennzoil from taking any action to enforce the

judgment” because of the alleged unconstitutionality of Texas’s “judgment enforcement

procedures.” 481 U.S. at 6 & n.5. Texaco’s federal suit sought to prevent the state court from

taking a specific legal action, not merely from enforcing a preexisting order. The same is true of

the plaintiffs’ suit here. In articulating the third NOPSI category, the Supreme Court has cited

Pennzoil as an illustrative example, implicitly validating Younger abstention where a state-

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court’s order had not yet issued. See Sprint, 571 U.S. at 79 (citing Pennzoil as involving

proceedings that “touch[ed] on a state court’s ability to perform its judicial function”).

Therefore, we do not read the third category so narrowly as to preclude Younger abstention when

the state court has not yet issued an order. See also Chalupowski v. Berry, 151 F. App’x 1, 2 (1st

Cir. 2005) (affirming the district court’s dismissal on Younger grounds where the “Appellants

asked the federal court to order the defendant, a state court appellate judge before whom a

motion for contempt was then the only pending matter, to recuse herself ‘from further hearing in

this matter’”) (emphasis added).

Sprint dictates that once we have determined that a case falls into a NOPSI category in

which Younger abstention may be proper, we next analyze the case “using a three-factor test laid

out in Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982).”

Doe, 860 F.3d at 369 (citing Sprint, 571 U.S. at 81). If “(1) state proceedings are currently

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

will provide the federal plaintiff with an adequate opportunity to raise his constitutional claims,”

we may abstain from hearing the federal claim. Id.; see also Habich v. City of Dearborn,

331 F.3d 524, 530 (6th Cir. 2003).

Plaintiffs admit that the first two Middlesex factors are satisfied in this case. Appellants

Br. at 21. However, they argue that the Ohio state proceedings would not give them an adequate

opportunity to raise their constitutional arguments. “[T]he burden on this point rests on the

federal plaintiff to show ‘that the state procedural law barred presentation of its claims.’”

Pennzoil, 481 U.S. at 14 (quoting Moore v. Sims, 442 U.S. 415, 432 (1979)) (brackets omitted).

The plaintiffs take issue with the district court’s assertion that they might seek a writ of certiorari

to the United States Supreme Court should Chief Justice O’Connor and Judge Schweikert refuse

to step aside and should the plaintiffs believe that these adjudicators’ conduct affected their

constitutional rights. They argue that certiorari is a federal, rather than state, remedy and

therefore that the third Middlesex factor would not be satisfied if a writ of certiorari from the

United States Supreme Court is the only available remedy left. Appellants Br. at 23.

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We conclude that the state proceedings provide the plaintiffs an adequate opportunity to

raise their constitutional arguments.2 First, the plaintiffs made the same constitutional arguments

regarding their due process rights to an unbiased adjudication in their affidavit of disqualification

and motion to disqualify the Ohio Chief Justice as they have in this federal case. Compare R. 1-

1 (Affidavit of Disqualification at 1–25) (Page ID #56–80), with R. 1 (Compl. at 5–37) (Page ID

#5–37); Gilbert, 401 F.3d at 419 (“Plaintiffs had an adequate opportunity to raise their

constitutional challenge, as evidenced by the fact that their lengthy brief in support of their

motion to recuse contained the same arguments and proofs as presented in their complaint filed

in federal court.”). Second, the plaintiffs may appeal any potential adverse final decision of the

state trial court, alleging that Judge Schweikert’s and Chief Justice O’Connor’s bias had tainted

the proceedings.3 The fact that this approach requires the use of the appellate process (including

a potential petition for a writ of certiorari in the U.S. Supreme Court) does not render it

inadequate. See Shafizadeh, 476 F. App’x at 73 (concluding that there was “no dispute that the

state appellate process gave [the plaintiff] an adequate opportunity to raise his grievances

concerning [the judge presiding over his divorce in state court]”); see also Caperton v. A.T.

Massey Coal Co., 556 U.S. 868 (2009) (finding that the Due Process Clause required recusal of a

justice on the West Virginia Supreme Court of Appeals and reversing and remanding the case).

There are several circumstances under which, although Younger abstention would

normally be appropriate, the federal court should not abstain from hearing a case. The first is

where “the state proceeding is motivated by a desire to harass or is conducted in bad faith.”

2The plaintiffs discuss Yohn v. Love, 887 F. Supp. 773 (E.D. Pa. 1995), aff’d in part and vacated in part, 76

F.3d 508 (3d Cir. 1996), and from it argue that their “Due Process rights were violated” by alleged (but

unsubstantiated) “telephone conversations between the Chief Justice and the trial judge,” leaving them with “no

opportunity to have a fair and impartial hearing on the issues.” Appellants Br. at 29–30. However, this out-of-

circuit case concerned a petitioner seeking habeas relief, alleging improper judicial interference in his criminal trial

and subsequent appeals. The facts of Yohn and the case at bar diverge beyond these differences in jurisdiction and

posture. As the district court noted in its order denying the plaintiffs’ Motion to Alter or Amend, Yohn involved a

Chief Justice’s admitted and documented meddling in the trial court’s decision regarding a specific evidentiary

question. R. 47 (Order at 2) (Page ID #2091) (citing Yohn, 887 F. Supp. at 782). In contrast, the plaintiffs offer

nothing more than vague and unsubstantiated allegations of alleged improper communications between Judge

Schweikert and Chief Justice O’Connor.

3The plaintiffs implicitly acknowledge the availability of the state appellate system to challenge any

determinations that they allege to be biased. R. 1 (Compl. at 20) (Page ID #20) (“Appealing biased and clearly

wrong rulings is not a fair remedy to Plaintiffs.”). They thus apparently challenge the fairness of the remedy.

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Huffman, 420 U.S. at 611. The second is where “the challenged statute is flagrantly and patently

violative of express constitutional prohibitions.” Moore, 442 U.S. at 424 (quoting Huffman, 420

U.S. at 611). And third, the federal court should not abstain where there is “an extraordinarily

pressing need for immediate federal equitable relief.” Kugler v. Helfant, 421 U.S. 117, 125

(1975).

In their opening brief, the plaintiffs do not expressly argue that their case falls under one

of these three exceptions to Younger abstention. However, the defendants construe the plaintiffs’

allegations that Chief Justice O’Connor and Judge Schweikert were biased as an implicit

contention that the third exception applies. O’Connor Br. at 20; Schweikert Br. at 16. The

plaintiffs explicitly adopt this argument in their reply brief. Reply Br. at 6. However, we find

this tactic insufficient given that the plaintiffs never argued in the district court that their case fell

within the third Younger exception.4 Instead, the plaintiffs cast their arguments that Judge

Schweikert and Chief Justice O’Connor were biased as supporting the conclusion that the third

Middlesex factor was not met, not that the third exception to Younger applied.5 See, e.g., R. 19

(Pl. Mem. Addressing the Non-Applicability of the Younger Abstention Doctrine at 5) (Page ID

#1427); R. 36-1 (Pl. Mem. in Supp. of Pl. Mot. to Alter or Amend at 3) (Page ID #1775). Given

the lack of argument regarding the third exception to Younger abstention, the district court did

not address its applicability in its opinion. See R. 34 (Op. and Order) (Page ID #1755). “It is

well-settled that issues not presented to the district court but raised for the first time on appeal

are not properly before this Court.” Kusens v. Pascal Co., 448 F.3d 349, 368 (6th Cir. 2006).

We conclude that the plaintiffs forfeited their argument regarding the third exception to Younger

by failing to raise it in the court below.

4The only references to the Younger abstention exceptions in the court below were made by Chief Justice

O’Connor, who, in the same way as she did in the appellate briefing, defended against an argument about the third

exception that was not actually present in the plaintiffs’ earlier briefing. See R. 12 (O’Connor Mem. in Opp. to Pl.

Am. Mot. for TRO at 8) (Page ID #722); R. 27 (O’Connor Suppl. Br. on Younger Abstention at 7) (Page ID #1534)

(“Plaintiffs seem to argue that the third exception to Younger applies here based on alleged bias.”).

5In their Reply Memorandum concerning Younger abstention, the plaintiffs quote the “flagrant

unconstitutionality” language of the second Younger exception but offer no analysis to support a claim that their

case falls under it. R. 28 (Pl. Reply Mem. Further Addressing the Non-Applicability of the Younger Abstention

Doctrine at 6) (Page ID #1549) (discussing “The Third Middlesex Factor And Flagrant Unconstitutionality”).

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The plaintiffs argue that the Supreme Court’s 2013 decision in Sprint “reduced the scope

of the Younger abstention doctrine in federal courts” and therefore that this case does not fall

within its newly narrowed reach. Appellants Br. at 8. Although we agree that Sprint firmly

delineates and limits the types of cases that may qualify for Younger abstention, we disagree that

the present case falls outside the boundary Sprint set. Sprint synthesizes the Younger doctrine

and highlights the interaction between the NOPSI categories and the Middlesex factors. Sprint,

571 U.S. at 81. In Sprint, the Court articulates the firm requirement that a case fall within one of

the three previously established NOPSI categories to qualify for Younger abstention. Id. at 82

(clarifying that “Younger extends to the three ‘exceptional circumstances’ identified in NOPSI,

but no further”). The Court further emphasizes that “[t]he three Middlesex conditions . . . [are]

not dispositive; they [are] instead, additional factors appropriately considered by the federal

court before invoking Younger.” Id. at 81. The Sprint Court determined that the district court

and Eighth Circuit had abstained inappropriately because the case before them did not fall within

one of the NOPSI categories and the lower courts had relied too heavily on the factors discussed

in Middlesex. Id. at 79–81. We have determined that the plaintiffs’ claims fall within the third

NOPSI category and additionally satisfy the Middlesex factors. Accordingly, we have complied

with the Younger doctrine as limited by Sprint.

Finally, the plaintiffs argue that even if Younger abstention applies, the district court

erred by dismissing their claim with prejudice. Appellants Br. at 34. Here, the plaintiffs are

correct. “A dismissal based on Younger is without prejudice.” Chalupowski, 151 F. App’x, at 2

(citing Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 32 n.4 (1st Cir.), cert. denied,

543 U.S. 872 (2004)). This is because “[a] dismissal with prejudice ordinarily operates as an

adjudication on the merits,” which is inconsistent with the court’s Younger-based decision to

abstain from hearing the case at all. Caldwell v. Camp, 594 F.2d 705, 708 (8th Cir. 1979).

Neither we nor the district court have reached the merits of the plaintiffs’ claims. Instead, our

analysis focuses on the inappropriateness of our exercise of jurisdiction in this case based on the

substance of the plaintiffs’ claims and our relationship to the Ohio state courts. This federal-

court dismissal therefore does not operate to bar the plaintiffs from again bringing the same

claims. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001) (“The primary

meaning of ‘dismissal without prejudice,’ we think, is dismissal without barring the plaintiff

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from returning later, to the same court, with the same underlying claim. That will also ordinarily

(though not always) have the consequence of not barring the claim from other courts . . . .”);

Bragg v. Flint Bd. of Educ., 570 F.3d 775, 776 (6th Cir. 2009) (noting that preclusion of a suit

based on res judicata requires “a final decision on the merits”) (citation omitted). Accordingly,

we instruct the district court to modify its judgment to a dismissal without prejudice. See

Chalupowski, 151 F. App’x at 2.

III. CONCLUSION

For the reasons discussed above, we conclude that the district court correctly determined

that the Younger abstention doctrine permitted its abstention from entertaining the plaintiffs’

claims. We therefore AFFIRM. However, we REMAND so that the district court can amend

its order to a dismissal without prejudice.