Opposition — Gargallo v. Franklin County Court of Common Pleas

Case No. 83-1461

IN THE

Office - Supreme Court, U.S.

FILED

APR 9 1984

Supreme Court of the United ‘States... ~~

OCTOBER TERM, 1983

MIGUEL A. GARGALLO,

Petitioner,

Vv.

FRANKLIN COUNTY COURT OF COMMON PLEAS,

DOMESTIC RELATIONS, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOINT BRIEF IN OPPOSITION

STEPHEN MICHAEL MILLER

Counsel of Record for

Respondents Franklin County

Court of Common Pleas, et al.

369 South High Street

Columbus, Ohio 43215

(614) 462-3555

WILLIAM L. MILLARD

Counsel of Record for

Respondents Brown and Millard

155 East Broad Street

Columbus, Ohio 43215

(614) 228-6885

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

ayes Se eS ee fe ae oS

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RESPONDENTS JOINED IN THIS BRIEF 2

IN OPPOSITION TO PETITION FOR ;

WRIT OF CERTIORARI :

- Franklin County Court of Common Pleas, Division of :

Domestic Relations, Honorable John W. Hill, Honorable 4

Clayton W. Rose, Jr., Honorable Winston C. Allen, Hon-

orable Richard H. Finefrock, Honorable Guy G. Cline,

Franklin County Court of Common Pleas, Criminal Divi-

sion, Honorable Frederick T. Williams, Franklin County E

Municipal Court, Honorable Leo P. Stark, Honorable :

3 Gervais W. Fais, Honorable Frank A. Reda, Honorable a

Georgena Howell, Honorable Joseph M. Clifford,

Franklin County Court of Appeals, Honorable Alba L. 7

Whiteside, Honorable Dean Strausbaugh, Honorable 4

Robert E. Holmes, Honorable Archer E. Reilly, George C. *

Smith, Marvin A. Romanoff, Thomas J. Enright, and

Richard D. Coe.

Stephen Michael Miller, Prosecuting Attorney, Franklin :

County, Ohio, is Counsel of Record for the above |

Respondents. 35

William L. Millard and Wilmore Brown. ;

William L. Millard, Esq., is Counsel of Record for 7

Respondents Millard and Brown. a

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TABLE OF CONTENTS

a Opinion and Order—United States a

a Order of the Court of Appeals for the ve

Cole v, Cole, 633 F. rot deat s :

Firestone v. The Cleveland Trust Co., 654 F. 24

; Wilkins v. Rogers, 581 F. 24 300 (4th Cir. sh ae ¢

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“Sa ee .

Case No. 83-1461

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

MIGUEL A. GARGALLO,

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PY Ath eee

Petitioner,

Vv.

FRANKLIN COUNTY COURT OF COMMON PLEAS,

DOMESTIC RELATIONS, ET AL., a

ON WRIT OF CERTIORARI TO 4

THE UNITED STATES COURT OF APPEALS 3

JOINT BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondents would supplement Petitioner’s Statement

of the Case by noting that Petitioner has twice previously

attempted to relitigate his divorce proceedings in the Fed-

eral Courts in Gargallo v. Gargallo, 487 F. 2d 914 (6th Cir.

1973) and Gargallo v. Gargallo, 472 F. 2d 1219 (6th Cir.)

certiorari denied, 414 U.S. 805 (1973).

ARGUMENT

This Honorable Court should deny Petitioner’s request

for a Writ of Certiorari because the decisions of the Fourth ~

Circuit and Sixth Circuit Courts of Appeal are not in con-

flict.

The Sixth Circuit properly held that Petitioner merely

seeks to relitigate a domestic relations action in the Federal

Courts. The Courts below followed the rule in Wilkins v.

Rogers, 581 F. 2d 399 (4th Cir. 1978) at p. 404:

**It has long been held that the whole subject of dom-

estic relations belongs to the laws of the state and not

to the laws of the United States. ... And, such disputes

do not present a federal question, notwithstanding

allegations of sexual discrimination.’’ :

Petitioner’s characterizations notwithstanding, the

win. as Heres Sieve enaes testo nite aecaneniae? e.

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In his claims against defendants, plaintiff alleged that he

was burned, beaten, harrassed, arrested and abused. The

Fourth Circuit held that the allegations of the Complaint

' stated a claim for relief under the Civil Rights Act, 42 USC

Section 1983, because the alleged conduct was not closely

related to the earlier domestic relations action.

The Fourth Circuit did, however, approve the rule set

forth in Wilkins, supra, stating:

**In granting diversity jurisdiction to the district courts,

Congress did noi authorize them to declare ab initio

litigants’ rights and duties under family relations laws.”’

Consequently, both Circuits follow the same rule. The

results in Cole, supra, and the case sub judice differ because

the facts of the two cases are markedly different.

Petitioner argues exclusively **at this Honorable Court

should grant certiorari to dispel a conflict between the

that the state courts are the proper forum for domestic rela-

tions disputes, petitioner’s request should be denied.

Significant in the case sub judice is the statement by the

Sixth Circuit in Firestone v. The Cleveland Trust Co. 654 F.

2d 1212 (6th Cir. 1981) at p. 1216:

**It is incumbent upon the district court to sift through

the claims of the complaint to determine the true char-

acter of the dispute to be abjudicated. ...”’

CONCLUSION

WHEREFORE, Respondents pray that this Honorable

Court deny the issuance of a Writ of Certiorari.

STEPHEN MICHAEL MILLER

Prosecuting Attorney

Franklin County, Ohio

369 South High Street

Columbus, Ohio 43215

(614) 462-3555

Attorney for Respondents Franklin

County Court of Common Pleas,

Domestic Relations, et al.,

WILLIAM L. MILLARD

155 East Broad Street

Columbus, Ohio 43215

(614) 228-6885

Xs

e

This is to certify that three copies of the foregoing Joint

Brief In Opposition were mailed to Miguel A. Gargallo,

Petitioner Pro Se, P.O. Box 02177, Columbus, Ohio 43202;

Barbara A. Gates, Assistant City Attorney, 90 West Broad

Street, Columbus, Ohio 43215; Gerald A. Erhard, Jr.,

Assistant Prosecuting Attorney, Court House, Newark,

Ohio 43055; Thomas M. Tyack, 536 South High Street, Col-

umbus, Ohio 43215; and William L. Millard, 155 East Broad

Street, —— Ohio 43215, by regular United States

Mail this 62 day of April, 1984.

STEPHEN MICHAEL MILLER

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APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MIGUEL A. GARGALLO

Plaintiff

vs. Civil Action C-2-79-483

FRANKLIN COUNTY COURT OF

COMMON PLEAS, et al.

Defendants

OPINION AND ORDER

Filed June 14, 1982

Plaintiff alleges in this complaint under 42 U.S.C. §1983

that the defendants subjected him to sexual discrimination

during the course of his divorce proceedings. Named as

defendants are the Franklin County Court of Common

Pleas, Division of Domestic Relations; the Franklin County

Court of Common Pleas, Criminal Division; the Franklin

County Municipal Court of Columbus; the Franklin County

Court of Appeals; several judges from the above named

courts; Judge Allen of the Licking County Court of Com-

mon Pleas; the former Franklin County prosecuting attor-

ney and an assistant prosecuting attorney; the former city at-

-torney and assistant city attorney; the Clerk of Court for the

Franklin County Court of Common Pleas and a deputy

clerk; and four private attorneys, Philip Bradley, Paul Scott,

Wilmore Brown and William Millard. Plaintiff has already

litigated at least two prior actions concerning his divorce

proceedings. See, Gargallo v. Gargallo, 472 F.2d 1219 (6th

___ Cir.) cert. denied, 414 U.S. 805 (1973); Gargallo v. Gargailo,

- 487 F.2d 914 (6th Cir. 1973).

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The defendant Franklin County courts and judges move

to dismiss this complaint for lack of jurisdiction and failure

to state a claim for relief. The same grounds for dismissal are

asserted by the Franklin County Clerk of Court and the ~

former prosecuting attorney. Judge Allen of the Licking

County Court of Common Pleas moves to dismiss the com-

plaint on the basis of judicial immunity. Attorney Philip

Bradley moves to dismiss this action for lack of jurisdiction

and failure to state a claim for relief, or in the alternative, he

moves for a more definite statement. Attorney Paul Scott

moves to dismiss it on the ground that this action is barred

by the applicable statute of limitations. Attorneys Brown

and Millard move to dismiss the complaint for lack of juris-

diction and failure to state a claim for relief. Former City

Attorney James Hughes moves to dismiss it for lack of juris-

diction and on the basis of prosecutorial immunity, and in

the alternative, he moves for summary judgment.

The Court will first address the issue of jurisdiction.

Defendants contend in their various motions that plaintiff is

essentially alleging a domestic relations action, seeking to re-

litigate the domestic relations proceedings that occurred in

the state courts. They argue that this court does not have

subject matter jurisdiction over this action even though the

plaintiff has attempted to raise a federal question.

The United States Court of Appeals for the Sixth Circuit

held in Firestone v. The Cleveland Trust Company, 654 F .2d

1212, 1215 (6th Cir. 1981), that: —

Even when brought under the guise of a federal ques-

tion action, a suit whose substance is domestic relations

will not be entertained in a federal court.

In such a situation, “‘[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.” Jd. Ifthe

suit essentially concerns a domestic relations matter,thenthe

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federal court must dismiss it for lack of subject matter juris-

diction. See also, Gargallo v. Gargallo, supra; Hernstadt v.

Hernstadt, 373 F.2d 316 (6th Cir. 1967); Wilkins v. Rogers,

581 F.2d 399 (4th Cir. 1978).

The Court has carefully read and considered-this rather

long and discursive complaint and concludes that it is essen-

tially alleging a domestic relations matter. The complaint re-

counts the extensive litigation involved in piaintiff’s divorce

proceedings, and details various errors on the parts of the

defendant courts and judges. It alleges that plaintiff's at-

torneys made mistakes handling the suit. The complaint fur-

ther alleges that the defendants conspired to have plaintiff

prosecuted for a misdemeanor offense and then a felony of-

fense, but that the charge was later dropped. And the com-

plaint generally alleges that throughout the course of the liti-

gation, plaintiff was subjected to sexual discrimination

because he was a man.

It is apparent that plaintiff wishes to re-litigate his state

divorce proceedings inf the present action. The broad, con-

clusory assertion that plaintiff was subjected to discrimina-

tion because he was a man does not save the complaint. This

complaint essentially concerns a domestic relations dispute,

and consequently this Court lacks subject matter jurisdiction

over the action. Firestone v. The Cleveland Trust Company,

supra. Accordingly, defendants’ motion to dismiss is meri-

torious; and, therefore, it is GRANTED.

Moreover, since the judges were acting in a judicial

all

Stump v. Sparkman, 435 U.S. 349, 359-360 (1978); Pierson

v. Ray, 386 U.S. 547 (1967); Castorr v. Brundage, ___ F.2d

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tion in prosecuting plaintiff for the nonsupport offense, they

are protected by prosecutorial immunity. Jmbier v.

Pachtman, 424 U.S. 409, 431 (1976); Macko v. Bryon, 641

F.2d 447, 449 (6th Cir. 1981).

Attorney Paul Scott’s motion to dismiss because the suit

against him is barred by the statute of limitations is meritor-

ious. Since §1983 does not have a statute of limitations, a

federal district court must apply the statute of limitations of

the state where it sits which would apply to the most closely

analogous state action. Carmicle v. Widdle, 555 F.2d 554,

555 (6th Cir. 1977); Austin v. Brammer, 555 F.2d 142 (6th

Cir. 1977).

Plaintiff alleges that defendant Scott subjected him to sex

discrimination through his actions during the litigation and

that he acted in concert with the others to have criminal

charges brought against him. These allegations are most

closely analogous to a personal injury action or malicious

prosecution. Under §2305.10, Ohio Revised Code, a per-

sonal injury action has a two year statute of limitations, and

under §2305.11, malicious prosecution has a one year statute

of limitations. Since the averments in the complaint concern

Scott’s actions in 1975 at the latest, applying either of Ohio’s

applicable statutes of limitations, this action, which was filed

May 29, 1979, is barred by the statute of limitations.

Defendants Hughes and Garlinger, the former city attor-

ney and assistant city prosecutor, move for summary judg-

ment based upon the statute of limitations. The only allega-

tions about them concern the institution of criminal charges

against plaintiff, and the Court finds the most closely

analogous state action is malicious prosecution. Conse-

quently, a one year statute of limitations applies. Hence, the

statute of limitations bars this suit against defendants )

Hughes and Garlinger.

For the reasons set out above, the Court HOLDS that all

of the motions to dismiss are meritorious; and, therefore,

they are GRANTED.

=. Foe

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This action is hereby DISMISSED. The Clerk of Court

shall enter JUDGMENT for the defendants.

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No. 82-3453 ,

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MIGUEL GARGALLO,

Plaintif{-Appellant,

Vv.

FRANKLIN COUNTY COURT

OF COMMON PLEAS, DIV.

OF DOMESTIC RELATIONS,

ET AL.,

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court in

the Sixth Circuit. If cited, a copy must be served on other

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tain domestic relations proceedings conducted in the Ohio

courts. Briefs have been filed and the matter is now before

the Court for consideration pursuant to Sixth Circuit Rule

(a).

This Court has carefully considered the record and the

briefs filed herein and has concluded that the plaintiff’s

claims, even when liberally construed as mandated by

Haines v. Kerner, 404 U.S. 519 (1972), were insufficient to

entitle him to relief under the federal civil rights statutes. The |

Court further concludes that the district court was correct in

determining that the plaintiff's claims presented domestic

relations issues more appropriately considered by the state

courts. See Huynh Thi Anh v. Levi, 586 F.2d 625 (6th Cir.

1978); Firestone III v. Cleveland Trust Co., 654 F.2d 1212

(&h Cir. 1981).

Therefore, this panel having agreed unanimously that oral

argument is not needed, Rule 34(a), Federal Rules of Appel-

late Procedure,

It is ORDERED that the judgment of the district court is

affirmed pursuant to Sixth Circuit Rule 9(d)(3).

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

ISSUED AS MANDATE: November 11, 1983

COST: None