                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0181p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                        Plaintiffs-Appellants, -
 SHARON HALL; JAMES CODY,
                                                 -
                                                 -
                                                 -
                                                     No. 12-3708
         v.
                                                 ,
                                                  >
                                                 -
                       Defendants-Appellees. -
 HONORABLE LYNNE S. CALLAHAN, et al.,
                                                N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Akron.
            No. 5:11-cv-01740—David D. Dowd, Jr., District Judge.
                             Decided and Filed: May 31, 2013*
         Before: MARTIN, SUHRHEINRICH and GIBBONS, Circuit Judges.

                                      _________________

                                           COUNSEL
ON BRIEF: John L. Juergensen, JOHN L. JUERGENSEN CO., LPA, North Canton,
Ohio, for Appellants. Lesley a. Walter, SUMMIT COUNTY PROSECUTOR’S
OFFICE, Akron, Ohio, for County Court Appellees. Michael J. Schuler, Damian W.
Sikora, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for the
Ninth District Court of Appeals Appellees.
                                      _________________

                                            OPINION
                                      _________________

        SUHRHEINRICH, Circuit Judge. Plaintiffs-Appellants Sharon Hall and James
Cody appeal the district court’s dismissal of their § 1983 action which challenged, on
several constitutional grounds, a state court judgment declaring them to be vexatious
litigators under Ohio Rev. Code § 2323.52. The district court dismissed Plaintiffs’ due



        *
          This decision was originally issued as an “unpublished decision” filed on May 31, 2013. The
court has now designated the opinion as one recommended for full-text publication.


                                                 1
No. 12-3708            Hall, et al. v. Callahan, et al.                                           Page 2


process, equal protection, and as-applied constitutional challenges under the Rooker-
Feldman doctrine and held that the vexatious litigator state statute was facially
constitutional. For the following reasons, we AFFIRM the decision of the district court.

                                          I. Background

A.       State Trial Court

         Sharon Hall and James Cody (collectively, “Plaintiffs”)1 filed a number of pro
se complaints against their neighbor, Michael Harig, and several other individuals.
Harig subsequently brought an action against Plaintiffs in the Summit County Court of
Common Pleas, seeking to designate Plaintiffs as vexatious litigators under Ohio
Revised Code § 2323.52 (the “Statute”).

         The case was assigned to visiting Judge Judith Cross (“Judge Cross”). Although
Judge Cross never issued a pre-trial order, met with the litigants, or set a briefing
schedule, she designated Plaintiffs as vexatious litigators in a sua sponte summary
judgment order and dismissed any remaining claims in the other civil cases brought by
Plaintiffs.

B.       State Court of Appeals

         Plaintiffs retained counsel and attempted to appeal the decision to the Ninth
District Court of Appeals. However, Plaintiffs failed to seek leave to appeal, as required
by the Statute. Under the Statute, no appellate proceedings may be instituted by
vexatious litigators without leave of the appellate court.                         Ohio Rev. Code
§ 2323.52(D)(3) & (I). As a result, Plaintiffs’ appeal was dismissed. Subsequently,
Plaintiffs filed a motion for leave to continue their appeal. They also requested that the
Ninth District reconsider their dismissal. The Ninth District denied both motions and
dismissed their appeal as untimely. Plaintiffs then filed an appeal with the Ohio
Supreme Court, which declined jurisdiction and dismissed the appeal.



         1
          The docket sheet reflects that Plaintiff-Appellant Cody died on July 12, 2012, after this appeal
was filed. Therefore, this opinion is moot with respect to Cody.
No. 12-3708         Hall, et al. v. Callahan, et al.                                  Page 3


C.      Federal District Court

        Plaintiffs proceeded to file a § 1983 claim in the United States District Court for
the Northern District of Ohio (the “District Court”). The complaint originally named as
defendants Judge Cross, the Summit County Court of Common Pleas and its judges, the
Ninth District Court of Appeals and its judges, and the State of Ohio. The State of Ohio
was later voluntarily dismissed. Plaintiffs advanced three claims: (1) that Judge Cross’s
sua sponte dismissal violated their due process and equal protection rights; (2) that the
Statute was unconstitutional as-applied; and (3) that the Statute was facially
unconstitutional.

        Defendants moved to dismiss the action pursuant to Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). On November 17, 2011, the District Court held
a hearing on the dispositive motions. Plaintiffs were permitted to file a supplemental
brief, and Defendants were permitted to respond.

        After the supplemental briefing was completed on December 9, 2011, the District
Court issued a decision on May 10, 2012, granting Defendants’ motion. The District
Court found that the Rooker-Feldman doctrine barred it from considering Plaintiffs’
challenge to Judge Cross’s judgment, as well as Plaintiffs’ as-applied constitutional
challenge, because “it is clear to the court that the plaintiffs want this court to review and
reject Judge Cross’s decision.” The District Court also ruled that the Statute was
constitutional, agreeing with the reasoning set forth in Grundstein v. Ohio, a federal
district court case finding the Statute constitutional. No. 1:06 CV 2381, 2006 WL
3499990 (N.D. Ohio Dec. 5, 2006). Plaintiffs perfected an appeal to this court in a
timely manner on June 8, 2012.

                                      II. Jurisdiction

        This court has jurisdiction to review the decision of the District Court under
28 U.S.C. § 1291, because this is an appeal from a final judgment as to all parties and
all claims.
No. 12-3708         Hall, et al. v. Callahan, et al.                                 Page 4


                                III. Standard of Review

        This court reviews both motions to dismiss for failure to state a claim and
motions for judgment on the pleadings under a de novo standard. Ziegler v. IBP Hog
Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001). In reviewing either motion, this
court must “construe that complaint in the light most favorable to the plaintiff, accept
all of the complaint’s factual allegations as true, and determine whether the plaintiff
undoubtedly can prove no set of facts in support of his claim that would entitle him to
relief.” Ziegler, 249 F.3d at 511-12. The District Court’s application of the Rooker-
Feldman doctrine is reviewed de novo. Evans v. Cordray, 424 F. App’x 537, 538 (6th
Cir. 2011).

                                       IV. Analysis

        Plaintiffs assert that the District Court erred in dismissing their claims that:
(1) Judge Cross’s sua sponte summary judgment ruling violated Plaintiffs’ due process
and equal protection rights; (2) the Statute is unconstitutional as applied to Plaintiffs’
case; and (3) the Statute is unconstitutional on its face.

A.      Due Process and Equal Protection Challenges

        Plaintiffs allege that the District Court erred by refusing to entertain their claim
that during the state court proceedings, Judge Cross violated their due process and equal
protection rights by sua sponte granting summary judgment against them without
meeting with the litigants or setting a briefing schedule. In the District Court, Plaintiffs
sought declaratory relief to void Judge Cross’s judgment and also injunctive relief to
prevent Defendants from enforcing Judge Cross’s judgment. The District Court ruled
that the claim was barred by the Rooker-Feldman doctrine.

        Federal district courts do not stand as appellate courts for decisions of state
courts. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983). The Rooker-Feldman doctrine “prevents
a federal court from exercising jurisdiction over a claim alleging error in a state court
decision.” Luber v. Sprague, 90 F. App’x 908, 910 (6th Cir. 2004). Federal courts’
No. 12-3708        Hall, et al. v. Callahan, et al.                                 Page 5


“authority to review a state court’s judgment” is vested “solely in [the Supreme] Court.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005). On the other
hand, the Rooker-Feldman doctrine does not bar “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.” Exxon Mobil, 544 U.S. at 293; see also Evans,
424 F. App’x at 537.

       Plaintiffs set forth several arguments as to why their claims should not have been
barred by the Rooker-Feldman doctrine. First, Plaintiffs argue that they are “not seeking
the vacation of the state court judgment,” but that they are “seeking a declaration that
[their] rights were violated and an injunction as to the enforcement of the judgment.”
But Plaintiffs’ complaint twice requested that the District Court declare Judge Cross’s
decision void because she allegedly violated their due process and equal protection rights
by sua sponte ruling against them in summary judgment without meeting with the
litigants or setting a briefing schedule. As the District Court noted, it would have been
impossible to void the state court judgment without “disturbing” it. Furthermore, if this
court construes Rooker-Feldman to allow attacks on a state court’s procedural error, then
federal courts could extensively review state court trial proceedings, a task belonging to
state appellate courts. Therefore, we reject Plaintiffs’ argument that they were not
directly attacking the state court judgment.

       Next, Plaintiffs cite McCormick v. Braverman for the contention that if “there is
some other source of injury, such as a third party’s actions, then the plaintiff asserts an
independent claim” that is not barred by Rooker-Feldman. McCormick v. Braverman,
451 F.3d 382, 393 (6th Cir. 2006). In McCormick, the plaintiff lost the state proceeding
because a third party perpetuated fraud and misrepresentation, which caused an adverse
judgment against the plaintiff. Id. at 392-93. Here, Plaintiffs claim that Judge Cross was
a third party who injured them with her actions during the state court proceeding.
However, Judge Cross was not a third party, but the presiding judge. This directly
implicates Rooker-Feldman concerns. Indeed, the McCormick court explicitly noted that
errors made by state court judges are barred from consideration. Id. at 394.
No. 12-3708         Hall, et al. v. Callahan, et al.                                  Page 6


        Moreover, even if Judge Cross had conducted her proceedings erroneously,
Plaintiffs could have directly appealed to the state appellate court. However, the appeal
was not heard because Plaintiffs made an error in filing for the appeal. Furthermore,
Plaintiffs failed to appeal to the United States Supreme Court under 28 U.S.C. § 1257.
The District Court was correct to rule that Plaintiffs’ challenge to the state court
proceeding was barred by Rooker-Feldman.

B.      As-Applied Constitutional Challenge

        Plaintiffs contend that the District Court erred in ruling that the Rooker-Feldman
doctrine barred their as-applied constitutional challenge. In the District Court, Plaintiffs
alleged that the Statute was unconstitutional “as applied and on its face” because “[a]t
all times following their designation as vexatious litigators, . . . [they] were represented
by counsel, including the time at which they filed their notice of appeal.” They argued
that the Statute was overbroad because it fails to distinguish between pro se litigants and
litigants represented by counsel, the latter of whom are subject to Ohio Civil Rule 11,
which prohibits counsel from filing vexatious lawsuits, and sought a declaration that the
Statute is unconstitutional as applied and on its face.

        To the extent Plaintiffs seek a declaration that the Statute is unconstitutional as
applied in the prior state court proceeding and relieving them from that judgment, the
District Court correctly ruled that Rooker-Feldman bars their as-applied challenge to the
Statute. See, e.g., Carter v. Burns, 524 F.3d 796, 798 (6th Cir. 2008) (holding that the
Rooker-Feldman doctrine barred a prisoner’s as-applied constitutional challenge to a
Tennessee collateral review statute because the prisoner’s alleged injury was “an injury
from the prior state-court determinations”); Howard v. Whitbeck, 382 F.3d 633, 641 (6th
Cir. 2004) (holding that the Rooker-Feldman doctrine barred a prisoner’s as-applied
challenge to a Michigan statute requiring filing fee payments because it would
undermine an existing state court judgment).

        To the extent Plaintiffs’ as-applied claim seeks a declaration that the Statute is
unconstitutional when litigants are represented by counsel in future cases, the claim is
not ripe because Plaintiffs have not alleged that they have filed or presently intend to file
No. 12-3708            Hall, et al. v. Callahan, et al.                                             Page 7


any new lawsuits. See Lawrence v. Welch, 531 F.3d 364, 373-74 (6th Cir. 2008) (Sutton,
J., concurring) (holding that, to the extent the attorney plaintiff asked the court to enjoin
the rejection of future bar applications, his claim was not ripe because the court could
not know if the plaintiff would file a subsequent bar application, or whether a subsequent
application would be rejected by the Michigan Board of Law Examiners).2 Cf. Berry v.
Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (holding that, to the extent that the attorney
plaintiff challenged a warning letter he received from the state bar for criticizing a
legislative ethics commission, his claim was ripe because he had “shown an imminent
threat of prosecution” by alleging “an intention to engage in speech prohibited by [the
warning letter]”); Fieger v. Ferry, 471 F.3d 637, 643 (6th Cir. 2006) (holding that, to the
extent that the plaintiff asked the court to enjoin the continued enforcement of the
Michigan recusal rule allowing for the defendant judges to hear his cases on the
Michigan Supreme Court, his claim was ripe because the court could reasonably
conclude that there was “a significant, rather than remote, possibility” that the plaintiff
would reappear in front of the Michigan Supreme Court); Hood v. Keller, 341 F.3d 593,
597-98 (6th Cir. 2003) (holding that, to the extent the plaintiff asked the court to enjoin
the state from enforcing a statute requiring that he obtain a permit to speak on public
grounds, his claim was ripe because he alleged a “continued threat of enforcement” of
the statute, which would “chill and deter” his present and future speech). Therefore, we
do not reach the merits of Plaintiffs’ as-applied constitutional challenge.3


         2
          Judge Sutton’s concurrence was joined by Judge Rogers, giving that opinion controlling weight
with regard to ripeness. See Berry v. Schmitt, 688 F.3d 290, 301 n. 3 (6th Cir. 2012).
         3
           Although we do not reach the Rooker-Feldman issue because the claim is not ripe, we note that
the Rooker-Feldman doctrine does not bar as-applied constitutional challenges seeking prospective relief
as long as “the source of [the plaintiff]'s alleged injury is not the past state court judgments” but “the
purported unconstitutionality of [the statute] as applied in future cases.” Fieger, 471 F.3d at 646. See also
Berry, 688 F.3d at 300 (holding that the plaintiff’s action was not barred by Rooker-Feldman because he
“[did] not request relief” from the state decision itself but “[sought] relief that would allow him to engage
in future protected speech”); Hood, 341 F.3d at 598 (holding that the plaintiff’s action was not barred by
Rooker-Feldman because the plaintiff had “not challenged his state court criminal trespass conviction,”
but sought prospective injunctive and declaratory relief). Cf . Welch, 531 F.3d at 370-71 (holding that the
plaintiff’s action was barred by Rooker-Feldman because “while the redress [the plainff] seeks . . . is
forward-looking, the claim is nonetheless premised on the same past injury”) (non-majority opinion); Loriz
v. Connaughton, 233 F. App’x 469, 475 (6th Cir. 2007) (holding that the plaintiff’s action was barred by
Rooker-Feldman because “[i]n order for the district court to grant the requested declaratory or injunctive
relief,” the district court “would be forced to review the decisions” of state courts). In fact, on one
occasion, this court held that an as-applied constitutional challenge to the very same statute at issue was
not barred by Rooker-Feldman. Evans, 424 F. App’x at 540-41. The plaintiff in Evans, who had been
No. 12-3708             Hall, et al. v. Callahan, et al.                                              Page 8


         This leaves Plaintiffs’ facial challenge.

C.       Facial Constitutional Challenge

         Plaintiffs appeal the District Court’s dismissal of their general challenge to the
constitutionality of the Statute. In their complaint, Plaintiffs sought a declaration that
the Statute is facially unconstitutional for violating the First, Fifth, and Fourteenth
Amendments. The District Court held that Rooker-Feldman did not bar a “general
challenge to the constitutionality of the state law applied in the state action.” Tropf v.
Fidelity Nat’l Title Ins. Co., 289 F.3d 929, 937 (6th Cir. 2002) (quoting Catz v.
Chalker, 142 F.3d 279, 293 (6th Cir. 1998)). However, the District Court nonetheless
dismissed the claim because it found that the Statute was constitutional as a matter of
law, adopting the reasoning of Grundstein v. Ohio. 2006 WL 3499990 at *3-7. The
Grundstein plaintiff argued that the Statute was unconstitutional on its face because it
violated the First and Fourteenth Amendments. Id. at *3. Applying a rational basis test,
the Grundstein court held that the Statute was constitutional because it did “not
arbitrarily and capriciously deprive citizens of a constitutionally protected liberty or
property interest.” Id. at *6. Plaintiffs now challenge the District Court’s reliance on
Grundstein.

         Plaintiffs argue that Grundstein v. Ohio applied the incorrect standard of review.
Plaintiffs claim that strict scrutiny should have been applied because access to the
courthouse is a fundamental right. Swekel v. City of River Rouge, 119 F.3d 1259, 1261
(6th Cir. 1997). However, Plaintiffs fail to realize that although access to courts is a
fundamental right, the ability to file frivolous lawsuits is not. Bill Johnson’s Rests. v.
NLRB, 461 U.S. 731, 743 (1983) (“Just as false statements are not immunized by the


designated a vexatious litigator by a past state court judgment, was in the middle of an ongoing divorce
proceeding. Id. at 537-38. After two of his motions in the divorce proceeding were denied because he
had failed to file leave as required by the vexatious litigator statute, he challenged the constitutionality of
the vexatious litigator statute as applied to divorce proceedings in the future. Id. We held that because
the source of the plaintiff’s injury was “Ohio’s allegedly unconstitutional present and future enforcement
[of the vexatious litigator statute] in divorce proceedings,” and not the prior state court decision
designating the plaintiff as a vexatious litigator, his claim was not barred by Rooker-Feldman. Id. at 540-
41. However, the present case is arguably different from Evans because the Evans plaintiff’s alleged injury
was the alleged unconstitutionality of the statute “as applied in divorce proceedings,” which was “not an
issue in the vexatious-litigator case and therefore presented no basis for an appeal.” Id. at 541. In contrast,
Plaintiffs’ alleged injuries were all issues from Judge Cross’s case, which could have been appealed.
No. 12-3708           Hall, et al. v. Callahan, et al.                                   Page 9


First Amendment right to freedom of speech, baseless litigation is not immunized by the
First Amendment right to petition.”) (citations omitted). As the Grundstein court held,
the Statute specifically targets baseless litigation. Ohio Rev. Code Ann. § 2323.52
(2002).

          Plaintiffs also argue that the Statute is overbroad and that there are less restrictive
means to prevent vexatious litigation, namely requiring that all vexatious litigators be
represented by counsel, who, in turn, are governed by Ohio Civil Rule 11. However, as
the Grundstein court reasoned, the Statute is not overbroad because it “is not aimed at
constitutionally protected speech” and provides a procedure for meritorious claims to be
heard, even when they are filed by vexatious litigators. Grundstein, 2006 WL 3499990
at *5.

          Next, Plaintiffs claim that the Statute violates the First Amendment right to free
speech. However, as the Grundstein court reasoned, vexatious conduct is not protected
by the First Amendment. Id. at *3-4. Furthermore, constitutionally protected speech is
not banned by the Statute because it does not prevent vexatious litigators from filing
future lawsuits as long as those lawsuits have merit.

          In addition, Plaintiffs contend that the Statute violates the Due Process Clause.
However, as the Grundstein court reasoned, the Statute does not arbitrarily and
capriciously deprive citizens of a constitutionally protected liberty or property interest.
Id. at *6. As the Grundstein court held, and as we note above, the Statute is rationally
related to legitimate ends, so it is not arbitrary. See Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 227 (1985). The Statute also restrains narrowly only the conduct it seeks
to prohibit, by providing a mechanism by which even vexatious litigants can file
meritorious actions.

          Finally, Plaintiffs claim that the Statute violates the Equal Protection Clause.
This argument clearly has no merit. In making an equal protection challenge, the
plaintiff must demonstrate that a discrimination of some substance has occurred which
has not occurred against other individuals who were similarly situated. City of Cleburne,
No. 12-3708        Hall, et al. v. Callahan, et al.                              Page 10


Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Plaintiffs have not identified
two groups, nor how the Statute treats them differently.

       In sum, the District Court’s reliance on Grundstein in rejecting Plaintiffs’ facial
constitutional challenge was not in error.

                                     V. Conclusion

       For the foregoing reasons, we AFFIRM the District Court judgment.
