                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 06a0078n.06
                               Filed: January 31, 2006

                                           No. 04-3527

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



MICHAEL A. GALLUZZO,

       Plaintiff-Appellant,
                                                     On Appeal from the United States
v.                                                   District Court for the Southern District
                                                     of Ohio
CHAMPAIGN COUNTY COURT OF
COMMON PLEAS, et al.,

       Defendants-Appellees.


BEFORE: GUY and GIBBONS, Circuit Judges; and EDMUNDS, District Judge.*

       PER CURIAM. Plaintiff-Appellant Michael Galluzzo and Defendant-Appellee Teresa

Cook were formerly married and had two daughters together. When Cook filed for divorce on

December 8, 1993, in the Champaign County, Ohio, Court of Common Pleas, she was designated

the custodial parent under Ohio law. Galluzzo now challenges the constitutionality of the provisions

of Ohio law that led to his designation as a noncustodial parent. In essence, he argues that his

fundamental right to raise his children has been violated.

       Galluzzo, with the support of several amici curiae, raises interesting constitutional

arguments. The magistrate judge, exercising plenary magistrate judge jurisdiction by consent of the

parties, reached the merits of these arguments, issuing a detailed opinion in which he found that


       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                                -2-



Galluzzo’s constitutional rights had not been violated. We believe that it was error for the district

court to reach the merits of this case. But because we agree with the outcome in the district court,

we AFFIRM its dismissal of this case.

                                                 I.

       Plaintiff-Appellant Galluzzo filed his initial complaint in April of 2001, in the United States

District Court for the Southern District of Ohio.1 He named as defendants the Champaign County

Court of Common Pleas, Judge Roger B. Wilson (the Presiding Judge in that court), his ex-wife

Teresa Cook, and Cook’s attorney Ronald Thompkins. Galluzzo sought declaratory relief,

injunctive relief, and damages. He explicitly mentioned 42 U.S.C. § 1983.

       In his amended complaint, filed in June of 2001, Galluzzo dismissed all defendants except

the Champaign County Court of Common Pleas. The amended complaint makes no mention of

Section 1983, instead raising only a claim for declaratory relief under 28 U.S.C. § 2201. Galluzzo

seeks a declaration that both Ohio Rule of Civil Procedure 75(N), which addresses custody

determinations pendente lite, and Ohio Revised Code § 3109.04, which addresses permanent custody

determinations, are unconstitutional.

       In subsequent proceedings in front of Magistrate Judge Michael R. Merz, the Champaign

County Court of Common Pleas was dismissed from the case on the ground that “[a]s a court, its

sole interest is in administering the law,” and thus it had no real interest in the outcome of this

litigation. But upon dismissing the state court, the Magistrate Judge granted leave for Galluzzo to



       1
       Prior to this appeal, Galluzzo represented himself pro se. He now has the support of pro
bono counsel.
                                                  -3-



add “either Teresa Cook or the State of Ohio or both as party defendants.” Then, after the

Magistrate Judge first added the State of Ohio as a defendant, he dismissed the case against Ohio2

and added Teresa Cook as the sole defendant, finding that “[a]ll that is necessary is that there be a

party sufficiently adverse to Plaintiff to allow this Court to exercise its undoubted jurisdiction to

decide the constitutionality of the statute and rule.” Teresa Cook has since been a defendant in name

only, taking no part in the litigation. The State of Ohio, however, has argued forcefully in support

of the Ohio provisions’ constitutionality as amicus curiae.

        Galluzzo and Cook consented to plenary magistrate judge jurisdiction, pursuant to 28 U.S.C.

§ 636(c). On January 20, 2004, Magistrate Judge Merz issued a “Decision and Order on the Merits.”

Significantly, in the “Subject Matter Jurisdiction” section of his opinion, the Magistrate made clear

that he viewed this as a Section 1983 case: “Plaintiff brought this action under 42 U.S.C. § 1983 for

deprivation by the State of Ohio of constitutional rights . . . .”

        The Magistrate first addressed several justiciability challenges to this case, including the

Younger abstention doctrine,3 the Rooker-Feldman doctrine,4 and Article III standing requirements.

He rejected these challenges except as to Ohio Rule of Civil Procedure 75(N), holding that Galluzzo

lacked standing to challenge that rule because “any injury he suffered from [t]he application of Rule

75(N) to his case has been completely superseded by entry of the final decree of divorce.” The

Magistrate then reached the merits of Galluzzo’s constitutional claim as to Ohio Revised Code §

        2
            The State of Ohio did not consent to the lawsuit.
        3
         See Younger v. Harris, 401 U.S. 37 (1971).
        4
         See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413 (1923).
                                                -4-



3109.04. He rejected Galluzzo’s argument that to deprive parents of their fundamental right to raise

their children required a showing of unfitness by clear and convincing evidence, and that absent such

a showing, the Constitution requires a presumption of shared parenting. Thus, the Magistrate held

the challenged statute to be constitutional, denied Galluzzo’s motion for summary judgment, and

dismissed the complaint.

                                                 II.

       This case raises some very interesting constitutional questions about the fundamental rights

of parents in child custody proceedings. The questions are so interesting, in fact, that they have

generated reams of argument on the merits from a dedicated and able pro se plaintiff, a zealous pro

bono attorney, several named defendants, a handful of ardent amici curiae (including the Attorney

General of the State of Ohio), and a thoughtful magistrate judge.             The discussion of the

constitutional issues is impressive, but scant attention has been paid to some rudimentary

justiciability questions, the simplest of which should have disposed of this case long ago.

       Galluzzo insists that his amended complaint “rais[es] the same legal issues, while removing

all of the underlying fact based 42 U.S.C. § 1983 claims and voluntarily dismissing several

defendants . . . . [T]he case was simplified into a general constitutional challenge.”5


       5
        Despite Galluzzo’s abandonment of his Section 1983 claims, the Magistrate appears to have
viewed this case as a Section 1983 action for its entire pendency. 42 U.S.C. § 1983 states in part,

       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to be
       subjected, any citizen of the United States or other person within the jurisdiction
       thereof to the deprivation of any rights, privileges, or immunities secured by the
       Constitution and laws, shall be liable to the party injured in an action at law, suit in
       equity, or other proper proceeding for redress . . . .
                                                -5-



       28 U.S.C. § 2201, upon which Galluzo relies, provides in part,

       In a case of actual controversy within its jurisdiction . . . , any court of the United
       States, upon the filing of an appropriate pleading, may declare the rights and other
       legal relations of any interested party seeking such declaration, whether or not
       further relief is or could be sought. Any such declaration shall have the force and
       effect of a final judgment or decree and shall be reviewable as such.

Significantly, Section 2201 does not grant jurisdiction to the federal courts. Rather, it applies only

in cases “of actual controversy” already within federal court jurisdiction under Article III of the

Constitution. The United States Supreme Court famously discussed this requirement in 1937, in

Aetna Life Insurance Company v. Haworth:

               A “controversy” in this sense must be one that is appropriate for judicial
       determination. A justiciable controversy is thus distinguished from a difference or
       dispute of a hypothetical or abstract character; from one that is academic or moot.
       The controversy must be definite and concrete, touching the legal relations of parties
       having adverse legal interests. It must be a real and substantial controversy
       admitting of specific relief through a decree of a conclusive character, as
       distinguished from an opinion advising what the law would be upon a hypothetical
       state of facts.

300 U.S. 227, 240-241 (1937) (internal citations omitted). The Court elaborated further in 1941, in

Maryland Casualty Co. v. Pacific Coal & Oil Co.:

             The difference between an abstract question and a “controversy”
       contemplated by the Declaratory Judgment Act is necessarily one of degree, and it



It is therefore universally understood that a successful cause of action under Section 1983 must
include the following two elements: “1) the deprivation of a right secured by the Constitution or
laws of the United States and 2) the deprivation was caused by a person acting under color of state
law.” Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005) (quoting Ellison v. Garbarino, 48 F.3d
192, 194 (6th Cir. 1995)). Teresa Cook, the only defendant in this case, is not a state actor. She was
simply involved in a custody dispute more than ten years ago, subject to the same Ohio laws that
Galluzzo now contests. The Magistrate’s reliance on Section 1983 is therefore in error. Inasmuch
as Galluzzo’s claim rests on Section 1983, it fails as a matter of law.
                                                 -6-



       would be difficult, if it would be possible, to fashion a precise test for determining
       in every case whether there is such a controversy. Basically, the question in each
       case is whether the facts alleged, under all the circumstances, show that there is a
       substantial controversy, between parties having adverse legal interests, of sufficient
       immediacy and reality to warrant the issuance of a declaratory judgment.

312 U.S. 270, 273 (1941) (internal citations omitted).

       While these discussions are helpful, they fail to apply the sort of factual analysis necessary

to resolve this particular case. In 1945, however, the Court decided a case presenting similar facts

and a similar issue. In Coffman v. Breeze Corps., 323 U.S. 316 (1945), a patent owner sued his

licensees in federal court, seeking a declaration that the Royalty Adjustment Act was

unconstitutional, and further seeking to enjoin the defendants from paying royalties to the

government. The Court held that there was no case or controversy:

       Appellant asserts in the present suit no right to recover the royalties. It asks only a
       determination that the Royalty Adjustment Act is unconstitutional and, if so found,
       that compliance with the Act be enjoined . . . . If contested the validity of the Act
       would be an issue which, so far as it could ever become material, would properly
       arise only in a suit to recover the royalties, where it could be appropriately decided.

                 In the circumstances disclosed by the record and for purposes of the present
       suit, the constitutionality of the Act is without legal significance and can involve no
       justiciable question unless and until appellant seeks recovery of the royalties, and
       then only if appellee relies on the Act as a defense. The prayer of the bill of
       complaint that the Act be declared unconstitutional is thus but a request for an
       advisory opinion as to the validity of a defense to a suit for recovery of the royalties
       . . . . The bill of complaint thus fails to disclose any ground for the determination of
       any question of law or fact which could be the basis of a judgment adjudicating the
       rights of the parties.

Id. at 323-324.

       The Court has recently reaffirmed this position. In Calderon v. Ashmus, 523 U.S. 740

(1998), the plaintiff (on behalf of a class) sought a declaration under 22 U.S.C. § 2201 that the State
                                                 -7-



of California did not qualify for certain procedural advantages in defending against habeas corpus

petitions under Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2261 et seq. The Court saw this issue as subordinate to the actual “controversy” in the case:

       The underlying ‘controversy’ between petitioners and respondent is whether
       respondent is entitled to federal habeas relief setting aside his sentence or conviction
       obtained in the California courts. But no such final or conclusive determination was
       sought in this action. Instead, respondent carved out of that claim only the question
       of whether, when he sought habeas relief, California would be governed by Chapter
       153 or by Chapter 154 in defending the action. Had he brought a habeas action
       itself, he undoubtedly would have obtained such a determination, but he seeks to
       have that question determined in anticipation of seeking habeas so that he will be
       better able to know, for example, the time limits which govern the habeas action.

Id. at 746. The Court reasoned that the lawsuit was an “attempt[] to gain a litigation advantage”

because “any judgment in this action . . . would not resolve the entire case or controversy . . . , but

would merely determine a collateral legal issue governing certain aspects of . . . pending or future

suits.” Id. at 747. The Court held that the case presented no justiciable case or controversy within

the meaning of Article III of the Constitution. Id. at 749.

       Based on these authorities, it is clear to us that Galluzzo’s lawsuit is an inappropriate means

to challenge Ohio’s parental custody laws and procedures. Galluzzo has dropped all of his fact-

based claims, and seeks only a general declaration that the Ohio statute and Rule are

unconstitutional. He is not petitioning the federal court for custody of his children. Rather, he

simply wants a favorable ruling on a “collateral legal issue,” upon which (we presume) he wishes

to pursue custody in a separate proceeding.

       If Galluzzo believes that his constitutional rights have been violated, he may petition the

Ohio courts for a modification of the original decree awarding parental rights. O.R.C. § 3109.04(E).
                                               -8-



Those courts will surely provide Galluzzo with an adequate forum to argue the constitutional issues

presented by this case, just as they would have in 1993, when first presented with this custody

dispute.

                                                III.

       Because there is no “case” or “controversy” here sufficient to warrant federal court

jurisdiction, we AFFIRM the district court’s dismissal of this case, albeit on alternate grounds.
