           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                            2     Howard v. Whitbeck, et al.                   No. 03-1396
        ELECTRONIC CITATION: 2004 FED App. 0286P (6th Cir.)
                    File Name: 04a0286p.06                                                        _________________
                                                                                                       COUNSEL
UNITED STATES COURT OF APPEALS
                                                                              ARGUED: Sarah M. Riley, WARNER, NORCROSS &
                   FOR THE SIXTH CIRCUIT                                      JUDD, Grand Rapids, Michigan, for Appellant. Kevin R.
                     _________________                                        Himebaugh, OFFICE OF THE ATTORNEY GENERAL,
                                                                              Lansing, Michigan, for Appellees. ON BRIEF: Sarah M.
 JAMES L. HOWARD ,                 X                                          Riley, WARNER, NORCROSS & JUDD, Grand Rapids,
           Plaintiff-Appellant,     -                                         Michigan, for Appellant. Kevin R. Himebaugh, OFFICE OF
                                    -                                         THE ATTORNEY GENERAL, Lansing, Michigan, for
                                    -  No. 03-1396                            Appellees.
             v.                     -
                                     >                                                            _________________
                                    ,
 WILLIAM C. WHITBECK , Chief -
                                                                                                      OPINION
 Judge of the Michigan Court        -                                                             _________________
 of Appeals; MAURA D.               -
 CORRIGAN , Chief Justice of        -                                            KAREN NELSON MOORE, Circuit Judge. Michigan
 the Michigan Supreme Court, -                                                prisoner James L. Howard (“Howard”) appeals from the
          Defendants-Appellees. -                                             district court’s dismissal of his § 1983 suit for lack of subject
                                    -                                         matter jurisdiction on the basis of the Rooker-Feldman
                                   N                                          doctrine. Howard had filed suit against William C. Whitbeck
        Appeal from the United States District Court                          (“Whitbeck”), Chief Judge of the Michigan Court of Appeals,
      for the Western District of Michigan at Lansing.                        and Maura D. Corrigan (“Corrigan”), Chief Justice of the
     No. 02-00093—Wendell A. Miles, District Judge.                           Michigan Supreme Court, alleging that he had been denied
                                                                              access to the courts under MCL § 600.2963, requiring certain
                      Argued: June 11, 2004                                   filing fees to be paid by prisoners before filing civil suits.
                                                                              Howard previously had appeals rejected by both the Michigan
             Decided and Filed: August 31, 2004                               Court of Appeals and the Michigan Supreme Court for failure
                                                                              to pay filing fees. While the district court was correct to
     Before: SILER, MOORE, and BALDOCK, Circuit                               dismiss Howard’s claim that § 600.2963 was unconstitutional
                      Judges.*                                                as applied to him, as that claim is barred by Rooker-Feldman,
                                                                              we conclude that the district court erred in deciding the merits
                                                                              of Howard’s general challenge to the statute in deciding it
                                                                              lacked subject matter jurisdiction. The failure of a claim on
                                                                              the merits does not divest the district court of jurisdiction.
    *
                                                                              We therefore hold that the district court erred in dismissing
     The Ho norable B obb y R. B aldock, Circuit Judge of the United States
Court of Appeals for the Tenth Circuit, sitting by designation.

                                    1
No. 03-1396                       Howard v. Whitbeck, et al.            3    4    Howard v. Whitbeck, et al.                   No. 03-1396

that part of the complaint, and REVERSE the judgment of                      Supreme Court,” complaining that requiring two filing fees
the district court.                                                          and denying the indigency application had been in error and
                                                                             that MCL § 600.2963(8), requiring filing fees for prior cases
                        I. BACKGROUND                                        to be paid in full before subsequent suits can be filed, was
                                                                             unconstitutional. J.A. at 14-15 (Compl.). Because Howard
   Given Howard’s pro se status in the Michigan courts and in                did not pay the initial partial filing fee required by the
filing his initial complaint in the United States district court,1           February 26 order and refile his pleadings with that fee, his
and the sparse nature of the state-court records filed in the                appeal was not officially filed.
district court, the procedural history of Howard’s suit in the
state courts is not entirely clear on appeal. On September 20,                  The application Howard submitted to the Michigan
2000, Howard and two other prisoners, James Tomzek                           Supreme Court does not appear in the Joint Appendix, but the
(“Tomzek”) and Stuart Trosky (“Trosky”), filed suit in the                   docket sheet for Howard’s suit in the Michigan Court of
Ingham County Circuit Court, complaining of prison                           Appeals indicates that he filed an “Inter Application” to the
conditions, namely environmental tobacco smoke. On                           Michigan Supreme Court on March 21, 2002. J.A. at 127. A
September 12, 2001, the suit was dismissed, presumably on                    motion to waive fees for the appeal to the Michigan Supreme
the merits, as it was after extensive briefing. Along with the               Court appears on the Court of Appeals docket sheet as well;
appeal filed by Tomzek and Howard,2 a motion to waive fees                   the entries for both “Sct Motion:Waive Fees” and
was filed on January 2, 2002. When that motion was                           “SctOrder:Denying Motion” are dated March 25, 2002, J.A.
docketed, it was classified as only having been filed for                    at 127, but Howard’s appellate brief indicates that he filed the
Tomzek, and Howard’s federal complaint seems to indicate                     waiver at the same time as his application (i.e., March 21).
that this was the case: “Plaintiff and Mr. Tomzek filed a                    The Michigan Supreme Court Order of March 25, 2002
claim of appeal along with a motion for waiver of fees and                   required an initial partial filing fee of $21.00, which Howard
costs and prisoner account statement for Mr. Tomzek.” Joint                  did not pay, and his appeal to the Michigan Supreme Court
Appendix (“J.A.”) at 12 (Compl.). It appears from Howard’s                   was dismissed on May 8, 2002. On May 10, Howard
complaint that he and Tomzek believed only one fee was                       submitted a “Motion For Show Cause Hearing” to the
necessary, and so filed a waiver for just Tomzek. The waiver                 Michigan Court of Appeals, alleging three errors: the “split
motion is not in the Joint Appendix, nor does it appear to                   filing fee” (requiring money from both Howard and Tomzek);
have been part of the record in the district court. In any case,             the denial of his motion for waiver of the fee; and that the
that motion was denied on February 26, 2002, by Chief Judge                  refusal to file Howard’s appeal had resulted in a constitutional
Whitbeck. Tomzek paid the partial fee he had been directed                   violation. J.A. at 137-38 (Mot. For Show Cause Hr’g). This
to pay; Howard instead filed “an application to the Michigan                 motion was returned to Howard on May 15 because he no
                                                                             longer had an appeal pending in the Michigan Court of
                                                                             Appeals.
    1
     Counsel was appointed by the district court subsequent to the filing      On June 11, 2002, Howard filed a complaint in the United
of Ho ward ’s complaint, and the same appo inted counsel represents          States District Court for the Western District of Michigan,
Ho ward on ap peal.                                                          asking for a declaratory judgment and a preliminary
    2                                                                        injunction against Chief Justice Corrigan and Chief Judge
       No explanation appears for Tro sky’s nonparticipation in subsequent
litigation.
                                                                             Whitbeck requiring them to accept his appeals despite his
No. 03-1396                  Howard v. Whitbeck, et al.       5    6      Howard v. Whitbeck, et al.                     No. 03-1396

failure to pay his filing fees. A motion to dismiss on the basis       § 600.2963. Indigent prisoners; filing of civil action
of the Rooker-Feldman doctrine was filed on August 9, 2002,                        or appeal in civil action; submission of
by Chief Justice Corrigan and Chief Judge Whitbeck.                                institutional account for payment of
Counsel was appointed for Howard on October 7, 2002, who                           filing fees
filed a response to the motion to dismiss and a motion for
summary judgment on November 15, 2002. On March 19,                       Sec. 2963. (1) If a prisoner under the jurisdiction of the
2003, the district court granted Chief Justice Corrigan and            department of corrections submits for filing a civil action
Chief Judge Whitbeck’s motion to dismiss. Howard filed a               as plaintiff in a court of this state or submits for filing an
timely notice of appeal.                                               appeal in a civil action in a court of this state and states
                                                                       that he or she is indigent and therefore is unable to pay
                       II. ANALYSIS                                    the filing fee and costs required by law, the prisoner
                                                                       making the claim of indigency shall submit to the court
A. Standard of Review                                                  a certified copy of his or her institutional account,
                                                                       showing the current balance in the account and a
   We normally review de novo the district court’s decision to         12-month history of deposits and withdrawals for the
dismiss for lack of subject matter jurisdiction under Federal          account. The court then shall order the prisoner to pay
Rule of Civil Procedure 12(b)(1). See COB Clearinghouse                fees and costs as provided in this section. The court shall
Corp. v. Aetna United States Healthcare, Inc., 362 F.3d 877,           suspend the filing of the civil action or appeal until the
880 (6th Cir. 2004). Where the district court does not merely          filing fee or initial partial filing fee ordered under
analyze the complaint on its face, but instead inquires into the       subsection (2) or (3) is received by the court. If the court
factual predicates for jurisdiction, the decision on the Rule          orders that a prisoner pay a filing fee or partial filing fee,
12(b)(1) motion resolves a “factual” challenge rather than a           all documents submitted by the prisoner that relate to that
“facial” challenge, and we review the district court’s factual         action or appeal shall be returned to the prisoner by the
findings for clear error. See RMI Titanium Co. v.                      court along with 2 certified copies of the court order. An
Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir.              additional certified copy of the court order shall be sent
1996); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.            to the department of corrections facility where the
1994); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d             prisoner is housed. The prisoner then shall, within 21
320, 325 (6th Cir. 1990). While this is a “factual” challenge,         days after the date of the court order, resubmit to the
as the parties submitted exhibits relating to the state-court          court all documents relating to the action or appeal,
proceedings, the district court made no factual findings that          accompanied by the required filing fee or partial filing
would require deference.                                               fee and 1 certified copy of the court order. If the filing
                                                                       fee or initial partial filing fee is not received within 21
B. The Statute                                                         days after the day on which it was ordered, the court shall
                                                                       not file that action or appeal, and shall return to the
  The Michigan statute at issue, requiring the payment of              plaintiff all documents submitted by the plaintiff that
partial filing fees before an action or appeal will be docketed,       relate to that action or appeal.
reads in its entirety:                                                    (2) If, upon commencement of the civil action or the
                                                                       filing of the appeal, the balance in the prisoner's
                                                                       institutional account equals or exceeds the full amount of
No. 03-1396                 Howard v. Whitbeck, et al.          7   8      Howard v. Whitbeck, et al.                    No. 03-1396

 the filing fee required by law, the court shall order the                 (6) The total amount collected from a prisoner under
 prisoner to pay that amount.                                           subsections (3) to (5) shall not exceed the full amount of
    (3) If, upon commencement of the civil action or the                the filing fee and costs required by law.
 filing of the appeal, the balance in the prisoner's                       (7) For purposes of this section, the fact of a prisoner's
 institutional account is less than the full amount of the              incarceration cannot be the sole basis for a determination
 filing fee required by law, the court shall require the                of indigency. However, this section shall not prohibit a
 prisoner to pay an initial partial filing fee in an amount             prisoner from commencing a civil action or filing an
 equal to 50% of the greater of the following:                          appeal in a civil action if the prisoner has no assets and
    (a) The average monthly deposits to the prisoner's                  no means by which to pay the initial partial filing fee. If
 institutional account for the 12 months preceding the date             the court, pursuant to court rule, waives or suspends the
 on which the civil action is commenced or the appeal is                payment of fees and costs in an action described in
 filed.                                                                 subsection (1) because the prisoner has no assets and no
    (b) The average monthly balance in the prisoner's                   means by which to pay the initial partial filing fee, the
 institutional account for the 12 months preceding the date             court shall order the fees and costs to be paid by the
 on which the civil action is commenced or the appeal is                prisoner in the manner provided in this section when the
 filed.                                                                 reason for the waiver or suspension no longer exists.
    (4) In determining the balance in a prisoner's                         (8) A prisoner who has failed to pay outstanding fees
 institutional account for purposes of subsection (2) or (3),           and costs as required under this section shall not
 the court shall disregard amounts in the institutional                 commence a new civil action or appeal until the
 account that are required by law or by another court order             outstanding fees and costs have been paid.
 to be paid for any other purposes.                                        (9) If a prisoner is ordered by a court to make monthly
    (5) In addition to an initial partial filing fee under              payments for the purpose of paying the balance of filing
 subsection (3), the court shall order the prisoner to make             fees or costs under this section, the agency having
 monthly payments in an amount equal to 50% of the                      custody of the prisoner shall remove those amounts from
 deposits made to the account. Payments under this                      the institutional account of the prisoner subject to the
 subsection shall continue until the full amount of the                 order and, when an amount equal to the balance of the
 filing fee is paid. The collection of payments from the                filing fees or costs due is removed, remit that amount as
 account, and their remittal by the department of                       directed in the order.
 corrections, shall be conducted as provided in section 68
 of 1953 PA 232, MCL 791.268. If costs are assessed                 MCL § 600.2963 (2000).
 against a prisoner, and if the balance of the prisoner's
 institutional account is not sufficient to pay the full            C. The Rooker-Feldman Doctrine
 amount of the costs assessed, the court shall order the
 prisoner to make payments in the same manner required                The Rooker-Feldman doctrine, named for Rooker v.
 in this section for the payment of filing fees, and the full       Fidelity Trust Co., 263 U.S. 413 (1923), and District of
 amount of the costs shall be collected and paid in the             Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983),
 manner provided in this subsection and in section 68 of            bars attempts by a federal plaintiff to receive appellate review
 1953 PA 232, MCL 791.268.
No. 03-1396                        Howard v. Whitbeck, et al.             9    10    Howard v. Whitbeck, et al.                    No. 03-1396

of a state-court decision in a federal district court.3 Two                      before it. Where federal relief can only be predicated
categories of claims are barred by Rooker-Feldman: those                         upon a conviction that the state court was wrong, it is
which allege some injury arising directly from the state                         difficult to conceive the federal proceeding as, in
court’s judgments, and those which allege an injury predating                    substance, anything other than a prohibited appeal of the
the state-court’s judgments but which are still “inextricably                    state-court judgment.
intertwined” with state-court judgments. In determining
whether a claim is in the first category, we look to the nature                See Peterson Novelties, Inc. v. City of Berkley, 305 F.3d 386,
of the relief demanded and the particular injury alleged; “‘the                391 (6th Cir. 2002); Anderson v. Charter Township of
fundamental and appropriate question to ask is whether the                     Ypsilanti, 266 F.3d 487, 492-94 (6th Cir. 2001) (applying
injury alleged by the federal plaintiff resulted from the state                “inextricably intertwined” test to hold abstention appropriate).
court judgment itself or is distinct from that judgment.’”
Hutcherson v. Lauderdale County, 326 F.3d 747, 755 (6th                           An exception to the doctrine is that where a claim
Cir. 2003). In determining whether a claim is in the second                    represents a “general challenge . . . to a state law implicated”
category, we look to Justice Marshall’s test in Pennzoil Co. v.                in the state decision, the federal courts have jurisdiction over
Texaco Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring):                 that general challenge. Catz v. Chalker, 142 F.3d 279, 294-95
                                                                               (6th Cir. 1998); see also Feldman, 460 U.S. at 482-83 (“To
  [T]he federal claim is inextricably intertwined with the                     the extent that Hickey and Feldman mounted a general
  state-court judgment if the federal claim succeeds only to                   challenge to the constitutionality of Rule 46I(b)(3), however,
  the extent that the state court wrongly decided the issues                   the District Court did have subject-matter jurisdiction over
                                                                               their complaints.”). However, even where a general
                                                                               constitutional attack is mounted, the state proceedings may
    3                                                                          foreclose the federal claim under the doctrine of res judicata.
      The doctrine flows in large part from “the p ropo sition that Congress   See Feldman, 460 U.S. at 487-88 (“[W]e expressly do not
has conferred appellate jurisdiction over state court judgments upon only
one federal court, the Sup reme Court of the U nited S tates.” Tho mas D.
                                                                               reach the question of whether the doctrine of res judicata
Rowe, Jr., Rooker-Feldman: Worth Only the Powder to Blow it Up?, 74            forecloses litigation on these elements of the complaints.”).
N OTRE D AME L. R EV . 1081, 1081 (1999). Its frequent use in the lower
federal courts in recent years has been met with c ritical commentary. See     D. The District Court’s Decision
Barry Friedman & Ja mes E . Gaylo rd, Rooker-Feldman, From the Ground
Up, 74 N OTRE D AME L. R EV . 1129, 11 33 (199 9) (calling for Feldman to        The district court, after describing the Rooker-Feldman
be overruled); Suza nna Sherry, Judicial Federalism in the Trenches: The
Rooker-Feldman Doctrine in Action, 74 N OTRE D AME L. R EV . 1085,
                                                                               doctrine, classified Howard’s claim as an as-applied
1087-89 (1999) (describing “explosive growth” of the doctrine). W e note       challenge. Howard’s complaint alleges that § 600.2963 is
in passing that when Feldman was decide d, a party aggrieved by a state-       unconstitutional in denying access to the courts to indigents
court decisio n “against the validity of a treaty or Act o f Congress, or in   who are unable to pay the initial partial filing fee. The district
favor of the validity of a state statute attacked upon federal grounds” was    court reasoned that because § 600.2963(7) allows for waiver
entitled to mandatory review in the Supreme Court. R IC H A R D H. F A LL ON   of that fee, the statute was capable of constitutional
ET AL ., H ART & W ECHSLER ’ S T HE F EDERAL C O U R T S A N D T HE F EDERAL
S YSTEM , at 494 (4th ed. 1 996 ). The elimination o f mandatory review in     application, and Howard could only be complaining of the
1988 may affect the continuing vitality of the logic underlying Rooker-        application of the statute to his particular case. J.A. at 214.
Feldman, but we are of course bound to follow that precedent of the            Having concluded that the “general challenge” exception to
Supreme Court and prior precedent of our own court that mandates the           the Rooker-Feldman doctrine did not apply, the district court
application of the doctrine.
No. 03-1396                  Howard v. Whitbeck, et al.     11    12    Howard v. Whitbeck, et al.                    No. 03-1396

went on to determine that Howard’s federal claim was              Feldman does not mean that the facial challenge cannot be
inextricably intertwined with the state-court decision, because   allowed to proceed. J.A. at 10 (Compl.) (Howard seeks
for Howard to prevail, the district court “would necessarily be   declaratory judgment that “both the defendants refusal to file
forced to conclude that Defendants’ interpretation and            Plaintiff’s appeal and portions of said statute is
application of the statute was improper.” J.A. at 215. Finally,   unconstitutional” (emphases added)); see Feldman, 460 U.S.
the district court noted that while Howard had fairly asserted    at 482-88. We conclude that Howard’s complaint fairly
a challenge to § 600.2963(8)—because subsection 8 bars            presented a facial constitutional challenge over which the
future actions, its application would be challenged               district court had jurisdiction.
prospectively, and Rooker-Feldman would not
apply—Howard lacked standing due to his failure to allege            Howard’s remaining arguments, presumably directed
that he had any claim or appeal that he intended to file. J.A.    towards preserving his “as-applied” challenge or a broader
at 219-20.                                                        general challenge, all fail. First, Howard argues that the
                                                                  Michigan courts’ actions were not “judicial determinations”
E. Claims of Error                                                within the meaning of Feldman, which distinguished judicial
                                                                  determinations from legislative determinations in concluding
   On appeal, Howard does not contest the district court’s        that bar membership decisions were judicial in nature.
conclusion that he lacked standing to challenge subsection 8,     460 U.S. at 478-79. Howard’s main argument is that the
but he does argue that the Rooker-Feldman doctrine does not       courts could not exercise discretion because of the mandatory
apply both because the actions of defendants in this matter       language in subsection 1. Howard asserts that despite the
were not “judicial acts” under Feldman, and because he has        plain language of subsection 7, the safety-valve provision,
mounted a general challenge to § 600.2963. While this             because subsection 1 includes the mandatory language
former argument fails, we conclude that Howard’s complaint        “shall,” the Michigan courts have read subsection 7 out of the
fairly presented a general challenge to the statute, sufficient   statute. In Keenan v. Department of Corrections, 644 N.W.
to give the district court jurisdiction. Whether or not           2d 756, 757 (Mich. 2002), the Michigan Supreme Court held
Howard’s general challenge to the Michigan statute would          that the phrase “outstanding fees and costs” in subsection 8
ultimately succeed is irrelevant to the question of subject       includes fees which are currently being paid on installment,
matter jurisdiction, as long as the claim presented is not        even if full payment will eventually be made. Keenan had
frivolous. See Musson Theatrical, Inc. v. Fed. Express Corp.,     filed a previous action, from which fees were still
89 F.3d 1244, 1248-49 (6th Cir. 1996) (in responding to a         outstanding, and was attempting to proceed in a subsequent
motion under Rule 12(b)(1), “the plaintiff can survive the        action; the court did not allow the subsequent action because
motion by showing any arguable basis in law for the claim         of the outstanding fees, despite Keenan’s regular payments by
made”). Although Chief Justice Corrigan and Chief Judge           installment. It is unclear where Howard finds any reference
Whitbeck take issue with whether or not Howard’s pro se           to subsection 7 in Keenan; there is no indication that Keenan
complaint fairly alleged a facial challenge, the district court   applied for a waiver of fees in his initial action, or any sort of
was correct to conclude that it did. While the thrust of the      waiver or suspension of the operation of subsection 8 in the
complaint is definitely an “as-applied” challenge, the            subsequent action. The court noted that Keenan argued “that
language used clearly indicates that the statute itself is also   he has not ‘failed’ to pay outstanding fees [under subsection
being challenged as unconstitutional, and under Feldman the       8] because the remainder of the filing fee is being taken out of
dismissal of the as-applied claim on the basis of Rooker-         his account on a monthly basis,” id., and rejected his
No. 03-1396                  Howard v. Whitbeck, et al.       13    14    Howard v. Whitbeck, et al.                   No. 03-1396

interpretation as contrary to the plain language of the statute.    is not persuasive at the outset, because his case is most
While Keenan is disturbing in that it operates to bar               properly analyzed in the first category of Rooker-Feldman
subsequent actions where plaintiffs are paying to the fullest of    cases, where the complained-of injury is the decision of the
their ability, the injury suffered by Keenan is not that            state court. Howard seeks the sort of direct appeal of the
complained of by Howard. Keenan provides no support for             state-court decisions which is not allowed, except to the
Howard’s specific claim of statutory meaning, however much          extent that he mounts a general constitutional challenge to the
support it provides for his general argument that the Michigan      statute. Additionally, it is impossible to determine whether
courts have applied § 600.2963 in a draconian fashion.              his case is inextricably intertwined with the state-court
                                                                    decisions, because we do not have the actual motions for
   In Palmer v. Oakland Circuit Judge, 621 N.W. 2d 221, 221         waiver filed with the Michigan courts. It is entirely possible
(Mich. 2001), however, the Michigan Supreme Court held              that Howard included in those motions constitutional
that merely because a prisoner had a zero account balance           arguments, in which case the Michigan courts necessarily
“does not necessarily mean that a prisoner” is qualified for        rejected those arguments in refusing to waive his initial filing
waiver under subsection 7. To hold otherwise would give             fees. In any case, however, Howard is clearly barred from
“the calculation provisions of subsections (3) and (4) . . . no     bringing an as-applied challenge under the first category of
effect.” Id.; see also Bennett v. McBride, No. 01-1939, 2003        Rooker-Feldman; that the Michigan courts may not have
WL 1870913, *3 (6th Cir. Apr. 8, 2003) (citing Palmer and           decided the exact issues he brings before this court, a claim
noting, “Under Michigan law, a prisoner’s present account           impossible to analyze on appeal, does not change the nature
balance of zero does not necessarily mean that the prisoner is      of the decision and relief he seeks from this court.
entitled to a waiver of an initial partial filing fee”). The
statute, as authoritatively construed by the highest court of the      Howard finally argues that the statute is unconstitutional for
state, thus allows prisoners who have insufficient funds to pay     a number of reasons. As mentioned above, it is quite possible
a filing fee to be denied the right to file a claim or an appeal.   that res judicata principles will foreclose the district court
As discussed above, however, the Michigan courts have               from reaching the merits of this claim, so remand is the
construed the statute to allow waivers in certain conditions,       appropriate course, especially in the absence of the motions
but not to require them whenever a prisoner is unable to pay        submitted by Howard to the Michigan courts that will
an initial partial filing fee. This may be unconstitutional, but    partially determine the res judicata effect of the prior
it still allows discretion: it allows waivers in situations where   judgments.
prisoners have a zero balance, it merely does not require
them. In rejecting Howard’s motions to waive the filing fees,                           III. CONCLUSION
the Michigan courts made judicial decisions that under state
law they had discretion in making. We therefore cannot reach           The district court’s judgment is REVERSED and the case
the greater question of whether those decisions violate the         is REMANDED for further proceedings not inconsistent with
Constitution, as to reach that question would be to sit in          this opinion.
review of the Michigan courts in violation of the Rooker-
Feldman doctrine.
  Howard then argues that the issues in his federal claim are
not inextricably intertwined with the state-court claims. This
