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
 No. 18-3452 Aaron et al. v. O’Connor et al. Page 2

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”).
 No. 18-3452 Aaron et al. v. O’Connor et al. Page 12

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.