869 F. 2d 1491 - Joseph v. J Celebrezze

Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and ROBERT HOLMES BELL, District Judge.*

Plaintiff Joseph moves for visitation rights on appeal from the district court's judgment dismissing this civil rights case. 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

The plaintiff sued the Ohio Attorney General alleging that Ohio Rev.Code Chapter 3111 unconstitutionally denied the plaintiff his due process rights regarding paternity actions in the state domestic relations court. The defendant filed a motion to dismiss on the basis of res judicata. The district court granted the motion and dismissed the case.

In earlier litigation in the state courts, the state appellate court had ruled that the plaintiff did not present any evidence which would satisfy his burden of proof under Ohio paternity law. If the plaintiff had raised his constitutional issue in this earlier proceeding, the Ohio Attorney General would have been bound by the result. See Johnson's Island, Inc. v. Board of Township Trustees, 69 Ohio St.2d 241, 244-45, 431 N.E.2d 672, 675 (1982). Therefore, the doctrine of res judicata bars this claim which could have been raised in the prior action but was not. See 69 Ohio St.2d at 245-46, 431 N.E.2d at 675. We agree with the conclusion of the district court that res judicata bars this action.

The motion for visitation rights is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.