Unpublished Disposition(the Decision of the Court is Referenced in a "table of Decisions Without Reported Opinions" Appearing in the Federal Reporter.)david Fathauer, Plaintiff-appellant, v. Timothy Tolar, Assistant Official Court Reporter Cuyahogacounty Court of Common Pleas Division of Domestic Relations;cuyahoga County, Ohio, Virgil Brown, President Countycommissioners; Cuyahoga County Court of Common Pleasdivision of Domestic Relations, Hon. Timonthy Flanagan,administrative Judge, Defendants-appellees, 780 F.2d 1020 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 780 F.2d 1020 (6th Cir. 1985) 11/12/85



BEFORE: MERRITT and WELLFORD, Circuit Judges; and JOHNSTONE, District Judge.* 

Fathauer appeals with counsel from the district court's order dismissing his civil rights case. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Fathauer's complaint alleges that a court reporter in the domestic relations court for Cuyahoga County, Ohio lost the transcript of a referee's proceeding. Fathauer alleges that this loss denied him his right of access to the courts and his due process rights. The district court found that the case was not yet ripe for adjudication and dismissed the case without prejudice.

The general rule is that a plaintiff must allege an actual or threatened injury before a case is ripe for adjudication. Abstract injury is not enough. O'Shea v. Littleton, 414 U.S. 488, 493-94 (1974). Here the district court found that Fathauer's appeal from the domestic relations court's decision was still pending when Fathauer filed his complaint. Therefore, the court held that Fathauer could not show an injury until the appeal had been decided. We agree with the conclusion of the district court that this case is not yet ripe for adjudication.

In their appellate briefs, both parties argue concerning the availability of state procedures by which Fathauer could raise the testimony produced during the referee's hearing. This speculation concerning the state appellate court's action on the issue shows that it is still unclear how these events will eventually play out. Brown v. Ferro Corp., 763 F.2d 798, 802 (6th Cir. 1985). So the district court was correct to dismiss the action without prejudice.

The order of the district court is affirmed under Rule 9(d) (3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.


The Honorable Edward H. Johnstone, U.S. District Judge for the Western District of Kentucky, sitting by designation