OPINION
“On December 1st, 2009, Ms. Kahn initiated what will be a very contentious divorce and custody” proceedings in the Montgomery County Court of Common Pleas. Compl. ¶¶ 2, 14. This prescient understatement launches a litany of allegations in a 47-page, 279-paragraph Complaint from pro se Plaintiff Nabil Mikhail, who claims that his soon-to-be-ex-wife, Jo-lie Kahn, along with her former lawyer, Dorothy Phillips, and her current lawyer, Alan Fellheimer, conspired with court-appointed psychologists and a psychiatrist, as well as a nonprofit attorney, two child visitation supervisors, and nine Pennsylvania judges, to deprive him of his federal constitutional rights through state court
For the reasons explained below — the Rooker-Feldman
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Ms. Kahn filed for divorce from Mr. Mikhail and also brought a protection from abuse (“PFA”) petition against him. As the result of a PFA order entered after an ex parte hearing, Mr. Mikhail “was evicted from the marital home at 2 a.m. on December 2, 2009” by the police and was “banned from seeing his daughter for 2 weeks.” Compl. ¶ 16. Although another judge “dismissed the Child from the PFA” a week later, that second judge appointed Defendant Dr. Herbert Lustig “to perform a custody evaluation,” and this first PFA otherwise remained in effect until May 2011. Compl. ¶ 17. Ms. Kahn also obtained sole custody of her and Mr. Mikhail’s minor child, allegedly on an ex parte basis, although Mr. Mikhail’s allegations do not make clear whether this custody award was related to the PFA proceedings or to the separate, ongoing custody proceedings.
Mr. Mikhail claims that in January 2010 Dr. Lustig conspired with Ms. Kahn and Ms. Kahn’s then-attorney, Dorothy Phillips (now deceased), to falsely report that Mr.
While the authorities investigated Ms. Kahn’s reports of abuse, she filed a second PFA petition, which, again, the presiding judge temporarily granted ex parte and, Mr. Mikhail contends, erroneously. Compl. ¶¶ 22-23. Then, notwithstanding the authorities’ subsequent dismissal of the child abuse allegations as unfounded, Mr. Mikhail alleges, another judge “ordered [him] to see Child only SUPERVISED, and for LIMITED amount of time,” Compl. ¶ 25, and to use the corrupt “Kids First” service for supervision. That same judge also entered an order granting the second PFA petition after a hearing on April 9, 2010. This PFA order, which expired in April 2011, was subsequently extended for one year. When Mr. Mikhail sought an appeal (his Complaint is not clear as to which orders, precisely, he appealed), the Pennsylvania Superior Court affirmed “through numerous non-precedential decisions containing falsehoods and in violation of Plaintiff [sic] constitutional rights.” Compl. ¶ 29.
Mr. Mikhail also alleges that Ms. Kahn used Dr. Lustig’s services for their child without “the approval of [Mr. Mikhail] or the Child Advocate,” Compl. at 10 — that is, it seems, beyond Dr. Lustig’s permitted role as court-appointed custody evaluator. For reasons not entirely clear from the Complaint, in December 2010, the trial court dismissed Dr. Lustig from the domestic relations case and ordered his files and records released. On January 7, 2011, after reviewing these newly available documents, Mr. Mikhail filed a petition for contempt in which he attempted to show “that the PFA was secured through Fraud upon the Court.” See Compl. ¶¶ 30-31.
Mr. Mikhail complains of a number of harms allegedly emanating from the state court proceedings and rulings, including, for example, a judge’s failure to schedule a hearing for “over 22 months,” Compl. ¶ 33; the court’s dismissal of his petition to expunge the PFA orders entered against him, see Compl. ¶¶ 34, 43; the court’s entry of an order, after a hearing at which no evidence was presented, that Mr. Mikhail could not take the child out of Pennsylvania, Compl. ¶36; the court’s hearing of Ms. Kahn’s petition for custody before Mr. Mikhail’s petition for custody, Compl. ¶ 42; the court’s dismissal of Mr. Mikhail’s various subpoenas, see Compl. ¶ 44(1); and the court’s failure or refusal to ask the child advocate/guardian ad litem to be present at a hearing concerning the child, in favor of allowing Ms. Kahn’s attorney to represent the child, see Compl. ¶¶ 45, 46. Mr. Mikhail also alleges that he was denied alimony pendente lite for over two years and that he alone was required to pay the cost of visitation supervisors and the reunification therapist. Compl. ¶¶ 49, 52.
Within this context of assigning error to the defendant judges and their rulings, Mr. Mikhail avers that Maddi-Jane Sobel, the second court-appointed custody evaluator, “insulted [Mr. Mikhail) in' his faith and distorted facts and reported false testimonies.” Compl. at 19. He also alleges that Dr. Anthony Pisa, the court-appointed reunification therapist, inappropriately conferred with the court in a meeting from which counsel were excluded; that the court impermissibly relied on this ex parte
Mr. Mikhail attempts to channel these alleged wrongdoings into six counts, which often refer to all of the Defendants collectively. He rarely specifies how any given alleged wrongful activity was unlawful or unconstitutional. See Compl. at 24-32. Counts I and II purport to state violations of 18 U.S.C. § 242 and 42 U.S.C. § 1983, and both, among other things, claim that the judges discriminated against Mr. Mikhail “because of race, gender, [and] religion.” Compl. ¶¶ 218, 239. Count I does not indicate the conduct complained of, but it seems to refer to the custody and divorce proceedings because Count II, in contrast, refers explicitly to the PFA orders. In Count II, Mr. Mikhail claims that the entry of the PFA orders, especially those entered ex parte, violated his constitutional rights by, inter alia, leading to his eviction from the marital home in the middle of the night and because of the accusations of child abuse. He further asserts that the PFA orders “were secured through fraud upon the court” and were
themselves erroneous and unconstitutional. Compl. ¶ 235. Finally, Counts III through VI consist of state law claims for, respectively, violation of Pennsylvania’s Code of Judicial Conduct and its Rules of Professional Conduct; civil conspiracy; concerted tortious action; and malicious prosecution.
For the Defendants’ alleged wrongdoing, Mr. Mikhail seeks injunctive relief, including “[r]elief of all orders made in violation of the Law,” a judicial command that the Defendants cease violating his constitutional rights, a declaration (but, for reasons explained below, not truly declaratory relief) that the PFA orders are unconstitutional, as well as monetary damages, costs, and attorneys’ fees. Compl. at 46.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), “in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests,’ ” Bell Atl. Corp. v. Twombly,
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court “must consider only those facts alleged in the complaint and accept all of the allegations as true.” ALA, Inc. v. CCAIR, Inc.,
For practical reasons, complaints filed by pro se litigants like Mr. Mikhail are held to somewhat “less stringent standards” than those drafted by lawyers. See Henry v. Moore,
III. DISCUSSION
Mr. Mikhail’s Complaint and the Defendants’ Motions to Dismiss raise many issues. Many of the defenses overlap, and indeed, although the Complaint must ultimately be dismissed in its entirety, no single doctrine or legal principle is dispositive as to the whole pleading. Thus, for instance, although most of Mr. Mikhail’s claims against the judges might be dismissed on the basis of judicial immu
Under the Rooker-Feldman doctrine, the Court is without power to hear Mr. Mikhail’s claims based on the state courts’ protection from abuse orders, which are now final. Similarly, the Court must abstain pursuant to Younger v. Harris,
The claims that elude these jurisdictional watchdogs still must face a second line of rigorous defenses, several of which also would render any amendments to certain claims futile, if it were not so already. See Phillips,
Finally, because these doctrines, requirements, and principles eliminate all of Mr. Mikhail’s federal claims, the Court will decline to exercise supplemental jurisdiction over the state law claims.
A. The Rooker-Feldman Doctrine
Much of the relief that Mr. Mikhail seeks from the PFA orders entered
Under Rooker-Feldman, “federal district courts lack jurisdiction over suits that are essentially appeals from state-court judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP,
In 2005, observing that the Rooker-Feldman “doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases,” Exxon Mobil,
(I) the federal plaintiff lost in state court; (2) the plaintiff “complain[s] of injuries caused by [the] state-court judgments”; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments. Exxon Mobil,544 U.S. at 284 ,125 S.Ct. 1517 . The second and fourth requirements are the key to determining whether a federal suit presents an independent, non-barred claim.
Great W. Mining & Mineral Co.,
The second requirement, in particular, merits brief elaboration here. Unless the injury of which the federal plaintiff complains was caused by a state court judgment itself, the claim is not barred, see id., even if this “independent claim ... denies a legal conclusion that a state court
To be sure, the correct application of this requirement can be difficult in practice. “The critical task is ... to identify those federal suits that profess to complain of injury by a third party, but actually complain of injury ‘produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.’ ” Great W. Mining & Mineral Co.,
It is unnecessary to resurvey more extensively the post-Exxon Mobil doctrine’s topography here, however, because the Third Circuit’s recent case law contains a rather thorough discussion, particularly in Great Western Mining & Mineral Co. v. Fox Rothschild LLP,
1. The Protection from Abuse Orders
Mr. Mikhail’s Complaint avers that the protection from abuse proceedings have terminated and that he is no longer under any PFA order. Apparently, Ms. Kahn filed a total of five PFA petitions, the third, fourth, and fifth of which were withdrawn, dismissed, and stricken, respectively. Compl. ¶ 278(2)(3)-(5). Accordingly, these petitions serve as bases only for Mr. Mikhail’s state law malicious prosecution claim (Count VI). The first two PFA petitions, by contrast, resulted in PFA orders, both temporary and for defined durations. See, e.g., Compl. ¶¶ 16, 18, 22, 23, 28, 34, 57, 68, 203, 233. The first PFA expired in May 2011, Compl. ¶ 17, and the second expired in or around April 2012, see Compl. ¶¶ 203, 233. The state court refused to expunge the record of them. Compl. ¶ 34. Thus, for immediate purposes, all the PFA orders are final and have expired or otherwise been dismissed, notwithstanding the fact that during their pendency they could have been modified. See 23 Pa. Cons.Stat. Ann. § 6117 (“The
Rooker-Feldman thus applies to Mr. Mikhail’s alleged injuries caused by the first and second PFA orders because all of the four prongs of the doctrine are satisfied. See also, e.g., Walker v. Court of Common Pleas, No. 12-2206,
Because all four elements are present, Rooker-Feldman applies, and it applies, moreover, “even if those challenges allege that the state court’s action was unconstitutional.” Feldman,
The Second Circuit Court of Appeals has explained this aspect of the doctrine in a passage endorsed in Great Western Mining & Mineral Co., see
[A] federal plaintiff cannot escape the Rooker-Feldman bar simply by relying on a legal theory not raised in state court. Suppose a state court, based purely on state law, terminates a father’s parental rights and orders the state to take custody of his son. If the father sues in federal court for the return of his son on grounds that the state judgment violates his federal substantive due-process rights as a parent, he is complaining of an injury caused by the state judgment and seeking its reversal. This he may not do, regardless of whether he raised any constitutional claims in state court, because only the Supreme Court may hear appeals from state-court judgments.
Hoblock,
Mr. Mikhail’s claim that the state court denied him due process by making ex parte decisions does not bring review of those decisions within this Court’s jurisdiction. On this point, the Supreme Court’s explanation in Feldman is instructive:
[I]t is clear that [Respondents’] allegations that the District of Columbia Court of Appeals acted arbitrarily and capriciously in denying their petitions for waiver and that the court acted unreasonably and discriminatorily in denying their petitions in view of its former policy of granting waivers to graduates of unaccredited law schools required the District Court to review a final judicial decision of the highest court of a jurisdiction in a particular case. These allegations are inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions. TheDistrict Court, therefore, does not have jurisdiction over these elements of the respondents’ complaints.
Specifically, then, the following of Mr. Mikhail’s claims and requests for relief are barred:
• “[B]ecause of this [first] PFA, [Mr. Mikhail] was evicted from the marital home ... and banned from seeing his daughter for 2 weeks.... ” Compl. ¶ 16. Although the court later dismissed parts of this PFA relating to child abuse, it was this order, rather than the actions of the Defendants, that harmed Mr. Mikhail.10
• “Judge Haaz dismissed [Mr. Mikhail’s] petition to expunge [the] PFAs without justification and without due process, all in violation of [Mr. Mikhail’s] constitutional rights.” Compl. ¶ 34. This Court lacks jurisdiction to review Mr. Mikhail’s claim of injury arising from Judge Haaz’s order. Nor may it review Judge Haaz’s order in order to “[i]ssue declaratory relief on Expungement of [the] PFAs that were secured through fraud upon the court, and entered in violation of Plaintiffs constitutional rights under the Color of Law.” Compl. at 46.
• The court’s ex parte entry of “PFA orders that were totally inappropriate and unconstitutional.” Compl. ¶ 57. The Rooker-Feldman doctrine bars exactly this type of claim that a state court judgment was erroneous.
• The court’s ordering Mr. Mikhail “to continue [supervised visitations and subjecting] him to the same terms of [a] PFA although it was expired, and without a hearing or due process of law.” Compl. ¶ 68. Mr. Mikhail’s subjection to an extended PFA order is a harm caused by an order that this Court cannot sit to review.
• Mr. Mikhail claims that the Pennsylvania Superior Court’s opinions that upheld the PFA rulings of the Court of Common Pleas “contain[ed] numerous falsehoods and [were] in violation of Plaintiff [sic] constitutional rights.” Compl. ¶ 29; see also Compl. ¶¶ 73-82 (other assignments of error to the Superior Court’s decisions). Inasmuch as Mr. Mikhail is asking this court to review “the erroneous decision of the Superior Court,” Compl. ¶29, Rooker-Feldman makes clear that this Court has no jurisdiction to do so.
• Finally, Mr. Mikhail prays for “[r]e-lief of all orders made in violation of the Law.... Compl. at 46. Rooker-Feldman bars this Court from reviewing Mr. Mikhail’s blanket claim to relief from the state court PFA orders.
Other courts have reached similar conclusions.
In addition, the Court cannot entertain Mr. Mikhail’s plea to “[i]ssue declaratory relief on the Constitutionality of the PFAs in this case.” Compl. at 46. To do so “would require [this Court] to conclude that the state court made an incorrect legal and/or factual determination and would effectively reverse the state decision or void its ruling. This is exactly the type of determination that the Rooker-Feldman doctrine prohibits.” Van Tassel v. Lawrence Cnty. Domestic Relations Sections,
Some additional commentary on this point is necessary, however, because of the distinction between challenging adverse state court decisions themselves and challenging as unconstitutional the statutes on which those decisions rely. See Skinner,
This distinction, in essence, comes down to as-applied challenges versus facial challenges and the difference between “declaring” a state order, or application, of a rule or statute unconstitutional and declaring that rule or statute itself unconstitutional in an abstract sense.
The Tenth Circuit Court of Appeals in Doe v. Pringle, [550 F.2d 596 (10th Cir.1976) ], properly emphasized the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission. We have recognized that state supreme courts may act in a non-judicial capacity in promulgating rules regulating the bar. Challenges to the constitutionality of state bar rules, therefore, do not necessarily require a United States District Court to review a final state court judgment in a judicial proceeding. Instead, the District Court may simply be asked to assess the validity of a rule promulgated in a non-judicial proceeding. If this is the case, the District Court is not reviewing a state court judicial decision. In this regard, 28 U.S.C. § 1257 does not act as a bar to the District Court’s consideration of the case and because the proceedings giving rise to the rule are non-judicial the policies prohibiting United States District Court review of final state court judgments are not implicated. United States District Courts, therefore, have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court’s action was unconstitutional. Review of those decisions may be had only in this Court. 28 U.S.C. § 1257.
Feldman,
But, like the Third Circuit Court of Appeals in another case, the Court “believe[s] that [Mr. Mikhail] is not seeking declaratory relief in the true legal sense, however. See Fed.R.Civ.P. 57; 28 U.S.C. § 2201. [Although Mr. Mikhail] asks that the ... Court ‘declare’ that his constitutional rights were violated[, djeclaratory judgment is inappropriate solely to adjudicate past conduct.” Corliss v. O’Brien,
Moreover in fact, Mr. Mikhail cannot bring a claim for true declaratory relief—i.e., to declare Pennsylvania’s Protection from Abuse Act, 23 Pa. Cons.Stat. Ann. §§ 6101-6122, unconstitutional— against the Defendants he has named. Where judges act as adjudicators, as here, they are not the proper defendants in a § 1983 suit challenging the constitutionality of a statute. Brandon E. ex rel. Listenbee v. Reynolds,
Not all of Mr. Mikhail’s PFA proceedings—based claims are barred by Rooker-Feldman. Of course, any harms caused by Ms. Kahn and her attorneys, such as fraud upon the court or malicious prosecution, for example, are not barred by Rooker-Feldman because they are not caused by any state court judgment (although the fact that they are not barred by Rooker-Feldman does not mean that they survive, as discussed below).
Further, Mr. Mikhail’s 42 U.S.C. § 1983 conspiracy claim is not barred. As
2. Whether Rooker or Younger Applies to Custody Proceedings
If Rooker-Feldman were to apply to the state court custody proceedings in this case, its application would be similar to that outlined above for PFA proceedings-based harms. Those harms flowing from the orders themselves would be barred from consideration here,
Just a year before Marran, in Anthony v. Council,
The Anthony Court reasoned:
Each plaintiff here is under a child support order. Each order requires continual involvement by the New Jersey courts. Under New Jersey law, parents are obligated to provide support until a child is emancipated. Newburgh v. Arrigo,88 N.J. 529 ,443 A.2d 1031 , 1037 (N.J.1982). As such, plaintiffs have been, and will remain, under their child support orders for many years. Throughout the duration of the order, the New Jersey courts are charged with monitoring, enforcing and modifying the child support obligations. See N.J. Stat. Ann. § 2A:17-56.9a (providing for review and modification of child support orders); N.J.R. 5:7-5 (providing for monitoring and enforcement of child support orders, including the institution of contempt hearings if obligors fail to make payments); N.J.R. 5:25-3 (explaining the jurisdiction, duties, powers and responsibilities of Child Support Hearing Officers). As is apparent, the New Jersey courts have performed their delegated functions with respect to plaintiffs’ child support orders.
Plaintiffs contend that, because they are not currently appearing or scheduled to appear in any particular child support hearing, including a contempt hearing, there is no “ongoing” or “pending” proceeding. This argument may carry weight in other types of suits. But given plaintiffs’ specific claims here and the particular nature of child support orders, the argument is unavailing.
Id. (footnotes omitted).
Of course, it cannot be gainsaid that where custody proceedings are actually underway, Younger rather than Rook-er applies (as opposed to when they are
Indeed, the Pennsylvania Superior Court has repeatedly stated that
[c]hild custody orders are temporary in nature and always subject to change if new circumstances affect the welfare of a child. The Commonwealth has a duty of paramount importance, to protect the child’s best interests and welfare. To that end, it may always entertain an application for modification and adjustment of custodial rights.
Arnold v. Arnold,
Furthermore, the proposition that a federal court considering whether Rooker-
For these reasons, and because Third Circuit case law does not explicitly state that Rooker-Feldman, rather than Younger abstention, must apply to child custody proceedings,
B. Younger Abstention
As the discussion above suggests, child custody proceedings are a strong candidate for Younger abstention. Younger abstention is not a jurisdictional principle, but rather a doctrine first announced in the Supreme Court’s Younger v. Harris opinion, in the context of preventing federal courts from interfering with ongoing state criminal proceedings. As such, it is grounded in “Our Federalism,” or the concept of “a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger,
These exceptional circumstances are present in only three types of cases: “ongoing state criminal prosecu
The Third Circuit Court of Appeals endeavors to demarcate the metes and bounds of this “elusive” doctrine by explaining that for it to apply
(1) there must be ongoing state proceedings that are judicial in nature; (2) the state proceedings must implicate important state interests; and (3) the state proceedings must afford an adequate opportunity to raise federal claims. Even if the necessary three predicates exist, however, Younger abstention is not appropriate if the federal plaintiff can establish that (1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.
Anthony,
1. Ongoing State Proceedings
First, as discussed above, the Kahn-Mikhail child custody proceedings are ongoing, and so Younger’s first prong is satisfied. See supra subsection III.A.2. As the Anthony Court explained, New Jersey child support proceedings form part of “a comprehensive and fluid system designed to address the ever-present and ever-changing realities of child support orders” such that, for purposes of Younger analysis, they “must be viewed as a whole, rather than as individual, discrete hearings.”
The language of the statutory sections is plain and unambiguous; the words allow for modification of any existing custody order any time the best interest of the child requires such.... [T]hough we share the Superior Court’s concern over the possibility of spurious petitions for modification from partial to shared custody orders, we must be mindful of the dynamism of the process of growth and maturity of children, as well as the circumstances of their parents’ lives, where the only constant is change. These are factors which may require continuing review of the best interest of the child, anddemand a degree of flexibility such as would allow the court the discretion to make necessary changes when the best interest of the child require such---Consequently, we hold that a petition for modification of a partial custody to shared custody order requires the court to inquire into the best interest of the child regardless of whether a “substantial” change in circumstances has been shown.
Karis v. Karis,
2. Important State Interests in Custody Proceedings
Second, there can be no quarrel with the notion that child custody proceedings implicate important state interests. Because “[f]amily relations are a traditional area of state concern,” Moore v. Sims,
What Mr. Mikhail
essentially wants [is] wholesale federal intervention into a state dispute. He seeks the vacation of existing orders and a federal injunction directing future litigation. Were the District Court to grant this relief, it could “readily be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles.” Huffman v. Pursue, Ltd.,420 U.S. 592 , 604,95 S.Ct. 1200 ,43 L.Ed.2d 482 (1975).
Lazaridis,
3. Adequate Opportunity to Raise Federal Claims
Finally, there is no suggestion that Mr. Mikhail could not have raised his constitutional claims in the state court proceedings. “[T]he burden on this point
Mr. Mikhail was and remains free to raise the substance of his claims for injunctive relief before the state court sitting to address custody issues. However, it is quite likely that he could not raise claims for damages, and so these claims will not be barred by Younger, and will be considered later in this Opinion under another challenge. There is no bar in custody proceedings to a parent’s raising his federal constitutional rights. In fact, Pennsylvania courts have entertained such claims in custody cases. See, e.g., Schmehl v. Wegelin,
4. No Exception to Younger Applies Here
One Younger-related question remains.
. Even when these [three Younger ] requirements are met, it is inappropriate to abstain ... if the plaintiff establishes that “(1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist, such as proceedings pursuant to a flagrantly unconstitutional statute, such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.” Schall v. Joyce,885 F.2d 101 , 106 (3d Cir.1989) (citing Middlesex County Ethics Comm.,457 U.S. at 435 ,102 S.Ct. 2515 ).
Getson v. New Jersey,
First, it is apparent that there are no sufficient allegations (let alone a showing) of bad faith here. It is not enough that a private litigant undertakes the state court proceedings in bad faith. Even leaving to one side the fact that it is implausible that a mother’s desire, such as Ms. Kahn’s, to pursue a divorce and seek custody of her child could constitute actions taken in bad faith, the bad faith exception contemplates a situation in which the state court proceeding in question is “only one of a series of repeated prosecutions to which [federal plaintiff] will be subjected,” Younger,
The bad faith doctrine is narrow in still other ways relevant here. For instance, “[a] prosecution or proceeding is conducted in bad faith for abstention purposes when it is brought without hope of success,” Getson,
Nor is there enough here to suggest that any extraordinary circumstances exist. “The Supreme Court has stated that ‘such circumstances must be “extraordinary” in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely.in the sense of presenting a highly unusual factual situation,’ ” such that the state court is “ ‘incapable of fairly and fully adjudicating the federal issues before it.’ ” Getson,
As the First Circuit Court of Appeals has further explained, “the baseline showing of bias necessary to trigger Younger’s escape mechanism requires the plaintiff to offer some evidence that abstention will jeopardize his due process right to an impartial adjudication.” Brooks,
Mr. Mikhail’s allegations do not satisfy any of these tests. As discussed in further detail below, see infra subsection III.D.2, his allegations of conspiracy with or bribery of the defendant judges are wholly conclusory. In fact, some of his specific allegations show that at least some of the judges ruled in his favor on multiple instances, as by dismissing his child from the order resulting from the first PFA petition, dismissing the third, fourth, and fifth PFA petitions, and (it seems, in all likelihood), discharging Dr. Lustig from the engagement. Nor is it enough merely to allege, without any factual support, that the “Judges engaged in an egregious discrimination against [him] in a divorce court because of race, gender, [and] religion,”
Mr. Mikhail has not alleged any way in which any of the judges “stands to gain or lose depending” on the outcome of the state court proceedings, “nor has he revealed the existence of any particularized interest in the outcome of his litigation that might tend to undermine the [Judges’] impartiality.” Brooks,
Instead, Mr. Mikhail must offer concrete allegations that “any individual [Judge] is actually biased or has prejudged his case.” Brooks,
To find either Younger exception satisfied here would be to allow that exception to “swallow the Younger rule.” Schlagler,
Although Younger abstention is required, it remains to be seen which of Mr. Mikhail’s custody and/or divorce-based claims as he has framed them are actually barred by Younger.
On the one hand, Mr. Mikhail’s requests for injunctive and declaratory relief are barred. “The Younger doctrine is as applicable to suits for declaratory relief as it is to those for injunctive relief; the Supreme Court held in a companion case to Younger that Younger’ss policy would ‘be frustrated as much by a declaratory judgment as it would be by an injunc
On the other hand, Younger does not apply to the money damages claims in this case, because regardless of whether it can ever be applied to damages claims,
Both because Younger does not apply to the damages claims in this case and because both Younger and Rooker-Feldman do not apply to claims arising from alleged conspiracies with the defendant judges, the remainder of this Opinion focuses on several other grounds, some mutually supportive and some alternative, for dismissing the remainder of Mr. Mikhail’s Complaint.
B. Claims Purportedly Brought Under 18 U.S.C. § 242 (Parts of Counts I & II)
As part of his federal claims, in addition to bringing suit under § 1983, Mr. Mikhail
Charitably construed, Mr. Mikhail’s arguments seem to be that (1) he, as a private individual, can prosecute violations of § 242, see Resp. to Kahn & Fellheimer ¶ 14(c) (Docket No. 27) (“And because crimes are involved, Plaintiff is bringing his Complaint before a Federal Judge .... ”); (2) he can compel Pennsylvania Attorney General Kathleen Kane “to join this case as Involuntary Plaintiff,” Resp. to Kahn Fellheimer ¶¶ 14(d), 35-41; and (3) there is a civil cause of action under § 242, see Compl. ¶ 220-21, 240-41 (contending that “Defendants are liable to Plaintiff for their violations of’ § 242 and thus that he is entitled “to an award of punitive damages”). Although Mr. Mikhail’s desire to charge the Defendants criminally is understandable on some intuitive plane, for the reasons explained below, none of these contentions has any merit, and to the extent that Counts I and II purport to assert claims under 18 U.S.C. § 242, they are dismissed with prejudice.
First: In federal court, at least, a private individual cannot prosecute a criminal action; not only do federal criminal laws provide no basis for such prosecution, but under Article III of the Federal Constitution, federal courts lack jurisdiction over such suits. As the Supreme Court has explained, “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution .... a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Linda R.S. v. Rickard D.,
None of this discussion of what the law is today means that Mr. Mikhail’s desire to prosecute the Defendants criminally is beyond comprehension. As this Court has observed, “Prosecution by public officials was not always the norm. ‘Under the ancient English system, criminal prosecutions were instituted at the suit of private prosecutors, to which the King lent his name in the interest of good peace and good order of society.’ ” U.S. ex rel. Nagy v. Patton, No. 11-mc-0267,
But private prosecutions receded as “the prosecutorial function was increasingly assumed by public officials.” Rehberg v. Paulk, — U.S. -,
As a result of that evolution, it is today beyond all reasonable doubt that “[t]he prosecution of violations of federal criminal law in federal court is a function of the federal government, not private parties,” Nagy,
Second, a principle related to and consistent with the first, that individuals do not have a justiciable interest in prosecutions, is that federal prosecutions are “brought in the name of the United States as sovereign” and that the federal “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” Nixon,
Third, and finally, Mr. Mikhail also cannot bring a civil claim under 18 U.S.C. § 242 because § 242 creates no private right of action and none can be implied. Carpenter v. Ashby,
As there is no meritorious argument under any theory that would give Mr. Mikhail the authority to bring suit, criminal or civil, under 18 U.S.C. § 242, his claims in
C. Section 1983’s Statute of Limitations
Mr. Mikhail’s § 1983 claims against Dr. Lustig, Judges Arthur Tilson, Emanuel Bertin, and Rhonda Lee Daniele, and the Superior Court Judges, Judges Mary Jane Bowes, Christine L. Donohue, and Judith Ference Olson, must be dismissed because the statute of limitations applicable to those claims has run its course.
Dr. Lustig was appointed “to perform a custody evaluation” in December 2009. Compl. ¶ 17. Mr. Mikhail alleges that Dr. Lustig “got corrupted and bribed by [Ms. Kahn],” Compl. at 11, and that, in exchange for $12,500 paid as a bribe — so interpreted, it seems, because in comparison Mr. Mikhail paid Dr. Lustig only $6500 — Dr. Lustig conspired with Ms. Kahn to incriminate Mr. Mikhail, Compl. at 10. Mr. Mikhail also alleges that he discovered Dr. Lustig’s conspiracy with Ms. Kahn from the file that Judge Carluccio ordered released, and that he thus “filed a Petition for Contempt on January 7, 2011 showing that the PFA was secured through Fraud upon the Court.” However, Dr. Lustig departs the saga in December 2010, when “Judge Carluccio entered an order ... that Dr. Lustig shall release his file and records and cease and desist from treating Child.” Compl. ¶ 30.
Mr. Mikhail’s allegations against Judges Tilson and Bertin are scanty and all relate to occurrences in December 2009 or early 2010. See Compl. ¶¶ 9, 16, 47. Those against Judge Daniele extend no later than early 2010. See Compl. ¶¶ 17-19, 22. As is evident from the relevant Pennsylvania Superior Court docket, of which this Court takes judicial notice,- the Superior Court Judges, whom Mr. Mikhail charges solely with violating his rights by erroneously deciding his appeal, see Compl. ¶¶29, 73-82, rendered their opinion in December 2010 and remitted the case in February 2011.
Similarly, any allegations of conspiracy between Dr. Lustig, Ms. Phillips, and Ms. Kahn, for purposes of § 1983 and state action (discussed infra), must be discounted because they do not involve any of the other Defendants and are otherwise barred by § 1983’s statute of limitations.
D. State Action: Claims Against the Private Defendants Under 42 U.S.C. § 1983 (Counts I & II)
Mr. Mikhail’s § 1983 claims against several of the Defendants — which are not barred by Rooker-Feldman because they are not for harms resulting from state court judgments, or by Younger, because it does not bar claims for monetary damages — must nonetheless be dismissed for lack of state action. The ostensibly private parties are Jolie Kahn, Esquire (the child’s mother, Mr. Mikhail’s soon-to-be-ex-wife, and his opponent in the state court proceedings), Alan Fellheimer, Esquire (Ms. Kahn’s attorney), and Dorothy Phillips, Esquire (Ms. Kahn’s former attorney, and now deceased).
A plaintiff must prove two distinct elements to prevail on a § 1983 claim. He must not only “allege the violation of a
Thus, “[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ ” Rendell-Baker,
The “fair attribution” question, in turn, has two components.
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by aperson for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions •with the community surrounding them.
Lugar,
But “[t]he two principles diverge when the constitutional claim is directed against a party without such apparent authority, i.e., against a private party.” Id. Because Ms. Kahn and her attorneys are not state officials like the defendant judges, they are not clearly state actors, and closer analysis of each of the two “fair attribution” steps is required.
For a private party to be characterized as a “state actor,” the Supreme Court has explained, it is not enough that he acted “pursuant to [a] statute, without something more.” Id. at 939,
[T]hat “something more” which would convert the private party into a state actor might vary with the circumstances of the case.... [T]he [Supreme] Court has articulated a number of different factors or tests in different contexts: e.g., the “public function” test; the “state compulsion” test; the “nexus” test; and in the case of prejudgment attachments, a “joint action test.”
Id. (citation and footnote omitted). Because the inquiry is “necessarily fact-bound,” id., the Third Circuit. Court of Appeals has recategorized the inquiries, but regardless of the label they are 56 given, only one inquiry is relevant, given Mr. Mikhail’s allegations: ‘“whether the private party has acted with the help of or in concert with' state officials,’ a test also known as the ‘joint action test.’ ” Romich v. Sears Holding Corp., No. 12-5383,
Mr. Mikhail raises two arguments regarding why several of those Defendants who are ostensibly private parties are in fact state actors. First, he contends, the attorneys he has named as Defendants are state actors simply because they are attorneys and, therefore, are “officers of the judiciary,” who, “clothed with the authority of State Law” by their licenses to practice law, are thereby state actors for purposes of 42 U.S.C. § 1983. Resp. to Kahn & Fellheimer ¶ 15. Second, he pursues a
Under no configuration of the joint action theory — those Mr. Mikhail enlists and a third he has not — can Mr. Mikhail sue the defendant attorneys, or any of the other private party Defendants, under § 1983.
1. Attorneys Are Not State Actors Solely Because They Are Attorneys
First, Mr. Mikhail argues, “[w]e all should agree that attorneys in private practice are not state employees but are clothed with the authority of state law.” Resp. to Kahn & Fellheimer ¶ 15(d). Thus, he argues that the defendant attorneys, simply because they are attorneys, are also, therefore, state actors acting under color of law.
This contention, tried before, has been squarely rejected by the Supreme Court. “It is often said that lawyers are ‘officers of the court.’ But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor ‘under color of state law' within the meaning of § 1983.” Polk County v. Dodson,
[although states license lawyers to practice, and although lawyers are deemed “officers of the court,” this is an insufficient basis for concluding that lawyers act under color of state law for the purposes of 42 U.S.C. § 1983. Liability under 42 U.S.C. § 1983 cannot be predicated solely on the state’s licensing of attorneys. Participation in a highly regulated profession does not convert a lawyer’s every action into an act of the State or an act under color of state law.
Henderson v. Fisher,
2. Mr. Mikhail’s Allegations of Conspiracy Are Insufficient to Establish Joint Action
Because the defendant attorneys are not treated as state actors for purposes of the Constitution or § 1983 solely because they are attorneys, they “may be held liable under section 1983 only if they have engaged in ‘joint activity’ with” those Defendants who in fact are state actors. Hoai v. Vo,
“[T]o properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred.” Great W. Mining & Mineral Co.,
Both the Supreme Court and the Third Circuit Court of Appeals have written further on the requirements for cases in which a plaintiff alleges conspiracy with a judge. As the Supreme Court has observed, “[M]erely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.” Dennis v. Sparks,
It is important to distinguish here between the potential “appearance of impropriety,” as when a judge “approaches] a party for whom he or she has just ruled to discuss the possibility of working for that party,” from a meeting of the minds sufficient to permit a § 1983 claim against that party. Id. at 179. Without a specific allegation of an agreement, such an allegation
The pleading requirements for conspiracy are thus heightened. See Great W. Mining & Mineral Co.,
Here, like the pleading in Great Western Mining & Mineral Co., Mr. Mikhail’s “complaint contains no similar allegations of specific conduct by the non-judicial actors that caused the judges to enter into an unlawful conspiracy.”
• Judges Bertin, Tilson, and Daniele met ex parte with Ms. Kahn, entered unconstitutional PFA orders, one of which caused Mr. Mikhail to be evicted from his home, and awarded Ms. Kahn full custody of the child. See Compl. ¶¶ 16-19, 47, 56-59.
• Judge Carluccio required Mr. Mikhail’s visits with his daughter to be supervised and limited in duration; entered a PFA order contrary to Pennsylvania precedent; wrote an opinion containing false facts; ordered Mr. Mikhail not to take thechild out of Pennsylvania; postponed decision on Mr. Mikhail’s petition; required Mr. Mikhail to use the Kids First service for supervision despite knowing that it was corrupt; forced Mr. Mikhail to continue to abide by an expired PFA without a hearing or due process; did not award Mr. Mikhail alimony pendente lite for over two years; ordered Mr. Mikhail’s marital home to be sold; ordered Mr. Mikhail to pay money to Ms. Kahn; and dismissed three of Mr. Mikhail’s petitions. See Compl. ¶¶ 23-32, 52-53, 60-72.
• Judge Haaz dismissed Mr. Mikhail’s petitions without consideration, long after their filing; dismissed Mr. Mikhail’s subpoenas attempting to show Ms. Kahn’s fraud upon the court; disregarded evidence and relied on an ex parte meeting with a therapist; entered a custody order in favor of Ms. Kahn “only because Judge Haaz is Jewish and he was protecting Ms. Kahn, who is Jewish,” Compl. ¶ 88; and disregarded the child’s best interests and right to be represented by a child advocate at a hearing, see Compl. ¶¶ 33-34, 43-45, 83-90.
• Judge Page harassed, intimidated, and threatened Mr. Mikhail and told him to “shut up” at a hearing and did not schedule a hearing on one of Mr. Mikhail’s petitions. See Compl. ¶¶ 91-96.
• Judges Bowes, Donohue, and Olson, of the Pennsylvania Superior Court, disregarded evidence and precedents in their decision and opinion, which contained falsehoods. Compl. ¶¶ 29, 73-82.
Accepted as true, the factual content of these allegations may establish the “appearance of impropriety,” Great W. Mining & Mineral Co.,
In sum, Mr. Mikhail has failed to plead facts that would suggest to any reasonable person that the defendant judges conspired with any of the private Defendants, and so “[tjhere is no cause of action under [§ 1983] in this case where the state did no more than furnish a forum to private parties and had no interest in the outcome.”
Finally, Mr. Mikhail also cannot base his claim that Ms. Kahn and her lawyers are state actors on the suggestion that any of them conspired with the court-appointed Defendants (Drs. Lustig and Pisa and Ms. Sobel). For one, not only are any of Mr. Mikhail’s allegations of conspiracy with Dr. Lustig — if they are otherwise sufficient — ' confined (within the bounds of plausibility) to conspiracy solely with Dr. Lustig (whom the court dismissed from the underlying proceedings), as explained above, see supra Section III.C, those claims are also barred by § 1983’s statute of limitations, and thus, too, are any § 1983 claims against Ms. Kahn and her attorneys, even if otherwise appropriate. Second, Mr. Mikhail fails to state a § 1983 claim against Dr. Pisa; a fortiori he cannot establish that Dr. Pisa conspired with Ms. Kahn and her attorneys to deprive him of his constitutional rights. Mr. Mikhail’s conclusory allegations with regard to Dr. Pisa fail to offer any specific factual content from which this Court could infer a conspiracy.
Third, Mr. Mikhail’s allegations against Ms. Sobel are also inadequate to make out a claim of conspiracy between her and Ms. Kahn and Ms. Kahn’s lawyers. Mr. Mikhail avers that Ms. Sobel, “as she is Jewish and feminist, conspired with Ms. Kahn in order to incriminate [him] and to secure for Ms. Kahn the custody of’ their child, Compl. at 19, and that Ms. Kahn’s former attorney, Ms. Phillips, communicated ex parte with Ms. Sobel, Compl. ¶ 127. Mr. Mikhail’s additional recitals that Ms. Sobel “insulted [him] in his faith” and “distorted facts and reported false testimonies,” Compl. at 19, including by “[s]ubmitting a custody evaluation report containing falsehoods and lies,” Compl. ¶ 169, are not enough to state a claim even against her alone, see, e.g., Johnson,
For these reasons, Mr. Mikhail’s § 1983 claims against Ms. Kahn, Mr. Fellheimer, and the estate of Ms. Phillips must be dismissed. Although amendment of the Complaint likely would be futile, the Court will dismiss these claims without prejudice in the unlikely event that Mr. Mikhail can in fact plead in good faith any specific allegations of conspiracy.
3. There Is No Other Basis for Finding Joint Action
Finally, the Court will sua sponte raise and dispose of one further joint action theory in order to clarify why Mr. Mikhail cannot proceed with a § 1983 claim against the private parties he has named. The issue here is whether, in the absence of sufficient allegations to establish a conspiracy between judges and private litigants and the litigants’ attorneys, allegedly wrongful conduct in the filing and prosecution of protection from abuse orders may
In Edmonson, the Supreme Court held that “a private litigant ... must be deemed a government actor in the use of peremptory challenges.”
Although most aspects of the Edmonson Court’s “principles of general application” are inapposite or otherwise unhelpful in answering the present question regarding litigants’ and attorneys’ filing of protection from abuse petitions, a close reading of Edmonson and Lugar reveals that the true essence of the Court’s inquiry, and the aspect most informative here, is whether and when the state automatically throws its weight behind the private litigants, without exercising any discretion or judgment. The Edmonson Court reasoned that “[w]hen a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been excused.” Id. at 623-24,
[A] private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the “final and practical denial” of the excluded individual’s opportunity to serve on the petit jury. Virginia v. Rives, 100 U.S. 813 , 322,25 L.Ed. 667 (1880). Without the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court “has not only made itself a party to the [biased act], but has elected to place its power, property and prestige behind the [alleged] discrimination.” Burton v. Wilmington Parking Authority, 365 U.S. [715], at 725,81 S.Ct. 856 [6 L.Ed.2d 45 (1961)]. In so doing, the government has “create[d] the legal framework governing the [challenged] conduct,” National Collegiate Athletic Assn. [v. Tarkanian ], 488 U.S. [179], at 192,109 S.Ct. 454 [102 L.Ed.2d 469 (1988) ], and in a significant way has involved itself with invidious discrimination.
Edmonson,
This crucial point is also apparent, although in a different context, in Lugar. There, the Supreme Court held that, “[w]hatever may be true in other contexts,” private parties became state actors for purposes of § 1983 “when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute.”
prejudgment attachment procedure [that] required only that [a petitioner] allege, in an ex parte petition, a belief that [the named respondent] was disposing of or might dispose of [the petitioner’s] property in order to defeat his creditors. Acting upon that petition, a Clerk of the state court issued a unit of attachment, which was then executed by the County Sheriff. This effectively sequestered [the named respondent’s] property, although it was left in his possession. Pursuant to the statute, a hearing on the propriety of the attachment and levy was later conducted.
Id. at 924-25,
Lugar also spelled out two other crucial principles. For one, it explicitly disclaimed that its extension of state action to private actors, such that private actors could be sued under § 1983, applied beyond the prejudgment attachment context, although it did not give the apparent reason, gleaned above. See id. at 939 n. 21,
Second, the Lugar Court pointed out that a plaintiff has no § 1983 cause of action against the private party who, instead of acting pursuant to the delegation of or opportunity to invoke state authority, “misuse[s] or abuse[s] the statute.” Id. at 942,
“Count two alleged that the deprivation of property resulted from respondents’ “malicious, wanton, willful, opressive [sic], [and] unlawful acts.” By “unlawful,” petitioner apparently meant “unlawful under state law.” To say this, however, is to say that the conduct of which petitioner complained could not be ascribed to any governmental decision; rather, respondents were acting contrary to the relevant policy articulated by the State. Nor did they have the authority of state officials to put the weight of the State behind their private decision, i.e., this case does not fall within the abuse of authority doctrine recognized in Monroe v. Pape,365 U.S. 167 ,81 S.Ct. 473 ,5 L.Ed.2d 492 (1961). That respondents invoked the statute withoutthe grounds to do so could in no way be attributed to a state rule or a state decision. Count two, therefore, does not state a cause of action under § 1983 but challenges only private action.”
Id. at 941,
What is evident from this examination of Edmonson and Lugar, then, is that an otherwise private actor may become a state actor where he follows — but not when he abuses — state-created procedures that either delegate the State’s authority to him or allow him to invoke it in such a way that agents of the State automatically (i.e., without exercising judgment) exercise it on his behalf. The lower courts have made similar observations in reaching the conclusion that
“Plaintiffs reliance on Lugar and its progeny is also misplaced because Lu-gar’s “joint action” test is inapplicable to cases in which a private party is alleged to be a state actor merely because it brought suit and invoked the independent judgment of the state judiciary. Lugar does not contain even a passing reference to the possibility that a neutral state judge could be considered a joint actor with a private party.”
Smith,
On the basis of such a distinction, for instance, the Tenth Circuit Court of Appeals has repeatedly “held that a private litigant’s use of state court proceedings to obtain an ex parte temporary restraining order does not satisfy the color of law requirement of § 1983.” Yanaki v. Iomed, Inc.,
The Third Circuit Court of Appeals’ case law is consistent with these distinctions, principles, and conclusions. For instance, in cases involving the claim that store employees, by detaining suspected shoplifters, became joint actors with the police, and therefore state actors, the test asks whether “the police ha[d] a pre-arranged plan with the store” pursuant to which they would act at the employees’ behest, “without independently evaluating the presence of probable cause.” Cruz v. Donnelly,
Moreover, the Supreme Court’s statement in Dennis v. Sparks that “merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge,”
Indeed, an appreciable difference exists, in terms of ensuring the truthful allegations of abuse, between a review of the verified allegations listed in a PFA petition and the conduct of an ex parte hearing. A person may blithely execute a petition inflating claims of abuse. On the other hand, the process of appearing in court before a judge and swearing to testify truthfully would necessarily give one pause about leveling exaggerated or specious allegations against another person. Further, in-person examination of the petitioner during a hearing permits the trial court to inquire of facts and circumstances beyond the allegations that the victim delineated in the petition. It is, in practice, impossible for a trial court to discern from its review of preprinted PFA form whether a petitioner has an improper motive, such as retaliation or to gain an advantage in another proceeding. In addition, as the trial court cogently highlighted in Boyle v. Boyle, [12 Pa. D. & C.3d 767 (Ct.Com.Pl.1979) ], in-person hearings enable trial courts to observe the presence or absence of physical evidence of violence such as scratches, wounds, and bruises.
Finally, credibility determinations are crucial components to any trial proceeding. The trial court’s ability to view the petitioner’s facial expressions and mannerisms during the ex parte hearing is critical to an ability to render its credibility determinations. For these reasons, when compared to the requirement that an alleged victim appear before a trial court during an exparte proceeding, the practice of relying upon a PFA petitioner’s verification and acknowledgment that any false statements are subject to the penalties of [perjury], is inadequate protection against fabricated allegations of abuse. That shortcoming is particularly apparent in light of the only perceived benefit of in camera review, judicial economy. To be sure, assuming that the trial court convenes an ex parte hearing upon its receipt of the PFA petition ..., the ex parte hearing would protect the respondent’s due process rights without delaying the immediate relief the petitioner seeks.
Ferko-Fox v. Fox,
Finally, Mr. Mikhail’s allegations and arguments, to the extent that they remain, would seem really to be a claim that Ms. Kahn and her attorneys have engaged in misconduct before the state tribunals. But a PFA petitioner’s misuse of the PFA procedures is not actionable under § 1983, pursuant to the Supreme Court’s clear statement to that effect in Lugar. The allegations here are really no more than claims that Ms. Kahn and other otherwise private party Defendants committed fraud upon the Pennsylvania courts in terms of what they stated to be facts in the PFA and custody proceedings. Setting to one side the logical fact that fraud upon a court would seem to preclude conspiracy with the court, the Court notes that the Pennsylvania Protection from Abuse Act provides that “[a] person who knowingly gives false information to any law enforcement officer with the intent to implicate another under [the Protection from Abuse Act] commits an offense under 18 Pa.C.S. § 4906 (relating to false reports to law enforcement authorities).” 23 Pa. Cons.Stat. Ann. § 6106; see id. § 6122 (“Nothing in this chapter shall be construed to preclude an action for wrongful use of civil process pursuant to 42 Pa.C.S. Ch. 83 Subch. E (relating to wrongful use of civil proceedings) or criminal prosecution for a violation of 18 Pa.C.S. Ch. 49 (relating to falsification and intimidation).”). In other words, when a PFA petitioner commits fraud upon the court, she acts in violation of state law, and her action can thus hardly be said to be attributable to the State. See Lugar,
E. Failure to State a Claim
Mr. Mikhail’s claims against several of the Defendants must be dismissed because
1. Mr. Mikhail Has Failed to State a Claim Against Either Sheila Dugan or Chip Minto
Mr. Mikhail fails to state a cause of action against either Sheila Dugan or Chip Minto.
Mr. Mikhail has leveled even fewer allegations against Mr. Minto — just the same three numbered points conclusorily asserting that Mr. Minto “conspired with Ms. Kahn in order to inflict harm” on Mr. Mikhail. Compl. ¶ 180-182. A fortiori any claims against Mr. Minto must be dismissed without prejudice.
2. Mr. Mikhail Has Failed to State a Claim Against Preston Findlay
For several reasons, Mr. Mikhail also fails to state a cognizable claim for relief against Mr. Findlay, counsel for the Missing Children Division of the National Center for Missing and Exploited Children (“NCMEC”), a nonprofit organization that receives congressional funding.
Although the Court acknowledges that pro se complainants cannot be held to the exacting standards of artful pleading as may be applied to learned counsel, Mr. Mikhail’s Complaint fails to put Mr. Find-lay (or the Court) on notice of even the most ephemeral nature of Mr. Mikhail’s claims against Mr. Findlay. Federal Rule of Civil Procedure 8(a) requires a complaint to include “ ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Leatherman v. Tarrant Cnty. Narc. Intel. & Coordination Unit,
But Mr. Mikhail has also failed to plead Mr. Findlay’s supposed involvement in a conspiracy with any of the required specificity, as discussed above, see swpra subsection III.D.2. Instead, he offers the mere conclusory allegation that Mr. Findlay “conspired with Ms. Kahn to inflict harm to Plaintiff,” Compl. at 30, without, “even,” any “ ‘basic facts’ in support of his allegation that [Mr. Findlay] worked ‘in collusion’ with [Ms. Kahn],” Albrecht,
But the Court need not accept Mr. Mikhail’s characterizations of Mr. Findlay’s affidavit, and not only because they are mere conclusions, but also because the Court can examine the affidavit for itself to determine whether Mr. Mikhail’s allegations are entitled to the presumption of truth. Although Mr. Mikhail neglected to attach the affidavit to his Complaint, because Mr. Findlay attached it in his Motion to Dismiss (Docket Nos. 39, 39-3) and Mr. Mikhail does not contest the affidavit’s authenticity in his Response, see Resp. to Findlay Mot. Dismiss ¶4 (Docket No. 40) (“It is true that Mr. Findlay provided a lone four-page affidavit .... ”), the affidavit comes properly before the Court. See Pension Ben. Guar. Corp. v. White Consol. Indus., Inc.,
Accordingly, because Mr. Mikhail concedes that this affidavit constitutes the only means by which Mr. Findlay harmed him, and because, regardless, Mr. Findlay likely has immunity for his submission of the affidavit, any claims against Mr. Find-lay are dismissed with prejudice because amendment would be futile. See Resp. to Findlay Mot. Dismiss ¶ 4 (“It is true that Mr. Findlay provided a lone four-page affidavit, but it is not the quantity of affidavits or the length of them that matter but what they contain. Mr. Findlay caused harm to Plaintiff and violated his constitutional rights with this lone document as described in the Complaint.”).
Mr. Mikhail’s claims against several other Defendants could also be dismissed for failure to state a claim. For instance, he does not state a claim against Dr. Pisa,
F. Immunities and Capacities
To the extent that any federal claims for damages or injunctive relief against the defendant judges or the court-appointed Defendants, for their actions in their court-appointed roles, survive Rooker-Feldman, Younger abstention, and the other defenses discussed above, these Defendants have absolute immunity from Mr. Mikhail’s claims which requires dismissal of the claims with prejudice.
1. Absolute Judicial Immunity from Suit for Monetary Damages
The defendant judges assert that they have absolute immunity from money damages. Mr. Mikhail contests this immunity. He claims that judicial immunity for misconduct and fraudulent activities violates his constitutional rights, and he also seems
Judges are absolutely “immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Supreme Court of Pa.,
Neither exception can be argued credibly here. All of the judges’ acts that Mr. Mikhail challenges took place in the PFA, custody, and divorce proceedings. Even if they take place ex parte and without notice or a hearing, acts may still be judicial in nature. Stump v. Sparkman,
- Mr. Mikhail’s allegations of bad faith and conspiracy, even if true, would not deprive the judges of this immunity. See,
For these reasons, Mr. Mikhail’s damages claims against the judges brought pursuant to § 1983 are dismissed with prejudice. See also, e.g., Shahin v. Darling,
2. Judicial Immunity from Injunctive Relief and Adequacy of Remedies at Law
Mr. Mikhail’s claim for injunctive relief against the judges must also fail. As the Third Circuit Court of Appeals has explained:
In 1996, Congress amended 42 U.S.C. § 1983 to provide that “injunctive relief shall not be granted” in an action brought against “a judicial officer for an act or omission taken in such officer’s judicial capacity ... unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; Bolin v. Story,225 F.3d 1234 , 1242 (11th Cir.2000) (explaining that the amendment applies to both state and federal judges). Because Azubuko has not alleged that a declaratory decree was violated or that declaratory relief is unavailable, and because the injunctive relief sought by Azubuko does not address the actions of Judge Royal other than in his judicial capacity, his claim for injunctive relief is barred.
Azubuko,
As already discussed at length above, Mr. Mikhail not only can appeal PFA and custody judgments against him (or could have), but, as his allegations themselves indicate, he has done so. His adequate remedies at law are yet a further reason that his § 1983 claims against the judges must be dismissed with prejudice.
3. Absolute Quasi-Judicial Immunity for the Court-Appointed Defendants
Mr. Mikhail also brings claims against Drs. Lustig and Pisa and Ms. Sobel. As discussed above, the Court is dismissing with prejudice the § 1983 claims against Dr. Lustig because the statute of limitations has run, see supra Section III.C. The Court now also dismisses with prejudice any damages claims under § 1983 against Dr. Pisa and Ms. Sobel because they have absolute quasi-judicial immunity for their acts pursuant to their court-appointed roles. Further, to the extent that Mr. Mikhail’s claims under § 1983 for injunctive relief against Dr.
The Third Circuit Court of Appeals explained the basis of absolute immunity for officials performing judicial functions in Williams v. Consovoy,
While § 1983 makes no mention of an immunity defense, an official is immune from a § 1983 suit if she was “accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871.” Malley v. Briggs,475 U.S. 335 , 340,106 S.Ct. 1092 ,89 L.Ed.2d 271 (1986). Nevertheless, even if an official did not enjoy absolute immunity at common law, she may still be entitled to absolute immunity if she performs “special functions” that are analogous to those functions that would have been immune from tort actions at the time Congress enacted § 1983. Hughes v. Long,242 F.3d 121 , 125 (3d Cir.2001) (citing Butz v. Economou,438 U.S. 478 , 506, 508,98 S.Ct. 2894 ,57 L.Ed.2d 895 (1978)). This immunity “was and is considered necessary ‘to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.’ ” McArdle v. Tronetti,961 F.2d 1083 , 1084 (3d Cir.1992) (Alito, J.) (quoting Butz,438 U.S. at 512 ,98 S.Ct. 2894 ). Accordingly, absolute immunity attaches to those who perform functions integral to the judicial process. Burns v. Reed,500 U.S. 478 , 484,111 S.Ct. 1934 ,114 L.Ed.2d 547 (1991).
Under this “functional” approach, courts look to the nature of the functions being performed by the actor in question and evaluate the effect that exposure to liability would have on an appropriate exercise of that function. Hughes,242 F.3d at 125 . Applying this approach, courts conclude that individuals who perform investigative or evaluative functions at a governmental adjudicative entity’s request to assist that entity in its decisionmaking process are entitled to absolute immunity. See McArdle,961 F.2d at 1085 (psychiatrist who performed evaluation of prisoner at court’s request entitled to absolute immunity); Morstad v. Dep’t of Corr. & Rehab.,147 F.3d 741 , 744 (8th Cir.1998) (psychologist who performed evaluation of sex offender at court’s request entitled to absolute immunity).
Applying this “functional” approach, we conclude that [defendant psychologist appointed by the New Jersey State Parole Board] performed a function integral to the judicial process and is therefore situated similarly to the mental health professionals in McArdle and Morstad to whom absolute immunity from § 1983 claims attached. Like those individuals, Gibbons performed an evaluation and presented his findings to the adjudicative Parole Board, which then relied on his report and expertise in reaching its ultimate decision to deny Williams parole. Like the District Court, we believe that by preparing his report at the Parole Board’s request to assist in its decision-making, Gibbons acted as “an arm of the court,” McArdle,961 F.2d at 1085 , and is therefore entitled to absolute immunity from Williams’s § 1983 action.
Williams,
This quasi-judicial immunity that protects court-appointed doctors, psychologists, or custody evaluators when they “function[ ] as an arm of the court” is “the same absolute judicial immunity that protects” judges. McArdle,
Further, even if they did not have quasi-judicial immunity, the court-appointed Defendants in this case would be protected, inasmuch as the claims relate to their testimony or submissions to the state courts, by absolute witness immunity, which serves as a shield even against allegations of perjury and conspiracy. See, e.g., McArdle,
Finally, the Court notes again that Younger abstention — not to mention Mr. Mikhail’s likely failure to state a claim against Dr. Pisa or Ms. Sobel
Moreover, Mr. Mikhail cannot claim, as against the court-appointed Defendants, that he lacked an adequate remedy at law. As with his claims against the judges for injunctive relief, he could always appeal any rulings erroneously crediting the court-appointed Defendants’ testimony or submissions to the Pennsylvania Superior Court (in addition to raising those arguments before the trial court in the first instance). While amendment would likely be futile, the Court will dismiss the claims for injunctive relief against Dr. Pisa and Ms. Sobel without prejudice on the slim chance that Mr. Mikhail can present good faith averments that show Younger’s exceptional circumstances such that his remedy at law might also be inadequate.
4. The Eleventh Amendment Bars Suit for Monetary Damages and Retrospective Injunctive Relief Against the Judiciary
To the extent that Mr. Mikhail’s § 1983 damages claims against the judges
G. The Court Declines to Exercise Supplemental Jurisdiction Over the Remaining State Law Claims
Because all of Mr. Mikhail’s federal claims have been dismissed, the Court will decline to exercise jurisdiction over his remaining state law claims (Counts III through VI). See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if the district court has dismissed all claims over which it has original jurisdiction.... ”). “[W]here the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Borough of W. Mifflin v. Lancaster,
For the foregoing reasons, the Defendants’ Motions to Dismiss (Docket Nos. 9, 18, 21, 22, 23, 33, 38, 39) are granted, and Mr. Mikhail’s Complaint is dismissed in its entirety.
The Rooker-Feldman dismissal is with prejudice as to all harms resulting from the PFA orders themselves, and without prejudice as to harms resulting from an alleged conspiracy in which the defendant judges participated. The Younger abstention dismissal is without prejudice. All claims purportedly brought under 18 U.S.C. § 242 are dismissed with prejudice because Mr. Mikhail, as a private individual, cannot initiate a criminal action or compel the state or federal authorities to bring one. And all claims against the defendant judges are dismissed with prejudice on the grounds of judicial immunity; similarly, the damages claims against Dr. Pisa and Ms. Sobel must be dismissed with prejudice, and the claims for injunctive relief against them, without prejudice. Section 1983’s statute of limitations requires dismissal with prejudice of the claims against Dr. Lustig as well as several of the defendant judges. The § 1983 claims against Ms. Kahn, Mr. Fellheimer, and the estate of Ms. Phillips must also be dismissed without prejudice because Ms. Kahn and her attorneys were not state actors for purposes of Mr. Mikhail’s § 1983 claims. Mr. Mikhail’s suit must also be dismissed as to several other Defendants for failure
Finally, because all federal claims have been dismissed, the Court will decline to exercise supplemental jurisdiction over Mr. Mikhail’s state law claims.
Mr. Mikhail shall have until February 14, 2014, to file an Amended Complaint.
An Order consistent with this Opinion follows.
ORDER
AND NOW, this 13th day of January, 2014, upon consideration of the Defendants’ Motions to Dismiss (Docket Nos. 9, 18, 21, 22, 23, 33, 38, 39) and Mr. Mikhail’s Responses thereto (Docket Nos. 25, 27, 34, 35, 36, 37, 40, 41), it is HEREBY ORDERED that, for the reasons set forth in the Court’s accompanying Opinion (Docket No. 44), the Motions to Dismiss are GRANTED and Mr. Mikhail’s Complaint is DISMISSED in its entirety, WITH PREJUDICE in part and WITHOUT PREJUDICE in part, such that:
1. The Rooker-Feldman dismissal is with prejudice as to all harms resulting from the protection from abuse orders themselves, and without prejudice as to harms resulting from an alleged conspiracy in which the defendant judges participated;
2. the Younger abstention dismissal is without prejudice;
3. all claims purportedly brought under 18 U.S.C. § 242 are dismissed with prejudice because Mr. Mikhail, as a private individual, cannot initiate a criminal action or compel the state or federal authorities to bring one;
4. all claims against the defendant judges are dismissed with prejudice on the grounds of judicial immunity;
5. under the doctrine of quasi-judicial immunity, the 42 U.S.C. § 1983 damages claims against Anthony Pisa and Maddi-Jane Sobel must be dismissed with prejudice, and the claims for injunctive relief against them, without prejudice;
6. the federal claims against Herbert Lustig must be dismissed as untimely under § 1983’s statute of limitations;
7. the federal claims against Court of Common Pleas Judges Arthur Til-son, Emanuel Bertin, and Rhonda Lee Daniele, and Superior Court Judges Mary Jane Bowes, Christine L. Donohue, and Judith Ference Olson, must also additionally be dismissed as untimely under § 1983’s statute of limitations;
8. the § 1983 claims against Jolie Kahn, Alan Fellheimer, and the estate of Dorothy Phillips must be dismissed without prejudice because Ms. Kahn and her attorneys were not state actors;
9. the claims against Preston Findlay must be dismissed with prejudice for failure to state a claim;
10. the claims against Sheila Dugan and Chip Minto must be dismissed without prejudice for failure to state a claim;
11. the Court will decline to exercise supplemental jurisdiction over Mr. Mikhail’s state law claims because all the federal claims have been dismissed;
12. Mr. Mikhail shall have until February 14, 2014, to file an Amended Complaint; and
13. the Clerk of Court shall MARK THIS CASE CLOSED for all purposes, including statistics.
Notes
. Only Chip Minto has not moved to dismiss, but it appears that he has not been served. The Complaint will also be dismissed against him for the reasons discussed herein.
. Rooker v. Fidelity Trust Co.,
. Younger v. Harris,
. The Court’s ruling should not be misinterpreted as an endorsement, or even an acceptance, of the tone, accusations, or any ad hominem remarks leveled against Mr. Mikhail in some of the Motions to Dismiss. Indeed, the Court is quite unimpressed with such language, style, or tactics. For example, labeling as a “disgruntled litigant” a father who is seeking to regain custody of his child and vindicate what he sees as the violation of his constitutional rights, is unhelpful and even callous, even if case law militates strongly against him. Nonetheless, the dismissal here flows from the Court’s evaluation of intricate, but longstanding, legal principles under which this Court lacks the authority to afford Mr. Mikhail the relief he seeks.
.Mr. Mikhail’s Complaint is not a model of clarity or specificity, with regard either to chronology or his legal claims, but the Court discerns the following factual allegations, which, to the extent that they are not conclusory (and many are), the Court assumes to be true for purposes of adjudicating the Motions to Dismiss. See Ashcroft v. Iqbal,
Mr. Mikhail invokes the Court's federal question jurisdiction. Because the Court, after dismissing all of Mr. Mikhail’s federal claims, will decline to exercise supplemental jurisdiction over his state law claims, this summary does not address his allegations regarding the claimed unlawfulness of the Defendants’ alleged conduct under Pennsylvania law.
. See, e.g., Great W. Mining & Mineral Co. v. Fox Rothschild LLP,
. Moreover, Younger does not appear to bar claims (at least those in this case) for money damages, as discussed later in this Opinion.
. The custody- and divorce-based claims, however, do not necessarily run afoul of Rooker-Feldman but should instead be analyzed for Younger abstention.
. See also, e.g., Ludwig v. Berks County,
. There may be some question as to whether Rooker-Feldman applies to Mr. Mikhail’s prenotice and hearing eviction from his home (as the initial PFA hearing and issuance of the temporary order were ex parte ). Before Exxon Mobil, some courts of appeals seemed to carve out an exception to Rooker-Feldman by observing that the doctrine "can apply only where the plaintiff had a reasonable opportunity to raise his federal claim in state proceedings.” Wood v. Orange County,
the Supreme Court definitively concluded in Exxon Mobil that lower federal courts do not have subject matter jurisdiction in cases in which the plaintiff complains of an injury that cannot be separated from the state court judgment. In those cases, regardless of the opportunity that he or she had to raise a claim in state court, the litigant must appeal through the state court system and then seek review in the United States Supreme Court by filing a writ of certiorari.
Kelley,
Still, even if such a "reasonable opportunity” exception were to apply, only a damages claim would remain (because any injunctive relief this Court could give would be, in fact, otherwise foreclosed by the subsequent PFA rulings), and the defendant judges are absolutely immune from damages claims. See infra subsection III.F.l. In addition, although Mr. Mikhail did not have a "reasonable opportunity” to raise his claims in the ex parte proceeding, he could have done so in the subsequent PFA proceedings. See 23 Pa. Cons. Stat. Ann § 6107 ("Within ten business days of the filing of a petition under this chapter, a hearing shall be held before the court, at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence. The court shall, at the time the defendant is given notice of the hearing, advise the defendant of the right to be represented by counsel .... ”); see also, e.g., Ferko-Fox v. Fox,
. See, e.g., Young v. Dubow,
. See, e.g., McKithen v. Brown,
. See also Pulliam v. Allen,
Furthermore, Mr. Mikhail may well lack standing to bring a claim for declaratory relief now that he is no longer subject to any PFA orders. Cf., e.g., O’Shea v. Littleton,
. By contrast, of course, any claim that the state court erred in its denial of Mr. Mikhail’s January 7, 2011 "Petition for Contempt,” in which he attempted to "show[] that the PFA was secured through Fraud upon the Court,” Compl. ¶ 31 ("this petition was dismissed by Judge Haaz,” Comp. ¶ 33), is barred by Rook-er-Feldman. That bar does not mean that his claim of fraud by Ms. Kahn and her attorneys is also barred by Rooker-Feldman, because this claim is "independent, even [though] it asks the federal court to deny a legal conclusion reached by the state court,” see Great W. Mining & Mineral Co.,
. See, e.g., Compl. ¶ 58 (complaining of the court’s "giving Ms. Kahn full custody of Child Ex Parte ”); Compl. ¶ 85 (complaining of the court’s "[ejntering a custody order that is totally deficient, biased, and ignoring all the evidences presented at the hearing”); Compl. ¶ 88 (complaining of the court’s “[gjiving physical custody of Child to Ms. Kahn and harassing Plaintiff only because Judge Haaz is Jewish and he was protecting Ms. Kahn, who is Jewish”).
. See, e.g., Marran v. Marran,
. The Anthony Court did not assert the converse, i.e., that Rooker-Feldman could not apply to child support hearings. Rather, it stated: “Similarly, the Rooker-Feldman doctrine restricts lower federal court review of state-court judgments and evaluation of constitutional claims that are ‘inextricably - intertwined with the state court's [decision] in a judicial proceeding.’ Because here we affirm abstention under Younger, we do not address whether the Rooker-Feldman doctrine applies.” Anthony,
. Of the relevant decisions cited, only Mar-ran,
Perhaps the proposition of applying Rook-er-Feldman rather than Younger emanates from the facts that Rooker-Feldman is jurisdictional, whereas Younger is not, and that jurisdictional questions must be resolved first. See Sprint Commc'ns, Inc. v. Jacobs, - U.S. -,
A more practical approach would seem warranted. And the fact that child custody orders are provisional, temporary, readily modified, and, in a word, conceptually "ongoing,” as discussed above, that approach should be to apply principles of Younger abstention. Of course, there is a further wrinkle, namely, that Younger may or may not apply to damages claims, see infra note 22, and accompanying text, but to the extent that damages are not available in the ongoing state proceedings, and thus potentially not barred by Younger, they may also not be barred by Rooker-Feldman, either; and inasmuch as those damages claims actually attack the temporary orders themselves, and should be stayed (rather than allowed to proceed) under Younger, see, e.g., Howard v. N.J. Div. of Youth & Family Servs.,
In any case, there is yet another reason for revisiting Marran’s implication that Rooker is properly applied to child custody proceedings, especially those that are ongoing: Exxon Mobil’s clarification of Rooker-Feldman and the Third Circuit’s and others’ reformulation of the proper test. In upholding the district court’s dismissal of certain claims under Rooker-Feldman, the Marran Court explained that "the claims [were] inextricably intertwined with the state court adjudication.” Id. at 151. But as the Third Circuit Court of Appeals has explained since Exxon Mobil:
In light of [the Supreme Court’s] admonition, we have recognized that caution is now appropriate in relying on our pre-Exxon formulation of the Rooker-Feldman doctrine, which focused on whether the state and federal suits were “inextricably intertwined.” ... The Court deliberately did not rely on this formulation in its jurisdictional analysis, instead employing the four-part inquiry that we have outlined above. Although the term "inextricably intertwined” was used twice by the Supreme Court in Feldman, reliance on this term has caused lower federal courts to apply Rook-er-Feldman too broadly. The phrase "inextricably intertwined” does not create an additional legal test or expand the scope of Rooker-Feldman beyond challenges to state-court judgments. When a federal plaintiff brings a claim, whether or not raised in state court, that asserts injury caused by a state-court judgment and seeks review and reversal of that judgment, the federal claim is "inextricably intertwined” with the state judgment. The phrase "inextricably intertwined,” however, has no independent content. It is simply a descriptive label attached to claims that meet the requirements outlined in Exxon Mobil.
Great W. Mining & Mineral Co.,
For this further reason, it appears that Mar-ran's conceptual underpinnings may no longer support some of its more material holdings under Rooker-Feldman. For instance, the Marran Court held that
Librett’s claims against Marran present the most straightforward application of Rooker-Feldman. Librett seeks damages for breach of fiduciary duty, breach of implied contract, intentional infliction of emotional distress, and "loss of earnings during minority.” All of these claims are based on the alleged abuse of R[ ]. In order for Librett to succeed on these claims, the District Court would have to find that the Court of Common Pleas erred in deciding that the allegations of abuse were unfounded. As such, the claims are inextricably intertwined with the state court adjudication and the District Court was correct in finding it lacked jurisdiction over these claims.
Marran,
Suppose a plaintiff sues his employer in state court for violating both state antidiscrimination law and Title VII and loses. If the plaintiff then brings the same suit in federal court, he will be seeking a decision from the federal court that denies the state court’s conclusion that the employer is not liable, but he will not be alleging injury from the state judgment. Instead, he will be alleging injury based on the employer's discrimination. The fact that the statecourt chose not to remedy the injury does not transform the subsequent federal suit on the same matter into an appeal, forbidden by Rooker-Feldman, of the state-court judgment.
Great W. Mining & Mineral Co.,
. On the authority to take judicial notice, see infra note 36. Although its entries are sealed, the docket in Mr. Mikhail's state court proceedings shows that the divorce and custody dispute continues in full force, with the last filing on December 31, 2013, and the case is marked ''OPEN.” See No. 2009-41614 (Montgomery Cnty. Ct. Com. PL Dec. 4, 2013) (go to http://webapp.montcopa.org/PSI and search by docket number).
. See also, e.g., H.C. ex rel. Gordon v. Koppel,
Because some of the Defendants appear to have attempted to raise what appear to be "domestic relations” defenses, the Court notes that the "domestic relations exception” these Defendants were contemplating applies to federal diversity cases, not federal question cases, such as the instant litigation. See Wattie-Bey,
. See supra note 19 and accompanying text. The alimony pendente lite claim is not a damages claim, but even if it were, the relief was available in state court, so Younger abstention is not appropriate. See infra note 22.
. "The Supreme Court has never explicitly decided whether Younger abstention covers actions for damages as well as equitable relief. ... [Other Supreme Court] cases seem to indicate that abstention under Younger principles is not proper when damages are sought.” Marran,
. The statute provides, in full:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
18 U.S.C. § 242.
. See also, e.g., Diamond v. Charles,
. See also, e.g., Brown v. Calabro,
. The courts of the Commonwealth of Pennsylvania are subject to different requirements. Pennsylvania has a procedure by which a plaintiff can submit a criminal complaint to a Commonwealth attorney for approval or disapproval, subject to limited and deferential review by the competent court of common pleas. See Pa. R.Crim. P. 506. See generally In re Hickson,
. In fact, the indictment (and hence the beginning of the more intimate involvement of the Crown) was not truly born until King Henry II’s Assize at Clarendon in 1166, and many years passed before the Crown instigated process resembling public criminal prosecutions in anything near the number of private "appeals of felony,” or, in essence,
. Stephanos Bibas, The Machinery of Criminal Justice 3-4 (2012); see also Rehberg v. Paulk, - U.S. -,
. Whether or not the doctrine is sufficiently historically rooted, victims simply do not have standing to bring private prosecutions in federal court, despite such compelling arguments as those, for instance, by Justice Stevens, who once argued that "[hjistory supports the proposition that punishment or deterrence can redress an injury” because "[i]n past centuries in England, in the American Colonies, and in the United States, private persons regularly prosecuted criminal cases,” and "[t]he interest in punishing the defendant and deterring violations of law by the defendant and others was sufficient to support the 'standing' of the private prosecutor even if the only remedy was the sentencing of the defendant to jail or to the gallows.” Steel Co. v. Citizens for a Better Env’t,
But these questions are foreclosed by the Supreme Court’s established interpretations. Whether, "[gjiven this history,” as Justice Stevens alone contends, "the Framers of Article III surely would have considered such proceedings to be 'Cases' that would ‘redress’ an injury even though the party bringing suit did not receive any monetary compensation,” Steel Co.,
. See also 28 U.S.C. § 516 ("Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.”); 28 U.S.C. § 547 (United States Attorneys); United States v. Armstrong,
. U.S. Const. art. II, § 3, cl. 4 ("[The President] shall take Care that the Laws be faithfully executed____”).
. Justice Washington’s opinion for the Court continues,
The State Courts, therefore, could exercise no jurisdiction whatever over such offences, unless where, in particular cases, other laws of the United States had otherwise provided; and wherever such provision was made, the claim of exclusive jurisdiction to the particular cases was withdrawn by the United States, and the concurrent jurisdiction of the State Courts was eo instanti restored, not by way of grant from the national government, but by the removal of a disability before imposed upon the State tribunals.
Houston, 18 U.S. (5 Wheat) at 28; see also id. at 35 (Johnson, J., concurring in the judgment) (“[C]rimes against a government are only cognizable in its own Courts, or in those which derive their right of holding jurisdiction from the offended government.”); id. at 69 (Story, J., concurring in the judgment) ("In a government formed like ours, where there is a division of sovereignty, and, of course, where there is a danger of collision from the near approach of powers to a conflict with each other, it would seem a peculiarly safe and salutary rule, that each government should be left to enforce its own penal laws in its own tribunals.”).
. There is yet a further bar that would arise were Mr. Mikhail to attempt to join the Commonwealth of Pennsylvania (by and through Attorney General Kane) as an "involuntary plaintiff” in this matter in order to pursue any action, whether criminal or civil: Eleventh Amendment sovereign immunity. See, e.g., Thomas v. FAG Bearings Corp.,
. See, e.g., Pope v. Thornburgh,
. All of these Defendants raise several other defenses each, but because the statute of limitations entirely covers their alleged misconduct under § 1983, the claims against them will be dismissed with prejudice. The judges are also covered by other defenses discussed below.
. The Court takes judicial notice of the state court docket, Ño. 1218 EDA 2010 (Pa.Super.Sept.10, 2013). See Fed.R.Civ.P. 201(b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). As the Third Circuit Court of Appeals has stated,
To resolve a 12(b)(6) motion, a court may properly look at public records, including judicial proceedings, in addition to the allegations in the complaint.
Specifically, on a motion to dismiss, we may take judicial notice of another court's opinion — not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd.,
. The private parties may also include Preston Findlay, Esquire (who, as Counsel for the Missing Children Division of the National Center for Missing and Exploited Children, submitted a four-page affidavit in one of the state court proceedings), and Sheila Dugan and Chip Minto, employees of Kids First, the visitation supervision service the state court ordered Mr. Mikhail to use. The Court need not and will not decide, however, whether these individuals are state actors, because Mr. Mikhail has failed to state a claim against any of them. See infra Section III.E. If these parties are private actors, however, then the analysis in this Section applies to them.
. The two ways that private actors can violate the Constitution (i.e., without acting, for those purposes, as state or federal actors), are by enslaving another in violation of the Thirteenth Amendment and illegally transporting alcohol into a state in violation of its laws. See U.S. Const, amend. XIII, § 1 (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”); id. amend. XXI, § 2 ("The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”).
. The Fourteenth Amendment provides, in pertinent part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law....” U.S. Const. amend. XIV, § 1 (emphasis added).
. The other two inquiries are: “whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state” and "whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Kach,
. See also, e.g., Brown v. Terrell,
. See infra note 50 and accompanying text. Further, even if Ms. Dugan and Mr. Minto can be considered state actors, Mr. Mikhail’s attempt to rely on an alleged conspiracy with either of them to establish state action on the part of Ms. Kahn and her attorneys fails for the same reason reliance on Dr. Pisa fails. See infra subsection III.E.l.
. This proposition is yet easier to make out in the cases upon which Lugar relies. In Fuentes v. Shevin,
Florida law automatically relies on the bare assertion of the party seeking the writ that he is entitled to one and allows a court clerk to issue the writ summarily. It requires only that the applicant file a complaint, initiating a court action for repossession and reciting in conclusoiy fashion that he is ‘lawfully entitled to the possession’ of the property, and that he file a security bond ... On the sole basis of the complaint and bond, a writ is issued command(ing) the officer to whom it may be directed to replevy the goods and chattels in possession of defendant ... Thus, at the same moment that the defendant receives the complaint seeking repossession of property through court action, the property is seized from him. He is provided no prior notice and allowed no opportunity whatever to challenge the issuance of the writ.
Id. at 74-75,
. In that case, the court held that "a judgment creditor who uses Pennsylvania’s procedure for executing on a confessed judgment acts under color of law and becomes a state actor under Lugar.” Jordan,
When Fox Rothschild confessed judgment against Jordan Mitchell, Inc., they took action that caused the Sheriff of Philadelphia to execute on the judgment by garnishing Jordan Mitchell, Inc.’s bank account. The sheriff, following routine Pennsylvania practice, acted without prior notice or hearing for Jordan Mitchell, Inc. or any of its agents, employees or stockholders.
Id. at 1255. Further, the opinion of the district court below states that upon Fox Rothschild’s mere filing of a praecipe, the Prothonotary of the Court of Common Pleas of Philadelphia issued a writ of execution to the Sheriff, who then, by serving it, attached Jordan’s checking account. See
. See also, e.g., Schucker v. Rockwood,
. Ms. Dugan’s Motion to Dismiss (Docket No. 33), by incorporation of Ms. Kahn and Mr. Fellheimer’s Motion to Dismiss, challenges the sufficiency of Mr. Mikhail's conspiracy allegations and contends he has failed to state a claim. Chip Minto appears not to have been served, but the Court will dismiss the claims against him on its own motion because Mr. Mikhail was on notice of their infirmity because other Defendants, including Ms. Dugan by incorporation, had moved to dismiss on these grounds. See Bryson v. Brand Insulations, Inc.,
As to Ms. Dugan and Ms. Minto, see also supra note 37.
. Because Mr. Mikhail has not stated a claim against Mr. Findlay, the Court need not consider the implications of NCMEC's congressional funding on whether NCMEC may be considered a federal actor. Cf., e.g., Heinrich v. Sweet,
. Bivens v. Six Unknown Fed. Narcotics Agents,
. Among other defenses, Mr. Findlay also asserts congressionally conferred immunity under 18 U.S.C. § 2258D, but given that Mr. Mikhail has failed to state a claim against Mr. Findlay, this Court will not construe that statute. It is enough to note that determining whether such immunity would apply would involve not only at least one issue of construction of a statute that has not yet been interpreted by any court, but also an issue of fact, namely, whether Mr. Findlay acted with a certain type of intent, see id., and would thüs likely be unresolvable at the motion to dismiss stage. Such endeavors are unnecessary and would be wasteful of the litigants’ and Court’s resources and time for no purpose in this instance.
. Mr. Mikhail offers a handful of allegations against Dr. Pisa, the court-appointed reunification therapist. He alleges that Dr. Pisa conspired with Ms. Kahn to deprive him of his constitutional rights by meeting ex parte with the court; not being honest with the court regarding, on the one hand, Ms. Kahn’s failure to cooperate with him and, on the other, the presence of parental alienation; and failing to submit a court-ordered reunification plan. These allegations do not state a claim upon which relief can be granted, at least not under § 1983. Mr. Mikhail has provided no specifics, and what Mr. Mikhail characterizes as dishonesty and ex parte meetings, without more, cannot reasonably be construed as anything more than an expert's expression of his opinion, none of which constitutes a constitutional violation (or a plausible suggestion of conspiracy). Likewise, Dr. Pisa’s failure to submit a report cannot form the basis of a federal claim. The claims against Dr. Pisa must therefore be dismissed without prejudice for failure to state a claim.
. See Bradley,
. Examples of dismissals of injunctive relief claims on the grounds of judicial immunity abound. See, e.g., Clark v. Punshon,
. See also, e.g., Newsome v. Merz,
. See supra note and 50 accompanying text.
. New courts seem to have addressed this question, largely because they have been able to dispose of the claims on other grounds. See, e.g., Hili v. Sciarrotta,
. Nonetheless, the Court feels compelled to point out that Mr. Mikhail's claims purportedly brought under the Pennsylvania Code of Judicial Conduct and those under the Pennsylvania Rules of Professional Conduct are frivolous under established Pennsylvania law.
The fact that a judge or attorney’s conduct might violate Pennsylvania's ethics rules does not itself grant the allegedly aggrieved individual a right to sue. The Code and Rules provide standards to which the Pennsylvania Supreme Court holds judges and lawyers, respectively, and which it enforces through its own disciplinary proceedings. But neither the Code nor the Rules confers any right upon private litigants to bring suit or authorizes a cause of action.
The law here is well settled by the Pennsylvania Supreme Court. The Code of Judicial Conduct "does not confer substantive rights
Further, even if the Pennsylvania Supreme Court had not provided this guidance, it is clear from two other sources of law that neither an action against the judges, purportedly under the Code of Judicial Conduct, nor an action against any attorneys, purportedly under the Rules of Professional Conduct, may be maintained. First, judicial immunity would most likely .foreclose an action based on the Code of Judicial Conduct. See, e.g., Beam v. Daihl,
Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.- The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra disciplinary consequences of violating such a duty.
Pa. R. Prof'l Conduct pmbl. & scope ¶ 19 (emphases added).