Ertl v. Lane (MAG+)

Filing 7

REPORT AND RECOMMENDATIONS that plaintiff's 2 MOTION to Proceed in forma pauperis be GRANTED; that plaintiff's claims be DISMISSED without prejudice prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B); that plaintiff's 3 MOTION to Appeal be DENIED as moot; that any outstanding motions be DENIED as moot. Objections to R&R due by 10/16/2009. Signed by Honorable Terry F. Moorer on 9/17/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION J E N N IF E R L. ERTL, P l a in tif f , v. J O H N D. LANE, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 1:09-cv-693-MHT

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE P u r s u a n t to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United S ta te s Magistrate Judge for review and submission of a report with recommended findings o f fact and conclusions of law (Doc. 5, filed July 27, 2009). Pending before the Court is P la in tif f 's motion to proceed in forma pauperis (Doc. 2, filed July 23, 2009) and Plaintiff's M o tio n to Appeal (Doc. 3, filed July 23, 2009).1 For good cause, the Magistrate Judge re c o m m e n d s the Court grant the motion to proceed in forma pauperis, dismiss this case prior to service of process pursuant to 28 U.S.C. § 1915(e)(2)(B),2 and deny the Motion to Appeal

The Court is unclear as to whether this Motion to Appeal was intended to be a separate motion or as an attachment in support of Plaintiff's Complaint. To err on the side of caution, the Court considered it as a separate motion, but also considered it in conjunction with the Complaint. The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal ­ (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Page 1 of 10
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a s moot. I. PARTIES AND COMPLAINT P la in tif f , Jennifer L. Ertl ("Ertl or "Plaintiff"), currently resides in Germany. D e f en d a n t John D. Lane ("Lane" or "Defendant") is Ertl's ex-husband and resides in Dothan, A la b a m a , within the Middle District of Alabama. O n July 23, 2009, Ertl initiated this action by filing a Complaint and several motions. S e e Docs. 1-4. Ertl alleges the she was denied the right to be heard at a hearing in the Circuit C o u rt of Houston County, Alabama Family Division. See Doc. 1 and 3. The hearing c o n c e rn e d the modification of child support between Ertl and Lane. Id. The Findings and R e c o m m e n d a tio n for the Modification Order for Support were issued on July 9, 2009 by H o u s to n County Referee Phyllis Logsdon ("Referee"). See Doc. 1, Supporting

D o c u m e n ta tio n . Ertl presumably brings her civil rights claims pursuant to 42 U.S.C. § 1983. I I . DISCUSSION AND ANALYSIS A ll litigants, pro se or not, must comply with the Federal Rules of Civil Procedure. A lth o u g h the court is required to liberally construe a pro se litigant's pleadings, the court does n o t have "license to serve as de facto counsel for a party. . .or to rewrite an otherwise deficient p le a d in g in order to sustain an action." GJR Investments, Inc. v. County of Escambia, Fla., 1 3 2 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted). A two-step procedure should be u s e d when processing a complaint filed pursuant to 28 U.S.C. § 1915. Procup v. Strickland, 7 6 0 F.2d 1107, 1114 (11th Cir. 1985) (citations omitted). First, the district court should

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d e te r m i n e "whether the plaintiff is unable to prepay costs and fees and therefore a pauper u n d e r the statute." Id. (citing 28 U.S.C. § 1915(a)). Second, once leave has been granted, the c o u rt shall dismiss a case by a plaintiff proceeding in forma pauperis at any time if it d e te rm in e s that the complaint is frivolous, malicious, or fails to state a claim on which relief m a y be granted. Id.; see 28 U.S.C. § 1915(e)(2)(B)(i) and (ii); see also Mitchell v. Farcass, 1 1 2 F.3d 1483, 1491 n.1 (11th Cir. 1997) (Lay, J. concurring) (Section 1915(e) applies to all litig a n ts proceeding in forma pauperis). At any stage of the proceedings, a case is frivolous f o r the purpose of § 1915(e)(2)(B) when it appears the plaintiff "has little or no chance of s u c c es s ." Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting Harris v. Menendez, 8 1 7 F.2d 737, 741 (11th Cir. 1987)). A court may conclude that a case has little or no chance o f success and dismiss the complaint before service of process when it determines from the f a ce of the complaint that factual allegations are "clearly baseless" or that the legal theories a re "indisputably meritless." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 1 0 4 L.Ed.2d 338 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32-33, 112 S.Ct. 1728, 1 7 3 3 , 118 L.Ed.2d 340 (1992) (dismissal of claims when "clearly baseless"); Procup, 760 F .2 d at 1114 (complaint may be dismissed prior to service of process). T h e complaint filed by Ertl satisfies the economic eligibility criteria of § 1915(a)(1), a n d therefore may be filed without prepayment of fees. However, the court is of the view, that th e complaint should be dismissed without prejudice pursuant to § 1915(e)(2)(B)(ii) because s h e fails to state a claim on which relief may be granted.

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A.

Y o u n g e r Abstention Doctrine Y o u n g e r v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny

e sp o u s e a strong federal policy against federal-court interference with pending state judicial p ro c e e d in g s absent extraordinary circumstances. See Middlesex County Ethics Comm. v. G a r d e n State Bar Ass'n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); see a ls o Younger, 401 U.S. at 43, 91 S.Ct. at 750 (The abstention doctrine is premised upon a fu n d am en ta l "public policy against federal court interference with state court proceedings."). F u r th e r, "[t]he policies underlying Younger are fully applicable to noncriminal judicial p ro c e ed in g s when important state interests are involved." Middlesex, 457 U.S. at 432, 102 S .C t. at 2521 (citations omitted); see also Adams v. Florida, 185 Fed. Appx. 816 (11th Cir. 2 0 0 6 ) (quoting 31 Foster Children v. Bush, 329 F.3d 1255, 1274, 1276 (11th Cir. 2003)) (" A lth o u g h Younger concerned state criminal proceedings, its principles are `fully applicable to noncriminal judicial proceedings when important state interests are involved.'"). Federal courts ordinarily should refrain from deciding the merits of a case when (1) th e re is a pending state judicial proceeding; (2) the proceeding implicates important state in te re s ts ; and (3) the parties have an adequate opportunity to raise any constitutional claims in the state proceeding. See Middlesex, 457 U.S. at 432, 102 S.Ct.at 2521. With respect to th e first Middlesex factor, the relevant inquiry is "whether the federal proceeding will in te rf e re with an ongoing state court proceeding. If there is no interference, then abstention is not required." 31 Foster Children, 329 F.3d at 1274. Applying the Middlesex factors to

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the case at bar, there are essentially three questions before this Court. First, do child support h e a rin g s constitute an ongoing state judicial proceeding? Second, do the proceedings

im p lica te important state interests? Finally, is there an adequate opportunity in the state p r o c e e d in g s to raise constitutional challenges? A s alleged, Ertl's case falls squarely within all three prongs of the Middlesex factors. S h e seeks to enjoin the child support modification as it is currently stated in the Findings and R e c o m m e n d a tio n s. The ability to modify child support payments is an important state in te re st. Finally, Ertl not only has the ability to raise her constitutional issues before the C irc u it Court of Houston County, but also has the ability to appeal within the Alabama state a p p e lla te system. The Court notes that based on the evidence before it, the Findings and R e c o m m e n d a tio n of the Referee have not yet been adopted by the Judge and therefore would n o t constitute a final order pursuant to Rule 2.1 of the Alabama Rules of Juvenile Procedure a n d ALA. CODE § 12-15-106. Thus, Plaintiff still has the ability to raise her issues before the A la b a m a courts and this Court should abstain from exercising jurisdiction over Ertl's claims. S e v e ra l courts have reached the same conclusion with regard to state child support issues. S e e , e.g. Adams, 185 Fed. Appx. 816; Turbeville v. Office of Child Support Enforcement of th e State of Fla. Dep't of Revenue, 2007 WL 2728367 (N.D. Fla. 2007) (unpublished). S p e c if ic a lly, the Eleventh Circuit has stated "[t]he federal judiciary has traditionally abstained f ro m deciding cases concerning domestic relations" and so "generally dismiss cases involving . . . child custody, visitations rights, establishment of paternity, [and] child support." Ingram

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v . Hayes, 866 F.2d 368, 369 (11th Cir. 1988) (citing Crouch v. Crouch, 566 F.2d 486 (5th Cir. 1 9 7 8 )).3 "The reasons for federal abstention in these cases are apparent: the strong state i n t e r e s t in domestic relations matters, the competence of state courts in settling family d is p u te s, the possibility of incompatible federal and state court decrees in cases of continuing ju d ic ia l supervision by the state, and the problem of congested dockets in federal courts." C r o u c h , 566 F.2d at 487. B. R o o k e r -F e ld m a n Doctrine E v e n if there was a final order, Plaintiff's claims are barred by the Rooker-Feldman d o c trin e . When there is no allegation of diversity jurisdiction,4 the Court must have original ju ris d ic tio n to proceed. Federal district courts have "original jurisdiction of all civil actions a risin g under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331; see a ls o City of Huntsville v. City of Madison, 24 F.3d 169, 171 (11th Cir. 1994) (citing statute). F e d e ra l question jurisdiction may be based on a civil action alleging a violation of the United S ta te s Constitution or a federal cause of action established by a Congressionally-created e x p re ss e d or implied private remedy for violations of a federal statute and in limited

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981). Pursuant to 28 U.S.C. § 1332, district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of a State and citizens or subjects of a foreign state. Ertl, as a resident of Germany, would satisfy the citizenship requirement, but she has not shown that the matter in controversy exceed $75,000. Thus, there is no diversity jurisdiction. Page 6 of 10
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c irc u m s ta n c es , federal question jurisdiction may also be available if a substantial, disputed q u e s tio n of federal law is a necessary element of a state cause of action. City of Huntsville, 2 4 F.3d at 171-72 (citations omitted). "[O]nce a court determines that there has been no grant th a t covers a particular case, the court's sole remaining act is to dismiss the case for lack of ju ris d ic tio n ." Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000); accord B a r n e tt v. Bailey, 956 F.2d 1036, 1039-41 (11th Cir. 1992) (holding that a court is required to examine its jurisdiction over an action at any time and dismiss an action sua sponte for lack o f subject matter jurisdiction if jurisdiction is not found.). T h e Rooker-Feldman doctrine places limits on the subject matter jurisdiction of federal d istrict courts and courts of appeal over certain matters related to previous state court litig a tio n . Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 3 6 2 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476-82, 103 S .C t. 1303, 1311-15, 75 L.Ed.2d 206 (1983). The Eleventh Circuit has described the RookerF e ld m a n doctrine as follows: T h e Rooker-Feldman doctrine provides that federal courts, other than the U n ited States Supreme Court, have no authority to review the final judgments o f state courts. The doctrine extends not only to constitutional claims presented o r adjudicated by a state court, but also to claims that are "inextricably in ter tw in e d " with a state court judgment. A federal claim is inextricably in te rtw in e d with a state court judgment if the federal claim succeeds only to the e x ten t that the state court wrongly decided the issues before it. G o o d m a n ex. rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001) (citing Siegel v. L e P o r e , 234 F.3d 1163, 1172 (11th Cir. 2000)). The Supreme Court notes the Rooker-

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F e ld m a n is triggered in "cases brought by state-court losers complaining of injuries caused b y state-court judgments rendered before the district court proceedings commenced and in v itin g district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi B a s ic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 1521-22, 161 L.Ed.2d 454 (2005); see a lso Nicholson v. Shafe, 558 F.3d 1266, 1268 (11th Cir. 2009) (quoting Exxon Mobil). The C o u rt finds Ertl's claims also fall within the ambit of the Rooker-Feldman doctrine should it b e shown the order was final. C. 4 2 U.S.C. § 1983 F in a lly, the Court notes that there is another basis for dismissal. To obtain relief under § 1983, Plaintiff must show she was deprived of a federal right by a person acting under color o f state law. Patrick v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). The S u p r e m e Court has reiterated this requires "both an alleged constitutional deprivation `caused b y the exercise of some right or privilege created by the State or by a rule of conduct imposed b y the State or by a person for whom the State is responsible,' and that `the party charged with th e deprivation must be a person who may fairly be said to be a state actor.'" Id. (quoting A m e ric a n Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1 9 9 9 )) (emphasis in original). The law is clear that "the under-color-of-state-law element o f § 1983 excludes from its reach merely private conduct, no matter how discriminatory or w ro n g f u l." Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (1 1 th Cir. 2003); see also Weaver v. James Bonding Co., Inc., 442 F.Supp.2d 1219, 1223

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(S .D . Ala. 2006) (citing Pinellas). Defendant Lane, as a private citizen, does not qualify as a "person" within the meaning of § 1983. Thus, dismissal under 28 U.S.C. § 1915(e)(2)(B) is appropriate. I I I. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: (1 ) (2) P la in tif f 's motion to proceed in forma pauperis (Doc. 2) be GRANTED; P la in t if f ' s claims be DISMISSED without prejudice prior to service of process p u rsu a n t to 28 U.S.C. § 1915(e)(2)(B); (3) P la in t if f ' s Motion to Appeal (Doc. 3, filed July 23, 2009) be DENIED as moot; and (4) A n y outstanding motions be DENIED as moot.

I T IS FURTHER ORDERED that the Plaintiff file any objections to the this R e c o m m e n d a tio n on or before October 16, 2009. Any objections filed must specifically id e n tify the findings in the Magistrate Judges Recommendation to which the party is o b je c tin g . Frivolous, conclusive or general objections will not be considered by the District C o u rt. The parties are advised that this Recommendation is not a final order of the court and, th e re f o re , it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual

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f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 6 6 1 F.2d 1206 (11th Cir. 1981, en banc) (adopting as binding precedent all of the decisions o f the former Fifth Circuit handed down prior to the close of business on September 30, 1 9 8 1 ). D O N E this 17th day of September, 2009. /s / Terry F. Moorer T E R R Y F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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