Curry v. Lopez et al

Filing 38

MEMORANDUM Opinion and Order: Civil case terminated. Signed by the Honorable Rebecca R. Pallmeyer on 12/4/2017. Civil case terminated. Mailed notice. (etv, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN GREGORY CURRY,

)
)
Plaintiff,
)
)
v.
)
)
MARK JOSEPH LOPEZ, Associate Judge,
)
Circuit Court of Cook County, Illinois,
)
in his individual capacity a/k/a Honorable
)
Mark J. Lopez; JANE FELDMAN FIELDS,
)
a/k/a Law Offices of Jane F. Fields d/b/a
)
Law Offices of Jane F. Fields; CONSTANCE )
VERNETTE CURRY; and, GREGORY
)
EMMETT AHERN, JR., Associate Judge,
)
Circuit Court of Cook County, Illinois,
)
in his individual capacity a/k/a Honorable
)
Gregory Emmett Ahern, Jr.,
)
)
Defendants.
)

No. 17 C 3659
Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER
Plaintiff John G. Curry has been embroiled in litigation with his ex-wife, Defendant
Constance V. Curry, concerning custody and support for the couple’s two children.

The

litigation is pending in the Circuit Court of Cook County. Curry has now turned to this court,
alleging that his former wife, her attorney, and two state court judges have violated Plaintiff’s
rights under state and federal statutes and the United States Constitution.

Defendants

Constance Curry and her attorney, Jane F. Fields, have moved to dismiss the case, as have
Defendants Mark J. Lopez and Gregory E. Ahern, both Associate Judges of the Circuit Court of
Cook County.

Plaintiff moves for certain miscellaneous relief, as well, including an order

requiring Defendants to reimburse him for the costs of service of process in this litigation. For
numerous reasons, this case must be dismissed. The motions to dismiss [17, 22] are granted,
and Plaintiff’s motion [6] is granted with respect to cost of service and otherwise denied.

BACKGROUND
Curry’s allegations are presumed true for purposes of this motion. Berger v. Nat’l Coll.
Athletic Ass’n, 843 F.3d 285, 298 (7th Cir. 2016). Plaintiff alleges that until 2015, he was
employed with the Chicago Fire Department. (Compl. ¶ 4.) He and Defendant Constance V.
Curry, the parents of two children, have been divorced since 2007. (Id. ¶¶ 10-17.) In 2006 and
2007, the Currys entered into a series of custody agreements providing that Ms. Curry had sole
custody of the children, Mr. Curry’s income from the Chicago Fire Department would be
garnished by $1,070 per month to provide financial support, and Mr. Curry would inform Ms.
Curry within thirty days of any changes to his income. (Id. ¶¶ 15-17.)
For the next several years, the Currys resolved disagreements concerning their children
and finances informally. The accord broke down, however, in late 2014, when text messages
from Plaintiff’s son generated concerns about Ms. Curry’s behavior, and Plaintiff petitioned the
Circuit Court of Cook County to award him custody of both children. (Id. ¶¶ 18, 19, 21.) The
case was assigned to Defendant Lopez. (Id. ¶ 22.)
Judge Lopez ordered the Currys to participate in mediation.

(Id. ¶ 25)

Shortly

thereafter, Ms. Curry, through her attorney, Defendant Jane Fields, requested that Mr. Curry
make certain financial disclosures. (Id. ¶ 30.) On June 16, 2015, Judge Lopez found Mr. Curry
to be in indirect civil contempt, citing his “contumacious willful failure” to inform Ms. Curry of
increases to his income. (Id. ¶ 35.) The following month, the judge modified the child support
obligation, increasing Mr. Curry’s monthly payment to $1,825. (Id. ¶ 39.) Judge Lopez also
ordered Mr. Curry to pay an additional $365 per month in “retroactive child support and interest.”
(Id.)
On August 16, 2015, Mr. Curry retired from the Chicago Fire Department. (Id. ¶ 40.) He
notified the Circuit Court and his ex-wife that he would not have any income for up to two
months following his retirement, at which point he would begin receiving pension benefits. (Id. ¶
41.) Mr. Curry moved for a reduction in his support obligation in light of his reduced income, but
2

Judge Lopez denied the motion on the ground that Plaintiff had left his job voluntarily. (Id. ¶¶
43, 47.) The court also ordered Mr. Curry to pay $4,200 in attorney fees at a rate of $500 per
month.

(Id. ¶ 103.)

On Ms. Curry’s motion, the court also ordered Plaintiff to execute a

Qualified Illinois Domestic Relations Order (QILDRO) and consent to a monthly garnishment of
$2,190 from his pension income. (Id. ¶ 44.) Mr. Curry executed the QILDRO on a court form
that included information concerning state and federal limits on withholding. (Id. ¶ 45.)
Though he executed the QILDRO, Curry challenged the validity of this arrangement by
filing a new action in the Circuit Court of Cook County. (Id. ¶¶ 45, 46.) Judge Thomas R. Allen,
who is not a party here, dismissed this new action, pointing out that the proper “procedural
avenue was to appeal Judge Lopez’s order.” (Id. ¶ 46.) Then on December 17, 2015, Judge
Lopez again found Mr. Curry in indirect civil contempt, this time due to Mr. Curry’s failure to
submit payments for three months following his retirement. (Id. ¶ 47.) Mr. Curry sought a
modification of that order, arguing that the garnishment amount exceeded regulatory guidelines
and his personal finances, but Judge Lopez rejected the argument and denied a subsequent
motion for reconsideration. (Id. ¶¶ 51, 52.) The Illinois Appellate Court affirmed the contempt
child support order and the contempt finding. See Curry v. Curry, No. 1-16-0965, 2016 WL
7208982, at *4 (Ill. App. Ct. Dec. 9, 2016). The Appellate Court concluded, however, that it
lacked jurisdiction to review the denial of Mr. Curry’s petition for modification of the child support
obligation because it was not a final order. Id. at *2. Plaintiff sought leave to appeal that ruling
to the Illinois Supreme Court (id. ¶ 85); his petition was denied on May 24, 2017. (Pl.’s Resp. in
Opp. to Defs.’ 12(b)(6) Mot. to Dismiss [30], at 7.)
Mr. Curry eventually withdrew his custody petition. (Compl. ¶¶ 58-60.) For reasons not
revealed in the complaint, at a hearing on October 26, 2016, Judge Lopez ordered Mr. Curry to
be taken into custody. He withdrew the order only after Plaintiff offered to pay outstanding
financial obligations with funds he expected to recover from a settlement in an unrelated case.
(Id. ¶ 62.)

Judge Lopez agreed to this arrangement on the condition that the settlement
3

proceeds be tendered directly to Defendant Fields and held in her Interest on Lawyer Trust
Account (IOLTA) “for further determination of allocation by this Court.” (Id.) Mr. Curry ultimately
tendered $69,000 from these funds at a hearing on April 28, 2017. (Id. ¶¶ 91-92.)
In the meantime, Mr. Curry successfully sought substitution of Judge Lopez, and the
custody dispute was reassigned to Defendant Ahern. (Id. ¶¶ 66, 70-72.) On February 6, 2017,
Mr. Curry filed a “Petition for Punishment, For Prosecution, and For Other Just and Proper
Relief,” but Judge Ahern “refus[ed] to recognize” that Petition and ordered Plaintiff to obtain
leave of court before filing any additional pleadings. (Id. ¶¶ 79, 150-57.) On April 28, 2017,
Judge Ahern ordered Mr. Curry to “maintain a job diary of at least 5 contacts per week.” (Id. ¶
161.) Two months later, Judge Ahern ordered that the funds being held in Ms. Fields’ IOLTA
account be used to pay Ms. Fields’ attorney fees and some or all of Mr. Curry’s delinquent
support obligations, and that Plaintiff’s monthly support obligation increase to $2,489.52. (Pl.’s
Mot. for Miscellaneous Relief [6], at 3-5.)
Mr. Curry filed this case on May 16, 2017, alleging that Defendants’ conduct violates
federal and state laws. He seeks $500,000 in compensatory damages as well as punitive
damages against the individual Defendants. (Compl. ¶ 175.) He also requests that the funds
held in Ms. Fields’ IOLTA account “be released/returned immediately,” that Defendants be
“punished as in cases of contempt of court,” and that this court order law enforcement officials
to initiate “criminal prosecution of the Defendants . . . under 18 U.S.C. § 242.” (Id.) In addition,
in a Motion for Miscellaneous Relief [6], Mr. Curry alleges that Defendants have continued to
violate his federal and state law rights by entering and enforcing child support and income
withholding orders and by refusing to waive service of summons in this federal case. He seeks
removal of the state custody case to this court and an order staying all of his payment
obligations.

4

DISCUSSION
All Defendants have moved to dismiss this case on various grounds. Defendants Lopez
and Ahern, both state court judges, contend they are immune from civil liability. Ms. Curry and
her attorney, Defendant Fields, contend that Plaintiff has not stated a claim that arises under the
court’s jurisdiction, and that any valid challenge to the state court proceedings would be subject
to Younger abstention. Regardless whether Younger abstention is appropriate here, this court
concludes it lacks jurisdiction to proceed. Apart from his request for reimbursement of service
costs under FED. R. CIV. P. 4(d)(2), Plaintiff’s motion for miscellaneous relief is denied.
I.

Abstention
Because abstention would foreclose consideration of the parties’ remaining arguments,

the court begins there. All four Defendants argue that this court should abstain from deciding
Plaintiff’s claims under the doctrine of Younger v. Harris, 401 U.S. 37 (1971).

Younger

abstention is appropriate in situations “where federal jurisdiction would intrude into ongoing
state criminal proceedings, or into certain civil enforcement proceedings (judicial or
administrative) akin to criminal prosecutions, or into civil proceedings ‘that implicate a State's
interest in enforcing the orders and judgments of its courts.’” Mulholland v. Marion Cty. Election
Bd., 746 F.3d 811, 815 (7th Cir. 2014) (quoting Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584,
588 (2013)).
The Younger doctrine appears to apply squarely in this case, where Plaintiff Curry asks
this court to interfere with the state court’s efforts to enforce its orders. Curry notes, however,
that the Seventh Circuit has recognized that “extraordinary circumstances” may justify such
intervention. Mulholland, 746 F.3d at 818. In Mulholland, for example, the district court had
abstained from deciding a constitutional challenge to a county election board’s enforcement of
an Indiana election regulation. In reversing that decision, the Seventh Circuit pointed out that
the Indiana regulation had been declared unconstitutional years earlier.
5

For the county to

nevertheless attempt to enforce it against the plaintiff “shaves very close to harassment or bad
faith prosecution,” the court explained. Id at 818.
Mr. Curry argues that his case is similarly extraordinary; he urges that “not much could
be more extraordinary than two Illinois judges knowingly and intentionally violating a prohibitive
Act of Congress.” (Pl.’s Resp. in Opp’n to Defs.’ 12(b)(6) Mot. to Dismiss 3.) As the court
understands this argument, Mr. Curry believes that the state court has ordered that his income
be garnished in excess of the limitations imposed by 15 U.S.C. § 1673 and by state law.
Assuming Mr. Curry is correct about this, it does not present the situation involved in
Mulholland, where the state was attempting to enforce a statute already declared
unconstitutional. More importantly, Mr. Curry has not shown that he needs a federal injunction
to enforce his rights; he is free to challenge the state courts’ orders through the state appeal
process.

“Federal courts must presume that state courts are capable of establishing and

administering judicial process consistent with the requirements of the federal constitution, and
‘that state procedures will afford an adequate remedy, in the absence of unambiguous authority
to the contrary.” Barichello v. McDonald, 98 F.3d 948, 954-55 (7th Cir. 1996) (quoting Pennzoil
Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987)).
Plaintiff insists the appellate process is inadequate because “both the Appellate and
Illinois Supreme Court” declined to review “the issue of these Defendant Judges violating a
prohibitive Act of Congress and Illinois laws.” (Pl.’s Resp. in Opp’n to Defs.’ 12(b)(6) Mot. to
Dismiss 3.) But this is not quite accurate. The Illinois Appellate Court did review the validity of
Judge Lopez’s original order that increased Mr. Curry’s child-support obligations, as well as his
subsequent contempt and attorney fee orders. See Curry, 2016 WL 7208982, at *2-4. It found
that Judge Lopez did not abuse his discretion.

Id.

The court only found that it lacked

jurisdiction to review the denial of Mr. Curry’s motions for modification of the child support order
because those orders were not final. Id. at *2. Mr. Curry’s allegations do not satisfy this court
that he has no opportunity for review of his federal claims in the Illinois state courts. The court
6

need not decide the issue, however, because the complaint must be dismissed for other
reasons, described below.
II.

Rooker-Feldman doctrine
The parties have not directly addressed the Rooker-Feldman doctrine, but this court has

an “independent duty to ensure subject matter jurisdiction.” Dexia Credit Local v. Rogan, 602
F.3d 879, 883 (7th Cir. 2010). That duty is relevant here, as the doctrine limits this court’s
authority to review certain state-court actions. See Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). The doctrine applies where
“state court losers” are “complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The case law establishes that “the Supreme Court of the United States is the only
federal court that may review judgments entered by state courts in civil litigation.” Harold v.
Steel, 773 F.3d 884, 885 (7th Cir. 2014). If the state court’s decision is “the source of the injury
of which plaintiffs complain in federal court,” Harold, 773 F.3d at 885, and if the federal plaintiffs
have had “a reasonable opportunity to raise the issue in state court proceedings,” Long v.
Shorebank Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999), then the federal court has no power
to act. “At its core, the doctrine is a recognition of the principle that the inferior federal courts
generally do not have the power to exercise appellate review over state court decisions.”
Schmitt v. Schmitt, 324 F.3d 484, 485–86 (7th Cir. 2003) (quoting Kamilewicz v. Bank of Boston
Corp., 92 F.3d 506, 509 (7th Cir.1996)).
In Schmitt, the Seventh Circuit concluded that a complaint alleging facts quite similar to
those alleged here went to “the heart of the Rooker-Feldman doctrine.” Schmitt, 324 F.3d at
485. There, the husband in a state-court divorce proceeding filed an interlocutory appeal of an
order that he “pay maintenance, landscaping, travel, and attorneys' fees” to his ex-wife, claiming
that the order deprived him of due process because of alleged defects in the service of process.
7

Id. After the Illinois Appellate Court rejected this claim, Schmitt sought relief for the alleged due
process violation in a § 1983 action in federal district court. Id. The Seventh Circuit affirmed the
district court’s dismissal of the action on Rooker-Feldman grounds.

“Circumventing the

prescribed mode of appellate review is virtually the only way to describe what Mr. Schmitt is
doing,” the court explained. Id. at 487
Much like the plaintiff in Schmitt, Mr. Curry is attempting to “circumvent[] the prescribed
mode of appellate review” in this case. Id. Orders issued by state judges are “the source of the
injury” of which Mr. Curry now complains. Harold, 773 F.3d at 885. Thus, he alleges that Judge
Lopez violated his statutory and constitutional rights “by ordering retroactive child support”
(Compl. ¶ 96) (emphasis added); “by ordering that Plaintiff pay the $4,200 in attorney’s
fees . . . at the rate of $500.00 per month” (Id. ¶ 103) (emphasis added); “by ordering . . . that
$2,190.00 be garnished monthly” (Id. ¶ 115) (emphasis added); “by denying Plaintiff’s motion to
reconsider” (Id. ¶ 120) (emphasis added); “by ordering/awarding $7,500.00 as a sanction
against Plaintiff for noncompliance” (Id. ¶ 124) (emphasis added); “by ordering . . . that
$2,492.52 be garnished monthly” (Id. ¶ 126) (emphasis added); and “by ordering that any and
all settlement funds from Plaintiff’s Chancery case . . . be directly tendered” (Id. ¶ 136)
(emphasis added) and “immediately deposited into Defendant Jane F. Fields’ IOLTA account.”
(Id. ¶ 143.) Similarly, Mr. Curry alleges that Judge Ahern violated his constitutional rights “by
ordering Plaintiff to maintain a job diary.” (Id. ¶ 161) (emphasis added). And, as in Harold,
where the plaintiff attempted to challenge a state garnishment order by way of a federal fair debt
case, none of Mr. Curry’s claimed injuries occurred “until the state judge ruled against” him. 773
F.3d at 886. The state-court orders themselves are the source of Mr. Curry’s injuries.
Mr. Curry had a reasonable opportunity to object to these orders not only before Judges
Lopez and Ahern, but also before the Illinois Appellate Court. When he did, he lost. Unlike
cases where state courts provided no reasonable opportunity to raise a particular claim, the
state court here did not raise “barriers that the litigants are incapable of overcoming.” Long, 182
8

F.3d at 558 (citing cases). Mr. Curry himself acknowledges that he was permitted to raise his
federal claims in a January 15, 2016 motion for reconsideration of his request for modification of
the child support order. (Compl. ¶ 51.) Judge Lopez’s denial of this motion did not prevent Mr.
Curry from presenting his arguments to the court. Nor did Judge Ahern’s order that Mr. Curry
obtain leave of the court before filing additional motions present a barrier that Mr. Curry is
“incapable of overcoming,” Long, 182 F.3d at 558. Curry also makes vague allegations that
Judge Ahern “refus[ed] to recognize” Mr. Curry’s February 6 “Petition for Punishment”; those
allegations do not state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007).
True, some of the orders about which Mr. Curry complains were not considered by the
Illinois Appellate Court—either because it lacked jurisdiction or because Mr. Curry declined to
appeal them. To the extent that Mr. Curry believes the Rooker-Feldman doctrine does not
preclude federal court review of a state court’s interlocutory orders, this court believes he is
mistaken. As the Seventh Circuit has observed, “[n]othing in the Supreme Court's decisions
suggests that state-court decisions too provisional to deserve review within the state's own
system can be reviewed by federal district and appellate courts. . . . A truly interlocutory
decision should not be subject to review in any court; review is deferred until the decision is
final.” Harold, 773 F.3d at 886. See also Carpenter v. PNC Bank, Nat’l Ass’n, 633 F. App’x
346, 347-48 (7th Cir.), cert. denied, 136 S. Ct. 2394 (2016), reh’g denied, 136 S. Ct. 2549
(2016) (finding Rooker-Feldman applicable to judgment that “may not yet be appealable under
state law”).
The fact that the Illinois Appellate Court declined to review Judge Lopez’s denial of Mr.
Curry’s motion to reconsider, therefore, does not place that decision outside the purview of
Rooker-Feldman. The jurisdictional statute on which the Rooker-Feldman doctrine is premised
refers to “judgments or decrees rendered by the highest court of a State in which a decision
could be had.” 28 U.S.C. § 1257(a) (emphasis added). If the Illinois Appellate Court could not
9

review the trial court’s decisions, then the trial court is the highest court “in which a decision
could be had,” meaning that its decisions are not subject to this court’s review.
III.

Judicial Immunity
Fifteen of the eighteen counts in Mr. Curry’s complaint are directed at Judge Lopez

and/or Judge Ahern. Mr. Curry alleges, for example, that Judge Lopez’s July 22, 2015 order
that he pay retroactive child support violates Mr. Curry’s rights under the Eighth and Fourteenth
Amendments to the United States Constitution, as well as a provision of the Illinois Marriage
and Dissolution of Marriage Act (750 ILCS 5/510) relating to the modification of support
payments.

(Compl. ¶¶ 95-101.)

Mr. Curry also alleges that various orders subsequently

entered by Judge Lopez and Judge Ahern subjected him to cruel and unusual punishment in
violation of the Eighth Amendment (Id. ¶¶ 103-04); infringed his rights under 15 U.S.C. § 1673
and 750 ILCS 28/35 by garnishing an excessive share of his disposable earnings (Id. ¶¶ 115-18,
126-28); extorted money from him in violation of 18 U.S.C. § 1951 (Id. ¶¶ 136-44); violated his
Fourteenth Amendment rights to due process and equal protection by “hindering Plaintiff’s
ability/right to defend himself from wrongful acts” and by “treating Plaintiff differently than a
represented party” (Id. ¶¶ 152-53); and subjected him to involuntary servitude in that the court
required him to “maintain a job diary.” (Id. ¶¶ 161-66.)
As explained above, the Rooker-Feldman doctrine bars these claims. Apart from that
doctrine, claims for damages arising from Judges Lopez or Ahern’s decisions are barred by the
doctrine of absolute judicial immunity. That doctrine “shields judicial and quasi-judicial actors
from liability for civil damages arising out of the performance of their judicial functions.”
Killinger v. Johnson, 389 F.3d 765, 770 (7th Cir. 2004). A judge is immune from liability for
judicial action “unless the judge acted in the absence of all jurisdiction.” Polzin v. Gage, 636
F.3d 834, 838 (7th Cir. 2011). Neither bad faith nor malice on the part of a judge is sufficient to
overcome judicial immunity. Myrick v. Greenwood, 856 F.3d 487, 488-89 (7th Cir. 2017) (citing
Mireles v. Waco, 502 U.S. 9, 11 (1991)). And of the three factors identified by the Seventh
10

Circuit as relevant to whether an act is shielded by immunity, see Dawson v. Newman, 419 F.3d
656, 661 (7th Cir. 2005), all favor that determination here: the judges’ acts involved the exercise
of discretion, were acts normally performed by judges, and corresponded to the parties’
expectations of the judges’ conduct. Id.
Mr. Curry nevertheless contends that “there is no Eleventh Amendment immunity in
actions like this particular action.” (Pl.’s Resp. in Opp’n to Defs.’ Rule 12(b)(6) Mot. to Dismiss
7.) But the Eleventh Amendment has little to do with the doctrine of absolute judicial immunity,
which is rooted in the common law and the decisions of the U.S. Supreme Court. See, e.g.,
Forrester v. White, 484 U.S. 219, 225 (1988) (tracing the history of absolute judicial immunity).
Finally, Plaintiff argues that judicial immunity does not apply here because “judges do
not normally perform crimes and/or other acts of willful and wanton misconduct,” and because
“[n]o one ‘expects’ a judge to criminally abuse them and deprive them of civil rights.” (Pl.’s
Resp. in Opp’n to Defs. Rule 12(b)(6) Mot. to Dismiss 11.) He attempts to distinguish the
Seventh Circuit’s recent holding in Myrick v. Greenwood, 856 F.3d 487 (7th Cir. 2017)—which
affirmed the dismissal of a suit against six state judges who presided over the plaintiff’s “lengthy
divorce and child custody proceedings”—on the grounds that “[t]he Myrick judges were accused
of no crimes or non-judicial acts.” (Pl.’s Resp. in Opp’n to Defs. Rule 12(b)(6) Mot. to Dismiss
11.) The effort to distinguish Myrick is unsuccessful. Judges Lopez and Ahern were clearly
engaged in judicial functions when they made decisions about the scope of Mr. Curry’s child
support obligations, the proper remedies for his failures to comply with court orders, and the
merits of his motions for reconsideration and for substitution.

Such decisions involve the

exercise of discretion and judgment, and they are precisely what parties to an ongoing legal
dispute can reasonably expect from a judge presiding over their case. Even if Judges Lopez
and Ahern did err in their interpretations of state and federal law—a question this court does not
decide—this alone would not make their actions “crimes,” cf. Lynk v. LaPorte Superior Court No.
2, 789 F.2d 554, 563-64 (7th Cir. 1986) (“[A]n adverse judgment, even one that is erroneous as
11

a matter of state or even federal law, is not a denial of due process.”), let alone justify a finding
that judicial immunity does not apply. As the Myrick court emphasized, “judicial immunity is not
overcome by allegations of bad faith or malice.” 856 F.3d at 488-89 (citing Mireles, 502 U.S. at
11).
IV.

Subject Matter Jurisdiction
The remaining counts in Mr. Curry’s complaint argue that Ms. Fields and Ms. Curry

infringed Mr. Curry’s rights under the Eighth and Fourteenth Amendments, as well as
15 U.S.C. § 1673 and 750 ILCS 28/35, by serving Plaintiff’s pension fund with a notice directing
the withholding of funds for payment of his support obligations. (Id. ¶¶ 106-13, 130-34). The
final count in the complaint alleges that all Defendants engaged in a conspiracy to violate Mr.
Curry’s constitutional rights. (Id. ¶¶ 168-72.)
Defendants Fields and Curry argue that “Mr. Curry is asking this Article III court to sit as
a divorce court.” (Mem. in Supp. of 12(b)(1) Mot. to Dismiss [25], at 4). They move to dismiss
on the grounds that “the domestic relations exception to federal jurisdiction bars federal courts
from adjudicating claims related to divorce and custody.” (Id. at 4-5.)
The court agrees with Defendants Fields and Curry that it lacks subject matter
jurisdiction in this case, though not because Plaintiff is seeking a declaration of custody or
visitation rights, as in Allen v. Allen, 48 F.3d 259, 260 (7th Cir. 1995), the case Defendants cite.
Mr. Curry withdrew his petition to obtain custody of his children before filing suit in federal court.
(Compl. ¶ 60). Instead, he alleges that Defendants Fields and Curry violated his rights under 15
U.S.C. § 1673 by “creating and serving on Plaintiff’s payor of pension benefits . . . a Notice of
Income Withholding for Support,” (Compl. ¶¶ 106, 130), and by “conspir[ing]” with Defendants
Lopez and Ahern “to violate one or more of Plaintiff’s civil rights” under the Eighth, Thirteenth,
and Fourteenth Amendments. (Compl. ¶ 168.) Whatever the merits of these claims, they need
not be interpreted as requests that the court “sit as a divorce court.” (Mem. in Supp. of 12(b)(1)
Mot. to Dismiss 4.)
12

The court nevertheless concludes it lacks jurisdiction, again for reasons not directly
addressed by counsel. The parties are not diverse in citizenship. Instead, Mr. Curry invokes
federal question jurisdiction “because 15 U.S.C. § 1673 was violated” on numerous occasions.
(Pl.’s Resp. in Opp’n to Rule 12(b)(1) Mot. to Dismiss [31], at 3.) But that statute delegates
enforcement authority to “[t]he Secretary of Labor, acting through the Wage and Hour Division
of the Department of Labor,” 15 U.S.C. § 1676, without expressly creating a private right of
action. Several courts have concluded that this language precludes an implied private right of
action under 15 U.S.C. § 1673. See, e.g., McCabe v. City of Eureka, 664 F.2d 680, 682 (8th
Cir. 1981) (“The absence of any reference to a private right of action in Subchapter II when
viewed in light of Congress’ detailed provision of such a right under Part B of Subchapter I . . . is
in our opinion an implicit manifestation of an intent to deny such a remedy.”); Jordan v. Chase
Manhattan Bank, 91 F. Supp. 3d 491, 501-02 (S.D.N.Y. 2015) (plaintiff “provided no basis for
the Court to infer a private right of action”); Pressman v. Neubart, 2002 WL 31780183, at *3
(S.D.N.Y. Dec. 12, 2002) (subject matter jurisdiction was absent because “15 U.S.C. § 1673,
upon which Plaintiff relies to support his claim that the court has subject matter jurisdiction
under 28 U.S.C. § 1331, does not contemplate a private right of action by an individual debtor”);
Burris v. Mahaney, 716 F. Supp. 1051, 1058 (M.D. Tenn. 1989) (“If there is no implied private
cause of action for a violation of 15 U.S.C. § 1673, it is also only logical that there can be no
section 1983 action for violation of 15 U.S.C. § 1673.”). This court agrees.
The Plaintiff next argues that subject matter jurisdiction exists for his claims against
Defendants Fields and Curry pursuant to civil rights laws.

Specifically, 42 U.S.C. § 1983

recognizes a private right of action against a person who deprives another of his civil rights
under color of law. (Pl.’s Resp. in Opp’n to Rule 12(b)(1) Mot. to Dismiss 3-4.) Defendants
Field and Curry point out that they are private citizens, not government officials (Mem. in Supp.
of Rule 12(b)(1) Mot. to Dismiss 5), but that fact alone is not dispositive of the question whether
they were acting “under color of” state law for purposes of a constitutional claim. A person who
13

is a “willful participant in joint action with the State or its agents” may be liable for a
constitutional violation, Dennis v. Sparks, 449 U.S. 24, 27 (1980). But “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.” Id. at 28.
Resorting to the courts and being on the winning side of a lawsuit is all that Defendants
Fields and Curry are alleged to have done here. Mr. Curry’s only allegation of a purported
conspiracy is that the private parties “strategically draft[ed]” several of the orders that Judge
Lopez later entered (Compl. ¶ 52; Pl.’s Resp. in Opp’n to 12(b)(1) Mot. to Dismiss 10), served
these orders “on Plaintiff’s payor of pension benefits” (Pl.’s Resp. in Opp’n to 12(b)(1) Mot. to
Dismiss 13), and filed a “motion to force Plaintiff to maintain a job diary” that Judge Ahern later
granted. (Compl. ¶ 166.) This conduct, Plaintiff alleges, rendered Defendant Fields and Curry
state actors. The authority he cites, however,—Rankin v. Howard, 633 F.2d 844 (9th Cir. 1980),
overruled on other grounds, Ashelman v. Pope, 793 F.3d 1072 (9th Cir. 1986)—is not
controlling and, in any event, is distinguishable.

In Rankin, the plaintiff alleged that the

defendants “induced the [state] judge to abandon his impartiality and fraudulently alleged
Rankin’s residence in Kansas to create a semblance of jurisdiction.” 633 F.3d at 850. Mr.
Curry, by contrast, alleges conduct that his own brief acknowledges is common practice in the
Circuit Court of Cook County. Whatever the merits of “[t]he custom, of the Circuit Court of Cook
County, Illinois, to allow an adverse party to have control of the final wording of a court order”
(Pl.’s Resp. in Opp’n to Rule 12(b)(1) Mot. to Dismiss 11), it does not provide a basis for a claim
that private litigants are acting under color of law. “[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, 449 U.S. at 28. That is what Mr. Curry’s allegations against Fields and Curry
amount to here, and it is not enough to give this court jurisdiction over his civil rights claims
against them.

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V.

Request for Miscellaneous Relief
Mr. Curry has filed a motion for “miscellaneous” relief, including removal of his case to

this court and an order staying his payment obligations. The court’s conclusions, above, dictate
that much of the relief Mr. Curry seeks in this motion be denied. Mr. Curry also asks, however,
that this court order Defendants Fields and Curry to reimburse him for reasonable expenses he
incurred in effecting service of process, in accordance with Rule 4(d)(2) of the Federal Rules of
Civil Procedure. In an affidavit attached to his motion, Mr. Curry states that he mailed the
required documents to Defendants Fields and Curry on May 18, 2017 via United States Postal
Service (USPS) Priority Mail. (Aff. in Supp. of Mot. for Miscellaneous Relief 2.) He also states
that “USPS tracking of the mailings” confirmed delivery to Curry and Fields on May 19, 2017, at
10:56 a.m. and 11:19 a.m., respectively. (Id. at 3.) When asked at a June 22, 2017 state court
hearing whether they had returned the waiver of service included in the mailings, both
Defendants responded “no.” (Id. at 4.)
Neither Ms. Curry nor Ms. Fields objects to Mr. Curry’s request for reimbursement in
their responses to Mr. Curry’s motion.

The fact that Defendants may justifiably deem this

litigation frivolous does not create an exception to the dictates of Rule 4(d)(2), and Mr. Curry,
who alleges to be unable to pay court-ordered support, can ill afford the costs of service of
process. Pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, this court orders
Defendants to pay the reasonable expenses Mr. Curry incurred in effecting service.

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CONCLUSION
Plaintiff’s Motion for Miscellaneous Relief [6] is denied as to all matters except his
request for reimbursement of reasonable expenses for service of process. Both Motions to
Dismiss [17, 22] are granted.
ENTER:

Dated: December 4, 2017

_________________________________________
REBECCA R. PALLMEYER
United States District Judge

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