Torkornoo v. Ngole Esq et al

Filing 3

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/31/2015. (c/m 3/31/15)(kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BISMARK KAWKU TORKORNOO,
Plaintiff,
v
JACQUELINE E. NGOLE, Esq., et al.
Defendants.

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Civil Action No. PJM-15-839

MEMORANDUM OPINION
On March 23, 2015, Bismark Kawku Torkornoo (“Torkornoo)” a resident of
Germantown, Maryland, who is self-represented, filed this thirty-two page supplemented
Complaint with exhibits against Jacqueline E. Ngole, Esq., Nina Helwig, Esq, John C. Monahan,
Esq., and Mary Torkornoo, for abuse of process, conspiracy, negligence, and fraud on the court,
arising from child custody disputes and the foreclosure on his former marital home. (ECF 1, 2).
Defendant Mary Torkornoo is Plaintiff’s former wife. Defendant Ngole is an attorney who
represented Mary Torkornoo in her divorce proceedings against Plaintiff. Defendant Nina
Helwig was appointed by the Circuit Court for Montgomery County as a Best Interest Attorney
(“BIA”)1 for the couple’s minor children. (ECF 2-2). Defendant Monahan is an attorney in
private practice who was appointed by the circuit court as trustee over the sale of the
Torkornoo’s former marital home in Maryland. All parties in this action are Maryland residents.

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Under Md.Code (2012 Repl.Vol.), § 1–202(a)(11)(ii) of the Family Law Article (“F.L.”), a court may appoint a
lawyer to serve as a “best interest attorney” to represent the minor child in a contested case as to custody, visitation,
or support. See McAllister v. McAllister, 218 Md.App. 386, 402–04, 97 A.3d 227, 236–37 (2014). The BIA provides
an independent assessment of what is in the child's best interest. See Taylor v. Mandel, 402 Md. 109, 132, 935 A.2d
671, 684 (2007). This is in contrast to a “child advocate attorney” under F.L. § 1–202(a)(1)(i). The child advocate
attorney conveys and advocates the wishes of the child to the court, without regard to what might be in the child's
best interest. McAllister, 218 Md.App. at 403 n.7, 97 A.3d at 237 n.7. A BIA attorney appointed under F.L. § 1–202
does not act as an arm of the court and thus has no immunity from legal malpractice suits. Fox v. Willis, 390 Md.
620, 634, 890 A.2d 726, 734 (2006).

Torkornoo brings this action under the Court’s federal question jurisdiction., 28 U.S.C. §
1331, and pursuant to 42 U.S.C. § 1983. (ECF 2, p. 2). In the Complaint, he disputes a March
25, 2009, ruling by the Circuit Court for Montgomery County awarding Mary Torkornoo full
custody of their three minor children. He also disputes subsequent state court rulings issued
between 2010 and 2013 concerning temporary protective orders, allegations of domestic abuse,
and child visitation involving his children and former wife Additionally, Torkornoo claims that
in 2013, Monahan misrepresented the balance of the mortgage on the marital home and, as a
result, Torkornoo lost his fair share of the equity in the property.
As redress, Torkornoo is seeking: (1) $6,000 in compensatory damages and $80,000 in
punitive damages from Mary Torkornoo; (2) $6,000 in compensatory damages and $500,000 in
punitive damages from Jacqueline Ngole, Esq.; (3) $4,000 in compensatory damages and
$400,000 in punitive damages from Nina Helwig, Esq.; and (4) $20,000 in compensatory
damages and $150,000 in punitive damages from John Monahan, Esq.
DISCUSSION
Federal district courts are courts of limited jurisdiction. See Exxon Mobil Corp. v.
Allapattach Servs., Inc., 545 U.S. 546, 552 (2005); United States ex rel. Voyyuru v. Jadhav, 555
F.3d 337, 347 (4th Cir. 2009). “They possess only the jurisdiction authorized them by the United
States Constitution and by federal statute.” Jadhav, 555 F.3d at 347 (citing Bowles v. Russell,
551 U.S. 205 (2007)).
“It is well established that before a federal court can decide the merits of a claim, the
claim must invoke the jurisdiction of the court.” Miller v. Brown, 462 F.3d 312, 316 (4th
Cir.2006). “[J]urisdiction goes to the very power of the court to act.” Ellenburg v. Spartan
Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). Moreover, a district court has “an

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independent obligation to determine whether subject-matter jurisdiction exists, even when no
party challenges it.” Hertz Corp. v. Friend, 559 U .S. 77, 94 (2010). Of import here, “[s]ubject
matter jurisdiction cannot be forfeited or waived, and can be raised by a party, or by the court
sua sponte, at any time prior to final judgment.” In re Kirkland, 600 F.3d 310, 314 (4th Cir.
2010). Pursuant to Fed.R.Civ.P. 12(h)(3), “the court must dismiss the action” if and when it
determines that the court lacks subject matter jurisdiction. See also Arbaugh v. Y & H Corp., 546
U.S. 500, 506–07 (2006).
Section 1983 of 42 U.S.C. provides, in part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress....
Section 1983 “ ‘ is not itself a source of substantive rights,’ but merely provides ‘a method for
vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In analyzing a § 1983 claim, a court
must first identify “the specific constitutional right allegedly infringed.” Albright, 510 U.S. at
271. In this case, Torkornoo does not identify any federal law or constitutional provision
allegedly infringed as a result of Defendants’ actions, and none is apparent to the Court.
A § 1983 claim requires “that the alleged deprivation was committed by a person acting
under color of state law,” West v. Atkins, 487 U.S. 42, 48 (1988), that is, “a plaintiff must plead
that each Government-official defendant, through the official's own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). State action and action
under color of law mean the same. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 932 (1982).
One can act under color of law without being an officer of the State. Id. at 941. But, such a
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person must be “a willful participant in joint activity with the State or its agents....” Id. (citation
and quotation marks omitted).
Torkornoo presents no allegation that Defendants are state actors under 42 U.S.C. § 1983.
None of the allegations suggests a plausible federal claim against private actors Mary Torkornoo,
Plaintiff’s ex-wife, her divorce attorney Jacqueline Ngole, or Nina Helwig, the children’s BIA.
The Maryland Court of Appeals has made clear that, despite the appointment of a BIA pursuant
to a State statute, see n.1, supra, such an attorney does not act as an arm of the court and thus has
no immunity from a legal malpractice suit. Fox v. Willis, 390 Md. 620, 634, 890 A.2d 726, 734
(2006). Similarly, Defendant Monahan is a private attorney (ECF 1-7), whose participation in the
sale of the marital home did not render him a state actor to subject him to liability under § 1983.2
After reviewing the Complaint and exhibits, the Court is of the view that this action,
although captioned as a proceeding under 42 U.S.C. § 1983, is essentially an attempt to appeal in
this federal court various state court rulings in divorce and custody proceedings in the Circuit
Court for Montgomery County. Domestic relations cases, including child custody matters, are
generally not heard in federal court, precisely because “State courts ... have the experience to
deal with this specific area of the law.” [ ] Cantor v. Cohen, 442 F.3d 196, 202 (4th Cir.2006)
(noting that “federal courts are courts of limited jurisdiction and generally abstain from hearing
child custody matters”) (citing Cole v. Cole, 633 F.2d 1083, 1087 (4th Cir.1980)).
Further, the Rooker–Feldman doctrine warrants abstention in this case. See Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415–16 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482–86 (1983). The Rooker–Feldman doctrine is a jurisdictional rule
that prohibits a federal district court from hearing “cases brought by state-court losers

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It bears noting that based upon a review of the Trustee’s Report of Sale, and other documents, the Circuit Court
for Montgomery County determined the sale was fairly and properly made. (ECF 1-9).

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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). In other words, the
doctrine forbids claims that seek redress for an injury caused by a state-court decision, because
such a claim essentially asks “ ‘the federal district court to conduct an appellate review of the
state-court decision.’ ” Adkins v. Rumsfeld, 464 F.3d 456, 464 (4th Cir. 2006) (quoting Davani v.
Va. Dep't of Transp. 434 F.3d 712, 719 (4th Cir. 2006)), cert. denied, 551 U.S. 1130 (2007).
In summary, this case will be dismissed for lack of subject matter jurisdiction as no state
actor has been identified to have violated federal law or a constitutional provision.3 The claims
plainly involve issues of family law litigated in state court which traditionally have been reserved
to the state court systems so they can apply their expertise and professional support staff.
Further, the Rook-Feldman doctrine precludes this Court from hearing Torkornoo’s appeal of
state family court determinations.
CONCLUSION
For these reasons, the Court will DISMISS this case without prejudice.4 A separate
Order will be entered reflecting the ruling set forth in this Memorandum Opinion.

/s/
PETER J. MESSITTE
March 31, 2015

UNITED STATES DISTRICT JUDGE

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As noted, all the parties reside in the State of Maryland. Thus, there is no basis for the Court to exercise
jurisdiction based on diversity of the parties’ citizenship under 28 U.S.C. § 1332.
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Insofar as Torkornoo may have remedies available in the appropriate state venue, this case will dismissed without
prejudice. The Court expresses no opinion regarding the merits of this case.

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