SMART et al v. KRAFT et al
OPINION. Signed by Judge Robert B. Kugler on 8/19/2015. (bdk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SALAHUDDIN FARD SMART, et al.,
Civ. No. 14-2977 (RBK) (KMW)
HOWARD KRAFT, ESQ., et al.,
ROBERT B. KUGLER, U.S.D.J.
Plaintiffs, Salahuddin Fard Smart and A.I.S., his a minor child, are proceeding pro se
with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Previously, this Court
administratively terminated this action as plaintiffs had failed to pay the filing fee or submit a
complete application to proceed in forma pauperis. Subsequently, Mr. Smart filed an application
to proceed in forma pauperis. Therefore, the Clerk will be ordered to reopen this case. Mr.
Smart’s application to proceed in forma pauperis will be granted based on the information
provided therein. Therefore, the Clerk will be ordered to file the complaint.
At this time, this Court must screen the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted or because it seeks monetary relief from a defendant who is
immune from suit. For the following reasons, the complaint will be dismissed with prejudice.
The allegations of the complaint will be construed as true for purposes of this screening
Opinion. The complaint names three defendants: (1) Howard Kraft, Esquire; (2) Linda Baxter –
Family Court Judge; and (3) the Division of Child Protection and Permanency (“DCPP”).
The allegations of the complaint appear to arise from a parental rights determination
involving Mr. Smart and his child A.I.S. that took place in New Jersey Family Court. Mr. Kraft
was Mr. Smart’s attorney during these proceedings. According to Mr. Smart, Mr. Kraft was
ineffective during these parental rights proceedings which resulted in Mr. Smart being deprived
of his parental rights to A.I.S.
Mr. Smart asserts that Judge Baxter and the DCPP permitted the termination of his
parental rights and accepted a practice that he could have his parental rights violated without a
showing of unfitness. He claims that his due process rights were violated when the defendants
broke him up from A.I.S. Mr. Smart also states that there is a biasness against males.
Plaintiffs seek monetary damages as well as a declaratory judgment that there is a
biasness against males in terminating parental rights.
STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). That standard is set forth
in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), as explicated by the United States Court of Appeals for the Third Circuit.
To survive the court's screening for failure to state a claim, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764
F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “[A] pleading that offers
‘labels or conclusions' or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. Nevertheless, “pro se litigants
still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis added).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States, and second, that the alleged deprivation
was committed or caused by a person acting under color of state law. See Harvey v. Plains Twp.
Police Dep't, 635 F.3d 606, 609 (3d Cir.2011) (citations omitted); see also West v. Atkins, 487
U.S. 42, 48 (1988).
As previously stated, Mr. Smart and A.I.S. are proceeding in this action pro se. However,
the Third Circuit has held that a non-lawyer parent appearing pro se is not entitled to represent
his children in federal court. See Osei–Afriyie v. Medical College of Pennsylvania, 937 F.2d 876,
883 (3d Cir. 1991). In Osei–Afriyie, the Third Circuit followed the prior decisions of the Second
and Tenth Circuits, which held that a non-attorney parent must be represented by counsel in
bringing an action on behalf of his or her child. Id. at 882–83 (citing Cheung v. Youth Orchestra
Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154
(10th Cir. 1986)). The Third Circuit contemplated that where a non-lawyer parent improperly
attempts to represent his or her children pro se, the children's claims may be dismissed without
prejudice, so that their claims begin to accrue when they reach the age of majority or become
emancipated minors, or the district court may exercise its discretion pursuant to 28 U.S.C. §
1915 to appoint counsel to represent the children. See Osei-Afriyie. 937 F.2d at 883. In this case,
as Mr. Smart is proceeding pro se as a non-lawyer parent, the Court will dismiss the claims his
minor child, A.I.S., is attempting to bring as Mr. Smart cannot represent his minor child.
B. Howard Kraft
State action, a necessary element to bring a Section 1983 claim is lacking in the
complaint against defendant Kraft. He is a private party, not a state actor such that he is not a
proper defendant in this Section 1983 action. See Love v. Law Office of Roberts, No. 11–4500,
2011 WL 4916196, at *2 (D.N.J. Oct.17, 2011) (“As a private attorney, Defendant Roberts is not
a state actor for purposes of § 1983.”) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 3255 (1981);
Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972); Thomas v. Howard, 455 F.2d 228 (3d
Cir.1972)); Catanzaro v. Collins, No. 09–0922, 2010 WL 1754765, at *8 (M.D. Pa. Apr.27,
2010) (“Private attorneys and public defenders are generally not considered state actors for §
1983 purposes when acting in their capacities as attorneys.”) (citing Angelico v. Lehigh Valley
Hosp., Inc. 184 F.3d 268, 277 (3d Cir. 1999) (citing Polk Cnty, 454 U.S. 313)), aff'd by, 447 F.
App'x 397 (3d Cir. 2011) (per curiam). Therefore, the allegations against defendant Kraft fails to
state a Section 1983 claim as a matter of law.
Plaintiff also refers to 42 U.S.C. § 1981 in his complaint. That section states as follows:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts”
includes the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits, privileges, terms,
and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment
under color of State law.
42 U.S.C. § 1981. The United States Court of Appeals for the Third Circuit has noted that:
In order to state a claim under § 1981, a plaintiff “must allege facts
in support of the following elements: (1) [that plaintiff] is a
member of a racial minority; (2) intent to discriminate on the basis
of race by the defendant; and (3) discrimination concerning one or
more of the activities enumerated in the statute[,] which includes
the right to make and enforce contracts. . . .”
Brown v. Phillip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001) ((quoting Yelverton v. Lehman,
No. 94-6114, 1996 WL 296551, at *7 (E.D. Pa. June 3, 1996), aff’d mem., 175 F.3d 1012 (3d
Cir. 1999). In this case, plaintiff fails to state that he is the member of a racial minority.
Furthermore, the amended complaint is completely devoid of any allegations whatsoever that
Kraft intended to discriminate against plaintiff on the basis of his race. Accordingly, plaintiff
fails to state a Section 1981 claim against Kraft upon which relief can be granted such that it will
be dismissed without prejudice. 1
C. Linda Baxter & DCPP
As described above, Mr. Smart’s allegations arise from the termination of his parental
rights in the Family Court proceedings. He asserts that his due process and equal protection
rights were violated during the course of those proceedings.
“The Rooker–Feldman doctrine deprives a federal district court of jurisdiction to review,
directly or indirectly, a state court adjudication.” Judge v. Canada, 208 F. App’x 106, 107–08
(3d Cir. 2006) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413, 416 (1923)). “The Supreme Court has explained that this doctrine
applies to ‘cases brought by state-court losers 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.’” Judge, 208 F. App’x at 108 (citing Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)).
The Rooker–Feldman doctrine precludes a lower federal court from entertaining
constitutional claims that are “inextricably intertwined” with the state court's decision in a
Plaintiff shall have thirty days in which to file a proposed second amended complaint that
addresses the deficiencies with respect to his Section 1981 claim against Kraft should he elect to
judicial proceeding. See Feldman, 460 U.S. at 483 n.16. “State and federal claims are
inextricably intertwined (1) when in order to grant the federal plaintiff the relief sought, the
federal court must determine that the state court judgment was erroneously entered [or] (2) when
the federal court must ... take action that would render [the state court's] judgment ineffectual.”
ITT Corp. v. Intelnet Intern., 366 F.3d 205, 211 (3d Cir. 2004) (internal quotation marks,
footnotes, and citations omitted). “In other words, Rooker–Feldman precludes a federal action if
the relief requested in the federal action would effectively reverse the state decision or void its
ruling.” FOCUS v. Allegheny Cnty. Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996)
(quoting Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)); see also Exxon
Mobil, 544 U.S. at 291–92 (explaining that 28 U.S.C. § 1257 has long been interpreted as vesting
authority to review a state court's judgment solely in the Supreme Court).
More specifically for purposes of this matter, the Third Circuit has consistently affirmed
district court determinations that the Rooker–Feldman doctrine prohibits suits brought in federal
court, pursuant to Section 1983, where plaintiffs challenge the judgments of state family courts.
See, e.g., Gass v. DYFS Workers, 371 F. App’x 315 (3d Cir. 2010) (per curiam) (involving
claims challenging state court orders regarding custody of two minors); Johnson v. City of New
York, 347 F. App’x 850 (3d Cir. 2009) (involving claims seeking review of family court
decisions regarding emergency removal of children from the home); McKnight v. Baker, 244 F.
App’x 442 (3d Cir. 2007) (involving claims that defendants conspired to have family court
suspend the plaintiff's visitation rights with his daughter); McAllister v. Allegheny County Family
Div., 128 F. App’x 901 (3d Cir. 2005) (involving claims where Plaintiff sought to void or
overturn adverse rulings entered in state family court child-custody litigation).
Similarly, courts within this District have repeatedly recognized that they lack subject
matter jurisdiction to entertain claims which challenge adjudications made by state family courts.
See, e.g., Severing v. Div. of Youth & Family Services, No. 11–3767, 2011 WL 5526116, at *1
(D.N.J. Nov. 14, 2011) (dismissing sua sponte Section 1983 claims challenging state court
proceeding terminating the plaintiff's parental rights); Kwiatkowski v. De Francesco, No. 01–
6145, 2006 WL 2347831, at *4-5 (D.N.J. Aug. 11, 2006) (concluding that Rooker–Feldman
barred constitutional claims because they were “a direct result of the actions taken by DYFS and
the state courts” and were so “inextricably intertwined” with the state court proceedings that
federal review would be tantamount to appellate review).
In this case, Mr. Smart’s claims are inextricably intertwined with the family court
proceedings which terminated his parental rights. The only way for this Court to presumably rule
in Mr. Smart’s favor would be to void or overturn the orders that presumably terminated his
parental rights towards A.I.S. Accordingly, this Court lacks jurisdiction over Mr. Smart's claims
against Judge Baxter and the DCPP. Cf. Wilson v. Atl. County DYFS, No. 10–0202, 2010 WL
2178926, at *5-6 (D.N.J. May 25, 2010) (dismissing complaint asserting claims relating to the
family court's issuance of a restraining order which effectively barred plaintiff from seeing his
son because the claims were “inextricably intertwined” with the restraining order and amounted
to a “prohibited appeal” from the family court adjudication).
For the foregoing reasons, this Court will dismiss A.I.S’s claims without prejudice as she
cannot be represented by her pro se father. Mr. Smart’s § 1983 claims against defendant Kraft
will be dismissed with prejudice for failure to state a claim upon which relief may be granted.
Mr. Smart’s § 19081 claim against Kraft will be dismissed without prejudice for failure to state a
claim upon which relief may be granted. Mr. Smart’s claims against Judge Baxter and the DCPP
will be dismissed pursuant to the Rooker-Feldman doctrine. An appropriate Order will be
DATED: August 19, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?