WOOLSEY ROSS et al v. MITZEL et al
OPINION. Signed by Judge John Michael Vazquez on 9/28/2017. (ld, )
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEANETTE WOOLSEY ROSS et al.,
Civil Action No. 17-6195
DESIREE MITZEL et a!.,
John Michael Vazguez, U.S.D.J.
Plaintiffs Jeanette Woolsey Ross and Howard Ross seek to bring this action in forma
pauperis pursuant to 28 U.S.C.
§ 1915. D.E. 1. For the reasons discussed below, the Court
GRANTS Plaintiffs application to proceed inforrnapattperis but the Complaint is DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C.
1915(e)(2)(B) for failing to state a claim upon
which relief can be granted.
1915, this Court may excuse litigants from prepayment of fees when a litigant
“establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express Airlines,
Inc., 886 F.2d 598, 601 (3d Cir. 1989). Plaintiffs sufficiently establish their inability to pay, and
the Court grants their application to proceed in forma pauperis without prepayment of fees and
However, when allowing a plaintiff to proceed in forma pauperis, the Court must review
the complaint and dismiss the action if it determines that the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary relief against a defendant who
is immune. 28 U.S.C.
When considering dismissal under
§ 1915(e)(2)(B)(ii) for failure to state a claim on which
relief can be granted, the Court must apply the same standard of review as that for dismissing a
complaint under Federal Rule of Civil Procedure 12(b)(6). Schreane v. Seana, 506 Fed. App’x
120, 122 (3d Cir. 2012). To state a claim that survives a Rule 12(b)(6) motion to dismiss, a
complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Because Plaintiffs are proceeding pro Se, the Court construes the pleadings liberally and holds
them to a less stringent standard than those filed by attorneys. Haines v. Kerner, 404 U.S. 519,
520 (1972). “The Court need not, however, credit apro se plaintiffs ‘bald assertions’ or ‘legal
conclusions.” D’Agostino v. CECOMRDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010).
This case appears to be, in essence, a challenge to a state court foster care custody
determination regarding Plaintiffs’ biological daughter, “RMR,” who has been placed in
Defendants’ custody. Plaintiffs complaint asserts a claim for writ of habeas corpus under 28
§ 2254 challenging Defendants’ “temporary Guardianship [sic]” of Plaintiffs’ daughter
“RMR.” Compl. at 1-2. Plaintiffs argue, among other things, that “RMR is being held against her
will from the care and custody rightfully hers with her biological parents/Our family and Family
Property Law has been violated.” Id. at 1. Plaintiffs additionally allege violations of the first,
Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments. Id. at 5. Plaintiffs also appear
to assert a claim under the Parental Kidnapping Prevention Act (“PKPA”), the Uniform Child
Custody Jurisdiction and Enforcement Act (“UCCJEA”), the Uniform Child Custody Jurisdiction
Act (“UCCJA”), and “section 1028.” Id. at 1-2.
The facts alleged in the complaint are limited, unclear, and do not follow a consistent
timeline. Nevertheless, it appears that Plaintiffs claim that on May 14, 2009, Plaintiffs’ daughter
was unlawfully taken from Plaintiffs’ custody by the Orange County (NY) Department of Social
Services at a hospital’ based on false allegations of abuse. Id. at 1. Plaintiffs’ contend that this
action was taken despite the fact that their daughter was not in imminent danger. Id. at 2. Plaintiffs
provide very few details about the court proceedings, however Plaintiffs make reference to the fact
that the Orange County Family Court granted Defendants Desiree and Charles Mitzel a “temporary
guardianship” of RMR on August 4, 2010. Id. at 2. It appears from the Complaint that the Orange
County Family Court issued an order that placed Plaintiffs’ daughter in foster care with the
Defendants. Id. at 3.
Plaintiffs separately claim that the State of New York and the Orange County Family Court
did not have proper jurisdiction because Plaintiffs and Plaintiffs’ daughter were residents
domiciled in the State of New Jersey. Id. at 1. The complaint also asserts that the Ulster County
(NY) Family Court lacks jurisdiction, but it is unclear from the complaint what Ulster County
Family Court decision Plaintiffs are referencing. Plaintiffs lastly claim that a “102$ proceeding
was filed for and a 1028 proceeding was never held” without providing any additional context. Id.
‘Plaintiffs state in their complaint that their daughter “was unlawfully seized from St. Luke’s
Hospital on May 1 4th 2009 appx. 10pm, by Orange County New York State CPS Goshen New
York.” P1. Compi. at 1.
a. 28 U.S.C.
§ 2254 Habeas
Plaintiffs complaint, while difficult to construe, appears to first make a habeas corpus claim
under 28 U.S.C.
§ 2254. Compl. at 1. Plaintiffs seem to challenge the confinement of their
daughter in violation of the “WARRANT CLAUSE”4 as well as the First, Fourth, Fifih, Sixth,
Eighth, Ninth, and
Amendments. Id. at 1-2.
This Court has jurisdiction to hear a writ of habeas corpus under Section 2254 for persons
“in custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
“Custody” can mean physical custody or both “significant restraints on liberty.. which were not
shared by the public generally,’ along with ‘some type of continuing governmental supervision.”
Obado v. New Jersey, 328 F.3 d 716, 717 (3d Cir. 2003) (quoting Bariy v. Bergen Coitnty Probation
Dept., 128 F.3d 152, 160 (3d Cir. 1997). In interpreting Section 2254, the Supreme Court has
made clear that those who are placed under the supervision of a foster parent are not considered to
be in the “custody” of the state for the purposes of Section 2254. Lehman v. Lycoming Cnty.
Children’s Servs. Agency, 458 U.S. 502, 505-16 (1982). It is well established that neither the
The Court notes that it will not address potential defenses to the claims raised herein. In
particular, it appears that even if Plaintiffs’ habeas corpus claim had merit, it concerns a decision
whose statute of limitations has run. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.”); Compi. at 2 (claiming that “the Mitzels were granted a temporary
Guardianship [sic] of RMR on August 4th 2010 by Hon [sic], Judge Binova in Orange County
Family Court New York State.”).
Plaintiffs titled their complaint “RE-HABEOUS CORPOUS 2254 [sic]”and Plaintiffs also
attached a form titled “Form for use in application for Habeas Corpus under 28 U.S.C. § 2254”
and included it in the submitted documents. Compi. at 1.
The Court construes “WARRANT CLAUSE” to refer to the Fourth Amendment.
termination of parental rights nor the decision to place a child in foster care custody may be
challenged using Section 2254. Lehman, 458 U.S. at 411 (“Although a federal habeas corpus
statute has existed ever since 1867, federal habeas has never been available to challenge parental
rights or child custody.”). Here, Plaintiffs’ Section 2254 claim is apparently based on the fact that
their daughter was placed in the foster care of Defendants. See Cornpl. at 3 (referencing Plaintiffs’
daughter being “placed in foster care”). Because it is well established that neither a parent’s
allegations of unlawful termination of parental rights nor a child’s placement in foster care are
considered “custody” within the scope of Section 2254, this Court lacks the jurisdiction to hear
Plaintiffs’ claims based on Section 2254. Therefore, Plaintiffs’ claims based on Section 2254 are
dismissed for lack of subject-matter jurisdiction.
b. PKPA Claim
Plaintiffs’ complaint next appears to allege that the Orange County Family Court and
Orange County Department of Social Services violated, among other statutes, the Parental
Kidnapping Prevention Act of 1980, 28 U.S.C.
§ 173$A (“PKPA”) when it granted Defendants
some form of custody over Plaintiffs’ daughter.6 Plaintiffs also allege that Ulster County Family
“Federal courts are courts of limited jurisdiction, and when there is a question as to our
authority to hear a dispute, ‘it is incumbent upon the courts to resolve such doubts, one way or
the other, before proceeding to a disposition on the merits.” Zambelli fireworks Mfg. Co. v.
Wood, 592 F.3d 412, 418 (3d Cir. 2010) (quoting CarlsbergRes. Corp. v. Cambria Say. &Loan
Ass’n, 554 F.2d 1254, 1256 (3d Cir. 1977)). “When a federal court concludes that it lacks
subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006).
Plaintiffs’ complaint states that “Due Process of Law was violated when the state of New York
Orange County CPS and Orange County Family Court did NOT DEFER TO THE HOME
STATE OF NEW JERSEY [sic] in violation of DUE PROCESS CLAUSE, [N VIOLATION OF
[T]HE PKPA-ACT[,] THE UCCJEA-ACT, RULES, LAWS, CODES STATUES [sic].” Compl.
Court similarly violated the PKPA, however Plaintiffs do not specify how the Ulster County
Family Court is involved in the facts of this case.
The PKPA “imposes a duty on the States to enforce a child custody deteniiination entered
by a court of a sister State if the determination is consistent with the provisions of the Act.”
Thompson v. Thompson, 484 U.S. 174, 175—76 (1988). However, in Thompson, the Supreme
Court made clear that the PKPA “does not create a private right of action in federal court.” Id. at
178-79; Fleming v. Cape May Cty., 475 F. App’x 811, $12 (3d Cir. 2012) (reaffirming that the
PKPA does not create a private right of action). Because of the Supreme Court’s clear holding in
Thompson, this Court does not have any authority to grant Plaintiffs claims based on the PKPA.
See Laliaina v. Brannon, 804 F.Supp. 60$, 612 (D.N.J. Aug. 27, 1992). Therefore, Plaintiffs’
claims based on the PKPA are dismissed pursuant to 2$ U.S.C.
§ 1915(e)(2)(B) for failing to state
a claim upon which relief can be granted.
c. UCCJEA, UCCJA, Section 1028 Claims
Plaintiffs’ complaint also appears to allege that the Orange County family Court and
Orange County CPS violated the UCCJA and the UCCJEA when it exercised jurisdiction over the
custody action. Compl. at 2. However, the Plaintiffs fail to further describe their UCCJA and
UCCJEA claims. The Court presumes that the Plaintiffs are claiming violations of the New York
UCCJEA, codified as N.Y. Dom. Rel. Law
§ 75 et seq. Plaintiffs also allege that their rights were
violated because a “1028 proceeding” was not held. Compl. at 2. The Court presumes that
Plaintiffs are alleging violations of the New York Family Court Act
However, this Court has no subject-matter jurisdiction to resolve purely state law claims.7
“Federal courts have subject matter jurisdiction over a case if it satisfies federal question
jurisdiction under 28 U.S.C.
§ 1331, or diversity jurisdiction under 2$ U.S.C. § 1332.” Hines v.
Irvington Counseling Ctr., 933 F. Supp. 382, 387 (D.N.J. 1996). Pursuant to 2$ U.S.C.
“[t]he district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” “[A] claim arises under federal law if federal
law creates the cause of action.” Empire HealthchoiceAssur., Inc. v. Mc Veigh, 547 U.S. 677, 706
(2006) (quoting Merrell Dow Pharm. Inc. v. Thompson, 47$ U.S. 804, 808 (1986)). To establish
diversity jurisdiction pursuant to 28 U.S.C.
§ 1332(a), “the party asserting jurisdiction must show
that there is complete diversity of citizenship among the parties” as well as an amount in
controversy exceeding the statutory threshold. Schneller cx rd Schneller v. Crozer Chester Med.
Ctr., 387 Fed. App’x 289, 292 (3d Cir. 2010).
Here, Plaintiffs have failed to set forth any facts supporting this Court’s subject-matter
jurisdiction for their claims based on the New York UCCJEA or the New York Family Court Act.
Plaintiffs’ claims based on New York state law do not raise a federal question. Additionally, while
Plaintiffs have stated that they were residents of New Jersey, Compl. at 2, and currently domiciled
in Virginia, P1. IF? Application, they have not included any facts by which this Court may
determine the citizenship of Defendants. In short, Plaintiffs have failed to provide any basis for
this Court’s jurisdiction over their New York UCCJEA or Family Court Act claims. Therefore,
Plaintiffs claims based on the “UCCJA,” “UCCJEA,” and “1028” are dismissed.
While it is true that federal courts may exercise supplemental jurisdiction under 28 U.S.C. §
1367, the court must first have original jurisdiction over the civil action under 28 U.S.C. § 1332.
Here, there is no such jurisdiction under Section 1332, and therefore this Court may not exercise
jurisdiction over any state law claims under Section 1367.
d. Remaining Constitutional Claims
Plaintiffs’ remaining claims appear to allege violations of the First, Fourth, fifth, Sixth,
Eighth, Ninth, and fourteenth Amendments to the Constitution. Compi. at 5. Plaintiffs do not
include the vehicle by which they are bringing these challenges based on the Constitution, however
the Court assumes they are using 42 U.S.C.
§ 1983. To the extent that Plaintiffs were solely
relying on Section 2254 regarding their constitutional claims, that section was analyzed above.
federal lawsuits under Section 1983 to enforce these Amendments require government
officials to be exercising governmental power—i.e. “state action.” “To state a claim under § 1983,
a plaintiff must allege the violation of a right secured by the Constitution and laws of the United
States, and mttst show that the alleged deprivation was committed by a person acting under color
ofstate law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). Private actors can only
be found to be state actors if “there is such a ‘close nexus between the State and the challenged
action’ that seemingly private behavior ‘may be fairly treated as that of the State itself”
BrentwoodAcad. v. Tennessee Secondary Sc/i. Athletic Ass z, 531 U.S. 288, 295 (2001) (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
Here, however, Plaintiffs attempt to bring these constitutional claims against Defendants,
who appear to be private citizens. Claims based on the Constitution are generally not cognizable
against private citizens functioning as foster parents. See, e.g., Leshko v. Sen’is, 423 f.3d 337,
347 (3d Cir. 2005) (holding that foster parents in Pennsylvania are not state actors for purposes of
The Fourth, Fifth, and Eighth Amendments also provide a private cause of action against
federal actors. Bivens v. Six Unknown fed. Narcotics Agents, 403 U.S. 388 (1971) (establishing
a right of action under the Fourth Amendment); Davis v. Passman, 442 U.S. 22$ (1979)
(establishing a right of action under the fifth Amendment); Carlson v. Green, 446 U.S. 14
(1980) (establishing a cause of action under the Eighth Amendment). Here, however,
Defendants are private citizens not engaged in any federal state action.
§ 1983); Dyer v. Family Court, 2016 WL 7494864, at *4 (E.D.N.Y. Dec. 28, 2016)
(dismissing claims against a foster mother because she was not a state actor) ; Smith v. Gristina,
2012 WL 247017, at *3 (S.D.N.Y. Jan. 6, 2012) (“Courts of Appeals that have examined whether
foster parents are state actors under Section 1983 have resoundingly answered in the negative.”);
Lynn v. St. Anne Inst., 2006 WL 526796, at *17 (N.D.N.Y. Mar. 2, 2006) (holding that a foster
care institution was not a state actor). Plaintiffs did not include any basis in their complaint to
conclude that Defendants are acting under the color of state law. Rather, it appears that Defendants
are simply private citizens who were granted some form of foster care custody over Plaintiffs’
daughter. Id. at 3. Therefore, these remaining constitutional claims fail because there is no
plausible allegation that Defendants are state actors.
When dismissing a case brought by a pro se plaintiff, a court must decide whether the
dismissal will be with prejudice or without prejudice, which affords a plaintiff with leave to amend.
Grayson v. Mayview State Hosp., 293 F.3d 103, 110-11 (3d Cir. 2002). The district court may
deny leave to amend only if(a) the moving party’s delay in seeking amendment is undue, motivated
by bad faith, or prejudicial to the non-moving party or (b) the amendment would be futile. Adams
v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). At this point, the Court cannot conclude that
Plaintiffs claims are futile. Therefore, the Court shall provide Plaintiff thirty (30) days to file an
amended complaint that cures the deficiencies set forth herein, and meets all other requirements
for Section 1983 claims.
If Plaintiff does not submit an amended complaint curing these deficiencies within thirty
days, the dismissal will then be with prejudice. A dismissal with prejudice means that Plaintiff
will be precluded from filing any future suit against Defendants concerning the allegations in the
complaint. An appropriate form of Order accompanies this Opinion.
Dated: September 28, 2017
ICHAEL VAZQ3E7, F.S.D.J.
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