Sullivan v. Henry et al

Filing 5

MEMORANDUM AND ORDER: The Court grants Sullivan's application to proceed in forma pauperis for purposes of this motion only. But, the Court dismisses all of Sullivan's claims pursuant to § 1915. The Court certifies pursuant to 28 U.S .C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment accordingly and to close this case. Ordered by Judge Eric N. Vitaliano on 4/19/2014. (fwd for judgment) (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------][
MARK SULLIVAN,

Plaintiff,
MEMORANDUM & ORDER
-against14-cv-1499 (ENV) (LB)
Honorable PATRICIA E. HENRY, individually:
and in her official capacity as Justice of the
Brooklyn Supreme Court; AMANDA
NOREJKO, Esq.; HILARIE CRACKER, Esq.; :
BINONGXU,
Defendants.

--------------------------------------------------------------][

FILED

*

u.s.o'lti~~OUOFFICE
RTE.O.N.Y.

* APR 23 2014

BROOKLYN OFFICE

VITALIANO, D.J.,
By complaint dated March 4, 2014, plaintiff Mark Sullivan, proceeding pro

se, brings suit pursuant to 42 U.S.C. § 1983 against Binong Xu, his ell-wife, and the
judge and attorneys involved in Sullivan's parental custody dispute, which is
currently pending in Kings County Supreme Court. Specifically, plaintiff seeks
declaratory and injunctive relief overturning certain of Justice Patricia E. Henry's
orders. The Court grants Sullivan's collateral application, pursuant to 28 U.S.C. §
1915, to proceed in forma pauperis for purposes of this motion only. The Court,
however, dismisses, sua sponte, all of Sullivan's claims
Background
Plaintiff seeks to "set[] aside the lower courts orders of supervised visitation
and restor[e] full parental rights to relation with his biological daughter." (Compl.
I

at 3.) In place of a statement of claim, however, plaintiff relies on "excerpt[s] from
[an] appeal," dated August 13, 2008, which appears to have challenged in state court
the termination of visitation with his daughter. (Comp!. at 2.) Notably, plaintiff
previously filed a complaint in this Court also seeking to stay decisions and orders
of Kings County Supreme Court in the same proceeding. See Sullivan v. Xu, No. 10CV-3626 (ENV). On August 6, 2010, the Court dismissed that action for lack of
subject matter jurisdiction. Sullivan v. Xu, No. 10-CV-3626 (ENV), slip op.
(E.D.N.Y. Aug. 6. 2010).
Standard of Review
The purpose of the statute permitting litigants to proceed in forma pauperis is
to insure that indigent persons have equal access to the judicial system. See Cuoco
v. U.S. Bureau of Prisons, 328 F. Supp. 2d 463, 467 (S.D.N.Y. 2004). A litigant need
not demonstrate destitution, but he or she must demonstrate poverty to qualify. See
Potnick v. Eastern State Hosp., 701 F.2d 243, 244 (2d Cir. 1983). Whether a
plaintiff is eligible for in forma pauperis status is a determination that lies within the
sound discretion of the district court. See Choi v. Chemical Bank, 939 F. Supp. 304,
308-09 (S.D.N.Y. 1996).
Further, under 28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in

forma pauperis action sua sponte where it is satisfied that the action "(i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks

2

monetary relief against a defendant who is immune from such relief." An action is
"frivolous" when either: (1) "the 'factual contentions are clearly baseless,' such as
when allegations are the product of delusion or fantasy"; or (2) "the claim is 'based
on an indisputably meritless legal theory."' Livingston v. Adirondack Beverage Co.,
141 F.3d 434, 437 (2d Cir. 1998) (internal citation omitted).
At the pleadings stage, a court must assume the truth of "all well-pleaded,
nonconclusory factual allegations" in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621F.3d111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S.
662 (2009)). A complaint must plead sufficient facts to "state a claim to relief that is
plausible on its face." Bell AtL Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Moreover, it is axiomatic that prose complaints are held to less stringent standards
than pleadings drafted by attorneys and the Court is required to read the plaintifrs

prose complaint liberally and interpret it raising the strongest arguments it
suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe, 449 U.S. 5, 9
(1980); Sealed Plaintiffv. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).
Furthermore, this Court has an independent obligation to determine whether
subject matter jurisdiction exists, even in the absence of a challenge from any party.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999); Wynn v. AC Rochester,
273 F.3d 153, 157 (2d Cir. 2001); Fed. R. Civ. P. 12(h)(3).
Analysis

3

As set forth by the Court in plaintiff's prior case, it is well-settled that "the
whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United States." In re
Burrus, 136 U.S. 586, 593-94 (1890). "So strong is [the Supreme Court's] deference
to state law in this area that [the Supreme Court has) recognized a 'domestic
relations exception' that 'divests the federal courts of power to issue divorce,
alimony, and child custody decrees."' Elk Grove Unified Sch. Dist. v. Newdow, 542
U.S. 1, 12-13 (2004) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)).
Here, plaintiff challenges a child custody order. Although plaintiff invokes his
constitutional rights, the substance of his claims concern state law domestic relations
matters. Therefore, this action is dismissed, as this case is barred by the domestic
relations exception to the jurisdiction of the federal courts. Schottel v. Kutyba, 2009
WL 230106 (2d Cir. 2009).
Further, even ifthe Court did not lack jurisdiction based on the domestic
relations exception, the Court is without jurisdiction over plaintiff's declaratory
judgment and injunctive relief claims under the abstention doctrine set out by the
Supreme Court in Younger v. Harris, 401 U.S. 37, 43-45 (1971). Under Younger,
abstention is mandatory where: "1) there is an ongoing state proceeding; 2) an
important state interest is implicated; and 3) the plaintiff has an avenue open for
review of constitutional claims in the state court." Libertv Mut. Ins. Co. v. Hurlbut,
585 F.3d 639, 647 (2d Cir. 2000). The doctrine applies to claims for injunctive and
declaratory relief. See Hansel v. Town Court for the Town of Springfield, 56 F.3d

391, 393 (2d Cir. 1995).
Here, each of the three Younger conditions is satisfied. First, the state
proceeding is apparently ongoing. Second, disputes concerning visitation and
custody rights over minors implicate important state interests. Questions of family
relations, especially when issues of custody are involved, are traditionally an area of
state concern. See Rohling v. New York, 2004 WL 3623341, at *2 (N.D.N.Y. 2004).
Third, plaintiff has not alleged, nor is it conceivable that he could, that state courts
could not afford him the opportunity for judicial review of his civil rights challenge.
See Hansel v. Town Court for the Town of Springfield, 56 F.3d 391, 393 (2d Cir.
1995); Cogswell v. Rodriguez, 304 F.Supp.2d 350, 357 (E.D.N.Y. 2004).
Furthermore, plaintiff's allegations fail to show either great or immediate harm.
Younger, 401 U.S. at 46-47. Accordingly, this court must abstain from adjudicating
plaintiff's claim regarding the ongoing state court proceedings.
Conclusion
The Court grants Sullivan's application to proceed in forma pauperis for
purposes of this motion only. But, the Court dismisses all of Sullivan's claims
pursuant to § 1915.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment accordingly and to close this
case.

5

SO ORDERED.
Dated:

Brooklyn, New York
April 19, 2014

I
s/Eric N. Vitaliano
ERf"c'N. VITALIANO ··""'CCV
United States District Judge

6