KE v. SUPERIOR COURT OF PENNSYLVANIA, WESTERN DISTRICT et al
Filing
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MEMORANDUM OPINION & ORDER re 39 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MARY RICHMOND and 71 MOTION to Dismiss re 61 Amended Complaint filed by MICHAEL DIPASQUALE, JOSEPH M. WALSH, ROBERT J. CATALDE, JAMES J. FITZGERALD. Signed by Judge Susan Paradise Baxter on 09/12/19. (esa)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZHAOJIN DAVID KE,
Plaintiff
v.
SUPERIOR COURT OF
PENNSYLVANIA, WESTERN
DISTRICT, et al.,
Defendants.
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C.A. No. 18-125 Erie
District Judge Susan Paradise Baxter
MEMORANDUM OPINION
I.
INTRODUCTION
A.
Relevant Procedural History
On May 1, 2018, Plaintiff Zhaojin David Ke, initiated this civil rights action by filing a
pro se complaint pursuant to 42 U.S.C. § 1983 [ECF No. 3], against Defendants Superior Court
of Pennsylvania, Western District (“Superior Court”), Erie County Court of Common Pleas
(“Erie Court”), and Mary Richmond (“Richmond”), an attorney who was appointed by the Erie
Court to serve as Master of Plaintiff’s divorce proceedings. Plaintiff subsequently filed a first
amended complaint [ECF No. 16] omitting his claims against the Superior Court and Erie Court,1
while retaining his claims against Defendant Richmond and adding claims against four new
Defendants: Michael DiPasquale, executive administrator of the Superior Court (“DiPasquale”);
Robert J. Catalde, court administrator of the Erie Court (“Catalde”); The Honorable James J.
Fitzgerald, a senior judge on the Superior Court (“Fitzgerald”); and The Honorable Joseph M.
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Defendants Superior Court and Erie Court were, thus, terminated from this case on July 24, 2018.
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Walsh, a judge on the Erie Court (“Walsh”). For convenience, Defendants DiPasquale, Catalde,
Fitzgerald, and Walsh will be collectively referred to as “Court Defendants.”
On October 1, 2018, Plaintiff filed supplemental counts as to Defendant Richmond only.
[ECF No. 37]. In all, Plaintiff has asserted four claims against Defendant Richmond: (1) a
retaliation claim under 18 Pa.C.S.A. § 4953; (2) a Fourteenth Amendment substantive due
process claim under 42 U.S.C. § 1983; (3) a retaliation claim under Section 1983; and (4) a state
law claim of intentional infliction of emotional distress. On October 12, 2018, Defendant
Richmond filed a motion to dismiss Plaintiff’s amended complaint and supplemental counts
[ECF No. 39], asserting that (1) she is entitled to quasi-judicial immunity from Plaintiff’s Section
1983 claims; (2) the court lacks subject matter jurisdiction to review Plaintiff’s Section 1983
claims under the Rooker-Feldman doctrine; and (3) Plaintiff’s state law claims of retaliation and
intentional infliction of emotional distress fail to state causes of action upon which relief may be
granted. Plaintiff filed a response in opposition to Defendant Richmond’s motion on December
26, 2018 [ECF No. 63], to which Defendant Richmond filed a reply brief [ECF No. 64], and
Plaintiff then filed a sur-reply brief [ECF No. 65].
In the meantime, Plaintiff was granted leave to file a second amended complaint, which
was docketed on December 12, 2018 [ECF No. 61]. However, since the effect of the second
amendment was merely to consolidate the first amended complaint and supplemental counts in
one pleading, Defendant Richmond’s existing motion to dismiss [ECF No. 39] is deemed to have
been filed as to the second amended complaint. In addition to the above-mentioned claims
against Defendant Richmond, the second amended complaint includes the following claims
against the Court Defendants: (1) a Fourteenth Amendment due process claim; (2) a state created
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danger claim under the Equal Protection Clause of the Fourteenth Amendment; and (3) a state
law claim of intentional infliction of emotional distress.
On August 4, 2019, the Court Defendants filed a motion to dismiss Plaintiff’s second
amended complaint [ECF No. 71], arguing, inter alia, that the court lacks subject matter
jurisdiction to review Plaintiff’s Section 1983 claims under the Rooker-Feldman doctrine.
Plaintiff has since filed a brief in opposition to the Court Defendants’ motion [ECF No. 78]. This
matter is now ripe for consideration.
B.
Relevant Factual History
On January 1, 2008, Plaintiff separated from his wife and moved from their marital
home in Erie, Pennsylvania, to Philadelphia, Pennsylvania. (ECF No. 61, Second Amended
Complaint, at ¶ 11). Plaintiff alleges that he and his wife had actually been estranged since 2004,
and even signed a divorce agreement that year. (Id.). On December 23, 2007, Plaintiff was
granted disability retirement and began receiving monthly pension and disability supplemental
payments. (Id. at ¶ 12). On January 31, 2013, Plaintiff’s wife filed a divorce complaint, and on
March 13, 2014, Defendant Richmond was appointed divorce master by the Erie Court. (Id. at
¶ 13).
Defendant Richmond initially held two hearings to determine the parties’ date of
separation. (Id.). A few days after the second hearing on June 16, 2014, Plaintiff found the 2004
divorce agreement and emailed a copy of it to Defendant Richmond; however, she refused to
accept it, allegedly because she was offended by Plaintiff’s criticism of her for overcharging
fees. (Id. at ¶ 15). Defendant Richmond did not issue a report until November 3, 2014, leading
Plaintiff to criticize her, via emails, for her dilatory conduct. (Id. at ¶ 16). In her report Defendant
Richmond designated February 22, 2013, as the date of separation, despite the fact that all parties
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agreed that Plaintiff moved out of the marital home on January 1, 2008. (Id. at ¶ 17). Despite
Plaintiff’s exceptions, the hearing judge upheld Defendant Richmond’s determination of the
separation date on February 2, 2015. (Id. at ¶ 19).
On December 9, 2015, Defendant Richmond scheduled a third hearing; however, Plaintiff
objected to the hearing as unnecessary, twice notified Defendant Richmond that he would not
attend the hearing, and then moved to disqualify her “because of her deliberate prejudice.” (Id. at
¶ 21). After the hearing judge denied Plaintiff’s motion to disqualify Defendant Richmond, the
third hearing was held as scheduled, in Plaintiff’s absence. (Id. at ¶¶ 22-23). After the hearing,
Defendant Richmond issued her second report on September 2, 2016, in which she allegedly
made a number of questionable determinations regarding property distribution, including the
allotment of 50% of Plaintiff’s disability supplement to his ex-wife, without explanation, despite
Plaintiff’s argument that it was not marital property. (Id. at ¶ 23). Plaintiff’s exceptions to this
second report were denied by Defendant Walsh, and Defendant Richmond’s report was
“unconditionally” adopted on November 28, 2016. (Id. at ¶ 27). The divorce decree was
subsequently issued on December 13, 2016. (Id. at ¶ 29). On appeal to the Superior Court,
Defendant Fitzgerald affirmed the state court’s ruling. (Id. at ¶ 34). Plaintiff’s petition for
allowance of appeal was later denied by the Pennsylvania Supreme Court on March 27, 2018.
(Id. at ¶ 36)
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II.
DISCUSSION
A.
Quasi-Judicial Immunity
Defendant Richmond argues that Plaintiff’s Section 1983 claims against her are barred by
quasi-judicial immunity, insofar as they seek monetary damages.
Quasi-judicial immunity attaches to public officials whose roles are “‘functionally
comparable’ to that of a judge.” Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir.2003), quoting
Butz v. Economou, 438 U.S. 478, 513 (1978). In this regard, it is well-settled that the role of a
divorce master appointed by the state court is quasi-judicial in nature. Acavino v. Wilson, 2018
WL 5848982, at *3 (E.D. Pa. Nov. 8, 2018) (finding that divorce master is entitled to quasijudicial immunity because his role “is functionally comparable to a judge); Grier v. Elicker, 2017
WL 3015879, at *3 n.2 (M.D. Pa. June 20, 2017) (recognizing that divorce masters appointed by
state courts “regulate all proceedings in court hearings before them, and have a large range of
duties, many of them identical to judges”); Langella v. Cercone, 2010 WL 2402940, at *7
(W.D.Pa. June 10, 2010) (holding that family law master was entitled to absolute immunity from
suit brought by plaintiff under Section 1983).
Quasi-judicial immunity is an absolute bar to monetary liability for any defendant who
performs judicial functions and is sued in his or her personal capacity, even if the defendant
acted with malice or in bad faith, unless (1) the conduct at issue was not a “judicial act,” or (2)
the conduct was taken in complete absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 11
(1991). These two exceptions are quite narrow in scope and are not frequently invoked to deny
judicial or quasi-judicial officers such immunity. See Stump v. Sparkman, 435 U.S. 349, 362
(1978) (“A judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority; rather, he will be subject to liability only
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when he has acted in the ‘clear absence of jurisdiction.’”); Gallas v. Supreme Court of Pa., 211
F.3d 760, 769 (3d Cir.2000) (“[O]ur analysis must focus on the general nature of the challenged
action, without inquiry into such ‘specifics' as the [official's] motive or the correctness of his or
her decision,” citing Mireles, 502 U.S. at 13.
Here, the crux of Plaintiff claims against Defendant Richmond is that, in determining the
equitable distribution of marital assets, she abused her discretion, “maliciously retaliated” against
Plaintiff, and denied him “economic justice.” Yet, it is beyond dispute that Defendant
Richmond’s conduct at issue was a “judicial act,” regardless of how objectionable Plaintiff may
find it. Moreover, Plaintiff does not, and cannot, argue that Defendant Richmond acted in the
“clear absence of jurisdiction.” Thus, neither of the two exceptions to quasi-judicial immunity
are applicable here. As a result, the Court finds that Plaintiff’s Section 1983 claims against
Defendant Richmond are barred by quasi-judicial immunity, to the extent Plaintiff seeks
monetary damages against her.
B.
Subject Matter Jurisdiction
To the extent Plaintiff seeks equitable relief for his Section 1983 claims,2 both Defendant
Richmond and the Court Defendants argue that this Court does not have subject matter
jurisdiction to hear such claims under the Rooker-Feldman doctrine. This doctrine takes its name
from two cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983), in which the Supreme Court determined that
federal district courts lack subject matter jurisdiction over suits that are essentially appeals from
state-court judgments. The Supreme later clarified that the doctrine “is confined to cases …
brought by state-court losers complaining of injuries caused by state-court judgments rendered
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All of Plaintiff’s claims against the Court Defendants seek equitable relief only.
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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).
Thus, “the doctrine has narrow applicability.” Allen v. DeBello, 861 F.3d 433, 438 (3d Cir.
2017).
According to the Third Circuit Court, four requirements must be met for the jurisdictional
bar of the Rooker-Feldman doctrine to apply: “(1) the federal plaintiff lost in state court; (2) the
plaintiff ‘complain[s] of injuries caused by [the] state-court judgments;’ (3) those judgments
were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court
to review and reject the state judgments. Great W. Mining & Mineral Co, v. Fox Rothschild,
LLP, 615 F.3d 159, 166 (3d Cir. 2010), cert. denied, 536 U.S. 904 (2011), citing Exxon Mobil,
544 U.S. at 284. “Rooker-Feldman does not bar suits that challenge actions or injuries
underlying state court decisions – and especially those that predate entry of a state court decision
– rather than the decisions themselves.” Allen, 861 F.3d at 438. See also Great W. Mining, 615
F.3d at 167 (“when the source of the injury is the defendant’s actions (and not the state court
judgments), the federal suit is independent, even if it asks the federal court to deny a legal
conclusion reached by the state court”). Therefore, “[t]he second and fourth requirements are the
key to determining whether a federal suit presents an independent, non-barred claim.” Great W.
Mining, 615 F.3d at 159.
Here, it is beyond dispute that Plaintiff was the losing party in state court, and that the
state court determination at issue was rendered before the instant suit was filed. Thus, the first
and third requirements for applying the Rooker-Feldman doctrine are plainly satisfied. As to the
second and fourth requirements, however, Plaintiff argues that he “is not directly challenging any
of the adverse state court’s decisions but only targeting the policies underlying those decisions
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that violated the Constitution.” (ECF No. 78, Plaintiff’s Opposition Brief, at p. 6). Plaintiff’s
argument is strongly contested by Defendants.3 This dispute can only be resolved by reviewing
the equitable relief Plaintiff seeks in order to determine the focus of Plaintiff’s various
challenges, and the claimed source of Plaintiff’s injuries. In so doing, the Court finds that
Plaintiff’s second prayer for relief is plainly a direct challenge to the state court judgments and
is, thus, barred by the Rooker-Feldman doctrine.4 As to the remaining claims for equitable relief,
however, the Court finds it unnecessary to resolve the Rooker-Feldman dispute, because it is
evident the relief Plaintiff seeks is neither appropriate, nor cognizable under Section 1983.
In order for this Court to exercise its jurisdiction, the threshold requirements of Article III
must be satisfied; namely, there must be a justiciable case or controversy and the plaintiff must
have standing to bring suit. See Allen v. Wright, 468 U.S. 737, 750-51 (1984); O'Shea v.
Littleton, 414 U.S. 488, 493-94 (1974) (citations omitted); Lusardi v. Xerox Corp., 975 F.2d 964,
974 (3d Cir.1992) (citation omitted). Standing requires that a plaintiff allege an actual injury
suffered as the result of Defendant’s conduct which is likely to be redressed by the relief
requested. Allen, 468 U.S. at 751; O'Shea, 414 U.S. at 493-94. Moreover, “[t]he injury must be
‘fairly’ traceable to the challenged action, and relief from the injury must be ‘likely’ to follow
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Defendant Richmond counters, “Plaintiff is clearly challenging the findings contained within the Reports and
Recommendations issued by Richmond and the Orders of the state courts. Plaintiff is not suggesting that the policies
underlying those findings is wrong or that the Pennsylvania Divorce Code ought to be changed; but that the findings
themselves are incorrect under the law.” (ECF No. 40, Defendant Richmond’s Brief, at p. 19 n. 11). Similarly, the
Court Defendants contend, “It is clear that the primary intent of this civil rights action is to have the state court
orders revisited and rejected because Plaintiff is dissatisfied with the rulings. He asks this Court to conclude that the
state Court wrongly decided the underlying action in violation of the Rooker-Feldman doctrine.” (ECF No. 72,
Court Defendants’ Brief, at p. 4).
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Specifically, Plaintiff seeks an Order declaring that “under the Pennsylvania Divorce Act and in light of the equal
protection of the laws under the Fourteenth Amendment the asset distribution should be equitably distributed and the
valuation dates should be equally applied to both husband and wife.” (ECF No. 61, at p. 37, no. 2). By this, Plaintiff
is clearly inviting the Court to review and reverse the findings of the state courts, which Plaintiff has deemed
inequitable and violative of his equal protection rights.
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from a favorable decision.” Allen, 468 U.S. at 751, citing Simon v. Eastern Kentucky Welfare
Rights Org., 759 U.S. 26, 41 (1976). In this case, the equitable relief sought by Plaintiff fails to
meet these threshold requirements.
In particular, Plaintiff seeks an order (1) declaring that the Court Defendants deprived
him of his Fourteenth Amendment due process rights by not allowing him “to argue his
Exceptions at the hearing set up for that very purpose or to argue his case de novo and by
misusing the appellate review authority (deferential instead of plenary/de novo);” (2) declaring
that the Court Defendants deprived him of his constitutional right to the equal protection of the
laws “by taking away half of his disability supplemental;” (3) declaring that Defendant
Richmond deprived him of his substantive due process rights and retaliated against him when she
rendered her determination; (4) enjoining the Court Defendants from “disregarding [his] right to
due process and the equal protection of the laws in handling the issue of asset distribution and his
disability supplemental;” (5) enjoining the Court Defendants from “disregarding [his] due
process right in the appellate review of his appeal in the Superior Court of Pennsylvania where
the standard of review ought to be genuinely plenary and de novo;” and (6) enjoining Defendant
Richmond “from deviating from constitutionally protected substantive due process when
determining equitable asset distribution and from retaliating against plaintiff…” (ECF No. 61,
Second Amended Complaint, at pp. 37-38, nos. 1, 3, 5-8).
As to the first three claims for declaratory relief, it is well-settled that asking “the District
Court [to] ‘declare’ that [the plaintiff’s] constitutional rights were violated ... is not declaratory
relief in the true legal sense.” Corliss v. O'Brien, 200 F. App'x 80, 84 (3d Cir.2006). “Declaratory
judgment is inappropriate solely to adjudicate past conduct … [and is not] meant simply to
proclaim that one party is liable to another.” Id. See also Blakeney v. Marsico, 340 F. App'x 778,
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780 (3d Cir. 2009) (“[E]ven if defendants violated [plaintiff's] rights in the past as he alleges,
[plaintiff] is not entitled to a declaration to that effect”); Lyman v. Phila. Court of Common
Pleas, 2017 WL 2813228, at *8 (E.D. Pa. Jun. 29, 2017) (“a declaratory judgment may not solely
declare a past violation of rights”). Thus, Plaintiff has failed to plead a legally cognizable claim
for declaratory relief.
With regard to the latter three claims for injunctive relief, it is axiomatic that “An
injunction may not be imposed on a defendant to punish for his past conduct, or be employed
merely as a basis for jurisdiction which otherwise would not exist.” Woods v. Wolfe, 182 F.2d
516, 517-18 (3d Cir. 1950). An injunction “looks to the future,” rather than to past conduct.
Douglas v. City of Jeannette, 319 U.S. 157, 165 (1943). See also O'Shea, 414 U.S. at 495–96
(“Past exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief ... if unaccompanied by any continuing, present adverse effects.”); United States
v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (“The sole function of an action for
injunction is to forestall future violations.”).
Here, Plaintiff is asking this Court to enjoin the Defendants from engaging in the same
unconstitutional conduct that they are alleged to have already taken against Plaintiff during the
state court process. Plaintiff is, therefore, seeking prospective relief to remedy a past wrong. In
order to obtain prospective relief, however, he must demonstrate that he is currently suffering
harm as a result of Defendants’ alleged conduct that will be remedied by the injunctive relief he
seeks. O’Shea, 414 U.S. at 495-96. This he cannot do, as the granting of any of the injunctive
relief he seeks would have no effect on remedying the harm of which he complains. See Smith v.
Commonwealth of Pa., 1994 WL 704963, at *2 (E.D.Pa. Dec. 14, 1994) (finding that plaintiff
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lacked standing to bring claims for injunctive relief because, if granted, they would have no
effect on remedying the alleged harm).
Thus, Plaintiff lacks standing to bring his claims for equitable relief, and such claims
against all Defendants will be dismissed for lack of subject matter jurisdiction.
C.
State Law Claims
In addition to his federal claims, Plaintiff has alleged state law claims of retaliation under
18 Pa.C.S.A. § 4953 against Defendant Richmond, and intentional infliction of emotional
distress against all Defendants. However, because all of Plaintiff’s federal claims are being
dismissed, and in the interests of judicial economy, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims under 28 U.S.C. § 1367(c)(3), and such claims will
be dismissed without prejudice.
D.
Amendment
The Third Circuit has held that “if a complaint is subject to a Rule 12(b)(6) dismissal, a
district court must permit a curative amendment unless such an amendment would be inequitable
or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3rd Cir.2008). In this instance,
Plaintiff will not be granted leave to amend his complaint. As previously discussed, all of
Plaintiff’s federal claims against Defendant Richmond are barred by the doctrine of quasijudicial immunity, to the extent Plaintiff seeks monetary damages, while the remaining federal
claims against all Defendants are being dismissed for lack of subject matter jurisdiction. Under
this set of circumstances, amendment would be futile.
An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ZHAOJIN DAVID KE,
Plaintiff
v.
SUPERIOR COURT OF
PENNSYLVANIA, WESTERN
DISTRICT, et al.,
Defendants.
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C.A. No. 18-125 Erie
District Judge Susan Paradise Baxter
ORDER
AND NOW, this 12th day of September, 2019,
IT IS HEREBY ORDERED that Defendant Richmond’s motion to dismiss [ECF No. 39]
and the motion to dismiss on behalf of Defendants DiPasquale, Catalde, Fitzgerald, and Walsh
[ECF No. 71], are GRANTED, insofar as Plaintiff’s Section 1983 claims against Defendant
Richmond for monetary damages are DISMISSED on the basis of quasi-judicial immunity;
Plaintiff’s Section 1983 claims against all Defendants for equitable relief are DISMISSED for
lack of subject matter jurisdiction; and Plaintiff’s remaining state law claims against all
Defendants are DISMISSED, without prejudice.
The Clerk is directed to mark this case closed.
s/Susan Paradise Baxter
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SUSAN PARADISE BAXTER
United States District Judge
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