THOMAS v. PICCIONE et al
Filing
58
MEMORANDUM OPINION granting in part Motion to Dismiss 13 and staying the remainder of the case. Signed by Chief Judge Joy Flowers Conti on 10/8/2013. (blr)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Kevin A. THOMAS,
Plaintiff
Civil No. 13-425
v.
Thomas M. PICCIONE, et al.,
Defendants.
MEMORANDUM OPINION
CONTI, Chief District Judge
I.
Introduction
This case arises out of a contentious and long-running custody dispute and
support action between plaintiff Kevin Thomas and his ex-wife, defendant Holly
Thomas.1 The custody action concerns their son, “CJT,” and is ongoing in Court
of Common Pleas of Lawrence County, Pennsylvania. The complaint alleges that
the judge presiding over these state-court actions, defendant Thomas Piccione,
conspired with Holly Thomas, her parents, her attorney, and other court
officials to rig the case against Kevin Thomas. For the reasons stated below,
Judge Piccione is absolutely immune from the claims against him, and those
claims are dismissed with prejudice. Furthermore, under the principles of
comity and federalism articulated by the Supreme Court in Younger v. Harris,
1
This is not the first federal lawsuit spawned by this dispute. Kevin Thomas
sued many of the same defendants and made many of the same allegations in
a suit filed on October 24, 2011, and docketed as Thomas v. Hodge, Civil No.
11-1344. This case is still pending before this court. Not to be outdone, in
August 2012, Holly Thomas brought a pro se civil rights complaint against
Kevin Thomas, his attorneys, and the judge then hearing the case, docketed as
Thomas v. Thomas, Civil No. 12-1187. She voluntarily dismissed the case two
months later.
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the court will not interfere with the pending state-court actions. The case will be
stayed and administratively closed until the state actions are resolved.
Plaintiff Kevin Thomas filed a six-count complaint (ECF No. 1). Counts 1–
3 seek compensatory and punitive damages under 42 U.S.C. § 1983 for a
conspiracy to violate his constitutional right to fair and unbiased court
proceedings. Count 4 seeks equitable relief ordering the recusal of Judge
Piccione and a change of venue in the underlying custody case. Counts 5 and 6
seek damages for intentional infliction of emotional distress and abuse of
process under state law.
Defendants Thomas Piccione and John Hodge are judges of the Court of
Common Pleas of Lawrence County, Pennsylvania, and defendant Michael
Occhibone is the Court Administrator for that court. These three defendants
filed a Motion to Dismiss and Brief in Support (ECF Nos. 13, 14). Plaintiff filed a
Brief in Opposition to this motion (ECF No. 37). Defendant Norman Barilla is
an attorney and has represented defendant Holly Thomas in the underlying
state litigation. Barilla filed a Motion to Dismiss for Failure to State a Claim
(ECF No. 40). Plaintiff filed a Response in Opposition (ECF No. 53). Barilla
later filed a Brief in Support of his motion (ECF No. 54). These motions to
dismiss are ripe for decision. The remaining defendants are Holly Thomas and
her parents, John and Dolores DiCola.
II.
Factual Background as Set Forth in the Complaint
The underlying custody action has been ongoing since 2004. In 2006, the
case was transferred to Judge Hodge. (Compl. ¶ 7.) In October 2011, Kevin
Thomas filed a pro se civil rights complaint in this court (Thomas v. Hodge, No.
11-1134) alleging that Deborah Shaw, Norman Barilla, John DiCola, Delores
DiCola, and Holly Thomas conspired with Judge Hodge to “rig” the custody case
against the plaintiff in violation of his federal civil rights.2 (Id.) After the
2
Except for Deborah Shaw, all these defendants are also defendants in this
case.
2
complaint was filed, Judge Hodge recused himself.3 The custody case was then
transferred to Senior Judge Eugene Fike. (Compl. ¶ 15).
Although Senior Judge Fike was assigned the custody action and support
action, defendant Judge Piccione entered orders in those cases, allegedly at the
direction of defendants Barilla and Occhibone. (Compl. ¶¶ 15–16.) Sometime
after February 2012, motions intended for Senior Judge Fike were intercepted
and “filtered” by Judge Piccone, while Holly Thomas’s motions went directly to
Senior Judge Fike. (Compl. ¶ 20.)
In August 2012, Holly Thomas filed a federal lawsuit against the plaintiff,
his counsel, and Senior Judge Fike for conspiring to rig the family court
proceedings against her. (Compl. ¶ 23.) This lawsuit was filed pro se, but
defendant Barilla drafted the complaint. (Compl. ¶ 22.) Although Holly Thomas
later voluntarily dismissed the suit, Senior Judge Fike recused himself from the
support action. (Compl. ¶ 25.) Senior Judge Fike continued to preside over the
custody action, but Judge Piccione, “with the aid and support of Judge Hodge,
assumed control” and began presiding over that case in September 2012, with
the apparent acquiescence of Senior Judge Fike. (Compl. ¶ 27.)
The complaint details the “grossly prejudicial behavior” of Judge Piccione
in handling the custody action between September 2012 and January 2013.
(Compl. ¶¶ 28–58.) The laundry list of alleged abuses include that Judge
Piccione
heard several protection from abuse orders in a matter contrary to the
applicable rules by not allowing contemporaneous cross-examination
(Compl. ¶ 33) and continually postponing hearings (Compl. ¶ 34–35),
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refused to recuse himself or permit a change of venue (Compl. ¶ 28),
deferred having a hearing on an emergency petition for change of
custody for more than eight months (Compl. ¶¶ 38–41),
The claims against Judge Hodge in the 11-1344 action were dismissed with
prejudice on May 29, 2012, due to absolute judicial immunity.
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refused to hold John DiCola in contempt for violating the court’s order
that he not attend custody exchanges and changed the order to allow
John and Delores DiCola to attend the exchanges (Compl. ¶ 43),
refused to enforce a subpoena issued by the plaintiff (Compl. ¶ 45),
attempted “to misconstrue or alter the record” (Compl. ¶ 46),
lied about scheduling options (Compl. ¶ 48),
refused to rule on sanctions (Compl. ¶ 49),
intimidated plaintiff’s minor child, CJT (Compl. ¶ 50), and
ignored the divorce case and failed to make any rulings or schedule any
hearings (Compl. ¶ 55).
The complaint alleges in broad terms that the other defendants conspired
with Judge Piccione, but it contains few facts to support such an inference.
III.
Standard of Review
A motion to dismiss tests the legal sufficiency of the complaint. Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the
court is not opining on whether the plaintiff will be likely to prevail on the
merits; rather, when considering a motion to dismiss, the court accepts as true
all well-pled factual allegations in the complaint and views them in a light most
favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388
(3d Cir. 2002). While a complaint does not need detailed factual allegations to
survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a
complaint must provide more than labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a
cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). “Factual allegations must be enough to raise a right to relief above the
speculative level” and “sufficient to state a claim for relief that is plausible on its
face.” Id. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are “merely consistent with” a
defendant’s liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 556–57) (internal citation omitted). Two
working principles underlie Twombly. Id. First, with respect to mere conclusory
statements, a court need not accept as true all the allegations contained in a
complaint. “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at
555.) Second, to survive a motion to dismiss, a claim must state a plausible
claim for relief. Id. at 679. “Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id. “But where the
well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)). A
court considering a motion to dismiss may begin by identifying pleadings that
are not entitled to the assumption of truth because they are mere conclusions.
While legal conclusions can provide the framework of the
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Id.
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IV.
Discussion
A. Judge Piccione Has Absolute Judicial Immunity
The Supreme Court has long held that judges are immune from liability for
acts taken in their judicial capacity. Stump v. Sparkman, 435 U.S. 349, 355–56
(1972) (citing Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1872)). This
immunity applies even if “the action he took was in error, was done maliciously,
or was in excess of his authority.” Stump, 435 U.S. at 356. A judge is subject to
liability for judicial acts only when acting in the “‘clear absence of all
jurisdiction.’” Id. at 357 (quoting Bradley, 80 U.S. at 351).
Judge Piccione is presiding over the custody action in Lawrence County
Common Pleas Court. The plaintiff argues that Judge Piccione is “utterly
without jurisdiction over the Custody Action” because he assumed control over
the case even though Senior Judge Fike had not recused himself and because he
“blatantly ignored the rules of civil procedure and constitutional due process
requirements.” (Pl.’s Br. in Opp’n 7–8, ECF No. 37.) This argument is mistaken.
For immunity to apply, a judge need only “ha[ve] jurisdiction over the subject
matter before him” at the time he took the challenged action. Stump, 435 U.S. at
356. The Pennsylvania Courts of Common Pleas have “unlimited original
jurisdiction of all actions and proceedings,” 42 PA. CONS. STAT. § 931(a), a broad
jurisdiction grant. Cf. Stump, 435 U.S. at 357.
Judge Piccione had jurisdiction over the subject matter of the custody
dispute, and the actions alleged in the complaint are judicial acts. Judge
Piccione is therefore absolutely immune for the actions he took in presiding
over the case. This immunity is not affected by the judge’s motives or the
fairness of the judge’s actions. Gallas v. Supreme Court, 211 F.3d 760, 772 (3d
Cir. 2000). Nor does it matter that he is alleged to have participated in a
conspiracy. See Dennis v. Sparks, 449 U.S. 24, 27–28 (1980) (finding that
private parties conspiring with immune judge were state actors).
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Because the case for judicial immunity is so clear cut, the court will grant
in part the motion to dismiss filed by defendants Piccione, Hodge, and
Occhibone. The claims against Judge Piccione are dismissed with prejudice.
B. Younger Abstention
There is an ongoing state-court custody action, which implicates the
“strong federal policy against federal-court interference with pending state
judicial proceedings absent extraordinary circumstances” articulated in
Younger v. Harris, 401 U.S. 37 (1971), and subsequent decisions. Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982); see
Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010). Younger abstention is
appropriate when the following requirements are met: (1) there are ongoing
state proceedings that are judicial in nature, (2) the proceedings implicate
important state interests, and (3) the federal plaintiff has an adequate
opportunity in the state proceedings to raise constitutional challenges. See
Middlesex Cnty. Ethics Comm., 457 U.S. at 432; FOCUS v. Allegheny Cnty. Ct.
Com. Pl., 75 F.3d 834, 843 (3d Cir. 1996).
A case is considered “ongoing” so long as a party has yet to exhaust state
appellate remedies. O’Neill v. City of Phila., 32 F.3d 785 (3d Cir. 1994) (“‘[A]
necessary concomitant of Younger is that a party must exhaust his state
appellate remedies before seeking relief in the District Court.’” (quoting
Huffman v. Pursue, Ltd., 420 U.S 592, 608 (1975))). The custody dispute is still
pending in state court, so the first requirement of Younger is met.
With respect to whether the proceedings implicate important state
interests, the Supreme Court of the United States held in Moore v. Sims, 442
U.S. 415, 435 (1979), that “[f ]amily relations are a traditional area of state
concern.” Custody disputes pending in state court are generally matters which
will trigger Younger abstention. Lazaridis v. Wehmer, 591 F.3d 666, 671 (3d
Cir. 2010) (holding that Younger abstention was appropriate in custody dispute
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case due to important state interests). Thus, the “important interests”
requirement of Younger is satisfied.
With respect to the requirement that the plaintiff have adequate
opportunity to raise his constitutional challenges in state court, there is no
indication that the Pennsylvania state courts are an inadequate forum for
raising plaintiff’s constitutional claims. At the hearing on these motions,
plaintiff argued he has not been afforded an adequate opportunity to raise the
constitutional claims because he filed two King’s Bench petitions with the
Pennsylvania Supreme Court that were summarily denied. The power of the
King’s Bench and the similar (and often confused)4 power of extraordinary
jurisdiction under 42 PA. CONS. STAT. § 726 are “invoked sparingly.” Bd. of
Revision v. City of Phila., 4 A.3d 610, 620 (Pa. 2010). “‘[E]ven a clear showing
that a petitioner is aggrieved does not assure that this Court will exercise its
discretion to grant the requested relief.’” Id. (quoting Phila. Newspapers, Inc. v.
Jerome, 387 A.2d 425, 494 n.11 (Pa. 1978)). The denial of a King’s Bench
petition or application for extraordinary jurisdiction does not impact the
normally available appeal rights. Plaintiff may raise his constitutional claims in
state court and has not shown that the state courts are an inadequate forum.
There are two minor exceptions to Younger abstention: “(1) the state
proceedings are being undertaken in bad faith or for purposes of harassment or
(2) some other extraordinary circumstances exist.” Lazaridis v. Wehmer, 591
4
The Pennsylvania Supreme Court explains the difference as follows:
Although employed to similar effect, our extraordinary jurisdiction is
distinct from our King's Bench jurisdiction, which allows us to
exercise power of general superintendency over inferior tribunals
even when no matter is pending before a lower court. Where, as here,
an action between the same parties regarding the same issue is
pending in the . . . Court of Common Pleas, the appropriate request is
for the exercise of extraordinary jurisdiction and we will treat
petitioners’ application as such.
Bd. of Revision v. City of Phila., 4 A.3d 610, 620 (Pa. 2013).
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F.3d 666, 670 n.4 (3d Cir. 2010). Neither exception applies here. The plaintiff
initiated many of the state-court proceedings and no special circumstances,
such as a flagrantly unconstitutional state statute, warrant interference with the
state court. See Middlesex, 457 U.S. at 435. The court will therefore abstain.
When Younger applies, injunctive or declaratory relief interfering with the
orders or judgments of state court is not available. Lazaridis, 591 F.3d at 671.
Count 4, which asks the court to exercise its equitable powers to order Judge
Piccione to recuse himself from the custody, divorce, and support actions or to
transfer those proceedings to a different venue, is therefore dismissed. But as
noted by the Third Circuit Court of Appeals, “inasmuch as appellants seek to
recover damages for alleged violations of their constitutional rights . . . ‘a district
court, when abstaining from adjudicating a claim for injunctive relief, should
stay and not dismiss accompanying claims for damages . . . when such relief is
not available from the ongoing state proceedings.’” Wattie-Bey v. Attorney
General’s Office, 424 F. App’x 95, 97 (3d Cir. 2011) (quoting Williams v.
Hepting, 844 F.2d 138, 144–145 (3d Cir. 1988)). The § 1983 claims for damages
will therefore be stayed pending the outcome of the state court proceeding. In
the interest of efficiency, plaintiff’s state tort law claims for intentional infliction
of emotional distress (Count 5) and abuse of process (Count 6) will also be
stayed.
An appropriate order follows.
BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
Dated: October 8, 2013
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