THOMAS v. PICCIONE et al

Filing 74

MEMORANDUM OPINION re 61 MOTION for Reconsideration of 58 Memorandum Opinion and 59 Order of October 9, 2013, filed by KEVIN A. THOMAS. Signed by Chief Judge Joy Flowers Conti on 4/24/2014. (blr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Kevin A. THOMAS,
Plaintiff,
v.

Civil Action No. 13-425

Thomas M. PICCIONE, et al.,
Defendants.

MEMORANDUM OPINION
CONTI, Chief District Judge

I.

Introduction
Plaintiff Kevin Thomas (“plaintiff ”) brought this civil rights action against

Holly Thomas, plaintiff ’s estranged wife; John and Dolores DiCola, the parents of
Holly Thomas; Norman Barilla, Holly Thomas’s attorney; two judges on the Court
of Common Pleas of Lawrence County, Pennsylvania, Thomas Piccione (“Judge
Piccione”) and John Hodge (“Judge Hodge”); and Michael Occhibone, a court
administrator (with Judges Piccione and Hodge, the “judicial defendants”). Plaintiff
asserted that Holly Thomas and her parents conspired with the judicial defendants
to deprive him of due process in a child-custody action between plaintiff and Holly
Thomas pending before Judge Piccione. Plaintiff requested that the court award
damages and order Judge Piccione to recuse himself from the underlying state
action or transfer it to a different venue.
The court issued a memorandum opinion (ECF No. 58) dismissing the claims
against Judge Piccione due to absolute judicial immunity. The court abstained and
dismissed plaintiff ’s claims for equitable relief under the principles articulated by
the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971), and its progeny and
stayed plaintiff ’s federal claims for damages and claims under state law until the
conclusion of the underlying state litigation. (ECF No. 58, at 9.) In large part, the
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court based its decision to abstain upon the three conditions identified by the
Supreme Court in Middlesex County Ethics Commission v. Garden State Bar
Association, 457 U.S. 423 (1982). (Id. at 7.)
On November 6, 2013, plaintiff filed a motion (ECF No. 61) for
reconsideration of the dismissal of equitable claims and stay of damage claims
pursuant to Younger.1 On December 10, 2013, the Supreme Court issued an opinion
in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013), addressing Younger
abstention. The court asked the parties to submit supplemental briefs addressing the
import of Sprint. In light of Sprint, the court modifies its previous opinion, which
did not apply the correct standard for abstention. After applying the standard as
clarified by Sprint, the court concludes that abstention is still appropriate. Plaintiff ’s
motion for reconsideration will be denied.

II.

Standard of Review
The court may grant a motion for reconsideration if the party seeking

reconsideration establishes one of the following grounds: “(1) an intervening change
in the controlling law; (2) the availability of new evidence that was not available
when the court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood
Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Because of the interest in finality,
motions for reconsideration should be granted sparingly; the parties are not free to
relitigate issues the court has already decided. Rottmund v. Cont’l Assurance Co.,
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Plaintiff did not seek reconsideration of the dismissal of the claims against Judge
Piccione or of the stay of the related state claims. (ECF No. 61, ¶ 3.)
Plaintiff is not asking the Court to preside over the custody case.
Plaintiff merely seeks an opportunity to prove that his factual
allegations of bias and lack of due process are well-founded and that
Judge Piccione should be removed from the case, and that the case
should proceed before an unbiased judge who is not from Lawrence
County.
(ECF No. 62, at 8.)

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813 F. Supp. 1104, 1107 (E.D. Pa. 1992). “[A] motion for reconsideration is not
properly grounded in a request for a district court to rethink a decision it, has
already made, rightly or wrongly.” Williams v. City of Pittsburgh, 32 F. Supp. 2d 236,
238 (W.D. Pa. 1998).

III.

Dicussion
A. Scope of Younger Abstention
In Younger, the Supreme Court held that federal courts may not enjoin pending

state court criminal prosecutions absent special circumstances such as bad faith or
harassment. Younger, 401 U.S. at 41, 54. In Huffman v. Pursue, Ltd., 420 U.S. 592
(1975), the Court expanded the abstention doctrine to civil nuisance proceedings.
The Court reasoned that the nuisance proceeding at issue in Huffman, to which the
state was a party, was “in important respects … more akin to a criminal prosecution
than are most civil cases.” Id. at 604. The Court later expanded Younger to civil cases
in which a state is not a party, but which involve the authority of the state judicial
system to enforce its orders and judgments. Juidice v. Vail, 430 U.S. 327, 336 n.12
(1976) (applying Younger to challenges to civil contempt orders); Pennzoil Co. v.
Texaco Inc., 481 U.S. 1, 13–14 (1897) (applying Younger to a challenge to the
execution of a civil judgment pending appeal). In New Orleans Public Service, Inc. v.
Council, 491 U.S. 350 (1989) (“NOPSI”), the Court explained that that Younger was
not generally applicable to all cases that involve parallel state and federal
proceedings. Id. at 361. The Court noted that it had only extended Younger to state
criminal prosecutions, civil enforcement proceedings, and “civil proceedings
involving certain orders that are uniquely in furtherance of the state courts’ ability
to perform their judicial functions.” Id. Abstention is limited to such “exceptional
circumstances.” Id.

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In Middlesex, the Court addressed the applicability of Younger abstention to
state bar administrative proceedings. Middlesex, 457 U.S. at 425. The Court set out
three factors in considering this question:
first, do state bar disciplinary hearings … constitute an
ongoing state judicial proceeding; second, do the
proceedings implicate important state interests; and third, is
there an adequate opportunity in the state proceedings to
raise constitutional challenges.
Id. at 432. Many courts “strictly and mechanically applied the three-part test from
Middlesex, while largely ignoring the limitations imposed by NOPSI.” ACRA Turf
Club, LLC v. Zanzuccki, No. 13-3064, 2014 WL 1272859, at *6 & n.7 (3d Cir. Mar. 31,
2014).
In Sprint, the Supreme Court clarified that this mechanical approach attributed
Middlesex with “extraordinary breadth” and conflicted with the Court’s “dominant
instruction” that “abstention from the exercise of federal jurisdiction is the
‘exception, not the rule.’” Sprint, 134 S. Ct. at 593 (quoting Hawaii Hous. Auth. v.
Midkiff, 467 U.S. 299, 236 (1984)). The state bar ethics proceeding in Middlesex was
akin to a criminal proceeding. Id. “Divorced from their quasi-criminal context, the
three Middlesex conditions would extend Younger to virtually all parallel state and
federal proceedings, at least where a party could identify a plausibly important state
interest.” Id. “The three Middlesex conditions … were not dispositive; they were,
instead, additional factors appropriately considered by the federal court before
invoking Younger.” Id. The scope of Younger abstention is limited to “the three
‘exceptional circumstances’ identified in NOPSI.” Id. at 594.

B. Application of Sprint and Younger to the Case at Bar
In the memorandum opinion dated October 9, 2013, the court abstained after
reviewing the “Middlesex conditions.” In light of Sprint, performing this analysis
without considering the limited categories of cases to which Younger can apply is
clear error. The court therefore considers whether this case falls into one of the
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exceptional categories identified in NOPSI and Sprint. The underlying state action is
neither criminal in nature nor a civil enforcement proceeding. The question,
therefore, is whether the state action is a “‘civil proceeding[] involving certain
orders … uniquely in furtherance of the state court[’s] ability to perform [its]
judicial functions.’” Sprint, 134 S. Ct. at 591 (quoting NOPSI, 491 U.S. at 368). The
court concludes that it is.
Federal courts routinely abstained under Younger when litigants asked a federal
court to order a state court judge to recuse. See Shafizadeh v. Bowles, 476 F. App’x 71,
73 (6th Cir. 2012) (affirming, on Younger abstention grounds, district court’s
dismissal of complaint seeking an injunction directing state-court judge to recuse
himself); Chalupowski v. Berry, 151 F. App’x 1, 1 (1st Cir. 2005) (“Appellants asked
the federal court to order the defendant, a state court appellate judge before whom a
motion for contempt was then the only pending matter, to recuse herself ‘from
further hearing in this matter.’ This the court could not do.” (citing Juidice, 430 U.S.
at 335)); H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000) (holding
that Younger abstention applied where plaintiffs sought “wholesale federal
intervention into an ongoing state domestic dispute” similar in nature to the custody
dispute in this case); see also Anthony v. Council, 316 F.3d 412 (3d Cir. 2003)
(affirming decision to abstain under Younger in a case challenging New Jersey
Superior Court Judges’ administration of child support cases); Mann v. Conlin, 22
F.3d 100, 105–06 (6th Cir. 1994) (affirming district court’s dismissal of claims for
injunctive and declaratory relief against state-court judge arising out of pending
domestic relations cases). All these cases were decided before Sprint, and they all
relied heavily on the “Middlesex conditions.”
The court was unable to find case law discussing whether this kind of case—a
plaintiff seeking an order commanding a state court judge to recuse himself or
transfer venue—falls into the third exceptional category identified in NOPSI and
Sprint. The court must therefore reason by analogy to the two Supreme Court cases
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that discuss the “unique breed of Younger abstention” involved in the third category,
Juidice and Pennzoil. ACRA Turf Club, 2014 WL 1272859, at *7 n.8.
Juidice involved a constitutional challenge to civil contempt orders issued by a
state court. The state court entered a default judgment against the defendant in the
underlying state litigation, Harry Vail (“Vail”). Juidice, 430 U.S at 327. Vail
subsequently failed to attend a deposition regarding satisfaction of the judgment. Id.
The court found him in contempt after he did not appear at a contempt hearing,
and after he failed to pay his fine, Vail was jailed for a day. Id. at 329–29. Vail, on
behalf of a class of individuals subject to contempt proceedings in state court, sued
the state-court judges in federal district court, seeking to enjoin the use of civil
contempt procedures authorized by state law. Id. at 330. The Supreme Court held
that the district court should have abstained under Younger:
A State’s interest in the contempt process, through which it
vindicates the regular operation of its judicial system, so
long as that system itself affords the opportunity to pursue
federal claims within it, is surely an important interest.
Perhaps it is not quite as important as is the State’s interest
in the enforcement of its criminal laws, Younger, or even its
interest in the maintenance of a quasi-criminal proceeding
such as was involved in Huffman. But we think it is of
sufficiently great import to require application of the
principles of those cases. The contempt power lies at the
core of the administration of a State’s judicial system.
Id. at 335 (citations omitted). Because of this important interest, and because the
federal plaintiffs had an opportunity to raise their federal claims in state court,
abstention was appropriate. Id. at 337.
The underlying proceeding in Pennzoil was a tortious interference case between
Pennzoil and Texaco in the state courts of Texas. A jury awarded Pennzoil more
than $10 billion in damages. Pennzoil, 481 U.S. at 4. Texaco planned to appeal, but
in order to prevent Pennzoil from executing on the judgment during the pendency
of the appeal, Texaco needed to post a bond of more than $13 billion—a financial
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impossibility for the company. Id. at 5. Texaco filed a federal lawsuit (in the Southern
District of New York) challenging both the judgment and the appeal of bond
requirements of Texas law. Id. at 6 & n.6. The district court enjoined Pennzoil from
attempting to obtain a judgment lien and the court of appeals affirmed. Id. at 8–9.
The Supreme Court reversed, holding that the issuance of the injunction was an
“unprecedented intrusion into the Texas judicial system.” Id. at 10. Younger
abstention is required “not only when the pending state proceedings are criminal,
but also when certain civil proceedings are pending, if the State’s interests in the
proceeding are so important that exercise of the federal judicial power would
disregard the comity between the States and the National Government.” Id. at 11.
Texaco’s challenge to the Texas bond and lien requirements was sufficiently
important to justify abstention because, like Juidice, it involved a “process[] by
which the State compels compliance with the judgments of its courts.” Id. at 13.
States’ judicial process and judicial authority are the touchstones of Pennzoil and
Juidice. See id. at 14 & n.12 (“Our opinion does not hold that Younger abstention is
always appropriate whenever a civil proceeding is pending in a state court. Rather,
as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial
system, so that its orders and judgments are not rendered nugatory.’” (citing Juidice,
430 U.S. at 336 n.12)). The Court subsequently framed these cases as “civil
proceedings involving certain orders that are uniquely in furtherance of the state
courts’ ability to perform their judicial functions.” NOPSI, 491 U.S. at 368; Sprint,
134 S. Ct. at 588.
In asking this court to order the recusal of Judge Piccione, plaintiff indirectly
challenges Pennsylvania courts’ process for judicial recusals. In Pennsylvania, a
party seeking to disqualify a judge must assert “‘the bias, prejudice or unfairness
necessitating recusal’” in a “‘plea of prejudice.’” Reilly by Reilly v. Se. Pa. Transp.
Auth., 489 A.2d 1291, 1299 (Pa. 1985) (quoting In re Crawford’s Estate, 160 A. 585,
587 (Pa. 1931)). That party should address the plea of prejudice to the judge before
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whom the proceedings are pending. Id. Once the judge makes a decision, “it is final
and the case must proceed.” Id. at 1300. This process allows the judge to state the
reasons for granting or denying the motion and “to develop a record on the matter.”
Commonwealth v. Whitmore, 912 A.2d 827, 833 (Pa. 2006). The process is also
essential “‘for the security of the bench and successful administration of justice.’”
Reilly, 489 A.2d at 1299 (quoting In re Crawford’s Estate, 160 A. at 587). If trial
judges’ recusal decisions were not final,
“unfounded and ofttimes malicious charges made during
the trial by bold and unscrupulous advocates might be fatal
to a cause, or litigation might be unfairly and improperly
held up awaiting the decision of such a question or the
assignment of another judge to try the case. If lightly
countenanced, such practice might be resorted to, thereby
tending to discredit the judicial system.”
Id. (quoting In re Crawford’s Estate, 160 A. at 587). The trial court’s decision on
recusal is preserved “as any other assignment of error” and reviewed for abuse of
discretion. Id. at 1300.
Pennsylvania has an important interest in protecting the authority and judicial
functions of its court, including the recusal process. For this court to interpose itself
in Pennsylvania’s recusal process would be as inappropriate as federal intervention
in a state’s civil contempt process, Juidice, 430 U.S. at 336, or a state’s process for
enforcing judgments, Pennzoil, 481 U.S. at 14. For this reason, this case involves the
authority of the state court to conduct its judicial function—the third exceptional
category recognized by NOPSI and Sprint.
The “additional factors” found in Middlesex also support abstention. The state
proceeding is ongoing, implicates important state interests, and affords plaintiff an
adequate opportunity to raise his constitutional claims. As the court wrote in the
opinion of October 9, 2013,
[a] case is considered “ongoing” so long as a party has yet to
exhaust state appellate remedies. O’Neill v. City of Phila., 32
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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.” . . . .
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.
(ECF No. 58, at 7–8.) Plaintiff ’s proper avenue for redress is to appeal the recusal
decision of the state trial judge within the state judicial system and, ultimately, to
the Supreme Court.2
Sprint refocuses the scope of abstention under Younger and directs the court to
analyze the three exceptional categories it identified. This case involves one of those
categories and abstention is appropriate. Federal courts have repeatedly abstained
when asked to order the recusal of a state court judge. The court does not
understand Sprint to require district courts to hear these kinds of cases and issue
these kinds of mandatory injunctions. Nothing could be further from the principle
of comity that underpins the Younger doctrine. Sprint, 134 S. Ct. at 591; Pennzoil,
481 U.S. at 11.
Plaintiff cites Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), for the
proposition that federal courts have the authority to decide whether a state court
2

Plaintiff appears to have done just that. Plaintiff filed a notice of appeal with the
Superior Court of Pennsylvania on October 30, 2013, shortly before moving for
reconsideration in this case, and argument on that appeal was held on March 5,
2014. See K.T. v. H.T., No. 1732 WDA 2013 (Pa. Super. Ct.) (appeal docket
sheet).

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judge’s refusal to recuse violates the Due Process Clause. (ECF No. 62, at 8–9.) In
Caperton, however, the Supreme Court exercised its appellate authority over a final
judgment of the Supreme Court of West Virginia. Caperton did not involve an
ongoing state proceeding, which is the issue before the court. The decisions cited in
Caperton in which the Supreme Court recognized a due process basis for requiring
the recusal of a judge also came before the Court on appeal from or certiorari to the
highest state court. See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) (Supreme
Court of Alabama); Mayberry v. Pennsylvania, 400 U.S. 455 (1971) (Supreme Court
of Pennsylvania); Ungar v. Sarafite, 376 U.S. 575 (1964) (Court of Appeals of New
York); In re Murchison, 349 U.S. 133 (1955) (Supreme Court of Michigan); Tumey v.
Ohio, 273 U.S. 510 (1926) (Supreme Court of Ohio). None of those cases involved
parallel state and federal proceedings. Plaintiff may pursue review of Judge
Piccione’s recusal decision by following the state appellate process and seeking
review by the Supreme Court.3
Plaintiff also cited Fieger v. Ferry, 471 F.3d 637 (6th Cir. 2008), but it is similarly
inapposite because it involved challenges to recusal decisions and the state recusal
rule raised after the state court proceeding had ended, and therefore the Court of
Appeals for the Sixth Circuit analyzed the Rooker–Feldman doctrine rather than
Younger.4 In this case, plaintiff did not challenge to the state’s recusal rule, only how
the rule was applied in the state trial court.

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Plaintiff’s “accompanying” claims for damages (counts 1–3) are stayed rather
than dismissed because, unlike the relief sought in the recusal count, damages are
not available in the ongoing state proceeding. Williams v. Hepting, 844 F.2d 138,
144–45 (3d Cir. 1988). Plaintiff’s state-law claims (counts 5–6) also remain
stayed because plaintiff did not raise this issue in his motion for reconsideration.
See supra footnote 1.

4

In a related case filed during the pendency of the state-court action, the Court of
Appeals for the Sixth Circuit affirmed the district court’s dismissal on Younger
and collateral estoppel grounds. Gilbert v. Ferry, 413 F.3d 578, 579 (6th Cir.
2005) (per curiam).

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IV.

Conclusion
After reconsideration in light of Sprint, the court modifies its opinion (ECF No.

58) as set forth above. As abstention is still warranted, the court’s order (ECF No.
59) dismissing the claims against Judge Piccione, abstaining and dismissing the
equitable relief claims, and staying the remainder of the case remains in effect.
Plaintiff ’s motion for reconsideration is therefore denied. An appropriate order will
follow.
Dated: April 24, 2014

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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