Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/conspir.zip/744FS798.TXT

Text File | 1993-07-27 | 21KB | 382 lines

               DONALD NORTON, Plaintiff, v. CARON COBB, Defendant

                                  No. C89-1762

           UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OF                              OHIO, EASTERN DIVISION

                 744 F. Supp. 798;  1990 U.S. Dist. LEXIS 11889


                             August 15, 1990, Filed

COUNSEL:   [**1]

   Robert Troll Lynch, Lynch & Lynch, Cleveland, Ohio, For
Plaintiff.

   Howard Mishler, Cleveland, Ohio, For Defendant.

JUDGES: Frank J. Battisti, United States District Judge.

OPINIONBY: BATTISTI

OPINION:   [*798]   MEMORANDUM AND ORDER

   FRANK J. BATTISTI, UNITED STATES DISTRICT JUDGE

   This civil rights Complaint juxtaposes the issue: whether false
accusations of child abuse, which result in denial of visitation
[*799]   rights, state a constitutional violation cognizable under
the civil rights laws? In addition to this constitutional issue,
Plaintiff Donald Norton ("Norton") has also alleged several state
law claims. Pursuant to Fed.R.Civ.P. 12(b)(6), Defendant natural
mother and former spouse Caron Cobb ("Cobb") has filed a Motion to
Dismiss; Norton has filed a Brief in Opposition. For the following
reasons, the pendent state law claims are DISMISSED without
prejudice, and the Motion to Dismiss is GRANTED.

   The material factual allegations can be briefly stated. Norton,
the father of four and a half year old infant David Norton
("David"), is the former spouse of Defendant Cobb. Complaint, at
para. 6. The parties married on February 14, 1984, divorced in
1986, with Cobb having custody of David and Norton having
visitation rights. Id., at 2. Norton alleges that Cobb "maliciously
[**2]   and intentionally conspired with Ms. Jennifer Metro,
Theresa Thornhill, Mr. Louis Kaszas, and other agents and employees
of the Lorain County Children Services Board in order to destroy
the father-son relationship that existed between Plaintiff and his
son." Id., at para. 8. Cobb and the employees of the Board
"attempted to and succeeded in denying visitation" between Norton
and his son David. Id., at para. 8. Because of these fraudulent
allegations of sexual abuse -- made in May 1988 and in March 1989,
Cobb "continues to deny" Norton his visitation rights and Cobb "has
been aided by the continued assistance" of the Board and itsemployees. Id. Norton alleges he has not been charged, indicted, or
arrested for any criminal violations, and that various
professionals -- the family doctor, the emergency room staff at a
hospital, and a school psychologist, have found no evidence of
sexual abuse. Thus, Norton claims his constitutional right to
continue a father-son relationship. Id., at paras. 9-10.
    PAGE  137             744 F. Supp. 798, *799; 1990 U.S. Dist.
LEXIS 11889, **2      LEXSEE

   Norton filed this civil rights action on September 14, 1989,
under 42 U.S.C. @@ 1983 and 1985 seeking solely monetary damages
from Cobb. n1 Norton also alleges several pendent  [**3]   state
law claims for infliction of emotional distress, interference with
family relations, and invasion of privacy. Cobb, as noted, has
filed a Motion to Dismiss under 12(b)(6).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n1 Norton sues only Cobb and not her alleged co-conspirators.
Because civil conspiracy is a tort with joint and several
liability, Plaintiff may sue one conspirator, or all of them, in a
judicial forum. U.S. Industries v. Touche Ross & Co., 854 F.2d 1223
(10th Cir. 1988). Although co-conspirators in civil rights cases
are usually sued jointly, Plaintiff, as the master of his
Complaint, may select the theories and sue the Defendants he
wishes. The Complaint as drafted, however, could arguably represent
a continuation of a bitter divorce battle in which the child is
used as a pawn. Such an argument could be framed from the relief
requested (solely damages).

   Despite this potential argument, the Court assumes that the
Complaint represents a serious civil rights question that merits
thoughtful judicial consideration.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   A. Subject Matter Jurisdiction.  [**4]

   As to the federal civil rights claims, this Court has subject
matter jurisdiction under 28 U.S.C. @ 1343(a)(3) and @ 1331. n2 The
state law tort claims -- purportedly arising from a common nucleus
of operative fact -- invoke pendent-claim jurisdiction. United Mine
Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L.
Ed. 2d 218 (1966). n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n2 Despite the jurisdictional allegations that the amount in
controversy exceeds $ 10,000 -- Complaint at para. 3 -- the
statutory amendment to 28 U.S.C. @ 1331 in 1980 abolished, for
federal questions, the minimal jurisdictional amount. Prior to
1980, there was an advantage of using 28 U.S.C. @ 1343 (civil
rights jurisdiction) because it lacked a jurisdictional amount.

   n3 This Order does not address the merits of the pendent state
law claims.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Alter reviewing the pleadings, the Motion to Dismiss, andNorton's Brief in Opposition, the constitutional claim appears to
be somewhat novel and perhaps, somewhat attenuated; furthermore,
the state law claims, if true, appear  [**5] stronger and seem to
predominate. Since federal courts are courts of limited, as opposed
to general jurisdiction -- Gross v. Hougland, 712 F.2d 1034, 1036
(6th Cir. 1983) (Celebreeze, J.), 465 U.S. 1025, 104 S. Ct. 1281,
79 L. Ed. 2d 684 (1984) -- and family law issues   [*800]   have
traditionally been the province of the state courts, the doctrine
of pendent jurisdiction should be scrutinized carefully.
    PAGE  138             744 F. Supp. 798, *800; 1990 U.S. Dist.
LEXIS 11889, **5      LEXSEE

   Gibbs, supra, held that under Article III, federal courts had
Article III power to exercise subject matter jurisdiction over an
entire action (federal and state law claims) when the state law
claims "derive from a common nucleus of operative fact and are such
that [a plaintiff] would ordinarily be expected to try them all in
one judicial proceeding." Carnegie-Mellon University v. Cohill, 484
U.S. 343, 349, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988). However,
Gibbs recognized that the power was discretionary, "not of
plaintiff's right." Cohill, supra, 484 U.S. at 349, 108 S. Ct. 614,
98 L. Ed. 2d 720 (quoting Gibbs, 383 U.S. at 726, 86 S. Ct. at
1139, 16 L. Ed. 2d 218 (1966)); 13B C. Wright, A. Miller & E.
Cooper, Federal Practice & Procedure @ 3657.1 at 123 (2d ed. 1984).
In appropriate circumstances,   [**6]   federal courts may decline
to exercise this jurisdiction.

   Discretion, concerns about fairness, judicial economy and
principles of comity, are present in a number of @ 1983 cases
alleging sometimes novel, but also somewhat attenuated and
amorphous "constitutional" torts. Because of the lure of the
attorney fees statute, 42 U.S.C. @ 1988, creates an incentive to
transform a state law claim into a @ 1983 claim, federal courts
should "guard against the litigant who frames a pretextual issue
solely for the purpose of having a state law claim adjudicated in
the federal system." Willard v. City of Myrtle Beach Inc., 728 F.
Supp. 397, 403 (D.S.C. 1989) (quoting Davis v. Pak, 856 F.2d 648,
651 (4th Cir. 1988)). Where family law and domestic relations
issues weigh heavily, federal courts should approach pendent
jurisdiction from an "informed sense of comity," and leave matters
traditionally within the sphere of competence of the states and
"peculiarly unsuited to control by federal courts" -- Drewes v.
Ilnicki, 863 F.2d 469, 471 (6th Cir. 1988) (Boggs, J.) (quoting
Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir.
1981)) n4 to the state courts. Davis, supra, at 651;   [**7]   13B
C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure @
3609 at 460-61 (2d ed. 1984).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n4 In Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. 1988), Judge
Boggs summarized both the history of the domestic relations
exception to diversity jurisdiction and cases where federal courts
would exercise jurisdiction (particularly in tort claims) involving
merely intra-family aspects in the background. See Elam v.
Montgomery County, 573 F. Supp. 797, 801 (S.D.Ohio 1988)
(plaintiff's @ 1983 lawsuit concerning the wrongful deprivation of
custody of his children did not ask the court to return custody of
his children or declare which party was a more fit parent, but
simply to adjudicate a claim for tort damages); Raftery v. Scott,
756 F.2d 335, 338 (4th Cir. 1985) (district court could hear
damages claim for intentional infliction of emotional distresswhere former husband alleges that former wife has taken custody of
child illegally). Cf. Jagiella v. Jagiella, 647 F.2d 561, 565 (5th
Cir. 1981) (diversity jurisdiction absent where tort damages action
is a mere pretense and the suit is actually concerned with custody
issues.)

   Although federal courts have subject matter jurisdiction over
federal civil rights claims, it may not be prudent to hear, in one
case, pendent state law claims that arise out of domestic relations
and child custody issues. Particularly where the jurisdiction is
discretionary, federal courts should be wary of entertaining claims
more properly heard in the courts of common pleas and their
domestic relations divisions.

    PAGE  139             744 F. Supp. 798, *800; 1990 U.S. Dist.
LEXIS 11889, **7      LEXSEE

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[**8]

   Federal courts have been reluctant -- on the ground of fairness
-- to dismiss pendent state law claims because of the potential bar
of the state statute of limitations. However, in Cohill, supra, the
Supreme Court noted that many states have savings clauses for
statutes of limitations. Ohio has such a statute --Ohio Rev.Code
Ann. @ 2305.19 -- which allows refiling of claims dismissed not on
the merits. Thus, under principles of fairness and comity, federal
courts, applying Ohio law, can be less reluctant to dismiss pendent
claims in appropriate cases.

   Several federal courts have interpreted Gibbs, 383 U.S. at 727,
86 S. Ct. at 1139-40, as allowing courts, in their discretion, to
dismiss, sua sponte, pendent state claims under certain factors. In
Sullivan v. Boettcher & Co., 714 F. Supp. 1132, 1133-34 (D.Colo.
1989), Judge Carrigan listed several factors to guide the courts'
discretion: 1) judicial economy 2) availability of a surer-footed
reading of state law in state court,   [*801]   3) predominance of
state issues compared with federal issues 4) broader scope of
remedies available under state versus federal law, and 5) the
potential for jury confusion. See Braley v. Helgemo,   [**9]    et
al., Case No. 84-CV-5197-DT, slip op. at 4-14 (E.D.Mich. January
23, 1985) (Guy, J.) (risk of jury confusion, lack of congruence of
elements, remedies, and defenses), aff'd on other grounds sub nom.
Braley v. City of Pontiac, 906 F.2d 220 (6th Cir. 1990); Kerby v.
Commodity Resources Inc., 395 F. Supp. 786, 789-90 (D.Conn. 1975)
(Matsch, J) (criticizing "simplistic" notion of judicial economy,
stating the "quality of litigation is as important as the quantity
of cases," and noting attempt to expand scope of federal remedy,
unsettled area of state law, and jury confusion as factors.)
Applying the above factors, it appears that the state law claims
for infliction of emotional distress, interference with familial
relations, and invasion of privacy predominate, that there will be
a surer footed reading of state law in state court, the state law
claims have broader and different elements (the @ 1983 claim
requires state action and the @ 1985 action requires a conspiracy),
and that principles of comity are particularly strong in this case.

   Accordingly, in the exercise of discretion, pendent jurisdiction
is declined, and the pendent state law claims are DISMISSED without
prejudice.   [**10]

   B. Motion to Dismiss Under 12(b)(6).

   In the Motion to Dismiss both the @@ 1983 and 1985 claims,
Defendant apparently attacks the Complaint as being too general and
insufficient to allege a conspiracy. n5
 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
   n5 Defendant's Motion to Dismiss, which borders on incoherence,
relies heavily on out-dated Seventh Circuit cases that suggest a
heightened standard of pleading of civil rights cases. Noticeably
absent are relevant Supreme Court and Sixth Circuit authority.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
   Under the applicable standard for entertaining a 12(b)(6)
motion, "the court must accept as true all factual allegations in
the complaint," Windsor v. The
    PAGE  140            744 F. Supp. 798, *801; 1990 U.S. Dist.
LEXIS 11889, **10      LEXSEE

Tennessean, 719 F.2d 155, 158 (6th Cir. 1983), cert. denied, 469
U.S. 826, 105 S. Ct. 105, 83 L. Ed. 2d 50 (1984), and "must deny
the motion to dismiss unless it can be established beyond a doubt
that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Nishiyama v. Dickson
County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987) (en banc);
Conley v. Gibson,  [**11]   355 U.S. 41, 45-46, 78 S. Ct. 99,
101-102, 2 L. Ed. 2d 80 (1957). However, where evidentiary
materials are not excluded by the Court --such as Affidavits and
Exhibits, the Motion is deemed, under Rule 12(b), as a Motion for
Summary Judgment.

   This Court excludes the Affidavit and Exhibits -- the pertinent
inquiry is a matter of law -- do the allegations, assumed to be
true, state a constitutional claim?

   In order to state a claim under @ 1983, a person acting under
color of law must cause a deprivation of a federal constitutional
or federal statutory right. Golden State Transit Corp. v. City of
Los Angeles, 493 U.S. 103, 58 U.S.L.W. 4033, 4034, 110 S. Ct. 444,
448, 107 L. Ed. 2d 50 (1989); Maine v. Thiboutot, 448 U.S. 1, 4,
100 S. Ct. 2502, 2504, 65 L. Ed. 2d 555, 557 (1980). Although @
1983 does not reach purely private conduct, a private person,
acting "under color of law," can be held liable if "he is a willful
participant in joint activity with the State or its agents." Moore
v. Paducah, 890 F.2d 831, 834 (6th Cir. 1989): slip op. at 8
(quoting United States v. Price, 383 U.S. 787, 86 S. Ct. 1152, 16
L. Ed. 2d 267 (1966); Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir.
1985) (citing Lugar v.   [**12]    Edmondson Oil Co., 457 U.S. 922,
941, 102 S. Ct. 2744, 2755, 73 L. Ed. 2d 482 (1982)). Thus, a
private party may conspire with a state actor and be liable for
deprivation of federal rights. Moore, supra, at 834 (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 150-152, 90 S. Ct. 1598,
1604-06, 26 L. Ed. 2d 142 (1970) (store clerk and police officer
conspired to deny plaintiff service in a store because of her
race.))

   Although Norton claims that Cobb has conspired to destroy and
has interfered with his constitutional right to maintain a father
son or parent-child relationship, he does not state, in the
Complaint or in his   [*802]   Brief in Opposition to Defendant's
Motion to Dismiss, any specific provision of the Constitution under
which such a right may exist. Cobb assumes that this right arises
under the Due Process Clause of the Fourteenth Amendment. Motion to
Dismiss at 1. The Complaint seeks compensatory and punitive damages
for past and present denials of visitation rights.

   The deprivation of the parent child relationship has been
raised, in constitutional nomenclature, as a liberty interest and
as the right to association. Although most courts allowing recoveryunder @ 1983 have   [**13] grounded the right under the rubric of
substantive due process -- see Bell v. City of Milwaukee, 746 F.2d
1205, 1243-44 (7th Cir. 1984) -- one court has held that the
parental liberty interest arises under a First Amendment right to
freedom of intimate association. See Trujillo v. Board of County
Commissioners, 768 F.2d 1186, 1188-89 (10th Cir. 1985).

   In Willard v. City of Myrtle Beach, 728 F. Supp. 397 (D.S.C.
1989), the Plaintiffs sued a municipality and its employees for the
arrest of their seventeen year old minor son, who was charged with
public intoxication and disorderly conduct. The purported
constitutional deprivation -- the right to association and
companionship with one's child -- arose from the four hours the son
spent in a jail cell.
    PAGE  141            744 F. Supp. 798, *802; 1990 U.S. Dist.
LEXIS 11889, **13      LEXSEE

   The Willard Court surveyed the cases allowing and disallowing
recovery under @ 1983 for deprivation of a parent child
relationship. Expressing reluctance to recognize such a right, the
Court explained:

Plaintiffs apparently assume the existence of a generally
applicable constitutionally protected liberty interest inherent in
the Constitution, and argue that this liberty interest should
extend to create a substantive damages [**14]   remedy in favor of
parents for any negative emotional or psychological effects visited
upon their children because of temporary detention by individual
state actors. The implications of recognizing such a generalized
right to contest indirect state action having an incidental effect
upon familial association, however, are far-reaching and cannot be
overlooked by this court.
Willard, 728 F. Supp. at 404.

   Even assuming, as an alternative holding, that a
constitutionally protected parental liberty interest in the
continued companionship and association with children exists under
a theory of substantive due process, the Court noted that
allegations of "permanent emotional and psychological harm" were
not sufficient:
Significantly, every court which has recognized such a right of
action has only done so within the factual context of a permanent,
physical separation of parent and child, such as allegations of
unlawful killing by individual state actors. Assuming the truth of
plaintiffs' allegations . . . it is clear that plaintiffs' do not
sufficiently allege a @ 1983 claim -- as they do not allege the
total destruction of the parent-child relationship caused by
unlawful action taken [**15]   under color of state law. Bell v.
City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). In any event, it
is quite evident that there must be a "logical stopping place for
such claims," Trujillo, 768 F.2d at 1190, see also Parratt v.
Taylor, 451 U.S. 527, 544, 101 S. Ct. 1908, 1917, 68 L. Ed. 2d 420
(1981). Eventually, if parameters are not placed upon the
permissible bounds of @ 1983 litigation, it will eventually
parallel remedies available under state tort law, which , as in the
present case, provide an avenue of relief -- albeit in most
instances without a fee-entitling statute.

Willard, at 404.

   It is unclear, absent invocation of a specific provision of the
Constitution, whether there exists a generalized constitutional
right of parents to associate and maintain companionship with their
children. If such a right existed, a plethora of child custody
decrees would be open to constitutional challenge. Even assuming,
arguendo, that such a constitutional right may exist along with a
@ 1983 remedy, recovery has been limited to situations of wrongfuldeath --where there has been a permanent, physical   [*803]
separation of parent and child. Willard, supra.

   In the case sub   [**16]    judice, the allegations fall short
of the wrongful death situation -- which is a permanent
deprivation. If Cobb is denying visitation rights, there is relief
in the Domestic Relations Courts of the state. Accordingly,
following Willard, the Court agrees that there no constitutional
deprivation has been alleged.

   Since claims under @ 1985(3) require constitutional deprivations
-- Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798,
29 L. Ed. 2d 338, 348 (1971), and none has been stated, this claim
is also DISMISSED.
    PAGE  142            744 F. Supp. 798, *803; 1990 U.S. Dist.
LEXIS 11889, **16      LEXSEE

   Accordingly, the pendent state claims are DISMISSED without
prejudice; since there is no constitutional violation, the @ 1983
and @ 1985 claims are DISMISSED.

   IT IS SO ORDERED