United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION FOR SUMMARY DISMISSAL
PURSUANT TO 28 U.S.C. § 1915(e)
LINCOLN D. ALMOND UNITED STATES MAGISTRATE JUDGE
before me for determination is Plaintiff's Application to
Proceed In Forma Pauperis (“IFP”) (ECF Doc. No.
2) pursuant to 28 U.S.C. § 1915. On March 26, 2019,
Plaintiff filed his pro se “Complaint 42 USC
§ 1983” alleging violations of the Parental
Kidnapping Prevention Act (“PKPA”), 28 U.S.C.
§ 1738A, and related Constitutional claims.
Plaintiff's Complaint was accompanied by an Application
to Proceed IFP without being required to prepay costs or
fees, including the $400.00 civil case filing fee. After
reviewing Plaintiff's Application signed under penalty of
perjury, I conclude that Plaintiff is unable to pay fees and
costs in this matter and thus, Plaintiff's Application to
Proceed IFP (ECF Doc. No. 2) is GRANTED.
granted IFP status, this Court is required by statute to
further review the Plaintiff's Complaint sua
sponte under 28 U.S.C. § 1915(e)(2) and to dismiss
this suit if it is “frivolous or malicious, ”
“fails to state a claim on which relief may be
granted” or “seeks monetary relief against a
defendant who is immune from such relief.” For the
reasons discussed below, I recommend that Plaintiff's
Complaint be DISMISSED WITH PREJUDICE.
1915 of Title 28 requires a federal court to dismiss an
action brought thereunder if the court determines that the
action is frivolous, fails to state a claim or seeks damages
from a defendant with immunity. 28 U.S.C. §
1915(e)(2)(B). The standard for dismissal of an action taken
IFP is identical to the standard for dismissal on a motion to
dismiss brought under Fed.R.Civ.P. 12(b)(6). See Fridman
v. City of N.Y., 195 F.Supp.2d 534, 538 (S.D.N.Y. 2002).
In other words, the court “should not grant the motion
unless it appears to a certainty that the plaintiff would be
unable to recover under any set of facts.” Roma
Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st
Cir. 1996). Section 1915 also requires dismissal if the court
is satisfied that the action is “frivolous.” 28
U.S.C. § 1915(e)(2)(B)(I). A claim “is frivolous
where it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325
recommend that Plaintiff's Complaint be summarily
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). In
making this recommendation, I have taken all of the
allegations in Plaintiff's Complaint as true and have
drawn all reasonable inferences in his favor. Estelle v.
Gamble, 429 U.S. 97 (1976). In addition, I have
liberally reviewed Plaintiff's allegations and legal
claims since they have been put forth by a pro se
litigant. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). However, even applying these liberal
standards of review to Plaintiff's Complaint, dismissal
and Co-defendant Maureen Drohan are parents of D.D., a minor.
Plaintiff alleges that he was granted full physical and legal
custody of D.D. by an Order of the State of Georgia Superior
Court on January 31, 2018. (ECF Doc. No. 1 at p. 1).
Plaintiff contends that Maureen Drohan conspired with her
sister, Co-defendant Kathleen Drohan, and another individual
to remove D.D. from Georgia and bring him to Rhode Island on
November 15, 2018. Id. at pp. 1-2. After arriving in
Rhode Island, Plaintiff alleges that Maureen Drohan sought
and received an emergency custody order from the Rhode Island
Family Court. Id. at p. 2. Plaintiff claims he
sought assistance from the police in Roswell, Georgia, and
they arranged with North Providence Police for Plaintiff to
come to Rhode Island and pick up D.D. Id. at p. 3.
Plaintiff attempted to retrieve D.D. in Rhode Island, he
learned that D.D. was admitted to Hasbro Children's
Hospital after an alleged suicide attempt. Id. at
pp. 3-4. Plaintiff alleges that after D.D. was cleared for
release from the hospital, D.D. told officials that he would
“hurt himself if he goes with Plaintiff.”
Id. Plaintiff was informed that the Rhode Island
Department of Children, Youth and Families
(“DCYF”) was taking custody of D.D. to
investigate those and other allegations made by D.D.
claims against Rhode Island DCYF, “Rhode Island
Hospital Hasbro” and the Providence Police all contain
the identical allegation that Defendants “interfered
with the Georgia custody Order” in violation of the
United States Constitution. Id. at pp. 4-5.
Plaintiff also alleges race discrimination and violation of
due process by those Defendants. Further, Plaintiff alleges
that Maureen Drohan and Kathleen Drohan violated the PKPA.
Id. at p. 5. He makes no specific claims against the
North Providence Police Department, although they are named
in the case caption and mentioned in the narrative. Finally,
Plaintiff has sued both Rhode Island Hospital and Hasbro
Children's Hospital, but refers to them interchangeably
and notes that his minor son was treated at Hasbro
Children's Hospital. He seeks damages of $100, 000,
000.00 from each Defendant.
reviewing the entirety of the pleadings filed in this case,
the Court has determined that all of Plaintiff's claims
stem from a dispute concerning the custody Order from the
State of Georgia and a potentially competing Order entered in
Rhode Island. Such claims concerning child custody decrees
are barred in this Court under the domestic relations
exception to the Court's diversity jurisdiction.
“The domestic relations exception to diversity
jurisdiction applies when ‘the claim at issue is one to
obtain, alter or end a divorce, alimony or child custody
decree.'” Behroozi v. Behroozi, C.A. No.
15-536-S, 2017 WL 933059 at *1 (D.R.I. Mar. 8, 2017) (quoting
Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir.
2001) (emphasis omitted)). In the present case, Plaintiff has
attempted to invoke the Court's federal question subject
matter jurisdiction by pleading those claims under the PKPA
and by purporting to mount constitutional claims against
various Defendants. Nevertheless, he has not stated any
viable federal claims nor any legal basis for this
Court's jurisdiction. As explained below, the PKPA does
not provide a private right of action in this Court, and any
remaining claims must fail because they remain barred by the
domestic relations exception. (See Behroozi, 2017 WL
933059 at *1) (noting that the domestic relations exception
precludes claims “even where they are cloaked in the
trappings of another type of claim.”).
the PKPA claim, the District of Puerto Rico has observed
that, after “reviewing the background, language, and
legislative history of the PKPA, ” the Supreme Court
“held that it does not create a private right of action
in federal court to determine the validity of two conflicting
custody decrees.” Wasko v. Commonwealth of Puerto
Rico, 185 F.Supp.2d 136, 142 (D.P.R. 2002) citing
Thompson v. Thompson, 484 U.S. 174 (1988). The First
Circuit Court of Appeals echoed that finding and stated that
“the PKPA does not provide an implied private federal
cause of action to determine which of two conflicting state
custody decrees is valid. The PKPA is addressed to the States
and state courts. Congress did not intend thereby to entangle
the federal courts in traditional domestic relations
questions that ‘they have little expertise to
resolve.'” Nwankwo v. Nwankwo, 993 F.2d
1530 (1st Cir. 1992) (internal citation omitted).
Accordingly, Plaintiff's PKPA claim fails.
remaining claims in the Complaint are not well pled, and they
all relate to the child custody dispute. Although Plaintiff
has captioned the case as an action under 42 U.S.C. §
1983 and claims he has been discriminated against and
suffered a violation of due process, Plaintiff does not
sufficiently articulate the factual bases for his causes of
actions. The Court of Appeals has rejected the attempt to
shoehorn claims into federal court in this manner.
“[W]here the suit's transparent purpose is to
embroil the district court in a dispute involving conflicting
custody decrees, the suit must be dismissed for lack of
subject matter jurisdiction.” Nw ...