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
Pending
before me for determination is Plaintiff's Application to
Proceed In Forma Pauperis (“IFP”) (ECF No. 2)
pursuant to 28 U.S.C. § 1915. On July 22, 2019,
Plaintiff filed his pro se “Motion to
Remove” a pending Rhode Island “juvenile court
case” to this Court. Plaintiff's Motion 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 No. 2) is
GRANTED.
Having
granted IFP status, this Court is required by statute to
further review the Plaintiff's suit 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 Motion to Remove be
DISMISSED WITH PREJUDICE.
Standard
of Review
Section
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
(1989).
Discussion
This is
Plaintiff's third lawsuit in this Court arising from his
dissatisfaction with a custody dispute pertaining to his
minor son, D.D. In C.A. Nos. 19-146 and 19-151, Plaintiff
sought to invoke the Court's jurisdiction to resolve this
child custody dispute, and the cases were both summarily
dismissed. The facts presented in the present case are nearly
identical to those set forth in his two prior cases. Although
Plaintiff claims he is seeking to remove the state court
“juvenile” case, he independently argues that the
very same allegations he presented to the Court in C. A. No.
19-146 and 19-151 support subject matter jurisdiction in this
purported removal action.
Specifically,
Plaintiff claims violations of the United States Constitution
and the Parental Kidnapping Protection Act in connection with
custody issues concerning his son. In the present case,
Plaintiff seeks to remove to this Court the pending Family
Court case. After reviewing the Motion to Remove, I also
recommend that the present case 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 Motion 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
Motion, dismissal is required.
After
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. As this Court previously noted, such claims
concerning child custody decrees are barred in this Court
under the domestic relations exception to federal diversity
jurisdiction. Behroozi v. Behroozi, C. A. No.
15-536-S, 2017 WL 933059 at *1 (D.R.I. Mar. 8, 2017). The
domestic relations exception divests this Court of subject
matter jurisdiction. Moreover, as noted in the dismissal of
C. A. No. 19-151, Plaintiff's invocation of the PKPA does
not alter the result, since the PKPA “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).
Further,
it is improper for this Court to attempt to interfere with
the Rhode Island Family Court's pending judicial
proceedings. The abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37 (1971), dictates that a federal
court may not interfere “with pending state judicial
proceedings absent extraordinary circumstances.”
Middlesex Cty. Ethics Comm. v. Garden State Bar
Ass'n, 457 U.S. 423, 431 (1982). Plaintiff has shown
no extraordinary circumstances. Accordingly, for all of these
reasons, I recommend that Plaintiff's latest attempt to
involve this Court in the ongoing state child custody dispute
be dismissed as legally unsupported and frivolous.
Conclusion
For the
reasons stated, Plaintiff's Motion to Proceed In Forma
Pauperis (ECF No. 2) is GRANTED. However, pursuant to 28
U.S.C. § 1915(e)(2)(B), I further recommend that
Plaintiff's Motion to Remove (ECF No. 1) be DISMISSED
WITH PREJUDICE.
Any
objection to this Report and Recommendation must be specific
and must be filed with the Clerk of the Court within fourteen
days of its receipt. See Fed.R.Civ.P. 72(b); LR Cv
72(d). Failure to file specific objections in a timely manner
constitutes waiver of the right to review by the District
Court and the right to appeal the District Court's
decision. See United States v. Valencia-Copete, ...