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MCARTHUR v. BELL

April 6, 1992

JEFFREY C. McARTHUR, Plaintiff, against NANCY BELL, JOAN GOLDRICK, JOHN DOE, fictitious names not now known, SUFFOLK COUNTY AUDIT and CONTROL, COUNTY OF SUFFOLK, J. GARY WALDVOGEL and SIDNEY VANN, Defendants.


The opinion of the court was delivered by: LEONARD D. WEXLER

MEMORANDUM AND ORDER

 WEXLER, District Judge

 In the above referenced action, Jeffrey C. McArthur ("McArthur"), plaintiff pro se and an ex-Suffolk County police officer, brings suit pursuant to 42 U.S.C. § 1983 based on an alleged conspiracy to deprive him of due process in violation of the Fifth and Fourteenth Amendments in relation to child support modification proceedings commenced in State Court in 1989 by his ex-wife. McArthur also brings pendent state claims for conspiracy, fraud, deceit and abuse of process, and he seeks a permanent injunction to prevent defendants from continuing to deprive him of his due process rights.

 Defendants in this action are Nancy Bell ("Bell") (plaintiff's ex-wife and an account clerk who prepared police department payroll documents while working at the Suffolk County Department of Audit and Control ["SCDAC"]), Joan Goldrick ("Goldrick") (Bell's supervisor), SCDAC, County of Suffolk, J. Gary Waldvogel ("Waldvogel") (Bell's attorney in the aforementioned action for modification of child support), Sidney Vann ("Vann") (an attorney who is allegedly an agent of Suffolk County), and John Doe defendants (employees of Suffolk County) (collectively, "defendants"). Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1332, 1343 and 1348.

 Presently before the Court are motions by all defendants other than Vann to dismiss this action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, defendants' motions are granted.

 I. BACKGROUND

 According to plaintiff's Amended Complaint and Affidavits in Response to Defendants' Motion to Dismiss, McArthur and Bell, the parents of two minor children, were divorced on or about December 18, 1980. The divorce decree provided in part that McArthur pay Bell $ 45 per week per child as child support.

 On or about October 6, 1989, Bell brought an action in Suffolk County Supreme Court seeking an upward adjustment in McArthur's child support payments. Following four days of hearings at which McArthur was represented by counsel, Judge Marilyn Friedenberg granted Bell a 200 percent upward adjustment in child support and awarded $ 7,000 in attorney's fees to Waldvogel, Bell's counsel. McArthur has appealed this decision and it is currently pending before the Appellate Division, Second Department.

 McArthur now alleges that Waldvogel improperly caused two index numbers to be placed on the original Order to Show Cause which commenced the child support modification proceedings, that Waldvogel had "hallway" conversations with Judge Friedenberg, and that he altered and/or misrepresented McArthur's employment records which were produced in the state proceedings.

 McArthur further alleges that Judge Friedenberg and her two law clerks were biased against him, and that Judge Friedenberg directed hostile remarks to him and to his attorney, that she improperly excluded relevant evidence that was favorable to him, that she improperly granted Waldvogel's objections while overruling those made by McArthur's attorney, and that she improperly threatened McArthur's attorney with contempt.

 McArthur also alleges that Bell, with the knowledge of the County, altered and/or misrepresented his employment records; that Goldrick aided and abetted Bell; and that they both may have perjured themselves at the hearings.

 In addition, McArthur alleges that on October 7, 1990, at a hearing before the Workers' Compensation Board related to a disability McArthur had suffered during the performance of his job some years earlier, Vann, as an agent of Suffolk County, informed the Board of Bell's judgment against McArthur and then recommended that the Board make a final lump sum award to McArthur rather than continue its periodic compensation payments. McArthur alleges that Vann made this recommendation so that McArthur would receive a substantial payment against which Bell would be able to execute her judgment.

 Finally, and most importantly for the purposes of this suit, McArthur alleges that all the above-described acts of Bell, Goldrick, Waldvogel, Vann, Judge Friedenberg, her two law clerks, SCDAC and Suffolk County were undertaken as part of a conspiracy to deprive ...


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