In any event, even assuming, arguendo, that the Third Amended Complaint should not be dismissed under Fed. Rule Civ. P. 8, it is clear both that the theories of liability advanced in the Third Amended Complaint are untenable and that there is no proper predicate for the exercise of subject matter jurisdiction over these claims or personal jurisdiction over these some of these defendants.
Plaintiff's claims brought under the Civil Rights Act, 42 U.S.C. § 1983, to the extent that they arise out of or are based upon allegedly incorrect or erroneous decisions in the state courts, are not properly within the jurisdiction of this Court. Lecci v. Cahn, 493 F.2d 826, 829 (2d Cir. 1974). This Court has no jurisdiction to review the correctness of state court decisions. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 26 L. Ed. 2d 234, 90 S. Ct. 1739 (1970); see also Coogan v. Cincinnati Bar Ass'n, 431 F.2d 1209, 1211 (6th Cir. 1970). Plaintiff must pursue his available appellate remedies and ultimately seek review in the Supreme Court of the United States. Since, so far as the Court can discern, this is the only alleged basis for his § 1983 claims against certain defendants, they must be dismissed.
Moreover, even assuming, arguendo, that this Court has jurisdiction to review the state court proceedings, this Court lacks personal jurisdiction over these defendants for the following reasons.
First, there is no conceivable basis for the exercise of long arm jurisdiction over the State of North Carolina and the Hon. Chester Davis, neither of which has any personal connection to this state or has performed any act here giving rise to plaintiff's claims. Indeed, plaintiff's claim against the State of North Carolina and the Hon. Chester Davis appears to arise solely out of the entry of a custody order on February 21, 1992, by Judge Davis in the Forsyth County District Court. This is clearly not sufficient to establish a basis for personal jurisdiction. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985).
Second, plaintiff's claim against the State of New York and the State of North Carolina must also be dismissed because a state is protected from suit by the Eleventh Amendment, which bars suit against the State of New York and the State of North Carolina in federal court unless the State consents to be sued or Congress enacts legislation overriding the State's Eleventh Amendment immunity. Papasan v. Allain, 478 U.S. 265, 276, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). This is true whether the plaintiff sues for monetary relief, Ex Parte New York, 256 U.S. 490, 497, 65 L. Ed. 1057, 41 S. Ct. 588 (1921), or declaratory or injunctive relief, Missouri v. Fiske, 290 U.S. 18, 27, 78 L. Ed. 145, 54 S. Ct. 18 (1933); Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978) (per curiam).
Third, plaintiff's claim against the Attorney General of New York because of an alleged failure to discharge his duties under state law must be dismissed because this Court lacks subject matter over those claims for injunctive relief based on state law. Levine's claim against the Attorney General, which appears to be based on allegations that the Attorney General's office refused Levine's requests that the Attorney General intervene in the state court proceedings and lobby for a change in a certain bill or law, Third Amended Complaint P 6; see also id. Ex. II, seeks an order compelling the Attorney General to comply with plaintiff's interpretation of the Attorney General's duties under N.Y. Executive Law § 63 (McKinney 1982). See id. It is settled, however, that federal courts simply do not have jurisdiction to grant injunctive or declaratory relief pursuant to state law against state officials. Pennhurst State Sch. & Hosp. v. Halderman, supra, 465 U.S. 89, 106 (1984).
Fourth, plaintiff's claims against New York Supreme Court Judge Vincent Colabella, Westchester Family Court Judge Orazio Bellantoni, North Carolina District Judge Chester C. Davis, the County of Westchester, DSS, CPS, the County Attorney, and Westchester Jewish Community Services must also be dismissed. Although § 1983 imposes liability upon "every person" who deprives another of a constitutional right under color of state law, the doctrine of absolute immunity shields judges from liability related to their judicial or adjudicatory acts, Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), prosecutors from liability related to their prosecutorial functions, Imbler v. Pachtman, 424 U.S. 409, 431, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), and witnesses from liability related to their testimony in court proceedings, Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983).
In Pierson v. Ray, supra, 386 U.S. 547 (1967), the Supreme Court held that the common law absolute immunity of judges was preserved under § 1983 and that that immunity applies "even when the judge is accused of acting maliciously and corruptly." Id. at 554. It follows that New York Supreme Court Judge Vincent Colabella, Westchester County Family Court Judge Orazio Bellantoni and North Carolina District Judge Chester C. Davis are immune from liability for any actions taken and rulings made in Levine's custody dispute and sex abuse proceeding. No other conduct is asserted as a predicate for their liability.
Likewise, the County of Westchester, DSS, CPS, and the Westchester County Attorney as defendants (collectively, the "Westchester County defendants") are protected by absolute prosecutorial immunity. Levine's claims against these defendants appear to be based upon allegations that the County defendants ignored Levine's protestations of innocence and mistaken identity and "prosecuted the wrong person." Third Amended Complaint P 8. Recognizing that "agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts", Butz v. Economou, 438 U.S. 478, 515, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), this Circuit has held that individuals who initiate and prosecute child protective orders are entitled to absolute governmental immunity in an action for damages under § 1983 for their conduct in initiating a prosecution. Walden v. Wishengrad, 745 F.2d 149, 152 (2d Cir. 1984). Indeed, this immunity even protects such prosecutors when charged with using false evidence. Imbler v. Pachtman, supra, 424 U.S. 409, 431 (1976). Therefore, the County defendants clearly are entitled to absolute immunity with respect to their filing and litigating the family court petitions against plaintiff despite his protestations of innocence and mistaken identity.
Similarly, Westchester Jewish Community Services is also absolutely immune from liability. The Third Amended Complaint makes no reference to Westchester Jewish Community Services other than to allege that it employed a Mr. Kaufman. Third Amended Complaint P 7. Plaintiff has submitted, however, an unofficial synopsis of what seems to be direct and cross examinations of Mr. Kaufman at an unidentified hearing on various dates in January and February 1987. Third Amended Complaint Ex. K. Therefore, as far as the Court can tell, Levine's claim against Westchester Jewish Community Services arises out of the fact that it provided a social worker, Mr. Kaufman, to evaluate and testify on whether or not the child was a victim of sexual abuse.
It is settled, however, that a witness has absolute immunity from § 1983 liability. Briscoe v. LaHue, supra, 460 U.S. 325 (1983). Therefore, to the extent that plaintiff's claim against Westchester Jewish Community Services is based on harm allegedly caused by a witness's testimony, Westchester Jewish Community Service's witness is also protected from a suit under § 1983 for his testimony in the state court proceedings. Accordingly, the Third Amended Complaint must be dismissed as to Westchester Jewish Community Center.
Fifth, plaintiff's claim against the child's law guardian must be dismissed because plaintiff's Third Amended Complaint fails to meet the essential requirement that a defendant in a § 1983 case must act under color or state law. To the extent that Levine claims that the child's law guardian, Maria Joy Frank, has violated his Constitutional rights through her representation of the child in the custody and sex abuse proceedings, this Court is persuaded by the Tenth Circuit's holding in Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986), that law guardians do not represent their clients under color of state law for purposes of § 1983 when they function as fiduciaries who must act in a minor's best interest. Id. at 155. In Meeker, the Tenth Circuit reasoned that such public servants are analogous to public defenders, who assume no "obligation to the mission [of] the state" but rather owe a duty of undivided loyalty to protect a private individual's interest and exercise independent professional judgment in carrying out that duty. Id. at 155 (quoting Polk County v. Dodson, 454 U.S. 312, 320, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981)); see also Neustein v. Orbach, 732 F. Supp. 333 (E.D.N.Y. 1990).
All of the conduct alleged in the Third Amended Complaint that is attributable to Frank, such as interviews of the child, conferences with various health care and social work professionals, and appearances before the Family Court and the New York Supreme Court, pertains to her function as a representative of the minor child in the custody and child abuse proceedings.
Finally, after a careful review of the Third Amended Complaint, the only discernable claim against McLeod, that she conspired to use the state court system to plaintiff's detriment, must be dismissed because McLeod is not a state actor. In order to state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant deprived the plaintiff of a right guaranteed by the Constitution or laws of the United States "under color of any statute" of the State of New York. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1977). Mere misuse of a state process or statute, absent a claim that the state statutory scheme is in itself unconstitutional, is insufficient to sustain a § 1983 claim. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 940-41, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). There is thus no legal support for plaintiff's claim that McLeod's "conduct is . . . raised to § 1983 standards" because "she has caused plaintiff intentional infliction of emotional distress, . . . and has been given free access to the judicial system to accomplish this." Third Amended Complaint P 15. See also Merrick v. Merrick, 441 F. Supp. 143, 146 (S.D.N.Y. 1977); Stevens v. Frick, 372 F.2d 378 (2d Cir. 1967), cert. denied 387 U.S. 920, 18 L. Ed. 2d 973, 87 S. Ct. 2034, (1967); Gras v. Stevens, 415 F. Supp. 1148, 1152 (S.D.N.Y. 1976)(three-judge court, Friendly, J.).
For the reasons stated above, Defendants motions to dismiss shall be and hereby are granted. The Third Amended Complaint is dismissed with prejudice. The Clerk of Court is directed to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
July 30, 1993
John E. Sprizzo
United States District Judge