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FARIELLO v. CAMPBELL

August 6, 1994

SALVATORE FARIELLO, Plaintiff,
v.
GRACE CAMPBELL, in her personal capacity, THERESA MULLINS, in her personal capacity, WILLIAM EKADIS, in his personal capacity, DAVID FREUNDLICH, in his personal capacity, and an UNKNOWN LAW CLERK in the Law Department of the Family Court, State of New York, Suffolk County, in his or her personal capacity, Defendants.



The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge:

 As the decision by Chief Judge Jon O. Newman in In re Martin-Trigona, 9 F.3d 226 (2d Cir. 1993), illustrates, it is the plight of the federal court at times to be repeatedly subject to the machinations of certain plaintiffs who pursue vexatious and unmeritorious litigation. This case is one such instance.

 The plaintiff pro se owns a printing business, and publically advocates the supremacy of "fathers' rights" based of his interpretation of the Old Testament. The plaintiff has, for the fourth time, brought before this Court a vexatious and harassing federal civil rights lawsuit regarding certain "conspiratorial" acts by the defendants, who are associated with the Family Court of Suffolk County and include a judge, a hearing examiner and a court clerk. The first two such lawsuits were respectively dismissed by the Court on November 5, 1992 and May 8, 1993. The latter decision is reported at Fariello v. Rodriguez, 148 F.R.D. 670 (E.D.N.Y. 1993), aff'd on opinion below, 22 F.3d 1090 (2d Cir. 1994). The third suit was voluntarily withdrawn by Fariello and closed on June 16, 1994, after this Court declined to issue a preliminary injunction prohibiting further proceedings in the Family Court against Fariello.

 The defendants move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint, or in the alternative for summary judgment in their favor. For the reasons stated below, the Court grants the defendants' alternative motion for summary judgment, and dismisses the plaintiff's complaint as a matter of law.

 BACKGROUND

 The plaintiff Salvatore Fariello ("Fariello") and his ex-wife Karen Marotta ("Marotta") were married on January 1, 1971. Their son Jared was born in 1978. In 1981, Fariello and Marotta executed a separation agreement, which was not converted into a divorce judgment. Marotta subsequently commenced a divorce action in the New York State Supreme Court, Suffolk County, in 1982, and a judgment of divorce was granted on March 5, 1982. The judgment required, among other things, that Fariello pay $ 40 per week in child support, half directly to Marotta, and half to a trust account for Jared. The State Supreme Court did not retain jurisdiction for any modifications of the divorce judgment.

 In October 1990, Marotta petitioned the Family Court of Suffolk County ("Family Court") for a modification of the divorce judgment. A hearing was held on January 20, 1991, before Hearing Examiner William Rodriguez, and in an order dated March 27, 1991, Fariello was found to have "failed to comply with the terms of the Divorce directing maintenance of bank book with deposits of $ 20.00 per week. Bank Book was closed 12-85. Respondent has not paid $ 20.00 per week directly to Petitioner since June 1990." As a result of this finding, the divorce judgment and original child support order were modified, and Fariello was directed by the Hearing Examiner's order to pay $ 40 per week in child support directly to the Suffolk County Support Enforcement Bureau. In addition, the order fixed Fariello's trust account arrears at $ 6,600 and direct payment arrears at $ 620, for a total of $ 7,220 in support arrears. Credited against this total was $ 1,375 of payments made by Fariello. A judgment was entered in favor of Marotta for the sum of $ 5,854 on April 25, 1991 by Hearing Examiner Rodriguez.

 Fariello filed objections to the findings and the March 27, 1991 order of Hearing Examiner Rodriguez. His objections, however, were denied by Family Court Judge W. Bromley Hall in an order entered on August 19, 1991. Judge Hall found that "[a] careful review of the record indicates that the Hearing Examiner afforded the parties a full and fair opportunity to be heard and that his decision was based on the weight of the credible evidence presented."

 Subsequently, Marotta petitioned for enforcement and another modification of the child support order. Fariello cross-petitioned for a downward modification of the $ 40 per week child support payment. Thereafter, Marotta filed a petition alleging that Fariello was in violation of the modified child support order of March 27, 1991. A hearing was held before Hearing Examiner Rodriguez on all of these issues, at which both parties and other witnesses testified. In findings of fact dated September 24, 1991, Hearing Examiner Rodriguez found that with respect to the petitions to modify the child support payments, neither an increase nor decrease in the amount of child support was warranted. The Hearing Examiner also held that Fariello was in willful violation of the March 27, 1991 child support order, having failed to make even one support payment to the Support Enforcement Bureau. The Hearing Examiner determined that as of August 14, 1991, Fariello was in arrears to the Support Enforcement Bureau in the amount of $ 1,120, and directed that this amount be reduced to a money judgment for the benefit of Marotta.

 In late 1991, Fariello filed objections to Hearing Examiner Rodriguez's findings of September 24, 1991, as well as to certain other orders pertaining to proceedings in which Fariello challenged Marotta for the custody of Jared. Fariello also moved to vacate the money judgments entered against him. On December 11, 1991, Family Court Judge Arthur J. Abrams denied Fariello's objections and motion. Undeterred, Fariello again filed motions in early 1992 seeking to vacate the September 24, 1991 findings of Hearing Examiner Rodriguez, and to stay all support payments pending a reconsideration of his application to suspend his child support obligation. On May 21, 1992, Judge Abrams also denied these motions.

 On June 9, 1992 an "Order of Disposition (Violation of Support Order)" was issued by Hearing Examiner Rodriguez, with respect to Fariello's arrears to the Child Enforcement Bureau. Based on the arrears, the June 9, 1992 Order of Disposition granted judgment in favor of Marotta in the amount of $ 1,120. Fariello filed objections to the June 9, 1992 judgment. In an order responding to those objections dated August 13, 1992 and corrected on August 18, 1992, Family Court Judge Marion T. McNulty denied Fariello's objections. According to Judge McNulty, Fariello contended that the June 9th Order was defective, because (1) it mistakenly listed the underlying hearing concerning his violation of the original support order, which was held on January 20, 1991, to have been held on September 27, 1991, and (2) it listed an incorrect date for the underlying order of child support. Judge McNulty ruled these mistakes were harmless clerical errors, and held that the Hearing Examiner's findings and conclusions of September 24, 1991 were supported by the record.

 On September 8, 1992, Fariello filed a notice of appeal to the Appellate Division, Second Department. In the notice, he stated that he was appealing Judge McNulty's corrected order of August 18, 1992, Hearing Examiner Rodriguez's order and judgment of June 9, 1992, and the order and judgment of April 25, 1991 wherein a judgment of $ 5,854 was entered in favor of Marotta. In a second notice of appeal to the Appellate Division, Second Department dated October 14, 1992, Fariello appealed Judge Abrams' order of May 21, 1992.

 In addition to these appeals, Fariello had also commenced an Article 78 proceeding in the New York State Supreme Court, Suffolk County, naming as respondents Marotta, Judge Abrams, Hearing Examiner Rodriguez, and others who were participants in the Family Court litigation. In his petition, Fariello sought review and reversal of virtually all the orders and judgments entered against him by the Family Court. Among other things, Fariello petitioned for (i) an order directing the Family Court to restore Fariello's visitation rights under the divorce judgment; (ii) an order directing the Family Court to conduct a hearing outside of Suffolk County, on the issue of the suspension of his child support payments, (iii) an order compelling the Family Court to vacate the money judgments and orders entered against Fariello regarding his child support payments and arrears, and prohibiting the Family Court from conducting any enforcement proceedings against Fariello with respect to these payments and arrears; (iv) an order prohibiting the Child Enforcement Bureau from enforcing the orders of the Family Court regarding his child support payments; and (v) vacating the determination of Hearing Examiner Rodriguez regarding child support payments and arrears. On February 3, 1993, Justice Paul Baisley dismissed the petition as a matter of law, because the relief requested was precluded by New York CPLR § 7801(2).

 Dissatisfied with the unfavorable rulings in the state court, Fariello turned his efforts toward the federal court. Fariello drafted and filed a closely-spaced forty page civil rights complaint under 42 U.S.C. § 1983 against all of the parties in the Family Court proceedings, including the Family Court judges, the Hearing Examiners, Marotta and her new husband. The complaint alleged a conspiracy by the state courts to deny divorced fathers in general, and Fariello in particular, equal protection under the United States Constitution. By bringing the action, Fariello in effect sought another route by which to review and reverse the rulings against him in the state court. As mentioned above, the Court dismissed this case pursuant to Fed. R. Civ. P. 12(b)(6), because the Court lacked the subject matter jurisdiction to hear domestic relations disputes, and "as a matter of law, the facts set forth in the complaint do not support a claim legally entitled to constitutional protection." Fariello v. Rodriguez, 148 F.R.D. at 689.

 Meanwhile, on April 15, 1993, a contempt hearing commenced before Hearing Examiner William Ekadis of the Family Court with respect to the issue of whether Fariello's violation of the March 27, 1991 child support order, as determined by Hearing Examiner Rodriguez in his June 9, 1992 Violation of Support Order and affirmed by Judge McNulty on August 18, 1992, was "willful." Erroneously, the violation petition charged that Fariello was in willful violation of the support order dated September 27, 1991. As explained above, the actual date of the support order is March 27, 1991 and Family Court Judge McNulty found that this mistake in dating was the result of a clerical error by the Family Court. Although Fariello knew about the mistaken date, he seized upon the error and argued before the Hearing Examiner for proof of an order of support dated September 27, 1991, claiming there was no such order.

 The April 15, 1993 contempt hearing was continued until August 18, 1993, in order to allow Fariello to subpoena witnesses on his behalf. On July 8, 1993, Fariello sent a letter to Hearing Examiner Ekadis, requesting that four subpoenas be "so ordered." The subpoenas were for the appearance and testimony of Mr. Fariello's son Jared, Hearing Examiner Rodriguez, Family Court Judge Abrams, and Family Court clerk Edward Heepe. According to Fariello, "each of them had specific knowledge of circumstances that would absolutely exonerate Fariello of the charge of willful violation of a child support order and the charge of quasi-criminal contempt of court." Complaint, P 12.

 
This is the 2nd time these have circulated. Mr. Fariello was advised to proceed via motion as to the probable testimony and its relevancy as to Mr. Heepe, HE Rodriguez & Hon. AJA. There was no way for the Law Dept. to know if Mr. Fariello received the recommendation. Notwithstanding that, it is recommended that you decline to sign these subpoenas for the same reasons.

 Complaint, P 16.

 The contempt hearing resumed on August 18, 1993. According to the Family Court docket sheet, Hearing Examiner Ekadis declined to so order the subpoenas requesting the testimony of Mr. Heepe, Hearing Examiner Rodriguez and Judge Abrams, because there was no offer of proof. Fariello refused to be put under oath during the hearing, and instead requested to see a judge with respect to the subpoenas. Marotta testified at the contempt hearing. The Hearing Examiner found her testimony regarding Fariello's willful failure to pay the support to be clear and convincing, and recommended that a judge proceed with the contempt hearing and confirm Marotta's testimony pursuant to New York Family Court Act section 454(3)(a). The matter was immediately sent to Family Court Judge David Freundlich.

 Before Judge Freundlich, Fariello attempted to raise the issue of the Hearing Examiner's declination to so order the three subpoenas, as well the issues of modifying the child support, custody and visitation segments of his divorce judgment. Judge Freundlich refused to hear Fariello on these issues, stating that the only issue before him was the contempt proceeding. See Transcript of Proceedings before Judge Freundlich, August 18, 1993, at pp. 22 and 24. Judge Freundlich reviewed a tape of the Hearing Examiner's contempt hearing and confirmed the findings, holding Fariello in willful contempt of the March 27, 1991 order of support. At that time Fariello reiterated that, although he could make the arrears and support payments, he would not obey the support order for religious reasons, and sought to link any payment by him to a modification of the support order, as well as the terms governing Jared's custody. Judge Freundlich then sentenced Fariello to eleven days in the Suffolk County Jail, pursuant to Family Law section 454(3)(a).

 The Present Action.

 Based on the circumstances surrounding the April 15, 1993 and August 18, 1993 contempt hearings and his sentencing, Fariello commenced a second federal action by filing the complaint in the present case pursuant to 42 U.S.C. § 1983 against Grace Campbell, Theresa Mullins, William Ekadis, David Freundlich and an Unknown Law Clerk in the Family Court, in their personal capacities. The complaint alleges that the defendants violated Fariello's First Amendment, Fourth Amendment, Sixth Amendment, Equal Protection and Due Process rights under the United States Constitution. In addition to the various causes of action under section 1983, the complaint also pleads causes of action for conspiracy to violate Fariello's civil rights under 42 U.S.C. §§ 1985(2) and (3), and neglect to prevent wrongs committed against Fariello pursuant to 42 U.S.C. § 1986. In all, the complaint alleges eight federal causes of action against each defendant. Fariello has also added state law claims against all of the defendants for intentional infliction of emotional distress, false arrest and false imprisonment. Moreover, as against the defendants Campbell, Ekadis and Freundlich, Fariello alleges a cause of action for neglect and willful failure to exercise ministerial duties.

 The following allegations concerning the defendants' actions form the essential basis of Fariello's complaint:

 
1. Hearing Examiner Ekadis' declining to so order the three subpoenas on the recommendation of a law clerk constitutes a failure to perform a ministerial duty that is imposed upon the Hearing Examiner by law. According to Fariello, signing a so ordered subpoena for a pro-se litigant is a ministerial act under New York law. Complaint, PP 3A, 9, 23, 24.
 
2. Similarly, Judge Freundlich's declining to so order the three subpoenas constitutes a failure to perform a ministerial act. Complaint, PP 33.
 
3. The contempt proceeding was held without allowing Fariello an opportunity to produce witnesses on his behalf. Complaint, P 21.
 
4. By bringing him before Judge Freundlich on August 18, 1993, Fariello was denied his right to an appeal of Hearing Examiner Ekadis' recommendation to the Family Court judge, concerning the finding that Fariello was in willful contempt of the support order of March 27, 1991. Complaint, P 38.
 
5. There is no order of September 27, 1991, and therefore Fariello could not have been held in contempt of violating any such order. Complaint, P 40.
 
6. The Family Court of the State of New York, County of Suffolk, "harbors a gender-based discriminatory animus against divorced fathers as a class," and "has a discriminatory animus against Christians as a class who believe and express the belief that the laws of God as stated in the Bible transcend the authority of the secular courts." Complaint, PP 45-47.
 
7. There is a class-based discriminatory animus against non-attorney, pro se litigants as a class in New York courts. Complaint, P 48.

 As a result of these allegations, Fariello demands $ 5 million in damages from every defendant, on each of the eleven causes of action alleged in the complaint, for a total demand of $ 275 million.

 The Present Motions.

 The defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative to grant summary judgment in their favor pursuant to Fed. R. Civ. P. 56(b), on the grounds that: (1) the Court lacks the subject matter jurisdiction to hear this case, because the plaintiff is in effect appealing the ruling of the state court and federal courts lack the statutory authority to hear appeals from decisions of the state court; (2) all of the defendants are subject to ...


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