The court held that ultimately, the religious training of the
children is a matter that would remain the province of the
The appeal of the Elmasri divorce trial is presently pending
in the state court.
III. The Complaint and the Pending Motions
As noted, the complaint makes vague references to
inappropriate conduct on the part of all defendants. As
amplified by the response to the summary judgment motions, the
complaint seeks to allege a civil rights violation based upon a
state court ruling that allegedly deprives Plaintiff of his
right to practice his religion with his children.
In support of their motions to dismiss, defendants argue that
there is no jurisdiction to re-litigate a state court divorce in
this federal forum and that, in any event, they are improper
defendants in a civil rights action. More particularly, each
defendant argues as follows.
Dr. Favaro argues that he is not a state actor and is entitled
to absolute witness immunity in connection with any claim
arising out of his expert testimony in the state court
proceedings. Additionally, Dr. Favaro argues that this case is
barred by the Rooker-Feldman doctrine, which precludes federal
courts from exercising jurisdiction over cases that are
"inextricably intertwined" with state court judgments. See
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68
L.Ed. 362 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).
In a similar vein, Dr. Favaro argues that jurisdiction here is
barred by the domestic relations exception to the jurisdiction
of the federal courts. Finally, Dr. Favaro argues that this
lawsuit should be dismissed pursuant to the doctrine of
abstention set forth in Younger v. Harris, 401 U.S. 37, 91
S.Ct. 746, 27 L.Ed.2d 669 (1971).
Defendant Morrison argues that the claims raised herein have
been fully litigated in the context of the state court divorce
trial and are therefore barred by principles of res judicata and
collateral estoppel. Morrison echoes Dr. Favaro's argument that
the federal courts do not have jurisdiction to revisit a state
court decision regarding a domestic matter. Morrison further
argues that to the extent she is sued on a legal malpractice
theory, no such claim lies because she owes no duty to
Plaintiff, who was never her client. Morrison also argues that
Plaintiff has failed to plead his fraud claim with the
particularity required by Rule 9(b) of the Federal Rules of
Civil Procedure. Finally, Morrison points out that Plaintiff
lacks standing to bring any claim on behalf of his minor
children since he is not the custodial parent, nor has he been
appointed a guardian for the purpose of pursuing this matter.
Defendant Donna England argues, as do her co-defendants, that
the court lacks subject matter jurisdiction over this domestic
relations matter. England also argues that her status as a law
guardian is insufficient to render her a state actor subject to
civil rights claims. Any civil rights conspiracy claim against
England is argued to be barred on the ground that the pleading
is vague and conclusory. Finally, England argues that this
action is barred by principles of res judicata and collateral
Last, Colleen Rupp Elmasri, appearing pro se, has,
essentially, adopted the various arguments set forth by her
I. Legal Principles
A. Standards for Summary Judgment
A motion for summary judgment is granted only if the court
determines that no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. FRCP
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking
judgment bears the burden of demonstrating that no issue of fact
exists. McLee v. Chrysler Corp. 109 F.3d 130, 134 (2d Cir.
1997). However, when the nonmoving party fails to make a showing
on an essential element of its case with respect to which it
bears the burden of proof, summary judgment will be granted.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986).
The party resisting summary judgment must not only show a
disputed issue of fact, but it must also be a material fact in
light of the substantive law. Only disputed facts that "might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson,
477 U.S. at 242, 106 S.Ct. 2505.
When a moving party demonstrates the absence of a genuine
issue of fact, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e). Summary judgment is not defeated by vague
assertions of unspecified disputed facts. Western World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.
B. Stating A Civil Rights Claim
To state a claim pursuant to 42 U.S.C. § 1983 ("Section
1983"), plaintiff must show a deprivation of constitutional
rights "under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory." 42 U.S.C. § 1983;
Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). The alleged
deprivation of a constitutionally protected right is
insufficient, standing alone, to state a claim under Section
1983. A second element is required — plaintiff must prove that
defendant acted "under color of state law." Briscoe v. LaHue,
460 U.S. 325, 329-30, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970); Annunziato v. The Gan, Inc.,
744 F.2d 244, 249 (2d Cir. 1984). This requirement excludes from the
reach of Section 1983 private conduct, "however discriminatory
or wrongful." American Manufacturers Mutual Ins. Co. v.
Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130
(1999), quoting, Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct.
836, 92 L.Ed. 1161 (1948).
The "color of state law" requirement results in the imposition
of liability only upon those who "carry a badge of authority of
a State and represent it in some capacity, whether they act in
accordance with their authority or misuse it." National
Collegiate Athletic Ass'n. v. Tarkanian, 488 U.S. 179, 191, 109
S.Ct. 454, 102 L.Ed.2d 469 (1988), quoting, Monroe v. Pape,
365 U.S. 167, 172, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). "Misuse
of power, possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of
state law, is action taken `under color of' state law."
Tarkanian, 488 U.S. at 191, 109 S.Ct. 454, quoting, United
States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed.
1368 (1941). When determining whether a person is a state actor,
the court considers "the extent to which the actor relies on
governmental assistance and benefits . . .; whether the actor
is performing a traditional governmental function . . .; and
whether the injury caused is aggravated in a unique way by the
incidents of governmental authority." LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 433 (2d Cir. 1995), quoting, Edmonson
v. Leesville Concrete Co., 500 U.S. 614, 621-22, 111 S.Ct.
2077, 114 L.Ed.2d 660 (1991).
C. Stating A Section 1983 Conspiracy Claim
Private individuals who are not state actors may nonetheless
under Section 1983 if they have conspired with or engaged in
joint activity with state actors. Briscoe, 460 U.S. at 330 n.
7, 103 S.Ct. 1108; Adickes, 398 U.S. at 152, 90 S.Ct. 1598;
Annunziato, 744 F.2d at 250. Allegations of conspiracy can be
neither vague nor conclusory, but must "allege with at least
some degree of particularity overt acts which defendants engaged
in which were reasonably related to the promotion of the alleged
conspiracy." Fariello v. Rodriguez, 148 F.R.D. 670, 677
(E.D.N.Y. 1993), aff'd, 22 F.3d 1090 (2d Cir. 1994), quoting,
Chodos v. Federal Bureau of Investigation, 559 F. Supp. 69, 72
(S.D.N.Y.), aff'd, 697 F.2d 289 (2d Cir. 1982).
Liability for participating in a Section 1983 conspiracy may
be imposed on private individuals even if the state actor is
immune from liability. Dennis v. Sparks, 449 U.S. 24, 27-28,
101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Thus, a private individual
claiming immunity who is charged with conspiring with a state
actor must establish his own basis for invoking an immunity
defense. See Briscoe, 460 U.S. at 330 n. 7, 103 S.Ct. 1108.
D. Stating a Section 1985 Conspiracy Claim
Private individuals may be liable for conspiracy to violate
the civil rights laws under 42 U.S.C. § 1985 ("Section 1985").
See Traggis v. St. Barbara's Greek Orthodox Church,
851 F.2d 584, 586-87 (2d Cir. 1988). The statute creates no substantive
rights but, instead, provides a remedy for the deprivation of
rights guaranteed by the United States Constitution. Great Am.
Fed. Sav. & Loan v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345,
60 L.Ed.2d 957 (1979); Traggis, 851 F.2d at 586-87.
The elements of a claim under Section 1985 are: (1) a
conspiracy; (2) motivated by racial or other discriminatory
animus; (3) for the purpose of depriving any person or a class
of persons of the equal protection of privileges and immunities
under the law; (4) an overt act in furtherance of the conspiracy
and (5) injury. Griffin v. Breckenridge, 403 U.S. 88, 102-03,
91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Gagliardi v. Village of
Pawling, 18 F.3d 188, 194 (2d Cir. 1994); Gleason v. McBride,
869 F.2d 688, 694-95 (2d Cir. 1989); Mele v. Christopher,
7 F. Supp.2d 419, 421 (S.D.N.Y. 1998), aff'd, 173 F.3d 845 (2d
Cir. 1999); Sacco v. Pataki, 982 F. Supp. 231, 246 (S.D.N.Y.
Like conspiracy claims asserted under Section 1983, conspiracy
claims under Section 1985 must contain specific factual
allegations. A complaint consisting of nothing more than
conclusory or vague allegations of conspiracy is insufficient to
survive a motion for summary judgment. Leon v. Murphy,
988 F.2d 303, 311 (2d Cir. 1993).
II. Plaintiff's Claims Must Be Dismissed
There are several reasons why this lawsuit must be dismissed,
in its entirety, as against all defendants. The courts list here
a select few.
A. The Court Lacks Subject Matter Jurisdiction
1. Rooker-Feldman, Res Judicata and Collateral Estoppel
As noted, Dr. Favaro argues that this court lacks subject
matter jurisdiction over this case based upon the
Rooker-Feldman doctrine. Co-defendants England and Morrison
argue that the claims sought to be raised herein are barred by
the preclusion principle of res judicata and collateral
estoppel. The concepts are closely related and are discussed
The Rooker-Feldman doctrine holds that federal courts lack
jurisdiction over cases that seek, essentially, review of state
court judgments. Rooker-Feldman precludes the federal courts
from exercising jurisdiction over cases that are "inextricably
intertwined" with a state court judgment. Feldman, 460 U.S. at
483 n. 16, 103 S.Ct. 1303.
A federal case is inextricably intertwined with a state case if
the federal claim "succeeds only to the extent that the state
court wrongly decided the issues before it." Marden v. Dinin,
22 F. Supp.2d 180, 185 (S.D.N.Y. 1998), quoting, Pennzoil Co. v.
Texaco, 481 U.S. 1, 25, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987)
(Marshall, J., concurring).
Closely related to the Rooker-Feldman doctrine are the
preclusion principles of res judicata and collateral estoppel.
When determining the reach of the Rooker-Feldman doctrine, the
Second Circuit has recognized that claims are "inextricably
intertwined" under a Rooker-Feldman analysis if the
latter-asserted claim would be barred by state law principles of
res judicata and collateral estoppel. Thus, the Second Circuit
has stated that Rooker-Feldman's application is, at least,
co-extensive with state law preclusion principles. See Moccio
v. New York State Office of Court Administration, 95 F.3d 195,
199200 (2d Cir. 1996); see also Hachamovitch v. DeBuono
159 F.3d 687, 696 (2d Cir. 1998); accord Beharry v. M.T.A. New York
City Transit Authority, 1999 WL 151671 * 4 (E.D.N.Y. March 17,
1999); Hernandez v. City of New York, 2000 WL 145749 * 2
(S.D.N.Y. February 7, 2000). Thus, it is appropriate to consider
such principles when determining the reach of the Rooker-Feldman
Res judicata bars re-litigation of a claim actually raised as
well as a claim that might have been raised in a prior
proceeding. New York courts hold that where claims arise from
the same "`factual grouping' they are deemed to be part of the
same cause of action and a later claim will be barred without
regard to whether it is based upon different legal theories or
seeks different or additional relief." Davidson v. Capuano,
792 F.2d 275, 278 (2d Cir. 1986), citing, Smith v. Russell Sage
College, 54 N.Y.2d 185, 192-93, 445 N.Y.S.2d 68, 429 N.E.2d 746
(1981). Thus, res judicata bars re-litigation of claims actually
raised in a prior proceeding as well as those that could have
been litigated. Quartararo v. Catterson, 917 F. Supp. 919, 944
Collateral estoppel, also known as issue preclusion, will
preclude re-litigation of an issue if the issue sought to be
precluded is identical to the issue in the second proceeding and
is one which has necessarily been decided in an earlier
proceeding in the context of a full and fair opportunity to
litigate. Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995);
Caridi v. Forte, 967 F. Supp. 97, 100 (S.D.N.Y. 1997); see
Capital Telephone Co. v. Pattersonville Telephone Co.,
56 N.Y.2d 11, 17-18, 451 N.Y.S.2d 11, 436 N.E.2d 461 (1982);
Schwartz v. Public Administrator, 24 N.Y.2d 65, 71,
298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). The party seeking
preclusion bears the burden of showing the identity of issues
while the party against whom collateral estoppel is asserted
bears the burden of showing the absence of a full and fair
opportunity to litigate. Colon, 58 F.3d at 869; Quartararo,
917 F. Supp. at 944; Capital Tel., 56 N.Y.2d at 18,
451 N.Y.S.2d 11, 436 N.E.2d 461.
Collateral estoppel is applied to protect litigants from
multiple lawsuits and to conserve judicial resources. The
doctrine "fosters reliance on judicial action by minimizing the
possibility of inconsistent decisions." Remington Rand Corp. v.
Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1485 (2d Cir.
1995), quoting Montana v. United States, 440 U.S. 147, 153-54,
99 S.Ct. 970, 59 L.Ed.2d 210 (1979).
Despite Plaintiffs protests to the contrary, it is clear to
the court that the complaint herein is an attempt to overturn,
at least in part, the decision of the state court regarding the
custody of the Elmasri children. While Plaintiff states that he
does not wish to have the custody award overturned, there is no
question but that Plaintiff seeks a change with regard to the
state court comments concerning the religious education of the
The claim raised by Plaintiff here, that the testimony relied
upon by the state court was somehow fraudulent, is the precise
claim raised by Elmasri and rejected by the state court in the
divorce proceedings. Indeed, the state court characterized
Plaintiffs allegations regarding Dr. Favaro's testimony as
"baseless" and "unsupported by the record." It was also noted
that Dr. Favaro's opinion was "grounded upon appropriate fact
finding and evaluation using appropriate criteria."
Had the state court accepted Elmasri's version of events, and
his characterization of the expert testimony, it would likely
have granted custody, and the attendant ultimate determination
of religious training of the Elmasri children, to Plaintiff. It
did not so rule. Instead, the state court accepted the expert
and witness testimony here challenged, when reaching its
conclusion. In view of the ruling granting custody to
Rupp-Elmasri, Plaintiffs claims were necessarily decided against
Plaintiff by the state court. They are therefore barred by the
principle of collateral estoppel. Colon, 58 F.3d at 869;
967 F. Supp. at 100.
In view of the fact that Plaintiff's claims are barred by
collateral estoppel, they are also necessarily barred by the
Rooker-Feldman doctrine. Applying that doctrine, the court notes
again, that Plaintiff's claim of fraud must have been rejected
by Justice Farneti when he made the award of custody.
Accordingly, Plaintiffs claims succeed "only to the extent that
the state court wrongly decided the issues before it." Marden,
22 F. Supp.2d at 185. As such, they are clearly barred by the
Rooker-Feldman doctrine. See, e.g., Storck v. Suffolk County
Dep't of Social Services, 62 F. Supp.2d 927, 938 (E.D.N.Y.
1999); Fariello, 860 F. Supp. at 64-67; accord Murray v.
Administration for Children's Services, 1999 WL 33869 at *2
(S.D.N.Y. 1999) (dismissing civil rights claims that would have
required federal court to revisit family court order requiring
removal of children from parent); George v. Letren, 1998 WL
684857 at *3 (S.D.N.Y. 1998) (dismissing case that could have
resulted in overturning of paternity and child support decisions
of state court).
2. Domestic Relations Exception to Federal Jurisdiction
In addition to being barred by the Rooker-Feldman doctrine,
jurisdiction over this matter is barred by the domestic
relations exception to the jurisdiction of the federal courts.
This doctrine "divests the federal courts of power to issue
divorce, alimony and child custody decrees." Ankenbrandt v.
Richards, 504 U.S. 689, 703, 112 S.Ct. 2206, 119 L.Ed.2d 468
(1992); see Mitchell-Angel v. Cronin, 101 F.3d 108, 1996 WL
107300 *2 (2d Cir. 1996); American Airlines v. Block,
905 F.2d 12, 14 (2d Cir. 1990).
Applying this exception to jurisdiction, courts will dismiss
civil rights actions aimed at changing the results of domestic
proceedings, including orders of child custody. See, e.g.,
Abidekun v. New York City Bd. of Education, 1995 WL 228395 *1
(E.D.N.Y. April 6, 1995); Fariello, 148 F.R.D. at 675;
McArthur v. Bell, 788 F. Supp. 706, 708 (E.D.N.Y. 1992);
Neustein v. Orbach, 732 F. Supp. 333, 339 (E.D.N.Y. 1990).
Plaintiff here seeks relief he did not obtain in his divorce
and child custody trial. While Plaintiff states that he does not
wish to revisit the award of custody, adjudication of his claims
would force this court to "re-examine and re-interpret all the
evidence brought before the state court" in the earlier state
proceedings. McArthur, 788 F. Supp. at 709. As such, this
action is barred by the domestic relations exception to this
court's jurisdiction. See also Neustein, 732 F. Supp. at 339
(action barred by domestic relations exception if, "in resolving
the issues presented, the federal court becomes embroiled in
factual disputes concerning custody and visitation matters
. . .").
B. Even Assuming Jurisdiction The Case Must Be Dismissed
While it is clear to the court that this matter is outside of
the jurisdiction of this court, the court observes, that even if
there were jurisdiction, there are several additional reasons
why the case must be dismissed.
1. Lack of State Action Bars Any Section 1983 Claims
Plaintiffs Section 1983 claims must be dismissed because no
defendant is a state actor. First, it is clear that neither
Rupp-Elmasri nor her attorney, defendant Morrison, are state
actors. They acted purely as private individuals in connection
with the state court proceedings. See Di Costanzo v.
Henriksen, 1995 WL 447766 *2 (S.D.N.Y. July 28, 1995)
(dismissing for various reasons, including lack of state action,
civil rights claim brought against, inter alia, law guardian,
plaintiffs ex-wife's attorney and court-appointed psychologist).
Nor can Dr. Favaro and Donna England be deemed state actors.
Neither their appointment by a New York State court, nor the
fact that they were paid by state funds, are sufficient to
render them state actors. Storck, 62 F. Supp.2d at 941-42.
Moreover, the mere fact that an individual testifies at a court
proceeding does not render that person a state actor. Briscoe,
460 U.S. at 329-30, 103 S.Ct. 1108. Additionally, as this court
has held, guardians ad litem, although appointed by the court,
exercise independent professional judgment in the interests of
the clients they represent and are therefore not state actors
for purposes of Section 1983. Storck, 62 F. Supp.2d at 941-42.
The same holding applies to Dr. Favaro, whose independent
judgment is without question and whose connection with the state
is the same as that of England. Id.; see Di Costanzo, 1995 WL
447766 at *2; Fariello, 148 F.R.D. at 682; Levine v. County
of Westchester, 828 F. Supp. 238, 244 (S.D.N.Y. 1993);
Neustein, 732 F. Supp. at 346. See also Offutt v. Kaplan,
884 F. Supp. 1179, 1192 (N.D.Ill. 1995) (dismissing civil rights
claims against law guardians on ground they act as judicial
officers and are therefore entitled to absolute immunity).
Accordingly, neither England nor Dr. Favaro may remain in this
lawsuit as state actors under Section 1983.
2. The Conclusory Pleading Fails to State Any Conspiracy
While state action is not a necessary prerequisite to
Plaintiffs conspiracy claims, the claims may not stand absent
clear pleading of facts in support of the claimed conspiracy. As
noted, allegations of conspiracy must be more than vague and
conclusory to survive a motion for summary judgment.
Here, the complaint alleges the existence of a conspiracy in
the most conclusory of fashions. No facts are alleged in support
of the conspiracy claim. Instead, Plaintiff repeats the same
colorful adjectives, without factual elaboration, in support of
his vague claims of conspiracy against each defendant. Such
cannot survive motions for summary judgment.
3. All Claims Against Dr. Favaro and Donna England Are
Barred By Witness Immunity
In addition to the grounds discussed above, both Dr. Favaro
and Donna England are entitled to absolute witness immunity.
The common law doctrine of absolute witness immunity shields
witnesses from civil rights claims. Briscoe, 460 U.S. at 334,
103 S.Ct. 1108. This immunity extends to all persons, whether
governmental, expert, or lay witnesses, integral to the trial
process. Id. at 335. The rationale for absolute witness
immunity lies in the concern that witnesses fearing civil
liability for their testimony might not be willing to come
forward to testify or might give distorted testimony. See Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993). Protecting witnesses
from liability encourages witnesses to testify and furthers the
fact-finding and truth-seeking process of the courts. Briscoe,
460 U.S. at 333-35, 103 S.Ct. 1108.
Here, any claim against Dr. Favaro and/or Donna England are
claims that seek redress based upon testimony that these
individuals provided in the context of the Elmasri divorce
proceeding. As such, the claims are barred by the doctrine of
absolute witness immunity. Storck, 62 F. Supp.2d at 946;
DiCostanzo v. Henriksen, 1995 WL 447766 *2 (S.D.N.Y. July 28,
For the foregoing reasons, the court dismisses all civil
rights claims. To the extent that they may exist, the court
declines to exercise pendent jurisdiction over any state law
claims. Accordingly, all pending motions for summary judgment
are granted. The Clerk of the Court is directed to close this