Opinion
Case Number 03-10106-BC
December 15, 2003
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE
The plaintiff, Stephen H. Glagola, has filed his second pro se action in this Court alleging, under various theories, that the defendant, who is his former wife, has interfered with what Mr. Glagola characterizes as his rights to raise and visit with his children. The plaintiff has three minor sons, but custody of those children has been awarded to his former wife by an Illinois state court divorce decree. The plaintiff believes that he is entitled to the return of the children, who were removed from him based on allegations of the defendant, which the plaintiff claims were false. His claim rests on three federal statutes that deal with the subject of child abduction. The case was referred to Magistrate Judge Charles E. Binder for general case management. On May 13, 2003, Magistrate Judge Binder filed a Report and Recommendation calling for the sua sponte dismissal of the action pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the court to screen cases filed in forma pauperis, as this matter has been, and dismiss them when it is determined that the action is frivolous, fails to state a cognizable claim, or seeks relief from an immune defendant. The plaintiff filed timely objections to the Report and Recommendation, and this matter is now before the Court for a de novo review.
I.
As noted above, this is the second action filed in this court by the plaintiff that arises from a dispute with his former wife over custody and visitation. The initiating pleading in this case is styled as an emergency petition for an ex parte hearing for an order for the immediate return of the plaintiff's children. This pleading appropriately has been treated as a complaint for relief, and was ordered to be filed by the clerk after the Magistrate Judge granted the plaintiffs application to proceed without prepayment of fees.This Court dismissed the first case approximately one year ago, finding that the gravamen of that lawsuit was a challenge to Illinois state court orders and decrees relating to custody and visitation over which this Court lacked jurisdiction according to the Rooker-Feldman doctrine and the "domestic relations exception" to federal jurisdiction. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). See also Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (6th Cir. 1981) (holding that "[e]ven when brought under the guise of a federal question action, a suit whose substance is domestic relations generally will not be entertained in a federal court"). The Court determined in that case that "[i]n order to grant the plaintiff the relief he seeks, this Court would also have to alter or amend the judgment and parenting agreements approved by the Illinois state courts." Glagola v. Glagola, 2002 WL 31938744 at *2 (E.D. Mich. Dec. 19, 2002). The Court held that it lacked jurisdiction to do so. Id. at *3.
The present case presents many of the same features as the first lawsuit, in that at the heart of the dispute is a basic disagreement over the propriety of the actions of the plaintiff's former wife in enforcing orders issued by Illinois courts that have the effect of upsetting visitation arrangements that the plaintiff made with his children. However, in this second case, the plaintiff has invoked the protection of three federal statutes that deal with the subject of child abduction: 42 U.S.C. § 663, 42 U.S.C. § 11601-03, and 28 U.S.C. § 1738A.
The plaintiff alleges that he is the father of three sons by his former wife, Diane Lynne Glagola: Stephen William, age 14; Adam Michael, age 12; and Mark Austin, age 8. After a period of marriage, Stephen and Diane divorced and the issue of custody of the children was initially resolved in a Joint Parenting Agreement. The Agreement granted the parties joint custody of the boys and stipulated that the children would reside with Diane. The Agreement also allowed unsupervised visitation by the plaintiff, established a schedule, and granted compensatory time to make up any visitation time with the plaintiff that was missed.
The plaintiff alleges that the implementation of the Agreement generated disputes between Stephen and Diane. Stephen claims that Diane sought increased child support payments from Stephen and used access to the children as leverage to seek payment. Stephen says that Diane repeatedly denied or attempted to deny Stephen visitation rights, and she eventually filed a petition in the Circuit Court for Cook County, Illinois for increased child support and decreased visitation access. That court ordered the parents to mediation, where the mediator suggested that Stephen be granted compensatory visitation. The plaintiff contends that Diane chose not to complete mediation and, instead, filed a complaint against Stephen in January 2000 asserting Stephen was abusing illegal drugs and might pose some danger to the children. In February 2000, the Cook County Circuit Court limited Stephen's visitation rights to those occurring only under professional supervision. In April 2000, that court entered an ex parte order curtailing visitation based on a finding that a serious danger to the children existed. The Flossmoor, Illinois Police Department intervened in November 2000 preventing Stephen Glagola from meeting with his children during a scheduled visitation. The plaintiff claims that all of these actions were precipitated by the unfounded claims of the defendant, Diane Glagola. At approximately this time, Stephen Glagola sought a remedy through the United States District Courts, Western District of Michigan, Southern Division, and Northern District of Illinois. Both courts dismissed Glagola's claims.
The plaintiff further alleges that he underwent several medical tests to gauge the veracity of Diane's charges of substance abuse. He says that all tests indicated that he did not have a substance abuse problem, and he managed to obtain an order to regain his visitation rights on May 17, 2001. However, Diane quickly challenged the reinstatement of visitation. The plaintiff states that his first visit with his children in sixteen months was prematurely terminated on June 6, 2001 when Diane obtained an Emergency Order of Protection from the Circuit Court of Cook County, Illinois. As a result, Stephen says he lost his visitation rights, and the Clare, Michigan police enforced the order by arresting Stephen and returning the children to their mother.
The plaintiff acknowledges that the Illinois court ordered a full psychological evaluation before determining whether to grant a permanent protection order. Stephen fared poorly in his psychological evaluation, but attributes the conclusions drawn by the psychologist to unprofessional conduct on the psychologist's part, a breach of duty, and the corruption of the psychologist by Diane's extended family. On May 1, 2002, Diane applied for and received an extended Order of Protection from the Cook County Circuit, which granted unequivocal custody of the three children to Diane and permanently denied Stephen visitation rights.
The plaintiff states that he was charged with criminal child abduction, but he was ultimately exonerated at a trial when a not-guilty verdict was returned. He argues that Diane intentionally lied to police and judicial officers, which resulted in the plaintiff's inability to see his sons. Diane's extended family allegedly used verbal and physical intimidation and actually hid the children to prevent the plaintiff from seeing his sons. The plaintiff also contends that Diane, her extended family, the police, and Cook County Court officers refused to believe that he had overcome alcohol addiction and persecuted the plaintiff as a result.
All of this, the plaintiff insists, came about due to Diane's wrongful conduct, which enabled her to effectuate the illegal seizure of the children and transport them to Illinois where she continues to conceal them from the plaintiff. The plaintiff argues that Diane's conduct violates the three federal statutes referenced earlier. The magistrate judge concluded that two of the statutes did not give rise to a private right of action, and the third did not provide a basis for relief under the facts alleged by the plaintiff.
II.
The plaintiff filed objections to the Magistrate Judge's recommendation that the case be dismissed. The plaintiff's objections are organized into 295 numbered paragraphs in 89 pages with additional Exhibits. They are divided into three primary sections. In the first section, the plaintiff argues that a premature dismissal of his case without a hearing would be unfair. The second section is devoted to an argument that the Magistrate Judge made an improper assessment of the facts. The third section asserts that the plain language of the law provides relief.
Under the order for general case management, the Magistrate Judge engaged in the screening process mandated by Congress for all cases filed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B); McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997); Floyd v. U.S. Postal Service, 105 F.3d 274 (6th Cir. 1997), overruled in part by Callihan v. Schneider, 178 F.3d 800 (6th Cir. 1999). Following the dictates of 28 U.S.C. § 636(b)(1)(B), this Court has conducted a de novo review of the pleadings in light of the Report and Recommendation of the Magistrate Judge and the objections filed by the plaintiff. The Court has liberally construed this pro se litigant's complaint, see Jourdan v. Jabe, 951 F.2d 108, 100 (6th Cir. 1991), since it is held to "less stringent standards" than a complaint drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the Court is guided by the rule that such complaints still must plead facts sufficient to show a redressable legal wrong has been committed. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F. Supp.2d 748, 755 (E.D. Mich. 2001).
The screening mandated by Congress in § 1915(e)(2) includes the obligation to dismiss civil complaints if they "fail to state a claim upon which relief may be granted." See 28 U.S.C. § 1915(e)(2)(B)(ii); McGore, 114 F.3d at 604. The Court agrees with the Magistrate Judge that the plaintiff's pleadings come up short. The Court finds that this new lawsuit is little more than a second attempt to obtain the same relief sought in the first case, and although the plaintiff's legal theories differ from those asserted in the original action, both cases are based on a common nucleus of operative facts.
As noted above, the plaintiff bases his claim here on three federal statutes. The first, 42 U.S.C. § 663, governs the use of the Federal Parent Locator Service established pursuant to 42 U.S.C. § 653. As the Magistrate Judge observed, it allows "authorized persons" to request locator information about a parent or child from the custodian of federal government records. The Magistrate Judge correctly applied the four-part test prescribed in Cort v. Ash, 422 U.S. 66, 78 (1975), in concluding that the statute did not raise an implied right of private action. Congress did not intend to grant to individuals a right to sue on the basis of this legislation.
The second statute cited by the plaintiff is 28 U.S.C. § 1738A, known as the Parental Kidnaping Prevention Act. In Thompson v. Thompson, 484 U.S. 174 (1988), the Supreme Court held that this legislation does confer a private right of action. Although the purpose of the Act is to require states to give full effect to the custody decrees of sister states, the PKPA does not provide an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. Id. at 182. See also Evans v. Evans, 668 F. Supp. 639, 642 (M.D. Tenn. 1987). The Magistrate's Report so concluding was correct.
The third statutory scheme upon which the plaintiff relies is found at 42 U.S.C. § 11601-03, which is known as the International Child Abduction Remedies Act. The Magistrate Judge acknowledged that the Act expressly conferred a private right of action, but the cause of action must be directed toward international child abductions. It was intended to facilitate access to certain treaties that facilitate the prompt return of children, such as the Convention on the Civil Aspects of International Child Abduction done at The Hague on October 25, 1980. See 42 U.S.C. § 11601(3)-(4). "The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court." Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.l (6th Cir. 1996) (emphasis added). The Magistrate Judge correctly concluded that the legislation does not impact an interstate dispute. Since the plaintiff alleges that his quarrel is spawned by the adjudications of an Illinois court, the Magistrate Judge correctly concluded that the plaintiff's claim fails to state a claim for which relief can be granted.
Once again, the plaintiff has filed a complaint that the Court must conclude is frivolous and therefore subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). In order for the plaintiff to pursue the remedies he seeks, he must return to the domestic relations court in Illinois. Lower federal courts have no authority to upset the rulings on that court, since their jurisdiction is limited by the congressional restrictions described by the Rooker-Feldman doctrine. Moreover, disputes over child custody and visitation are not matters cognizable by the federal district courts. See Firestone, 654 F.2d at 1215.
The Court finds that the Magistrate Judge has correctly described the plaintiff's claims and the facts on which they are based. He also has applied the correct law to the facts. Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation [dkt # 5] is ADOPTED.
It is further ORDERED that the plaintiff's complaint is DISMISSED with prejudice.
It is further ORDERED that the plaintiffs motion to reconsider his petition and motion for court status and consideration of amendments [dkts # 6, 8] are DENIED as moot.