Opinion
NO. 1:99CV206-P-A
May 31, 2000
MEMORANDUM OPINION
Presently before the Court is Defendant Mike S. Bennett's Motion to Dismiss, or in the alternative, his Motion for Summary Judgment. The facts of the case are as follows:
John and Susan Longmire were married in Lowndes County, Georgia, on June 22, 1987. On February 13, 1988, they had a son, John W. Longmire. The Longmires were divorced on June 23, 1995, by order of the Superior Court of Merced County, California. Susan Longmire had custody of the child, but he was living with John Longmire in Lowndes County, Mississippi, during the summer of 1998, as is allowed by Mr. Longmire's visitation rights.
In the present action, John Longmire contests a child custody proceeding that took place in Lowndes County, Georgia. Mike Bennett, attorney for Mr. Longmire's ex-wife, filed a Petition for Modification and Contempt on July 7, 1998, requesting that the court issue an order prohibiting John Longmire from carrying the child outside the continental U.S. On that same day, Georgia Superior Court Chief Judge George A. Horkan entered a show cause order and set a hearing date on August 11, 1998. Furthermore, the judge ordered that the son could not be carried outside of the United States without Susan Longmire's consent as the custodial parent. On July 10, 1998, John Longmire wrote to Judge Horkan challenging the court's jurisdiction over the matter. On August 5, 1998, he wrote another letter to the judge informing him that he would not be able to attend the August 11, 1998, hearing because he was assigned to temporary duty in Saudi Arabia from August 10, 1998, until December 7, 1998. The court canceled the August 11 hearing.
According to Susan Longmire, John told his ex-wife that he planned to take their ten-year old son out of the country, and he threatened not to return the child.
Longmire states in his letter "[I] do not believe that your court has jurisdiction of this matter since the subject child has been in Mississippi since the beginning of summer and remains with me [in Mississippi] until August 2, 1998 by order of the California court which dissolved my marriage. I believe that jurisdiction over my child during the summer months remains at best with the California court, and at worst the chancery court of Lowndes county Mississippi."
The Court notes that Plaintiff Longmire received notice that he would be going to Saudi Arabia on July 2, 1998, yet he waited over a month to let the court know.
Longmire returned to the United States in December 1998, and a Motion for Default Judgment was filed on January 7, 1999. A hearing date was set for February 10, 1999. John Longmire did not appear at the hearing, even though he was served with notice on January 14, 1999. On March 17, 1999, Judge Richard M. Cowart entered an Order Modifying Custody. Mr. Longmire commenced the present lawsuit on July 8, 1999, alleging that Susan Longmire, her attorney Mike Bennett, Sr., and Lowndes County, Georgia, Superior Court Judge Cowart deprived him of his due process rights and violated 42 U.S.C. § 1983 and 50 U.S.C. § 501 et seq. (Soldiers and Sailors Civil Relief Act).
0n September 13, 1999, Mr. Longmire filed a voluntary stipulation of dismissal as to Defendant Cowart, since he is entitled to absolute immunity from liability for judicial acts performed within his jurisdiction.
LEGAL ANALYSIS
In determining whether to grant a motion to dismiss, this Court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994). The motion should be granted "only if it appears that no relief could be granted under any set of facts that could be proved consistent with the allegations." Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 619 (5th Cir. 1992). The review of such a motion is limited to the plaintiff's complaint. Id.1. Soldiers and Sailors Civil Relief Act
Mr. Longmire claims that this Court has federal question jurisdiction, since he claims the order against him was made in violation of the Soldiers and Sailors Civil Relief Act, 50 U.S.C. § 501, et seq. Since Judge Cowart entered an Order Modifying Custody while Mr. Longmire was in military service, Mr. Longmire claims that the judge, his ex-wife, and her attorney violated the Soldiers and Sailors Civil Relief Act. This Act was designed to temporarily suspend civil proceedings and/or transactions which may prejudice the civil rights of persons in military service. See 50 U.S.C. § 510. However, while the Act is to be liberally construed, "it is not to be used as a sword against persons with legitimate claims." Engstrom v. First National Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citation omitted). Furthermore, the Act "is to be administered as an instrument to accomplish substantial justice which requires an equitable consideration of the rights of parties to the end that their respective interests might be properly conserved." Id. (citation omitted). Therefore, this Court will only determine that the Act has been violated if a substantial injustice occurred.
The Order Modifying Custody was actually entered on March 17, 1999. Mr. Longmire has not indicated that he was out of the country on military duty at this time. Rather, he claims that he served in Saudi Arabia from August 10, 1998, until December 7, 1998.
"[A] claim that a judgment has been entered in violation of the Soldiers and Sailors Relief Act does not vest the federal courts with jurisdiction." Sarfaty v. Sarfaty, 534 F. Supp. 701, 706 (E.D. Penn. 1982). The Act, in and of itself does not authorize the federal courts to collaterally review, vacate, or impede a decision of a state court.Davidson v. General Finance Corp., 295 F. Supp. 878, 881 (N.D.Ga. 1968).
Under the Act, judgments made in violation of the Act are subject to attack only in the courts which rendered the judgments. 50 U.S.C. § 520 (4). Mr. Longmire asserts, however, that he is not attacking the judgment, but rather he is asserting that the Defendants conspired to violate his rights under the Act. Mr. Longmire does not want to overturn the Order Modifying Custody that has been rendered; instead, he only wants actual, compensatory, and punitive damages to be awarded to him for the Defendants' allegedly unconstitutional actions.
Mr. Longmire uses the word "conspiracy" to describe the Defendants' actions for the first time in his response to the motion to dismiss. As will be subsequently discussed, this Court does not believe that he has sufficiently alleged a conspiracy claim.
Federal district courts do not have jurisdiction of constitutional claims that are "inextricably intertwined" with a state court's decision in a judicial proceeding. See Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Hale v. Harney, 786 F.2d 688 (5th Cir. 1986); Brinkmann v. Johnston, 793 F.2d 111 (5th Cir. 1986). Mr. Longmire attempts to persuade this Court that the present action is not inextricably intertwined with Judge Cowart's decision, since he is not challenging Judge Cowart's ruling. However, this Court is not convinced. Clearly, Mr. Longmire's claim that Judge Cowart, Mrs. Longmire, and Mr. Bennett conspired to violate his rights under the SSCRA is inextricably intertwined with Judge Cowart's Order Modifying Custody. As such, this Court will not determine that Judge Cowart's order in any way violated his constitutional rights, as "errors committed by state judges in state courts are for correction in the state court system." See Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986).
Even if the Order rendered by Judge Cowart violated the Act, "[j]udgments entered in violation of the Act are only voidable and do not violate due process." Sarfaty v. Sarfaty, 534 F. Supp. 701 (E.D. Penn. 1982). The mere fact that the Order Modifying Custody may have been entered in violation of the Act does not in and of itself entitle Mr. Longmire to recover damages. While the Fifth Circuit has never specifically addressed this issue, this Court finds Mr. Longmire's position unconvincing. If the Order was entered in violation of the Act, the Court does not believe that the violation "is of sufficient gravity" to entitle Mr. Longmire to recover. See United States v. Hampshire, 892 F. Supp. 1327, 1332 (D.Kan. 1995). His claim that the Order was entered in violation of the Soldiers and Sailors Civil Relief Act should be dismissed.
2. Conspiracy under 42 U.S.C. § 1983
In order for Mr. Longmire to establish a § 1983 claim, he must demonstrate "that some person has deprived him of a federal right . . . [and] that the person who deprived him of that right acted under color of state or territorial law." 42 U.S.C. § 1983. Actions by private citizens may also support an action for liability under § 1983 if the private actor is "a willing participant in a joint action with the state or its agents." Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986). The Fifth Circuit requires that in § 1983 cases, the claimant must state specific facts, not merely conclusory allegations. Elliot v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985). Mr. Longmire's complaint in the present case does not state any factual basis to support his conspiracy charges. He simply asserts in his complaint, among other things, that [t]his action arises . . . under federal law, particularly Title 42 of the United States Code, Section 1983 . . . In order for Mr. Longmire to have an actionable claim against Defendant Bennett for a § 1983 violation, he must establish either that Bennett acted under color of state law, or that Bennett conspired with an immune state official who acted under color of state law. Richardson v. Fleming, 651 F.2d 366 (5th Cir. 1981). In this instance, Longmire acknowledges that Bennett is not a state actor, yet he does assert that Bennett conspired with Lowndes County Superior Court Judge Richard M. Cowart, a state actor, to deprive him of his constitutional rights.
As noted earlier, Judge Cowart has been dismissed from this lawsuit, as he is entitled to absolute immunity from liability for damages for judicial acts performed within his jurisdiction.
By asserting a § 1983 conspiracy claim, Mr. Longmire attempts to gain federal jurisdiction. However, this Court is not convinced. Clearly, "litigants may not obtain review of state court actions by filing complaints about those actions in lower federal courts cast in the form of civil rights suits." See Brinkmann, 793 F.2d 111, 113 (5th Cir. 1986). Because Bennett did not act under color of state law, and because Mr. Longmire has not established that Bennett conspired with Judge Cowart to deprive him of his constitutional rights, Mr. Longmire's § 1983 claims should be dismissed.
3. Due Process Claims
Mr. Longmire asserts that the Order Modifying Custody was entered in violation of his rights to procedural due process. This Court has jurisdiction over procedural due process claims arising under the Constitution, but Mr. Longmire has not established in any way that he was denied due process.
While it is true that Mr. Longmire was out of the country on military duty from August 10, 1998, until December 7, 1998, and the original show cause hearing was scheduled for August 11, 1998, the actual Order Modifying Custody was not entered until almost four months after Mr. Longmire returned from his military duty. After a Motion for Default Judgment was filed by Mrs. Longmire on January 7, 1999, Mr. Longmire was given ample opportunity to present his case before the Order was entered. A docket print-out of matter pending in the Superior Court of Lowndes County, Georgia, indicates that a hearing date was scheduled for February 10, 1999. However, nothing indicates that this hearing was held, or that Mr. Longmire attended. As such, this Court cannot determine that Mr. Longmire was deprived due process, and his due process claims will be dismissed.
4. Claims against Susan Longmire
Although Susan Longmire has not appeared in this action and has not moved to dismiss the claims against her, this Court will dismiss the complaint against her because of the lack of subject matter jurisdiction. See Sarfaty, 534 F. Supp. 701, 705 (E.D. Penn. 1982).
CONCLUSION
Based on the foregoing, the Court concludes that Defendant Mike Bennett's motion to dismiss should be GRANTED, and the case should be DISMISSED pursuant to FRCP 12(b).
An order will issue accordingly.