Opinion
3:24-cv-167-KRG-KAP
08-20-2024
CHANDLER McCLOSKEY, et al., Plaintiffs v. JUDGE PAUL CHERRY, Defendant
REPORT AND RECOMMENDATION
KEITH A. PESTO, UNITED STATES MAGISTRATE JUDGE
Recommendation
I recommend that the Court abstain under well-settled principles of law and dismiss the complaint without leave to amend. The motion to have the Marshal serve the complaint, ECF no. 4, is denied pending consideration of this recommendation.
Report
Plaintiffs filed a complaint at ECF no. 1 on July 19, 2024, naming as defendant the Honorable Paul Cherry of the Court of Common Pleas of Clearfield County, alleging that plaintiffs' constitutional rights were being trampled on by Clearfield County Children and Youth Services' interference with the custody of their child. CYS filed an emergency petition under 42 Pa.C.S.§ 6302 with Judge Cherry on July 16, 2024, seeking to take plaintiffs' infant child into protective custody based on an allegation of dependency. Judge Cherry granted the petition and scheduled an emergency hearing for July 18, 2024 “to determine whether continued shelter care is required.” Complaint Exhibit A. The events of that hearing are not of record. With the complaint, the plaintiffs filed a motion at ECF no. 2 for emergency injunctive relief which properly could be considered a motion for a temporary restraining order under Fed.R.Civ.P. 65. That pro se pleading is also ambiguous about whether Judge Cherry granted any further continuation of the emergency custody order on July 18, 2024.
Because of the limited relief sought in the complaint - an order “voiding Judge Cherry's unlawful order [order is singular, not plural] returning our baby,” Complaint at 5, it may be that this matter is moot. The Court denied the plaintiffs' emergency motion (which sought the same relief in the same language) on July 22, 2024 in a memorandum order at ECF no. 6, amended the next day at ECF no. 7. Nothing further happened until I was added to the case on August 7, 2024 by means of a deputy clerk's docket entry.
If the matter is not moot, the Court's discussion in denying the motion for emergency injunctive relief dictates the Court's abstention from this entire matter under what is commonly known as the Younger v. Harris doctrine. The Supreme Court has positively commanded lower federal courts to abstain from interference in state court proceedings if those proceedings provide a “forum for raising constitutional issues.” Juidice v. Vail, 430 U.S. 327, 330 (1977), citing Younger v. Harris, 401 U.S. 37 (1971) and Huffman v. Pursue, Ltd., 420 U.S. 592 (1975). Younger v. Harris concerned state criminal proceedings, but its principles are “fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). The “basic concern” of the abstention doctrine is to prevent the “threat to our federal system posed by displacement of state courts by those of the National Government.” Moore v. Sims, 442 U.S. 415, 423 (1979). Moore v. Sims ordered federal courts to abstain from challenges to Texas' procedures for the temporary removal of a child when there was an allegation of child abuse. Quoting Kugler v. Helfant, 421 U.S. 117 (1975), the Supreme Court in Moore v. Sims held that Kugler v. Helfant's discussion of deference to state criminal proceedings is fully applicable to child custody proceedings:
Only if extraordinary circumstances render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state [] process. The very nature of ‘extraordinary circumstances,' of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state [] proceedings. But whatever else is required, such circumstances must be extraordinary in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.See Moore v. Sims, 442 U.S. at 433, quoting Kugler v. Helfant, 421 U.S. at 124-25 (as edited for clarity). No extraordinary circumstances as contemplated in Moore v. Sims are alleged in the complaint.
More recently, in Sprint Communications v. Jacobs, 571 U.S. 69 (2013), the Supreme Court described Moore v. Sims, involving a “state-initiated proceeding to gain custody of children allegedly abused by their parents,” see id. at 79, citing Moore v. Sims, 442 U.S. at 419-20, as an example of a class of cases to which Younger v. Harris abstention applies. Because the proceedings in Moore v. Sims so closely resemble the proceedings that form the context of Judge Cherry's order, this Court is not the forum where the merits of Judge Cherry's order (assuming that it is not moot) can be reviewed.
If Moore v. Sims did not command dismissal of the complaint, the general method of analysis used in analyzing abstention questions leads to the same result. Dixon v. Kuhn, 257 Fed.Appx. 553, 555 (3d Cir. 2007), is one of many cases that sets out the three criteria for deciding whether Younger v. Harris abstention is proper: (1) there are ongoing state judicial proceedings; (2) the state proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to present federal claims.
Here, plaintiff's pleadings (both the complaint and emergency motion) expressly seek intervention in ongoing (or what were then ongoing) judicial proceedings, thus establishing element one. The court can take judicial notice that adjudicating allegations of child dependency and neglect implicate important state interests. (I doubt that this element is even justiciable, but accepting the assumption made by federal courts that it is, the fact that a state chooses to legislate in a matter establishes that there is an important state interest. And the Supreme Court holds that family relations are a traditional area of state concern. Moore v. Sims, 442 U.S. at 435.) That is element two. Pennsylvania law makes “expediting, wherever possible, the return of the child to the custody of the parent, guardian or other custodian” the express goal of its procedures, see 23 Pa.C.S.§ 6315, and provides for assistance of counsel, including appointed counsel for indigent persons, 42 Pa.C.S.§ 6337, and a prompt hearing (which in this case should have taken place before I was added to the docket), 42 Pa.C.S.§ 6335. No limits on presentation of federal claims or defenses are even hinted at, and as the Court already observed the state appellate courts provide an avenue to appeal any adverse decisions in the Court of Common Pleas. That is element three.
Abstention does not prevent citizens from appearing in federal court to vindicate federal claims arising out of misconduct in state child custody proceedings; the number of such civil rights cases in federal courts attests to that. See e.g. Dennis v. DeJong, 953 F.Supp.2d 568 (E.D.Pa. 2013), affd, 557 Fed.Appx. 112 (3d Cir.2014); Maldonado v. City of Philadelphia, 2020 WL 5801493 (E.D. Pa. Sept. 29, 2020), affd sub nom. Maldonado v. Shapiro, 2022 WL 382033 (3d Cir. Feb. 8, 2022). But a federal suit naming the judge presiding over the state proceedings involving child custody and seeking to reverse his decision is an expedition that litigants, in the words of the Supreme Court, “should never have embarked on.” Moore v. Sims, 442 U.S. 415, 422-23 (1979).
Because no plausible amendment can cure the defect in plaintiffs' complaint, no leave to amend is granted. Pursuant to 28 U.S.C.§ 636(b)(1), plaintiffs can within fourteen days file written objections to this Report and Recommendation. Plaintiffs are advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).