II. MERITS OF POWELL'S COMPLAINT
The next question is whether the allegations of Powell's complaint fall into one of the categories which would require dismissal, i.e. frivolous or malicious, failing to state a claim upon which relief can be granted, or seeking monetary relief from a defendant with immunity. Since no money damages are sought, see complaint at 6-7, ad damnum clause, the latter category clearly is inapplicable.
With respect to the standard for finding the complaint frivolous or malicious, Congress did not change the language of the statute in this regard. We therefore continue to apply the same standard which applied before the PLRA was enacted.
Courts were authorized under former § 1915(d) to dismiss a claim filed in forma pauperis "if satisfied that the action is frivolous or malicious." Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989). Dismissal on that ground could be made sua sponte prior to the issuance of process, to spare prospective defendants the inconvenience and expense of responding to frivolous or malicious allegations. A complaint is frivolous if it "lacks an arguable basis either in law or fact." Id. at 325. In making this determination, the court is not bound to the facts alleged in the complaint, but may look beyond the pleadings to other judicially noticeable, as well as "fanciful," "fantastic," or "delusional" facts. Denton v. Hernandez, 504 U.S. 25, 32-33, 118 L. Ed. 2d 340, 112 S. Ct. 1728 (1992).
The reviewing court also must dismiss the complaint pursuant to § 1915(e)(2)(B)(ii) if the complaint fails to state a claim upon which relief can be granted, the language used in Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). The complaint must be construed in favor of the plaintiff with every doubt resolved in the plaintiff's favor. In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D. Pa. 1981). That is, the court must accept as true all factual allegations set forth in the complaint as well as all reasonable inferences that can be drawn from them. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court looks only to the facts alleged in the complaint and any attachments, without reference to any other parts of the record. Jordan at 1261. "[A] case should not be dismissed unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id. (citing, inter alia, Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)). Whether a plaintiff will ultimately prevail is not a consideration for review of a motion under Rule 12(b)(6). Nami at 65. Under the new version of § 1915, the complaint may be dismissed absent a motion under Rule 12(b)(6), since defendants will not have been served.
According to the complaint, Powell is the natural father of Aaron Blair Powell, born April 25, 1988 (and therefore a minor). Aaron resides with his grandmother, defendant Kay F. Hoover
; the complaint states that Hoover is Aaron's "parental" grandmother, which may mean "paternal," making Hoover Powell's mother. Defendant the Honorable Edgar B. Bayley is a judge of the Court of Common Pleas of Cumberland County, presiding over a custody dispute concerning Aaron docketed to No. 95-6570. The action was initiated by Hoover in November, 1995.
An earlier ruling by Judge Bayley was reversed and remanded by the Superior Court, although Powell does not indicate what the ruling was, nor is the opinion published. Hoover v. Powell, 454 Pa. Super. 712, 685 A.2d 1049 (Pa. Super. 1996)(table).
Following the death of Elizabeth Powell, Aaron lived with Hoover against Powell's wishes for about a month before the custody matter was initiated. Judge Bayley has refused to acknowledge or address a claim by Powell that the matter violates Powell's "fundamentally [sic] liberty interests in plaintiff's family life as protected by the Fourteenth Amendment..." Complaint at 2.
The remainder of the complaint consists of legal arguments as to why Powell should be granted custody of Aaron under Pennsylvania law, using some terminology implicating federal constitutional rights.
Powell is correct in his assessment that an individual has a protected liberty interest in certain matters of family life. Jackson v. Garland, 424 Pa. Super. 378, 622 A.2d 969, 971 (Pa. Super. 1993)(citing Santosky v. Kramer, 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Weber v. Weber, 362 Pa. Super. 262, 524 A.2d 498 (Pa. Super. 1987), allocatur dismissed, 538 A.2d 494 (Pa. 1988)(per curiam)). However, a liberty interest is not absolute and may be outweighed by a substantial interest on the part of the state. In Moore v. Sims, 442 U.S. 415, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979), the Supreme Court held that the exercise of federal jurisdiction over a child custody action seeking injunctive relief was improper, and the district court should have abstained under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).
Abstention under Younger, which originally was applicable to pending state criminal proceedings, has been extended to pending state civil proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975). There are three requirements for Younger abstention to apply: (1) pending or on-going state proceedings which are judicial in nature; (2) the state proceedings must implicate an important state interest; and (3) the state proceedings must afford an adequate opportunity to raise any constitutional issues. O'Neill v. City of Philadelphia, 32 F.3d 785, 789 (3d Cir. 1994)(citing Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982); Olde Discount Corp. v. Tupman, 1 F.3d 202, 211 (3d Cir. 1993), cert. denied, 510 U.S. 1065 (1994)), cert. denied, 131 L. Ed. 2d 213 (1995). Once these requirements are met, the federal court must abstain unless there is a showing of bad faith, harassment, or other extraordinary circumstance. O'Neill at 789 n. 11 (citing Middlesex at 435).
In this instance, there are on-going proceedings in the Court of Common Pleas, so that the first prong is easily met. As noted, the Supreme Court held in Moore that custody proceedings implicate an important state interest. See also O'Neill at 792 (citing Moore for the same proposition). There is no reason that Powell cannot raise any constitutional issue in the state courts, as the Jackson case indicates that such issues will be considered in those courts.
Of course, the issues raised by Powell in the complaint all relate to state law, i.e. whether Hoover has standing to proceed in the custody matter, and whether Judge Bayley therefore should be hearing the case. There is no reason such matters may not be taken up in the Court of Common Pleas or the state appellate courts. All of the requirements for Younger abstention have been met, and none of the exceptions apply.
All of the authorities recited above indicate clearly that Powell is not entitled to relief in this court. The case will be dismissed as frivolous and for failing to state a claim upon which relief can be granted under § 1915(e)(2).
For the foregoing reasons, this court will abstain from exercising jurisdiction over this matter.
The only remaining issue would be whether to dismiss the action or to stay these proceedings pending the outcome of the state proceedings. In Moore, the Supreme Court directed the dismissal of the federal case based on Younger abstention. This court will do the same.
The court having determined that the complaint should be dismissed, the motion to proceed in forma pauperis is rendered moot and will be denied.
An order consistent with this memorandum will issue.
James F. McClure, Jr.
United States District Judge
March 7, 1997
For the reasons stated in the accompanying memorandum, IT IS ORDERED THAT:
1. Plaintiff David B. Powell's complaint (record document no. 1) is dismissed as frivolous and for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e).
2. Powell's motion (record document no. 2) to proceed in forma pauperis under § 1915 is denied as moot.
3. The clerk is directed to enter Powell's correspondence dated February 20, 1997, on the docket.
4. We certify that any appeal taken from this order is frivolous, without probable cause, and not taken in good faith.
5. The clerk is directed to close the file.
James F. McClure, Jr.
United States District Judge