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Tauro v. Baer

November 16, 2009

JOHN J. TAURO, PLAINTIFF,
v.
MAX BAER, KATHLEEN R. MULLIGAN JOAN ORIE-MELVIN, YET UNNAMED EMPLOYEES OF THE DOMESTIC RELATIONS SECTION OF FAMILY DIVISION, INDIVIDUALLY DEFENDANTS



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

I. Introduction

Pending before the court is the motion to dismiss (the "Motion") (Docket No. 9) filed on March 3, 2009, by judicial defendants Max Baer ("Justice Baer"), Kathleen R. Mulligan ("Judge Mulligan"), and Joan Orie-Melvin ("Judge Orie-Melvin") (collectively, "defendants"). The Motion seeks to dismiss the complaint (Docket No. 3) filed, pro se, by John T. Tauro ("Tauro" or "plaintiff") on December 16, 2008. Defendants executed and returned waivers of service. (Docket Nos. 5-7.) On February 17, 2009, defendants' answers were due. (Id.) On March 2, 2009, plaintiff filed a request for entry of default and default judgment against defendants. ("Pl.'s Default J. Req.") (Docket No. 8.) On March 3, 2009, defendants filed the Motion together with a brief in support. (Docket No. 10.) On March 6, 2009, in light of defendants' filing the Motion, the court denied as moot plaintiff's request for entry of default and default judgment. On March 17, 2009, plaintiff filed a response to defendants' Motion. (Pl.'s Resp.") (Docket No. 11.) On November 3, 2009, this court issued plaintiff an order to show cause why his complaint should not be dismissed for lack of subject-matter jurisdiction pursuant to the Rooker-Feldman doctrine. (Docket No. 17). On November 8, 2009, plaintiff filed his response to the court's order. (Docket No. 18). Because this court lacks subject-matter jurisdiction, the court will dismiss plaintiff's claims with prejudice.

II. Background

Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 alleging that defendants violated his rights under the Fifth and Fourteenth Amendments to the Constitution of the United States, continually from 1993 until March 2007. (Compl. ¶¶ 1-2.) Justice Baer served as a judge of the Allegheny County Court of Common Pleas from 1989 until 2003 when he became a Justice of the Supreme Court of Pennsylvania.*fn1 Since 1993, Judge Mulligan has served as a judge of the Allegheny County Court of Common Pleas and served as Administrative Judge of the family division from April 1999 through April 2, 2002.*fn2 Judge Orie-Melvin*fn3 was appointed to the Allegheny County Court of Common Pleas in 1990. She served in the civil, criminal and family divisions until November 1997, when she was elected to the Pennsylvania Superior Court. In November 2007, Judge Orie-Melvin was retained for another ten-year term on the bench of the Superior Court of Pennsylvania.

Allegations in the complaint

Plaintiff alleges that Justice Baer, in his capacity as a judge of the Allegheny County Court of Common Pleas, appointed the Allegheny County Solicitor as Title IV-D attorney, in violation of Pennsylvania law prohibiting dual representation and in violation of due process. (Id. ¶ 7.) Plaintiff asserts that because Justice Baer acted in an administrative capacity, as opposed to an official judicial capacity when making the appointment, judicial immunity does not attach. (Id.) Plaintiff contends that Justice Baer had no power to make the appointment reconsidering and overruling a lawful order that had previously appointed plaintiff as the primary physical custodian of plaintiff's minor child. (Id. ¶ 8.)

Plaintiff concludes that Justice Baer's resulting order is a nullity, that Judge Orie-Melvin unlawfully promulgated an administrative action when she affirmed Justice Baer's nullity and that Judge Mulligan acted in an unlawful administrative promulgation when she reappointed the Allegheny County solicitor as Title IV-D attorney. (Id. ¶¶ 8, 12-13.) Plaintiff further alleges that Justice Baer, in his capacity as a judge of the Allegheny County Court of Common Pleas, issued criminal warrants and held criminal trials in family court, with knowledge that he had no power to do so. (Id. ¶ 9.) Plaintiff was incarcerated six times during the period in issue - in theory - for being in contempt of court orders. (Id. ¶ 17.) Plaintiff contends that defendants have used arrest and incarceration to collect judgments without the power of law to do so, thereby creating a debtors' prison, in violation of the Constitutions of the United States and the Commonwealth of Pennsylvania. (Id. ¶¶ 23-27.)

Allegation in the Response to Rule to Show Cause

This court issued a rule to show cause why the complaint should not be dismissed for lack of subject-matter jurisdiction under the Rooker-Feldman doctrine. Among other things, this court noted plaintiff was seeking to nullify state court judgments against him.

Plaintiff did not set forth factual allegations in his response to the rule to show cause. He merely repeats his general conclusory statements that defendants acted in an administrative capacity. He, however, acknowledged that there was " a court judgment using the non existent rule..." (Pl.'s Resp. To Rule to Show Cause ¶ 8, Docket No. 18.) While he argues the court judgment " is not" the cause of action for this case," (Id.) the judgments entered by the state courts, which predate the filing of the complaint and which are referred to in the complaint, would, in effect, have to be nullified for relief to be granted.

Defendants' Motion

Defendants make three arguments. First, that the doctrine of judicial immunity is an absolute bar to any claims for damages against them. (Defs.' Br. 1-3). Second, that plaintiff's claims are barred by the applicable statute of limitations. (Id. at 3-4). Third, that judicial immunity is applicable with respect to injunctive relief and attorney's fees by the clear terms of ยง 1983, as amended by the Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, 110 Stat. 3847 (1996). Because this court lacks ...


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