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Feingold v. Office of Disciplinary Counsel

December 14, 2009

ALLEN L. FEINGOLD
v.
OFFICE OF DISCIPLINARY COUNSEL, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action was brought by a former attorney who was disbarred in 2008 and was recently subject to two orders issued by the Philadelphia County Court of Common Pleas that further enjoined his ability to practice law. The first order barred the plaintiff from his office and prohibited him from filing any documents with the state court without approval from the President Judge. The second order appointed a conservator over the plaintiff's office and the case files stored there and allowed the plaintiff limited supervised access to his office when accompanied by the conservator or a member of the Office of Disciplinary Counsel. The plaintiff asserts that these orders violated his rights under the First, Fourth and Fourteenth Amendments and 42 U.S.C. §§ 1983 and 1985.

The defendants have moved to dismiss the plaintiff's claims on various grounds. The Court grants the defendants' motion on the grounds that it either lacks subject matter jurisdiction under the Rooker-Feldman doctrine or must decline to exercise jurisdiction under the Younger abstention doctrine. The Court's reasoning is dependant on whether a petition for writ of mandamus currently pending before the Commonwealth Court of Pennsylvania constitutes an on-going state proceeding. If the petition for writ of mandamus is not an on-going state proceeding, the Court lacks subject matter jurisdiction under the Rooker-Feldman doctrine. If the petition for writ of mandamus is an on-going state court proceeding, the Court must abstain under the doctrine of Younger abstention.

I. Factual Background

The plaintiff was suspended from the practice of law in Pennsylvania for three years on March 3, 2006. A consecutive two-year suspension was added on August 22, 2006. He was disbarred from the practice of law on August 22, 2008. See Compl., Exhibit A at 1.

Alleging that the plaintiff continued to practice law, the defendant Office of Disciplinary Counsel filed a petition with the defendant Philadelphia County Court of Common Pleas on August 1, 2009. That petition asked the state court to take further steps to enjoin the plaintiff from his alleged practice of law. See Compl. at paragraph 14.

President Judge Dembe, also a defendant, presided over that case. The Court of Common Pleas held hearings on August 11, 24 and 27, 2009. See Compl., Exhibit A at 2. The court entered an order on September 3, 2009, that, inter alia, enjoined the plaintiff from engaging in the unlawful practice of law by a formerly admitted attorney. The order prohibited the plaintiff from entering his office or from removing items from his office. It also prohibited the plaintiff from filing any documents with the Philadelphia Prothonotary or the Clerk of Quarter Sessions without receiving the prior approval of the President Judge. See Compl., Exhibit A at 13-14.

In an order dated September 10, 2009, the court appointed Judge Nigro, also a defendant in this case, to act as conservator and to review the files stored in the plaintiff's office. This order also allowed the plaintiff, when accompanied by Judge Nigro or a member of the Office of Disciplinary Counsel, to access his office for the sole purpose of retrieving copies of his utility bills in order to pay them. See Compl., Exhibit B.

The plaintiff avers that he tried to appeal the state court's injunction order on September 25, 2009, but that defendant Joseph Evers, the Philadelphia Prothonotary, and President Judge Dembe refused to accept the appeal. He also claims that President Judge Dembe would not contact or meet with him to explain the denial of his appeal. See Compl. at paragraph 25.

The plaintiff filed his complaint with this Court on September 29, 2009. The plaintiff asserts that the state court's order restricting him from his office violates his Fourth Amendment right against unreasonable seizures. He argues that his Fourth Amendment protection against unreasonable searches was violated by the appointment of a conservator over his office and papers. He also maintains that the order's requirement of approval for the filing of any document with the Prothonotary of the Philadelphia Court of Common Pleas violates his First Amendment rights and his equal protection rights under the Fourteenth Amendment. See Compl. at paragraphs 26-30. Finally, he alleges violations of 42 U.S.C. §§ 1983 and 1985 against all of the defendants and seeks counsel and expert fees under 42 U.S.C. § 1988. See id. at paragraph 31-32.

The plaintiff filed a motion with the Supreme Court of Pennsylvania to allow the filing of a petition for review nunc pro tunc on September 30, 2009. The petition was denied by the Pennsylvania Supreme Court by an order dated November 10, 2009.

The plaintiff also filed a petition for writ of mandamus on October 1, 2009. That petition seeks to have the Commonwealth Court require defendant Evers to accept the plaintiff's filings. See Pl.'s Ans. at 4. As of the date of this memorandum, the docket of the Commonwealth Court reflects that the plaintiff's petition is still pending. See Commonwealth Court of Pennsylvania, Docket No. 512 MD 2009.

II. Analysis

The defendants argue that the Court either lacks jurisdiction over this case under the Rooker-Feldman doctrine or must abstain from exercising jurisdiction under the Younger abstention doctrine, depending upon whether the plaintiff's petition for ...


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