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Marc Antwain X. Rivers Muhammad, Sr v. Vincent Cappellini

July 25, 2011

MARC ANTWAIN X. RIVERS MUHAMMAD, SR., PLAINTIFF,
v.
VINCENT CAPPELLINI, LUZERNE COUNTY CHILDREN & YOUTH SERVICES, LUZERNE COUNTY COURT OF COMMON PLEAS ORPHANS COURT, THE SUPERIOR COURT OF PENNSYLVANIA, THE SUPREME COURT OF PENNSYLVANIA AND JOHN BELLINO, DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO) (MAGISTRATE JUDGE SMYSER)

MEMORANDUM

Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") of December 8, 2010 (Doc. 6) and Plaintiff's Objections (Doc. 7). Magistrate Judge Smyser recommended that Plaintiff's Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). Because some of Plaintiff's claims are barred on jurisdictional and immunity issues, but others could be amended so that they state a claim upon which relief can be granted, Magistrate Judge Smyser's R & R to dismiss the complaint will be adopted in part and rejected in part.

I. Background

All facts are stated in the light most favorable to Plaintiff.

In May of 2002, while Marc Antwain X. Rivers Muhammad, Sr., was incarcerated, Luzerne County Children and Youth Services ("LCCYS") took custody of his son away from the child's biological mother. LCCYS also ordered that Muhammad have no contact with his son. Muhammad eventually sought contact with his son and went through a process of completing Drug and Alcohol Education and Violence Prevention training, as recommended by LCCYS.

In March of 2006, LCCYS filed a petition to terminate the parental rights of Muhammad and the child's biological mother. Defendant Vincent Cappellini was appointed as counsel to represent Muhammad during the termination of parental rights proceedings. Defendant John Bellino was appointed as the child's guardian ad litem. On June 21, 2007, Judge Conahan terminated the parental rights of Muhammad and the mother. The child was subsequently placed for adoption and has since been adopted.

Muhammad unsuccessfully appealed his parental rights to the Pennsylvania Superior Court and then to the Pennsylvania Supreme Court. On appeal, Muhammad claimed that Cappellini provided ineffective assistance of counsel because he failed to present evidence to contradict the testimony of a psychologist, a psychiatrist, and the LCCYS case workers during the termination proceedings. Neither the Pennsylvania Superior Court nor the Pennsylvania Supreme Court addressed Muhammad's ineffective assistance of counsel claims.

Muhammad filed a complaint with the Middle District of Pennsylvania on November 17, 2010. Muhammad asserts claims under 42 U.S.C. §§ 1983, 1985(2)-(3), the Sixth Amendment, and the Fourteenth Amendment Due Process and Equal Protection Clauses of the U.S. Constitution. As relief, Muhammad is seeking a judgment declaring that Cappellini provided ineffective assistance of counsel during the state court parental termination proceedings. Muhammad is also seeking an order vacating the termination of his parental rights, vacating the adoption of his son, and granting Muhammad physical and legal custody of the boy. Finally, Muhammad seeks nominal, compensatory, and punitive damages.

Magistrate Judge Smyser reviewed the claim pursuant to 28 U.S.C. § 1915(e)(2) which provides that for proceedings in forma pauperis:

[T]he court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Magistrate Judge Smyser filed his R & R on December 8, 2010 (Doc. 6) and Muhammad responded with objections on December 21, 2010 (Doc. 7.)

II. Standards of Review

A. Objections to the Magistrate Judge's Report

Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the ...


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