The opinion of the court was delivered by: (judge Caputo)
(MAGISTRATE JUDGE SMYSER)
Presently before the Court is Magistrate Judge Smyser's Report and Recommendation ("R & R") and Plaintiff's Objections. Magistrate Judge Smyser recommended that Plaintiff's Complaint be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). Because Muhammad fails to state a claim upon which relief can be granted on all but one of his claims, Magistrate Judge Smyser's R & R to dismiss the complaint will be adopted in part and denied in part.
The facts as stated in Muhammad's complaint are as follows: Muhammad is the biological father of Naseem Johnson. On August 17, 2000, Judge Olszewski granted custody of Naseem to Muhammad and his then wife, Defendant Cleatrice Dempsey. Dempsey is not Naseem's biological mother.
On March 2, 2001, after numerous physical altercations with Dempsey, Muhammad filed for divorce from her. After being served with the divorce complaint, Dempsey did not return to her residence with Muhammad. Rather, she called Defendant Yorrii (Saska) Harding, a case worker with Luzerne County Children and Youth Services. Harding then assisted Dempsey in kidnapping Naseem by sending a cab to Dempsey's house and advising her on "what to do and how to do it." Muhammad notified the police that Dempsey had kidnapped his son, but the police advised him they could not act because of the court order granting custody to Dempsey.
Dempsey was sentenced to nine-to-twelve months incarceration for simple assault (not involving Dempsey) on August 21, 2001. During Muhammad's sentence, Judge Ciavarrella granted Muhammad's divorce from Dempsey. From prison, Muhammad filed a petition for visitation with Naseem. On February 1, 2002, the court ordered that Dempsey would have physical and legal custody of Naseem, denied Muhammad's request for supervised visitation during his incarceration, and ordered that Muhammad complete anger management and other treatment.
Muhammad was released from prison in February of 2003. He then sought to have criminal charges filed against Dempsey for the kidnapping of Naseem. After the police and FBI declined to file charges, Muhammad filed a private criminal complaint against Dempsey. The District Attorney, however, decided not to prosecute that charge. Muhammad filed a petition for review of the District Attorney's decision; Judge Mundy denied the petition. Muhammad returned to prison in August of 2003, after being sentenced to ten-to-fifty months for terroristic threats and other charges. The charges stemmed out of Muhammad threatening to kill Dempsey for kidnapping his son. While in prison, he filed complaints and appeals unsuccessfully challenging the custody orders of August 17, 2000 and February 1, 2002. Muhammad was released from prison again in April of 2008.
On September 24, 2008, Muhammad filed a petition for modification of custody/visitation. A hearing was held on May 11, 2009. At the hearing, Harding falsely testified that in September of 2001, Muhammad called 911 and told the police that if they did not come and take Naseem, Muhammad would kill the boy. Muhammad explains that although he did call the police in 2001 and ask them to take Naseem because he did not yet know that the boy was his biological son, he did not threaten Naseem's life. Defendant Asyia Rigsbye, a friend of Dempsey, also perjured herself at the hearing by stating that Muhammad told her, "You have [sic] better not show your face in court for Cleatrice, mark my words." Rigsbye truthfully admitted at the hearing that she did not know Muhammad well and had never seen Muhammad and Naseem together.
On June 9, 2009, Judge Brown awarded legal and physical custody of Naseem to Dempsey and granted Muhammad supervised visitation. Muhammad appealed the order; the Superior Court of Pennsylvania affirmed the order on September 10, 2010. On December 1, 2010, the Pennsylvania Supreme Court denied Muhammad's petition for allowance of appeal.
Muhammad filed a complaint with the Middle District of Pennsylvania on February 23, 2010. Muhammad asserts claims under 42 U.S.C. §§ 1983, 1985(2)-(3), and 1986. He alleges that the Defendants engaged in a conspiracy to deprive him of his parental rights, to deprive him of due process, and to deprive him of equal protection of the law. Further, he argues that the Pennsylvania courts had the power to prevent the deprivations but refused to do so. As relief, Muhammad seeks custody of his son and the prosecution of Dempsey for kidnapping. He further 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 March 8, 2011 and Muhammad responded with objections on March 21, 2011.
A. Objections to the Magistrate ...