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Burrell v. Ross

United States District Court, Third Circuit

June 18, 2013

DANIELLE ROSS, ET AL., Defendants.


MALACHY E. MANNION, District Judge.

Presently before the court is plaintiff William Burrell Jr.'s complaint seeking various remedies for constitutional violations allegedly committed by Lackawanna County, several of its Court of Common Pleas judges, and Danielle Ross, guardian ad litem in a child custody case involving plaintiff's son and step-daughter. (Doc. No. 1.) Specifically, plaintiff alleges claims under the Fourth Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the Pennsylvania Constitution, and various state laws. (Doc. No. 1, at 23-26.) Because plaintiff is proceeding in forma pauperis, (Doc. No. 3), the court is giving his complaint preliminary consideration pursuant to 28 U.S.C. § 1915(e)(2)(B). After conducting a preliminary review, the court has determined that plaintiff's complaint "fails to state a claim for which relief can be granted." Id . Because it is possible that some of these errors may be corrected, the court will GRANT plaintiff LEAVE TO AMEND his complaint but will DISMISS his claims against Judge Corbett, Judge Harhut, and Judge Munley WITH PREJUDICE.


This case arises out of a series of child custody hearings in which plaintiff sought amendment of an agreement governing his legal rights to custody and visitation of his step-daughter and biological son. (Doc. No. 1.) In 2012, plaintiff agreed to a court order allowing his step-daughter to live with her biological father but giving plaintiff visitation during the summer. (Doc. No. 1, at 5.) Plaintiff claims that in May of 2012, "the biological mother enlisted the help of the biological father of plaintiff's step daughter to help her get custody of plaintiff's biological son and the two began denying plaintiff his rights under the two court orders." (Doc. No. 1, at 5.)

In response, plaintiff filed a motion for contempt and a motion to modify the family court order. (Doc. No. 1, at 5.) Although the precise timeline is unclear, plaintiff explains that defendant Ross was appointed guardian ad litem in his case soon after plaintiff's complaint was filed. (Doc. No. 1, at 6.) The case was scheduled for a hearing on June 1 and June 29, but, because of a miscommunication, plaintiff missed the first hearing date. (Doc. No. 1, at 6.) Defendant claims that the hearing date was subsequently moved six times, despite plaintiff's objections, each time because defendant Ross requested continuances. (Doc. No. 1, at 6, 22.)

On the date of the first hearing, plaintiff claims Judge Corbett decided that the case required a guardian ad litem despite plaintiff's objections to the contrary. (Doc. No. 1, at 7.) Several days later, the parties met for the contempt and modification hearing. (Doc. No. 1, at 7.) Plaintiff claims that Judge Corbett went off the record to "castigate and demoralize" him, (Doc. No. 1, at 7), and she stated that she was inclined to deny plaintiff's motions because he had not served the other parties with a copy of a court order, another order stating that he attended a pretrial conference, and a third order stating that he attended a master's hearing. (Doc. No. 1, at 7.) Judge Corbett also explained that she was inclined to dismiss the case in its entirety because plaintiff had not served the biological father with a copy of the clerk's order.[1] (Doc. No. 1, at 10.) Judge Corbett also allegedly "expressed shock and clear doubts that [plaintiff] would ever get sole custody, repeating that [plaintiff's] chances were extremely unlikely for sole custody." (Doc. No. 1, at 7.)

Plaintiff claims that Judge Corbett's treatment of him at the hearings was motivated by indignation that plaintiff would exercise his First Amendment rights by seeking the dismissal of defendant Ross as guardian ad litem. (Doc. No. 1, at 8.) Plaintiff further claims that Judge Corbett refused to read his brief and accused him of practicing law by drafting a custody agreement with his step-daughter's biological father. (Doc. No. 1, at 10.) Plaintiff claims that she refused to hear the merits of the case and instead told the parties to work out an agreement while the court took a recess. (Doc. No. 1, at 11.) According to plaintiff, the other parties proposed a custody order modification and, despite plaintiff's refusal to accept the new terms, Judge Corbett went on the record and modified the order as proposed by the other parties, despite plaintiff's protests. (Doc. No. 1, at 11.)

Being discontent with Judge Corbett's decision and upset over her remarks at the hearing, plaintiff filed a motion for recusal against the Judge. (Doc. No. 1, at 11.) Plaintiff claims Judge Corbett retaliated against him for filing this motion by conspiring with defendant Ross to delay his next hearing date so that Ross would have time to gather damaging information about him. (Doc. No. 1, at 11-12.) In order to shield Ms. Ross and herself from liability, plaintiff claims that Judge Corbett used her judicial powers to issue formal court orders, thus granting them immunity for their unconstitutional actions. Plaintiff claims that the repeated delays in his case and Judge Corbett's statements in court "demonstrate a clear showing of due process violations, 1st amendment violations, section 1985 violations, and denial of family relations." (Doc. No. 1, at 13.) He also claims that Ross's priority as guardian ad litem was generating revenue, not representing "minor children before the court when necessary in extraordinary circumstances." (Doc. No. 1, at 16.) According to plaintiff, Ross is the only guardian ad litem in the county and is appointed to "virtually all custody proceedings." (Doc. No. 1, at 15.) Therefore, plaintiff claims that the guardian ad litem system in Lackawanna County is overburdened and short-staffed, thereby denying him "due process and familial relations." (Doc. No. 1, at 12.)

Plaintiff further alleges that defendant Ross repeatedly attempted to interview him even though she had already met with him and questioned him extensively on other occasions. (Doc. No. 1, at 14.) On one occasion, Ross "forced [plaintiff] to comply with an in home inspection, " even though she did not conduct a similar inspection of the other parties' houses. (Doc. No. 1, at 15.) Ross also "demanded from plaintiff his email provider and any screen names" and "subjected [plaintiff] to illegal wiretap surveillance of his e-mails and even facebook page." (Doc. No. 1, at 15.) Plaintiff claims he was forced to comply with the inspections because he "was given the impression that it would reflect poorly if plaintiff didn't comply." (Doc. No. 1, at 15.) He claims that Ross's home inspection and surveillance violated his Fourth Amendment rights.


When conducting a preliminary review, the court must liberally construe the complaint, "however inartfully pleaded, " and the allegations are to be held to a "less stringent standard[] than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520 (1972). In doing so, the court is to "apply the applicable law irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer , 293 F.3d 683, 687 (3d Cir. 2002). Nevertheless, "a court need not credit a complaint's bald assertions or legal conclusions." Morse v. Lower Merion Sch. Dist. 132 F.3d 902 , 906 (3d Cir. 1997).

Plaintiff brings his constitutional claims pursuant to 42 U.S.C. §1983. Section 1983 does not provide a substantive right, but instead a remedy for violation of other constitutional rights. Gonzaga Univ. v. Does , 536 U.S. 273 (2002). The statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... 42 U.S.C. §1983.

To establish a claim under §1983, a plaintiff must prove that the defendants deprived him of a constitutional right while acting under the color of state law. Kneipp ...

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