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Mikhail v. Kahn

United States District Court, E.D. Pennsylvania

January 13, 2014

NABIL MIKHAIL, Plaintiff,
v.
JOLIE KAHN et al., Defendants

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NABIL MIKHAIL, Plaintiff, Pro se, BRYN MAWR, PA.

For JOLIE KAHN, ALAN FELLHEIMER, Defendants: ALAN S. FELLHEIMER, LEAD ATTORNEY, JOHN J. JACKO, III, FELLHEIMER & EICHEN LLP, PHILADELPHIA, PA.

For DOROTHY PHILLIPS, DECEASED, Defendant: HENRY F. CANELO, LEAD ATTORNEY, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, PHILADELPHIA, PA.

For HERBERT LUSTIG, ANTHONY PISA, Defendants: MARY KATHLEEN MCGRATH, LEAD ATTORNEY, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PHILADELPHIA, PA.

For MADDI JANE SOBEL, Defendant: MICHAEL P. O'CONNOR, O'CONNOR KIMBALL LLP, PHILADELPHIA, PA.

For PRESTON FINDLAY, Defendant: JACQUELINE C. GORBEY, LEAD ATTORNEY, MORGAN LEWIS & BOCKIUS LLP, PHILADELPHIA, PA.

SHEILA DUGAN, Defendant, Pro se, POTTSTOWN, PA.

For HON. ARTHUR TILSON, J., HON. EMANUEL BERTIN, J., HON. RHONDA LEE DANIELE, J., HON. CAROLYN T. CARLUCCIO, J., HON. RICHARD P. HAAZ, J., HON GARRETT D. PAGE, J., HON. MARY JANE BOWES, J., HON. CHRISTINE L. DONOHUE, J., HON. JUDITH FERENCE OLSON, J., Defendants: MICHAEL DALEY, LEAD ATTORNEY, SUPREME COURT OF PA, ADMINISTRATIVE OFFICE OF PA COURTS, PHILADELPHIA, PA.

OPINION

GENE E.K. PRATTER, United States District Judge.

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" On December 1st, 2009, Ms. Kahn initiated what will be a very contentious divorce and custody" proceedings in the Montgomery County Court of Common Pleas. Compl. ¶ ¶ 2, 14. This prescient understatement launches a litany of allegations in a 47-page, 279-paragraph Complaint from pro se Plaintiff Nabil Mikhail, who claims that his soon-to-be-ex-wife, Jolie Kahn, along with her former lawyer, Dorothy Phillips, and her current lawyer, Alan Fellheimer, conspired with court-appointed psychologists and a psychiatrist, as well as a nonprofit attorney, two child visitation supervisors, and nine Pennsylvania judges, to deprive him of his federal constitutional rights through state court

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protection from abuse proceedings as well as custody and divorce proceedings. Mr. Mikhail purports to bring his federal claims under 18 U.S.C. § 242 and 42 U.S.C. § 1983 (Counts I and II). He also raises state law claims in Counts III through VI. All the Defendants have moved to dismiss (Docket Nos. 9, 18, 21, 22, 23, 33, 38, 39).[1]

For the reasons explained below--the Rooker--Feldman [2] doctrine's jurisdictional bar, Younger [3] abstention, the United States Attorney's sole discretion to prosecute a federal crime, § 1983's statute of limitations, the private Defendants' non-state actor status under § 1983, failure to state claims upon which relief may be granted, and judicial and quasi-judicial immunity--the Court dismisses Mr. Mikhail's Complaint in its entirety.[4]

I. FACTUAL AND PROCEDURAL BACKGROUND[5]

In December 2009, Ms. Kahn filed for divorce from Mr. Mikhail and also brought a protection from abuse (" PFA" ) petition against him. As the result of a PFA order entered after an ex parte hearing, Mr. Mikhail " was evicted from the marital home at 2 a.m. on December 2, 2009" by the police and was " banned from seeing his daughter for 2 weeks." Compl. ¶ 16. Although another judge " dismissed the Child from the PFA" a week later, that second judge appointed Defendant Dr. Herbert Lustig " to perform a custody evaluation," and this first PFA otherwise remained in effect until May 2011. Compl. ¶ 17. Ms. Kahn also obtained sole custody of her and Mr. Mikhail's minor child, allegedly on an ex parte basis, although Mr. Mikhail's allegations do not make clear whether this custody award was related to the PFA proceedings or to the separate, ongoing custody proceedings.

Mr. Mikhail claims that in January 2010 Dr. Lustig conspired with Ms. Kahn and Ms. Kahn's then-attorney, Dorothy Phillips (now deceased), to falsely report that Mr.

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Mikhail had sexually abused their child. See Compl. ¶ 21. Specifically, Mr. Mikhail claims that Ms. Kahn " bribed Dr. Lustig and conspired with him to incriminate [Mr. Mikhail] as [Mr. Mikhail] paid him $6,500 for the evaluation between December 2009 and April 2010 while Mother [Ms. Kahn] paid him $12,500 for services rendered at the same time." Compl. at 10. Mr. Mikhail claims that Dr. Lustig refused to prepare testimony in favor of Ms. Kahn unless she paid him--after which point he prepared a favorable report for her.

While the authorities investigated Ms. Kahn's reports of abuse, she filed a second PFA petition, which, again, the presiding judge temporarily granted ex parte and, Mr. Mikhail contends, erroneously. Compl. ¶ ¶ 22-23. Then, notwithstanding the authorities' subsequent dismissal of the child abuse allegations as unfounded, Mr. Mikhail alleges, another judge " ordered [him] to see Child only SUPERVISED, and for LIMITED amount of time," Compl. ¶ 25, and to use the corrupt " Kids First" service for supervision. That same judge also entered an order granting the second PFA petition after a hearing on April 9, 2010. This PFA order, which expired in April 2011, was subsequently extended for one year. When Mr. Mikhail sought an appeal (his Complaint is not clear as to which orders, precisely, he appealed), the Pennsylvania Superior Court affirmed " through numerous non-precedential decisions containing falsehoods and in violation of Plaintiff [sic] constitutional rights." Compl. ¶ 29.

Mr. Mikhail also alleges that Ms. Kahn used Dr. Lustig's services for their child without " the approval of [Mr. Mikhail] or the Child Advocate," Compl. at 10--that is, it seems, beyond Dr. Lustig's permitted role as court-appointed custody evaluator. For reasons not entirely clear from the Complaint, in December 2010, the trial court dismissed Dr. Lustig from the domestic relations case and ordered his files and records released. On January 7, 2011, after reviewing these newly available documents, Mr. Mikhail filed a petition for contempt in which he attempted to show " that the PFA was secured through Fraud upon the Court." See Compl. ¶ ¶ 30-31.

Mr. Mikhail complains of a number of harms allegedly emanating from the state court proceedings and rulings, including, for example, a judge's failure to schedule a hearing for " over 22 months," Compl. ¶ 33; the court's dismissal of his petition to expunge the PFA orders entered against him, see Compl. ¶ ¶ 34, 43; the court's entry of an order, after a hearing at which no evidence was presented, that Mr. Mikhail could not take the child out of Pennsylvania, Compl. ¶ 36; the court's hearing of Ms. Kahn's petition for custody before Mr. Mikhail's petition for custody, Compl. ¶ 42; the court's dismissal of Mr. Mikhail's various subpoenas, see Compl. ¶ 44(1); and the court's failure or refusal to ask the child advocate/guardian ad litem to be present at a hearing concerning the child, in favor of allowing Ms. Kahn's attorney to represent the child, see Compl. ¶ ¶ 45, 46. Mr. Mikhail also alleges that he was denied alimony pendente lite for over two years and that he alone was required to pay the cost of visitation supervisors and the reunification therapist. Compl. ¶ ¶ 49, 52.

Within this context of assigning error to the defendant judges and their rulings, Mr. Mikhail avers that Maddi-Jane Sobel, the second court-appointed custody evaluator, " insulted [Mr. Mikhail] in his faith and distorted facts and reported false testimonies." Compl. at 19. He also alleges that Dr. Anthony Pisa, the court-appointed reunification therapist, inappropriately conferred with the court in a meeting from which counsel were excluded; that the court impermissibly relied on this ex parte

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meeting instead of considering the evidence before it, Compl. at 20; that during proceedings, Dr. Pisa was " [n]ot being honest" with the court because, for instance, he opined that Ms. Kahn cooperated with the therapy when, Mr. Mikhail asserts, she did not, see Compl. ¶ ¶ 176-179; and that Dr. Pisa conspired with Ms. Kahn inasmuch as he " did not submit a reunification plan as required by [court] order by December 19, 2012," Compl. ¶ 48. Against Preston Findlay, counsel for the nonprofit National Center for Missing and Exploited Children, Mr. Mikhail levels an allegation of conspiracy with Ms. Kahn to " provide an affidavit that match[ed] their goals." Compl. ¶ 37. And Mr. Mikhail further claims, after alleging almost no factual content, that Sheila Dugan and Chip Minto, employees of Kids First, conspired with Ms. Kahn to keep him from his daughter.

Mr. Mikhail attempts to channel these alleged wrongdoings into six counts, which often refer to all of the Defendants collectively. He rarely specifies how any given alleged wrongful activity was unlawful or unconstitutional. See Compl. at 24-32. Counts I and II purport to state violations of 18 U.S.C. § 242 and 42 U.S.C. § 1983, and both, among other things, claim that the judges discriminated against Mr. Mikhail " because of race, gender, [and] religion." Compl. ¶ ¶ 218, 239. Count I does not indicate the conduct complained of, but it seems to refer to the custody and divorce proceedings because Count II, in contrast, refers explicitly to the PFA orders. In Count II, Mr. Mikhail claims that the entry of the PFA orders, especially those entered ex parte, violated his constitutional rights by, inter alia, leading to his eviction from the marital home in the middle of the night and because of the accusations of child abuse. He further asserts that the PFA orders " were secured through fraud upon the court" and were themselves erroneous and unconstitutional. Compl. ¶ 235. Finally, Counts III through VI consist of state law claims for, respectively, violation of Pennsylvania's Code of Judicial Conduct and its Rules of Professional Conduct; civil conspiracy; concerted tortious action; and malicious prosecution.

For the Defendants' alleged wrongdoing, Mr. Mikhail seeks injunctive relief, including " [r]elief of all orders made in violation of the Law," a judicial command that the Defendants cease violating his constitutional rights, a declaration (but, for reasons explained below, not truly declaratory relief) that the PFA orders are unconstitutional, as well as monetary damages, costs, and attorneys' fees. Compl. at 46.

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8 of the Federal Rules of Civil Procedure requires only " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), " in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,'" Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted) (alteration in original), the plaintiff must provide " more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," id.

To survive a motion to dismiss, the plaintiff must plead " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Specifically, " [f]actual allegations must be enough to raise a right to relief above the speculative level."

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Twombly, 550 U.S. at 555. The question is not whether the claimant " will ultimately prevail . . . but whether his complaint [is] sufficient to cross the federal court's threshold." Skinner v. Switzer, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011) (citation and internal quotation marks omitted). Thus, assessment of the sufficiency of a complaint is " a context-dependent exercise" because " [s]ome claims require more factual explication than others to state a plausible claim for relief." W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010).

In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court " must consider only those facts alleged in the complaint and accept all of the allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also Twombly, 550 U.S. at 555 (stating that courts must " assum[e] that all the allegations in the complaint are true (even if doubtful in fact)" ); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (" [A] court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." ). The Court must also accept as true all reasonable inferences emanating from the allegations, and view those facts and inferences in the light most favorable to the nonmoving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); see also Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010). But that admonition does not demand that the Court ignore or discount reality. The Court " need not accept as true unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal quotation marks omitted), and " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Ashcroft, 556 U.S. at 678; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (explaining that a court need not accept a plaintiff's " bald assertions" or " legal conclusions" (citations omitted)). Finally, " if a [claim] is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).

For practical reasons, complaints filed by pro se litigants like Mr. Mikhail are held to somewhat " less stringent standards" than those drafted by lawyers. See Henry v. Moore, 500 F.Appx. 115, 117 (3d Cir. 2012); see also Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244, 58 V.I. 691 (3d Cir. 2013) (" [W]e tend to be flexible when applying procedural rules to pro se litigants, especially when interpreting their pleadings." ). Even so, the Court must still fulfill its gatekeeper role. See Mala, 704 F.3d at 245. Pro se litigants cannot expect wholesale indulgence of whatever they claim and however they claim it.

III. DISCUSSION

Mr. Mikhail's Complaint and the Defendants' Motions to Dismiss raise many issues. Many of the defenses overlap, and indeed, although the Complaint must ultimately be dismissed in its entirety, no single doctrine or legal principle is dispositive as to the whole pleading. Thus, for instance, although most of Mr. Mikhail's claims against the judges might be dismissed on the basis of judicial immunity

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agalone, their discharge on that basis does not resolve the claims against the other Defendants or, possibly, some of Mr. Mikhail's requests for " declaratory" relief; moreover, jurisdictional issues--the family of legal principles to which Rooker--Feldman belongs, and to which Younger abstention is a close cousin--must come first.[6]

Under the Rooker--Feldman doctrine, the Court is without power to hear Mr. Mikhail's claims based on the state courts' protection from abuse orders, which are now final. Similarly, the Court must abstain pursuant to Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), from considering Mr. Mikhail's alleged custody- and divorce-based claims because those state proceedings are ongoing within the meaning of that doctrine. At the same time, Mr. Mikhail's allegations of conspiracy among or between the defendant judges and court-appointed officials and Ms. Kahn and her attorneys must be considered separately because, if they are credited, they are not barred by Rooker--Feldman (given that the due process injury would not result from the judgments), or by Younger (because such a conspiracy would almost certainly fall into Younger's narrow carve-out for " exceptional circumstances" ).[7]

The claims that elude these jurisdictional watchdogs still must face a second line of rigorous defenses, several of which also would render any amendments to certain claims futile, if it were not so already. See Phillips, 515 F.3d at 236. For example, Mr. Mikhail seeks to bring claims under 18 U.S.C. § 242, a criminal statute, but as a private citizen, he cannot do so. He is also barred from bringing claims under 42 U.S.C. § 1983 against a number of the Defendants by the statute's two-year statute of limitations in Pennsylvania. And against several of the Defendants he has failed to state a claim upon which relief can be granted in any event. For instance, he cannot sue Ms. Kahn and her attorneys under § 1983 because they were not state actors (i.e., they did not act under color of law). And, of course, to the extent that any claims then remain against the judges or the court-appointed Defendants, these individuals have judicial and quasi-judicial immunity, respectively, that protects them from both claims for damages and claims for injunctive relief. The application of all of these doctrines and, to the extent possible, their relationship inter se, are explained in detail below.

Finally, because these doctrines, requirements, and principles eliminate all of Mr. Mikhail's federal claims, the Court will decline to exercise supplemental jurisdiction over the state law claims.

A. The Rooker--Feldman Doctrine

Much of the relief that Mr. Mikhail seeks from the PFA orders entered

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against him must be dismissed for lack of jurisdiction pursuant to the Rooker--Feldman doctrine.[8]

Under Rooker--Feldman, " federal district courts lack jurisdiction over suits that are essentially appeals from state-court judgments." Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010). Named after the two Supreme Court cases that announced it, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), see Skinner v. Switzer, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011), the doctrine instructs " that the Supreme Court of the United States, and not the lower federal courts, has jurisdiction to review a state court decision," Parkview Associates Pshp. v. City of Lebanon, 225 F.3d 321, 324 (3d Cir. 2000). The doctrine is not broad, but, rather, stands for the proposition that there exist " limited circumstances in which [the Supreme] Court's appellate jurisdiction over state-court judgments, 28 U.S.C. § 1257, precludes a United States district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority, e.g., § 1330 (suits against foreign states), § 1331 (federal question), and § 1332 (diversity)." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005).

In 2005, observing that the Rooker--Feldman " doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases," Exxon Mobil, 544 U.S. at 283, the Supreme Court began an effort to narrow the doctrine, first in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d 454, and most recently in Skinner v. Switzer, 131 S.Ct. 1289, 179 L.Ed.2d 233. As the Supreme Court has now explained, " Rooker--Feldman is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers inviting district court review and rejection of the state court's judgments" --i.e., it does not apply to harms somehow related to, but not caused by, state court judgments. Skinner, 131 S.Ct. at 1297 (internal quotation marks and alterations omitted) (quoting Exxon Mobil, 544 U.S. at 284). Indeed, the four requirements for application of the doctrine, as broken down by the Third Circuit Court of Appeals, measure its reduced reach, see Great W. Mining & Mineral Co., 615 F.3d at 166-67, as follows:

(1) the federal plaintiff lost in state court; (2) the plaintiff " complain[s] of injuries caused by [the] state-court judgments" ; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments. Exxon Mobil, 544 U.S. at 284. The second and fourth requirements are the key to determining whether a federal suit presents an independent, non-barred claim.

Great W. Mining & Mineral Co., 615 F.3d at 166 (alterations in original).

The second requirement, in particular, merits brief elaboration here. Unless the injury of which the federal plaintiff complains was caused by a state court judgment itself, the claim is not barred, see id., even if this " independent claim . . . denies a legal conclusion that a state court

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has reached in a case to which he was a party," Exxon Mobil, 544 U.S. at 293 (internal quotation marks and alterations omitted); accord Skinner, 131 S.Ct. at 1297. Thus, for instance, the Supreme Court has instructed, where a plaintiff challenges not " the adverse . . . decisions themselves," but " instead he targets as unconstitutional the [state] statute they authoritatively construed," then Rooker--Feldman does not apply and the federal district court has jurisdiction to consider the " statute or rule governing the [state court] decision," Skinner, 131 S.Ct. at 1298--even if the plaintiff " could have raised his federal claim in the [state] proceeding," id. at 1298 n.11.

To be sure, the correct application of this requirement can be difficult in practice. " The critical task is . . . to identify those federal suits that profess to complain of injury by a third party, but actually complain of injury 'produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.'" Great W. Mining & Mineral Co., 615 F.3d at 167 (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005)). If the defendants, rather than the state court judgments, caused the injuries complained of, Rooker--Feldman does not apply and the district court is not barred from reviewing those injuries. Id. Assessing whether the doctrine applies can be particularly difficult in cases like Mr. Mikhail's, where " a federal plaintiff complains of an injury that is in some fashion related to a state-court proceeding," id. --such as a claim for fraud upon the court or a claimed conspiracy with the defendant judges, neither of which necessarily compels the conclusion that the state court erred in its decisions--because even injuries that " help[] to cause the adverse state judgments" may be " independent" of those judgments, id. at 168.

It is unnecessary to resurvey more extensively the post- Exxon Mobil doctrine's topography here, however, because the Third Circuit's recent case law contains a rather thorough discussion, particularly in Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d at 163-73, that readily can be applied to Mr. Mikhail's Complaint. His Complaint references three sets of state court proceedings: protection from abuse proceedings, custody proceedings, and divorce proceedings. For reasons explained below, while Rooker--Feldman might apply to certain aspects of the protection from abuse proceedings (namely, injuries caused by the PFA orders), it cannot, for reasons explained below, apply to the child custody proceedings or to the divorce proceedings, which also appear to be ongoing.

1. The Protection from Abuse Orders

Mr. Mikhail's Complaint avers that the protection from abuse proceedings have terminated and that he is no longer under any PFA order. Apparently, Ms. Kahn filed a total of five PFA petitions, the third, fourth, and fifth of which were withdrawn, dismissed, and stricken, respectively. Compl. ¶ 278(2)(3)-(5). Accordingly, these petitions serve as bases only for Mr. Mikhail's state law malicious prosecution claim (Count VI). The first two PFA petitions, by contrast, resulted in PFA orders, both temporary and for defined durations. See, e.g., Compl. ¶ ¶ 16, 18, 22, 23, 28, 34, 57, 68, 203, 233. The first PFA expired in May 2011, Compl. ¶ 17, and the second expired in or around April 2012, see Compl. ¶ ¶ 203, 233. The state court refused to expunge the record of them. Compl. ¶ 34. Thus, for immediate purposes, all the PFA orders are final and have expired or otherwise been dismissed, notwithstanding the fact that during their pendency they could have been modified. See 23 Pa. Cons. Stat. Ann. § 6117 (" The

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plaintiff and the defendant may seek modification of an order issued under section 6108 (relating to relief) at any time during the pendency of an order. Except as otherwise indicated in this chapter, modification may be ordered after the filing of a petition for modification, service of the petition and a hearing on the petition." ).

Rooker--Feldman thus applies to Mr. Mikhail's alleged injuries caused by the first and second PFA orders because all of the four prongs of the doctrine are satisfied. See also, e.g., Walker v. Court of Common Pleas, No. 12-2206, 2013 WL 4647485, at *4-5 (M.D. Pa. Aug. 29, 2013) (applying Rooker--Feldman to a case involving protection from abuse orders). First, Mr. Mikhail " lost" in state court because the PFA orders were entered against him. Second, the only injuries that will be barred are those caused by the PFA orders, as discussed further below. Third, the orders became final before Mr. Mikhail filed the present suit. Finally, Mr. Mikhail invites this Court to review and reject the PFA orders.

Because all four elements are present, Rooker--Feldman applies, and it applies, moreover, " even if those challenges allege that the state court's action was unconstitutional." Feldman, 460 U.S. at 486. As the Third Circuit Court of Appeals has explained, " When a federal plaintiff brings a claim, whether or not raised in state court, that asserts injury caused by a state-court judgment and seeks review and reversal of that judgment, the federal claim is 'inextricably intertwined' with the state judgment" and therefore barred from review. Great W. Mining & Mineral Co., 615 F.3d at 170 (emphasis added). " Review of [state court] decisions may be had only in [the Supreme] Court." Feldman, 460 U.S. at 486.

The Second Circuit Court of Appeals has explained this aspect of the doctrine in a passage endorsed in Great Western Mining & Mineral Co, see 615 F.3d at 167, and particularly useful here:

[A] federal plaintiff cannot escape the Rooker--Feldman bar simply by relying on a legal theory not raised in state court. Suppose a state court, based purely on state law, terminates a father's parental rights and orders the state to take custody of his son. If the father sues in federal court for the return of his son on grounds that the state judgment violates his federal substantive due-process rights as a parent, he is complaining of an injury caused by the state judgment and seeking its reversal. This he may not do, regardless of whether he raised any constitutional claims in state court, because only the Supreme Court may hear appeals from state-court judgments.

Hoblock, 422 F.3d at 87.

Mr. Mikhail's claim that the state court denied him due process by making ex parte decisions does not bring review of those decisions within this Court's jurisdiction. On this point, the Supreme Court's explanation in Feldman is instructive:

[I]t is clear that [Respondents'] allegations that the District of Columbia Court of Appeals acted arbitrarily and capriciously in denying their petitions for waiver and that the court acted unreasonably and discriminatorily in denying their petitions in view of its former policy of granting waivers to graduates of unaccredited law schools required the District Court to review a final judicial decision of the highest court of a jurisdiction in a particular case. These allegations are inextricably intertwined with the District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny the respondents' petitions. The

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District Court, therefore, does not have jurisdiction over these elements of the respondents' complaints.

460 U.S. at 486-87 (citation omitted); see also, e.g., Middlebrook at Monmouth v. Liban, 419 F.Appx. 284, 285-86 & n.2 (3d Cir. 2011) (per curiam) (" [Plaintiff] argues that violations of his due process rights stemmed from the state court trial judge's errors and that her errors are substantial enough to merit a different outcome . . . . Although [he] described, among other things, alleged due process violations by the trial judge, they were not independent claims, as he asserts. . . ." ), cert. denied, 132 S.Ct. 247, 181 L.Ed.2d 141 (2011).[9]

Specifically, then, the following of Mr. Mikhail's claims and requests for relief are barred:

o " [B]ecause of this [first] PFA, [Mr. Mikhail] was evicted from the marital home . . . and banned from seeing his daughter for 2 weeks . . . ." Compl. ¶ 16. Although the court later dismissed parts of this PFA relating to child abuse, it was this order, rather than the actions of the Defendants, that harmed Mr. Mikhail.[10]

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o " Judge Haaz dismissed [Mr. Mikhail's] petition to expunge [the] PFAs without justification and without due process, all in violation of [Mr. Mikhail's] constitutional rights." Compl. ¶ 34. This Court lacks jurisdiction to review Mr. Mikhail's claim of injury arising from Judge Haaz's order. Nor may it review Judge Haaz's order in order to " [i]ssue declaratory relief on Expungement of [the] PFAs that were secured through fraud upon the court, and entered in violation of Plaintiff's constitutional rights under the Color of Law." Compl. at 46.
o The court's ex parte entry of " PFA orders that were totally inappropriate and unconstitutional." Compl. ¶ 57. The Rooker--Feldman doctrine bars exactly this type of claim that a state court judgment was erroneous.
o The court's ordering Mr. Mikhail " to continue [s]upervised visitations and subject[ing] him to the same terms of [a] PFA although it was expired, and without a hearing or due process of law." Compl. ¶ 68. Mr. Mikhail's subjection to an extended PFA order is a harm caused by an order that this Court cannot sit to review.
o Mr. Mikhail claims that the Pennsylvania Superior Court's opinions that upheld the PFA rulings of the Court of Common Pleas " contain[ed] numerous falsehoods and [were] in violation of Plaintiff [sic] constitutional rights." Compl. ¶ 29; see also Compl. ¶ ¶ 73-82 (other assignments of error to the Superior Court's decisions). Inasmuch as Mr. Mikhail is asking this court to review " the erroneous decision of the Superior Court," Compl. ¶ 29, Rooker--Feldman

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makes clear that this Court has no jurisdiction to do so.
o Finally, Mr. Mikhail prays for " [r]elief of all orders made in violation of the Law . . . . Compl. at 46. Rooker--Feldman bars this Court from reviewing Mr. Mikhail's blanket claim to relief from the state court PFA orders.

Other courts have reached similar conclusions.[11]

In addition, the Court cannot entertain Mr. Mikhail's plea to " [i]ssue declaratory relief on the Constitutionality of the PFAs in this case." Compl. at 46. To do so " would require [this Court] to conclude that the state court made an incorrect legal and/or factual determination and would effectively reverse the state decision or void its ruling. This is exactly the type of determination that the Rooker--Feldman doctrine prohibits." Van Tassel v. Lawrence Cnty. Domestic Relations Sections, 390 F.Appx. 201, 203-04 (3d Cir. 2010) (per curiam) (citation omitted).

Some additional commentary on this point is necessary, however, because of the distinction between challenging adverse state court decisions themselves and challenging as unconstitutional the statutes on which those decisions rely. See Skinner, 131 S.Ct. at 1298.

This distinction, in essence, comes down to as-applied challenges versus facial challenges and the difference between " declaring" a state order, or application, of a rule or statute unconstitutional and declaring that rule or statute itself unconstitutional in an abstract sense.[12] The former--only

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reachable by reviewing a state-court decision--is barred by Rooker--Feldman ; the latter--unless barred by another doctrine, such as standing--is not. Thus, a state court loser who seeks to challenge as unconstitutional the statutory basis for his loss will not find that particular claim barred by Rooker--Feldman. Indeed, one need not rely solely on the more recent guidance of Skinner or Exxon Mobil, for the Feldman Court drew this very same distinction:

The Tenth Circuit Court of Appeals in Doe v. Pringle, [550 F.2d 596 (10th Cir. 1976)], properly emphasized the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission. We have recognized that state supreme courts may act in a non-judicial capacity in promulgating rules regulating the bar. Challenges to the constitutionality of state bar rules, therefore, do not necessarily require a United States District Court to review a final state court judgment in a judicial proceeding. Instead, the District Court may simply be asked to assess the validity of a rule promulgated in a non-judicial proceeding. If this is the case, the District Court is not reviewing a state court judicial decision. In this regard, 28 U.S.C. § 1257 does not act as a bar to the District Court's consideration of the case and because the proceedings giving rise to the rule are non-judicial the policies prohibiting United States District Court review of final state court judgments are not implicated. United States District Courts, therefore, have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in non-judicial proceedings, which do not require review of a final state court judgment in a particular case. They do not have jurisdiction, however, over challenges to state court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional. Review of those decisions may be had only in this Court. 28 U.S.C. § 1257.

Feldman, 460 U.S. at 485-86 (citations omitted). It should be apparent that statutes--in this case, 42 U.S.C. § 1983--are like Feldman's state bar rules.

But, like the Third Circuit Court of Appeals in another case, the Court " believe[s] that [Mr. Mikhail] is not seeking declaratory relief in the true legal sense, however. See Fed.R.Civ.P. 57; 28 U.S.C. § 2201. [Although Mr. Mikhail] asks that the . . . Court 'declare' that his constitutional rights were violated[, d ] eclaratory judgment is inappropriate solely to adjudicate past conduct. " Corliss v. O'Brien, 200 F.Appx. 80, 84 (3d Cir. 2006) (per curiam) (emphasis added); see also, e.g., Burrell v. Ross, No. 12-2504, 2013 WL 3097320, at *5 (M.D. Pa. June 18, 2013) (" These claims simply ask the court to declare past action unconstitutional retroactively, which basically amounts to declaring one party liable to another, so declaratory judgment is not appropriate here." ). Mr. Mikhail is really only asking for an as-applied ruling, and that is a request that Rooker--Feldman forbids the Court from even considering. See, e.g., Kwasnik v. LeBlon, 228 F.Appx. 238, 242 (3d Cir. 2007) (per curiam) (" The Amended Complaint requests review of the constitutionality of N.J.S.A. § 9:2-4(c) . . . . As important, the Amended Complaint includes new requests . . . to prohibit enforcement of

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N.J.S.A. § 9:2-4(c) in divorce proceedings, and to stay his family court proceedings in state court. As to these requests for relief and their accompanying allegations, the District Court lacks subject matter jurisdiction under Rooker--Feldman as clarified by Exxon Mobil. " ); Wagner v. Dist. Att'y, No. 11-762, 2012 WL 2090093, at *5 (W.D. Pa. R& R May 21, 2012) (" Plaintiff is not challenging through this civil rights action the constitutionality or adequacy of the Pennsylvania DNA testing procedures. Rather, he claims that Defendant, as well as the state courts he has sought to obtain relief from, have refused, in violation of his constitutional rights, to provide him with the DNA evidence he seeks." ), adopted, 2012 WL 2089799 (W.D. Pa. June 8, 2012).

Moreover, in fact, Mr. Mikhail cannot bring a claim for true declaratory relief--i.e., to declare Pennsylvania's Protection from Abuse Act, 23 Pa. Cons. Stat. Ann. § § 6101-6122, unconstitutional--against the Defendants he has named. Where judges act as adjudicators, as here, they are not the proper defendants in a § 1983 suit challenging the constitutionality ...


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