Dorazio v. Coulson

• Decision Date: 30 January 2017
• Docket Number: Case No. 1:16CV2187
• Parties: CHARLES D. DORAZIO, Plaintiff, v. CHARLES E. COULSON, ET AL., Defendants.
• Court: U.S. District Court — Northern District of Ohio

CHARLES D. DORAZIO, Plaintiff, v. CHARLES E. COULSON, ET AL., Defendants.

Case No. 1:16CV2187

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

January 30, 2017

JUDGE CHRISTOPHER A. BOYKO

MAGISTRATE JUDGE THOMAS M. PARKER

REPORT & RECOMMENDATION

I. Introduction

Plaintiff and his former wife divorced in Cuyahoga County, Ohio in 2002. The couple had three children, two of whom (B.D. and Br.D.) were twins born in August 2000. The mother, designated the co-custodial parent, moved to New York with the children in 2002. In 2005 plaintiff and his former wife obtained a modified order addressing custody and visitation from the Jefferson County Family Court in New York. The Cuyahoga County Court of Common Pleas also entered orders relating to custody and visitation after 2005.

Plaintiff sued defendants - prosecutors and sheriffs - because they worked together to execute a September 2, 2014 writ of habeas corpus issued by a Jefferson County, New York Family Court judge that required plaintiff to surrender custody of B.D. to his ex-wife. Although plaintiff was seeking to modify his shared parenting plan, to allow B.D. to reside with him, an agreement had not been reached by the time the child was to have been returned to his mother. Plaintiff returned B.D.'s twin sister to his ex-wife on August 17, 2014 but kept B.D. with him, allegedly to be evaluated by a psychologist. Plaintiff's ex-wife sought a writ of habeas corpus for the return of B.D. on August 25, 2014. When that writ did not execute, a replacement writ was issued on September 2, 2014 and executed the following day. Plaintiff seeks damages from defendants, claiming that they deprived him of his constitutional rights when he was not permitted to parent B.D. for an indeterminate period of time after the child was returned to his mother.

This matter is before the court on defendants' October 3, 2016 motion to dismiss, pursuant to an order of reference issued by Judge Christopher A. Boyko. The undersigned is required to file a report containing proposed findings and recommendations for disposition of any case-dispositive motions.

The undersigned RECOMMENDS that defendants' motion to dismiss be GRANTED and that the action be DISMISSED.

II. Standard of Review

Defendants move under Fed. R. Civ. P. 12(b)(6), asserting that plaintiff has failed to state a claim upon which relief can be granted. Although a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations to survive, Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555, 127 S.Ct. 1955, 167 Led. 2d 929 (2007); Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555; See also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on amotion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation").

The Supreme Court further explained the pleading requirements in Ashcroft v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff alleges factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement" but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

(internal citations omitted) Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009).

In ruling on a motion to dismiss, a district court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." DirecTv, Inc., v. Treesh, 487 F.3d 471, 476 (6^th Cir. 2007). The court may consider: (1) any documents attached to, incorporated by, or referred to in the pleadings; (2) documents attached to the motion to dismiss that are referred to in the complaint and are central to the plaintiff's allegations, even if not explicitly incorporated by reference; (3) public records; and (4) matters of which the court may take judicial notice. Whittiker v. Deutsche Bank Nat'l Trust Co., 605 F.Supp.2d 914, 924-925 (N.D. Ohio 2009). The defendant has the burden to show that the plaintiff has failed to state a claim, DirecTv, Inc. , 487 F.3d at 476 (citing Carver v. Bunch, 946 F.2d 451, 454, 455 (6^th Cir. 1991)).

III. Facts Accepted as True

The numbered allegations in the complaint, which are presumed to be true for the purposes of defendants' Rule 12(b)(6) motion, are listed below.

11. The marriage of Plaintiff Dorazio (hereinafter Father) and the mother (hereinafter Mother) of the minor child B.D. was terminated by a Judgment Entry of Divorce and Final Shared Parenting Decree (hereinafter the Decree) dated 6 November 2002 in the Cuyahoga County Court of Common Pleas, Domestic Relations Division, Case No. DR 01 283656.

12. That decree designated both Father and Mother as legal custodians of the parties' three children, including B.D., whose date of birth is 8.07.2000.

13. Since the date of the Decree, B.D. and his twin sister (hereinafter Br.D.) had resided in New York with Mother; the oldest sibling had relocated to reside with Father in the City of Eastlake, Lake County, Ohio. The minor child B.D. is now a resident of the city of Eastlake, Lake County, Ohio, having relocated in June of 2016, with Plaintiff designated the residential parent for school purposes.

14. Before the commencement of the children's 2014 summer parenting time with Father, B.D. expressed his desire to reside in Father's home. Through counsel, Father proposed that change to Mother and offered a revised shared parenting plan for her review.

15. After Mother expressed concern that Father might be influencing B.D., Father proposed through counsel that an experienced, impartial psychologist be retained to interview the children and the parties and evaluate B.D.'s desires and his status. Upon agreement of the parties, clinical psychologist Michael Esson PhD was retained to perform those services and Mother was made aware of the need to retain Brandon in Ohio for a period of time.

16. Having notified Mother that their daughter, Br.D., had met with Dr. Esson and that B.D. and his older brother were to meet with him within about a week, Father returned Br.D. to Mother's possession on 17 August 2014.

17. After Dr. Esson's 23 August interviews with the parties' sons and subsequent conversations with Mother and Father, notwithstanding the parties' agreement Mother approached the Family Court of Jefferson County, New York for the purpose of obtaining a writ of habeas corpus for the return of B.D. to her. She did so despite having been notified of the fact that the courts of the State of New York patently and unambiguously lacked subject matter jurisdiction. In addition, under New York law, specifically the New York version of the Uniform Child Custody Jurisdiction and EnforcementAct (the UCCJEA) and New York's statute dealing with writs of habeas corpus for minors, the Jefferson County Family Court lacked subject matter jurisdiction over the persons of the Dorazio children and lacked subject matter jurisdiction to issue a writ of habeas corpus insofar as B.D. was not then to be found in the State of New York.

18. Upon Mother's presentation of the alleged New York writ of habeas corpus issued on 26 August 2014 by the Honorable Peter A. Schwerzmann of the Jefferson County, New York Family Court, Defendant Germano telephoned counsel for Plaintiff Charles Dorazio and stated that the writ of habeas corpus would not be executed or enforced. During that phone call, counsel for Plaintiff stressed to Defendant Germano that the courts of the State of New York patently and unambiguously lacked subject matter jurisdiction over the issue of parenting B.D. by reason of Ohio's exclusive, continuing jurisdiction under both New York's and Ohio's version of UCCJEA and the Parental Kidnapping Prevention Act (hereinafter PKPA).

19. On or about 2 September 2014, Mother secured a second alleged writ of habeas corpus, incorporating changes requested and directed by Defendant Germano and Defendant Coulson, requiring the transfer of possession of the minor child B.D. from Father to Mother. This writ was again issued by the Family Court of Jefferson County, New York despite the fact that said court continued to patently and unambiguously lack subject matter jurisdiction over parenting issues and lacked jurisdiction to issue a writ of habeas corpus as B.D. was not then in the State of New York, said writ was not registered in the State of Ohio, in compliance with O.R.C. 3127.

20. Upon information and belief, before the issuance of the second alleged writ of habeas corpus Defendant Germano communicated directly with the Judge Schwerzmann of the Jefferson County, New York Family Court, instructing him on the language she and Defendant Coulson wanted included in the second writ of habeas corpus, none of which

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