Mikhail v. Kahn

• Citation: 991 F.Supp.2d 596
• Decision Date: 13 January 2014
• Docket Number: Civil Action No. 13–5130.
• Parties: Nabil MIKHAIL, Plaintiff, v. Jolie KAHN et al., Defendants.
• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)

991 F.Supp.2d 596

Nabil MIKHAIL, Plaintiff,

v.Jolie KAHN et al., Defendants.

Civil Action No. 13–5130.

United States District Court,

E.D. Pennsylvania.

Jan. 13, 2014.

Nabil Mikhail, Bryn Mawr, PA, for Plaintiff.

Alan S. Fellheimer, John J. Jacko, III, Fellheimer & Eichen LLP, Henry F. Canelo, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Philadelphia, PA, for Defendants.

OPINION

PRATTER, District Judge.

“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 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–Feldman² doctrine's jurisdictional bar, Younger³ 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 BACKGROUND⁵

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. 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 partemeeting 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 Atl. 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...