Nouse v. Nouse

• Decision Date: 30 March 1978
• Docket Number: Civ. No. K-77-19.
• Citation: 450 F. Supp. 97
• Parties: Philip Eugene NOUSE v. Kathryn Vondersmith NOUSE and Patricia Vondersmith.
• Court: U.S. District Court — District of Maryland

450 F. Supp. 97

Philip Eugene NOUSE v. Kathryn Vondersmith NOUSE and Patricia Vondersmith.

Civ. No. K-77-19.

United States District Court, D. Maryland.

March 30, 1978.

Philip Eugene Nouse, pro se.

Kathryn Vondersmith Nouse and Patricia Vondersmith, pro se.

FRANK A. KAUFMAN, District Judge.

Plaintiff,¹ proceeding pro se² and in forma pauperis, and presently confined in a confinement institution of the State of Pennsylvania, has filed a complaint styled "Civil Rights Complaint" in this Court. Herein plaintiff seeks declaratory and injunctive relief and damages against defendant Nouse, the latter being plaintiff Nouse's ex-wife, and the latter's mother, defendant Vondersmith. Plaintiff alleges numerous acts of interference by both defendants with his communications by mail and by telephone with the two children of his marriage with defendant Nouse. Plaintiff claims that defendants have destroyed mail addressed by him to the children prior to its delivery to them, and that defendants have also refused to allow the children to talk with plaintiff on the telephone. Plaintiff contends that in so doing defendants have violated the constitutional rights of plaintiff and of the children. Plaintiff, in his complaint, refers to several Maryland state court proceedings relating to his domestic relations with defendant Nouse, alleging that he has been granted in those proceedings certain rights to visit and communicate with his children. Plaintiff and defendant Nouse were divorced in the Circuit Court of Baltimore County, Maryland, on July 16, 1974. Custody of the two children in question was awarded to defendant Nouse. However, plaintiff states that another action for divorce between himself and defendant Nouse is pending in the Court of Common Pleas of Dauphin County, Pennsylvania. Defendants have responded pro se, denying plaintiff's allegations of interference with his attempts to communicate with the children, and seeking dismissal of the within action.³

Plaintiff alleges jurisdiction exists under 28 U.S.C. § 1343, the jurisdictional counterpart of certain post-Civil War civil rights statutes. In order for jurisdiction to exist under section 1343, a complaint must at a minimum seek recovery under one of the substantive statutes to which section 1343 relates.⁴

We start with 42 U.S.C. § 1983. It does not apply because plaintiff has not alleged, or suggested any facts to show, that defendants acted under color of state law. Assuming that defendant Nouse's custody of the children derives from orders or decrees of one or more Maryland state courts, her actions, whether pursuant to those orders or decrees or otherwise, do not constitute state action for section 1983 purposes. Colechandise v. Murdaugh, No. 77-1625, slip op. at 3, (4th Cir. December 1, 1975);⁵ Merrick v. Merrick, 441 F.Supp. 143 (S.D.N.Y.1977).⁶

Nor has plaintiff alleged a cause of action under 42 U.S.C. § 1985(3) for conspiracy to deprive him of his rights. As Judge Craven wrote in Doski v. M. Goldseker Co., 539 F.2d 1326, 1333 (4th Cir. 1976):

The scope of § 1985(3) was defined in Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) as follows:

To come within the legislation a complaint must allege that the defendants did (1) `conspire . . .' (2) `for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' It must then assert that one or more of the conspirators (3) did, or caused to be done, `any act in furtherance of the object of the conspiracy,' whereby another was (4a) `injured in his person or property' or (4b) `deprived of having and exercising any right or privilege of a citizen of the United States.'

(Emphasis added).

Assuming without deciding that all the above requirements are satisfied and that a sex-based conspiracy qualifies as an "otherwise class-based invidiously discriminatory animus" so as to meet the intent requirement of the statute, the issue becomes the same that we faced in Bellamy v. Mason's Stores, Inc. (Richmond), 508 F.2d 504 (4th Cir. 1974)—what is the nature of the legal right denied?11 Footnote 10 omitted.

11 We believe the issues of whether a sex-based conspiracy meets Griffin's requirement of "class-based discriminatory animus" and the nature of the "right" being denied are two separate and distinct issues and that satisfaction of the first does not automatically create a federally protected right. Citations omitted.

No "class-based discriminatory animus" is involved herein.

Finally, plaintiff has not alleged any violation of any other substantive federal statute to which section 1343 relates, except perhaps 18 U.S.C. § 1702 discussed infra, which is inapplicable for reasons hereinafter explicated.⁷

Plaintiff also alleges jurisdiction under 28 U.S.C. § 1651. But that statute provides no independent jurisdictional basis.⁸ Plaintiff has not suggested the possibility of any jurisdictional basis other than sections 1343 and 1651. However, because plaintiff is proceeding pro se, this Court examines herein the possible application of jurisdictional provisions not alleged by plaintiff to exist,⁹ including diversity jurisdiction. Plaintiff presently is a prisoner in a Pennsylvania institution. Defendants are citizens of Maryland. But plaintiff has not lost his status as a citizen of Maryland and become a citizen of Pennsylvania simply because of his detention in that state. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3618, 749-51. Plaintiff has in no way indicated he has taken as his home any state other than Maryland. However, even assuming arguendo only that plaintiff is not a citizen of Maryland and that defendants are Maryland citizens, diversity jurisdiction still does not exist. That is because plaintiff's claims herein relate to child custody and visitation and communication rights in connection therewith. As such, they fall within the domestic relations exception to federal diversity jurisdiction.¹⁰

There remains one additional issue for exploration, namely, since plaintiff asserts that defendants have destroyed mail, whether that claim states a cause of action under 28 U.S.C. § 1339 and 18 U.S.C. § 1702. The former provides:

The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service.

The latter provides:

Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined not more than $2,000 or imprisoned not more than five years, or both.

While 28 U.S.C. § 1702 speaks solely of criminal sanctions for obstruction of correspondence, the question arises as to whether a civil remedy should be implied thereunder. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), Mr. Justice Brennan, speaking for a unanimous Court, in the course of stating the principles governing implication of a federal civil remedy from a federal criminal statute,¹¹ wrote as follows (at 78-80, 95 S.Ct. at 2088):

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 60 L.Ed. 874 (1916) (emphasis supplied)— that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Citation omitted. Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? Citations omitted. And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Citations omitted.

The dissenting judge in the Court of Appeals and petitioners here suggest that where a statute provides a penal remedy alone, it cannot be regarded as creating a right in any particular class of people. "Every criminal statute is designed to protect some individual, public, or social interest . . .. To find an implied civil cause of action for the plaintiff in this case is to find an implied civil right of action for every individual, social, or public interest which might be invaded by violation of any criminal statute. To do this is to conclude that Congress intended to enact a civil code companion to the criminal code." 496 F.2d, at 428-429 (Aldisert, J., dissenting). Citation omitted.

Clearly, provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages. Citations omitted. However, in Wyandotte, Borak, and Rigsby, there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone. Here, there was nothing more than a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.

We need not, however, go so far as to say that in this circumstance a bare criminal statute can never be deemed sufficiently protective of some special group so as to give rise to a private cause of action by a member of that group. For the intent to protect corporate shareholders particularly was at best a subsidiary purpose of the statute in question, and the other relevant factors all either are

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