Rubin v. Smith, Civ. No. 92-273-SD.

• Decision Date: 11 March 1993
• Docket Number: Civ. No. 92-273-SD.
• Citation: 817 F. Supp. 987
• Parties: Carol A. RUBIN, et al. v. Philip SMITH, Sr., et al.
• Court: U.S. District Court — District of New Hampshire

817 F. Supp. 987

Carol A. RUBIN, et al. v. Philip SMITH, Sr., et al.

Civ. No. 92-273-SD.

United States District Court, D. New Hampshire.

March 11, 1993.

COPYRIGHT MATERIAL OMITTED

Carol A. Rubin, pro se.

Richard Y. Uchida, Concord, NH, for Rebecca Rubin.

Ragazzi & Stebbens, Margaret Quilter Chapple, Office of Atty. Gen., Hartford, CT, Salem, Ross, Rheault, Smith, Wayne C. Beyer, Concord, NH, Ragazzi & Stebbens, Theodore Wadleigh, Manchester, NH, Quentin & Harvey Rubin, Robert Larson, Concord, NH, Quentin & Harvey Rubin, Jonathan Katz, New Haven, CT, for defendants.

ORDER

DEVINE, Senior District Judge.

Plaintiffs Carol A. Rubin and her daughter, Rebecca B. Rubin, bring this action against defendants Philip Smith, Sr., Fred Rheault, James Ross, the Town of Salem, New Hampshire, Dan Stebbens, John Ragazzi, Harvey Rubin, and Quentin Rubin. The plaintiffs allege that Rebecca Rubin was taken from Carol Rubin by the defendants in violation of plaintiffs' federally protected rights. Plaintiffs claim that they were denied their right of access to the courts and deprived of both the right to equal protection under the law and a constitutionally protected liberty interest, without due process of law. This action, filed pursuant to 42 U.S.C. § 1983, alleges that the plaintiffs' rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution have been violated.¹ The matter is currently before the court on a motion to dismiss by defendants Harvey Rubin and Quentin Rubin. Plaintiffs object to this motion.

FACTUAL BACKGROUND

Defendant Harvey Rubin and plaintiff Carol Rubin were granted a divorce by the Superior Court for the Judicial District of Danbury, Connecticut, in 1985. Custody of Rebecca Rubin, the only child of the marriage, was granted to Carol Rubin, with visitation rights to Harvey Rubin. Defendant Quentin Rubin is the father of Harvey Rubin.

In January of 1990, the Connecticut Superior Court granted temporary custody of Rebecca to Harvey Rubin following a hearing which Carol Rubin did not attend. Plaintiffs state that they had "legally" moved to Salem, New Hampshire, on December 15, 1989, and that Carol Rubin had no notice of these Connecticut proceedings. Harvey Rubin claims to have been unaware of plaintiffs' move to New Hampshire. Rebecca Rubin attended school in Salem until June, 1990.

Allegedly, Harvey Rubin enlisted the aid of defendants Dan Stebbens and John Ragazzi, members of the Connecticut State Police, in his search for Carol and Rebecca Rubin. These Connecticut police officers contacted the New Hampshire State Police and the Salem, New Hampshire Police in an attempt to find Carol and Rebecca Rubin. By June 13, 1990, Carol and Rebecca Rubin had been located in Salem by the Salem Police. Plaintiffs state that several conversations ensued between the various defendants concerning plaintiffs' whereabouts and plans for Harvey Rubin to be given custody of Rebecca. Defendants Stebbens and Ragazzi contacted the Salem Police and informed them that Harvey Rubin would come to Salem on June 13, 1990, to take custody of Rebecca in accordance with the Connecticut court order.

Defendants Philip Smith, Sr., and Fred Rheault, of the Salem Police Department, took Rebecca from her elementary school to the Salem Police Department. Some time later they gave custody to Harvey Rubin. Carol Rubin states that she had no prior notice of this action. Harvey Rubin currently has physical custody of Rebecca, and they are living in Connecticut.

Carol Rubin, a pro se plaintiff, and Rebecca Rubin, represented by counsel, allege that defendants deprived the plaintiffs of their constitutionally protected interests while acting under color of state law. Specifically, they claim they were entitled to notice and an opportunity to be heard in New Hampshire before Harvey Rubin was given custody of Rebecca. Plaintiffs ask the court to grant an award of damages pursuant to 42 U.S.C. § 1983. Jurisdiction is alleged under 28 U.S.C. §§ 1343(a)(3) and 1343(a)(4).

DISCUSSION

Defendants move to dismiss pursuant to Rule 12(b), Fed.R.Civ.P. They seek dismissal on three grounds, stating: (1) the case falls within the domestic relations exception to federal jurisdiction, (2) the court should otherwise abstain, and, (3) the complaint fails to state a cause of action for which relief may be granted.

The standard for granting a motion to dismiss is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Id.; Arroyo-Torres v. Ponce Federal Bank, F.B.S., 918 F.2d 276, 277 (1st Cir.1990); Melo-Tone Vending, Inc. v. United States, 666 F.2d 687, 688 (1st Cir.1981).

As plaintiffs ably state, pro se complaints are held to "`less stringent standards.'" United States v. Michaud, 925 F.2d 37, 41 (1st Cir.1991) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). In particular, the court recognizes that pro se complaints under section 1983 should be "liberally construed." Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12 (1st Cir.1990). Although section 1983 serves "as an instrument of justice in the hand of the weak against the mighty ... we also are aware of the impact of its misuse." Dewey v. University of N.H., 694 F.2d 1, 3 (1st Cir. 1982). Consequently, the court will apply these precepts in resolving the matter before it.

I. The Domestic Relations Exception

The first issue the court must address is whether this court has subject matter jurisdiction over the plaintiffs' claim. More specifically, we examine the question of whether the domestic relations exception to federal jurisdiction removes jurisdiction over this claim from the federal courts, as asserted by defendants. Defendants characterize this case as a "custody dispute", and assert that the domestic relations exception to federal jurisdiction bars this court from accepting jurisdiction. Plaintiffs argue that the domestic relations exception is inapplicable since their claim is a section 1983 action for damages, and not a request for a custody determination.

"The domestic relations exception encompasses only cases involving the issuance of a divorce, alimony or child support decree." Ankenbrandt v. Richards, ___ U.S. ___, ___, 112 S.Ct. 2206, 2215, 119 L.Ed.2d 468 (1992). Thus, in Ankenbrandt, the United States Supreme Court stated that the federal court could exercise diversity jurisdiction over a claim that the husband committed torts against the children. Id. The domestic relations exception was originally defined to encompass only suits over divorce and alimony. Id. at ___, 112 S.Ct. at 2209 (citing Barber v. Barber, 21 How. 582, 16 L.Ed. 226 (1859)). Ankenbrandt reaffirmed this "narrow range" of the domestic relations exception. Ankenbrandt, supra, ___ U.S. at ___, 112 S.Ct. at 2214.

Moreover, the First Circuit has stated that the domestic relations exception applies to diversity cases, and not to cases arising under the constitution or laws of the United States. Fernos-Lopez v. Lopez, 929 F.2d 20, 22 (1st Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 244, 116 L.Ed.2d 199 (1991). Many other circuits also apply this rule. Ingram v. Hayes, 866 F.2d 368, 371 (11th Cir.1988); Flood v. Braaten, 727 F.2d 303, 308 (3d Cir.1984); Franks v. Smith, 717 F.2d 183 (5th Cir.1983). The domestic relations exception is "typically described as an `exception to diversity jurisdiction.'" Fernos-Lopez, 929 F.2d at 22 (quoting Sutter v. Pitts, 639 F.2d 842, 843 (1st Cir.1981)).

Defendants assert that Sutter is an applicable First Circuit precedent.² However, in Sutter the relief requested by plaintiff included "physical custody of Plaintiff's minor child." Sutter, supra, 639 F.2d at 844. In the instant case, plaintiffs make no similar request, and merely request damages. There is no evidence before the court, nor can any inference be drawn, at this stage of the proceedings, to indicate that plaintiffs are seeking relief other than that which they have requested.

Although plaintiffs' claims arise out of a custody dispute, "adjudication of the alleged civil rights violation does not require the court to exercise jurisdiction over or resolve any of those state law matters within the scope of the domestic relations exception." Hooks v. Hooks, 771 F.2d 935, 942 (6th Cir. 1985).³

As was the case in Fernos-Lopez, the domestic relations exception is inapplicable here. First, this is not a diversity case. Plaintiffs' action is a section 1983 claim raising constitutional questions. Nowhere in their complaint have plaintiffs asked this court to adjudicate the matter of Rebecca's custody or otherwise delve into the parties' domestic affairs. Since the present case does not involve "the issuance or modification of a divorce, alimony, or child custody decree" the domestic relations exception is inapplicable. Ankenbrandt, supra, ___ U.S. at ___, 112 S.Ct. at 2215. Plaintiffs have requested damages for deprivation, inter alia, of their constitutional interests without due process of law. Examination of plaintiffs' claim in the light most favorable to the plaintiffs does not support the conclusion that this is actually a domestic relations case under the guise of a federal question. Therefore, the court concludes that the domestic relations exception poses no jurisdictional bar. Accord Franks v. Smith, 717 F.2d 183, 185 (5th Cir.1983).

II. Abstention

Although subject matter jurisdiction may be proper, the defendants urge the court to abstain from exercising its jurisdiction for other reasons. In particular, defendants...