M. ISMAIL SLOAN, individually, and on behalf of his children, SHAMEMA HONZAGOOL SLOAN, MICHAEL RANKOTH SLOAN, JESSICA VITHANAGE SLOAN, GEORGE RANKOTH SLOAN, and ANUSHA SLOAN, infants, ad on behalf of his mother, HELEN MARJORIE SLOAN, and on behalf of VITHANAGE SANTHILATHA and RANKOTH PEDIGEDERA DAYAWATHIE and LINDA DUAVIS and HONZAGOOL,
Plaintiffs,
-against-
STEPHEN R. PATTISON, EDIN BROWN, EILEEN F LEWISON, WILLIAM CRAWFORD, MARLEE ANDERSON, CHARLES ROBERTS, SHELBY ROBERTS, JAY ROBERTS, LARRY ROBERTS, JUDGE LAWRENCE JANOW, JUDGE MICHAEL GAMBLE, JUDGE SUE H. ROE, JUDGE RICHARD S. MILLER, JUDGE DALE HARRIS, WILLIAM H. PETTY, BARBARA J. GADEN, BOONCHOO YENSABAI, JOHN L. SOBELL, FRANK DAVIDSON III, LINDA S. GROOME, KEITH REICHARD, PASTOR CHARLES ESTERLINE, PASTOR EARL CLARKSON, TEMPLE BAPTIST CHURCH AND SCHOOL, RAJA ABDUL RASHID, RAJA EHSAN AZIZ, AZIZ-UR-REHMAN, IJAZ MANSOUR QURESHI, DR. KHWAJA MAHMOOD, FORTUNADO D. OBLENA, MASSIE G. WARE, JR., LEIGHTON HOUCK, ALMA COATES DAWSON, JOHN MILLER, CENTURION PRIVATE INVESTIGATIONS, BU-BUSTER WALKER, JOHN, STEWART, WALKER, SOVRAN-BANK, N A., NATIONS BANK NCNB BANK. SHARON HABERER, VITHANAGE SANTHILATHA, VIRGINIA BURKS, JAMES OLIVER, RICHARD L. GROFF, AMHERST COUNTY DEPARTMENT OF SOCIAL SERVICES, MICHAEL W. COX, OFFICER F.D. MCFARLAND, OFFICER ROYER, OFFICER LARIVIERE, INVESTIGATOR GLEASON, COMMANDER BURNETTE, SANCTUARY FOR FAMILIES, KILLIS T. HOWARD, CREIGHTON W. SLOAN, W. CASSEL JACOBSON, CECIL W. TAYLOR, WILLIAM H. TUCKER, PAIGE WEEKS JOHNSON, DR. SHEILA I. MILOT, DR. MELVYN HAAS, MATTIE C. HALL HEALTH CARE CENTER, NORTHWEST AIRLINES, TRANS WORLD AIRLINES, and the UNITED STATES DEPARTMENT OF STATE,
Defendants.
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92 Civ. 2388 (RJD)
REPORT AND RECOMMENDATION
Go, United States Magistrate Judge
The instant motions to dismiss and for a permanent injunction have been referred to the undersigned by the Honorable Raymond J. Dearie for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b) (1) (B), as have plaintiff's motion for appointment of counsel and plaintiff's motion for a temporary restraining order and preliminary injunction.
Plaintiff Ismail Sloan brings this action individually and on behalf of five of his children, his mother, and his four wives. He alleges in the complaint a multitude of conspiracies on the part of the 65 named defendants essentially to kidnap plaintiff's mother and three of his children, and to steal his mother's money. Plaintiff alleges that [t]he purpose of all of these kidnappings is and has been to seize control of the financial assets and income of Helen Marjorie Sloan, who has a considerable net worth relative to Lynchburg and a monthly income of more than $4,000, to take the three children for illegal adoption, and to convert the children to Christianity." par. 33. The defendants include state court judges, federal consular officers, social service agencies, police officers, the United States Department of State, plaintiff's brother, two banks, two airlines, and others.
The major conspiracies that various groups of defendants allegedly perpetrated are as follows: that, under the direction of plaintiff's brother, defendant Creighton Wesley Sloan, various defendants conspired in the kidnapping of plaintiff's mother from a Bangkok hospital to the United States in September 1990; that various defendants conspired to kidnap two of plaintiff's children from their home in the United Arab Emirates in October 1990 and one from Virginia in November 1990; that Virginia state court judges wrongfully awarded custody of his daughter, Shamema Honzagool Sloan, to Charles and Shelby Roberts; that a South Carolina state court judge wrongfully awarded guardianship of plaintiff's mother to his brother, Creighton Sloan, and conservatorship of her assets to N.C.N.B. Bank and that his brother is dissipating their mother's assets and intends to sell her house against her wishes.
Plaintiff seeks the following relief: a writ of habeas corpus requiring the production before this Court plaintiff's mother and five of his children the of overturning of a Commonwealth of Virginia custody determination regarding his daughter, Shamema, and the awarding of custody of Shamema, Michael Sloan, and Jessica Sloan to plaintiff; the enjoining of all state court proceedings relating to the subject matter of this action, including future arrests of the plaintiff; the reversal of South Carolina rulings relating to the guardianship and control of assets of plaintiff's mother, or that all funds of plaintiff and his mother would be restored to their bank accounts, and the sale of his mother's house should be enjoined; the enjoining of Shamema's current guardians from any future contact with her; and $100 million dollars in damages.
For the reasons set forth below, it is recommended that the complaint be dismissed. Although plaintiff narrates a fascinating and moving tale of woe, redress is not available from this Court.
FACTUAL BACKGROUND
The facts giving rise to plaintiff's claims are set forth in a 316-paragraph, 50 page, seven-count complaint. Construing the allegations in the complaint liberally (particularly because plaintiff is pro se), McNeil v. United States, 113 S. Ct. 1980, 1984 (1993), and accepting them as true, Kossick v. United Fruit Co., 365 U.S. 731 (1961), the pertinent facts may be distilled to the following sequence of events:
Dispute over Custody of Shamema Honzagool Sloan
Plaintiff has made a career as a chess manager, author, journalist, and securities dealer. pp. 43, 110. His daughter, Shamema Honzagool Sloan, was born on October 15, 1981 in New York City to his wife, Honzagool, a native of Pakistan. pp. 44. Honzagool was awarded custody of Shamema in May 1982 by the Bronx Supreme Court; in August of that year Honzagool returned to Pakistan, where she has apparently remained, leaving Shamema in the United States. par. 49. Plaintiff placed Shamema in the care of Shelby Roberts of Madison Heights, Virginia from November 1982 to August 1986, paying her $110 per week. pp. 50-51. Plaintiff alleges that he had to hide Shamema in Virginia because he feared the Black Muslim Underground Militant Organization from Pakistan would try to kidnap her. par. 50.
Plaintiff filed a petition for custody of Shamema before Lynchburg Family Court in September 1983 and alleges that Judge Dale Harris "refused to set that matter down for a hearing." par. 98. On January 13, 1986, plaintiff filed a petition for custody of Shamema in the Amherst county Juvenile and Domestic Relations Court. par. 100. On April 2, 1986, after hearing, Judge Lawrence Janow entered an order granting temporary legal custody to plaintiff and temporary physical custody to the present custodians, Charles and Shelby Roberts, unnamed in the order. The plaintiff was given visitation rights provided that he not take Shamema out of state without a court order. The case was continued until August 25.
[footnote 1] Although plaintiff does not specifically refer to this hearing and resulting order in the complaint, he subsequently submitted a copy of the order to this court.
On August 25, 1986, Judge Janow held a conference attended by the Roberts, their attorney, Frank Davidson III, the plaintiff and his attorney Stephen Martin, and J. Thompson Shrader, the court-appointed guardian litem for Shamema. That day, Judge Janow issued a decision awarding physical custody of Shamema to the plaintiff effective September 7, 1986, and allowing the Roberts, "reasonable overnight visitation" rights "as Counsel agrees". The order provided for maintenance of the status quo and allowed Shamema to be enrolled at the Temple Baptist school, where she had been enrolled before, rather than public school. par. 106; see also order dated August 25, 1986, a copy of which was submitted with plaintiff's letter of April 18, 1993.
Plaintiff states that he, a converted, practicing Muslim, did not want his daughter to attend a Christian school. par. 108. Apparently for that reason, plaintiff left Virginia with his mother and Shamema that night and, a few weeks later, flew to Argentina where plaintiff attended a chess tournament. pp. 51, 3.07-110. The plaintiff, his mother, and his daughter eventually settled for the next four years in the United Arab Emirates, where plaintiff worked as a columnist for a local newspaper.
Charles Roberts, through his attorney, Frank Davidson III, filed a custody Petition an August 27, 1986. par. 52. Since plaintiff had already left the state, Roberts never personally served plaintiff with the papers, and, instead, obtained leave to publish a notice of service in the Amherst New Era Progress, a local county weekly. pp. 143, 227. On September 4, the court rescinded that portion of the August 25 order that gave physical custody of Shamema to plaintiff effective September 7 and left physical custody either with the Roberts after that date, or with the Amherst County Department of Social Services with leave to place the child "with any suitable persons, including Charles and Shelby Roberts." Plaintiff's removal of Shamema from the Commonwealth of Virginia in violation of the April 2 order resulted in his arrest twice on the basis of a federal kidnapping warrant, once in Guam, and once in Hawaii, but the charge was dropped after Lynchburg officials refused to pay the cost of extradition from these locations. pp. 17, 20-21, 128-29, 130-31. Judge Janow also issued a nationwide detention order for Shamema. par. 146.
Dispute over Guardianship and Assets of Helen Marjorie Sloan
Plaintiff's mother is Helen Marjorie Sloan, a retired psychiatrist, now aged 83. par. 3. In 1984, following her retirement, plaintiff alleges that his brother, Creighton Wesley Sloan, kidnapped her and took her to North Carolina. par. 41. While living in North Carolina in 1984, Dr. Sloan gave Creighton Sloan power of attorney over her property. par. 111. In the summer of 1986, plaintiff brought Dr. Sloan to Lynchburg, Virginia, and then, in August, departed with her and Shamema from the United States, eventually stopping in the United Arab Emirates. pp. 110-115. The plaintiff alleges he escaped with his mother in order to elude his brother's attempts to kidnap and return her to South Carolina. pp. 115.
From late 1986 to September 1990, Dr. Sloan lived with plaintiff, principally in the United Arab Emirates. pp. 115, 119, 125. During this period, plaintiff fathered two additional children with two different wives: Michael Rankoth Sloan, born on June 18, 1988 to Rankoth Pedigedera Dayawathie; and Jessica Vithanage Sloan, born on September 14, 1988 to Vithanage Santhilatha. Both children were born in Oakland, California and subsequently brought to the United Arab Emirates. pp. 46-47, 129.
Some time in late 1986, the Sovran Bank, the bank holding Dr. Sloan's bank account of approximately $125,000, received a telegraph, putatively from Dr. Sloan, requesting the revocation of Creighton Sloan's power of attorney. pp. 112. On December 11, 1986, Creighton Sloan filed an action in the Circuit Court of the Lynchburg seeking to enjoin Sovran Bank from expending funds from Dr. Sloan's trust account except as directed by Creighton Sloan, and seeking a determination that the recent attempted revocation of the power of attorney was ineffective. par. 116. On January 2, 1987, Judge Richard S. Miller signed a decree ordering that the attempted revocation of Creighton Sloan's power of attorney was ineffective and that Sovran Bank should honor Creighton Sloan's exercises and directives as attorney in fact for Helen Marjorie Sloan. pp. 117-18. Plaintiff alleges that his mother granted a power of attorney to him on February 2, 1987 in the presence of John Lister, the United States Vice-Consul in Abu Dhabi, and that "[t]his power of attorney [was] recorded in the Lynchburg Circuit Court on February 11,1987 par. 42, 121.
The plaintiff also alleges that he and his family were constantly harassed by Charles and Shelby Roberts, Creighton Sloan, and W. Cassel Jacobson, Helen Sloan's brother, who were seeking information about the whereabouts and welfare of Shamema and Dr. Sloan from the American Embassy in Abu Dhabi, United Arab Emirates. par. 124-25.
In July 1990, plaintiff attempted to take his mother three children to the Philippines to seek domestic help and attend a chess tournament. par. 137. They were not permitted to enter the Philippines, and instead arrived in Bangkok, Thailand on July 9. par. 151. 0n July 23, 1990, Dr. Sloan was hospitalized in Bangkok for pneumonia, bronchitis and high fever. par. 154. Plaintiff alleges that Cassel W. Jacobson successfully conspired with Creighton Sloan and Boonchoo Yensabai, a Thai attorney, to kidnap Dr. Sloan from her hospital bed and return her to the United States on September 3, 1990. pp. 7-8, 10, 19, 16061, 163-66, 173-78, 181-82.
On April 12, 1991, Sue H. Roe, Probate Judge of Aiken County, South Carolina, issued an opinion and order finding that Dr. Sloan as legally incapacitated as a result of Alzheimer's disease; warding guardianship to her son, Creighton Wesley Sloan; and appointing the a NCNB Bank as the conservator of her property. In addition to Judge Roe, plaintiff has named as defendants: Sheila I. Milot, M.D. and Melvyn Haas, M.D., physicians who examined Dr. Sloan; William H. Tucker, Creighton Sloan's Attorney in the guardianship proceeding; Paige Weeks Johnson, the court-appointed guardian ad litem for Dr. Sloan; Cecil W. Taylor, the lawyer who represented Creighton Sloan in the court-ordered sale of Dr. Sloan's Lynchburg house; Massie Ware, an Assistant Vice President in the trust department of NationsBank, a successor to Sovran and N.C.N.B. Banks; and the Mattie C. Health Care Center, a nursing facility where Dr. Sloan has been a patient. par. 12, 84-85, 87-88.
Return to the United States
Plaintiff alleges that the Roberts also hired Boonchoo Yensabai to track down and return Shamema to Virginia. par. 192. Plaintiff claims that Mr. Yensabai threatened and coerced Vithanage Shanthilatha ("Shanti"), his wife and the mother of Jessica Sloan, to assist him in returning Shamema from the United Arab Emirates to the United States. par. 196. On October 7, 1990, Shanti took Shamema, Jessica, and Michael to Abu Dhabi and picked up airline tickets to the United States that had been sent by the Roberts. pp. 199, 202-204. On October 9, Shanti, Shamema, and Jessica arrived in Washington, D.C., where they were met by the Roberts taken to Virginia. par. 205. Michael was left behind with a stranger and eventually returned to plaintiff. pp. 202, 206.
Plaintiff and Michael returned to the United States on November 9, 1990. par. 216. on November 13, plaintiff went to the Amherst County Department of Social Services to meet case worker Richard Groff, who told him he could see Shamema. pp. 220, 224 . Upon his arrival he was arrested and subsequently charged with contempt for disobeying Judge Janow's August 25, 1986 court order and for failing to appear in court on September 8, 1986. par. 22, 224-229. Mr. Groff also presented him with an order dated October 24, 1990 enjoining plaintiff from having any contact with Shamema. pp. 224, 226. That evening, plaintiff was brought before Judge Janow, who stated that the Amherst County Juvenile and Domestic Relations Court had continuing jurisdiction over Shamema's custody proceeding and raised plaintiff's bail from $1,000 to $10,000. pp. 231-33. While he was in jail, plaintiff was served with custody petitions for Jessica and Michael Sloan. pp. 236. Also, while he was in jail, plaintiff claims that Officer McFarland allowed Sharon Haberer, whom plaintiff describes as a "co-religionist of Charles Roberts,- par. 237, to take his son, Michael, from the home of plaintiff's friend. pp. 31-32, 225, 239. She then brought Michael to New York City. par. 240. Later that month, plaintiff traveled to Far Rockaway to talk to Sharon and David Haberer. pp. 243-44. He was arrested on charges of "aggravated harassment" of Sharon Haberer and her husband. par. 246. These charges were later dropped. par. 248.
In early 1991, plaintiff got in touch with his wife Rankoth Pedigedera Dayawathie, the mother of Michael and George, who was staying with the Haberers and the two boys. Plaintiff picked the three of them up in New York City and drove them back to his mother's house in Lynchburg. par. 249. Soon thereafter, he also got in touch .with Shanti, who had been staying with the Roberts along with her daughter, Jessica, and Shamema. par. 251-53. Shanti and Jessica stayed in the Lynchburg house for a few days, then left and later moved to Oakland, California. pp. 23, 254.
In July of 1991, the Amherst County Juvenile and Domestic Relations Court awarded sole custody of Shamema to the Roberts and directed that plaintiff could visit her only under the supervision of the Amherst County Department of Social Services. pp. 257, 265-66. On September 4, 1991, during a supervised visit, plaintiff was arrested on charges of the attempted kidnapping of Shamema. pp. 24, 267. This act as the basis for his recent conviction for attempted abduction. Steve Vaughan, World Traveler Found Guilty in Daughter's Kidnap Attempt, Lynchburg News & Advance, Jan. 14, 1993, at C-1, C-7.
Roles of Other Defendants and Other Conspiracies
Additional defendants named by plaintiff, who are alleged to have either participated in the foregoing conspiracies or engaged in other conspiracies described below, include:
a) Jay Roberts, Larry Roberts, Pastor Charles Esterline, Pastor Earl Clarkson, Sharon Haberer, Keith Reichard and the Temple Baptist Church and School, religious affiliates of Shelby and Charles Roberts, who are all alleged to have participate in the putative scheme to kidnap and unlawfully maintain custody of his children;
(b) Linda S. Groome, who has acted as attorney for Charles Roberts;
(c) Alma Coates Dawson, a woman claiming to have married plaintiff's father shortly before his death, an who has filed an action against him for her share of the father's estate;
(d) John Miller, a private detective hired by Ms Dawson, and Centurion Private Investigations, the company for which he works;
(e) Judge Michael Gamble and Judge Dale Harris, who charged plaintiff with the at attempted kidnapping of Shamema in September 1991. (Plaintiff also claims that he consulted with Mr. Gamble when he was in private practice, that Mr. Gamble also represented Alma Coates Dawson in her suit against plaintiff, and that Mr. Gamble was once partner in a law firm with Lawrence Janow.);
(f) Barbara J. Gaden, who has defended Judges Janow and Gable in prior actions brought by plaintiff;
(g) Virginia Burks, the former Director of the Amherst county Department of Social services, her successor, James Oliver, and the department itself;
(h) William H. Petty, the Lynchburg Commonwealth Attorney, who issued a warrant for plaintiff's arrest in 1986;
(i) John Stewart Walker, Inc., a real estate company and its president, Buster Walker, who are alleged to have circulated wanted posters in an effort to find and return plaintiff, his mother, and Shamema;
(j) Michael W. Cox, the Sheriff of Amherst County and F.D. McFarland, Officer Boyd L. Royer, Officer Dennis E. Lariviere, Commander Earl Burnette, and Investigator Gleason (mistakenly named instead of Investigator Eugene C. Wingfield), officers in the Lynchburg Police Department, all of whom participated in arresting plaintiff;
(k) Stephen R. Pattison, Edin Brown, Eileen F. Lewison, William Crawford, Marlee Anderson, federal consular officers, and the United States Department
State (collectively called the "Federal Defendants"), all alleged to have participated in the putative kidnapping schemes;
(l) Fortunado D. Oblena, the Philippine Ambassador Pakistan, ho is alleged not to have allowed plaintiff into the Philippines in August 1990;
(m) John L. Sobell, American private detective is Bangkok, allegedly involved in the scheme to kidnap Dr. Sloan;
(n) Killis T. Howard and Leighton Houck, lawyers involved in facilitating the return of Dr. Sloan to the United States;
(o) Cecil W. Taylor, who was appointed as Special Commissioner to sell the house of Helen Marjorie Sloan;
(p) Northwest Airlines, which brought Dr. Sloan from. Bangkok to the United States, and Trans World Airlines, which transported plaintiff's children to the United States; and
(q) Raja Abdul Rashid, Raja Ehsan Aziz, Aziz-Ur-Rehman, Ijaz Mansour Qureshi, and Dr. Khawaja Mahmood, who are all alleged to have detained plaintiff's wife, Honzagool, in Pakistan against her will.
PROCEDURAL BACKGROUND AND PRIOR ACTIONS
This action is but one in a long line of state and federal cases brought by or involving Ismail Sloan. Because they all concern the same subject matter and claims, and since they were not all clearly identified in the complaint, they are summarized below.
Plaintiff brought an action for custody of Shamema in the Amherst County Juvenile and Domestic Relations Court, captioned In the Matter of Shamema Honzagool Sloan (Amherst County Juvenile and Domestic Relations District Jan. 13, 1986) As previously discussed, the court ultimately awarded custody to Charles and Shelby Roberts.
The lawsuits concerning the validity of Helen Sloan's a power of attorney to Creighton Sloan are Creighton Sloan's action against Sovran Bank, captioned Creighton Sloan, M.D. v. Sovran Bank (Lynchburg Circuit Court Jan. 2, 1987) and case brought in the name of Dr. Sloan (presumably by Ismail Sloan), Helen Marjorie Sloan, M.D. v. Sovran Bank captioned, No . 6389 (Charlottesville Circuit. Ct., filed Dec. 17, 1987). These cases resulted in determinations upholding the right of Creighton Sloan to act as attorney in fact for Dr. Sloan.
In November 1989, another suit was filed in the name of Helen Marjorie Sloan in Lynchburg Circuit Court against many of the same defendants in this Action, alleging conspiracy to force Dr. Sloan's return to the Unite States and a conspiracy to kidnap Shamema. Helen Marjorie Sloan vs. Richard S. Miller and Lawrence Janow, No 680CL8901477-00 (Lynchburg Circuit Court, filed Nov . 29 1989) . This case was dismissed.
The guardianship and conservatorship proceeding regarding Dr. Sloan were captioned In the Matter of Helen Marjorie Sloan, Nos. 91-GC-02-00006, 91-GC-02-0000 (Probate court, county of Aiken, South Carolina Apr. 12, 1991).
Plaintiff brought a similar federal action against many of the same defendants in the Western District of Virginia in 1990. M. Ismail Sloan, et al. v. Charles Roberts, Lawrence Janow, et al., No. 90-0079-L (W.D. Va. Dec. 19, 1990) . The district court dismissed the complaint on the ground of federal abstention on December 19, 1990, its decision was affirmed by the Fourth Circuit Court of Appeals on March 20, 1991, 928 F.2d 399, and the United States Supreme Court denied a petition for writ of certiorari on October 7, 1991. 112 S. Ct. 235.
Plaintiff also brought subsequent state court actions in the Commonwealth of Virginia based on substantially the same claims, all of which were dismissed. M. Ismail Sloan v. Amherst County Dept. of Social Services, et al., No 0770-91-3 (Va. Ct. App. May 21, 1991) (affirming decision of circuit court dismissing appeal due to lack of final order); M. Ismail Sloan v Judge Lawrence Janow, et al., No. 3937, slip op. at 1, 6 (Amherst County Circuit Court No. 27, 1991) M. Ismail Sloan v. Charles Roberts et al., No. 680CL89015643-00 (Lynchburg Circuit Court) (court entered default judgment on Roberts' counterclaim against plaintiff).
[footnote 2] This Court may consider the pleadings and judgments in those cases in determining the instant motions to dismiss since the other court cases were referred to by plaintiff, and plaintiff submitted copies of many of them to the Court. Cortec Industries Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir. 1991) cert. denied sub nom. Cortec Industries. Inc. v. Westinghouse Credit Corp., 112 S. Ct. 1561 (1992) ; Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)
The court in M. Ismail Sloan v Judge Lawrence Janow, et al., supra, held:
[T]he plaintiff has repeatedly charged that Judge Janow. has masterminded a conspiracy to kidnap the plaintiff's children and has shown bias to the plaintiff. No facts, other the than the facts regarding Judge Janow's actions in the custody proceeding, are alleged to support such bizarre charges or to show motive for Judge Janow's actions. Plaintiff admits that his conclusions are drawn from his own inference and are not based an any direct or circumstantial evidence of conspiracy.
Slip op. at 4. The court also issued an order enjoining Sloan from: a) filing any action against Judge Janow in any court in the Commonwealth of Virginia without first obtaining leave of that court; b) filing any documents based upon fabricated. facts, frivolous theories, allegation previously adjudicated adversely to him without first obtaining leave of that court; and c) harassing Judge Janow in any way or interfering with the administration of justice. Slip op. at 6-8.
In addition, since the filing of this action, the Court of Appeals of Virginia dismissed plaintiff's Petition for a Writ of Mandamus and Prohibition seeking that the judge defendants be prohibited from hearing cases involving him. In Re M. Ismail Sloan, No. 1211-92-3 (Va. Ct. App. July 24, 1992), rehearing denied August 31, 1992. The Court of Appeals of Virginia also dismissed appeals filed by plaintiff in two other cases. M. Ismail Sloan v. Virginia, Record No. 0249-92-3, Circuit Court No. 7309 (Va. Ct. App. May 28, 1992), reh. denied July 23, 1992; M. Ismail Sloan v. Charles Roberts, et al., Record No. 0248-92-3, Circuit Court No. 7312 (Va. Ct. App. June 10, 1992), reh'g. denied July 23, 1992.
Plaintiff also brought a state court action in New York. M. Ismail Sloan, et al v. Sharon Haberer, et al., No. 273/91 (Sup Ct., Queens Co. 1991), which was also dismissed.
Since the filing of this action plaintiff has been convicted for the attempted abduction of Shamema on September 5, 1991 and for failure to appear for trial on this charge in January 1992. This conviction was entered on January 13, 1993, and the judge imposed a five year sentence. Steve Vaughan, World Traveler Found Guilty in Daughter's Kidnap Attempt, Lynchburg News &: Advance, Jan. 14, 1993, at C 1, C-7. Plaintiff is presently an inmate in the Powhatan Correctional Center in State Farm, Virginia.
SUMMARY OF DEFENDANTS' MOTIONS
Defendants Judge Lawrence Janow, Judge Michael Gamble, Judge Richard S. Miller, Judge Dale Harris, and Assistant Attorney General Barbara J. Gaden, all Virginia residents (collectively called the "Virginia State Defendants"), have moved to dismiss the complaint on the following grounds: lack of jurisdiction, improper venue, failure to state a claim upon which relief can be granted, federal abstention, collateral estoppel and absolute immunity.
The Federal Defendants have moved to dismiss the complaint on the following grounds: no waiver of sovereign immunity, no private right of action under federal criminal statutes, failure to state a claim under Parental Kidnapping Prevention Act, failure to state a claim under Federal Tort Claims Act as well as failure to exhaust administrative remedies and time bar, lack of personal jurisdiction due to improper service, lack of venue, collateral estoppel, federal abstention, and plaintiff's lack of standing to sue on behalf of his children and mother.
Defendants William H. Petty, Richard L. Groff, James Oliver, Amherst County Department of Social Services, Michael W. Cox, Officer F.D. McFarland, Officer Boyd L. Royer, Officer Dennis E. Lariviere, and Commander Earl Burnette (collectively called the "Amherst County Defendants") have moved to dismiss the complaint on the grounds of failure to timely serve Summons and complaint grounds in accordance with Fed. R. Civ. P. 4 (j) a. personal jurisdiction over the defendants.
Defendants NationsBank (successor to Sovran Bank and NCNB Bank) and Massie G. Ware, Jr. have moved to dismiss the complaint on grounds of failure to state a claim upon which relief can be granted, bar by the applicable statutes of limitation, collateral estoppel, and res judicata. NationsBank and Massie G. Ware, Jr. have also moved for injunctive relief permanently enjoining plaintiff Ismail Sloan from initiating a lawsuit against these defendants, or any affiliated entities, without first obtaining leave from the court in which he intends to file.
Defendants William. H. Tucker, Paige Weeks Johnson, and Judge Sue H. Roe (collectively the "South Carolina Defendants") have moved to dismiss on grounds of absolute judicial immunity (Judge Roe), improper venue, and lack of legal capacity to sue on behalf of Helen Marjorie Sloan.
Defendants Melvyn L. Haas, M.D. and Sheila Milot, M.D. have moved to dismiss on grounds of lack of personal jurisdiction due to improper service, failure to state a claim upon which relief can be granted, improper venue, and lack of capacity to sue on behalf of Helen Marjorie Sloan.
Defendant Northwestern Airlines has moved to dismiss the complaint on grounds of collateral estoppel or, in the alternative, federal abstention, improper service of process, and failure to state a claim upon which relief can be granted.
Defendant Sanctuary for Families has moved to dismiss the complaint on grounds of failure to state a claim upon which relief can be granted, improper venue, and improper service of process.
Defendant Cecil W. Taylor has moved to dismiss on the grounds of lack of personal jurisdiction, insufficient service of process, and improper venue.
Defendant Creighton W. Sloan filed a response requesting Rule 11 sanctions and a Rule 54 (d) judgment for costs.
Defendant Frank G. Davidson III has moved to dismiss on the grounds of lack of persons jurisdiction and improper venue.
Defendant Khawaja Mahmood has filed an answer denying every allegation raised against him, raising the defenses of improper services and baseless claims, and requesting dismissal.
Defendants George C. Walker, Jr. and John Stewart Walker, Inc. have moved to dismiss on the grounds of lack of in personam jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted.
Defendant Linda W. Groome has moved to dismiss for lack of personal jurisdiction and improper venue.
Defendant Leighton Houck has moved to dismiss on the grounds of lack of in personam jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted.
Defendant Shelby Roberts has moved to dismiss on the grounds of lack of jurisdiction, res judicata, lack of standing to represent plaintiffs other than himself, and insufficient service of process.
All proceedings against Defendant Trans World Airline have been ordered stayed by magistrate Judge John L. Gaden pending the resolution of bankruptcy proceedings.
The following defendants have to date not made an appearance in this action: Charles Roberts; Jay Roberts, Larry Roberts, Boonchoo Yensabai, John L. Sobell, Keith Reichard, Pastor Charles Esterline, Pastor Earl Clarkson, Temple Baptist Church and School, Raja Abdul Rashid, Raja Ehsan Aziz, Aziz-Ur-Rehman, Ijaz Mansour Qureshi, Fortunado D. Oblena, Alma Coates Dawson, John Miller, Centurion Private Investigations, Sharon Haberer, Vithanage Santhilatha, Virginia Burks, Investigator Gleason, Killis T. Howard, W. Cassel Jacobson, and the Mattie C. Hall Health Care Center. The plaintiff has not filed a motion for default against any of these defendants.
RECOMMENDATION
The defendants raise a multitude of grounds for dismissal, including lack of subject matter jurisdiction, lack of personal jurisdiction, and improper venue, many of which, standing alone, dictate dismissal of this action. However, since this lawsuit represents plaintiff's latest of several attempts to seek relief on similar alleged causes of action, this recommendation will address most of the grounds asserted in the interest of insuring finality.
MOTIONS TO DISMISS
I. LACK OF SUBJECT MATTER JURISDICTION
Plaintiff invokes the following authorities as the legal and jurisdictional basis of his claims: the Federal Anti-Kidnapping Act, 18 U.S.C. § 1201; the Federal Hostage Taking Act, 18 U.S.C. § 1203; the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A; 18 U.S.C. § 2; the Federal Tort Claims Act, 28 U.S.C. § 1346(b); the Social Security Act (no provision specified); Social Services acts (no provision specified); the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution; 42 U.S.C. § 1983; 28 U.S.C. § 1331; 28 U.S.C. § 1332; 28 U.S.C. § 1346; and 28 U.S.C. § 1361.
A. Federal Question. Jurisdiction Generally
Federal question jurisdiction in the district courts is governed by 28 U.S.C. § 1331, which provides that "[t] he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Federal question jurisdiction will not lie where a plaintiff invokes a federal statute that does not provide a private right of action, or where a plaintiff otherwise fails to make a tenable claim under federal law. Smith v. Kansas City Title &. Trust Co., 255 U.S. 180, 199 (1921) ("where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the district court has jurisdiction") (emphasis supplied).
As a preliminary matter, the federal courts are not, except in rare instances not present here, proper forums for determination of domestic relations disputes, including custody rights. In re Burrus, 136 U.S. 586, 594 (1890). See also Neustein v. Orbach. 732 F. Supp. 333, 339 (E.D.N.Y. 1990), and cases cited therein. Since the Gist of plaintiff's claims concerns custody and guardianship determinations more appropriately left to state courts, this case, as a matter of judicial economy and deference to state courts for domestic relations matters, should not be heard by this federal court. Moreover, as discussed in greater detail below, none of the statutes or claims cited by plaintiff provided any basis for this Court to extend federal jurisdiction over the issues herein.
1. Private Right of Action
Suffice it to say that the criminal statutes invoked by plaintiff, the Federal Anti-Kidnapping Act, 18 U.S.C. § 1201; the Federal Hostage Taking Act, 18 U.S.C. § 1203, and 18 U.S.C. § 2 do not provide for a private right of action. As noted by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975), there is rarely an implied private right of action under a criminal statute.
Cort v. Ash applied four factors to determine whether Congress intended to make a private remedy available under a criminal statute: (1) whether the statute was enacted for the benefit of a special class of which the plaintiff is a member; (2) whether there is any indication of legislative intent to create a private remedy; (3) whether such a remedy is consistent with the underlying purposes of the legislative scheme; and (4) whether a federal remedy would be inappropriate because the subject matter involves an area that is primarily of concern to the states. 422 U.S. at 78.
None of the factors necessary for implying a private cause of action can be found in any of the three criminal statutes cited by plaintiff. With regard to 18 U.S.C. § 1201, Giano . Martino, 673 F. Supp. 92, 95 (E.D.N.Y.), aff'd, 835 F.2d 1429 (2d Cir. 1987) held that the Federal Kidnapping Act was not intended to confer rights on victims of kidnapping, but rather, was enacted to assist states in enforcement of their kidnapping laws by making it impossible for kidnappers to avoid apprehension merely by moving their victims across state lines. 18 U.S.C. § 1203 was intended to prevent the taking of hostages in order to extort third parties or governmental organizations, and similarly was not intended to confer rights on the hostages. This reasoning is equally applicable to the Hostage Taking Act. In United States v. Carrion-Caliz, 944 F.2d 220, 223 (5th Cir. 1991), cert. denied, 112 S. Ct. 1573 (1992) . Last, 18 U.S.C. § 2 only provides that aiders and abettors may be punished as principals. This statute clearly would not of itself provide a private right of action.
While the Constitutional amendments and other federal civil statutes cited by plaintiff do provide a private right of action under the proper circumstances, those circumstances are not present in this case. They cannot, as it will be shown, afford plaintiff any relief on his claims to vest this Court with federal question jurisdiction.
The Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, was enacted to extend full faith and credit to child custody determinations and does not provide an implied cause of action in federal court. Thompson v. Thompson, 484 U.S. 174, 187 (1988) ("the context, language, and history of the PKPA together make out a conclusive case against inferring a cause of action in federal court to determine which of two conflicting state custody decisions is valid") . Even if there were a private right of action under that Act, this Court lacks jurisdiction to hear plaintiff's claims, which seek to overturn rather than enforce custody determinations.
A private right of action for the return of children abducted or wrongfully retained is conferred by 42 U.S.C. § 11601, et seq., International Child Abduction Remedies. This statute establishes procedures for the implementation in the United States of the Hague Convention on the Civil Aspects of International Child Abduction, dated October 25, 1980. Yet even if plaintiff had pleaded this statute as a jurisdictional basis, he could not invoke the statute in this case. The Convention requires that the lawful rights of custody at the time of removal and that the removal be from the child's habitual residence. Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991).
At the time of the removal, plaintiff no longer had lawful rights of custody according to the Virginia courts, and he has not alleged that he was awarded custody rights of his children in the United Arab Emirates, nor that the United Arab Emirates was their habitual residence. The reasons the court refused to imply a right of action are equally applicable here:
To equate the temporary removal and subsequent sequestration of the minor child to legal status of habitual residence in another country would be to reward Petitioner for her ability to conceal the child from the Respondent, her lawful, custodial parent. The Petitioner may not benefit from such conduct. 759 F. Supp. at 1435. More significantly, the United Arab Emirates is not a signatory to the Hague Convention. Since 42 U.S.C. § 11601 implements the Convention, it can only be invoked when the nation where the removal occurred is a signatory. Thus plaintiff could not bring a Claim pursuant to this statute.
2. 42 U.S.C. 1983
Claims under 42 U.S.C. § 1983 are applicable only to persons acting under color of state law. "It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State ... while acting in his official capacity or while exercising his responsibilities pursuant to state law." West v. Atkins, 487 U.S. 42, 49-50 (1988) ; Pagano v. Massapequa Public Schools is, 714 F. Supp. 641, 642 (E.D.N.Y. 1989). Private citizens, including litigants, their attorney, and guardians ad litem, however, are not considered state actors for the purposes of the "color of law" requirement of §1983. Antleman v. Lewis, 480 F. Supp. 180, 185 (D. Mass. 1979) . Nor are court-appointed doctors, Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied, 454 U.S. 1141 (1982), or nursing homes, Taylor v. St. Clair, 685 F.2d 982 (5th. Cir. 1982) Thus, the only defendants to whom this section could conceivably apply,: are the following state and municipal officials:
Judge Lawrence Janow, Judge Michael Gamble, Judge Sue H. Roe, Judge Richard S. Miller, Judge Dale Harris, William H. Petty, Barbara J. Gaden, Richard L. Groff, Amherst County Department of Social Services, James Oliver, Michael W. Cox, Officer F.D. McFarland, Officer Boyd L. Royer, Officer Dennis E. Lariviere, and Commander Earl Burnette.
[footnote 3] In Count IV of his complaint, plaintiff invokes this statute only with respect to the four Virginia statutes judges named as defendants; to Assistant Attorney General Barbara J. Gaden who defended Judge Janow previous action brought by plaintiff; and to defendants who are neither state nor municipal officials. pp. 285, 291. However, for the purposes of the motions under consideration, plaintiff's § 1983 claims will be construed as if they were directed at all the state and municipal officer defendants.
With respect to the judge defendants, plaintiff's monetary claim is barred by the doctrine of judicial immunity, which extends to § 1983 actions. Pierson v. Ray, 386 U.S. 547, 554 (1967). This immunity extends to any "judicial" act, which is defined as any act relating to a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978). Since all actions of the defendant judges complained of by defendant were in connection with the rendering of custody, guardianship and conservatorship determinations, the defendant judges are protected by judicial immunity. Plaintiff has also alleged that Judge Michael Gamble, a former law partner of Judge Lawrence Janow, once advised plaintiff to bring his custody suit in Amherst County, and that Judge Gamble also represented Alma Coates Dawson in her suit against plaintiff. This alleged judicial impropriety, even if proved, would not provide a basis for monetary damages against Judge Gamble. This immunity applies even when the judge is accused of acting maliciously or corruptly, and it is not for the benefit of a malicious or corrupt judge, for the benefit of the public, whose interest it is that judges should he at liberty to exercise their functions with independence and without fear of consequences. Pierson, 386 U.S. at 554.
With respect to Barbara Gaden, plaintiff's monetary claim is barred by the doctrine of prosecutorial immunity since her role was simply that of "presenting the State's case." Imber v. Pachtman, 424 U.S. 409, 425 (1976).
[footnote 4] The exceptions to absolute prosecutorial immunity in § 1983 actions recognized zed by the Supreme Court in Buckley v. Fitzsimmons, No. 91-7849, 1993 WL 218293 (June 24, 1993) are not applicable here.
Even if plaintiff could properly sue some or all the defendants under § 1983, the statute does not confer federal jurisdiction to overturn state court child custody rulings. Staley v. Ledbetter, 837 F.2d 1016, 1018 (:11th Cir. 1988); Anderson v. Colorado, 793 F.2d 262, 264 (10th Cir. 1986); Neustein v. Orbach, 732 F. Supp. 333, 339 (E.D.N.Y. 1990). Because plaintiff's claims again t the Amherst County Department of Social Services and its directors are based upon custody rulings, these claims are also not within the jurisdiction of this court. As for the Lynchburg police officers who arrested plaintiff, their actions were all in compliance with custody order the legitimacy of these arrests cannot be adjudicated without ruling upon the custody orders, which this Court has no jurisdiction to do. Therefore, this Court lacks jurisdiction to rule upon plaintiffs § 1983 claims against the police officers.
3. Federal Tort Claims Act
This Court also lacks jurisdiction under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 1346 (b) . The FTCA provides a remedy only against the United States, an not individual federal officers serving in their official capacity and within the scope of their employment. Rivera v. United States, 928 F.2d 592, 608-609 (2d Cir. 1991); Boyce Untied States, 523 F. Supp. 1012, 1016 (E.D.N.Y 1981). The FTCA confers absolute immunity upon an federal employee where there is a reasonable connection between the act and the agent's duties and responsibilities, and where the act is not manifestly beyond the agent's authority. Yalkut v. Gemignani, 873 F.2d 31, 34 (2d Cir. 1989).
Plaintiff has not alleged that Stephen R. Pattison, Edin Brown, Eileen F. Lewison, William Crawford, and Marlee Anderson, the federal consular officers stations in Thailand, Sri Lanka, the United Arab Emirates, and Washington, D.C. at the time of the events at issue, war acting manifestly outside their official capacity. Therefore, the only proper defendant would be the United States of America, which plaintiff has failed to name. Even if he had sued the United States, this Court lacks jurisdiction of the claims against the Federal Defendants, whose acts occurred in Thailand, Sri Lanka, and the United Arab Emirates, because the FTCA does not apply to any claim arising in a foreign country. 28 U.S. C. § 2680 (k); Smith v. United States, 113 S. Ct. 1178 (1992), Broadnax v. United States Army, 710 F.2d 865, 867 (D.C. Cir. 1983).
Moreover, plaintiff has failed to exhaust administrative remedies by failing to file an administrative claim as required by 28 U.S.C. § 2675 (a) . This section provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, less the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
The filing of such an administrative claim with the appropriate agency is an unwaivable jurisdictional prerequisite to suit in federal court under the Tort Claims Act. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864 (1983) . This is a procedural requirement that cannot be overlooked even for plaintiffs who are represented. McNeil v. United States, 113 S. Ct. at 1984. Therefore, this Court lacks jurisdiction over plaintiff's claims against the Federal Defendants.
4. Other Federal Statute. and Constitutional Claims
None of the other statutes cited by plaintiff provides a basis for federal jurisdiction. He has only generally referred to the Social Security Act or the "social services acts", and has neither cited a specific authority for jurisdiction nor stated a valid claim under these acts so as to confer jurisdiction upon this Court.
Nor do the Constitutional amendments cited by the plaintiff serve to confer jurisdiction over the claims against the Federal Defendants. In order to make a Constitutional claim against any of the federal government officials, plaintiff would have to demonstrate that they deprived him of rights, privileges or immunities under the United States Constitution. Plaintiff must do more than merely invoke Constitutional amendments in order to bring an action based on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Such actions. may be maintained only against individuals acting beyond and abusing their official duties. Boyce, 523 F. Supp. at 1016.
Plaintiff has cited the First, Fourth, Fifth, Ninth Fourteenth Amendments to the Constitution as the source of rights alleged denied. He has alleged of his Fifth and Fourteenth Amendment due process with respect to Shamema's adoption hearing and his arrests. He has also alleged violations of his and his children's First Amendment religious rights in that their guardians are raising them as Christians rather than Muslims. Yet plaintiff fails to specify which amendments the federal officers are alleged to have violated or how their rather attenuated roles in the alleged conspiracies have deprived him of his rights Thus, with respect to the Federal Defendants, plaintiff's citation of Constitutional amendments, without more, do not confer jurisdiction upon this Court.
5. Habeas Corpus
In addition, this court lacks jurisdiction consider plaintiff's a application for a writ of habeas corpus and to reconsider the custody determinations concerning his children.
In Lehman vs. Wyoming County Children's Services Agency, 458 US 502 (1982), the Supreme Court "refused to extend the writ of habeas corpus to confer jurisdiction on federal courts to consider collateral challenges to state court judgments that involuntarily terminate parental rights." See Neustein, 732 F. Supp. at 430. The reasoning underlying Lehman is also applicable to state court guardianship conservatorship judgments. Thus, this Court lacks jurisdiction to issue the writ of habeas corpus that plaintiff seeks.
For the reasons discussed above, none of the federal statutes or Constitutional amendments cited by plaintiff can properly confer federal question jurisdiction upon this Court.
B. Diversity Jurisdiction
In the absence of federal question jurisdiction, subject matter jurisdiction would lie only if there were diversity jurisdiction, governed by 28 U.S.C. § 1332(a)(1) . This statute confers original jurisdiction federal district courts "where the matter in controversy exceeds the sum or value of $50,000 exclusive of interest of and costs, and is between .... citizens of different states." For the purpose of U.S.C. § 1332, a person is a "citizen of a state" if he or she is a citizen of the United States and a domiciliary of a state of the United States. Gibbons v. Udaras na Gaeltachta, 549 F Supp. 1094, 1116, n. 12 (S.D.N.Y. 1982); Kaufman & Broad v. Gootrad, 397 F. Supp. 1054, 1055 (S.D.N.Y. 1975). In order for diversity jurisdiction to exist there must complete diversity, meaning that no plaintiff can be resident of the same state as any defendant. Strawbridge v. Curtiss, 7 U.S. (3 Cranch ) 267 (1806). Plaintiff is a United States citizen; he was allegedly domiciled in New York when he brought this suit and is currently domiciled in Virginia. Since there are non-diverse defendants in either state, i.e., Sharon Haberer in New. York, and a plurality of the defendants in Virginia, there can be no diversity jurisdiction in this action.
Because neither federal question nor diversity jurisdiction properly lies in this Court, it is recommended that the complaint be dismissed pursuant to Fed. R. Civ. P. 12(b)(1).
II. LACK OF PERSONAL JURISDICTION
With regard to personal jurisdiction, the plaintiff has not indicated why this Court can assert personal jurisdiction over the majority of defendants who are not residents of New. York. In order for a court to extend personal jurisdiction over a non-resident defendant, the plaintiff must establish a constitutionally sufficient relationship between the defendant and the forum. Omni Capital International, Ltd. v. Co. 484 U.S. 97 (1987). New York's long-arm statute, New York Civil Practice Law and Rules ("CPLR") § 302, is more restrictive than the Due Process Clause of the Fifth Amendment; it provides that non-domiciliary acts forming the basis of personal jurisdiction are limited to 1) transacting business or contracting to provide goods or services within the state; 2) committing a tortuous so within the state; 3) committing an act without the state causing injury within the state; or 4) owning real property within the state. Pappas v. Arfaras, Supp. 307, 311 (E.D.N.Y. 1989). Plaintiff has made no allegations that would confer upon this Court person jurisdiction over any of the non-resident defendants the basis of the above factors, and therefore it is recommended that this action be dismissed as to them for recommends for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2).
[footnote 5] Plaintiff provides as a mailing address "for the purposes of this case": 50 Broad St., Suite 2266, New York, New York. par. 39. He also alleges that he has a residence in Brooklyn, but does not provide an address.
[footnote 6] Only Sharon Haberer, Northwest Airlines, Trans World Airlines, and Sanctuary for Families apparently are present in New York for the purposes of jurisdiction.
III INSUFFICIENT SERVICE OF PROCESS
Fed. R. Civ. P. 4(c)(2)(C)(ii) provides that service by mail may be accomplished in the following manner:
[B]y mailing a copy of the summons and of the complaint (by first class mail postage pre-paid) to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Form 18-A and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this subdivision of this rule is received by the sender within 20 days after the date of the mailing, service of such summons and complains shall be made under subparagraph (A) or (B) [personal service] of this paragraph in the manner prescribed by subdivision (d) (1) or (d) (3) [at individual's dwelling house or to corporations authorized agent.]
Because the majority of defendants are not New York State residents, they should have been served in accordance with Fed. R. Civ P. 4 (e), which provides that if there is no provision for service in a federal statute, service may be made according to state statute or rule. New York CPLR 312 (a) provides:
Service. As an alternative to the methods of personal service authorized by section 307, 308, 310, 311 or 312 of this article, a summons and complaint, or summons and notice, or notice of petition and petition may be served by plaintiff, the plaintiff's attorney or an employee of the attorney by mailing to the person or entity to be served, by first class mail, postage prepaid, a copy of the summons and complaint, or summons and notice, or notice of petition and petition, together with two copies of a statement service by mail and acknowledgment of receipt in the form set forth in subdivision (D) of this section, with a return envelope, postage prepaid, addressed to the sender.
The court records do not contain proper returns of service, and plaintiff has not disputed the contentions of many defendants that he failed to serve the defendants with a postage prepaid envelope or to follow up with personal service as prescribed above. In addition, personal service on a number of defendants was not effected more than 120 days after September 25, 1992 filing of the complaint. Fed. R. Civ. P. 4 (j) provides that in such circumstances, the complaint shall be dismissed as to those defendants unless the plaintiff can show good cause why service was not made within the period. Therefore the complaint should be dismissed as to all defendants improperly served by mail or served outside the 120-day period for insufficiency of service a process in accordance with Fed. R. Civ. P. 12 (b) (5).
IV IMPROPER VENUE
28 U. S. C. § 1391(b) provides that a civil action not founded solely on diversity of citizenship must be brought in:
(l) [A] judicial district where any defendant resides, if all defendants reside in the same state (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject is situated, or (3) a judicial district in which any defendants may be found, if there is no other district in which the action be brought.
Plaintiff has not alleged that all of the defendant reside in the Eastern District of New York -- only four of 65 defendants are present in New York -- nor has he alleged that there is no other judicial district in which the action may otherwise be brought. In fact, a plurality of defendant, reside in Virginia and the remainder in South Carolina and various foreign countries. Indeed, plaintiff has previously filed several actions in Virginia state and federal courts, all of which have been dismissed.
[footnote 7] The court records indicate that the following defendants acknowledged receipt of service of the summons after the expiration of the 120-day period: Sharon Haberer, W. Cassel Jacobson, the Mattie C. Hall Health Care Center, the United States Department of State, Creighton W. Sloan, Trans World Airlines, Dr. Khawaja Mahmood, Cecil W. Taylor, and Shelby Roberts.
In addition, plaintiff has failed to demonstrate that a substantial part of the events giving rise to his claims occurred in the Eastern District of New York. The only allegations in the complaint concerning events occurring within this district are "the fact that all of them [plaintiff's mother and three children] arrived in the United States of America .... at Kennedy Airport," par. 14, and that defendant Sharon Haberer lives and had custody of Michael Sloan in New York. These allegations are insufficient to establish venue in this district since the overwhelming majority of vents giving rise to the claim in the Complaint occurred in Virginia, South Carolina, the United Arab Emirates, and Thailand. Campbell v. Nowlin, No. 92 Civ. 4177, 1993 WL 205127, at *7 (S.D.N.Y. June 9, 1993). Plaintiff's claim that "plaintiff Ismail Sloan presently maintains a residence in Brooklyn" is not relevant to the venue statute, which looks to residence solely of the defendants. Therefore it is recommended that the complaint also be dismissed for improper venue in accordance with Fed. R. Civ. P. 12 (b) (3).
V. FAILURE TO STATE A CLAIM
Even if this Court had subject matter jurisdiction to hear plaintiff's complaint and personal jurisdiction over all the parties, and even if venue were properly within this district, this Court should still dismiss the complaint for failure to state a claim upon which relief can he granted, pursuant to Fed. R. Civ. P. 12 (b) (6) . It is well established that a court, in passing on a motion to dismiss, should construe the allegations of the complaint in favor of the plaintiff and should not grant such a motion unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim for relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Stinnes Interoil Inc. v. Apex Oil Co., 604 F. Supp. 978 (S.D.N.Y. 1985).
Plaintiff is essentially seeking to reverse the determinations regarding custody of Shamema Sloan and Michael Sloan, the guardianship of his mother, and the conservatorship of his mother's assets, characterizing the results at these decisions as kidnappings and conversion. Despite these designations given by plaintiff, he has failed to state a claim for relief under any cognizable theory of liability for intentional tortuous conduct.
The "kidnappings" described by plaintiff, read in the light most favorable to plaintiff, may be intended constitute a claim of tortuous interference with person or false imprisonment. However. a prima facie claim of such tortuous interference requires that the interference be unlawful conduct, without legal authority. See W. Page Keeton et al., Prosser and Keegan on the Law of Torts, at 50, 52 (5th ed. 1984) ; see also F.B.C. Stores, Inc. v. Duncan, 198 S.E.2d 595, 598 (Va. 1973), 389 S.E 2d 662, 663 (S.C. 1990). Plaintiff admits in the complaint that his daughter Shamema was returned to the custody of the Robe pursuant to an order of the Amherst County Juvenile Domestic Relations Court. However, he claims that daughter Shamema was kidnapped because the Amherst County Juvenile and Domestic Relations court lacked jurisdiction over Shamema's custody hearing and therefore n had no legitimate power to issue a detention order for Shamema or an arrest warrant for Plaintiff. Plaintiff own statements amply show that the court did indeed have a right to enter the custody decision.
Plaintiff voluntarily placed Shamema in the care of Shelby Roberts in 1982 and later submitted to the jurisdiction of the Amherst County Juvenile and Domestic Relations Court when he filed his petition for custody of Shamema on January 13, 1986. During the period after his departure from the United States in 1986, plaintiff was in communication with his attorney, Stephen Martin, who informed him that failure to return Shamema from visitation would be a violation of the April 2, 1986 court order, since the Roberts still had the rights of physical custody until September 7, 1986. Stephen Martin also informed him at this time that the Court had authority by statute to place Shamema in the custody of whomever the Court felt was in her best interest, but that "I believe that I was never able to convince Mr. Sloan that a Court has the right to place custody at least temporarily with anyone based on the best interest of the child, even if that person is not a party to this action and has not filed any kind of petition for custody. Letter from Stephen Martin to David B. Bice -- plaintiff's defense attorney in the attempted abduction case dated January 28, 1993. Plaintiff's assertions that the Amherst County Juvenile and Domestic Relations Court violated due process is simply based on his disagreement with the awarding of temporary custody of Shamema to the Amherst Department of Social Services, a non-party to the custody proceeding, and his refusal to accept that a court could find that the "best interest of the child could result in granting custody to non-parties. Similarly, his charge that Shelby Roberts lacked standing to sue for custody is unfounded.
[footnote 8] This letter was included as an attachment to Mr. Sloan's letter of April 18, 1993.
As mentioned above, on September 4, l986, the court rescinded that portion of the August 25 order that gave physical custody of Shamema to plaintiff effective September 7 and left physical custody either with the Roberts after that date, or with the Amherst Count Department of Social Services "with leave to place the child with any suitable persons, including Charles a Shelby Roberts." Plaintiff might not have been aware this order, but he should have known that depriving the Roberts of visitation rights after that date was a violation of the April 2 order. He also should have known that the April 2 order, still in effect as of August 25, 1986, prohibited the removal of Shamema from the Commonwealth of Virginia without a court order. Plaintiff's act of removing Shamema from Virginia clearly in violation of court order, and the Roberts were thus properly authorized by the court to seek to regain physical custody of her abroad. Upon Shamema's return to the United States, the Amherst County Juvenile a Relations Court had continuing jurisdiction over the custody dispute despite her four-year absence; plaintiff could not use his unlawful removal of Shamema from Virginia as a basis of stripping a Virginia court jurisdiction.
With respect to plaintiff's claims alleging kidnapping of his mother and the misappropriation of funds, plaintiff has similarly failed to state a claim upon which relief can be granted. Again, the actions defendant that plaintiff seeks to overturn were pursuant to lawful process. Prosser and Keeton, at 102. Plaintiff admits that Dr. Sloan gave power of attorney his brother, Creighton Sloan, in North Carolina in 1984. He also admits that on January 2, 1987, Judge Richard .Miller signed a decree ordering that the attempted revocation of Creighton Sloan's power of attorney ineffective and that Sovran Bank should honor directives as attorney in fact for Helen Marjorie Sloan. A Virginia court was authorized to recognize a power attorney given in another state. With respect to the April 12, 1991 opinion and order of Sue H. Roe, Probate Judge of Aiken County, South Carolina, finding that Dr. Sloan was legally incapacitated as a result of Alzheimer's disease and award guardianship to her son, Creighton Wesley Sloan, and appointing the N.C.N.B. Bank a conservator of her property, plaintiff has failed to make any but speculative allegations as to this decision's unlawfulness.
Simply put, despite his claims of conspiracies to kidnap his mother or Shamema, none of these allegations state a cognizable claim for relief. At the time of their return to the United States, he had no rights of custody or guardianship over them; state courts had properly invested these right. in other parties, who had the right to seek governmental help in returning Dr. Sloan and Shamema to the United States.
Besides failing to state substantive claims against the defendants, plaintiff has no claim against any defendants for their roles in the conspiracies alleged. The mere conspiracy to commit a tort is never of itself a cause of action. Alexander & Alexander, Inc. v. Feritzen, 68 N.Y.2d 968, 919, 510 N.Y.S.2d 546, 457 (1986); see also Stauffer v. Fredericksburg Ramada, Inc., 411 F Supp. 1136, 1139 (E.D. Va. 1976) (conspiracy is not a tort in itself"); Lee v Chesterfield General Hospital, 344 S.E.2d 379, 382 (S.C. APP, 1986) ("the gravament of the tort is the damage, not the agreement or combination per se").
VI. AFFIRMATIVE DEFENSES
A. Abstention
With respect to plaintiff's claim for injunctive relief, it is clear that he is seeking federal interference with state court decisions. The District Court for the Western District of Virginia relied on the federal abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), in dismissing plaintiff's similar action before that court. Younger held that a federal court could not interfere with a pending state criminal prosecution. Id. at 54. This doctrine has subsequently been extended to state civil actions. Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432 (1982) ("[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved ) Ohio Civil Rights Commission v. Dayton Christian Sch., Inc., 477 U.S. 619, 628 (1986); Penzoil Co. v. Texaco Inc., 481 U.S. 1, 10 (1987).
Factors to he considered in determining whether abstention is appropriate with regard to a pending state civil proceeding are: "(1) whether a state civil procedure is pending at the time the federal litigation is commenced; (2) the magnitude of the state's interest in the proceeding; and (3) whether the federal plaintiff had the opportunity to litigate the federal issues in state court." Neustein, 732 F. Supp. at 341, citing Christ the King Regional High School v. Culvert, 815 F.2d 219, 224 (2d Cir. 1986), cert. denied, 484 U.S. 830 (1987); Donkor v. New York Human Resources Administration Special Services for Children, 673 F. Supp 1221, 1225 (S.D.N.Y. 1987).
In May of 1992, at the time plaintiff commenced this action, plaintiff was in the process of appealing several the first of his state court actions, and therefore requirement for abstention is satisfied. In addition, custody decisions are always subject to reopening. It is well established that matters pertaining to domestic relations such as custody and guardianship issues are important state interests, Moore v. Sims, 442 U.S. 415 (1979), and therefore the second requirement is satisfied. Finally, Plaintiff had a full opportunity to litigate the federal issues in his previous state actions See Sec. VI.B. infra. It is therefore recommended that this Court also dismiss plaintiff's claims generally and his claim for injunctive relief against the state court custody proceeding on federal abstention grounds.
B. Res judicata and Collateral estoppal
Moreover, plaintiff is estopped from bringing claim already adjudicated in prior state litigation. In Kelleran v. Andrejevic, 825 F.2d 692, 694 (2d Cir 1987), cert. denied, 484 U.S. 1007 (1988), the Second Circuit held that a federal court must give preclusive effect to a state court judgment even where that judgment was issued on the basis of default and not decided upon the merits. Indeed, in Kelleran, the Second Circuit applied res judicata even where it found the underlying state court judgment was almost certainly erroneous. See also Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 85, (1984) (Section 1983 does not permit federal court to override preclusive effect of state judgment).
Plaintiff has acknowledged that he has pursued every known legal remedy to get his family back, including the filing of suits, mandamus petitions, and motions for writs of prohibition. par. 255. He has been unsuccessful in all of these prior actions to obtain the relief he now seeks, The record indicates that another federal district court already dismissed plaintiff's case on Younger abstention grounds. The previous state court actions addressed plaintiff's claims regarding the custody of Shamema and the power of attorney over Helen Marjorie Sloan. One case specifically determined that there was no basis for plaintiff's allegations of Judge Janow's participation in a conspiracy to kidnap his children. See Sloan v. Janow et al., No. 3937 (Amherst County Circuit Court, order entered November 27, 1991), slip op at 1, 4, 6, quoted in Procedural Background and Prior Actions, supra. For this reason, it is recommended that those claims pertaining to the custody dispute regarding Shamema and any allegations of a conspiracy to kidnap plaintiff children or mother or to steal his mother's assets -- which were fully adjudicated in state court be dismissed by reason of res judicata.
C. Lack of standing to sue on behalf of other named plainitffs.
While courts have acknowledged a parent's a standing sue to secure a fundamental liberty interest in the care, custody, companionship, upbringing, and education of his or her children, Stanley v. Illinois, 405 U.S. 645 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972), such standing is dependent upon legal custody rights, while plaintiff clearly lacked both the Commencement of the suit and at this time.
There is no comparable case or statutory conferring standing to sue on behalf of one's parents. In D'Ippolito v. Cities Service Co., 374 F.2d 643, 647 (2d Cir. 1967), the court held that "New York law is applicable under Fed. R. Civ. P. 17(b) which provides 'capacity to sue or be sued shall be determined by the law of the state in which the district court is held'." New York CPLR § 1201 provides: "a person judicially adjudicated to be incompetent shall appear by the committee of his property, and a conservatee shall appear by the conservator of his property." CPLR § 1201 also provides that the court may appoint a guardian ad litem for any person who is incapable of adequately prosecuting his or her rights. Since a Virginia court upheld Creighton Sloan's power of attorney given by Helen Marjorie Sloan, a South Carolina court awarded Creighton Sloan guardianship of Dr. Sloan, and no court has appointed plaintiff guardian ad litem, plaintiff has no basis to claim standing to sue on her behalf. Even if plaintiff had a valid power of attorney from his mother, he would still not have the authority to assume the pro se legal representation of her. Nor can he represent any of the other plaintiffs on hose behalf he purports to have filed this action. See Oxendine v. Williams, 509 F 2d 1405 1407 (4th Cir. 1975) ("we consider the competence of a layman representing himself to be clearly too limited to allow him to risk the rights of others"); In re Estate of Friedman., 126 Misc. 2d 344, 482 N.Y.S.2d 686 (1984); Stokes v. Wurtsboro, 123 Misc. 2d 694, 474 N.Y.S. 2d 660 (1984). For this reason, it is also recommended that all claims brought on behalf of plaintiffs other than M. Ismail Sloan be dismissed.
NON-APPEARING DEFENDANTS
With respect to the defendants who have failed to appear, this court has the power sua sponte to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. As discussed in point I, supra, plaintiff has cited U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1332 (diversity jurisdiction), 28 U.S.C. § 1346 (United States as defendant), and 28 U.S.C. § 1361 (action to compel an officer of the .United States to perform his duty) in support of the subject matter jurisdiction of this court. Because none of the non-appearing defendants includes federal officers or the United States, the last two statutes are irrelevant to the claims again the non appearing defendants. Because no complete diversity .exists, 28 U.S.C. § 1332 does not apply. Thus this court could retain jurisdiction over the non-appearing defendants only if a valid federal question in raised. Since the above analysis indicates that none of the federal statutes cited by plaintiff supports a colorable claim, it is recommended the complaint against all the non-appearing defendants be dismissed as well.
[footnote 9] Plaintiff has also cited 42 U.S.C. § 1983. However, this is not a jurisdictional statute. It does not confer jurisdiction upon federal courts. Envirotech Sanitary Systems, Inc. v. Shoener, 745 F.Supp. 271, 273 n. 1 (M.D. Pa. 1990)
PLAINTIFF'S MOTIONS
Since the complaint should be dismissed for all the reasons discussed above, it is accordingly recommended that plaintiff's motions for appointment of counsel, a temporary restraining order, and preliminary injunction be denied.
MOTION FOR INJUNCTIVE RELIEF
With respect to defendant NationsBank's motion for a permanent injunction, it is recommended that this motion be denied because an injunction may no longer be necessary in light of the fuller exposition of the history and the issues in this action, which would provide guidance to courts in future proceedings. Moreover, Mr. Sloan is now incarcerated and lacks the freedom, resources and mobility he had in the past when he commenced this other lawsuits.
REQUEST FOR RULE 11 SANCTIONS
With respect to defendant Creighton W. Sloan's request for Rule 11 sanctions, this Court notes that Section IV of the Civil Justice Expense and Delay Reduction Plan of the Eastern District of New York requires that a party seeking sanctions pursuant to Fed. R. Civ. P. 11 must give timely notice to the alleged violator at the time the alleged violation is committed. The plan also requires that a Rule 11 motion be filed separately from other motions. Since Creighton Sloan has failed to meet either of these requirements, it is recommended that his request for Rule 11 sanctions b denied at this juncture.
CONCLUSION
In summation, it is recommended that the complaint dismissed for lack of subject matter jurisdiction since the federal statutes and Constitutional amendments cited do not provide federal question jurisdiction and there not complete diversity; for lack of personal jurisdiction over the non-New York defendants; for insufficient service of process over most defendants; for improper venue; for failure to state a claim upon which relief can be granted and on grounds of federal abstention, a lack of standing to sue on behalf of other named plaintiffs.
Any objections to this Report and Recommendation must he filed with the Clerk of the Court, with a copy to the undersigned, within ten (10) business days of receipt of this Report, at the latest, by July 23, 1993. Failure to file objections within the specified time waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
SO ORDERED.
Dated: Brooklyn, New York
June 28, 1993
-----------------------------------
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE
Copies of the foregoing Report and Recommendation were this day
sent to;
M. ISMAIL SLOAN
Plaintiff Pro Se
No. 204991
Powhatan Correctional Center
State Farm, VA 23160
GREGORY E. LUCYK, ESQ.
Senior Assistant Attorney
General
Attorney for Defendants
JUDGE LAWRENCE JANOW, JUDGE MICHAEL GAMBLE, JUDGE RICHARD S. MILLER, JUDGE DALE HARRIS, AND ASSISTANT ATTORNEY GENERAL BARBARA J. GADEN
Office of the Attorney General of the Commonwealth of Virginia
101 North Eighth Street
Richmond, Virginia 23219
MICHAEL J. WILDES, ESQ.
Special Assistant U.S. Attorney
Attorney for Defendants STEPHEN R. PATTISON, EDIN BROWN, EILEEN F. LEWISON, WILLIAM CRAWFORD, MARLEE ANDERSON, AND UNITED STATES DEPARTMENT OF STATE
Eastern District of New York
One Pierrepont Plaza, 11th Fl
Brooklyn, New York 11201
JOHN S. McGOWAN, ESQ.
AMON & SABATINI
Attorneys for Defendants
WILLIAM H. PETTY, RICHARD L. GROFF, JAMES OLIVER, AMHERST COUNTY DEPARTMENT OF SOCIAL SERVICES, MICHAEL W. COX, OFFICER F.D. McFARLAND, OFFICER BOYD L. ROYER, OFFICER DENNIS E. LARIVIERE, AND COMMANDER EARL BURNETTE
437 Madison Avenue
New York, New York 10022
MICHAEL A. KNOERZER, ESQ. WERNER &: KENNEDY
Attorney for Defendant
NATIONSBANK AND MASSIE G. WARE, JR.
1633 Broadway
New York, New York 10019
JOHN A. McMANUS, ESQ. CONWAY, FARRELL, CURTIN &: KELLY, P.C.
Attorneys for Defendants
WILLIAM H. TUCKER, PAIGE WEEKS JOHNSON, AND SUE H. ROE
53 Wall Street
New York, New York 10005
MICHAEL T. WALSH, ESQ.
HEIDELL, PITTONI, KURPHY & BACH, P.C.
Attorneys for Defendants MELVIN L. HAAS, M.D. AND SHEILA I. MILOT, M.D.
99 Park Avenue
New York, New York 10016
STACEY ATHANS DEMAS, ESQ.
GRAHAM & JAMES
Attorneys for Defendants
NORTHWEST AIRLINES, INC. AND
TRANSWORLD AIRLINES
865 Third Avenue
New York; New York .100.22
LAWRENCE O. KAMIN, ESQ.
WILLKIE FARR & GALLAGHER
Attorneys for Defendant
SANCTUARY FOR FAMILIES, INC.
One Citicorp Center
153 East 53rd Street
New York, New York 10022
FRANK G. DAVIDSON III, ESQ.
Defendant Pro Se
DAVIDSON, SAKOLOSKY & RICHARDS, P.C.
P.O. Box 798
Lynchburg, Virginia 24505
CREIGHTON WESLEY SLOAN
Defendant Pro Se
102 Indian Creek Trail
Aiken, South Carolina 29803
CECIL W. TAYLOR, ESQ.
Defendant Pro Se
MARTIN, TAYLOR & PERROW
1000 Church Street, Site 200
Lynchburg, Virginia 24505
KHALID M. AZAM, ESQ
Attorney for Defendant
DP. KHAWAJA MAHMOOD
74-09 37th Avenue, Suite 303
Jackson Heights, New York 11372
SHELBY H. ROBERTS
Defendant Pro se
420 Amelon Road
Madison Heights, Virginia 24572
J. THOMPSON, JR., ESQ.
CASKIE & FROST
Attorneys for Defendants
GEORGE C. WALKER, JR. AND JOHN STEWART WALKER, INC.
2306 Atherholt Road
P.O. Box 6360
Lynchburg, Virginia 24505
LEIGHTON S. HOUCK, ESQ.
Defendant Pro Se
CASKIE & FROST
2306 Atherholt Road
P.O. Box 6360
Lynchburg, Virginia 24505
LINDA W. GROOME, ESQ.
Defendant Pro Se
Courtside Athletic Building
1204 Fenwick Drive, Suite 108
Lynchburg, Virginia 24502