REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Lewis A. Kaplan, United States District Judge:

Pro se plaintiff John T. Chase's complaint in this Court alleges various claims stemming from his New York state divorce and child custody proceedings, against Family Court Judge Paul Czajka; plaintiff's former wife Kristin Chase Fernandez; Columbia County Investigator Skype; Columbia County Sheriff Walter Shook; Columbia Count; Barbara Scarduzio; and his former mother-in-law Frances Fernandez, pursuant to 42 U.S.C. § 1983. (See generally Dkt. No. 1: Compl.) Presently before the Court is defendants' motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. Nos. 12-14, 25-27.) For the reasons set forth below, defendants' motion to dismiss should be granted and plaintiff Chase's complaint should be dismissed. as to all defendants, principally under the Rooker-Feldman doctrine.

FACTS

Besides Fernandez, Chase has sued: Judge Paul Czajka, Family Court Judge in Columbia County (Compl. ¶¶ 3, 11), Columbia County Sheriff's Investigator Skype (Compl. ¶ 5), Columbia County Sheriff Walter Shook (Compl. ¶¶ 6), Columbia County itself (Compl. ¶ 7), Barbara Scarduzio, the Chase's babysitter in Columbia County (Compl. ¶ 8), and Fernandez's mother, Frances Fernandez (Compl. ¶ 9).

According to Chase, in or about May 2003, Fernandez "began a plot to extort money and take control of the Kinderhook property from [Chase] by going to Nassau County in Long Island to the home of her mother . . . for the filing of a Divorce against [Chase] in Nassau County, but specifically did not serve [Chase] with any papers or notify him in any way of this Action." (Compl. ¶ 20.) Chase further asserts that Fernandez's mother "embarked on [a] scheme" with Fernandez to extort money from Chase and "discredit his character and business reputation." (Compl. ¶ 21.)

Chase also asserts that Fernandez conspired with defendant Family Court Judge Paul Czajka to obtain an "Ex Parte Order of Protection" issued on September 23, 2003, barring Chase from his home and son. (Compl. ¶¶ 25, 44; see also Compl. ¶¶ 28-32.) When Chase was allowed into his home approximately one month later under police supervision, he alleges that he discovered that "nearly $80,000.00 or more in Business Phone Card Inventory [was] missing" along with confidential business information and records. (Compl. ¶ 34.)

Chase's complaint is replete with discussion about the state court divorce and child custody proceedings. (E.g., Compl. ¶¶ 3, 11-15, 18-19, 25-33, 35-43, 45-48.)

In connection with the above factual allegations, Chase asserts that: (1) defendants Fernandez and Judge Czajka conspired in a scheme to extort his money and property and deny him contact with his son (Compl. ¶¶ 45-48); (2) Fernandez slandered, libeled and defamed Chase by making false allegations of child sexual abuse (Compl. ¶¶ 50-52); (3) Fernandez intentionally inflicted emotional distress on Chase by conspiring against him and defaming him with false allegations of child sexual abuse (Compl. ¶¶ 54-55, 59-60); (4) defendant Columbia County Sheriff's Investigator Skype conspired against Chase to derail a criminal investigation of Chase's allegations of bank fraud and embezzlement against Fernandez (Compl. ¶¶ 64-66); (5) defendant Columbia County Sheriff Walter Shook "tacitly authorized the action and conduct of Defendant Skype" (Compl. ¶ 71); (6) Columbia County, as a state actor, is liable for the acts of Family Court Judge Czajka (Compl. ¶¶ 75-79); (7) defendant Barbara Scarduzio, a friend of Fernandez and their child's babysitter, acted in common with Fernandez in a scheme to extort and defame Chase through allegations of child sexual abuse (Compl. ¶¶ 82-85); and (8) Fernandez' mother Frances Fernandez conspired with her daughter to extort money from and defame Chase. (Compl. ¶¶ 88-89.)

PROCEDURAL HISTORY OF THE FERNANDEZ-CHASE MATRIMONIAL CHILD CUSTODY CASE

Chase commenced a matrimonial (divorce) action in New York Supreme Court, Albany County, on October 8, 2003. (Schmidt Aff. ¶ 12; see Compl. ¶ 33.)

In February 2004, an Article 10 neglect proceeding was brought against Chase by the Columbia County Department of Social Services. (Schmidt Aff. ¶ 7.) On March 4, 2004, in the Albany divorce action, Chase filed for custody relief, and Fernandez cross-moved for child support and maintenance. (Schmidt Aff. ¶ 2.) Justice Cannizzaro of Albany County Supreme Court referred the custody issue to Family Court, Columbia County, and the financial issues to Supreme Court, Columbia County. (Schmidt Aff. ¶ 2 Ex. A.) A hearing was conducted before defendant Family Court Judge Czajka on June 9, 2004, and in an oral decision Judge Czajka found Chase guilty of "neglect." (Schmidt Aff. ¶¶ 8-10 Ex. D.) Chase appealed the neglect order on September 9, 2004. (Schmidt Aff. ¶ 11 Exs. E-F.)

Chase has also commenced proceedings related to the Family Court matter. (See generally Schmidt Aff. ¶ 12.) Chase sought a writ of habeas corpus in Supreme Court, Columbia County, seeking custody of his child and to transfer the Family Court case before Judge Czajka to Supreme Court. (Schmidt Aff. ¶¶ 12 Ex. G.) On August 27, 2004, Judge Hummel denied Chase's request to transfer custody and visitation matters from Family Court to Supreme Court, noting that "[i]t is clear from this record that [Chase] is unhappy with Judge Czajka and his handling of the Family Court petitions as evidenced by his unsuccessful motion to disqualify Judge Czajka. . . . [Chase's] proper remedy lies in an appeal to the Appellate Division, Third Department. At this juncture [Chase] is engaged in 'judge shopping.'" (Schmidt Aff. Ex. H: Judge Hummel 8/27/05 Order at 4-5.) This Order also denied Chase's motion to disqualify his son's law guardian, and his motion for a writ of habeas corpus for custody over his son. (Id. at 5.)

Chase also filed two motions to recuse Judge Czajka and a motion for a second writ of habeas corpus. (Schmidt Aff. ¶ 14 Ex. I.) The first recusal motion was denied, but the second motion (after commencement of this lawsuit) resulted in Judge Czajka being relieved from the Chase v. Chase action, and the Family Court case was re-assigned to Judge Hummel. (Schmidt Aff. ¶ 15 Ex. J; Dkt. No. 22: Chase 12/20/04 Aff. ¶ 24 Ex.: 11/30/04 Order relieving Judge Czajka and appointing Judge Hummel.) Judge Hummel denied the habeas corpus petition on January 7, 2005. (Korenbaum Suppl. 1/12/05 Aff. ¶ 4 Ex. A: Judge Hummel 1/7/2005 Order.)

Family Court proceedings remain pending in Family Court, Columbia County, before Judge Hummel. (See Dkt. No. 27: Schmidt 1/7/05 Reply Aff. ¶ 4.)

CHASE'S AFFIDAVITS OPPOSING DEFENDANTS' MOTIONS TO DISMISS

Plaintiff Chase has submitted three affidavits in opposition to defendants' motions to dismiss. (Dkt. Nos. 22, 24, 29.) While arguing that defendants' motions should be denied, Chase's affidavits make clear that his present federal lawsuit is intended to raise the very matrimonial and child custody issues that have been decided and/or are pending in Columbia County Family Court.

For example, in opposing defendants' venue motion, Chase asserts that witnesses from Westchester Medical Center in this District are important witnesses, because they can testify that he did not sexually abuse his son and that Fernandez "coached" the child. (Dkt. No. 22: Chase 12/20/04 Aff. ¶¶ 10-13.) Chase also asserts that an employee of defendant Judge Czajka served papers on Chase in the divorce action and was "hanging out in [Chase's former] Kinderhook home" with Fernandez, and that "this conduct at the very least created an appearance of impropriety on the part of Defendant [Judge] Czajka in handling [Chase's] custody litigation." (Chase 12/20/04 Aff. ¶¶ 25-26; accord, Dkt. No. 24: Chase 12/30/04 Aff. ¶¶ 15-16.)

In his second affidavit, Chase asserts that Judge Czajka had a "conflict of interest" and that since Judge "Czajka has been relieved of all his obligations and duties relating to [Chase's] case, [Chase] believe[s] all of the underlying findings and orders by Defendant Czajka are now in question." (Dkt. No. 24: Chase 12/30/04 Aff. ¶¶ 4, 6.) Chase also asserts that his allegations in this case, about Fernandez's alleged attempts to extort money from him, and the testimony of personnel from Westchester Medical Center that he did not molest his son, have not been "determined or heard" in the matrimonial action. (Chase 12/30/04 Aff. ¶¶ 11-13; see also id. ¶¶ 17-18.) Chase protests that he is not seeking to litigate custody issues in the federal action, but rather to litigate over the wrongful conduct involved in the state court proceedings:

[I]t is not the issue of Custody that I am seeking to litigate in this Court as that is in state court. Instead, it is at least in part some of the wrongful conduct surrounding the custody determinations. . . .

(Chase 12/30/04 Aff. ¶ 14.)

Chase uses his final affidavit to respond at length to the allegations that he physically abused Fernandez and sexually abused his son (Dkt. No. 29: Chase 1/31/05 Aff. ¶¶ 7-73, 80-82 Exs. A-H, J-L) — the very issues involved in Family Court in Columbia County.

ANALYSIS

I. THE STANDARD GOVERNING A MOTION TO DISMISS

A district court should deny a Rule 12(b)(6) motion to dismiss "'unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quotingRyder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994). A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff.Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).

The "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 124 S. Ct. 532 (2003);see also, e.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *3 (S.D.N.Y. May 8, 2003); Tennant v. United States Bureau of Prisons, 02 CV 00558, 2003 WL 1740605 at *1 (D. Conn. Mar. 29, 2003).

A motion to dismiss challenges only the face of the pleading. Thus, in deciding a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v.Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)). The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Chambers v.Timer Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough."); Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."); see also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994);Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

The Court's role in deciding a motion to dismiss "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.). "'[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'"Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Saunders v.Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984)).

When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131;Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2004). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).

II. CHASE'S CURRENT FEDERAL CLAIMS ARE INEXTRICABLY INTERTWINED WITH HIS DIVORCE AND CUSTODY PROCEEDINGS AND THEREFORE ARE BARRED BY THE ROOKER-FELDMAN DOCTRINE

Although dressed up with assertions of conspiracy and defamation, the basis of Chase's complaint concerns decisions made or pending before the Family Court, Columbia County, in Chase's divorce and child custody proceedings. This Court lacks jurisdiction of such claims pursuant to the Rooker-Feldman doctrine.

The Rooker-Feldman doctrine prohibits federal district courts from reviewing final state court decisions arising out of judicial proceedings absent a federal statute (such as 28 U.S.C. § 2254 governing habeas corpus) specifically authorizing such review. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S. Ct. 1303, 1317 (1983) (federal district courts lack jurisdiction "over challenges to state court decisions . . . arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional"); Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-16, 44 S. Ct. 149, 150 (1923).

As the Second Circuit has explained: "The Rooker-Feldman doctrine . . . bars federal courts from considering claims that are 'inextricably intertwined' with a prior state court determination." Johnson v. Smithsonian Inst., 189 F.3d 180, 185 (2d Cir. 1999); accord, e.g., Pharr v. Evergreen Garden, Inc., No. 04-2066-CV, 2005 WL 181617 at *2 (2d Cir. Jan. 25, 2005) ("Under the Rooker-Feldman "inextricably intertwined" doctrine, "if a subsequent claim arises from the same 'factual grouping' as a previously resolved claim, the subsequent claim is barred, regardless of whether the two suits are based on 'different legal theory or seek different remedies.'");Swiatkowski v. Bank of America, No. 03-7895, 103 Fed. Appx. 431, 432, 2004 WL 1367927 at *1 (2d Cir. June 17, 2004) ("TheRooker-Feldman doctrine bars not only claims that involve direct issues of a state court decision, but also claims that are 'inextricably intertwined' with a state court decision."); Chu v. City of New York, No. 02-9474, 81 Fed. Appx. 748, 2003 WL 22769595 at *1 (2d Cir. Nov. 21, 2003) (Affirms dismissal of § 1983 suit arising from child support proceedings underRooker-Feldman doctrine, which bars claims "'inextricably intertwined' with a state court decision" and also "bars claims which could have been raised in the state court."); see, e.g., Holland v. New York, No. 02-7982, 63 Fed. Appx. 532, 533-34, 2003 WL 1868483 at *1 (2d Cir. Apr. 11, 2003) (federal court lacked subject matter jurisdiction under Rooker-Feldman as plaintiff's complaint effectively sought review of state matrimonial action); Deponceau v. State Street Bank Trust Co., 04 Civ. 6044, 2004 WL 1083240 at *1-2 (W.D.N.Y. Mar. 1, 2004) (Plaintiff's § 1983 claims, alleging conspiracy based in a state court divorce proceeding, including fraud by his ex-wife and that he was wrongly prevented from presenting evidence in the divorce proceeding, dismissed under Rooker-Feldman doctrine, as "[f]ederal courts do not have subject matter jurisdiction over constitutional claims that collaterally attack a state court judgment, if the § 1983 claims are 'inextricably intertwined' with that state court judgment."); Sharp v. Bivona, 304 F. Supp. 2d 357, 363 (E.D.N.Y. 2004) (Claim against matrimonial judge dismissed. "[A] plaintiff cannot circumventRooker-Feldman by recasting her claim as a federal civil rights violation. . . . There is no doubt that the plaintiff's claims for constitutional and civil rights violations and fraud arise from her matrimonial proceedings and could have been raised in state court. . . . Indeed, even if the orders by the state court were wrongfully procured, as the plaintiff alleges, the orders remains in full force and effect until they are reversed or modified by an appropriate state court."); Arena v. Dep't of Soc. Servs. of Nassau County, 216 F. Supp. 2d 146, 152 (E.D.N.Y. Aug. 23, 2002) (Plaintiff's § 1983 suit against family court judge and state custody officials barred by the Rooker-Feldman doctrine. "The Second Circuit has recently stated that theRooker-Feldman doctrine bars a district court from reviewing a family court's determinations regarding custody, neglect and visitation where those issues have been decided after providing the plaintiff a full and fair opportunity to litigate those issues.") (citing Phifer v. City of New York, 289 F.3d 49, 57 (2d Cir. 2002)); Cobian v. New York City, 2000 WL 1782744 at *10 (Under Rooker-Feldman doctrine, Court lacks jurisdiction over discrimination/retaliation claims regarding niece's custody, which had been determined by Family Court.); Elmasri v. England, 111 F. Supp. 2d 212, 220 (E.D.N.Y. Aug. 16, 2000) (Summary judgment granted to defendants where, "[d]espite Plaintiff's protests to the contrary, it is clear to the court that the complaint herein is an attempt to overturn, at least in part, the decision of the state court regarding the custody of the Elmasri children. While Plaintiff states that he does not wish to have the custody award overturned, there is no question but that Plaintiff seeks a change with regard to the state court comments concerning the religious education of the Elmasri children."); Saint-Fleur v.City of New York, 2000 WL 280328 at *4 (Under theRooker-Feldman doctrine, dismissing challenge to Family Court termination of plaintiff's custody of his children.).

If this Court were to exercise jurisdiction over Chase's complaint, consideration of claims that were (or still are) before Judge Czajka and Judge Hummel in Family Court, Columbia County, would be inevitable. Chase's claims are "inextricably intertwined" with his state court matrimonial and child custody proceedings, and, pursuant to the Rooker-Feldman doctrine, cannot be reviewed by this Court.

CONCLUSION

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).