Opinion
2:21-cv-00591-RMG-MGB
04-15-2021
Daniel and Sheryl Olshefsky, Plaintiffs, v. Jennifer Jensen Bergan; Amy J. Knussman; South Carolina Department of Child Protective Services; and Saratoga County Child Protective Services, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Daniel and Sheryl Olshefsky (collectively, “Plaintiffs”), proceeding pro se and in forma pauperis, bring this action pursuant to 42 U.S.C. § 1983 against Judges Jennifer Jensen Bergan and Amy J. Knussman, the South Carolina Department of Child Protective Services, and Saratoga County Child Protective Services (collectively, “Defendants”) for violations of their due process rights in relation to certain family court proceedings in Saratoga County, New York, which resulted in the removal of Plaintiffs' children from their home. Under Local Civil Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Complaint and submit a recommendation to the United States District Judge. For the following reasons, the undersigned recommends that this action be summarily dismissed, without prejudice and without issuance or service of process.
The undersigned assumes Plaintiffs are referring to South Carolina's “Child Protective Services” unit, which operates within the state's Department of Social Services, and Saratoga County's “Children's Services” unit, which operates within the county's Department of Social Services. See https://dss.sc.gov/abuseneglect/child-protective-services/ (last visited April 14, 2021); https://www.saratogacountyny.gov/departments/social-services/childrens-services-protectivepreventive/ (last visited April 14, 2021).
BACKGROUND
At the outset, the undersigned notes that the scope of this action is difficult to ascertain, as Plaintiffs' rambling allegations span over eighty pages of supplemental documents, many of which are out-of-context, nonsensical, and unconnected to the claims before this Court. Based on the undersigned's best interpretation of the allegations, however, this case appears to involve a dispute in Saratoga County Family Court that led to Plaintiffs losing custody of at least two of their three children based on claims of abuse, neglect, and/or abandonment. Specifically, the Saratoga County Department of Social Services commenced a child neglect petition against Plaintiffs in May 2017, which resulted in the removal of one of Plaintiffs' three children from the home. (Dkt. No. 11 at 12.) In a subsequent hearing before the Saratoga County Family Court, Plaintiffs consented to a finding of neglect without admission in exchange for maintaining custody over their remaining two children. (Id. at 14-16.) Plaintiffs argue, however, that the agreement was coerced, as they did not have counsel throughout the entirety of the family court proceedings, and the attorney they did have was ineffective. (Dkt. No. 10 at 2; Dkt. No. 11 at 9-15.)
See, for example, Dkt. No. 10 at 5-7, discussing the origins and definition of a “kangaroo court;” Dkt. No. 11 at 22-31, providing excerpts regarding the Cestui Que Vie Act of 1666, treason, and maritime admiralty law.
Although it is unclear from the pleadings whether Plaintiffs were living in New York at this time, the undersigned proceeds under this assumption for purposes of initial review. At the very least, it does not appear that Plaintiffs were living in South Carolina when their first child was initially removed from the home.
It appears these initial proceedings were held before former Saratoga County Family Court Judge Jennifer Jensen Bergan, while later proceedings were held before Saratoga County Family Court Judge Amy J. Knussman.
According to Plaintiffs, the Colleton County Sheriff's Office, with the assistance of the Walterboro City Police, eventually “kidnapped” one of their remaining children from their South Carolina home “without any warning” or due process, and took the child back to New York based on “unsubstantiated, opinionated, fabricated, perjured, false medical reports, and false testimony's [sic] from several fabricated witnesses....” (Dkt. No. 10 at 4; Dkt. No. 13 at 4.) Plaintiffs seem to allege that the removal of their second child was part of some larger conspiracy or plan set in motion by the Saratoga County authorities, although to what end is unclear:
[W]hen Saratoga County CPS in New York had extracted the child from South Carolina, they figured this would extortion [sic] or racketeer the parents to sell their home and when this sick ploy/tactic didn't work, CPS then decided to fabricate this false charge of Abandonment and try to adopt the children out against the parents rights, hoping that this would force the parents back to New York against their rights under the color of law, Colleen Trossback has hopes this would allow her and the court to prosecute the parents for crimes they know the parents didn't commit.(Dkt. No. 10 at 4; see also id. at 9, suggesting that the local police “aided and abetted CPS in their foolish games of stealing and trafficking children from their loving parents and families just to make money and defraud the United States Government under . . . the Social Security Act.”) Plaintiffs claim that as part of this conspiracy, the Beaufort County Family Court database was “wiped clean” in an attempt to cover-up “the case ever being in the court registry.” (Id. at 4; Dkt. No. 1 at 1.) Plaintiffs also allege that they have been-and continue to be-harassed by local police and “followed all over town.” (Dkt. No. 10 at 8.)
Ms. Trossback, who is not a named defendant in this action, appears to be an employee of the Saratoga County Department of Social Services. (See Dkt. No. 10 at 3-4.)
According to a letter sent to Plaintiffs by their Guardian Ad Litem, Christopher C. Shambo, the Saratoga County Department of Social Services withdrew a previously-filed petition to terminate Plaintiffs' parental rights on March 19, 2021. (Dkt. No. 11 at 5.) Mr. Shambo emphasized, however, that “this does not mean you will automatically regain custody of [the children], ” as the Saratoga County Family Court would likely file a “petition for permanent neglect” against Plaintiffs. (Id.) Mr. Shambo wrote,
I am of the belief these actions too can be defeated should you follow through what [sic] the terms and conditions Ordered upon you by the Family Court, along with basic actions such as acting in a polite and courteous manner, following Court rules, and appearing for Court when directed to do so. Your tendency to scream and yell when speaking on the phone to not only the Court, but to those advocating on your behalf, does not further your cause to regain custody of [the children].(Id.) Mr. Shambo urged Plaintiffs “not to quit” and to “follow up with the legal advice” provided by their attorney.
Despite Mr. Shambo's apparent intent to help Plaintiffs regain custody of their children, Plaintiffs assert that he is “an Administrative Actor to steal and traffic [their] children for the Administrative Court, ” and that he is attempting to coerce Plaintiffs into a contract using the children as “bait.” (Dkt. No. 11 at 3.)
It is against this background that Plaintiffs now bring the instant action under 42 U.S.C. § 1983, alleging that Defendants have purposefully deprived Plaintiffs “of their civil and parental rights to Due Process, just to human traffic children and separate loving families under the color of law which the local law enforcement aid and abet. . . .” (See Dkt. No. 11 at 20-21, further alleging that “both the Administrative Family Court and CPS have illegally personally targeted [Plaintiffs]” and attempted to deprive them of their parental rights through “means of Harassment, Coercement, Racketeering, Extortion, and means of Stalking....”) Plaintiffs maintain that they never abused or neglected their children, and that any such allegations are fabricated and completely unsupported by the evidence. (See, e.g., Dkt. No. 1 at 1; Dkt. 10 at 4.)
Plaintiffs therefore ask that this Court return their children effective immediately; issue a “permanent Restraining Order” against Child Protective Services in “both States of New York and Colleton County [] in South Carolina;” issue a stay of proceedings in the Saratoga County Family Court; remove Plaintiffs' names from “the system registry;” and hold Defendants accountable for damages of $860,000.00 and “$10,000 per day per child.” (Dkt. No. 1 at 5; Dkt. No. 11 at 32.) Plaintiffs have since filed a Motion for Emergency Action seeking essentially the same relief. (Dkt. No. 9.)
STANDARD OF REVIEW
Plaintiffs filed this Complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses, the court must dismiss any complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Thus, a claim based on a “meritless legal theory” or a “fantastic or delusional” factual scenario may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25, 327-28 (1989); see also McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (noting that examples of frivolous claims include those whose factual allegations are so “wholly fanciful” as to be simply “unbelievable”) (internal quotation marks and citations omitted). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Neitzke, 490 U.S. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the court need not accept as true a complaint's legal conclusions). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, ” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is therefore charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a)(2). See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”). Such is the case here.
DISCUSSION
As suggested above, the scope of Plaintiffs' Complaint is difficult to ascertain due to the rambling, often nonsensical nature of the allegations made throughout the numerous supplemental documents filed with the pleading. This is further complicated by Plaintiffs' reliance on what many courts describe as “buzzwords” or “legalistic gibberish.” Boston v. Stobbe, 586 F.Supp.2d 574, 58182 (D.S.C. 2008); Brantley v. Nationstar Mortg. LLC, No. 9:19-cv-0490-BHH, 2020 WL 1181309, at *2 (D.S.C. Mar. 11, 2020). Indeed, the Complaint references racketeering, extortion, blackmail, trafficking, double jeopardy, treason, maritime admiralty law, the Cestui Que Vie Act of 1666, and the Declaration of Independence, but contains very few clear, substantive factual allegations in support of such legal conclusions. And while the “liberal pleading requirements” of Federal Rule of Civil Procedure 8(a) require only a “short and plain” statement of the claim, the plaintiff must “offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (internal citations omitted); see also Windham v. Graham, No. 9:08-cv-1935-PMD-GCK, 2008 WL 3833789, at *6 (D.S.C. Aug. 14, 2008) (noting that “a complaint is insufficient where it simply expounds a collection of legal buzzwords but fails to make any factual allegations against the defendants”).
Thus, as a threshold matter, the undersigned clarifies that the gravamen of Plaintiffs' Complaint, and possibly the only substantive federal claim asserted here, appears to be that Defendants violated Plaintiffs' constitutional rights to due process by removing their children from the home without sufficient evidence of abuse, and challenging their parental rights in the family court proceedings that followed. (See, e.g., Dkt. No. 1 at 1; Dkt. No. 11 at 20-21.) Notably, these allegations are largely premised on Plaintiffs' frivolous, unsubstantiated theory that Defendants purposefully targeted their family and colluded to kidnap and traffic Plaintiffs' children “to make money and defraud the United States Government.” (Dkt. No. 10 at 5, 9.) It is well-settled that the court has the authority to dismiss such obviously “fantastic” or “delusional” claims. Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994); Feurtado v. McNair, No. 3:05-cv-1933-SB, 2006 WL 1663792, at *2 (D.S.C. Jun. 15, 2006) (noting that frivolousness encompasses inarguable legal conclusions and fanciful factual allegations), aff'd, 227 Fed.Appx. 303 (4th Cir. 2007). However, aside from the plainly frivolous nature of these allegations, the undersigned finds that Plaintiffs' claims also implicate several other significant deficiencies that warrant further discussion and, ultimately, summary dismissal of the instant case.
See also, e.g., Neal v. Duke Energy, No. 6:11-cv-1420-HFF-KFM, 2011 WL 5083181, at *4 (D.S.C. June 30, 2011), adopted, 2011 WL 5082193 (D.S.C. Oct. 26, 2011) (dismissing action upon finding plaintiff's factual allegations were frivolous, fanciful, and delusional where plaintiff claimed defendants clandestinely placed a GPS device in her car and stalked her, noting that the allegations were “made without any viable factual supporting allegations and appears to be the product of paranoid fantasy”); Blakney v. Brewton, No. 6:20-cv-2915-DCC-KFM, 2020 WL 8366287, at *3 (D.S.C. Nov. 13, 2020), adopted, 2021 WL 307489 (D.S.C. Jan. 29, 2021) (dismissing action as frivolous and delusional where “unsubstantiated allegations describe[d] a mutli-state conspiracy to defame plaintiff'); Bennettv. Smith, No. 6:19-cv-1799-TMC-KFM, 2019 WL 3557844, at *2 (D.S.C. July 16, 2019), adopted, 2019 WL 3546887 (D.S.C. Aug. 5, 2019), aff'd, 797 Fed.Appx. 105 (4th Cir. 2020) (finding “conclusory claims that federal agents conspired with others to prosecute [plaintiff] and seize his money for Middle Eastern projects, standing alone, [were] clearly delusional and frivolous, and [failed] to show any arguable basis in fact or law”).
I. Plaintiffs' Claims Are Barred Under Younger Abstention Doctrine
First, Plaintiffs' claims are not properly before this Court under the Younger abstention doctrine. In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court held that a federal court should not equitably interfere with state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996). The Supreme Court has since made clear, however, that the Younger abstention doctrine also applies “to noncriminal judicial proceedings when important state interests are involved.” See Harper v. Pub. Serv. Comm'n of W. VA., 396 F.3d 348, 351 (4th Cir. 2005) (referencing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). Specifically, the Younger Court noted that courts of equity should not act unless the moving party has no adequate remedy at law and will suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44.
From Younger and its progeny, the Court of Appeals for the Fourth Circuit has culled the following test to determine when abstention is appropriate: “(1) there are ongoing state judicial proceedings; (2) the proceedings implicate important state interests; and (3) there is an adequate opportunity to raise federal claims in the state proceedings.” Martin Marietta Corp. v. Md. Comm'n on Human Relations, 38 F.3d 1392, 1396 (4th Cir. 1994) (citing Middlesex Cnty. Ethics Comm'n, 457 U.S. at 432). In the instant case, the first criterion is met because Plaintiff is clearly involved in an ongoing child custody dispute in Saratoga County Family Court. (See Dkt. No. 11 at 5-6, discussing the next steps in Plaintiffs' family court proceedings.) The second criterion is also met, as the Supreme Court has stated that matters concerning child custody implicate important state interests: “Domestic relations is an area that has long been regarded as a virtually exclusive province of the States. Indeed, the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2565 (2013) (internal citations omitted); see also Kawai v. UaCearnaigh, 249 F.Supp.3d 821, 825 (D.S.C. 2017) (referencing Harper, 396 F.3d at 351) (noting that ongoing family court action involved “an area of family law, which is a core source of state authority and thus is an ‘important' state interest”).
To be sure, Plaintiffs repeatedly assert that Defendants “are still engaged in fraudulent activity, depriving the litigants/parents their Constitutional rights as of this day.” (See Dkt. No. 11 at 20-21, further stating that “[t]he Administrative Family Court and CPS are still to this day for no legal reason trying to falsely charge the litigants/Parents.”)
And finally, the third criterion is satisfied because Plaintiffs can address their claims in their pending proceedings before the family court. See Barnes v. Kinsler, No. 3:18-cv-1567-CMC, 2018 WL 3853556, at *2 (D.S.C. Aug. 14, 2018), aff'd sub nom. Barnes v. D.S.S., 748 Fed.Appx. 523 (4th Cir. 2019) (finding that plaintiff could raise due process claims relating to the removal of her children in her ongoing child custody proceedings in state family court); see also Kawai, 249 F.Supp.3d at 825 (explaining that because the state proceedings remained ongoing, plaintiff could continue to raise and renew her claims for spousal support in the family court action). Because Plaintiffs' case meets all three criteria for abstention under Younger, the undersigned recommends that Plaintiffs' claims for federal relief be dismissed at this time.
II. Plaintiff's Claims Are Also Barred Under the Rooker-Feldman Doctrine
Although Plaintiffs' child custody dispute is ongoing, the undersigned notes that to the extent Plaintiffs challenge any findings or rulings already made by the Saratoga County Family Court, such claims are precluded under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). Indeed, under the Rooker-Feldman doctrine, a “party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court.” Am. Reliable Insurc. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003) (citing Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)). This general rule “extends not only to issues actually decided by a state court but also to those that are ‘inextricably intertwined with questions ruled upon by a state court.'” See Boyd v. Simmons, No. 6:18-cv-576-BHH-JDA, 2018 WL 4999804, at *2 (D.S.C. Mar. 14, 2018), adopted, 2018 WL 4356579 (D.S.C. Sept. 13, 2018) (referencing Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997)). An issue is “inextricably intertwined” with a state court decision “if in order to grant the federal plaintiff the relief sought, the federal court must determine that the state court judgment was erroneously entered or must take action that would render the judgment ineffectual.” Jordahl v. Democratic Party of Virginia, 122 F.3d 192, 202 (4th Cir. 1997).
Here, Plaintiffs ask the Court to essentially overturn the Saratoga County Family Court's findings of neglect and/or abuse, grant them custody of their children, impose a restraining order against Child Protective Services in both South Carolina and Saratoga County, and award damages for each child wrongly removed from their home. (Dkt. No. 1 at 5; Dkt. No. 11 at 32.) In order to grant this relief, however, the Court would have to conduct what amounts to an appellate review of issues already decided by a state court of competent jurisdiction and override, or otherwise find invalid, the determinations that resulted in the removal of Plaintiffs' children. This is precisely the type of impermissible “appellate review” barred under the Rooker-Feldman doctrine. See, e.g., Campbell v. Bennett, No. 0:19-cv-973-JFA-PJG, 2019 WL 5865607, at *4 (D.S.C. May 29, 2019), adopted, 2019 WL 4593567 (D.S.C. Sept. 23, 2019), aff'd, 801 Fed.Appx. 144 (4th Cir. 2020), cert. denied, 141 S.Ct. 362 (2020) (explaining that under the Rooker-Feldman doctrine, the court could not review the family court's determinations regarding custody and neglect, as those issues were decided by the family court after a full opportunity to litigate those issues); Guion v. Marsh, No. 6:18-cv-1609-DCC-JDA, 2018 WL 8300524, at *5 (D.S.C. Sept. 19, 2018), adopted, 2019 WL 1771736 (D.S.C. Apr. 23, 2019), aff'd sub nom. Glenn v. Marsh, 806 Fed.Appx. 252 (4th Cir. 2020) (finding plaintiffs' federal claims “inextricably intertwined” with family court's rulings because, at its core, the complaint challenged state judge's various determinations and defendants' actions throughout the family court proceedings); Hall v. Hall, No. 3:06-cv-3130-MJP-BM, 2007 WL 433182, at *2 (D.S.C. Jan. 8, 2007), adopted, 2007 WL 465577 (D.S.C. Feb. 2, 2007) (declining to consider plaintiff's constitutional claims because to rule in her favor would have required the court to find invalid various orders and rulings made in the Richland County Family Court). Thus, because this Court lacks jurisdiction to review the judicial decisions rendered in the Saratoga County Family Court and grant Plaintiffs the relief that they seek, their claims are also subject to summary dismissal under Rooker-Feldman.
III. Judges Jennifer Jensen Bergan and Amy J. Knussman Are Entitled to Judicial Immunity
Notwithstanding this Court's lack of jurisdiction over Plaintiffs' claims in the instant case, the undersigned notes that the Complaint is also subject to dismissal with respect to Family Court Judges Jennifer Jensen Bergan and Amy J. Knussman. It is well-settled that judges have absolute judicial immunity for their judicial actions. Chu v. Griffith, 771 F.2d 79, 81 (4th Cir. 1985); Webb v. Cty. of Allendale, No. 1:15-cv-02766-JMC, 2018 WL 661462, at *7 (D.S.C. Jan. 31, 2018) (“This judicial immunity also extends to the county for a county Magistrate Judge's or a state Family Court Judge's judicial actions.”). Although Plaintiffs characterize the actions of these defendant-judges as unlawful, absolute immunity is not pierced by allegations of corruption or bad faith, nor will a judicial officer “be deprived of immunity because the action [she] took was in error, was done maliciously, or was in excess of [her] authority.” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (internal citations omitted).
Moreover, absolute judicial immunity is a protection from suit, not just from damages. Mireless v. Waco, 502 U.S. 9, 11 (1991); see also Lepelletier v. Tran, 633 F. App'x. 126, 127 (4th Cir. 2016) (per curiam) (holding that the plaintiff's “claims seeking injunctive relief against a sitting state court judge for actions taken in his judicial capacity . . . were barred by the plain language of 42 U.S.C. § 1983”). Accordingly, Judges Bergan and Knussman are entitled to absolute judicial immunity for their judicial actions while presiding over the underlying family court dispute, and Plaintiffs' claims against them are subject to summary dismissal. See Guion, 2018 WL 8300524, at *5 (finding claims against family court judge for judicial actions taken in relation to the termination of plaintiffs' parental rights barred by absolute judicial immunity and lacking any basis in fact or law); Garner v. Cohen, No. 2:16-cv-561-TLW-MGB, 2016 WL 9175627, at *4-5 (D.S.C. Sept. 1, 2016), adopted, 2017 WL 2645754 (D.S.C. June 20, 2017) (finding claims against family court judge for judicial actions taken in relation to plaintiffs' parental rights were barred by absolute judicial immunity and frivolous); Thomas v. Charleston Cty., No. 2:17-cv-1958-MBS-MGB, 2017 WL 11562553, at *5 (D.S.C. Sept. 5, 2017), adopted, 2020 WL 5569766 (D.S.C. Sept. 15, 2020) (noting that plaintiff's claims against family court judges for their judicial actions “lack[ed] any basis in law, and [were] legally and factually frivolous”).
IV. Plaintiffs' Motion for Emergency Action Is Likewise Subject to Dismissal
As referenced above, Plaintiffs filed a Motion for Emergency Action (Dkt. No. 9) on March 5, 2021, seeking much of the same relief requested in the Complaint (Dkt. No. 1). Specifically, Plaintiffs claim that officers from the Colleton County Sheriff's Office have been harassing them as part of the conspiracy “to Aid and Abet CPS in trafficking the parents['] children and to place the fear and threats on the parents to back off with the law suite [sic] against the county for its illegal actions against the parents.” (Dkt. No. 9 at 1.) Plaintiffs once again ask that the Court order the return of their children effective immediately; grant a “judicial restraining order upon the local law enforcement and CPS in both states to stay away from the family for their illegal acts of abuse of power;” and “hold CPS accountable for their illegal actions.” (Id. at 3.)
Plaintiffs claim that two Colleton County officers blocked their driveway with their vehicles and accused them of attempting to travel to upstate New York to kidnap their children. (Dkt. No. 9 at 1.)
Plaintiffs' Motion for Emergency Action (Dkt. No. 9) appears to seek immediate injunctive relief, which the undersigned considers akin to a temporary restraining order or preliminary injunction. Such relief is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). Thus, a temporary restraining order or preliminary injunction should issue only when the movant has established all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of the equities tips in his favor; and (4) an injunction is in the public interest. Id. at 20; Henderson for Nat'l Lab. Rels. Bd. v. Bluefield Hosp. Co., LLC, 902 F.3d 432, 439 (4th Cir. 2018) (noting that “Winter made clear that each of these four factors must be satisfied to obtain preliminary injunctive relief”); see also Virginia v. Kelly, 29 F.3d 145, 147 (4th Cir. 1994) (showing that the standard for a temporary restraining order is the same as that applied to motions for preliminary injunction).
Plaintiffs do not directly address any of the aforementioned requirements in their Motion for Emergency Action; nevertheless, the first factor is clearly dispositive here as Plaintiffs cannot demonstrate that they are likely to succeed on the merits of their claims. Indeed, as discussed at length above, Plaintiffs' claims are subject to summary dismissal pursuant to the Younger abstention doctrine (see supra pp. 8-9) and the Rooker-Feldman doctrine (see supra pp. 9-11). Plaintiffs' claims against Judges Bergan and Knussman are further precluded under the doctrine of absolute judicial immunity. (See supra pp. 11-12.) Thus, the undersigned finds that Plaintiffs are not entitled to a temporary restraining order or preliminary injunctive relief in the instant case. See, e.g., Thomas v. S.C. Dep't of Soc. Servs., No. 6:18-cv-3140-TMC-KFM, 2018 WL 6596261, at *1-2 (D.S.C. Nov. 26, 2018), adopted, 2018 WL 6590751 (D.S.C. Dec. 14, 2018) (denying plaintiff's request for emergency relief where Rooker-Feldman doctrine barred claims related to family court proceedings under the first Winter element); Saylor-Marchant v. A.C.S., No. 2:15-cv-3749-DCN-MGB, 2015 WL 7871230, at *3 (D.S.C. Nov. 4, 2015), adopted, 2015 WL 7854233 (D.S.C. Dec. 3, 2015) (denying motion for temporary restraining order where plaintiff's requests for relief, i.e., returning her children to her custody and holding the family court accountable for “unethical behavior, ” were barred under Rooker-Feldman and failed to show a likelihood of success on the merits).
CONCLUSION
In light of the foregoing, the undersigned is of the opinion that Plaintiffs cannot cure the jurisdictional defects identified above by amending their Complaint at this time. See Barnes, 2018 WL 3853556, at *2 (noting that plaintiff could not submit any allegations that would allow the court to proceed with her due process claim against the Department of Social Services while the case was still pending in family court); see also Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993). Accordingly, the undersigned RECOMMENDS that the Court decline to give Plaintiffs leave to amend their Complaint and DISMISS this action without prejudice and without issuance and service of process.For the same reasons discussed above, the undersigned further RECOMMENDS that the Court deny Plaintiffs' Motion for Emergency Action. (Dkt. No. 9.)
However, to the extent the Court dismisses any claims against the defendant-judges (Judges Bergan and Knussman) based on absolute judicial immunity, the undersigned recommends that such claims be dismissed with prejudice. See Mills v. Marchant, No. 8:19-cv-1512-TMC-JDA, 2019 WL 2647600, at *2-3 (D.S.C. June 4, 2019), adopted, 2019 WL 2644216 (D.S.C. June 27, 2019) (noting that dismissal with prejudice is proper under 28 U.S.C. § 1915 where claims against a judge are barred by the doctrine of judicial immunity and therefore frivolous). “[Dismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.” See S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013); see also Norton v. Columbus Cty. Dep't of Soc. Servs., 736 Fed.Appx. 406, 407 (4th Cir. 2018) (noting that a dismissal based on the Rooker-Feldman doctrine should be issued without prejudice); Brown v. Sumter Cty., No. 1:20-cv-3076-MGL-SVH, 2020 WL 6384639, at *2 (D.S.C. Oct. 30, 2020) (noting that a dismissal based on the Younger abstention doctrine should be issued without prejudice).
IT IS SO RECOMMENDED.
Charleston, South Carolina
The parties' attention is directed to an important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).