IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

STEVEN P. FLEMING,

 Plaintiff,

v.

CAPE MAY COUNTY, FAMILY PART

(D.Y.F.S.), et al.,

 Defendants.

HON. JEROME B. SIMANDLE

Civil No. 11-3894 (JBS/JS)

OPINION

APPEARANCES:

Steven P. Fleming,

16 East Main Street

Lansdale, PA 19446

Plaintiff Pro Se

SIMANDLE, District Judge:

I. INTRODUCTION

Plaintiff Steven P. Fleming, representing himself, submitted

a Complaint which he seeks to file in forma pauperis pursuant to

28 U.S.C. § 1915(a) without prepayment of fees.

The Court has reviewed Plaintiff’s Application to Proceed

Without Prepayment of Fees and Affidavit (Docket Item 1-2), which

was received on July 7, 2011. Because the Affidavit discloses

that Plaintiff is indigent, the Court will permit the Complaint

to be filed without prepayment of fees.

The Court is also required by Section 1915 to preliminarily

review each Complaint filed in forma pauperis and to “dismiss the

case at any time if the court determines that...the action... (I)

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 1 of 9 PageID: 15
is frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C. § 1915

(e)(2)(B). 

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

Recently, the Supreme Court revised the standard for summary

dismissal of a complaint that fails to state a claim in Ashcroft

v. Iqbal, 129 S. Ct. 1937 (2009). The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint 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). The Supreme Court held that to prevent a

summary dismissal, civil complaints must now allege “sufficient

factual matter” to show that a claim is facially plausible. This

then “allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. at 1948. 

The Supreme Court's ruling in Iqbal emphasizes that a plaintiff

2

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 2 of 9 PageID: 16
must demonstrate that the allegations of his complaint are

plausible. See id. at 1949-50; see also Twombly, 505 U.S. at

555, & n.3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009).

This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103,

110-111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d

Cir. 2000).

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

With these principles in mind, the Court turns to its

analysis under 28 U.S.C. § 1915(e)(2), above.

I. FACTUAL AND LEGAL ALLEGATIONS 

The Plaintiff's complaint is confusing and ambiguous. The

Plaintiff does not allege clear causes of action or violations of

3

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 3 of 9 PageID: 17
specific constitutional or statutory rights. The Plaintiff sets

forth a series of disorganize facts and general legal

allegations. (Compl. ¶ 9.) The Court will attempt to outline

the facts as asserted in the Complaint.

The Plaintiff brought suit in Cape May County, New Jersey,

Steven P. Fleming v. Cape May County, et al., Civil No. CPM-L601-09 and CPM-L-470-09. The New Jersey Superior Court, Camden

County Vicinage, refused Plaintiff's request to transfer the case

to federal court. Plaintiff's indigency application was also

denied. As a pro se litigant, Plaintiff alleges he was unable to

"submit evidence, making argument and kept from a Jury, no court

date was made available and no defense counsel could be located."

(Compl. ¶ 2.)

The Plaintiff alleges his wife was abusive and neglectful

and he called the Family Division in a New Jersey Superior Court

vicinage for help. It is unclear whether Cape May County or

Atlantic County was called. The Plaintiff then asserts that his

wife disappeared with his three year old daughter and Defendant

Donald A. Wilkinson, an attorney in Sea Isle City, NJ. The

Plaintiff alleges that Defendant Wilkinson then married his wife.

(Compl. ¶ 6.) 

The Complaint states that the Plaintiff's "daughter

disappeared under the table at Cape May Court House, leaving no

paper trail. Same with the divorce, they change my child's name

4

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 4 of 9 PageID: 18
without law, never found out what I was accused, never saw

visitation, non-court ordered child support: paid in full. No

Internal Affairs or fathers Rights groups in South Jersey like

you find everywhere else in the United States." (Compl. ¶ 6.) 

After this custody battle, the Plaintiff was then involved

in an airline accident where he was the pilot in command. The

Complaint maintains that his unsuccessful custody battle was a

determinative factor in the airline accident. (Compl. ¶¶ 7-8.) 

Finally, the Complaint states that the Plaintiff believes

"my daughter can never be found or she to find me, probably brain

washed." (Compl. ¶ 11.)

The Complaint generally alleges violations of the

Plaintiff's civil rights. Specifically, the Complaint states

that the Plaintiff requests restitution for "kidnapping,

discrimination, criminal cover-up, personal injury, pain in

suffering, defamation of character (reckless endangerment,

insurance fraud), immoral & unethical conduct, lose wages, and

criminal contempt to my Civil Rights." (Compl. ¶ 12.)

II. REMOVAL IS INAPPROPRIATE AND REQUIRES DISMISSAL

The Plaintiff's Civil Cover Sheet indicates that this action

is "Removed from State Court." Removal is governed by 28 U.S.C.

§ 1441 which provides:

[A]ny civil action brought in a State court of which the

district courts of the United States have original

jurisdiction, may be removed by the defendant or the

defendants, to the district court of the United States

5

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 5 of 9 PageID: 19
for the district and division embracing the place where

such action is pending. 

28 U.S.C. § 1441(a)(emphasis added). Only defendants may remove

an action from state court to federal court. A plaintiff is not

authorized under 28 U.S.C. § 1441 to remove a civil action to

federal court. In this case, the Plaintiff has no statutory

authority to remove an action he originally brought in state

court. Therefore, removal is improper and Plaintiff's complaint

must be dismissed. 

III. LACK OF SUBJECT MATTER JURISDICTION REQUIRES DISMISSAL

While Plaintiff's complaint is couched as a civil rights

action, Plaintiff is essentially seeking to void a child custody

order and related decisions entered in family court in the State

of New Jersey. Since the complaint challenges the outcome of

Plaintiff's cases in New Jersey Superior Court, the Court lacks

subject matter jurisdiction under the U.S. Supreme Court’s

Rooker-Feldman doctrine to hear this action. The basis of this

doctrine is that a federal district court such as this one is not

empowered under the United States Constitution to review a final

decision of a state court. If a party such as the Plaintiff

feels that a state court decision was incorrectly decided, the

proper response is to appeal that decision to the appropriate

state appellate court; the federal district court cannot provide

any relief in such a case. This doctrine is explained in greater

detail in the case of Parkview Associates Partnership v. City of

6

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 6 of 9 PageID: 20
Lebanon, 225 F.3d 321, 324 (3d Cir. 2000).

The Court finds that Plaintiff's Complaint is precluded

under the Rooker-Feldman doctrine because, based upon the Court’s

best effort at understanding the Complaint, the Plaintiff's 

state court custody dispute was “actually litigated” in state

court and his claims for relief in this Court are “inextricably

intertwined” with that underlying state court adjudication. See

ITT Corp. v. Intelnet Int’l Corp., 366 F.3d 205, 210 (3d Cir.

2004). Plaintiff describes his injury as “My daughter was taken

from the sole care-taker of this child (meaning me) without any

due process of law, what so-ever. . . This unauthorized abduction

in South Jersey, had hurt me in many ways. . . . The Superior

Court [is] in criminal contempt of my Civil Rights." (Compl. ¶¶

7, 9.) In order to address this alleged injury, the Court would

be required to determine that a state court’s decision was wrong,

or to void a state court’s ruling. This is precisely what this

federal court is prohibited from doing under the Rooker-Feldman

doctrine. ITT Corp. 366 F.3d at 211.

Therefore, to the extent the Plaintiff's complaint

challenges the decisions of the New Jersey Superior Court Cape

May County and Atlantic County vicinages, dismissal is required

because this Court lacks subject matter jurisdiction.

IV. NO DIVERSITY JURISDICTION FOR DOMESTIC RELATIONS

Finally, to the extent the complaint alleges interference by

7

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 7 of 9 PageID: 21
Donald A. Wilkingson, Esq., a New Jersey resident, in the custody

dispute between the Plaintiff and his wife, the Court lacks

subject matter jurisdiction to hear the dispute. 

The Court's best attempt at understanding the Plaintiff's

disorderly complaint is that the Plaintiff is seeking to

challenge the outcome of his custody case in New Jersey Superior

Court and his child's subsequent name change. The Plaintiff is

seeking the return of his daughter who is currently in the

custody of his wife and Mr. Wilkinson pursuant to the state

court's determination of his family action. 

The court not only lacks subject matter jurisdiction to

review a state court's determination under the Rooker-Feldman

doctrine as discussed above, but the court also lacks subject

matter jurisdiction to hear this type of dispute in the first

instance. While Plaintiff, a Pennsylvania resident, and Mr.

Wilkinson, presumably a New Jersey resident, are diverse, the

court lacks diversity jurisdiction over cases involving domestic

relations. Specifically:

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, has been

interpreted by the federal courts to apply with equal

vigor in suits brought pursuant to diversity

jurisdiction. This application is consistent with

Barber's directive to limit federal courts' exercise of

diversity jurisdiction over suits for divorce and alimony

decrees. We conclude, therefore, that the domestic

relations exception, as articulated by this Court since

Barber, divests the federal courts of power to issue

divorce, alimony, and child custody decrees.

8

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 8 of 9 PageID: 22
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)(citations

omitted). See also Magaziner v. Montemuro, 468 F.2d 782, 787

(3d. Cir. 1972) ("Domestic relations is a field peculiarly suited

to state regulation and control and peculiarly unsuited to

control by federal courts.").

As this case is inextricably intertwined with the

Plaintiff's custody and divorce cases brought in state court,

this Court lacks subject matter jurisdiction pursuant to the

domestic relations exception to federal diversity jurisdiction.

V. CONCLUSION

For the reasons discussed above, this Court lacks subject

matter jurisdiction over this action and the Plaintiff's

complaint will be dismissed in accordance with 28 U.S.C. §

1915(e)(2).

The accompanying Order will be entered.

December 23, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

9

Case 1:11-cv-03894-JBS-JS Document 3 Filed 12/23/11 Page 9 of 9 PageID: 23