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Leventhal v. Boline

United States District Court, E.D. Wisconsin

May 2, 2018




         Plaintiff Howard E. Leventhal, a federal prisoner who is representing himself, filed a complaint alleging claims against his ex-wife and a judge of the Ozaukee County, Wisconsin, Circuit Court (among other defendants). This order resolves Leventhal's motion to proceed without prepayment of the filing fee and screens his complaint.

         Plaintiff's Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (“PLRA”) applies to this case because Leventhal was incarcerated at the time he filed his complaint. The PLRA gives courts discretion to allow plaintiffs to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the plaintiff pay an initial partial filing fee. On March 6, 2018, Magistrate Judge David E. Jones ordered Leventhal to pay an initial partial filing fee of $19.18. Leventhal paid this amount, and therefore I will grant his motion to proceed without prepayment of the full filing fee. He must pay the remainder of the filing fee over time in the manner I explain at the end of this order.

         Screening of Plaintiff's Complaint

         Federal law requires that I screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I must dismiss a complaint if the prisoner has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         Leventhal alleges that, in 2002, he and his then-wife, defendant Mary Handeland, adopted a child from China. The parties divorced in 2008, while they were domiciled in Illinois. A state court in Lake County, Illinois, adjudicated the divorce and child-custody matters. That court entered an order governing the parties' rights to placement and visitation with their child. Years later, Leventhal was convicted of the federal crimes for which he is now in custody. He alleges that, both before and after he was imprisoned, Handeland interfered with his visitation rights under the Lake County order.

         At some point, Handeland moved to Ozaukee County, Wisconsin, with her daughter. In 2017, she filed a motion asking the Ozaukee County Circuit Court to take jurisdiction of the custody case. Judge Paul Malloy of that court found that Ozaukee County had jurisdiction over the custody matter because the child had resided in the county for more than six months. Later, Leventhal filed a motion with the Ozaukee court asking for various forms of relief. On October 31, 2017, a court commissioner, Barry J. Boline, denied these motions.

         On November 15, 2017, Leventhal commenced this action in the District of Minnesota. On February 2, 2018, that court transferred venue to this court. When the case arrived here, it was assigned to a magistrate judge. After the magistrate judge determined that the case should be dismissed, the case was reassigned to me for entry of a dispositive order.

         Leventhal asserts several claims against his ex-wife and Ozaukee court officials. (He also sues other defendants, including members of his ex-wife's family, his ex-wife's attorneys, and other Ozaukee County officials; however, his claims against these defendants are so feeble that they can be dismissed without further discussion.) Leventhal's first claim is against his ex-wife. He alleges that she committed fraud during the process of adopting their daughter from China and therefore violated the Intercountry Adoption Act, 42 U.S.C. §§ 14901-14954. The remedy he seeks is to have his ex-wife's status as the child's adoptive mother revoked. (Compl. at p. 11, ¶ 7.) However, this is not a claim that exists under the Intercountry Adoption Act. The Act states that it is not enforceable through private suits except as specifically provided elsewhere in the Act. 42 U.S.C. § 14954. No specific provision of the Act gives an adoptive parent a cause of action against another adoptive parent for fraud. Therefore, this claim must be dismissed.

         Leventhal next asserts a series of claims based on the Ozaukee court's exercising jurisdiction over the custody case and denying his motions regarding visitation and other matters. (Compl. at p. 12, ¶ 3 & pp. 20-21.) Leventhal alleges that, in exercising jurisdiction over the case, the Ozaukee court violated the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738B, which requires state courts to give full faith and credit to the child-custody decrees of other state courts. See Thompson v. Thompson, 484 U.S. 174, 183 (1988). However, the Parental Kidnapping Prevention Act cannot be enforced through a private cause of action. Id. Therefore, to the extent that Leventhal's claims are based on this Act, they must be dismissed.

         Leventhal also asserts a claim against his ex-wife and Ozaukee court officials under the Due Process Clause of the Fourteenth Amendment. He asserts that his ex-wife's involving the Ozaukee court in the custody dispute, and that court's deciding to exercise jurisdiction over the dispute, had the effect of denying him his parental rights, which are protected by the Due Process Clause. More specifically, he alleges that the Ozaukee court's rulings in the case deprived him of visitation time with his daughter that he would have received under the Lake County placement order. (Compl. pp. 16-18, ¶¶ 14-17.) In related claims, Leventhal alleges that the Ozaukee court officials who entered the orders did so because they were biased against him because he is a man, in violation of the Equal Protection Clause, and also because they wanted to punish him for his federal crime, in violation of the Eighth Amendment. (Compl. at pp. 18-19, 19- 20 & 22-23.) He seeks damages under 42 U.S.C. § 1983.

         Here, I note that these claims raise questions under at least two jurisdictional doctrines. The first is the domestic-relations exception, under which a federal court will not exercise jurisdiction over child-custody disputes. See Struck v. Cook County Public Guardian, 508 F.3d 858, 859-60 (7th Cir. 2007); Jones v. Brennan, 465 F.3d 304, 306- 08 (7th Cir. 2006). The second is the Rooker-Feldman doctrine, which prevents district courts from exercising jurisdiction over cases that are essentially appeals from state court orders. See Lennon v. City of Carmel, Ind., 865 F.3d 503, 506 (7th Cir. 2017). Although both of these doctrines might apply to this case, I will focus only on Rooker-Feldman because it is dispositive.

         The Rooker-Feldman doctrine applies to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). That's this case. Before he filed his federal complaint, Leventhal lost the dispute over the proper forum for the custody case. He now complains about injuries caused by the Ozaukee court's rulings, namely, the denial of visits with his daughter. He has gone so far as to sue the court officials who signed the orders he complains about. He argues that the Ozaukee court's rulings were either wrong or unconstitutional or void, and he seeks damages from the court officials. Because these claims fall within the Rooker-Feldman doctrine, they must be dismissed ...

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