BLD-292                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                   No. 14-1144
                                  ____________

                               NABIL MIKHAIL,
                                            Appellant

                                        v.

           JOLIE KAHN; DOROTHY PHILLIPS, DECEASED; ALAN
          FELLHEIMER; HERBERT LUSTIG; MADDI JANE SOBEL;
            ANTHONY PISA; PRESTON FINDLAY; CHIP MINTO;
             SHEILA DUGAN; HON. ARTHUR TILSON, J.; HON.
           EMANUEL BERTIN, J.; HON. RHONDA L. DANIELE, J.;
           HON. CAROLYN T. CARLUCCIO, J.; HON. RICHARD P.
             HAAZ, J.; HON. GARRETT D. PAGE, J.; HON. MARY
            JANE BOWES, J.; HON. CHRISTINE L. DONOHUE, J.;
                    HON. JUDITH FERENCE OLSON, J.
                   __________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                           (D.C. Civ. No. 13-cv-05130)
                  District Judge: Honorable Gene E. K. Pratter
                   __________________________________

      Submitted for Possible Jurisdictional Defect Pursuant to 28 U.S.C. 1291
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 26, 2014

          Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                           (Opinion filed: July 9, 2014)
                                 ____________

                                    OPINION
                                  ____________
PER CURIAM

       Appellant Nabil Mikhail appeals from an order of the District Court granting the

defendants’ motions to dismiss his complaint. For the reasons that follow, we will

summarily affirm.

       Mikhail filed suit in the United States District Court for the Eastern District of

Pennsylvania under 42 U.S.C. § 1983. The defendants included his wife, her attorneys,

court-appointed custody evaluators, a reunification therapist, child visitation supervisors,

an attorney for a nonprofit organization who provided an affidavit on child abduction and

conditions in Egypt, and nine Pennsylvania judges. Invoking the District Court’s federal

question jurisdiction, 28 U.S.C. § 1331, Mikhail alleged that the defendants made false

allegations of child abuse, and discriminated against him on the basis of race, gender and

religion, in violation of his civil rights. The claims arose in connection with the handling

by the defendants of a Protection From Abuse complaint by his wife, and the couple’s

divorce and custody proceedings. Among other allegations, Mikhail alleged that his

wife, Jolie Kahn, bribed one of the custody evaluators, and that the state court ordered

that he be prohibited from taking his child outside of Pennsylvania. Mikhail is a Coptic

Christian and United States citizen, who hails originally from Egypt. Kahn and at least

one of the defendants is Jewish. Mikhail also raised numerous state law claims, and he

sought injunctive and declaratory relief and money damages. The defendants who were

properly served moved to dismiss the complaint, Fed. R. Civ. Pro. 12(b)(6).




                                              2
       In an order entered on January 13, 2014, the District Court granted the motions

and dismissed most of the claims with prejudice. Certain claims were dismissed without

prejudice, although the District Court expressed doubt that an amendment to the

complaint would prove fruitful. In a thorough opinion, the District Court determined that

it lacked authority to afford Mikhail the relief he seeks.

       Mikhail appeals. We have jurisdiction under 28 U.S.C. § 1291.1 Our Clerk

advised Mikhail that the appeal was subject to summary affirmance under Third Cir.

LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has

submitted a brief, which was received for the Court’s information. Appellee Preston A.

Findlay submitted a motion for summary affirmance, which Mikhail has opposed.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The

District Court had jurisdiction to address Mikhail’s claim of a civil rights conspiracy, 28

U.S.C. § 1343(a).2 However, the nine state court judges – Judges Arthur Tilson, Emanuel


1
  Because Mikhail has emphatically elected to stand on his complaint, that part of the
order which dismisses some of his claims without prejudice to his right to amend is
appealable. See Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001).
2
  As amply explained by the District Court, subject matter jurisdiction is lacking to the
extent that Mikhail sought review of the Protection From Abuse orders or sought
declaratory relief relating to them. Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010) (Rooker-Feldman doctrine bars suits
in district court that are essentially appeals from state court judgments). The United
States Supreme Court, and not a lower federal court, has jurisdiction to review a final
state court judgment. See Parkview Associates Partnership v. City of Lebanon, 225 F.3d
321, 324 (3d Cir. 2000) (citing 28 U.S.C. § 1257). In addition, to the extent that the
divorce and custody proceedings are ongoing and Mikhail sought relief relating to
specific visitation or support determinations, including the orders prohibiting him from
taking his daughter to visit her grandmother in Canada and requiring supervised
                                              3
Bertin, Rhonda Danielle, Carolyn Carluccio, Richard P. Haaz, Garrett D. Page, Mary

Jane Bowes, Christine L. Donahue, and Judith Ferance Olson – are immune from a civil

rights suit for money damages. Mikhail’s claims arise from the defendant judges’ having

issued orders –some of them adverse to him and some not – with the intent of carrying

out Pennsylvania’s Protection From Abuse statute, and its divorce, custody, and visitation

laws. Judges are absolutely immunized from a civil rights suit for money damages

arising from their judicial acts. Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam);

Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). The orders entered in the state court

proceedings involving Mikhail may not serve as a basis for a civil action for damages.

See id. The claims for injunctive relief also are barred because Mikhail did not allege

that any judge violated a declaratory decree or that declaratory relief was not available in

his case. 42 U.S.C. § 1983 (“[I]njunctive relief against judicial officers for acts or

omissions taken in the officer’s judicial capacity shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.”). Accordingly, dismissal of

the complaint against the defendant judges, including dismissal of Mikhail’s conclusory

claims of conspiracy, was proper.

       With respect to the remaining defendants, Mikhail alleged that they conspired to

keep him from his minor child. They were motivated, he alleged, by discriminatory

animus based on his gender, his Coptic Christian religion, and his Egyptian nationality.


visitation, the District Court properly abstained from interfering in the ongoing state
proceedings. See Anthony v. Council, 316 F.3d 412, 420-21 (3d Cir. 2003) (Younger
abstention appropriate where important state interests concerning child support are
implicated).
                                              4
In addition to Kahn and her attorneys, Phillips and Fellheimer, and Findlay, counsel for a

nonprofit organization, the remaining defendants included Dr. Herbert Lustig and Maddi

Jane Sobel, custody evaluators, Dr. Anthony Pisa, a reunification therapist, and Sheila

Dugan and Chip Minto, Kids First visitation supervisors. We conclude that Dr. Lustig

and evaluator Sobel are absolutely immunized from a civil rights suit for damages under

the doctrine of quasi-judicial immunity. Mikhail’s allegations show that Dr. Lustig and

Sobel were state court-ordered custody evaluators. Individuals charged with the duty of

carrying out facially valid court orders enjoy quasi-judicial absolute immunity from

liability for damages in a suit challenging conduct prescribed by that order. See Gallas v.

Supreme Court of Pennsylvania, 211 F.3d 760, 772-73 (3d Cir. 2000). This immunity

extends to evaluative functions when the evaluation is done, as it plainly was here, to

assist the court in its decision-making process. See Williams v. Consovoy, 453 F.3d 173,

178-79 (3d Cir. 2006) (licensed psychologist who evaluated inmate for state parole board

and presented his findings is absolutely immunized from suit for damages). Mikhail

failed to allege any plausible facts to show that the actions taken by these custody

evaluators were not an integral part of the judicial process. As with the judicial

defendants, dismissal of the complaint, including dismissal of Mikhail’s conclusory

claims of conspiracy against these two defendants, was proper.

       Defendants Jolie Kahn and her lawyers, Alan Fellheimer and Dorothy Phillips

(now deceased), are not state actors and cannot be sued under 42 U.S.C. § 1983. West v.

Atkins, 487 U.S. 42, 48 (1988) (to prevail on a section 1983 claim plaintiff must show

not only the violation of a right secured by the Constitution and laws of the United States

                                             5
but also that the alleged deprivation was committed by a person acting under color of

state law). It is true that a private party will be deemed a state actor for purposes of

section 1983 liability if he or she has engaged in joint activity with state actors, Lugar v.

Edmondson Oil Co., Inc., 457 U.S. 922, 941 (1982), but Mikhail failed to allege plausible

facts sufficient to support a claim of joint activity, Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009). To properly plead an unconstitutional conspiracy, a plaintiff must assert facts

from which a conspiratorial agreement can be inferred. D.R. by L.R. v. Middle Bucks

Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992). See also Great Western

Mining, 615 F.3d at 176 (following Twombly and Iqbal, the plaintiff must assert enough

facts from which an agreement may be inferred).

       Mikhail’s allegations of a conspiracy were conclusory and insufficient to suggest

that a conspiratorial agreement existed between these private actors and the other

defendants. The District Court was thorough in its review of Mikhail’s allegations of

conspiracy and properly found them lacking. See Dennis v. Sparks, 449 U.S. 24, 27-28

(1980) (“[M]erely resorting to the courts and being on the winning side of a lawsuit does

not make a party a co-conspirator” with a state actor.). The record before us is

insufficient to allow us to determine whether defendants Dr. Pisa, the reunification

therapist, and Kids First visitation supervisors Sheila Dugan and Chip Minto are state

actors. There is a suggestion that their participation in the custody proceedings was, as a

general matter, court-ordered. In any event, the conspiracy allegations against them,

                                              6
including that they conspired with Kahn to deprive Mikhail of access to his daughter, also

are plainly inadequate to survive a Rule 12(b)(6) motion to dismiss. Great Western

Mining, 615 F.3d at 176. See also Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 679.

       Preston A. Findlay, an attorney for the Missing Children Division of The National

Center for Missing and Exploited Children (“NCMEC”), provided an affidavit to Kahn’s

counsel regarding steps that parents can take to safeguard their children from abduction,

and country specific information regarding Egypt. The affidavit noted that Egypt is not a

Signatory to the Hague Convention on the Civil Aspects of International Child

Abduction, and therefore it cannot be enforced in Egypt. The affidavit further cited the

U.S. Department of State’s Information Sheet for the proposition that removal of a child

by the non-custodial parent to Egypt is not a crime in Egypt unless the child is subject to

Egyptian court-ordered travel restrictions. The affidavit also discussed “red flag”

indicators that a parent will abduct a child. Findlay’s nonprofit organization receives

funding from Congress.

       Mikhail’s complaint against Findlay is that the affidavit is racist and misleading,

and that it contains falsehoods. Noting that Findlay likely was immune from suit under

18 U.S.C. § 2258D,3 the District Court determined that, other than his insufficient

conclusory allegations that Findlay conspired with Kahn and her attorneys in violation of

3
  Section 2258D provides that, except for intentional or reckless misconduct, “a civil
claim or criminal charge against the National Center for Missing and Exploited Children,
including any director, officer, employee, or agent of such center, arising from the
performance of the CyberTipline responsibilities or functions of such center, as described
in this section, section 2258A or 2258C of this title, or section 404 of the Missing
Children's Assistance Act (42 U.S.C. 5773), or from the effort of such center to identify
child victims may not be brought in any Federal or State court.” 28 U.S.C. § 2258d(a).
                                             7
his civil rights, Mikhail had not alleged any actionable wrongdoing on Findlay’s part.

We agree, and reiterate that Mikhail’s allegations that Findlay’s affidavit is racist and

based on falsehoods lacks adequate support. Findlay’s affidavit does not mention

Mikhail or his child, and provides only general information about child abduction and

Egypt’s stance with respect to the Hague Convention, which Mikhail has not shown to be

false or misleading.

       Finally, as explained in detail by the District Court, section 242 of title 18 does not

authorize private criminal prosecutions for alleged wrongdoings, and creates no private

right of action. Accordingly, dismissal of Mikhail’s claims in Counts I and II brought

under section 242 was proper. In addition, the District Court properly declined to

exercise supplemental jurisdiction over Mikhail’s state law claims, 28 U.S.C. §

1367(c)(3).

       For the foregoing reasons, we will summarily affirm the order of the District Court

granting the defendants’ motions to dismiss.4 Appellee Findlay’s motion for summary

affirmance is granted.




4
  Because we affirm on the bases stated, we find it unnecessary to reach and address the
several other bases noted by the District Court for dismissal of Mikhail’s complaint. Cf.
Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980) (We “are free” to affirm the
judgment “on any basis which finds support in the record.”).
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