           Case: 15-11861   Date Filed: 02/17/2016   Page: 1 of 15


                                                       [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11861
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:15-cv-20821-UU



MARIO JIMENEZ,

                                                      Plaintiff-Appellant,

                                    versus

KAREN WIZEL,
Mother; and in re: the support and welfare of Mario
Simon Jimenez-Wizel and Karen Nicole Jimenez-Wizel,
DEPARTMENT OF CHILDREN AND FAMILIES (DCF),
THEREZA HERNENDEZ,
DCF Investigator,
MELYSSA LOPEZ,
DCF Case Coordinator,
YVETTE B. REYES MILLER, ESQ., et al.,

                                                      Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (February 17, 2016)
                 Case: 15-11861     Date Filed: 02/17/2016    Page: 2 of 15


Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

          Mario Jimenez, proceeding pro se, appeals the district court’s dismissal of

his complaint for failure to state a claim. Jimenez filed this suit in the District

Court for the Southern District of Florida, requesting removal of a state court child

custody dispute between him and his ex-wife, Karen Wizel. Jimenez alleged (1)

that the state court violated his First Amendment right to freely exercise his

religion and his Fourteenth Amendment liberty interest in parenting his two

children when it ordered he could only have supervised visitation based on

Jimenez’s religious practices and beliefs; and (2) the state court violated his due

process rights by failing to give him an opportunity to contest the allegations

against him or adequate notice of the hearing. The district court initially dismissed

his complaint for failure to state a claim but provided Jimenez with an opportunity

to amend. In his amended complaint, Jimenez more specifically raised claims

under 42 U.S.C. §§ 1983 and 1985, alleging that various parties to the state

custody action, as well as Wizel, conspired to violate these same constitutional

rights.

          The district court determined it lacked jurisdiction over the state court

proceedings because child custody disputes are not within the federal courts’

original jurisdiction, and it dismissed the remainder of Jimenez’s amended


                                              2
              Case: 15-11861    Date Filed: 02/17/2016    Page: 3 of 15


complaint for failure to state a claim. On appeal, Jimenez argues that the district

court erred in both determinations. After a thorough review of Jimenez’s amended

complaint and brief, we conclude that the district court committed no reversible

error. Therefore, we affirm.

                                          I

      At every stage in the proceeding, we review de novo the jurisdiction of not

only our court but also the district court. See Castleberry v. Goldome Credit

Corp., 408 F.3d 773, 779–80 (11th Cir. 2005).

      Those matters over which the federal courts have original jurisdiction may

be removed from state court to federal court. See 28 U.S.C. § 1441(a). The federal

courts have original subject matter jurisdiction over federal questions. 28 U.S.C. §

1331. In addition, those matters regarding enforcement of constitutional rights

related to equality may properly be removed to federal court. See 28 U.S.C. §

1443. The Supreme Court has interpreted § 1443 to apply “only to rights that are

granted in terms of [racial] equality and not to the whole gamut of constitutional

rights.” Georgia v. Rachel, 384 U.S. 780, 792, 86 S. Ct. 1783, 1790 (1966);

accord Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir. 2001) (per curiam).

These rights are distinguishable from those vindicated by the due process clause

and 42 U.S.C. § 1983, which “confer equal rights in the sense . . . of bestowing

them upon all.” Rachel, 384 U.S. at 792, 86 S. Ct. at 1790 (internal quotation


                                          3
              Case: 15-11861     Date Filed: 02/17/2016     Page: 4 of 15


marks omitted). Rachel set out a two-pronged test to determine whether removal is

proper under § 1443(1): “First, the petitioner must show that the right upon which

the petitioner relies arises under a federal law providing for specific civil rights

stated in terms of racial equality. Second, the petitioner must show that he has

been denied or cannot enforce that right in the state courts.” See Conley, 245 F.3d

at 1295 (internal quotation marks and citation omitted).

      Here, Jimenez sought to remove to federal court a child custody dispute still

pending in Florida state court, citing, inter alia, to 28 U.S.C. §§ 1331, 1441, and

1443 as the basis for federal subject matter jurisdiction. The district court held it

lacked jurisdiction to review the state court action. We hold that the district court

was correct in ruling that removal of the child custody dispute was improper under

§§ 1441 or 1443.

      The child custody dispute is not a matter arising under the original

jurisdiction of the federal courts because it is not an action “arising under the

Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331.

Though Jimenez asserts that he is not seeking modification of a child custody

degree, the violations he alleges stem in whole from the ongoing state court’s

adjudication of the dispute between him and his wife regarding the forthcoming

custody arrangement. Therefore, removal under § 1441 would be improper. See

also Ankenbrandt v. Richards, 504 U.S. 689, 703–04, 112 S. Ct. 2206, 2215 (1992)


                                           4
                Case: 15-11861        Date Filed: 02/17/2016       Page: 5 of 15


(holding that the domestic relations exception to diversity jurisdiction divests

federal courts of jurisdiction to review child custody orders under § 1332, as well).

       Further, the state court case that Jimenez wishes to remove to federal court

does not implicate equality-based rights cognizable under § 1443. It is not clear

whether Jimenez sought to remove under § 1443(1) or § 1443(2), but removal is

improper under either provision. For purposes of § 1443(1), Jimenez only alleged

violations of his rights to due process, free exercise of religion, and Fourteenth

Amendment liberty interest as a parent, which are “broad constitutional

guarantee[s] of general application,” rather than rights implicating racial equality. 1

See Rachel, 384 U.S. at 792, 86 S. Ct. at 1790. Thus, he fails to satisfy the first

prong of Rachel. See Conley, 245 F.3d at 1295–96. Separately, removal under §

1443(2) would be improper because Jimenez is not a federal officer or agent. See

City of Greenwood v. Peacock, 384 U.S. 808, 823–24, 86 S. Ct. 1800, 1809–10

(1966).

       For the foregoing reasons, we conclude the district court did not err in

concluding it lacked jurisdiction over the pending state court child custody




   1
      We have assumed, without ever holding, that § 1985(3) qualifies as an equal rights statute
for purposes of § 1443(1). See Conley, 245 F.3d at 1296. However, Jimenez has not provided
sufficient allegations to make facially plausible that he cannot pursue this claim in state court,
thus failing the second part of the Rachel test. See id. Accordingly, we need not address today
whether § 1985(3) definitively qualifies as an equal rights statute for purposes of § 1443(1).
                                                 5
                Case: 15-11861       Date Filed: 02/17/2016        Page: 6 of 15


dispute.2 Separately, we agree that the district court had jurisdiction over those

claims Jimenez raised under §§ 1983 and 1985, because these are federal statutes

providing federal question jurisdiction. See, e.g., Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 279, 97 S. Ct. 568, 572 (1977).

       We next determine whether Jimenez properly stated a claim for relief under

either federal cause of action.

                                                II

       To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to “state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).

“[N]aked assertions devoid of further factual enhancement” or “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

1949 (2009) (internal quotation marks omitted and alteration adopted). In

reviewing whether a complaint meets the pleading requirements, “[p]ro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys



   2
     To the extent Jimenez seeks injunctive relief from the state court’s order granting the
emergency motion suspending time-sharing with his children, we cannot provide such relief.
The state judicial proceedings remain ongoing, implicate important state interests in the family,
and there remains adequate opportunity for Jimenez to raise his constitutional challenges
throughout the ongoing proceedings as well as the state appellate courts. See Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515, 2521 (1982); 31
Foster Children v. Bush, 329 F.3d 1255, 1274–75 (11th Cir. 2003).
                                                6
             Case: 15-11861     Date Filed: 02/17/2016    Page: 7 of 15


and will, therefore, be liberally construed.” Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

      We review de novo a dismissal for failure to state a claim upon which relief

may be granted, “accepting the allegations in the complaint as true and construing

them in the light most favorable to the plaintiff.” Leib v. Hillsborough Cty. Pub.

Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).

                                          A

      In his amended complaint, Jimenez seeks to bring a claim under 42 U.S.C. §

1983 against several actors: Wizel, the mother of his children; Florida Department

of Children and Families (DCF); DCF investigator Thereza Hernandez; DCF case

coordinator Melyssa Lopez; attorneys Yvette B. Reyes Miller, Ana C. Morales,

Margarita Arango Moore, and Sabrina Salomon; Reyes & Arango Moore, P.L.

(R&AM) and the Legal Defense Firm of South Dade, P.L. (LDF); Vanessa L.

Archer; Archer Psychological Services P.A. (APS); guardian ad litem Anastacia

Garcia; and the Law Office of Anastasia M. Garcia, P.A. (LOAG) (collectively, the

Defendants). He alleges that the Defendants violated his First Amendment rights,

Fourteenth Amendment due process rights, and other unidentified federal rights.

      To state a claim for relief under § 1983, a plaintiff must allege that an act or

omission committed by a person acting under color of state law deprived him of a

right, privilege, or immunity secured by the Constitution or laws of the United


                                          7
              Case: 15-11861     Date Filed: 02/17/2016    Page: 8 of 15


States. See Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). A

person acts under color of law when he or she is “acting with power possessed by

virtue of the defendant’s employment with the state.” See Edwards v. Wallace

Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir. 1995). Although state employment is

“generally sufficient” to make a person a state actor, “[n]ot all actions by state

employees are acts under color of law.” Id. at 1523. A private party may be held

liable as a state actor in only three circumstances:

             (1) the State has coerced or at least significantly
             encouraged the action alleged to violate the Constitution
             (“State compulsion test”); (2) the private parties
             performed a public function that was traditionally the
             exclusive prerogative of the State (“public function
             test”); or (3) the State had so far insinuated itself into a
             position of interdependence with the private parties that it
             was a joint participant in the enterprise (“nexus/joint
             action test”).

See Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)

(internal quotation marks omitted and alteration adopted).

      The district court did not err in dismissing Jimenez’s § 1983 claim against

Wizel, Reyes Miller, Morales, Arango Moore, Salomon, Archer, Garcia, LDF,

R&AM, LOAG, and APS because they are private parties, and Jimenez did not

properly plead any allegations that the circumstances satisfy one of the three tests

to transform them into state actors. See id.; see also Higdon v. Smith, 565 F. App’x

791, 793 (11th Cir. 2014) (per curiam) (explaining that guardian ad litem was not a


                                           8
               Case: 15-11861    Date Filed: 02/17/2016    Page: 9 of 15


state actor under any of the three tests set forth in Rayburn). In addition, the

district court did not err in ruling that Jimenez failed to state a claim against DCF.

If DCF is a state agency, then it is entitled to sovereign immunity under the

Eleventh Amendment. See Fouche v. Jekyll Island-State Park Auth., 713 F.2d

1518, 1520 (11th Cir. 1983). Even if it is not a state agency, though, Jimenez’s

claim still fails because the only allegation he raised was that DCF is liable for the

actions of its agents, and “[r]espondeat superior or vicarious liability will not attach

under § 1983.” See City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197,

1203 (1989).

      Lastly, Jimenez failed to state a claim against Hernandez and Lopez.

Accepting the facts in the light most favorable to Jimenez, Hernandez and Lopez

may be considered state actors by virtue of their alleged employment at DCF.

Jimenez argues that Hernandez and Lopez violated his parental right to make

decisions pertaining to “the care, custody, and control” of his children, see Troxel

v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000) (plurality opinion),

without due process when they interviewed his minor children without receiving

his consent or providing him notice, and then gave a copy of the resulting report to

Wizel’s attorneys without providing him an opportunity to object to any

conclusions in the report. Even accepting these allegations as true, Jimenez has not

stated a plausible claim for relief under § 1983.


                                           9
             Case: 15-11861     Date Filed: 02/17/2016   Page: 10 of 15


      There are instances in which the First Amendment’s freedom of religion

intersects with the Fourteenth Amendment’s due process protections of parental

rights, and a parent’s interest subsequently sounds under both the First and

Fourteenth Amendments. See Prince v. Massachusetts, 321 U.S. 158, 164–66, 64

S. Ct. 438, 441–42 (1944). However, the fact that religious convictions underpin a

parent’s interest in raising his children does not insulate him from some

governmental interference in the family relationship. See id. at 166, 64 S. Ct. at

442; Foy v. Holston, 94 F.3d 1528, 1536 (11th Cir. 1996). The constitutional

guarantee to due process requires that a parent receive “timely notice, in advance

of a hearing in which parents’ rights to custody are at stake.” Dykes v. Hosemann,

743 F.2d 1488, 1494 (11th Cir. 1984). The plaintiff-parent must adequately allege

that his constitutional right was deprived without adequate process. See, e.g.,

Novak v. Cobb Cty.-Kennestone Hosp. Auth., 849 F. Supp. 1559, 1567 (N.D. Ga.

1994).

      Here, Jimenez did not properly allege that the relevant state actors denied

him adequate process. Although Jimenez alleges that interviewing the minor

children without his consent or notice is a deprivation of due process, we disagree.

The alleged interview arose in the middle of an ongoing child custody dispute,

amidst allegations that Jimenez was mistreating his children, and Jimenez failed to

plead any connection between the interview and the purported deprivation of his


                                         10
               Case: 15-11861       Date Filed: 02/17/2016      Page: 11 of 15


constitutional parental rights. Further, the alleged provision to Wizel’s attorneys of

a copy of a report generated from that interview, without first allowing Jimenez to

preemptively “correct” it, is not a deprivation of due process. In the absence of

additional, plausible, factual allegations tying a lack of process to the alleged

deprivation of a constitutional right, Jimenez’s complaint fails to assert a claim

against Hernandez and Lopez under § 1983. Therefore, we affirm the order of the

district court as to Jimenez’s § 1983 claim.

                                               B

       Jimenez also alleges that the Defendants conspired to violate his civil rights

and seeks relief under 42 U.S.C. § 1985(2), (3). We address each claim in turn.

Section 1985(2) provides a cause of action for two types of conspiracies: “[T]he

first four clauses of [§] 1985(2) refer to conspiracies that are designed to obstruct

the course of justice in any court of the United States” while “the last two clauses

of [§] 1985(2) refer to conspiracies designed to deny or interfere with equal

protection rights.” See Bradt v. Smith, 634 F.2d 796, 801 (5th Cir. Unit A Jan.

1981) (internal quotation marks omitted).3 To state a claim under § 1985(2), then,

the plaintiff must either “show a nexus between the alleged conspiracy and a

proceeding in federal court” or “show a racial or otherwise class-based


   3
      See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding
that all decisions of the “old Fifth” Circuit handed down prior to the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit).
                                               11
             Case: 15-11861      Date Filed: 02/17/2016    Page: 12 of 15


discriminatory animus.” Id.; cf. Kush v. Rutledge, 460 U.S. 719, 726, 103 S. Ct.

1483, 1488 (1983) (no requirement to show class-based animus when plaintiff

alleges a violation of the first part of § 1985(2)). Irrespective of the type of

conspiracy alleged, the plaintiff must provide sufficient allegations to make

plausible that there was a “meeting of the minds between two or more persons to

accomplish [the] common and unlawful plan.” See McAndrew v. Lockheed Martin

Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc).

      The district court concluded that Jimenez failed to state a claim under §

1985(2) because he provided insufficient allegations that any conspiracy that

occurred was premised on class-based animus. However, in so ruling, the district

court misunderstood claims under § 1985(2) to always require evidence of class-

based animus. Contrary to the district court’s reading, Jimenez’s complaint

attempts to allege both types of § 1985(2) conspiracies, only one of which requires

sufficient allegations of class-based animus. We conclude that the district court’s

error was harmless, however, because Jimenez failed to state a claim premised on

either type of conspiracy recognized under § 1985(2).

      Jimenez’s complaint first alleges that Reyes and Morales conspired with

Wizel to violate Jimenez’s civil rights by procuring an emergency hearing based

on an “inaccurate and misleading document[]” and without providing Jimenez

proper notice, because notice was sent to the wrong address. This type of


                                           12
             Case: 15-11861     Date Filed: 02/17/2016    Page: 13 of 15


allegation sounds more in the first type of conspiracy recognized under § 1985(2)

because it involves a judicial proceeding. However, the type of proceeding

allegedly involved was one in state court, not federal court; this is not an allegation

that properly forms a basis for relief under § 1985(2). See Bradt, 634 F.2d at 800

(describing the first type of conspiracy recognized under § 1985(2) as one

pertaining to obstructions of justice in federal courts); McAndrew, 206 F.3d at

1035 n.2.

      Separately, Jimenez alleges that several different actors conspired to violate

his civil rights and discriminated against him on the basis of his Christian faith.

This allegation sounds under the second half of § 1985(2). However, even

assuming that discrimination on the basis of identification with a particular

religious group could form the basis of a claim under § 1985(2), Jimenez’s

allegations prove conclusory in nature. For example, his complaint alleges that Dr.

Archer conspired with persons unnamed to violate his civil rights by making a

false DCF accusation pertaining to the burning of his daughter’s legs with an iron,

and that Dr. Archer’s report, upon which the state court relied, falsely determined

his religious beliefs to be “fanatical” in nature. Jimenez provides no statements

connecting these two allegations, or otherwise indicating that Archer intended to

discriminate against Jimenez on the basis of his religion. Moreover, Jimenez

provides no statements indicating that the existence of a conspiracy is factually


                                          13
               Case: 15-11861       Date Filed: 02/17/2016       Page: 14 of 15


plausible. Rather, Jimenez provides only “naked assertions devoid of further

factual enhancement,” which is not enough. See Iqbal, 556 U.S. at 678, 129 S. Ct.

at 1949 (internal quotation marks omitted and alteration adopted).

       Jimenez also seeks relief under § 1985(3). To state a claim for relief under §

1985(3), a plaintiff must allege sufficient facts reflecting

               (1) a conspiracy, (2) for the purpose of depriving, either
               directly or indirectly, any person or class of persons of
               the equal protection of the laws, or of equal privileges
               and immunities under the laws; and (3) an act in
               furtherance of the conspiracy, (4) whereby a person is
               either injured in his person or property or deprived of any
               right or privilege of a citizen of the United States.

See Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146–47 (11th Cir. 1996).

For purposes of the second element, the plaintiff must properly plead an allegation

that “some racial or perhaps otherwise class-based, invidiously discriminatory

animus [lay] behind the conspirators’ action.” See id. at 1147 (internal quotation

marks omitted).

       Although other circuits have recognized that a religious group may serve as

a protected class for purposes of the second element of a § 1985(3) claim, 4 this

circuit has not done so. However, even assuming that being a member of a

particular religious group provides a basis for a § 1985(3) claim, Jimenez’s

complaint still fails to state a claim because, as noted above, he provides no

   4
     Cf., e.g., Colombrito v. Kelly, 764 F.2d 122, 130–31 (2d Cir. 1985); Taylor v. Gilmartin,
686 F.2d 1346, 1357–58 (10th Cir. 1982); Ward v. Connor, 657 F.2d 45, 48 (4th Cir. 1981).
                                               14
               Case: 15-11861   Date Filed: 02/17/2016     Page: 15 of 15


allegations that any two individuals conspired to deprive him of equal protection of

the laws due to his religious beliefs. See, e.g., United States v. Moore, 525 F.3d

1033, 1039–40 (11th Cir. 2008) (describing basic elements of a conspiracy); see

also Childree, 92 F.3d at 1146–47 (listing the first two elements of a claim under §

1985(3) to be evidence of a conspiracy to deprive the plaintiff of equal protection

of the law).

       Therefore, the district court did not err in ruling that Jimenez failed to state

a claim under § 1985(3).

                                          III

      In light of the foregoing, we affirm the district court’s ruling that Jimenez

failed to state a claim upon which relief may be granted.

      AFFIRMED.




                                          15
