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Harbin v. Partin

United States District Court, D. South Carolina

March 3, 2017

Jason A. Harbin, Plaintiff,
v.
Lori Partin; Julian L. Stoudemire; Stoudemire & Sprouse Law, PA, Defendants.

          REPORT AND RECOMMENDATION FOR DISPOSITION OF THE MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION

          Jacquelyn D. Austin United States Magistrate Judge.

         Jason A. Harbin (“Plaintiff”), proceeding pro se, brings this civil action alleging a violation of his federal constitutional rights, and he filed a “brief in support of Plaintiff's emergency motion for a temporary restraining order against amendment retaliation, ” which has been construed as a motion for temporary restraining order (“TRO”) and/or preliminary injunction. [See Docs. 1, 4.] Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915, and it appears that he is a non-prisoner.

         The undersigned has not determined yet whether service of process should be authorized on Defendants. This matter is before this Court on the emergency motion seeking a TRO.[1]

         BACKGROUND

         Plaintiff alleges that he is the father of two minor children, [2] and Lori Partin is the mother. [Doc. 4.] He appears to allege the following facts. Julian L. Stoudemire is an attorney with Stoudemire & Sprouse Law, PA, who has represented Lori Partin during family court proceedings in the Tenth Judicial Circuit of South Carolina. [Docs. 4, 5.] Plaintiff's first, fifth, and fourteenth amendment rights have been violated and “not upheld in this case from Oct. 4, 2011, ” which caused him to file this case and emergency motion. [Doc. 1.] ¶ 2015, Plaintiff's parental rights with respect to the two minor children at issue in this case were terminated by a South Carolina family court. [Doc. 4, Doc. 5-5 at 10.] He alleges that the two children “are unlawfully being placed for adoption by an unloving parent the Mother Partin.” [Doc. 4.]

         It appears Plaintiff appealed the family court decision to the South Carolina Court of Appeals. [Doc. 5-5 at 1.] And, it appears he unsuccessfully filed a petition for a writ of certiorari in the South Carolina Supreme Court. [Doc. 5-5 at 3; Doc. 5-4 at 40 (letter from an attorney to Jason Harbin dated Jan. 9, 2017, that Harbin had lost the case in state court).]

         Plaintiff alleges that due to fraud the opposing counsel blocked his “right to obtain his parental rights as a father.” [Doc. 4 at 8.] He contends “this is now a question for federal court since all options were used in state court, ” and this Court “must reinstate Father Harbin's right to parent his children.” [Id.]

         It appears that Plaintiff seeks an emergency order from this Court to halt “a future fraudulent adoption of the couple's two children” and “for a return of minor children to custody of the loving father.” [Doc. 4 at 1.]

         DISCUSSION

         Under the legal standard adopted by our Court of Appeals, this Plaintiff is not entitled to a temporary restraining order without notice to the adverse party or a preliminary injunction. See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 607 F.3d 355 (4th Cir. 2010)(per curiam) (“On further consideration, we now reissue Parts I and II of our earlier opinion in this case, 575 F.3d at 345-347, stating the facts and articulating the standard for the issuance of preliminary injunctions.”). The standard articulated in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008), now governs the issuance of preliminary injunctions. See Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342 (4th Cir. 2009), cert. granted and judgment vacated, 559 U.S. 1089 (2010); see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014).

         Under the Winter standard, Petitioner must demonstrate “‘[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.'” Real Truth About Obama, Inc., 575 F.3d at 346 (quoting Winter, 555 U.S. at 20). All four requirements must be satisfied. Id. Furthermore, to obtain injunctive relief, Petitioner must demonstrate more than the “possibility” of irreparable harm because the “possibility of irreparable harm” standard is inconsistent with the Supreme Court's characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that a petitioner is entitled to such relief. Id.

         Plaintiff is not likely to succeed on the merits. Thus, he cannot satisfy the first Winter prong, and the motion for temporary restraining order/preliminary injunction should be denied. First, Plaintiff is not likely to succeed on the merits because he fails to allege a plausible claim pursuant to § 1983 due to his failure to allege state action. A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         Section 1983 “provides a cause of action against any person who deprives an individual of federally guaranteed rights ‘under color' of state law.” Filarsky v. Delia, 132 S.Ct. 1657, 1661 (2012). “Anyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Id. The allegations against Lori Partin, the mother, her attorney, Julian L. Stoudemire, and the law firm, seem to allege they are private citizens or entities. There are no allegations that the Defendants acted in any way attributable to a state. With few exceptions, purely private conduct, no matter how wrongful, is not actionable under 42 U.S.C. § 1983 and the United States Constitution. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1983); Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). Therefore, Plaintiff's likelihood of success on his § 1983 claim is poor where he fails to allege sufficient state action.

         Additionally, Plaintiff's likelihood of success on the merits of this case is poor due to the Rooker-Feldman doctrine; this action will likely be dismissed based on that doctrine. Where a plaintiff files an action in a United States district court to seek review and reversal of a state court judgment rendered before the district court proceedings commenced, the claim is barred by the Rooker-Feldman doctrine; only the United States Supreme Court may review state-court decisions. See Davani v. Virginia Dep't of Transp., 434 F.3d 712, 719 (4th Cir. 2006) (explaining how the expansive interpretation of the Rooker-Feldman doctrine was limited by Exxon Mobile Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)); see also Dukes v. Stone, No. ...


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