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."); Ankenbrandt v. Richards, 504 U.S. 689, 704, 119 L. Ed. 2d 468, 112 S. Ct. 2206 (1992) ("State courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. Moreover, as a matter of judicial expertise, it makes far more sense to retain the rule that federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals over the past century and a half in handling issues that arise in the granting of such decrees.")
In addition, to demonstrate a likelihood of success on the merits, plaintiff must demonstrate a likelihood that he can prove that the statute in question is unconstitutional. This is a significant burden because it is well settled that a duly enacted statute is presumed to be constitutional. McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809, 22 L. Ed. 2d 739, 89 S. Ct. 1404 (1969); Eaton v. Jarvis Prods. Corp., 965 F.2d 922 (10th Cir. 1992). Plaintiff's arguments that the statute is facially unconstitutional are unpersuasive. For example, plaintiff argues that, because more mothers than fathers are granted custody (an assertion for which plaintiff provides no factual basis), the statute that prohibits the non-custodial parent from interfering with the rights of the custodial parent illegally discriminates on the basis of gender. Such a contention, even if true, can be made in state court.
Therefore, after reviewing the parties' submissions, the Court does not find that plaintiff has satisfied the requirements for the issuance of a preliminary injunction.
B. Motions to Dismiss
1. Defendants Smith and Gaynor
Defendants Smith and Gaynor of the Public Defender's Office contend that their official actions taken in connection with the representation of plaintiff were not under color of state law for purposes of liability under 42 U.S.C. § 1983. The Court agrees with this contention. Under Black v. Bayer, 672 F.2d 309, 314, (3d Cir.), cert. denied, 459 U.S. 916 (1982), the Court of Appeals for the Third Circuit held that public defenders acting in their official capacities are absolutely immune from civil liability under section 1983. Id. at 320.
In addition, plaintiff has failed to adequately set forth the elements necessary to state a claim for conspiracy. See United Bhd. of Carpenters v. Scott, 463 U.S. 825, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983). Plaintiff has not alleged any overt acts that might constitute a conspiracy. Therefore, plaintiff's conspiracy claim is dismissed under Fed. R. Civ. P. 12(b)(6).
2. Defendant Poritz
Plaintiff's submissions make it unclear what relief plaintiff seeks from Defendant Poritz. Poritz is not connected to plaintiff's prosecution nor has defendant sought to intervene in plaintiff's apparent constitutional challenge of the statute. See New Jersey Court R. 4:28-4(d). Therefore, defendant's motion to dismiss shall be granted. An appropriate Order accompanies this Opinion.
This matter having come before the Court by motion of plaintiff for injunctive relief and by defendants Brenda Smith, Robert Gaynor and Deborah T. Poritz for dismissal; and the Court having reviewed the submissions of the parties; and good cause appearing;
IT IS on this 14th day of Sept., 1995, ORDERED that the motion of plaintiff for a preliminary injunction be and is DENIED;
IT IS FURTHER ORDERED that the motions of defendants Poritz, Gaynor, and Smith to dismiss under Fed. R. Civ. P. 12(b)(6) be and are hereby GRANTED.
MARY LITTLE PARELL
United States District Judge