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WEINSTEIN v. TOWNSHIP OF FRANKLIN

September 14, 1995

BARRY WEINSTEIN, Plaintiff,
v.
TOWNSHIP OF FRANKLIN, NEW JERSEY, et al., Defendants.



The opinion of the court was delivered by: MARY LITTLE PARELL

 PARELL, District Judge

 This matter comes before the Court on motion of plaintiff for the issuance of a "temporary injunction," and on separate motions of defendants Brenda Smith and Robert Gaynor, and defendant Deborah T. Poritz for dismissal under Fed. R. Civ. P. 12(b)(6). Objections have been filed by the parties opposing the motions. For the reasons stated, the motion of defendants to dismiss is granted and the motion of plaintiff for injunctive relief is denied.

 FACTUAL BACKGROUND

 Plaintiff and his wife were divorced in 1992 when their only child David was four years of age. The Dual Judgment of Divorce provided for joint custody of David conditioned upon plaintiff's submission of the results of certain drug and alcohol tests. (Pl.'s Ex. 2, PP p, q, r, s.) *fn1" Plaintiff never submitted the required reports, thus giving the former Mrs. Weinstein sole custody of David. (Pl.'s Exs. 4 & 5: Court Orders of the Court of Common Pleas of Northampton County, Pennsylvania, dated July 9, 1993 and December 9, 1993, No. 1993-C-5117.)

 On April 30, 1994, at approximately 11:40 A.M., it appears that David Weinstein, age six, was playing outside his Franklin Township, New Jersey, home. Without prior permission or notification, plaintiff picked up David and took him to upstate New York. (Pl.'s Ex. 3: Somerset County Grand Jury Transcript of June 24, 1994.) The police were notified and, following a call from plaintiff as to his whereabouts, David was returned to New Jersey. Plaintiff was arrested and charged with violation of N.J. Stat. Ann. 2C:13-4, which makes it a criminal offense to interfere with child custody orders. *fn2"

 This matter was opened to the Court on March 29, 1995, by means of an unverified Complaint of plaintiff Barry Weinstein seeking a temporary restraining order and for an order to show cause why a preliminary injunction should not issue against defendants Franklin Township, Somerset County, Detective Lewis and other unnamed John Does. (Complaint filed March 27, 1995.) The Court found the application deficient and denied plaintiff's request without prejudice. (Order filed March 27, 1995.) On April 6, 1995, plaintiff filed a deficient "reapplication for an Order to Show Cause." (See Papers submitted April 6, 1995.) Subsequently, on May 11, 1995, plaintiff filed an amended Complaint seeking declaratory and injunctive relief and naming as additional defendants New Jersey Attorney General Deborah Poritz, Somerset County Prosecutor Nicholas Bissel, and Craig Bartow. (Amended Complaint filed May 11, 1995.) On June 15, 1995, plaintiff filed an additional set of papers also seeking a temporary injunction against defendants. (See Brief filed June 15, 1995.) In each of his submissions, plaintiff appears to be challenging his ongoing prosecution under N.J. Stat. Ann. 2C:13-4 (1994), a statute that criminalizes conduct of any person, including a parent, who detains a minor child with the purpose of concealing the child and thus depriving the child's other parent from lawful custody or visitation. Plaintiff appears to challenge the constitutionality of this statute and thereby seek to halt his pending prosecution.

 On June 21, 1995, plaintiff filed a separate lawsuit under 42 U.S.C. § 1983, docketed as Weinstein v. Smith, et al., No. 95-2965 (MLP). *fn3" There, plaintiff alleged that, inter alia, two members of the Somerset Regional Office of the New Jersey Office of the Public Defender, Brenda Smith and Robert Gaynor, deprived plaintiff of his constitutional rights. Plaintiff alleged that Smith and Gaynor conspired with the judiciary in permitting any charges that plaintiff interfered with child custody to go forward. Due to the fact that the new lawsuit was intimately connected to the prior lawsuit, this Court consolidated the two cases. (Order of July 25, 1995.)

 On July 11, 1995, defendant Deborah Poritz filed a motion to dismiss the Complaint on the basis that: (1) the Attorney General is not involved in the plaintiff's prosecution under N.J. Stat. Ann. 2C:13-4; (2) the Complaint lacks specificity as to defendant Poritz; (3) adjudicating the Complaint would impermissibly involve the federal court in the exclusively state matter of domestic relations; and (4) the Complaint is barred by the Eleventh Amendment.

 DISCUSSION

 A. Plaintiff's Request for Injunctive Relief

 Plaintiff has asked for a "temporary injunction . . . preventing the named defendants from any further prosecution, any further unconstitutional actions, causing irreparable injury to the plaintiff and his son." (Pl.'s Br.) Plaintiff further contends that "N.J. Stat. Ann. 2C:13-4 is unconstitutional on its face since custody is awarded in over 95% [sic] to women/mothers; as is common knowledge, as per this courts [sic] mandatory obligation to recognize under judicial notice ...


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