UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

The facts of this ease have been set forth by the Magistrate Judge in the Recommendation and so will only be stated here in summary form. Plaintiff Blackston was appointed, pursuant to a consent decree entered into in 1995, to the Advisory Committee on Child Support Guidelines Updates and Enforcement. The Plaintiffs claim that the Defendants have sought to eliminate Blackston from the Committee by holding secret and closed meetings, that the Defendants have misappropriated incentive payments for the update process, and have taken other actions in violation of the Plaintiffs' rights.

The Magistrate Judge has recommended that the Defendants' Motion to Dismiss the claims of the Plaintiffs be granted in part and denied in part. For reasons to be discussed, the court adopts the Magistrate Judge's Recommendation in part, modifies the Recommendation in part. and rejects the Recommendation in part.

II. STANDARD OF REVIEW

In a civil action, the district court may refer motions to dismiss to a United States Magistrate Judge for a recommendation. 28 U.S.C. § 636(b)(1)(B). The district judge must conduct a de novo review of the portions of the Magistrate Judge's recommendation to which a party has objected. Id.; see also Jeffrey S. v. State Board of Education of the State of Georgia, 896 F.2d 507, 513 (11th Cir. 1990).

III. DISCUSSION

The Plaintiffs' pro se Verified Complaint sets forth various claims for relief, each of which is the subject of the Defendants' Motion to Dismiss. While the Plaintiffs have specifically outlined some claims, the Plaintiffs have also asserted in the opening paragraphs of their Verified Complaint that claims are brought under various state and federal laws. The Magistrate Judge entered a Recommendation as to the specifically stated claims as well as claims which could be brought under the statutes listed at the beginning of the Verified Complaint.

One of the primary claims for relief being asserted by the Plaintiffs is a 42 U.S.C. §1983 claim for violation of the Plaintiffs' First Amendment rights. The Magistrate Judge has recommended that the Plaintiffs be allowed to proceed on this claim. No objection has been filed by the Defendants to the Magistrate Judge's Recommendation. The court, therefore, adopts the Recommendation to the extent that it finds that the Plaintiffs should be allowed to proceed on their First Amendment claim.(1)[1]

Another primary claim brought by the Plaintiffs is for violation of the consent decree entered into by the Plaintiffs and by Defendant Judge Richard Dorrough. This claim is described in the Verified Complaint as a claim for Violation of the Consent Decree and Contempt of the Alabama Supreme Court's Order. See Verified Complaint at Claim One. The Plaintiffs have also brought a claim for "obstructing obligations of contracts." The Magistrate Judge construed these claims as state law claims for breach of contract or violation of the settlement agreement.

The Magistrate Judge recommended that this court decline to exercise supplemental jurisdiction over any state law claims because courts can decline supplemental jurisdiction where the federal claims over which they have original jurisdiction have been dismissed, and because the state law claims in this case are better decided by the state courts.

This court declines to adopt the analysis of the Magistrate Judge on this claim. This court has original jurisdiction over a federal claim in this case, the First Amendment claim as to which the Magistrate Judge recommended denial of the Motion to Dismiss, and so cannot decline to exercise supplemental jurisdiction on the basis articulated by the Magistrate Judge. Also, the court finds this court to be an appropriate forum because the consent decree itself states that "A violation of the agreement may be used as grounds for a lawsuit for breach of contract in state or federal court." Consent Decree, page 6. The court, therefore, rejects the Recommendation to the extent that it states that the breach of contract claim should be dismissed.

In their Response, the Plaintiffs argue that this case does not involve state contract law, but is instead a case in which the Defendants should be determined to be in contempt of court. The Plaintiffs then move this court to issue a show cause order for why the Defendants should not be held in contempt of court. They cite the court to an Eleventh Circuit decision in which the court explained that the proper procedure in that case was for the plaintiffs to move for an order to show cause why the defendants were not in contempt of the consent decree. See Newman v. Alabama, 683 F.2d 1312 (11th Cir. 1982). In this case, however, the parties expressly agreed that a violation of their agreement would be remedied by a lawsuit for breach of contract. See Consent Decree at page 6. The claim will, therefore, be treated by this court as a state law breach of contract claim.

The court is aware that in their Motion to Dismiss, the Defendants raised various immunity issues as to the Plaintiffs' claims. With respect to the breach of contract claim, however, the parties agreed that a violation of the consent decree could be remedied by suit in state or federal court. See id. The court also notes that this breach of contract claim can apparently only be brought against Judge Dorrough in his individual and official capacities because the consent decree was entered into between the Plaintiffs and Judge Dorrough in his individual and official capacities. See id. at page 7.

The Plaintiffs also assert a claim for misappropriation of federal funds in violation of the Child Support Enforcement Amendments of 1984 and the Family Support Act of 1988. The Plaintiffs claim that funds provided under the Aid to Families with Dependent Children program have been diverted by the Defendants into a "for profit" scheme. See Plaintiffs' Response to the Magistrate Judge's Recommendation at page 16. The Magistrate Judge recommended that this claim be dismissed because the Plaintiffs failed to establish any basis for a finding of a federal cause of action.

The Plaintiffs have objected to the Magistrate Judge's Recommendation, stating that Blackston, as a member of Alabama's Child Support Guidelines Update Committee, is an agent of the state seeking state compliance with federal law. As the Plaintiffs themselves point out, however, there are administrative mechanisms in place for monitoring states to ensure that they are complying with the requirements of the child support laws. See e.g. 42 U.S.C. § 503 (charging the Secretary of Labor with responsibility for enforcing the requirements of Aid to Families with Dependent Children). A lawsuit in federal court, whether or not brought a state agent, is not the method of enforcement contemplated by the applicable laws.

The Plaintiffs argue alternatively that they may bring a § 1983 action to enforce the provisions of Title IV-D of the Social Security Act. The Plaintiffs claim that because Congress requires the states to adopt child support guidelines which determine the amount of the child support awards, and to provide for wage withholding in support awards, Title IV-D creates enforceable rights. Plaintiffs' Response to the Magistrate Judge's Recommendation, page 16.

The Plaintiffs point this court to Blessing v. Freestone, 520 U.S. 329 (1997). In Blessing, the Supreme Court left open the possibility that there may be a private right of action under Title IV-D on behalf of parents to whom child support payments are due. Id. at 346. The Court left for determination by the lower court the questions of exactly what rights the plaintiffs were claiming and whether the claims asserted a federal right. Id. at 346. One of the allegations by a mother in the case was that the state agency collected some support payments from her ex-husband, but failed to follow the requirement that the first $50 be given to her. Id. at 345-46. The Court opined that the pass through requirement may have created a federal right in the mother. Id. While recognizing that some rights might be created under the statute, the Court explained that provisions such as the staffing levels of a state agency and requirements for the data processing system did not create federal rights. Id. at 344-45. The Court also rejected the idea that a federal right was created by the requirement that a state operate its child support program in compliance with the statute. Id.

In this case, the Plaintiffs are non-custodial fathers who are not recipients of the federal funds. The portions of the laws to which they have specifically pointed arc provisions requiring the states to adopt guidelines and to withhold wages. The Plaintiffs do not attempt to assert rights under provisions which apply to them. Their claims are most analogous to the idea, rejected by the Court in Blessing, that a federal right is created by the requirement that a state operate its child support program in compliance with the federal statute. The court, therefore, agrees with the Magistrate Judge that the Plaintiffs have not asserted a federal right which can be the basis of a private right of action, and adopts the Recommendation to the extent that it states that the misappropriation of federal funds claim is due to be dismissed.

The Plaintiffs have also asserted a claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. § 1961- 1968. While the court agrees with the Magistrate Judge's Recommendation that this claim is due to be dismissed for failure to specifically plead the claim, the court modifies the Recommendation and finds that the claim is to be dismissed without prejudice. The Plaintiffs are to be given until March 1, 2000 to file an amendment to the Verified Complaint, as amended, to plead more specifically the time, place, and manner of the alleged offenses underlying their RICO claim, if the Plaintiffs choose to so amend. The court does not find that the Plaintiffs have a valid RICO claim, but merely gives the Plaintiffs an opportunity to specifically plead such a claim.

The Plaintiffs have listed 42 U.S.C. §1985, 42 U.S.C. §1986, and 42 U.S.C. §1988 as statutes under which claims are brought. They have not, however, asserted these statutes in the claims section of the Verified Complaint. The Magistrate Judge recommended that the 42 U.S.C. § 1988 claim be dismissed because there were no claims upon which the Plaintiffs were prevailing parties. The court modifies the Recommendation on this point because the claim is due to be dismissed, but the reason for the dismissal is that non-lawyer, pro se parties are not entitled to recover attorneys' fees under 42 U.S.C. § 1988. See Kay v. Ehrler, 499 U.S. 432 (1991)(noting the broad agreement among the circuits "on the proposition that a pro se litigant who is not a lawyer is not entitled to attorney's fees," and stating that the cases so holding were correctly decided); Celeste v. Sullivan, 988 F.2d 1069, 1070 (1lth Cir. 1992). Therefore, although it is premature to say the Plaintiffs are not prevailing parties on a federal claim in view of the fact that their First Amendment claim has not been determined, the pro se Plaintiffs can in no event recover attorneys fees under § 1988.

As to the § 1985 claim, and the § 1986 claim which derives from a § 1985 claim, the Magistrate Judge recommended that the claims be dismissed because the Plaintiffs have not alleged class-based discrimination. Under § 1985(3), a plaintiff must show that some racial or otherwise class-based animus lay behind a conspirator's acts, and that the conspiracy was aimed at interfering with rights which are protected against private as well as official encroachment. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267 (1993).

The Plaintiffs have objected to the Magistrate Judge's recommendation that the § 1985 and §1986 claims be dismissed, arguing that their case presents a case of "reverse sex discrimination against fathers (men)." Plaintiffs' Response to the Magistrate Judge's Recommendation at page 12. The Plaintiffs argue that the equal protection clause of the Fourteenth Amendment protects women from sex discrimination, and so should also protect fathers from such discrimination. (2)[2] It is clear from the Plaintiffs' arguments and Verified Complaint and the amendment thereto, however, that the Plaintiffs do not claim discrimination against all men, or even all fathers, but only against non-custodial fathers who are required to pay child support. The allegations are not of gender-based animus, but of animus towards noncustodial fathers. See Plaintiffs' Response to the Magistrate Judge's Recommendation page 11 (identifying the class as "non-custodial fathers").

Other courts which have addressed similar issues have determined that 42 U.S.C. §1985 does not cover claims brought by divorcing, or divorced fathers, or fathers engaged in custody disputes. See Humphrey v. The Court of Common Pleas of York County, 640 F. Supp. 1239, 1243 (M.D. Pa. 1986)(dismissing plaintiffs' 42 U.S.C. § 1985 claim of a conspiracy with state actors against divorcing fathers, divorced fathers, or fathers engaged in custody disputes); Buchanan v. Buchanan, 42 F.3d 1398, 1994 WL 680992 (9th Cir. Dec. 6, l994)(unpublished disposition)("Divorced fathers seeking custody of their children do not form a protected class under §1985."). The reasoning of these courts, with which this court agrees, is that divorce is not an immutable characteristic, and fathers in custody disputes have not suffered pervasive discrimination. Humphrey, 640 F. Supp. at 1243. Similarly, the classification relied on by the Plaintiffs in this case, non-custodial fathers, is neither an immutable characteristic, nor does it include a group which has been subjected to pervasive discrimination. The court, therefore, agrees that the Plaintiffs have failed to state a claim under §1985 and § 1986, and accepts the Magistrate Judge's Recommendation that the 42 U.S.C. §1985 claim, and the derivative claim under 42 U.S.C. §1986, be dismissed.

IV. CONCLUSION

For the reasons discussed, it is ORDERED that the Magistrate Judge's Recommendation is adopted in part, modified in part, and rejected in part as stated above. The case will proceed on the Plaintiffs' First Amendment claim and state law breach of contract claim. The Plaintiffs are given until March 1, 2000 to more specifically plead a claim under RICO, should they choose to do so.

Done this 16th day of February, 2000.

W. Harold Albritton
Chief United States District Judge
 

1. 1[1] The court notes that the Plaintiffs, while not objecting to being allowed to proceed on the First Amendment claim, have responded to the Magistrate Judge's statements indicating concern with the viability of this claim. The Magistrate Judge indicated in her Recommendation that she was unable to determine whether the First Amendment claims were based on the same alleged instance of a denial of the right to tape record meetings which was the basis of earlier litigation resolved by consent decree. The Magistrate Judge expressed concern that the claim is not timely or is barred under a legal theory. In their Response, the Plaintiffs clarify that the First Amendment claim is based on events which have occurred subsequent to the consent decree. Specifically, they argue that the Defendants have tried to eliminate Blackston's appointment to the Alabama Supreme Court's Advisory Committee on Child Support Guidelines and Enforcement and, in doing so, have limited the Plaintiffs' ability to exercise their rights of free speech. Plaintiffs' Response to Magistrate Judge's Recommendation, page 8. This, then, is the nature of the First Amendment claim that is allowed to proceed.

2. 2[2] It is not clear whether the Plaintiffs are arguing that a violation of equal protection is separately actionable in this case. There is no equal protection claim stated in the Verified Complaint or the amendments to the Verified Complaint, however, and neither the Defendants nor the Magistrate Judge apparently interpreted the Verified Complaint or the amendment to it to state such a separate claim. Even liberally construing the Plaintiffs' Verified Complaint and the amendment to it, this court finds that no separate equal protection claim has been brought in the Verified Complaint and its amendment as they are presently pleaded.

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