BLD-292

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-1144
____________
NABIL MIKHAIL,
Appellant
v.
JOLIE KAHN; DOROTHY PHILLIPS, DECEASED; ALAN
FELLHEIMER; HERBERT LUSTIG; MADDI JANE SOBEL;
ANTHONY PISA; PRESTON FINDLAY; CHIP MINTO;
SHEILA DUGAN; HON. ARTHUR TILSON, J.; HON.
EMANUEL BERTIN, J.; HON. RHONDA L. DANIELE, J.;
HON. CAROLYN T. CARLUCCIO, J.; HON. RICHARD P.
HAAZ, J.; HON. GARRETT D. PAGE, J.; HON. MARY
JANE BOWES, J.; HON. CHRISTINE L. DONOHUE, J.;
HON. JUDITH FERENCE OLSON, J.
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 13-cv-05130)
District Judge: Honorable Gene E. K. Pratter
__________________________________

Submitted for Possible Jurisdictional Defect Pursuant to 28 U.S.C. 1291

PER CURIAM
Appellant Nabil Mikhail appeals from an order of the District Court granting the
defendants motions to dismiss his complaint. For the reasons that follow, we will
summarily affirm.
Mikhail filed suit in the United States District Court for the Eastern District of
Pennsylvania under 42 U.S.C. 1983. The defendants included his wife, her attorneys,
court-appointed custody evaluators, a reunification therapist, child visitation supervisors,
an attorney for a nonprofit organization who provided an affidavit on child abduction and
conditions in Egypt, and nine Pennsylvania judges. Invoking the District Courts federal
question jurisdiction, 28 U.S.C. 1331, Mikhail alleged that the defendants made false
allegations of child abuse, and discriminated against him on the basis of race, gender and
religion, in violation of his civil rights. The claims arose in connection with the handling
by the defendants of a Protection From Abuse complaint by his wife, and the couples
divorce and custody proceedings. Among other allegations, Mikhail alleged that his
wife, Jolie Kahn, bribed one of the custody evaluators, and that the state court ordered
that he be prohibited from taking his child outside of Pennsylvania. Mikhail is a Coptic
Christian and United States citizen, who hails originally from Egypt. Kahn and at least
one of the defendants is Jewish. Mikhail also raised numerous state law claims, and he
sought injunctive and declaratory relief and money damages. The defendants who were
properly served moved to dismiss the complaint, Fed. R. Civ. Pro. 12(b)(6).

In an order entered on January 13, 2014, the District Court granted the motions
and dismissed most of the claims with prejudice. Certain claims were dismissed without
prejudice, although the District Court expressed doubt that an amendment to the
complaint would prove fruitful. In a thorough opinion, the District Court determined that
it lacked authority to afford Mikhail the relief he seeks.
Mikhail appeals. We have jurisdiction under 28 U.S.C. 1291.1 Our Clerk
advised Mikhail that the appeal was subject to summary affirmance under Third Cir.
LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has
submitted a brief, which was received for the Courts information. Appellee Preston A.
Findlay submitted a motion for summary affirmance, which Mikhail has opposed.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. The
District Court had jurisdiction to address Mikhails claim of a civil rights conspiracy, 28
U.S.C. 1343(a).2 However, the nine state court judges Judges Arthur Tilson, Emanuel

Because Mikhail has emphatically elected to stand on his complaint, that part of the
order which dismisses some of his claims without prejudice to his right to amend is
appealable. See Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001).
2
As amply explained by the District Court, subject matter jurisdiction is lacking to the
extent that Mikhail sought review of the Protection From Abuse orders or sought
declaratory relief relating to them. Great Western Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010) (Rooker-Feldman doctrine bars suits
in district court that are essentially appeals from state court judgments). The United
States Supreme Court, and not a lower federal court, has jurisdiction to review a final
state court judgment. See Parkview Associates Partnership v. City of Lebanon, 225 F.3d
321, 324 (3d Cir. 2000) (citing 28 U.S.C. 1257). In addition, to the extent that the
divorce and custody proceedings are ongoing and Mikhail sought relief relating to
specific visitation or support determinations, including the orders prohibiting him from
taking his daughter to visit her grandmother in Canada and requiring supervised
3

Bertin, Rhonda Danielle, Carolyn Carluccio, Richard P. Haaz, Garrett D. Page, Mary
Jane Bowes, Christine L. Donahue, and Judith Ferance Olson are immune from a civil
rights suit for money damages. Mikhails claims arise from the defendant judges having
issued orders some of them adverse to him and some not with the intent of carrying
out Pennsylvanias Protection From Abuse statute, and its divorce, custody, and visitation
laws. Judges are absolutely immunized from a civil rights suit for money damages
arising from their judicial acts. Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam);
Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). The orders entered in the state court
proceedings involving Mikhail may not serve as a basis for a civil action for damages.
See id. The claims for injunctive relief also are barred because Mikhail did not allege
that any judge violated a declaratory decree or that declaratory relief was not available in
his case. 42 U.S.C. 1983 ([I]njunctive relief against judicial officers for acts or
omissions taken in the officers judicial capacity shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.). Accordingly, dismissal of
the complaint against the defendant judges, including dismissal of Mikhails conclusory
claims of conspiracy, was proper.
With respect to the remaining defendants, Mikhail alleged that they conspired to
keep him from his minor child. They were motivated, he alleged, by discriminatory
animus based on his gender, his Coptic Christian religion, and his Egyptian nationality.

visitation, the District Court properly abstained from interfering in the ongoing state
proceedings. See Anthony v. Council, 316 F.3d 412, 420-21 (3d Cir. 2003) (Younger
abstention appropriate where important state interests concerning child support are
implicated).
4

In addition to Kahn and her attorneys, Phillips and Fellheimer, and Findlay, counsel for a
nonprofit organization, the remaining defendants included Dr. Herbert Lustig and Maddi
Jane Sobel, custody evaluators, Dr. Anthony Pisa, a reunification therapist, and Sheila
Dugan and Chip Minto, Kids First visitation supervisors. We conclude that Dr. Lustig
and evaluator Sobel are absolutely immunized from a civil rights suit for damages under
the doctrine of quasi-judicial immunity. Mikhails allegations show that Dr. Lustig and
Sobel were state court-ordered custody evaluators. Individuals charged with the duty of
carrying out facially valid court orders enjoy quasi-judicial absolute immunity from
liability for damages in a suit challenging conduct prescribed by that order. See Gallas v.
Supreme Court of Pennsylvania, 211 F.3d 760, 772-73 (3d Cir. 2000). This immunity
extends to evaluative functions when the evaluation is done, as it plainly was here, to
assist the court in its decision-making process. See Williams v. Consovoy, 453 F.3d 173,
178-79 (3d Cir. 2006) (licensed psychologist who evaluated inmate for state parole board
and presented his findings is absolutely immunized from suit for damages). Mikhail
failed to allege any plausible facts to show that the actions taken by these custody
evaluators were not an integral part of the judicial process. As with the judicial
defendants, dismissal of the complaint, including dismissal of Mikhails conclusory
claims of conspiracy against these two defendants, was proper.
Defendants Jolie Kahn and her lawyers, Alan Fellheimer and Dorothy Phillips
(now deceased), are not state actors and cannot be sued under 42 U.S.C. 1983. West v.
Atkins, 487 U.S. 42, 48 (1988) (to prevail on a section 1983 claim plaintiff must show
not only the violation of a right secured by the Constitution and laws of the United States
5

but also that the alleged deprivation was committed by a person acting under color of
state law). It is true that a private party will be deemed a state actor for purposes of
section 1983 liability if he or she has engaged in joint activity with state actors, Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 941 (1982), but Mikhail failed to allege plausible
facts sufficient to support a claim of joint activity, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). To properly plead an unconstitutional conspiracy, a plaintiff must assert facts
from which a conspiratorial agreement can be inferred. D.R. by L.R. v. Middle Bucks
Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992). See also Great Western
Mining, 615 F.3d at 176 (following Twombly and Iqbal, the plaintiff must assert enough
facts from which an agreement may be inferred).
Mikhails allegations of a conspiracy were conclusory and insufficient to suggest
that a conspiratorial agreement existed between these private actors and the other
defendants. The District Court was thorough in its review of Mikhails allegations of
conspiracy and properly found them lacking. See Dennis v. Sparks, 449 U.S. 24, 27-28
(1980) ([M]erely resorting to the courts and being on the winning side of a lawsuit does
not make a party a co-conspirator with a state actor.). The record before us is
insufficient to allow us to determine whether defendants Dr. Pisa, the reunification
therapist, and Kids First visitation supervisors Sheila Dugan and Chip Minto are state
actors. There is a suggestion that their participation in the custody proceedings was, as a
general matter, court-ordered. In any event, the conspiracy allegations against them,
6

including that they conspired with Kahn to deprive Mikhail of access to his daughter, also
are plainly inadequate to survive a Rule 12(b)(6) motion to dismiss. Great Western
Mining, 615 F.3d at 176. See also Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 679.
Preston A. Findlay, an attorney for the Missing Children Division of The National
Center for Missing and Exploited Children (NCMEC), provided an affidavit to Kahns
counsel regarding steps that parents can take to safeguard their children from abduction,
and country specific information regarding Egypt. The affidavit noted that Egypt is not a
Signatory to the Hague Convention on the Civil Aspects of International Child
Abduction, and therefore it cannot be enforced in Egypt. The affidavit further cited the
U.S. Department of States Information Sheet for the proposition that removal of a child
by the non-custodial parent to Egypt is not a crime in Egypt unless the child is subject to
Egyptian court-ordered travel restrictions. The affidavit also discussed red flag
indicators that a parent will abduct a child. Findlays nonprofit organization receives
funding from Congress.
Mikhails complaint against Findlay is that the affidavit is racist and misleading,
and that it contains falsehoods. Noting that Findlay likely was immune from suit under
18 U.S.C. 2258D,3 the District Court determined that, other than his insufficient
conclusory allegations that Findlay conspired with Kahn and her attorneys in violation of
3

Section 2258D provides that, except for intentional or reckless misconduct, a civil
claim or criminal charge against the National Center for Missing and Exploited Children,
including any director, officer, employee, or agent of such center, arising from the
performance of the CyberTipline responsibilities or functions of such center, as described
in this section, section 2258A or 2258C of this title, or section 404 of the Missing
Children's Assistance Act (42 U.S.C. 5773), or from the effort of such center to identify
child victims may not be brought in any Federal or State court. 28 U.S.C. 2258d(a).
7

his civil rights, Mikhail had not alleged any actionable wrongdoing on Findlays part.
We agree, and reiterate that Mikhails allegations that Findlays affidavit is racist and
based on falsehoods lacks adequate support. Findlays affidavit does not mention
Mikhail or his child, and provides only general information about child abduction and
Egypts stance with respect to the Hague Convention, which Mikhail has not shown to be
false or misleading.
Finally, as explained in detail by the District Court, section 242 of title 18 does not
authorize private criminal prosecutions for alleged wrongdoings, and creates no private
right of action. Accordingly, dismissal of Mikhails claims in Counts I and II brought
under section 242 was proper. In addition, the District Court properly declined to
exercise supplemental jurisdiction over Mikhails state law claims, 28 U.S.C.
1367(c)(3).
For the foregoing reasons, we will summarily affirm the order of the District Court
granting the defendants motions to dismiss.4 Appellee Findlays motion for summary
affirmance is granted.

Because we affirm on the bases stated, we find it unnecessary to reach and address the
several other bases noted by the District Court for dismissal of Mikhails complaint. Cf.
Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980) (We are free to affirm the
judgment on any basis which finds support in the record.).
8