Isaac Sefa v. Commonwealth of Kentucky, Cabi

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Helene N. White, Circuit Judge and Peter C. Economus, U.S. District Judge for the Northern District of Ohio, sitting by designation.

Case: 12-5455

Document: 006111551102

Filed: 01/07/2013

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0038n.06

FILED

No. 12-5455

Jan 07, 2013

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ISAAC SEFA,
Plaintiff-Appellant,
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH & FAMILY
SERVICES,
Defendant-Appellee.

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DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY

Before: MARTIN and WHITE, Circuit Judges; ECONOMUS, District Judge.*

PER CURIAM. Isaac Sefa, a pro se Kentucky resident, appeals a district court judgment
granting the defendant’s motion to dismiss. We AFFIRM.
Seeking monetary, declaratory, and injunctive relief, Sefa sued the Kentucky Cabinet for
Health and Family Services (the Cabinet). Sefa alleged that the Cabinet kidnapped his niece and
nephew in connection with a state-court action for neglect instituted against two of Sefa’s sisters.
Sefa claimed that the Cabinet violated his rights under the First, Fourth, and Fourteenth Amendments
to the United States Constitution, suing under 42 U.S.C. §§ 1981 and 1983. He also raised claims
under several other federal statutes in his complaint.
The district court dismissed Sefa’s complaint for failure to state a claim. Sefa appeals,
reasserting his claims for monetary and declaratory relief, as well as “seek[ing] [an] injunctive order”

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The Honorable Peter C. Economus, United States Senior District Judge for the Northern
District of Ohio, sitting by designation.

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No. 12-5455
-2directing the Cabinet to release his niece and nephew from state custody and to halt all “spiritual
attacks” against his family.
We review de novo a district court’s dismissal of a complaint for failure to state a claim.
Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425, 429 (6th Cir. 2012). Sefa’s claims against
the Cabinet are barred by the Eleventh Amendment to the United States Constitution. The Eleventh
Amendment “bars all suits, whether for injunctive, declaratory or monetary relief, against the state
and its departments.” Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d
376, 381 (6th Cir. 1993). Because Kentucky has not waived its Eleventh Amendment immunity and
Congress has not abrogated state sovereign immunity under sections 1981 and 1983 or any other
federal statute cited by Sefa, his claims against the Cabinet cannot proceed. See Hafford v. Seidner,
183 F.3d 506, 512 (6th Cir. 1999) (recognizing that section 1981 claims against a state agency are
barred by the Eleventh Amendment); Whittington v. Milby, 928 F.2d 188, 193–94 (6th Cir. 1991)
(recognizing that section 1983 claims against a state agency are barred by the Eleventh Amendment).
Moreover, the Cabinet is not a “person” subject to suit under section 1983. See Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).
We generally would not affirm the dismissal of a pro se plaintiff’s civil-rights complaint
based solely on a pleading deficiency (here, Sefa’s naming of a state agency as the defendant instead
of an appropriate state official who can be sued under the civil-rights statutes) that is curable by
amendment. See Brown v. Matauszak, 415 F. App’x 608, 615–16 (6th Cir. 2011) (remanding case
for district court to provide pro se plaintiff, alleging a civil-rights claim under section 1983, with
opportunity for leave to amend to cure pleading deficiencies where plaintiff stated “non-frivolous”
and “perhaps even meritorious” claim). The district court, however, did not dismiss Sefa’s
complaint on the sole basis of Eleventh Amendment immunity but addressed whether Sefa’s claims
were plausible. We conclude that Sefa’s complaint would be subject to dismissal even if he
substituted a proper defendant for the Cabinet. First, to the extent Sefa seeks a declaration that the

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-3state’s child-custody determination was unlawful, an injunction for the minor children’s release, and
monetary damages arising from the child-custody decision, these claims “constitute collateral attacks
on the state court judgments terminating [his sisters]’ parental rights and [were] properly excluded
from consideration by the [district] court[].” Stephens v. Hayes, 374 F. App’x 620, 623 (6th Cir.
2010); see Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).
Second, Sefa lacks standing to assert claims on behalf of the minor children, as he does not
establish that he has parental rights over them, see Stephens, 374 F. App’x at 622 (citing Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17–18 (2004)), or on behalf of his sisters, since a plaintiff
generally cannot rest his claims on the legal rights or interests of third parties and Sefa does not
establish that his sisters cannot vindicate their own interests, see Norton v. Ashcroft, 298 F.3d 547,
555 (6th Cir. 2002). Third, to the extent Sefa seeks an order directing the Cabinet (or any properly
substituted state official) to halt spiritual attacks against his family, he fails to allege any plausible
facts to suggest that the state agency or any state official is responsible for such attacks. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Nor has Sefa established how a federal court has the capacity
to redress such alleged harms.
Fourth, Sefa cannot assert a private right of action under any of the federal criminal statutes
on which he bases claims for relief. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A]
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another.”). Lastly, he cannot assert a claim under 15 U.S.C. § 57b, which applies to civil actions by
the Federal Trade Commission for violations of rules and cease and desist orders respecting unfair
or deceptive acts or practices. See Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d
Cir. 1974) (“[T]he provisions of the Federal Trade Commission Act may be enforced only by the
Federal Trade Commission.”).
The district court’s judgment is affirmed.