Donahue v. Brownback et al

Filing 34

MEMORANDUM AND ORDER granting 25 DEFENDANT DANIELLE BARTELLI'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT; granting 27 DEFENDANTS KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES, GOVERNOR SAM BROWNBACK, PHYLLIS GILMORE, KARA NIC HOLSON AND TRISHA THOMAS' MOTION TO DISMISS; granting 29 MOTION TO DISMISS ON BEHALF OF STEPHEN M. HOWE. Signed by District Judge J. Thomas Marten on 10/18/2017. Mailed to pro se party Toni R. Donahue at 322 S Broadway St. Fort Scott, KS 66701 by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TONI DONAHUE individually and on behalf
of minor child DCD,
Plaintiff,
vs.

Case No. 17-2435-JTM

GOVERNOR SAM BROWNBACK et al.,
Defendant.

MEMORANDUM AND ORDER

Pro se plaintiff Toni R. Donahue alleges in her Second Amended Complaint,
advanced on behalf of herself and her minor child, DCD, that the defendants violated the
United States Constitution, various federal statutes, and rights recognized by the United
Nations, by their conduct including the filing of a truancy petition involving DCD, and the
passage of the Kansas Freedom from Unsafe Seclusion and Restrain Act, which limits the
ability of school districts to subject students to unwarranted physical restraint or seclusion,
unless the student presents a reasonable and immediate danger of physical harm. Donahue
sues Kansas Governor Sam Brownback and officials of the Kansas Division of Child and
Family Services (DCF), Danielle Bartelli (an officer of KVC, a company providing child
welfare services), and Johnson County District Attorney Stephen Howe.

The defendants have moved (Dkt. 25, 27, 29) to dismiss the action. Donahue has not
filed any timely response to the motions. Pursuant to D.Kan.R. 7.4, defendants motions are
granted as uncontested, and for good cause shown.
The State defendants are entitled to dismissal of plaintiff’s § 1983 claims because
DCF and its employees are protected by Eleventh Amendment immunity. See Bock
Associates v. Chronister, 951 F. Supp. 969 (D. Kan. 1996); Cosgrove v. Kansas Dept. of Social and
Rehabilitative Services, 744 F. Supp.2d 1178, 1189 (D. Kan. 2010). In addition, although the
complaint asserts claims against Governor Brownback and DCF defendant Nicholson “in
their individual capacities,” the complaint fails to present any affirmative link between any
alleged constitutional violation and the alleged harm. Nicholson, as an employee of DCF
is entitled to qualified immunity as to plaintiff’s failure to investigate claim, as any duty
on the part of DCF was owed to the public at large rather than plaintiff as an individual.
See Burney v. Kansas Dept. of SRS, 23 Kan. App.2d 394, 400, 931 P.2d 26, 30-1 (1997).
Governor Brownback is entitled to immunity for his role in signing legislation into law. See
Emergency Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003).
Defendant Howe is entitled to dismissal because the complaint fails to identify any
law which would support a claim for relief as to the Johnson County District Attorney, and
fails to demonstrate any personal participation in any unlawful conduct. In addition, any
such claims are barred by both Eleventh Amendment immunity. See Ontiberos v. Ladner,
No. 15-1179-JTM, 2015 WL 6811787 (D. Kan. Nov. 5, 2015, and prosecutorial immunity.
Imbler v. Pachtman, 424 U.S. 409, 410 (1976).
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Defendant Bartelli is entitled to dismissal because the complaint fails to specify any
specific actions by her which justifies a claim for relief. Instead, the complaint simply
recites various statutes of causes of action, without any explanation of how the defendant’s
conduct violated any particular right.
In addition, the defendants correctly observe that Donahue, as a non-attorney, has
no standing to present claims on behalf of her minor child, DCD. See Zhu v. Countrywide
Realty Co., 160 F. Supp. 2d 1210, 1225–26 (D. Kan. 2001) (federal law “does not permit pro
se litigants to represent other parties, even their own children”).
IT IS ACCORDINGLY ORDERED this 18th day of October, 2017, that the
defendants’s Motions to Dismiss (Dkt. 25, 27, 29) are hereby granted.

____s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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