Protheroe v. Masarik

Filing 9

MEMORANDUM AND ORDER denying as moot 3 Motion for Leave to Proceed in forma pauperis ; adopting Report and Recommendations re 6 Report and Recommendations; denying as moot 8 Motion to Consolidate Cases. Signed by Chief District Judge Juli e A Robinson on 5/8/18. Plaintiff's claims are dismissed without prejudice for lack of subject matter jurisdiction Mailed to pro se party Crystalee C. Protheroe by regular and certified mail ; Certified Tracking Number: 7017 1000 0000 0699 6440. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CRYSTALEE C. PROTHEROE,
Plaintiff,
v.

Case No. 18-CV-2128-JAR-TJJ

JOSEPH J. MASARIK,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Crystalee C. Protheroe, proceeding pro se, filed this case on March 19, 2018
against her former husband, Joseph J. Masarik. Plaintiff alleges that Defendant made false and
misleading claims to unlawfully gain custody of their minor children. Plaintiff asserts that this
Court has subject matter jurisdiction based on numerous statutory and constitutional grounds as
well as diversity of citizenship. On April 1, 2018, Plaintiff filed a second case involving the
same parties and similar claims as in this case.1 Plaintiff sought leave to proceed in forma
pauperis in both cases.
On April 12, 2018, Magistrate Judge Teresa J. James filed a Report and
Recommendation in each of Plaintiff’s two cases (Doc. 6 in this case), with identical
recommendations for both. Judge James recommended that the Court deny Plaintiff’s Motion
for Leave to Proceed in forma pauperis (Doc. 3 in this case) and dismiss the action for failure to
state a plausible claim. Rather than filing written objections within 14 days after being served
with Judge James’s Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R.
Civ. P. 72, Plaintiff filed a “Motion to Combine” this matter with her other, later-filed case

1

Protheroe v. Masarik, Case No. 2:18-cv-2147-JAR-TJJ.

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(Doc. 8).

Plaintiff filed written objections to Judge James’s Report and Recommendation only

in her other case.2 Her Motion to Combine in this case requests that her “objections for both
[cases] be combined to consolidate the cases under Case No. []18-cv-2147-JAR-TJJ.”3 Thus,
the Court construes Plaintiff’s Motion to Combine as incorporating and adopting the arguments
set forth in her Objections and Response to Report and Recommendation of Dismissal in Case
No. 18-cv-2147-JAR-TJJ.
On May 7, 2018, after a de novo determination upon the record pursuant to Fed. R. Civ.
P. 72(b), the Court overruled Plaintiff’s objections in Case No. 18-cv-2147-JAR-TJJ, adopted
Judge James’s Report and Recommendation as its own, denied Plaintiff’s motion for leave to
proceed in forma pauperis, and dismissed Plaintiff’s claims without prejudice for lack of subject
matter jurisdiction.4 The same result is warranted here.
The Court has reviewed Judge James’s analysis in this case and, after a de novo
determination upon the record, agrees with the proposed disposition of Plaintiff’s Complaint.
Plaintiff previously filed a civil action in 2016, 16-cv-2387-CM, against a number of defendants
including a Kansas District Court Judge and state government employees involved in the state
court proceedings concerning Plaintiff and the custody of her children, as well as her former
husband Masarik. That case was dismissed by Judge Murguia for failure to state a claim upon
which relief can be granted; although Plaintiff listed various federal statutes and constitutional
rights, she did not state a claim under any federal statute against any named defendant for which
relief may be granted in federal district court.5 Judge Murguia cited the tradition of federal
courts avoiding review of substantive state law claims, especially in domestic relation cases such

2

Id., Doc. 6.
Doc. 8.
4
Protheroe v. Masarik, Case No. 2:18-cv-2147-JAR-TJJ, Doc. 8.
5
See Protheroe v. Pokorny, Case. No. 16-cv-2387-CM, Doc. 60.
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as the 2016 case brought by Plaintiff.
Judge James accurately notes that in this action, the only allegation Plaintiff makes
against Defendant is that he made “false and misleading claims in order to unlawfully gain
custody of the minor children,” and that “[f]ederal courts may abstain or decline from deciding
an issue in order to preserve traditional principles of equity, comity and federalism. Such
discretion is particularly appropriate where the state has a strong interest and competence in
dealing with the subject matter at issue, such as child custody and domestic relations matters.”6
Consequently, there is no question that the subject of Plaintiff’s allegations falls within the ambit
and expertise of the state courts, and that Plaintiff’s Complaint fails to allege facts that would
support this Court having jurisdiction over her claim against Defendant.
In her objection, Plaintiff maintains that Defendant’s conduct has deprived her of her
constitutional, federal, and human rights, citing several cases where plaintiffs successfully
brought actions involving parental and familial rights.7 But those cases can be distinguished as
they involved challenges to specific statutes or procedures, or claims under 42 U.S.C. § 1983
against defendants who were acting “under color of state law.”8 In this case, Plaintiff’s claims
are against her former husband, a private citizen, and thus this Court cannot exercise federal
jurisdiction over this lawsuit.9

6
Doc. 6 at 4–5 (citing Reeves v. Warren Cty., No. 4:08VV1708CDP, 2008 WL 5171346, at *1–2 (E.D. Mo.
Dec. 9, 2008)).
7
Doc. 7.
8
See, e.g., Troxel v. Granville, 530 U.S. 57, 72–74 (2000) (holding state nonparental visitation statute
unconstitutionally infringed on parents’ fundamental right to make decisions concerning the care, custody, and
control of their children); Hardwick v. Cty. of Orange, 844 F.3d 1112, 1120–21 (9th Cir. 2017) (denying social
workers’ motion for summary judgment based on absolute and qualified immunity in § 1983 action brought by child
alleging county social workers maliciously used perjured testimony and fabricated evidence in juvenile dependency
proceedings that resulted in mother losing custody of child); In re Marriage of Hutchinson and Wray, 281 P.3d
1126, 1131 (Kan. Ct. App. 2012) (discussing procedural due process right to evidentiary hearing prior to ruling on
case manager’s recommendations in child custody dispute).
9
See Lay v. Otto, 530 F. App’x 800 802–03 (10th Cir. 2013) (dismissing plaintiff’s lawsuit “without
prejudice for lack of subject-matter jurisdiction” because, where plaintiff failed to establish plaintiffs were acting
under color of state law, his “§ 1983 claim did not support the district court’s exercise of federal jurisdiction over the

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Accordingly, this Court agrees with Judge James’s conclusion that Plaintiff has failed to
establish subject matter jurisdiction over her claims against Defendant and failed to state a claim
upon which relief may be granted. Plaintiff’s Complaint must contain a plausible claim, and in
this case, it falls far short and dismissal is warranted under § 1915(e)(2)(B)(ii).
IT IS THEREFORE ORDERED that Plaintiff’s objections to Judge James’s April 12,
2018 Report and Recommendation are overruled and Plaintiff’s Motion to Combine (Doc. 8) is
denied as moot. The Court adopts Judge James’s Report and Recommendation (Doc. 6) and,
accordingly, Plaintiff’s Motion to Proceed in forma pauperis (Doc. 3) is denied and Plaintiff’s
claims are dismissed without prejudice for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Dated: May 8, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

lawsuit”).

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