Cunningham v. Wheeler et al

Filing 3

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. The complaint is dismissed. Signed by Senior District Judge Sam A. Crow on 1/29/2013. (Mailed to pro se party Gary L. Cunningham by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY L. CUNNINGHAM,
Plaintiff,
v.

CASE NO. 12-3246-SAC

ED WHEELER, et al.,
Defendants.

O R D E R
This matter comes before the court on a form complaint seeking
relief under 42 U.S.C. § 1983.

Plaintiff proceeds pro se.

Having

reviewed the documents plaintiff submitted in this matter, the court
grants plaintiff’s motion for leave to proceed in forma pauperis under
28 U.S.C. § 1915, and dismisses the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
"To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States and must show that the alleged deprivation was committed by
a person acting under color of state law."
42, 48 (1988).

West v. Atkins, 487 U.S.

A plaintiff must also provide facts to establish each

defendant's personal participation in the alleged deprivation of
plaintiff's constitutional rights.
994-95 (10th Cir.1996).

Jenkins v. Wood, 81 F.3d 988,

Although a pro se litigant's pleadings are

to be liberally construed, plaintiff retains the burden of alleging
Aenough facts to state a claim to relief that is plausible on its face.@
Bell

Atlantic

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007)."

[C]onclusory allegations without supporting factual averments are

insufficient to state a claim on which relief can be based."

Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
In the present case, plaintiff broadly alleges a single claim
of being denied due process in a 2010 state court proceeding in which
the state district court entered a default paternity judgment
establishing that plaintiff was the father of minor child, and/or in
a 2012 state court proceeding in which the state district court
modified and increased plaintiff’s child support obligation. 1

The

state district court judge in the 2010 proceeding is one of three
defendants named in the instant § 1983 action.

The complaint includes

no allegations concerning an attorney and a state
named as the remaining two defendants.

magistrate judge

Nor does the complaint

identify the specific relief being sought.
To the extent plaintiff seeks to challenge either the 2010
paternity determination, or the 2012 modification of plaintiff’s
child support obligation, plaintiff must pursue remedies within the
state courts as provided under state law.

Additionally, relief in

federal court is barred by the Rooker-Feldman doctrine, 2 which
“prevents the lower federal courts from exercising jurisdiction over
cases brought by state-court losers challenging state-court judgments
rendered before the [federal] district court proceedings commenced.@
Erlandson v. Northglenn Municipal Court, 528 F.3d 785, 787 (10th
Cir.2008)(citation omitted).
Finding no cognizable constitutional claim is presented for
purposes of proceeding under § 1983, and finding it would be futile
1

Plaintiff states only that he was unable to appear in the 2010 proceeding
because he was confined in the Geary County Jail at the time, and jail officials
did not allow or cause him to personally appear in that paternity proceeding.
Plaintiff also documents a 2001 order entered by a family court in Missouri, finding
plaintiff and the mother of the minor child were unfit or unavailable parents.
2
See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).

to allow plaintiff an opportunity to amend the complaint to cure this
identified deficiency, the court concludes the complaint should be
summarily dismissed.

28 U.S.C. § 1915(e)(2)(B)(ii).

IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, and that the complaint
is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS SO ORDERED.
DATED:

This 29th day of January 2013 at Topeka, Kansas.

s/ San A, Crow
SAM A. CROW
U.S. Senior District Judge