Stevenson v. KVC et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for leave to proceed in forma pauperis 2 is granted. Plaintiff is advised that he remains obligated to pay the $350.00 filing fee. Plaintiff's motion to appoint counsel 6 is denie d. Plaintiff is granted to and including August 17, 2017, to supplement the complaint with any copies of any available documents relevant to his claim of a violation of his civil rights. Signed by Magistrate Judge David J. Waxse on 07/17/17. Mailed to pro se party Aaron Michael Stevenson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

AARON MICHAEL STEVENSON,
Plaintiff,
v.

CASE NO. 17-3027-SAC-DJW

JASON HOOPER, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed under 42 U.S.C. § 1983.
Plaintiff commenced this action while incarcerated in the Douglas
County Jail; he proceeds pro se and seeks leave to proceed in forma
pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
Because the financial records submitted by the plaintiff reflect

no resources, the Court grants leave to proceed in forma pauperis and
does not assess an initial partial filing fee. Plaintiff remains
obligated to pay the $350.00 filing fee in installments calculated
under 28 U.S.C. § 1915(b)(2).
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To state a claim for relief under Section 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.” West v. Atkins,
487 U.S. 42, 48-49 (1988)(citations omitted).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to

relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se
plaintiff]; when the defendant did it; how the defendant’s action
harmed [the plaintiff]; and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff names as defendants the Chief Executive Officer and
two employees of KVC.1 The complaint alleges that in July 2015, KVC
violated plaintiff’s civil rights by establishing a case plan under
which plaintiff could not attend the same church as C.S.2 Plaintiff
alleges this decision was the result of deliberate indifference to
his

rights

under

the

First

and

Fourteenth

Amendments

and

discrimination. As relief, he asks the Court to reinstate his parental
rights and to award damages.
The federal courts are courts of limited jurisdiction and may
exercise jurisdiction only when they are authorized to do so. Burdett
v. Harrah’s Kan. Casino Corp., 260 F.Supp.2d 1109, 1112 (D.Kan. 2003).
“[T]he domestic relations exception…divests the federal courts of
power to issue divorce, alimony, and child custody decrees,” Johnson
v. Rodriguez (Orozco), 226 F.3d 1103, 1111 (10th Cir. 2000)(quoting
Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992)).
1

The complaint identifies “KVC” only as the employer of the defendants. For the
purpose of screening the complaint, the Court construes it to refer to KVC Behavioral
Healthcare, which provides case management, therapy, and other services to children
served by the Kansas Department for Children and Families in parts of the State of
Kansas. See https://kansas.kvc.org.
2
The Court understands C.S. to be plaintiff’s child, although he reports that at
the time of the action in question, paternity had not been established (Doc. #1,
p.2).

To the extent plaintiff asks the Court to reinstate his parental
rights, his claim would require the Court to intrude upon a domestic
relations matter that is traditionally resolved in the state courts
and is outside the Court’s jurisdiction. Therefore, that relief must
be denied.
Likewise, the federal courts do not have subject matter
jurisdiction to consider claims that essentially are appeals from
final judgments entered in the state courts. See Bear v. Patton, 451
F.3d 639, 642 (10th Cir. 2006)(“if a lower state court issues a
judgment and the losing party allows the time for appeal to expire,
then the state proceedings have ended.”)(citation omitted).
Because it is unclear from the complaint what, if any state court
determinations have been made in the state courts concerning C.S.
regarding the specific nature of the findings by the defendants, the
Court directs plaintiff to supplement the complaint with copies of
any available documents concerning the decision giving rise to
plaintiff’s claim of a violation of his federal civil rights.
The motion to appoint counsel
Plaintiff also moves for the appointment of counsel. As a party
in a civil action, plaintiff is not constitutionally entitled to
counsel. See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995).
Instead, the decision is left to the sound discretion of the court.
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). The district
court should consider the apparent merits of the party’s claims, the
complexity of the factual issues, and the party’s ability to
investigate the facts and present the claims. Hill v. Smithkline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004).
Having considered the record, the Court declines to appoint

counsel at this time. At this time, it does not appear that plaintiff’s
claims are unusually complex or that he is unable to adequately present
his claim in this matter.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Plaintiff is
advised that he remains obligated to pay the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
#6) is denied.
IT IS FURTHER ORDERED plaintiff is granted to and including
August 17, 2017 to supplement the complaint with copies of any
available documents relevant to his claim of a violation of his civil
rights.
IT IS SO ORDERED.
DATED:

This 17th day of July, 2017, at Kansas City, Kansas.

s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge