JOHNSON v. STATE OF MAINE et al
REPORT AND RECOMMENDED DECISION re 1 Complaint filed by KATHLEEN JOHNSON Objections to R&R due by 1/10/2017 By MAGISTRATE JUDGE JOHN C. NIVISON. (jwr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STATE OF MAINE, et al.,
RECOMMENDED DECISION ON PLAINTIFF’S COMPLAINT
In this civil action, Plaintiff Kathleen Johnson asserts a claim against the State of Maine
and the Maine Department of Health and Human Services based on the State’s actions in
connection with Plaintiff’s parental rights. She describes her claim as a “class action lawsuit.”
(Complaint, ECF No. 1.)
Plaintiff filed a motion for leave to proceed in forma pauperis (ECF No. 4), which motion
the Court granted (ECF No. 5). Because Plaintiff is proceeding in this matter in forma pauperis,
her action is subject to review under 28 U.S.C. § 1915(e)(2)(B) to ensure that it states a claim for
which relief may be granted in this Court.1 Upon review of Plaintiff’s complaint, I recommend
the Court dismiss the matter.
When a party is proceeding in forma pauperis, “the court shall dismiss the case at any time
if the court determines,” inter alia, that the action is “frivolous or malicious” or “fails to state a
In recognition of the fact that a waiver of filing fees encourages some individuals to file suit regardless of the merits,
the in forma pauperis statute authorizes the court to dismiss sua sponte those actions that fail to state a viable claim,
28 U.S.C. § 1915(e)(2)(B), “so as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). “Dismissals [under § 1915]
are often made sua sponte prior to the issuance of process, so as to spare prospective defendants
the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319,
When considering whether a complaint states a claim for which relief may be granted,
courts must assume the truth of all well-plead facts and give the plaintiff the benefit of all
reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir.
2011). A complaint fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). “The relevant question ... in assessing plausibility is not whether the
complaint makes any particular factual allegations but, rather, whether ‘the complaint warrant[s]
dismissal because it failed in toto to render plaintiffs’ entitlement to relief plausible.’” Rodríguez–
Reyes v. Molina–Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013) (quoting Twombly, 550 U.S. at 569 n.
14). Although a pro se plaintiff’s complaint is subject to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not
consist entirely of “conclusory allegations that merely parrot the relevant legal standard,” Young
v. Wells Fargo, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618 F.2d
888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro se
plaintiffs “is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state
In this case, Plaintiff references Defendants’ failure to ensure visitation between Plaintiff
and her son, malpractice, child abuse, falsifying information, cruelty to the disabled, and the
discontinuation of reunification programs. (Complaint at 1, ECF No. 1.) Plaintiff further alleges
Defendants have misapplied or do not have the funds provided by the government. (Id.)
“Federal courts are courts of limited jurisdiction. They cannot act in the absence of subject
matter jurisdiction, and they have a sua sponte duty to confirm the existence of jurisdiction in the
face of apparent jurisdictional defects.” United States v. Univ. of Mass., Worcester, 812 F.3d 35,
44 (1st Cir. 2016).
To the extent Plaintiff attempts to assert a claim on her own behalf, Plaintiff must first
overcome the jurisdictional obstacle imposed by the Eleventh Amendment. The State of Maine
has immunity under the Eleventh Amendment against suits brought by citizens in federal court,
regardless of the form of relief requested. Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 n. 6
(1st Cir. 2009) (“A plaintiff may seek prospective injunctive relief against a state official, but may
not obtain such relief against a state or its agency because of the sovereign immunity bar of the
Eleventh Amendment.”). Additionally, while a federal district court would have jurisdiction under
the Civil Rights Act, 42 U.S.C. § 1983, over claims against persons exercising state authority,2
§ 1983 does not authorize claims against the state or its agencies. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 64 (1989); see also Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress, except that in any action brought against
a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983.
Cir.2003) (“No cause of action for damages is stated under 42 U.S.C. § 1983 against a state, its
agency, or its officials acting in an official capacity.”). 3
Eleventh Amendment immunity may be waived by a state in some circumstances. For
example, states that participate in certain federal programs through which they accept federal funds
may by such conduct waive immunity under the Eleventh Amendment to causes of action
expressly authorized by Congress in the context of such programs.
See, e.g., Lebron v.
Commonwealth of Puerto Rico, 770 F.3d 25, 32 (1st Cir. 2014) (providing as examples the
Individuals with Disabilities in Education act and the Rehabilitation Act). See also Edelman v.
Jordan, 415 U.S. 651, 673 (1974) (“The mere fact that a State participates in a program through
which the Federal Government provides assistance for the operation by the State of a system of
public aid is not sufficient to establish consent on the part of the State to be sued in the federal
While Plaintiff alleges Defendants have misapplied federal funds that should have been
used to aid the disabled, elderly, and poor, Plaintiff does not describe a violation of a particular
federal statute that provides her with a cause of action against Defendants, has not asserted any
facts to support her contention that funds are missing, and has not identified the programs for
which the funds were intended. In addition, Plaintiff has not identified any facts that would confer
upon this Court a basis to review state child protective proceedings or other state administrative
decisions to which she was a party. In other words, Plaintiff has not asserted sufficient facts to
state a cause of action within this Court’s jurisdiction.
If Plaintiff had named as defendants one or more state officials, she would also be required to alleged sufficient facts
to explain the basis of the official’s alleged liability. State officials are potentially liable under § 1983, for example,
when their own individual conduct is linked to the deprivation of a plaintiff’s federal rights. Saldivar v. Racine, 818
F.3d 14, 18 (1st Cir. 2016)
Even if Plaintiff had asserted an actionable claim within the Court’s jurisdiction, Plaintiff
could not maintain the class action she attempts to assert. “The federal courts have consistently
rejected attempts at third-party lay representation. By law an individual may appear in federal
courts only pro se or through legal counsel.” Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41,
42 (1st Cir. 1982) (citing United States v. Taylor, 569 F.2d 448, 450 – 51 (7th Cir.), cert. denied,
435 U.S. 952 (1978), and 28 U.S.C. § 1654). The law permits individuals who are not licensed to
practice law to represent their own interests in federal court. 28 U.S.C. § 1654. An unlicensed
individual, however, cannot represent other individuals in court.
With few exceptions not
applicable here, “[n]o person who is not a member in good standing of the bar of this Court shall
appear or practice before this Court on behalf of another person …” D. Me. Local Rule 83.1(c);
see also Berrios v. New York City Hous. Auth., 564 F. 3d 130, 132-33 (2d. Cir. 2009) (explaining
that 28 U.S.C. § 1654 does not permit unlicensed individuals to represent others in federal court);
Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (same). As a pro se litigant, Plaintiff
cannot independently pursue an action on behalf of other individuals in this Court.
Based on the foregoing analysis, and pursuant to 28 U.S.C. § 1915(e)(2), I recommend the
Court dismiss Plaintiff’s complaint.
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum within fourteen (14) days of being served
with a copy thereof. A responsive memorandum shall be filed within fourteen (14)
days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 27th day of December, 2016.
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