Colvin v. Plymouth Police Department et al
ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction(Written Opinion) Signed by Senior Judge David S. Doty on 10/7/2019. (EMM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 19-883(DSD/BRT)
Brenda Calloway Colvin,
Plymouth Police Department,
Glenn Gerads Plymouth Police,
In Official Capacity, Fisher
Plymouth Police, In Official Capacity,
Hennepin County Child Protection,
Claire M. Niessen-Derry Investigator,
In Official Capacity, Colette Roseler
Supervisor, In Official Capacity
and Kelli Syring Social Worker,
In Official Capacity,
Brenda Calloway Colvin, Address Unknown, plaintiff pro
Christiana Martenson, Hennepin County Attorney’s Office,
300 South 6th Street, Suite A2000, Minneapolis, MN 55487,
counsel for defendants Hennepin County Child Protection,
Claire M. Niessen-Derry Investigator, In Official
Capacity, Colette Roseler Supervisor, In Official
Capacity and Kelli Syring Social Worker, In Official
Ryan M. Zipf, League of Minnesota Cities, 145 University
Avenue W, St. Paul, MN 55103, counsel for defendants
Plymouth Police Department, Glenn Gerads Plymouth
Police, In Official Capacity, Fisher Plymouth Police, In
This matter is before the court upon the motion to
dismiss the complaint by defendants Hennepin County Child
Protection, Colette Roesler, Kellie Syring, and Claire M.
review of the file, record, and proceedings herein, and for
the following reasons, the motion to dismiss is granted.
In March 2019, a Plymouth police officer responded to a
report of children alone in pro se plaintiff Brenda Calloway
Plymouth police referred the matter to the
Hennepin County defendants, who in turn filed a Child in Need
of Protection or Services (CHIPS) petition on behalf of
Colvin’s six children.
Id. at XII:311–320.
proceeding remains ongoing.
See ECF No. 26, Ex. 6.
On March 29, 2019, Colvin filed suit against the Plymouth
Police Department and two of its officers (Plymouth Police
against the Hennepin County defendants.
ECF. No. 1.
Colvin amended her complaint in June 2019 to
include claims under 42 U.S.C. §§ 1981, 1983, and 1985 for
The court references Colvin’s amended complaint, ECF
No. 18, as written, by citing to specific page and line
various alleged constitutional violations as well as claims
for alleged violations of certain state laws.
ECF No. 18.
As far as this court can tell, Colvin is seeking
various forms of declaratory and injunctive relief on behalf
of herself, and a damages award on behalf of her children.
See id. at XXIX:679–698, XXX:700–721, XXXI:722–741.
The Hennepin County defendants now move to dismiss on
grounds this court should abstain under Younger v. Harris,
401 U.S. 37 (1971), in light of the ongoing CHIPS proceeding.
Alternatively, they move to dismiss based on the fact that
Hennepin County Child Protection is not a legal entity subject
to suit, and on the grounds that (1) Colvin has not properly
immunity, and (3) Colvin has failed to state a claim.
has not responded to the motion to dismiss, and did not appear
at the September 5, 2019, hearing on this matter.
hearing, counsel for the Hennepin County defendants argued in
support of its motion and counsel for the Plymouth Police
defendants informed the court that they have not answered or
filed motions in response to Colvin’s complaint because they
have not been properly served.
Younger Abstention Doctrine
Under Younger, federal courts are directed “to abstain
from accepting jurisdiction in cases where ... granting [the
proceedings” involving important state interests.
Clubs, Inc. v. City of Fort Smith, Ark., 163 F.3d 475, 477
n.1 (8th Cir. 1998).
To determine whether abstention is
appropriate, the court must consider three factors: “(1)
[whether] there is an ongoing state proceeding, (2) which
implicates important state interests, and (3) [whether] there
is an adequate opportunity to raise any relevant federal
questions in the state proceedings.” Plouffe v. Ligon, 606
F.3d 890, 892 (8th Cir. 2010) (citing Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).
Where a plaintiff seeks injunctive or declaratory relief, and
the above Middlesex factors are present, Younger directs
federal courts to abstain and dismiss the suit.
Inc., 163 F.3d at 481 (citing Gibson v. Berryhill, 411 U.S.
564, 577 (1973)).
Where a plaintiff seeks damages, Younger
calls for federal courts to abstain and stay the federal suit
until the underlying state proceeding has concluded.
(citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731
Here, Colvin seeks damages on behalf of her children as
As Magistrate Judge Becky Thorsen explained in the
order granting in part and denying in part Colvin’s motion to
amend her complaint, because Colvin is proceeding pro se, she
may not bring claims on behalf of her minor children.
Buckley v. Dowdle, No. 08-1005, 2009 WL 750122, at *1 (8th
Cir. Mar. 24, 2009) (affirming dismissal of a pro se complaint
filed on behalf of the plaintiff’s minor daughter); Bower v.
Springfield R-12 Sch. Dist., 263, F. App’x 542, 542 (8th Cir.
2008) (per curiam) (same); see also ECF No. 13 at 1 n.1.
such, this claim for relief must be summarily dismissed and
does not factor into whether Younger abstention is proper.
declaratory relief on behalf of herself.
Among other things,
Colvin requests that this court take over the ongoing state
juvenile protection proceedings, ECF No. 18 at XXIX:694–98;
that the Minnesota Department of Health and Human Services
review and audit Hennepin County Child Protection, id. at
XXX:703–06; and that Hennepin County Child Protection be
required to contact parents “periodically with services to
help parents, with the offer of having Children [sic] placed
outside of the home so that parents can achieve healthy, and
sustaining goals, such as school, medical, legal, etc.,” id.
Because each of the Middlesex factors are
jurisdiction over these claims.
First, the CHIPS proceeding involving Colvin and her
children is an ongoing state matter.
See ECF No. 26, Ex. 6.
Next, the Eighth Circuit recognizes that state proceedings
See Tony Alamo Christian Ministries v. Selig, 664
F.3d 1245, 1249 (8th Cir. 2012) (“[T]here is no doubt that
state-court proceedings regarding the welfare of children
reflect an important state interest that is plainly within
the scope of [Younger].”).
Finally, absent a showing by the
plaintiff to the contrary, there is a presumption that state
See Oglala Sioux Tribe v. Fleming,
904 F.3d 603, 613 (8th Cir. 2018) (“State courts are competent
litigant has not attempted to present his federal claims in
assume that state procedures will afford an adequate remedy,
in the absence of unambiguous authority to the contrary.”)
(internal citations omitted).
Here, it does not appear that
Colvin has attempted to raise her constitutional concerns at
the state level, and she has not shown that the state would
fail to provide an adequate procedure to address such claims.
See generally ECF No. 18.
Given the presence of all three
Middlesex factors, this court must abstain under Younger and
Colvin’s claims for injunctive and declaratory relief are
dismissed without prejudice.
Because the court abstains from exercising jurisdiction,
it declines to consider the other grounds raised in the
Hennepin County defendants’ motion to dismiss.2
III. Improper Service on the Plymouth Police Defendants
Without effective service or waiver of process, the
court lacks personal jurisdiction over a defendant.
Printed Media Servs., Inc. v. Solna Web, Inc., 11 F.3d 838,
843 (8th Cir. 1993).
A plaintiff must make a prima facie
jurisdiction here, were the court to reach the merits of
Colvin’s claims, the outcome would remain the same. The court
has reviewed Colvin’s complaint and is satisfied that all
claims against the Hennepin County defendants should be
dismissed. Hennepin County Child Protection Services is not
a legal entity subject to suit. See State ex rel. Ryan v.
Civil Serv. Comm’n of City of Minneapolis, 154 N.W.2d 192,
194 (Minn. 1967).
Further, suing the individual Hennepin
County defendants in their official capacities, as Colvin has
done here, amounts to a suit against Hennepin County Child
Protection Services. Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999) (“A suit against a public
employee in his or her official capacity is merely a suit
against the public employer.”). Finally, none of the Hennepin
County defendants appear to have been properly served, see
ECF 26, Ex. 5, and Colvin has failed to state a claim against
any of them.
showing that the court has personal jurisdiction over the
See Digi-Tel Holdings, Inc. v. Proteq Telecomms.
considering whether personal jurisdiction exists, the court
plaintiff and may consider matters outside the pleadings.
Id.; see Dever v. Hentzen Coatings, Inc., 380 F.3d 1070, 107273 (8th Cir. 2004).
Where “a defendant is not served within
90 days after the complaint is filed, the court - on motion
or on its own after notice to the plaintiff - must dismiss
the action without prejudice against that defendant or order
that service be made within a specified time.”
Fed. R. Civ.
Here, there is nothing in the record to indicate that
Colvin has properly served the Plymouth Police defendants
within the time permitted. Given her pro se status, the court
will give Colvin 30 days from the date of this order to effect
If Colvin does not file an affidavit showing
proper service on the Plymouth Police defendants within 30
days of this order, the court will dismiss her complaint
against them without prejudice for failure to prosecute.
Accordingly, IT IS HEREBY ORDERED that:
The motion to dismiss [ECF No. 21] is granted;
The Hennepin County defendants are dismissed from
this action without prejudice; and
Plaintiff shall file an affidavit showing proper
service of process on the Plymouth Police defendants by
November 6, 2019.
Dated: October 7, 2019
s/David S. Doty
David S. Doty, Judge
United States District Court
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