Gassel v. Tiffany et al

Filing 7

MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis filed by Plaintiff Edward George Gassel, 6 MOTION to Appoint Counsel filed by Plaintiff Edward George Gassel. IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [Doc. #6] is DENIED AS MOOT. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. A separate Order of Dismissal will be entered herewith. Signed by District Judge Stephen N. Limbaugh, Jr on 6/23/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDWARD GEORGE GASSEL,
Plaintiff,
v.
JOE TIFFANY, et al.,
Defendants.

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No. 1:17-CV-81 ACL

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of pro se plaintiff Edward George Gassel
for leave to proceed in forma pauperis. The Court has considered the financial information
submitted in support, and will grant the motion. The Court will also dismiss the complaint,
without prejudice. See 28 U.S.C. § 1915(e)(2)(B).
Legal Standard on Initial Review
Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma
pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted.
To state a claim for relief, a complaint must plead more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere
conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff must

demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”
Id. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678. Determining whether a complaint states a plausible claim for relief is a

context-specific task that requires the reviewing court to, inter alia, draw upon judicial
experience and common sense. Id. at 679.
When conducting initial review pursuant to § 1915(e)(2), the Court must give the
complaint the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, this does not mean that pro se complaints may be merely conclusory. Even pro se
complaints are required to allege facts which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980); see also Stone v. Harry, 364 F.3d 912,
914-15 (8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just
because an additional factual allegation would have formed a stronger complaint”). In addition,
affording a pro se complaint the benefit of a liberal construction does not mean that procedural
rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who
proceed without counsel. See McNeil v. U.S., 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant
Smith was a case manager employed by the Missouri Department of Social Services. Plaintiff
has not identified any of the other defendants named in the caption of the complaint.
Plaintiff alleges that Tiffany took actions that resulted in his children being removed from
his custody in March of 2017. His allegations state as follows (in part):
March 1, 2017, Joe Tiffany had my son who was 4 at the time pull his pants down
outside and talked to my son and then attempted to enter my home, all this
without my permission. He claimed my house smelled bad when first thing you
smell when you enter premised is propane heater, not pets so I agreed to remove
children and get rid of some pets and even agreed to intensive home services.
March 3, 2017, Joe Tiffany returned to my home and said it was better but did not
say the children could be there said he would call when his recommendation for
home services went through, but there was no paper signed for any plan then. Joe
Tiffany went back to Division of Family Services and told everyone he didn’t

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want my children in my home. I had also called his supervisor Laurie Grime and
told her about his conduct on March 1, 2017 and she told me he could do
whatever he wanted without a warrant and hung up on me and refused to pick up
phone again when I kept calling back.
March 7, 2017, Bria Ward, Sarah Hill, Tonya came to my house threatening,
bullying into letting them see the whole place including my bedroom when I said
my room has nothing to do with it they said we can’t give you service unless we
see the whole house. Then they said with their supervisor on the phone you have
to get rid of all your pets and I said no I would put them outside. Obviously them
and their supervisor Brittany said no services cause I wouldn’t get rid of the
animals and that I was only willing to put them outside. I told the dad [Edward
Gassell] well I guess our children can’t live with us then. One of them said why
not. I said well if you say house ain’t safe cause of the bathroom floor that they
said was weak which they wouldn’t know cause they didn’t even step on the
floor, then my children won’t live with us, and then I said I would sign
guardianship of the children over to my ex-husband Joe [Robbins]. While I did
what they wanted they also got mad as I was leaving the house cause I told
Edward the dad of the children that if I was doing drugs or drinking or actually
abusing and neglecting the children or sleeping with everyone in town they
wouldn’t have even been interested in taking the children unless it was for our
son’s disability check and to get social security…so they went to the juvenile
officer and told him my house smelled, that there was poop all over, the bathroom
floor was too weak, and they said I told them that I would rather sign my children
over to my ex-husband than get rid of animals and my son’s teeth were bad. The
juvenile officer believed them and gave Gretchen Plaggenberg and Samantha
Faulkner the paper with the children’s names on it and he had put the Judge’s
name on it and they claimed intentional neglect….
In his request for relief, plaintiff seeks to have his children returned to him and monetary
damages for emotional distress.
Discussion
This case will be dismissed pursuant to the domestic relations exception. “The domestic
relations exception, first articulated in Barber v. Barber, 62 U.S. 582, 584 (1858), divests the
federal courts of jurisdiction over any action for which the subject is a divorce, allowance of
alimony, or child custody.” Khan v. Khan, 21 F.3d 859, 861 (8th Cir. 1994) (internal citation
amended). Even “when a cause of action closely relates to but does not precisely fit into the
contours of an action for divorce, alimony or child custody, federal courts generally will abstain

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from exercising jurisdiction.” Id. In the case at bar, plaintiff is asking this Court to determine
that Tiffany and the other named defendants in the caption committed wrongdoing in connection
with state child custody proceedings. Plaintiff asks that the Court enter an order that changes the
child’s custody status.
This Court cannot, as plaintiff suggests, change state custodial determinations.

See

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (questions concerning child custody are left
entirely to state courts to answer). Because the domestic relations exception divests this Court of
jurisdiction, this case will be dismissed without prejudice.
In addition, plaintiff’s allegations against Tiffany and the other named defendants are
merely the “unadorned, the-defendant-unlawfully-harmed-me” accusations that the Supreme
Court has held are unacceptable. Iqbal, 556 U.S. at 678. Although pro se complaints are
construed liberally, they still must allege facts in support of the claims advanced, Martin, 623
F.2d at 1286, and this Court will not assume facts not alleged. Stone, 364 F.3d at 914-15. The
complaint is subject to dismissal on this basis, as well.
Finally, regarding Tiffany and the other defendants employed by the State of Missouri,
the Court notes that the complaint fails to specify whether he (and the others) are being sued in
their official or individual capacity.
Where a “complaint is silent about the capacity in which [plaintiff] is suing defendant, [a
district court must] interpret the complaint as including only official-capacity claims.” Egerdahl
v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995); Nix v. Norman, 879 F.2d 429,
431 (8th Cir. 1989). The Court must therefore construe the complaint as against the
governmental entity that employs these individuals, which in this case is the State of Missouri.
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (naming an official in her official

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capacity is the equivalent of naming the entity that employs him); see also Bankhead v.
Knickrehm, 360 F.3d 839, 844 (8th Cir. 2004). “[N]either a State nor its officials acting in their
official capacity are ‘persons’ under § 1983.” Will, 491 U.S. at 71.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel [Doc.
#6] is DENIED AS MOOT.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
A separate Order of Dismissal will be entered herewith.
Dated this 23rd day of June, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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