Fischer v. Jefferson County Missouri Children Division et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis (ECF No. 5 ) is GRANTED. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be ent ered herewith. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel (ECF No. 2 ) is DENIED as moot. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. Signed by District Judge Audrey G. Fleissig on June 29, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRIAN T. FISCHER,
Plaintiff,
v.
JEFFERSON COUNTY MISSOURI
CHILDRENS DIVISION, et al.,
Defendants.

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No. 4:17-cv-1476-AGF

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of pro se plaintiff Brian T. Fischer for
leave to proceed in forma pauperis in this civil action. Upon consideration of the financial
information provided with the application, the Court finds that plaintiff is financially unable to
pay any portion of the filing fee. The motion will therefore be granted. In addition, the Court
will dismiss the complaint, without prejudice.
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 under § 1983, 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 reviewing a pro se complaint under § 1915(e)(2), the Court must give it 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 against Jefferson County
Missouri Children’s Division, Investigators Kelly Hodge and Linda Unknown, and the
Honorable Shannon Dougherty, an Associate Circuit Judge in the 23rd Judicial Circuit Court.
Plaintiff’s allegations are long and rambling. However, it is clear that his claims focus on
the state’s removal of children from his custody. Among other things, plaintiff alleges that
Hodge testified via deposition as to the condition of a home without conducting research, an
investigation, or interviews; seized children from school without a valid reason; refused to speak
to plaintiff or accept his phone calls; called the children’s mother and removed the children from
her residence; stated she tried to call plaintiff when she really had not; and made false statements

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about various topics including the condition of a home. Plaintiff also alleges that one of his
children is living with a caregiver who supports transgender identity, and Linda Unknown
refused to drug test or treat one child even though plaintiff had reported stealing and alcohol and
drug activity. Plaintiff also alleges that Judge Dougherty denied his request for counsel, ordered
him to undergo and pay for random drug testing, failed to consider or admit certain evidence, and
refused to treat a child’s issues. For his prayer for relief, plaintiff writes:
Emergency Protective Order/Injunction of Federal court on this case.
Declaratory Relief: Proper Procedure
Declaratory Relief: Substantive Rights
Declaratory Relief: Equal Protection
(Docket No. 1 at 4). He also seeks $5.7 million in compensation, which he asserts is for lost
wages, defamation of character, violations of 1st, 4th, 5th, 9th, and 14th amendment rights, state
and federal law negligence, abuse of judicial power, false imprisonment, child trafficking,
kidnapping, violation of Missouri constitution section 15, trauma inflicted on his children, and
therapy and counseling.
Discussion
The complaint alleges various forms of wrongdoing in conjunction with plaintiff’s state
court child custody proceedings. In addition to monetary damages, plaintiff appears to seek
equitable relief in the form of this Court’s intervention in those proceedings. This case is
therefore subject to dismissal pursuant to the domestic relations exception to federal jurisdiction.
“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
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precisely fit into the contours of an action for divorce, alimony or child custody, federal courts
generally will abstain from exercising jurisdiction.” Id. This Court cannot change state custodial
determinations. See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that questions
concerning child custody are left entirely to state courts to answer). Finally, while plaintiff seeks
“Declaratory Relief: Equal Protection” (ECF. No. 1 at 4), he alleges no facts tending to establish
an equal protection claim.
To the extent plaintiff can be understood to allege anything other than described above,
the complaint is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). Defendant
Jefferson County Missouri Children’s Division is a state entity, and as such it is not a “person”
for purposes of § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Also,
plaintiff merely listed Jefferson County Missouri Children’s Division as a defendant without
alleging any specific act or wrongful conduct on its part. See Krych v. Hvass, 83 F. App’x 854,
855 (8th Cir. 2003) (affirming dismissal of pro se § 1983 complaint against a defendant that was
merely listed in the caption and there were no allegations of constitutional harm against it).
To the extent plaintiff can be understood to allege that Kelly Hodge and Linda Unknown
are employees of a division of the Missouri Department of Social Services, his claims against
them are subject to dismissal because he fails to specify the capacity in which they are sued.
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 Cmty. Coll., 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. See Will, 491 U.S. at

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71 (naming an official in her official capacity is the equivalent of naming the entity that employs
her, and “neither a State nor its officials acting in their official capacity are ‘persons’ under
§ 1983”). To the extent plaintiff can be understood to allege that Kelly Hodge and Linda
Unknown are anything other than state employees, his claims against them are subject to
dismissal because he fails to allege with sufficient specificity that they are state actors. See
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (holding that to determine whether a defendant
is subject to suit under § 1983, “[t]he ultimate issue” is whether that defendant’s “alleged
infringement of federal rights . . . can fairly be seen as state action,” and if the defendant is not a
“state actor,” then § 1983 provides no means for relief).
Finally, plaintiff’s claims against Judge Dougherty are subject to dismissal based on
judicial immunity, which grants judges absolute immunity from civil lawsuits based on alleged
judicial misconduct, subject to two exceptions: (1) when a judge does not act within her judicial
capacity or (2) when a judge takes judicial action in the complete absence of all jurisdiction. See
Mireles v. Waco, 502 U.S. 9, 11-12 (1991). “[W]hether an act by a judge is a ‘judicial’ one
relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a
judge, and to the expectations of the parties, i.e., whether they dealt with the judge in [her]
judicial capacity.” Id. at 12. Here, all of Judge Dougherty’s allegedly unlawful actions were
judicial in nature. Further, Judge Dougherty, acting as an associate circuit judge in the 23rd
Judicial Circuit Court took judicial action pursuant to that court’s jurisdiction granted to it by the
Missouri Constitution. See Mo. Const. art V, § 17. Because the complaint challenges actions
performed by Judge Dougherty acted within her judicial capacity and within her court’s proper
jurisdiction, she is absolutely immune from civil suit as to plaintiff’s claims against her.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 5) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (ECF No. 2) is
DENIED as moot.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 29th day of June, 2017.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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