Botts v. Sheriff of Lancaster County et al

Filing 6

MEMORANDUM AND ORDER - Botts' filing titled "Civil Action and Motion for Leave to Proceed informa pauperis," construed as a complaint (filing no. 1 ) is dismissed without prejudice to reassertion in the proper forum. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KIRK ANTHONY BOTTS,
Plaintiff,
v.
SHERIFF OF LANCASTER
COUNTY, et al.,
Defendants.

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8:11CV220
MEMORANDUM
AND ORDER ON “CIVIL ACTION
AND MOTION FOR LEAVE TO
PROCEED IN FORMA
PAUPERIS” CONSTRUED AS A
COMPLAINT

The plaintiff, Kirk Anthony Botts, filed on June 20, 2011, a document titled
“Civil Action and Motion for Leave to Proceed in forma pauperis,” which I construe
as a complaint. (Filing No. 1.) I have now conducted an initial review of the
complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e).
I.

SUMMARY OF COMPLAINT

Mr. Botts’ complaint is difficult to decipher. As best as I can tell, Mr. Botts
alleges that the Sheriff of Lancaster County, Leslie McIntosh, and Ryan McIntosh
“kidnapped” his minor child. (Filing No. 1 at CM/ECF p. 1.) Botts seeks $100,000
as compensation for the defendants’ unlawful actions. (Id.) The documents Botts has
attached to his complaint reflect that (1) Leslie and Ryan McIntosh are the aunt and
uncle of his minor child and (2) a custody proceeding concerning Bott’s minor child
is currently pending in the District Court of Lancaster County, Nebraska. (Id. at
CM/ECF pp. 3-6.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
I am required to review prisoner and in forma pauperis complaints seeking

relief against a governmental entity or an officer or employee of a governmental
entity to determine whether summary dismissal is appropriate. See 28 U.S.C. §
1915(e). I must dismiss a complaint or any portion thereof that states a frivolous or
malicious claim, that fails to state a claim upon which relief may be granted, or that
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).
Therefore, where pro se plaintiffs do not set forth enough factual allegations
to “nudge[] their claims across the line from conceivable to plausible, their complaint
must be dismissed” for failing to state a claim upon which relief can be granted. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (overruling Conley v.
Gibson, 355 U.S. 41 (1967), and setting a new standard for failure to state a claim
upon which relief may be granted). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-1044 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS

Here, it appears that Botts intended to invoke federal-question jurisdiction
under 42 U.S.C. § 1983. (See Filing No. 1 at CM/ECF p. 1 (stating “defendants
action in concert and under color of state law have violated Plaintiff[’s] rights”].
However, Botts did not allege the deprivation of a right secured by the Constitution
or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a
claim under § 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.”). Regardless,
I must be mindful of my obligation to promote comity between state and federal
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judicial bodies and will “abstain from exercising jurisdiction in cases where equitable
relief would interfere with pending state proceedings.” Aaron v. Target Corp., 357
F.3d 768, 774 (8th Cir. 2004). Courts use the doctrine developed in Younger v.
Harris to carry out this policy. 401 U.S. 37 (1971). Under Younger, a federal court
should abstain from jurisdiction “‘when (1) there is an ongoing state judicial
proceeding which (2) implicates important state interests, and when (3) that
proceeding affords an adequate opportunity to raise the federal questions presented.’”
Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005) (quoting Fuller v. Ulland, 76
F.3d 957, 959 (8th Cir.1996); see also Carson P. v. Heineman, 240 F.R.D. 456, 52332 (D. Neb. 2007) (finding that “child welfare and protection” is an important state
interest and abstaining from jurisdiction where the plaintiffs were involved in
separate juvenile proceedings in Nebraska state court in which they could raise their
constitutional claims).
Here, it is apparent from the complaint that there is an ongoing state judicial
proceeding which implicates the important state interests relating to the custody,
treatment, and safety of Botts’ minor child. Mr. Botts has not alleged, nor
demonstrated, that those proceedings will not provide him with the opportunity to
raise his constitutional claims. Accordingly, the court will abstain from exercising
jurisdiction over Botts’ claims. However, the court will dismiss Botts’ complaint
without prejudice to reassertion in the proper forum.
IT IS THEREFORE ORDERED that: Botts’ filing titled “Civil Action and
Motion for Leave to Proceed informa pauperis,” construed as a complaint (filing no.
1) is dismissed without prejudice to reassertion in the proper forum. A separate

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judgment will be entered in accordance with this Memorandum and Order on “Civil
Action and Motion for Leave to Proceed in forma pauperis,” Construed as a
Complaint.
Dated September 27, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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