Garten v. Keith County Attorney's Office et al

Filing 19

MEMORANDUM AND ORDER that Plaintiff's claims for injunctive relief are dismissed. Plaintiff will have 30 days from the date of this Memorandum and Order to amend his Complaint to set forth the grounds for the court's jurisdiction and to clearly state a claim upon which relief may be granted against Defendants in accordance with Federal Rule of Civil Procedure 8. The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: July 21, 2014: deadline for Plaintiff to amend. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES GARTEN,
Plaintiff,
v.
KEITH COUNTY ATTORNEY’S
OFFICE, et al.,
Defendants.

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8:14CV24

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on January 23, 2014. (Filing No. 1.)
Plaintiff is a prisoner who has been granted leave to proceed in forma pauperis.
(Filing No. 7.) The court now conducts an initial review of Plaintiff’s claims to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff is incarcerated at the Iowa Medical and Classification Center in
Coralville, Iowa. (Filing No. 1 at CM/ECF p. 13.) Plaintiff filed his Complaint
against the Keith County Attorney’s Office and two of its employees, the Nebraska
Department of Health and Human Services and three of its employees, Keith County
CASA and one of its employees, the Ogallala Police Department, and his ex-wife.
(Id. at CM/ECF pp. 2, 7.)
Plaintiff alleges his daughter was placed into foster care in May of 2013. In
June of 2013, Plaintiff informed “the courts” that he has a court order from Colorado
that allows him to write to his daughter. Defendant Sharon Ott, a court appointed
special advocate, agreed to deliver Plaintiff’s letters to his daughter. (Id. at CM/ECF
p. 2.) Subsequently, Defendant Mary Cummings, a counselor with the Department

of Health and Human Services, decided to withhold Plaintiff’s letters until a time she
“feels [his] daughter can handle them.” (Id. at CM/ECF p. 3.)
Plaintiff alleges that he has asked for his daughter’s address, but has been
refused, though Plaintiff does not specify who has refused to provide him with it. In
addition, Plaintiff has “requested copies of all police reports and evidence in this
matter” from the police department and the county attorney’s office, but they have not
responded to his requests. (Id. at CM/ECF p. 8.)
Plaintiff seeks damages in the amount of $2.5 million. (Id. at CM/ECF p. 10.)
He also seeks an order from this court requiring his ex-wife to notify him within 10
days of any employment or residence changes, to provide him with copies of his
daughter’s report cards and school pictures, and to provide him with a working
telephone number he can use to contact his daughter. (Id. at CM/ECF pp. 10-11.)
Finally, he asks the court to order his ex-wife to allow visitation between Plaintiff’s
daughter and Plaintiff’s family. (Id.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is 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) and 1915A. The court 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); 28 U.S.C. § 1915A.
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
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Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007) (overruling Conley v.
Gibson, 355 U.S. 41 (1957), and setting 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, 1043-44 (8th Cir. 2002) (citations omitted).
III.

DISCUSSION OF CLAIMS
A.

Plaintiff’s Claims for Injunctive Relief

Plaintiff’s claims for injunctive relief are subject to dismissal under the
domestic relations exception to federal court jurisdiction. It is well-settled that “the
whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United States.” In re
Burrus, 136 U.S. 586, 593-94 (1890). Although this domestic relations exception to
federal jurisdiction does not apply to a civil action that merely has domestic relations
overtones, federal courts lack jurisdiction where the action is a mere pretense and the
suit is actually concerned with domestic relations issues. See, e.g., Drewes v. Ilnicki,
863 F.2d 469, 471 (6th Cir. 1988).
Plaintiff does not allege that his claims arise under the U.S. Constitution. Even
if the court were to liberally construe Plaintiff’s Complaint to allege that he is
somehow being deprived of his parental rights in violation of his constitutional rights,
the substance of his claims concern state law domestic relations matters. This is
particularly so where it is clear from Plaintiff’s allegations and filings that his
daughter’s care and custody is the subject of a juvenile court case in the Keith County
Juvenile Court. (See, e.g., Filing No. 15 at CM/ECF p. 5.) Moreover, the type of
injunctive relief that Plaintiff seeks falls squarely within the subject of domestic
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relations between husband and wife and parent and child (e.g., he asks that the court
order his ex-wife to notify him within 10 days of any change in her employment or
residence, to send him copies of his daughter’s report cards and school pictures, etc.).
It would appear that the state courts would be better equipped to handle the issues
that have arisen in the course of Plaintiff’s interactions with his ex-wife and his
daughter’s caregivers. See Overman v. U.S., 563 F.2d 1287,1292 (8th Cir. 1977)
(“There is, and ought to be, a continuing federal policy to avoid handling domestic
relations cases in federal court in the absence of important concerns of a
constitutional dimension. . . . Such cases touch state law and policy in a deep and
sensitive manner and as a matter of policy and comity, these local problems should
be decided in state courts.”) (internal quotations omitted).
Further, even if the court did not lack jurisdiction based on the domestic
relations exception, the court is without jurisdiction over Plaintiff’s injunctive relief
claims under the abstention doctrine set out by the Supreme Court in Younger v.
Harris, 401 U.S. 37, 43-45 (1971). Under Younger, abstention is mandatory where:
(1) there is an ongoing state proceeding; (2) an important state interest is implicated;
and (3) the plaintiff has an avenue open for review of constitutional claims in the state
court. See Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir. 2004) (“Under
Younger v. Harris, federal courts should abstain from exercising jurisdiction in cases
where equitable relief would interfere with pending state proceedings in a way that
offends principles of comity and federalism.”)
Here, each of the three Younger conditions is satisfied. First, the state
proceeding—the Keith County Juvenile Court case—is apparently ongoing. Second,
disputes concerning the care and custody of minors implicate important state
interests. Third, while Plaintiff has not alleged that his civil rights have been
violated, there is no indication that the state courts could not afford Plaintiff the
opportunity for judicial review of any civil rights challenges. Furthermore, despite
Plaintiff’s assertion that he is entitled to $2.5 million in damages, his allegations fail
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to show either great or immediate harm. Younger, 401 U.S. at 46-47. Accordingly,
all of Plaintiff’s claims for injunctive relief are dismissed for lack of subject matter
jurisdiction.
B.

Plaintiff’s Remaining Claims

In evaluating Plaintiff’s remaining claims, the court must determine whether
subject-matter jurisdiction is proper. See Fed. R. Civ. P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”) A plaintiff must sufficiently state a claim for relief that contains, “a
short and plain statement of the grounds for the court’s jurisdiction, unless the court
has jurisdiction and the claim needs no new jurisdictional support.” Fed. R. Civ. P.
8(a)(1). Here, Plaintiff states that a basis for federal jurisdiction exists because “the
courts at the county and state level refuse to reply to [his] requests for information
and paperwork,” therefore, “the federal courts are [his] only option for justice.”
(Filing No. 1 at CM/ECF p. 4.) However, this is not a sufficient basis for this court’s
jurisdiction.
1.

Federal Question Jurisdiction

Subject-matter jurisdiction is proper where a plaintiff asserts “[a] non-frivolous
claim of a right or remedy under a federal statute,” commonly referred to as “federal
question” jurisdiction. Northwest South Dakota Prod. Credit Ass’n v. Smith, 784
F.2d 323, 325 (8th Cir. 1986). The mere suggestion of a federal question is not
sufficient to establish the jurisdiction of federal courts, rather, the federal court’s
jurisdiction must affirmatively appear clearly and distinctly. Bilal v. Kaplan, 904
F.2d 14, 15 (8th Cir. 1990). Under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution or laws of the United States and must
show that the deprivation of that right was committed by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Courts have held that a private
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party’s actions can be considered state action, or actions under color of state law, if
the private party is a willful participant in joint activity with the State to deny
constitutional rights. Magee v. Tr. of Hamline Univ, Minn., 747 F.3d 532, 536 (8th
Cir. 2014); Dossett v. First State Bank, 399 F.3d 940, 947 (8th Cir. 2005); Adickes
v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
Here, Plaintiff does not set forth any allegation that could be liberally
construed to violate any federal statute. Even if the court were to liberally construe
Plaintiff’s Complaint to allege that he is somehow being deprived of his parental
rights in violation of his constitutional rights, his allegations in this regard are too
vague to state a claim for relief. Accordingly, Plaintiff’s allegations do not establish
that federal-question jurisdiction exists in this matter.
2.

Diversity of Citizenship Jurisdiction

Subject-matter jurisdiction may also be proper pursuant to 28 U.S.C. § 1332,
commonly referred to as “diversity of citizenship” jurisdiction. For purposes of 28
U.S.C. § 1332, “diversity of citizenship” means that “the citizenship of each plaintiff
is different from the citizenship of each defendant.” Ryan v. Schneider Nat’l Carriers,
Inc., 263 F.3d 816, 819 (8th Cir. 2001) (citation omitted). In addition, the amount in
controversy must be greater than $75,000.00 for diversity of citizenship jurisdiction.
28 U.S.C. § 1332(a).
While a complaint “alleges a sufficient amount in controversy to establish
diversity jurisdiction, but . . . the court questions whether the amount alleged is
legitimate, the party invoking federal jurisdiction must prove the requisite amount by
a preponderance of the evidence.” Trimble v. Asarco, Inc., 232 F.3d 946, 959 (8th
Cir. 2000) (quotation omitted) (abrogated on other grounds by Exxon Mobil Corp.
V. Allapattah Servs., Inc., 545 U.S. 546 (2005)). In addition, “[n]o presumptive
truthfulness attaches to the plaintiff’s allegations, and the existence of disputed
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material facts will not preclude the trial court from evaluating for itself the merits of
the jurisdictional claims.” Id. (quotation omitted).
Though Plaintiff has not indicated an intention to assert diversity of citizenship
jurisdiction, he has provided an Iowa address for himself and Nebraska addresses
for Defendants. Accordingly, the court can determine that Plaintiff’s citizenship
differs from Defendants.’ However, the court has serious doubts that the claim for
money damages in the amount of $2.5 million is legitimate. Plaintiff fails to state any
facts or legal theories alleging why Defendants should be liable to him for this
amount. Thus, to the extent Plaintiff intends to assert diversity of citizenship
jurisdiction, in accordance with Trimble, the court will require Plaintiff to show by
a preponderance of the evidence that the amount claimed is legitimate, and that the
court has subject-matter jurisdiction. See Trimble, 232 F.3d at 959-60.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s claims for injunctive relief are dismissed.

2.
Plaintiff will have 30 days from the date of this Memorandum and Order
to amend his Complaint to set forth the grounds for the court’s jurisdiction and to
clearly state a claim upon which relief may be granted against Defendants in
accordance with Federal Rule of Civil Procedure 8. Fed. R. Civ. P. 8 (requiring that
pleadings contain “short and plain statement[s]” of the grounds for the court’s
jurisdiction and of the claim showing that the Plaintiff is entitled to relief). Plaintiff
should be mindful to clearly explain in his amended complaint what each defendant
did to him, when the defendant did it, how the defendant’s actions harmed him, and
what specific legal right Plaintiff believes the defendant violated. If Plaintiff fails to
file an amended complaint in accordance with this Memorandum and Order,
Plaintiff’s claims against Defendants will be dismissed without prejudice and without
further notice.
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3.
If Plaintiff intends to assert diversity of citizenship jurisdiction, Plaintiff
will have 30 days from the date of this Memorandum and Order to file sufficient
evidence with the court showing that the amount in controversy is greater than
$75,000.00, the jurisdictional limit.
4.
The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. § 1915(e)(2) after Plaintiff address the matters set forth
in his Memorandum and Order.
5.
The Clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: July 21, 2014: deadline for Plaintiff
to amend.
6.
Plaintiff must keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal of this matter
without further notice.
DATED this 18th day of June, 2014.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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