Valdez et al v. Lester et al

Filing 12

MEMORANDUM AND ORDER - This case is dismissed without prejudice. The court will enter judgment by a separate document. Valdez's Motion for Leave to Proceed in Forma Pauperis (Filing No. 2 ) is denied as moot. Ordered by Senior Judge Richard G. Kopf. (Copy e-mailed and mailed to pro se party)(GJG) Modified on 2/29/2016 to add copy e-mailed (GJG).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTIAN VALDEZ,
Plaintiff,
v.
ED LESTER, et al.,
Defendants.

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8:15CV391

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff Christian Valdez’s
Complaint. See 28 U.S.C. § 1915(e)(2). For the reasons discussed below, the court
will dismiss Valdez’s Complaint without prejudice.
I. SUMMARY OF COMPLAINT
Valdez filed this action against Ed Lester and Jerome McCarthy, two Butte,
Montana, law enforcement officers. In addition, he filed this action against Kara
Richardson, Sara Crowson, and Shelley Emerson, three employees of the Department
of Family Services in Butte, Montana. Finally, he filed this action against Brandon
Dellasara of “Aware Inc.” (Filing No. 1-1 at CM/ECF p. 1.)
Valdez alleged state or local officials removed his son from his care and
custody on November 20, 2014. He described the events leading up to this incident
as follows:
On the night of November 20, 2014, I set out a voice activated recorder
because I had a bad feeling that something was going to happen. Around
3am I fell asleep in a chair in my living room. Before falling asleep I
created a gas mixture using bleach and ammonia and I placed it in my
basement. I was afraid that something was going to happen to myself or
my son who was also in the home asleep at the time. The reasoning
behind using the gas mixture was that I had break-ins before and when

I went to local law enforcement to get help, I was denied and turned
away and told that I was hallucinating. . . . I woke up around 5:30
am[,] . . . check[ed] the recording to see if anything had happened and
there were voices of multiple men on their [sic] talking about killing me
for money[.]”
(Filing No. 1-1 at CM/ECF p. 2.)
Valdez reported these incidents to the police, but they claimed not to hear the
voices on the recording. They removed Valdez’s son from his home and they are now
in the process of terminating Valdez’s parental rights. (Filing No. 1-1 at CM/ECF pp.
3-4.)
At some point after November 20, 2014, Valdez played the audio recording for
Defendants Lester and McCarthy, but they both claimed they could hear only Valdez’s
voice. (Filing No. 1-1 at CM/ECF pp. 3-4.) In addition, at some point following this
incident, Valdez moved to Nebraska. He attempted to remain in contact with the
Department of Family Services, but complains Defendants Crowson and Richardson
“barely” returned his calls. (Filing No. 1 at CM/ECF p. 4.)
For relief in this matter, Valdez asks the court to order his son returned to him.
(Filing No. 1 at CM/ECF p. 6.)
II. 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). The court must dismiss a complaint or any portion of it 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).
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Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION
Valdez’s Complaint is deficient in three respects. First he does not state any
discernible cause of action against any of the named defendants. He alleged Lester
and McCarthy did not hear voices on the audio recording when Valdez played it for
them, and that Crowson and Richardson “barely” returned his telephone calls. The
court cannot infer from these allegations that these defendants are liable for any
misconduct.
Second, this action is subject to dismissal under the domestic relations
exception to federal court jurisdiction. Valdez asks that this court order the
defendants to return Valdez’s son to him. However, 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
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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).
Here, the substance of Valdez’s claims concern state law domestic relations
matters. This is particularly so where it is clear from Plaintiff’s allegations and filings
that his son’s care and custody is the subject of a juvenile court case in Montana.
Montana’s state courts would be better equipped to handle the issues that have arisen
in the course of the juvenile court proceedings in Montana. 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).
Third, even if the court did not lack jurisdiction based on the domestic relations
exception, the court would abstain from hearing Valdez’s 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
proceedings in Montana are apparently ongoing. Second, disputes concerning the care
and custody of minors implicate important state interests. Third, while Valdez has not
alleged that his civil rights have been violated, there is no indication that the state
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courts could not afford Valdez the opportunity for judicial review of any civil rights
challenges.
IT IS THEREFORE ORDERED that: This case is dismissed without prejudice.
The court will enter judgment by a separate document. Valdez’s Motion for Leave to
Proceed in Forma Pauperis (Filing No. 2) is denied as moot.
DATED this 29th day of February, 2015.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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