Lopez et al v. Kelly et al

Filing 7

MEMORANDUM AND ORDER -Plaintiffs will have 30 days in which to file an amended complaint that states a claim upon which relief can be granted. Failure to file an amended complaint in accordance with this Memorandum and Order will result in dismissal of this action without further notice. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/16/2016: check for second amended complaint) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BRENT P. LOPEZ and
ROSE A. ROMERO,
Plaintiffs,
v.
DELICIA KELLY, Child Protective
Services (CPS); JENNIFER SAGESER,
The Nebraska Families Collaborative
(NFC); and DEBRA TIGHE-DOLAN,
Douglas County,
Defendants.

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8:16CV98

MEMORANDUM
AND ORDER

Plaintiffs, Brent P. Lopez (“Lopez”) and Rose A. Romero (“Romero”) filed this
case on February 29, 2016. They have been granted leave to proceed in forma
pauperis. The court now conducts an initial review of their complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Lopez and Romero are husband and wife. They allege, among other things, that:
(1) Romero gave birth to the couple’s son, Izreal, on August 22, 2015, at Methodist
Women’s Hospital in Omaha, Nebraska; (2) on August 23rd, Plaintiffs contacted
Child Protective Services (“CPS”) with concerns they had about hospital employees;
(3) on August 24th, Defendant Delicia Kelly (“Kelly”) and another CPS employee
visited Plaintiffs and told them that hospital employees reported that Izreal had tested
positive for benzodiazepines, a controlled substance, and that they feared Plaintiffs
would attempt to remove Izreal from the neonatal intensive care unit (“NICU”); (4)
on August 25th, Defendant Debra Tighe-Dolan (“Tighe-Dolan”), a deputy county
attorney, filed an ex parte motion in the Separate Juvenile Court for Douglas County,

Nebraska, supported by an affidavit signed by Kelly, requesting that Izreal and
Plaintiffs’ two other children, Tai and Lyon, ages 4 and 6, be placed in the temporary
custody of the Nebraska Department of Health and Human Services; (5) Kelly
“misrepresented evidence, used baseless accusations and [made] false statements” in
her affidavit which resulted in the juvenile court judge granting the ex parte motion;
(7) on August 25th, Romero was barred from the hospital while Izreal was kept in the
NICU, and Tai and Lyon were removed from Plaintiff’s home and placed in the
custody of Romero’s parents; (8) on August 31st, Kelly interrogated Lyon at his
elementary school without parental knowledge, presence or consent; (9) on September
1st, Defendant Jennifer Sageser (“Sageser”) of Nebraska Families Collaborative
(“NFC”) coerced Plaintiffs to sign release forms for their personal medical records by
telling them that “If you do not sign this you will not get your kids back”; (10)
Plaintiffs were subjected to random drug tests, parenting classes, and had to complete
chemical dependency and psychological evaluations; (11) CPS ignored drug test
results, evaluation results, child interrogation results, and medical records that
contradicted and disproved the accusations against Plaintiffs; (12) on October 23rd,
Tighe-Dolan offered to return the children to Plaintiffs if they would “plead guilty”
to wanting to take lzreal out the hospital against medical advice, but Plaintiffs refused
the offer; (13) at a hearing on October 28th, hospital records and testimony from a
doctor showed that Izreal had not tested positive for benzodiazepines and supported
Plaintiffs’ version of events, while no evidence of any wrongdoing by Plaintiffs was
presented; (14) when the hearing was continued to November 18th, the children were
not returned to Plaintiffs’ custody, and Romero was not permitted to care for them at
her parents’ house even though her mother was ill, because Tighe-Dolan objected;
(15) on November 4th, the juvenile court case was dismissed upon Tighe-Dolan’s
motion and the court ordered that custody of the children be returned to Plaintiffs; (16)
on November 17th, Sageser came to Plaintiffs’ residence claiming she needed to do
a final home inspection and then asked questions for about 20 minutes; and (17) as a
result of Defendants’ actions, Plaintiffs have been traumatized and require medical
treatment for continuing depression and anxiety, their reputations have been injured,
and Romero lost her job.
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II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints 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).
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).
Plaintiffs claim their civil rights were violated and seek to recover damages.
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute and also must
show that the alleged deprivation was caused by conduct of a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d
494, 495 (8th Cir. 1993).

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III. DISCUSSION
Even assuming that Sageser’s conduct was “fairly attributable to the state,” so
that she can be sued as a state actor under § 1983, see Filarsky v. Delia, 132 S. Ct.
1657, 1661 (2012), the facts alleged are not sufficient to state a claim for relief. She
is only alleged to have obtained signed releases for Plaintiffs’ medical records and to
have conducted a home inspection and interview. There is no indication that she
violated any right secured by the Constitution or laws of the United States.
Tighe-Dolan’s alleged actions all relate directly to her prosecution of the
juvenile court case. “Prosecutors are entitled to absolute immunity from civil liability
under § 1983 when they are engaged in prosecutorial functions that are ‘intimately
associated with the judicial process.’” Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir.
2006) (quoting Anderson v. Larson, 327 F.3d 762, 768 (8th Cir.2003)).“Absolute
immunity covers prosecutorial functions such as the initiation and pursuit of a
criminal prosecution, the presentation of the state’s case at trial, and other conduct that
is intimately associated with the judicial process.” Brodnicki v. City of Omaha, 75
F.3d 1261, 1266 (8th Cir.1996). “[A]ctions connected with initiation of prosecution,
even if those actions are patently improper” are immunized. Schenk, 461 F.3d at 1046
(quoting Williams v. Hartje, 827 F.2d 1203, 1208 (8th Cir. 1987)). Because TigheDolen is not alleged to have engaged in any non-prosecutorial activities, she is
absolutely immune from suit.
Kelly’s conduct in allegedly preparing a false affidavit that led to the children
being removed from Plaintiffs’ custody could constitute a violation of their rights to
substantive due process as guaranteed by the Fourteenth Amendment. Parents have
a protected liberty interest in the custody, care, and management of their children. See
King v. Olmsted Cty., 117 F.3d 1065, 1067 (8th Cir. 1997).
To adequately plead a substantive due process claim, however, Plaintiffs must
allege facts showing that Kelly’s actions were “shocking to the contemporary
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conscience.” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 634
(8th Cir. 2010) (quoting Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th
Cir.2007). This is a high standard, as “[s]ubstantive due process is concerned with
violations of personal rights ... so severe ... so disproportionate to the need presented,
and ... so inspired by malice or sadism rather than a merely careless or unwise excess
of zeal that it amounted to brutal and inhumane abuse of official power literally
shocking to the conscience.” Id. (quoting Golden v. Anders, 324 F.3d 650, 652-53 (8th
Cir. 2003)). Plaintiffs’ general allegation that Kelly “misrepresented evidence, used
baseless accusations and false statements in order to obtain a signature by a Judge to
terminate parental rights” does not provide Kelly with fair notice of the nature of
Plaintiffs’ claims and the grounds upon which those claims rest, nor does it plausibly
establish their entitlement to any relief.
Also, Kelly apparently acted as an employee of the Children and Family
Services (formerly Child Protective Services) division of the Nebraska Department
of Health and Human Services (“DHHS”). Because the complaint does not “expressly
and unambiguously” state that Kelly is sued personally, the court must assume that
she is sued only in her official capacity. See Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999). The Eleventh Amendment to the United States
Constitution provides states, state agencies, and state officials acting in their official
capacities with immunity from suits brought by citizens of other states and from suits
brought by a state’s own citizens. See Hadley v. North Arkansas Cmty. Technical
Coll., 76 F.3d 1437, 1438 (8th Cir. 1996).
IV. CONCLUSION
On the court’s own motion, Plaintiffs will be granted leave to file an amended
complaint that states a claim upon which relief can be granted. In order to state an
actionable substantive due process claim against Kelly, Plaintiffs must allege that she
is being sued in her individual capacity and state sufficient facts to satisfy the
“conscience shocking” pleading standard. The complaint should specifically identify
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which statements in Kelly’s affidavit are contested by Plaintiffs, and should explain
why Kelly knew or should have known the statements were false. Accordingly,
IT IS ORDERED:
1. Plaintiffs will have 30 days in which to file an amended complaint that states
a claim upon which relief can be granted.
2. Failure to file an amended complaint in accordance with this Memorandum
and Order will result in dismissal of this action without further notice.
3. The clerk’s office is directed to set a pro se case management deadline using
the following text: May 16, 2016: check for second amended complaint.
DATED this 15th day of April, 2016.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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