Swift v. Williams
MEMORANDUM AND ORDER that Plaintiff will have 30 days to file an amended complaint that states a claim upon which relief may be granted against Defendant Angie Williams. Failure to file an amended complaint within 30 days will result in the court dismissing this case without further notice to Plaintiff. The clerk of the court is directed to set the following pro se case management deadline: January 8, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANGIE WILLIAMS, (Nebr. Family
Plaintiff Charles Swift filed his Complaint (Filing No. 1) on September 11,
2017, and has been granted leave to proceed in forma pauperis (Filing No. 5). The
court now conducts an initial review of Plaintiff’s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiff alleges that Defendant Angie Williams (“Williams”) of Nebraska
Family Cooperative (“NFC”) kidnapped Plaintiff’s infant son in March 2017.1
Plaintiff further alleges that illegal testing for drugs was performed on the child
with no illegal drugs found. Plaintiff also claims that he was tested for illegal
drugs with negative results, but does not claim that such testing was illegal.
Plaintiff seeks damages for the kidnapping in the amount of $100 million.
The court notes that Plaintiff has filed similar claims in the past regarding another of his
children. See Swift v. Laramie, et al., Case No. 4:14-cv-3185-JMG-PRSE (dismissed without
prejudice on May 6, 2015, for failure to file amended complaint); Swift v. Adams, et al., Case No.
8:15-cv-327-RGK-PRSE (dismissed without prejudice on May 16, 2016, for failure to file
amended complaint); Swift v. Laramie, et al., Case No. 8:15-cv-334-RGK-PRSE (dismissed
without prejudice on March 2, 2016, for failure to file amended complaint).
Plaintiff has attached several documents to his Complaint. These documents
reflect, among other things, that a petition filed in the Separate Juvenile Court for
Douglas County, Nebraska, with respect to Plaintiff’s infant son was dismissed
without prejudice on July 17, 2017, and the Nebraska Department of Health and
Human Services was relieved of all responsibility for the child at that time. (Filing
No. 1 at CM/ECF p.5.) Plaintiff alleges he received custody of the child on or
about May 23, 2017. (Id. at CM/ECF p.3.)
II. APPLICABLE LEGAL 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. §
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).
Liberally construed, Plaintiff here seeks to allege federal constitutional
claims. 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).
III. DISCUSSION OF CLAIMS
Plaintiff alleges his child was taken by Williams without “jurisdiction,
power of authority, [or] authorization by any court.” (Filing No. 1 at CM/ECF
p.1.) Plaintiff fails to allege that Williams was acting under color of state law.
Even assuming that William’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.
“The Due Process Clause provides that no State shall . . . deprive any person
of life, liberty, or property, without due process of law. . . . Parties whose rights are
to be affected are entitled to be heard; and in order that they may enjoy that right
they must first be notified.” Lind v. Midland Funding, L.L.C., 688 F.3d 402, 405–
06 (8th Cir. 2012). “Parents have a recognized liberty interest in the care, custody,
and management of their children.” Whisman Through Whisman v. Rinehart, 119
F.3d 1303, 1309 (8th Cir. 1997). However, “[t]hat liberty interest ‘is limited by the
compelling governmental interest in the protection of minor children, particularly
in circumstances where the protection is considered necessary as against the
parents themselves.’” Id. (quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.
1987)). “In cases in which continued parental custody poses an imminent threat to
the child’s health or welfare, emergency removal of children without a court order
is constitutionally permitted.” K.D. v. Cty. of Crow Wing, 434 F.3d 1051, 1056
(8th Cir. 2006). However, when a defendant’s action is proportional to his or her
reasonable belief that a minor child faces the threat of immediate harm, no
constitutional violation occurs. Id.
Here, Plaintiff alleges that Williams kidnapped his child as “directed” by
NFC. (Filing No. 1 at CM/ECF p.1.) Plaintiff’s allegations are entirely conclusory
and lack factual support sufficient to state a due process claim regarding his
kidnapped infant. Even when liberally construed, Swift’s claims are simply too
vague and conclusory to state a claim for relief. See Iqbal, 556 U.S. at 678 (“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
Additionally, it is clear from Plaintiff’s allegations and filings that his son’s
care and custody was the subject of a juvenile court case in the Douglas County
Juvenile Court. (Filing No. 1 at CM/ECF p.5.) Plaintiff admits he now has
custody of his son, and he has given no indication that any challenges he may have
to the proceedings cannot or did not receive a full and fair determination in state
Plaintiff’s Complaint fails to state a claim upon which relief can be granted
and is therefore subject to summary dismissal under 28 U.S.C. § 1915(e)(2).
However, on the court’s own motion, Plaintiff will be given 30 days in which to
amend the Complaint to clearly state a claim upon which relief may be granted
against Defendant Williams.
IT IS THEREFORE ORDERED that:
Plaintiff will have 30 days to file an amended complaint that states a
claim upon which relief may be granted against Defendant Angie Williams.
Failure to file an amended complaint within 30 days will result in the court
dismissing this case without further notice to Plaintiff.
The clerk of the court is directed to set the following pro se case
management deadline: January 8, 2018: check for amended complaint.
Dated this 8th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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