Swift et al v. Nebraska Family Cooperative et al

Filing 6

MEMORANDUM AND ORDER - All claims alleged against the State of Nebraska are dismissed without prejudice, and it shall no longer be a party to this action. On the court's own motion, the court will give Plaintiffs 30 days in which to file an Amen ded Complaint that states a claim on which relief may be granted against the remaining Defendants. Failure to file an Amended Complaint within 30 days will result in the court dismissing this case without further notice to Plaintiffs. The clerk of the court is directed to set the following pro se case management deadline: November 20, 2017: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT and
ARNETTA SWIFT,
Plaintiffs,
v.
NEBRASKA FAMILY COOPERATIVE,
STATE OF NEBRASKA, and
ALL UNKNOWN JANE & JOHN DOE
OPERATIVES,
Defendants.

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8:17CV368

MEMORANDUM
AND ORDER

Plaintiffs, Charles and Arnetta Swift, filed their Complaint (Filing No. 1) on
October 5, 2017, and have since been granted leave to proceed in forma pauperis
(Filing No. 5). The court now conducts an initial review of Plaintiffs’ Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).
I. SUMMARY OF COMPLAINT
Plaintiffs allege their minor child was assaulted by another minor in a foster
care setting. Plaintiffs seek to recover $100 million in damages from Nebraska Family
Cooperative (“NFC”), the State of Nebraska, and unknown “operatives.”
II. 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. § 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).
III. DISCUSSION
Plaintiffs indicate their action is filed pursuant to 42 U.S.C. § 1983, which
provides a cause of action for “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States. As will be discussed
below, there are several problems with Plaintiffs’ Complaint.
A. Eleventh Amendment Immunity
The State of Nebraska is immune from suit in federal court in an action brought
under 42 U.S.C. § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65-66
(1989) ( “[A] State is not a ‘person’ within the meaning of § 1983 ... The Eleventh
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Amendment bars ... suits [against States for alleged deprivations of civil liberties]
unless the State has waived its immunity.”). This action for damages can only proceed
against NFC and persons who are sued in their individual capacities (as opposed to
their official capacities, which would be equivalent to suing the State). Importantly,
Plaintiffs will need to allege and prove that NFC and any other Defendants were
acting under color of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“The
traditional definition of acting under color of state law requires that the defendant in
a § 1983 action have exercised power ‘possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.’”).
B. Plaintiffs’ Standing
Plaintiffs do not allege that they were deprived of any rights, privileges or
immunities, or were injured in any way. It appears Plaintiffs are instead claiming that
their minor child’s constitutional rights were violated. “[P]arents lack standing to
bring individual claims under § 1983 based solely upon deprivation of a child’s
constitutional rights.” Phillips ex rel. Green v. City of New York, 453 F. Supp. 2d 690,
734 (S.D.N.Y. 2006). Plaintiffs might be able to sue in a representative capacity as the
child’s legal guardians. See Fed. R. Civ. P. 17(a)(1)(C) (“The following may sue in
their own names without joining the person from whose benefit the action is brought:
... a guardian ....”) and (c)(1)(A) (“The following representatives may sue or defend
on behalf of a minor or incompetent person: ... a general guardian ....”). Alternatively,
they might be able to sue as their child’s “next friends.” See Fed. R. Civ. P. 17(c)(2).
In either case, Plaintiffs will need to allege facts to show their authority to bring suit
on behalf of the child.
C. Substantive Due Process
Generally, the due process clause does not require the state to protect an
individual against private violence. Moore v. Briggs, 381 F.3d 771, 773 (8th Cir.
2004). The state is required, however, to protect individuals who are in its custody or
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are subjected to a state-created danger. Hart v. City of Little Rock, 432 F.3d 801, 805
(8th Cir. 2005); Forrester v. Bass, 397 F.3d 1047, 1057-58 (8th Cir. 2005). A
custodial relationship is created when a child is placed in foster care. Norfleet v.
Arkansas Dept. of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993); James ex rel.
James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006); see also Phillips, 453 F. Supp. 2d
at 721 (“[C]hildren in foster care have a substantive due process right under the
Fourteenth Amendment to protection from harm.”) (internal quotation marks and
citations omitted).
In the context of this custodial relationship, a substantive due process violation
will be found to have occurred only if the official conduct or inaction is so egregious
or outrageous that it is conscience-shocking. Burton v. Richmond, 370 F.3d 723, 729
(8th Cir. 2004). When deliberation is practical, the officials’ conduct will not be found
to be conscience-shocking unless the officials acted with deliberate indifference.
Moore, 381 F.3d at 773. Deliberate indifference will be found only if the officials
were aware of facts from which an inference could be drawn that a substantial risk of
serious harm existed and the officials actually drew that inference. Id. at 773-74. Mere
negligence or even recklessness by a public official is not enough to shock the judicial
conscience. S.S. v. McMullen, 225 F.3d 960, 964 (8th Cir. 2000) (en banc).
Plaintiffs allege: “We repeatedly informed defendants then in physical control
of our minor children that our child “A” [name redacted] was assaulted by “B” [name
redacted] then in care with our progeny same foster home child “B” [name redacted]
had hand guns and marijuana in home. NFC told childrens mater “GAL” that NFC
didn’t like Charles and ignored our warning also information from our attnry Matt that
they didn’t like Charles cause he had a big mouth... After assault on “A” [name
redacted] about six months later we found out that “C” [name redacted]1 was raped by
“B” [name redacted].” (Filing No. 1 at CM/ECF pp. 1-2) (spelling and punctuation as
in original).

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“C” has a different surname from Plaintiffs and is not alleged to be their child.
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These allegations fail to show that NFC had any information in advance of the
alleged assault to suggest there was a substantial risk of harm to Plaintiffs’ child.
Although Plaintiffs claim NFC “ignored our warning,” Plaintiffs only allege that they
“repeatedly informed [NFC] that our child ... was assaulted.” They do not allege that
NFC knew about the guns and marijuana or, more importantly, about the alleged rape.
Because the date and location of the rape are not alleged, it might not have occurred
until six months after the alleged assault on Plaintiffs’ child and might not have even
been related to the foster home. In short, Plaintiffs’ Complaint does not contain
sufficient factual allegations to support a finding that NFC was deliberately indifferent
to their child’s safety.
IV. CONCLUSION
Plaintiffs’ 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, Plaintiffs will be given 30 days in which to amend the
Complaint to clearly state a claim upon which relief may be granted against NFC.
Accordingly,
IT IS ORDERED:
1. All claims alleged against the State of Nebraska are dismissed without
prejudice, and it shall no longer be a party to this action.
2. On the court’s own motion, the court will give Plaintiffs 30 days in which to
file an Amended Complaint that states a claim on which relief may be granted against
the remaining Defendants. Failure to file an Amended Complaint within 30 days will
result in the court dismissing this case without further notice to Plaintiffs.

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3. The clerk of the court is directed to set the following pro se case management
deadline: November 20, 2017: check for amended complaint.
DATED this 19th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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