Swift et al v. Nebraska Family Cooperative et al

Filing 8

MEMORANDUM AND ORDER - The clerk of the court shall restrict access to Plaintiffs' Complaint (Filing No. 1 ) and Amended Complaint (Filing No. 7 ) to parties of record and court users. This action is dismissed without prejudice. Judgment shall be entered by separate document. 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 (nee HILL),
Plaintiffs,
v.
DEBORAH BARRETT and
ANGIE WILLIAMS,
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, alleging that a minor child of theirs was assaulted in a foster care
setting. Plaintiffs requested that they recover $100 million in damages from Nebraska
Family Cooperative (“NFC”), the State of Nebraska, and unknown “operatives.”
After Plaintiffs were granted leave to proceed in forma pauperis, the court
conducted an initial review of the Complaint to determine whether summary dismissal
was appropriate under 28 U.S.C. § 1915(e)(2). In a Memorandum and Order entered
on October 19, 2017 (Filing No. 6), the court dismissed the State of Nebraska as a
Defendant based on Eleventh Amendment immunity and ruled that the Complaint
failed to state a claim upon which relief can be granted against NFC. On its own
motion, however, the court granted Plaintiffs leave to amend within 30 days.
On November 14, 2017, Plaintiffs filed an Amended Complaint (Filing No. 7),
which no longer names NFC as a Defendant, but which instead is brought against two
“NFC workers,” Deborah Barrett and Angie Williams. The court now conducts an
initial review of the Amended Complaint. For the reasons discussed below, the court
concludes that the action should be dismissed without prejudice.

I. SUMMARY OF AMENDED COMPLAINT
As an initial matter, the court notes that Plaintiffs’ Amended Complaint
contains the names and dates of birth of several minors. The Federal Rules of Civil
Procedure require that such information be redacted, and that only a minor’s initials
and year of birth be provided. See Fed. R. Civ. P. 5.2(a). Plaintiffs’ original Complaint
also included the names of three minors, whom the court simply designated by the
letters “A,” “B,” and “C” in its previous Memorandum and Order (Filing No. 6). The
court will continue to use this alphabetical designation and will direct the clerk of the
court to restrict access to the Complaint (Filing No. 1) and Amended Complaint
(Filing No. 7) to parties of record and court users. See Fed. R. Civ. P. 5.2(e); NECivR
5.3(c); NEGenR 1.3(a)(1)(B)(ii).
Plaintiffs allege they were married on January 18, 2014, at which time Arnetta
“still had all 5 of her kids in custody but they where [sic] living with the paternal
Grandmother” while Arnetta was in a drug treatment center. It appears, however, that
only four of the children were related to their caretaker grandmother. These four
children include “A,” a girl who was born in 2009. The other three children were born
in 2007, 2008, and 2012. Their biological father is deceased. (Filing No. 7 at CM/ECF
pp. 1-2, ¶¶ 1-2) Arnetta’s fifth child, “C,” is a daughter who was born in 2004 and has
a different biological father. (Filing No. 7 at CM/ECF p. 2, ¶ 3) Charles claims to be
“the legal father of all the children” by reason of his marriage to Arnetta. (Filing No.
7 at CM/ECF p. 2, ¶ 3) It appears Plaintiffs may also have a child of their own who
was living with the caretaker, as Plaintiffs allege: “Our child [“D”] was walking down
street alone ... [and] was given a fire cracker at age 1 and burned a hole in his chest.”
(Filing No. 7 at CM/ECF p. 3, ¶¶ 4, 5)
Plaintiffs allege that they “explained to defendants on more than one occasion
at there [sic] family meetings that children weren’t being properly cared for and
need[ed] to be removed” from the home “[b]ecause of the series of events.” (Filing
No. 7 at CM/ECF p. 3, ¶ 3) In addition to the caretaker’s alleged neglect involving
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“D,” it is claimed that two children were victims of violence. First, Plaintiffs allege:
“Our daughter [“A”] was assaulted by [“B”]. (Filing No. 7 at CM/ECF p. 3, ¶ 6) “B”
is a male of unknown age and parentage, who, according to the original Complaint,
“was then in care with our progeny [in the] same foster home[.]” (Filing No. 1 at
CM/ECF p. 1) Second, Plaintiffs allege: “After assault on [“A”] about 6 months later
we found out that our daughter [“C”] was raped” by [“B”]. (Filing No. 7 at CM/ECF
p. 4, ¶ 6) Plaintiffs do not allege when or where the rape occurred or whether
Defendants had any knowledge of it.
Plaintiffs also fail to state when or where the alleged assault on “A” took place,
or to provide any details about the incident. Plaintiffs only allege: “The defendants
found out [b]y not only the plaintiffs but by the Visit worker and [“A”] herself. We
repeatedly informed defendants in physical control of our minor child being assaulted,
and they ... replied with, ‘[“B”] didn’t reside in the home[,’] ... [w]hich he did. We
also ask[ed] on many occasions for children to be removed because [“B”] had hand
guns and marijuana in the home.” (Filing No. 7 at CM/ECF pp. 3-4, ¶ 6)
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.”).
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“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
This 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. But Plaintiffs do not allege any facts to
show they themselves were deprived of any rights, privileges or immunities. Although
no specifically alleged, Plaintiffs instead appear to be asserting a constitutional claim
on behalf of one or more of their children. See, e.g., Phillips ex rel. Green v. City of
New York, 453 F. Supp. 2d 690, 721 (S.D.N.Y. 2006) (“[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). Plaintiffs must understand
that they cannot recover any damages for themselves by asserting such a claim. This
is because “parents 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).
A. Plaintiffs’ Standing
The court indicated in its previous Memorandum and Order that Plaintiffs might
be able to sue in a representative capacity as guardians, see Fed. R. Civ. P. 17(a)(1)(C)
and (c)(1)(A), or, alternatively, as “next friends,” see Fed. R. Civ. P. 17(c)(2), if they
could “allege facts to show their authority to bring suit on behalf of the child[ren].”
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(Filing No. 6 at CM/ECF p. 3) Liberally construing the Amended Complaint, it
appears that Arnetta Swift is the biological mother of six minor children, all of whom
were placed in foster care. As a parent, she presumably would have authority to sue
on behalf of her children for injuries sustained while they were in foster care. It also
appears from the Amended Complaint that Charles Swift may be the biological father
of one child and the stepfather of the other five children. Whether Charles has legal
authority to file suit as a stepfather need not be determined at this time.
Even if Plaintiffs may be qualified to bring an action on behalf of their children
under Rule 17, they cannot do so in a pro se capacity. “[I]t is well established that a
pro se party may not represent others, even when it is a parent purporting to represent
his minor children.” Behrens v. GMAC Mortg., LLC, No. 8:13-CV-72, 2013 WL
6118415, at *4 (D. Neb. Nov. 21, 2013) (citing cases), aff’d 566 F. App’x 546 (8th
Cir. 2014). “While there are some situations in which parents may bring pro se claims
on behalf of their children—such as an application for Social Security benefits—no
comparable exception has ever been recognized for a lawsuit based on § 1983 or
general state tort law.” Stephenson v. Bruno, No. 4:14CV3097, 2014 WL 5850837,
at *4 (D. Neb. Nov. 12, 2014) (quoting Nunley v. Erdmann, No. C14-4016-MWB,
2014 WL 5020253, at *4 (N.D.Iowa Oct. 8, 2014) (internal quotation marks and
citation omitted)). As further explained in McNeil v. City of Omaha, No. 8:07CV143,
2008 WL 312715, at *3 (D. Neb. Jan. 30, 2008) (quoting Wolfe v. Johanns, No.
8:00CV609, 2002 WL 475172, at *1-2 (D.Neb. Mar. 29, 2002)):
[R]epresentative parties may not appear pro se on behalf of other
litigants. In particular, a non-attorney parent may not appear pro se on
behalf of a minor child. Cheung v. Youth Orchestra Found. of Buffalo,
Inc., 906 F.2d 59 (2d Cir.1990). Accord Devine v. Indian River County
School Bd., 121 F.3d 576 (11th Cir.1997), [overruled on other grounds
by Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007)]. Johns v.
County of San Diego, 114 F.3d 874 (9th Cir.1997); OseiAfriyie v.
Medical College of Pa., 937 F.2d 876 (3d Cir.1991). [ ] Courts have a
duty to enforce this rule sua sponte, as it is designed to protect the legal
interests of children. [ ] Wenger v. Canastota Cent. School Dist., 146
F.3d 123, 125 (2d Cir.1998), [overruled on other grounds by
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Winkelman]..... [The non-attorney-parent plaintiff] may represent himself
by virtue of 28 U.S.C. § 1654. However, he may not maintain a pro se
action on behalf of [his minor child].
See also Akins v. Schreiner, No. 4:14CV3081, 2014 WL 3510107, at *2 (D. Neb. July
14, 2014) (holding on initial review of pro se complaint that plaintiff could not sue on
behalf of his minor son); Barfield v. Sheriff of Lancaster Cty., No. 8:09CV121, 2009
WL 1507665, at *1 (D. Neb. May 27, 2009) (holding that non-lawyer parent had no
right to represent minor child and dismissing pro se complaint for lack of standing);
Buckley v. Dowdle, No. 08-1005, 2009 WL 750122, at *1 (8th Cir. Mar. 24, 2009)
(affirming dismissal of pro se complaint filed on behalf of plaintiff’s minor daughter).
Because Plaintiffs do not claim that Defendants violated their constitutional
rights, and because they cannot bring an action on behalf of their minor children
without utilizing the services of an attorney, this action will be dismissed without
prejudice. See, e.g., Bower v. Springfield R-12 Sch. Dist., 263 F. App’x 542 (8th Cir.
2008) (holding that district court did not abuse its discretion in denying plaintiff’s
motion for appointed counsel and thus did not err in dismissing claims of plaintiff’s
minor children, as plaintiff was unable to represent them pro se; but also holding that
the claims should have been dismissed without prejudice). Plaintiffs have not filed a
motion for appointment of counsel, and the court finds no reason to appoint counsel
on its own motion based on Plaintiffs’ filings to date.
“Indigent civil litigants do not have a constitutional or statutory right to
appointed counsel,” Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), but “[t]he court
may request an attorney to represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e)(1) (emphasis supplied). However, such appointments are rare. See Peterson
v. Nadler, 452 F.2d 754, 757 (8th Cir. 1971), abrogated on other grounds by Mallard
v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296 (1989). “In ruling upon a motion
for appointment of counsel, the district court may consider the merits of the claim, the
plaintiff’s efforts to obtain counsel, and the plaintiff’s financial ability to retain an
attorney.” Hale v. N. Little Rock Hous. Auth., 720 F.2d 996, 998 (8th Cir. 1983). Trial
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courts have “broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel, taking into account the factual and legal
complexity of the case, the presence or absence of conflicting testimony, and the
plaintiff’s ability to investigate the facts and present his claim.” Davis, 94 F.3d at 447.
Although Plaintiffs have demonstrated their lack of financial resources in being
permitted to proceed in forma pauperis, this is not necessarily an obstacle to obtaining
legal representation in a case such as this, which, if deemed meritorious, may be
accepted by a lawyer on a contingent-fee basis (i.e., the amount of the attorney’s fee
depends on the amount of damages awarded, if any). Reasonable attorney’s fees are
also recoverable by plaintiff in a successful § 1983 action. See 42 U.S.C. § 1988(b).
In the event Plaintiffs re-file this action without an attorney representing them,
they will need to include in their complaint (or file as a separate motion) a request for
appointment of counsel and explain what efforts they made to obtain counsel on their
own. They will also need to include more facts in the complaint to demonstrate that
any claims made on behalf of their children have merit.
B. “Acting Under Color of State Law” Requirement
Plaintiffs were informed by the court in its previous Memorandum and Order
that in order to state an actionable § 1983 claim they “will need to allege and prove
that NFC and any other Defendants were acting under color of state law” (Filing No.
6 at CM/ECF p. 3). Plaintiffs were also told that “[t]he 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.’” (Filing No. 6 at CM/ECF p. 3)
quoting West v. Atkins, 487 U.S. 42, 49 (1988)) Despite this admonition, Plaintiffs
have alleged no facts to show that the Defendants named in the Amended Complaint
were acting under color of state law when then allegedly failed to protect Plaintiffs’
children from harm. Indeed, it cannot be determined from Plaintiffs’ pleadings what
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involvement Defendants actually had in the alleged foster care arrangement. The
Amended Complaint therefore fails to state a claim upon which relief can be granted.
C. Substantive Due Process
The state is required to protect individuals who are in its custody or 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). 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).
In its previous Memorandum and Order, the court determined that the factual
allegations of the original Complaint were not sufficient to show that NFC was
deliberately indifferent to the safety of child “A.” (The court was unable to ascertain
from the original Complaint that “C” was also Arnetta’s daughter.) The court stated:
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]
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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.
(Filing No. 6 at CM/ECF p. 5)
The Amended Complaint clarifies to some extent Plaintiffs’ relationship to the
children and their caretaker, but it does not shed any additional light on the central
issue of whether Defendants were “deliberately indifferent” to the children’s safety.
That is to say, it cannot be determined from the few facts alleged that either of the
Defendants named in the Amended Complaint possessed any information in advance
of the alleged assault on “A” or the alleged rape of “C” from which it could be
inferred that “B” presented a substantial risk of serious harm to “A” and “C,” or that
either Defendant actually drew that inference. To the extent Plaintiffs may be claiming
that any other child’s constitutional rights were violated, there again are not sufficient
facts alleged to indicate that Defendants have any potential liability.
IV. CONCLUSION
This action will be dismissed without prejudice because Plaintiffs, as pro se
non-attorneys, cannot represent their children and, in any event, they have failed to
allege sufficient facts to state a claim upon which relief can be granted.
IT IS THEREFORE ORDERED:
1. The clerk of the court shall restrict access to Plaintiffs’ Complaint (Filing No.
1) and Amended Complaint (Filing No. 7) to parties of record and court users.

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2. This action is dismissed without prejudice.
3. Judgment shall be entered by separate document.
DATED this 18th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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