Swift (Nee) Hill et al v. Osler

Filing 6

MEMORANDUM AND ORDER that the Plaintiffs will have 30 days in which to file an amended complaint. Failure to file an amended complaint within 30 days will result in the court dismissing this action without further notice to Plaintiffs. 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) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARNETTA SWIFT (NEE) HILL, and
CHARLES SWIFT,
8:17CV440
Plaintiffs,
MEMORANDUM
AND ORDER

vs.
BRENDA OSLER,
Defendant.

Plaintiffs Arnetta Swift (Nee) Hill and Charles Swift filed their Complaint
(Filing No. 1) on November 15, 2017, and have 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 that Defendant Brenda Osler (“Osler”) abused their minor
children while the children were placed with Osler in foster care between June and
November of 2016. Plaintiffs allege that they reported their concerns about the
abuse and the children’s safety to Debra Barnett and Angie Williams with
Nebraska Family Collaborative; Plaintiffs’ GAL, Marriette Achibu; and Matthew
Kahler.
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. §
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 OF CLAIMS
Plaintiffs indicate their action is filed pursuant to 42 U.S.C. § 1983. To state
a § 1983 cause of action, 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). As will be discussed below, there are several problems
with Plaintiffs’ Complaint.
A.

Jurisdiction

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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). The subject-matter jurisdiction of the
federal district courts is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under
these statutes, federal jurisdiction is available only when a “federal question” is
presented (i.e., in a civil action arising under the Constitution, laws, or treaties of
the United States) or when the parties are of diverse citizenship and the amount in
controversy exceeds $75,000.
Here, Plaintiffs caption their action as a “1983 civil action,” (Filing No. 1),
but fail to allege that Osler is a state actor or that her conduct is attributable to the
state. See West, 487 U.S. at 49 (“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.’”); see also Filarsky v. Delia, 566 U.S. 377,
383 (2012) (“Anyone whose conduct is ‘fairly attributable to the state’ can be sued
as a state actor under § 1983.”). Consequently, there is no discernible “federal
question” alleged in the Complaint as Plaintiffs have failed to state a claim under
42 U.S.C. § 1983.
Moreover, Plaintiffs have not alleged that Osler is a citizen of a different
state nor have they alleged that the amount in controversy exceeds $75,000 as
required by 28 U.S.C. § 1332.1 Thus, the allegations of the Complaint fail to
establish diversity of citizenship jurisdiction.
B. Plaintiffs’ Standing
In addition to the Complaint’s jurisdictional deficiencies, Plaintiffs do not
allege that they were deprived of any rights, privileges or immunities, or were
injured in any way. Rather, it appears Plaintiffs are attempting to claim that their
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In fact, Plaintiffs’ Complaint does not specify the relief they seek whatsoever. (See
generally Filing No. 1.) Complaints filed in federal court must contain “a demand for the relief
sought.” Fed. R. Civ. P. 8(a)(3).

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minor children’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.
IV. CONCLUSION
The allegations of the Complaint fail to establish the court’s subject matter
jurisdiction over Plaintiffs’ claims or Plaintiffs’ standing to bring their claims. On
the court’s own motion, Plaintiffs will have 30 days in which to file an amended
complaint that clearly sets forth (1) a basis for this court’s jurisdiction, (2)
Plaintiffs’ standing, and (3) the relief Plaintiffs seek.
IT IS THEREFORE ORDERED that:
1.
Plaintiffs will have 30 days in which to file an amended complaint.
Failure to file an amended complaint within 30 days will result in the court
dismissing this action without further notice to Plaintiffs.
2.
The clerk of the court is directed to set the following pro se case
management deadline: January 8, 2018: check for amended complaint.

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Dated this 8th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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