Lollis et al vs. Lake, et al

Filing 3

OPINION AND ORDER by Judge James H Payne ; dismissing/terminating case (terminates case) ; denying 2 Motion for Leave to Proceed in Forma Pauperis (pll, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
FRED LOLLIS and
ROSEMARY LOLLIS,
Plaintiffs,
v.

)
)
)
)
)
)

Case No. 15-CV-351-JHP-PJC

)
EDWARD LAKE, Director of DHS, et al., )
)
Defendants.
)

OPINION AND ORDER
Before the Court are the plaintiffs’ Complaint [Doc. No. 1] and Motion for Leave to
Proceed In Forma Pauperis and Supporting Affidavit [Doc. No. 2].

Plaintiffs Fred and

Rosemary Lollis (“Plaintiffs”), proceeding pro se, have filed numerous lawsuits in this Court
apparently related to allegations their children were improperly taken into custody by Child
Protective Services (“CPS”). In this action, Plaintiffs have sued several defendants including,
“Edward Lake, Director of DHS, Sharon Wells, CWSII of DHS, Mayor Dewey Bartlett Jr., City
of Tulsa, and Governor Mary Fallen, State of Oklahoma.” (“the defendants”). [Doc. No. 1 at 1].
Plaintiffs have not alleged specific causes of action or provided detailed allegations with regard
to these defendants. Plaintiffs’ factual allegations are as follows:
Kids are facing separation issues, no warrant or court order to come on
property to remove kids.....Visits of children till June, have only seen
them once and visits have stopped, no shelter care hearing 72 hours...
After pickup of children, Shannon let our 4 year old play in between
2 cars in the motel parking lot with no shoes - she wasn’t watching...
Shannon picked up 2 oldest at school with no order. Picked up 2
younger ones April 28 with no order.
[Id. at 1-2].

1

Plaintiffs seek to commence this action without prepayment of fees pursuant to 28 U.S.C.
§ 1915(a)(1), which provides that “any court of the United States may authorize the
commencement, prosecution or defense of any suit . . . without prepayment of fees . . . by a
person who submits an affidavit that includes a statement of all assets such prisoner possesses
that the person is unable to pay such fees.” Despite use of the word “prisoner,” this statute
applies to all persons applying for in forma pauperis status. Brown v. Eppler, 725 F.3d 1221,
1229 n.6 (10th Cir. 2013).
This statute “is designed to ensure that indigent litigants have meaningful access to the
federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). “Congress recognized, however,
that a litigant whose filing fees and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Id. To prevent such frivolous litigation, the statute authorizes federal courts to
dismiss a case sua sponte that is filed in forma pauperis if: (1) the allegation of poverty is false,
(2) the action is frivolous or malicious, (3) the action fails to state a claim upon which relief may
be granted, or (4) the action seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2); see also Stafford v. United States, 208 F.3d 1177, 1179 n.4 (10th
Cir. 2000). Dismissals based on § 1915(e)(2) are often made sua sponte prior to the issuance of
process “so as to spare prospective defendants the inconvenience and expense of answering such
complaints.” Neitzke, 490 U.S. at 324.1
While pro se pleadings must be liberally construed and must be held to less stringent
standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972),
1

The Court in Neitzke addressed the precursor to 28 U.S.C. § 1915(e)(2), which was 28 U.S.C. § 1915(d). However, the
Tenth Circuit has cited Neitzke as setting forth the policy considerations underlying § 1915(e)(2). See Trujillo v.
Williams, 465 F.3d 1210, 1216 & n.6 (10th Cir. 2006).

2

a district court should not assume the role of advocate. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991); United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009); Garret v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Moreover, even pro se plaintiffs
are required to comply with the “fundamental requirements of the Federal Rules of Civil and
Appellate Procedure” and substantive law, and the liberal construction to be afforded does not
transform “vague and conclusory arguments” into valid claims for relief. Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994). The court “will not supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997).
The Court has an obligation to consider whether subject matter jurisdiction exists, even if
the parties have not raised the issue. 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d
1044, 1048 (10th Cir. 2006). Plaintiffs assert that this Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 1983. 42 U.S.C. § 1983 does not provide an independent basis for
subject-matter jurisdiction. However, Plaintiffs could be alleging a claim for violation of their
federal constitutional rights, which could support the exercise of federal question jurisdiction
under 28 U.S.C. § 1331. Generally, the “well-pleaded complaint” rule requires that the federal
question appear on the face of the plaintiff’s complaint. See Garley v. Sandia Corp., 236 F.3d
1200, 1207 (10th Cir. 2001). “The complaint must identify the statutory or constitutional
provision under which the claim arises, and allege sufficient facts to show that the case is one
arising under federal law.” Collins v. Cnty. of Johnson, Kan., 2001 WL 950259, at *1 (D. Kan.
July 12, 2011) (quoting Martinez v. U.S. Olympic Comm., 802 F.2d 1275, 1280 (10th Cir.
1986)).

3

Plaintiffs allege their civil and constitutional rights were violated and appear to cite
Section 1983 as the basis for the relief they seek. Although Section 1983 provides a cause of
action against state actors for violation of constitutional rights, Becker v. Kroll, 494 F.3d 904,
913 (10th Cir. 2007), Plaintiffs’ allegations do not support a finding that defendants violated
Plaintiffs’ constitutional rights. Under a broad construction, Plaintiffs appear to allege that
defendants failed to ensure that CPS had adequate evidence to support removal of the children
from Plaintiffs’ care and failed to ensure the children were safe. [Doc. No. 1 at 1-2]. In the
context of claims arising out of a social worker’s alleged failure to properly supervise or a
protect a child, it is clearly established constitutional law under the Due Process Clause that
foster children are “to be kept reasonably safe from harm,” but “state officials will only to be
found to have violated this right if they ‘knew of the asserted danger to [foster children] or failed
to exercise professional judgment with respect thereto, . . . and if an affirmative link to the
injuries [the children] suffered can be shown.’” J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir.
2011) (quoting Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 892-93 (10th Cir.
1992)). Here, Plaintiffs’ vague and conclusory allegations do not satisfy this standard and thus
do not state any colorable claim under Section 1983. At best, the allegations may support some
assertion of negligence, which would not support a finding that defendants violated Plaintiffs’
constitutional rights, either personally or in a supervisory role.2 See J.W., 647 F.3d at 1011-12.
Other judges of this Court have dismissed related cases upon determining that similar
allegations did not state colorable federal claims. See Lollis v. Kunzweiler et al., No. 15-CV245-CVE-PJC [Doc. No. 3]; Lollis v. CPS/DPS et al., No. 15-CV-247-JED-FHM [Doc. No. 3];
2

To the extent that Plaintiffs are asserting some claim arising under state law, the Court declines to exercise supplemental
jurisdiction over any state law claims Plaintiffs may have. See Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir.
2011) (“When all federal claims have been dismissed, the court may, and usually should, decline to exercise jurisdiction
over any remaining state claims.”) (quoting Smith v. City of Enid, 149 F.3d 1151, 1156 (10th Cir. 1998)).

4

Lollis v. City of Bixby, No. 15-CV-249-JED-FHM [Doc. No. 3]; Lollis v. Wells, No. 15-CV-251JED-PJC [Doc. No. 3]; Lollis v. Tulsa Police Dept., No. 15-CV-279-CVE-TLW [Doc. No. 3];
Lollis v. Judge Doris Fransein et al., No. 15-CV-280-TCK-PJC [Doc. No. 3]; and Lollis v.
Torres et al., No. 15-CV-290-JED-PJC [Doc. No. 3]. And this Court has recently dismissed a
related case, Lollis v. Johnson, No. 15-CV-254-JHP-FHM [Doc. No. 3]. Likewise, construing
the Complaint in this case liberally in light of Plaintiffs’ pro se status, the allegations do not state
a colorable federal claim against the defendants. As a result, the Court lacks subject matter
jurisdiction over this case. Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006) (stating that
federal courts cannot exercise federal question jurisdiction over a case without the existence of a
colorable claim arising under federal law). The case should be dismissed under § 1915(e)(2) for
failure to state any federal claim upon which relief can be granted.
IT IS THEREFORE ORDERED that Plaintiffs’ claims are dismissed for lack of
subject matter jurisdiction. Plaintiffs’ Motion for Leave to Proceed In Forma Pauperis and
Supporting Affidavit [Doc. 2] is denied as moot.

SO ORDERED this 2nd day of September, 2015.

5