Buholtz v. Carroll et al

Filing 13

MEMORANDUM OPINION. Please read for complete details. Signed by District Judge Henry E. Hudson on 01/15/2016. Copy mailed to plaintiff. (ccol, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KENNETH LEO BUHOLTZ

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Plaintiff,

v.
BART CARROLL, et al.,
Defendants.

JAN f 5 20l6
Cl.ERK. U.S. D1.STr11CT COUR1
RICI iiv10i'J0. VA

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Civil Action No. 3:15CV520-HEH

MEMORANDUM OPINION
(Dismissing 42 U.S.C. § 1983 Action)
Kenneth Leo Buholtz, a federal inmate proceeding prose, filed this 42 U.S.C.
§ 1983 action. 1 The matter is before the Court for evaluation pursuant to 28 U.S.C.
§1915A.

I.

PRELIMINARY REVIEW

Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss
any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2)
"fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28
U.S.C. § 1915A. The first standard includes claims based upon "an indisputably
meritless legal theory," or claims where the "factual contentions are clearly baseless."
1

The statute provides, in pertinent part:
Every person who, under color of any statute . . . of any State ... subjects, or
causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law ....

42 u.s.c. § 1983.

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Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490
U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).
"A motion to dismiss under Rule l 2(b)( 6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofNC. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citing SA Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the
light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir. 1993). This principle applies only to factual allegations, however, and "a court
considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth."

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[] only 'a short and plain statement
of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant
fair notice of what the ... claim is and the grounds upon which it rests."' Bell At/. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints
containing only "labels and conclusions" or a "formulaic recitation of the elements of a
cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient
"to raise a right to relief above the speculative level," stating a claim that is "plausible on
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its face," rather than merely "conceivable." Id. at 555, 570 (citations omitted). "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."
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). For a claim or complaint to

survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to
state all the elements of [his or] her claim." Bass v. E.J. DuPont de Nemours & Co., 324
F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the
Court liberally construes pro se complaints, Gordon v. Leeke, 514 F .2d 1147, 1151 (4th
Cir. 1978), it will not act as the inmate's advocate and develop, sua sponte, statutory and
constitutional claims that the inmate failed to clearly raise on the face of his complaint.
See Brockv. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudet!
v. City ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

II.

SUMMARY OF ALLEGATIONS

According to Buboltz, from 2008 until 2010, the Texas Department of Family and
Protective Services ("CPS") received reports of suspected sexual abuse ofBuholtz's
minor children, J.C.G. and L.S.B. (Compl. Attach.~~ 1-4, ECF No.

I.)2 The abuse was

allegedly perpetrated by the children's mother, Dilia Lulieth Buboltz, and another adult
female.

(Id.~

1.) On July 2, 2010, Defendant Delia Guillamondegui, CPS Investigator,

2

The Court employs the pagination assigned to Buholtz's Complaint by the CM/ECF docketing
system. The Court corrects the capitalization, spelling, and spacing in quotations from Buholtz's
Complaint.
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"'ruled out' all allegations of child abuse.'' (Id. ~ 6.) Buholtz's claims fault a number of
public officials in Texas for failing to act to stop this alleged abuse.
Buholtz claims that on April 8, 2011, Charles Phillips, Buholtz's attorney, "sent a
certified letter with return receipt, and concurrently faxed a copy of that same letter to
Defendant Bart Carroll, Chieflnvestigator for CPS in Plano, Texas, along with copies of
two indictments from Colombian officials issued against the children's mother and her
friend, alleging sexual abuse of the children."

(Id.~

7.) According to Buholtz, Carroll

"refused to accept later follow-up telephone calls from Attorney Phillips, and ignored the
letter and fax sent from the attorney." (Id.) On or about April 2012, "[i]n violation of a
Texas State Court order, mother removed both children from the United States ... and
took them to Colombia, South America."

(Id.~

5.)

Buholtz also asserts that Defendant Billy Lanier, as the Sheriffs office liaison to
CPS in Collin County, Texas, "had authority under color of Texas State law to protect the
minor children Plaintiffs from the physical and emotional harm and sexual abuse of
others." (Id. ~ 8.) Moreover, Defendant Terry Box, the Sheriff, "failed to take any action
in regard to repeated requests from [Buboltz] to investigate Defendant Lanier's
misconduct or malfeasance."

(Id.~

9.)

Additionally, Defendant John Specia, the Commissioner for CPS, has "failed to
respond to a certified letter dated June 15, 2015 regarding his employee's failure to
perform their legal duty."

(Id.~

10.) Finally, Buboltz alleges that Defendant W. Kenneth

Paxton, Jr., the Attorney General for Texas, "has failed to respond to [Buholtz's] repeated
requests of April 14, 2015 and June 15, 2015 to initiate a criminal investigation into the
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Texas Family and Protective Services." (Id. ~ 11.) Buholtz seeks $4,000,000.00 in
damages, as well as the "remov[al] [of the] minor children from Colombian home of
abusive mother and place[ ment] into a safe environment within the United States where
they can receive treatment for the abuse they have endured." (Id. at 9.)

III.

NO FEDERAL CLAIM

To state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a
person acting under color of state law deprived him or her of a constitutional right or of a
right conferred by a law of the United States. See Dowe v. Total Action Against Poverty

in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998). Here, Buboltz fails to identify any
constitutional right violated by Defendants' conduct. See Shanklin v. Seals, No.
3:07CV319, 2010 WL 1225741, at *14 (E.D. Va. Mar. 26, 2010) (dismissing a§ 1983
claim when plaintiff "faile[d] to allege what constitutional right [was] implicate[d], much
less any violation of a constitutional right"). Buholtz also fails to identify any claim that
arises under the Constitution, laws, or treaties of the United States. See 28 U.S.C. §
1331. 3 Accordingly, Buholtz has failed to allege any cognizable§ 1983 claims against
Defendants. Therefore, Buholtz's § 1983 claims will be dismissed as frivolous.

IV.

DIVERSITY CLAIMS

As noted above, Buboltz faults Defendants for not investigating the allegations of
child abuse, not responding to his attorney's letters and telephone calls, and not
responding to Buboltz' s letters and requests to initiate a criminal investigation of CPS.
(Compl.

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6-11.) To the extent Buboltz alleges state law claims, the Court may only

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"The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.

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exercise diversity jurisdiction for those claims. Diversity jurisdiction is proper only when
the amount in controversy exceeds $75,000.00 and the diversity of state citizenship
among the parties is complete. 28 U.S.C. § 1332;4 see Wis. Dep 't of Corr. v. Schacht,
524 U.S. 381, 388 (1998); Athena Auto., Inc. v. DiGregorio, 166 F.3d 288, 290 (4th Cir.
1999) (citations omitted). Defendants are residents of Texas. Buholtz is currently
incarcerated at FCI Petersburg, in Petersburg, Virginia. (Compl. 9.) However, prior to
his incarceration, Buholtz was a resident of Texas. (See generally United States v.
Buholtz, 4:1 ICRl35 (E.D. Tex.).)5
A rebuttable presumption exists that a prisoner does not acquire a new domicile in
the state of his incarceration, but retains the domicile he had prior to his incarceration.
Jones v. Radican, 552 F.2d 249, 250-51 (8th Cir. 1977). To rebut the presumption that
he or she retains the pre-incarceration domicile, a prisoner must "show truly exceptional

4

The statute provides in relevant part:
(a) The district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between-( I) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state,
except that the district courts shall not have original jurisdiction under
this subsection of an action between citizens of a State and citizens or
subjects of a foreign state who are lawfully admitted for permanent
residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff
and citizens of a State or of different States.

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u.s.c. § 1332.

5

Buholtz was convicted of transportation of a minor in interstate commerce, in violation of 18
U.S.C. § 2423(a).

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circumstances" and "introduce more than 'unsubstantiated declarations.'" Id at 251
(quoting Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973)). At the pleading stage,
the prisoner "must allege facts sufficient to raise a substantial question about the
prisoner's intention to acquire a new domicile." Id.; accord Roberts v. Morchower,
No. 91-7688, 1992 WL 42885, at *1 (4th Cir. Mar. 4, 1992) (unpublished).
Buboltz has provided no facts that would allow the Court to find that his domicile
has changed to Virginia. Therefore, Buboltz has not pied facts sufficient to plausibly
suggest that he has changed his domicile to Virginia from Texas. See Goad v. Gray,
No. 3:10CV326, 2010 WL 4735816, at *4 (E.D. Va. Nov. 15, 2010) (citing Jones, 552
F.2d at 251); see also Goadv. Goad, No. 5:10CV00139, 2011WL39093, at *2 (W.D.
Va. Jan. 5, 2011) (citing same). To the extent Buholtz brings any state law claims, the
Court will dismiss without prejudice these claims for lack of subject matter jurisdiction.
Accordingly, the action will be dismissed for failure to state a claim and as legally
frivolous. The Clerk will be directed to note the disposition of this action for the
purposes of28 U.S.C. § 1915(g). Buholtz's Motion to Expedite (ECF No. 11) will be
denied as moot.
Buholtz also filed a Motion to Compel the preparation of certain transcripts from a
state court in Texas. Accompanying that Motion to Compel, Buholtz has attached an
elicit photograph. Buholtz's Motion to Compel (ECF No. 12) will be denied; however,
the Court will direct the Clerk to forward a copy of the Motion to Compel and the
attached photograph to the United States Attorney for the Eastern District of Virginia for

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any action he deems appropriate. The Clerk shall file the Motion to Compel under seal.
An appropriate Order will accompany this Memorandum Opinion.

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Isl

HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE

Date: ~a.n. \ S 201'
Richmond, Virginia

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