Thorpe, Dekator v. Dane County, WI et al

Filing 4

ORDER dismissing plaintiff's complaint for lack of subject matter jurisdiction. Signed by District Judge William M. Conley on 8/2/2013. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEKATOR M. THORPE,
Plaintiff,

OPINION AND ORDER
13 -cv-3 90-wmc

v.

DANE COUNTY, et al.,
Defendants.
Plaintiff Dekator M. Thorpe has filed a proposed civil action against Dane
County, the State of Wisconsin, and two individual defendants in connection with a
state court proceeding. Because Thorpe seeks leave to proceed without prepayment of
fees and costs, the court must review the proposed complaint to determine if his
allegations are (l) frivolous or malicious, (2) fail to state a claim on which relief may be
granted, or (3) seek money damages from a defendant who is immune from such relief.

See 28 U.S.C. § 1915(e)(2). In addressing any prose litigant's complaint, the court must
construe the allegations generously. See Haines v. Kerner, 404 U.S. 519, 521 ( 1972). Even
under this lenient standard, Thorpe's motion for leave to proceed must be denied because
the court lacks jurisdiction to consider his claims for relief.
ALLEGATIONS OF FACT
For purposes of this order, the court accepts plaintiff's well-pleaded allegations as
true and assumes the following probative facts. 1

The court has supplemented the facts with dates and procedural information about
plaintiff's underlying civil action from the electronic docket available at Wisconsin Circuit
Court Access, http://wcca.wicourts.gov (last visited July 29, 2013). The court draws all other
facts from the complaint.

Plaintiff Dekator M. Thorpe is a resident of Rio, Wisconsin.

The defendants

include Dane County, the State of Wisconsin, Wisconsin State Court Commissioner
Marjorie Schuett, and Thorpe's former paramour, Nichole Retallick, who reportedly
resides in Middleton.
The complaint sterns from a paternity suit in Dane County Circuit Court, which
established that Thorpe was the father of Retallick's child. Following the judgment of
paternity in 2009, the circuit court entered an order requiring Thorpe to pay child
support. To date, however, the circuit court has refused to grant Thorpe any visitation
privileges.
Thorpe asserts that the child support order enforced by the circuit court has "put
[him] under the federal poverty guidelines."

Alleging further that he has seen his

daughter only "3 or 4 times" since the judgment of paternity, Thorpe contends that the
defendants have unjustly "concealed" his child by denying him visitation rights. Thorpe
maintains that the circuit court's persistent refusal to allow him visitation rights
constitutes "cruel and unusual punishment by torturing [him] and [his] child," causing
him extreme mental stress and emotional anguish. Thorpe asks this court to grant him
relief from the circuit court's child support order and he requests "any other remedy that
the court sees fit."

OPINION
Unlike state courts, which have subject matter jurisdiction over a broad
assortment of causes and claims, the jurisdiction of federal courts is limited only to "cases
2

or controversies" that are "authorized by Article III of the [United States] Constitution
and the statutes enacted by Congress pursuant thereto." Buchel-Ruegsegger v. Buche/, 576
F.3d 451, 453 (7th Cir. 2009) (quoting Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986)). In other words, "[a] federal court is the wrong forum when there is no
case or controversy, or when Congress has not authorized it to resolve a particular kind of
dispute." Morrison v. YTB Intern., Inc., 649 F.3d 533, 536 (7th Cir. 2011) (explaining
that "subject-matter jurisdiction is a synonym for adjudicatory competence").
Because of the limits on federal judicial power, district courts have a duty to
evaluate subject-matter jurisdiction - - even if the parties do not raise this issue - - before
reaching the merits of a case. See Buchel-Ruegsegger, 576 F.3d at 453. If a district court
determines at any time that it lacks subject matter jurisdiction, it "must dismiss the
action." Fed. R. Civ. P. 12(h)(3).
Generally, a federal court such as this one has the authority to hear two types of
cases: ( 1) cases in which a plaintiff alleges a cognizable violation of his rights under the
Constitution or federal law; and (2) cases in which a citizen of one state alleges a
violation of his or her rights established under state law by a citizen of one state alleges a
violation of his or her rights established under state law by a citizen of another state
where the amount in controversy exceeds $75,000. See U.S.C. §§ 1331-32. Assuming
that all of Thorpe's allegations are true, his case falls into neither category. The face of
the complaint establishes that there is no diversity of citizenship and, apart from an
abbreviated reference to the Eighth Amendment's prohibition against cruel and unusual
punishment, which plainly does not apply outside of a criminal proceeding, see, e.g.,
3

Ingraham v. Wright, 430 U.S. 651, 667-68 (1977), Thorpe articulates no legitimate
federal question. Therefore, this court lacks jurisdiction to inquire further.
Even if there were an arguable basis for the exercise of federal jurisdiction, this
court would be compelled to decline. First, Thorpe plainly challenges orders entered by
the Dane County Circuit Court concerning child support obligations and visitation
rights. These issues fall within the area of family or domestic relations, which is governed
by state law. See Rose v. Rose, 481 U.S. 619, 625 ( 1987) (quoting In re Burrus, 136 U.S.
586, 593-94 ( 1890)) ("[T]he whole subject of the domestic relations of husband and
wife, parent and child, belongs to the laws of the States and not to the laws of the United
States."); Moore v. Sims, 442 U.S. 415, 435 (1979) ("Family relations are a traditional
area of state concern."); De Sylva v. Ballentine, 351 U.S. 570, 580 ( 1956) ("[T]here is no
federal law of domestic relations, which is primarily a matter of state concern."). Indeed,
unless a substantial federal question "transcends or exists apart from" a dispute involving
family law or relations, federal courts typically must decline jurisdiction even when
divorce, alimony, or child custody is not strictly at issue. See Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 13 (2004).
Second, lower federal courts are precluded by the Rooker-Feldman doctrine from
reviewing state-court judgments, such as the award of child support and denial of
visitation that form the basis for Thorpe's complaint in this case. See, e.g., Golden v. Helen

Sigman &Assoc., Ltd., 611 F.3d 356, 361-62 (7th Cir. 2010) (holding that Rooker-Feldman
barred review of claims related to a state court divorce and child custody proceedings);

T. W by Enk v. Brophy, 124 F.3d 893, 898 (7th Cir. 1997) (applying Rocker-Feldman to a
4

. '

Wisconsin child-custody decision); Wright v. Tackett, 39 F.3d 155, 157-58 (7th Cir.
1993) (per curiam) (holding that Rooker-Feldman bars review of constitutional claims that
are inextricably intertwined with state court divorce proceedings); Liedel v. juvenile Court of

Madison Counry, 891 F.2d 1542 (lith Cir. 1990) (finding that Rooker-Feldman and
Younger abstention doctrine bar federal court jurisdiction over a case involving ongoing
child custody dispute, notwithstanding claims of violation of constitutional rights to due
process) (citing Youngerv. Harris, 401 U.S. 37 (1971)).
For all of the foregoing reasons, Thorpe's complaint must be dismissed for lack of
subject matter jurisdiction.

ORDER
IT IS ORDERED that plaintiff Dekator M. Thorpe's complaint is DISMISSED
for lack of subject matter jurisdiction.
Entered this 2nd day of August, 2013.
BY THE COURT:

Is/
WILLIAM M. CONLEY
District Judge

5