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Shophar v. State

United States District Court, D. Kansas

March 23, 2017

JOREL SHOPHAR, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Pro se plaintiff Jorel D. Shopar brings this action against the mother of his two children, various state and local agencies, and individuals who, he contends, have contrived a false campaign against him and conspired to terminate his parental rights. Generally, plaintiff alleges that defendants discriminated against him and violated his constitutional and civil rights when his children were placed in the temporary custody of the State of Kansas in September 2015, and later placed in the custody of their mother. Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1985 and various federal and Kansas criminal statutes.

         Five of the seven defendants have filed motions to dismiss plaintiff's Second Amended Complaint (Doc. 90).[1] These motions include: defendant State of Kansas' Motion to Dismiss (Doc. 91), defendant MOMS Club's Motion to Dismiss (Doc. 93), defendant Audra Weaver's Motion to Dismiss (Doc. 94), defendant Kansas Department for Children and Families' Motion to Dismiss (Doc. 95); and defendant Krissy Gorski's Motion to Dismiss (Doc. 98).[2] After carefully considering the parties' motions and plaintiff's responses to them, the court concludes that plaintiff's claims against these five defendants fail as a matter of law because the court either lacks subject matter jurisdiction or the claims fail to state a claim for relief. The court thus grants the motions to dismiss filed by defendants State of Kansas, MOMS Club, Audra Weaver, Kansas Department for Children and Families, and Krissy Gorski. The court explains why below.

         I. Pro Se Litigant Standard

         Because plaintiff proceeds pro se, the court must construe his filings liberally and hold them to a less stringent standard than formal pleadings drafted by attorneys. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This liberal standard requires the court to construe a pro se plaintiff's pleadings as stating a valid claim if a reasonable reading of them allows the court to do so “despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110.

         But, at the same time, the court will not serve as a pro se litigant's advocate. James, 724 F.3d at 1315. The court “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Also, the requirement that the court must read a pro se plaintiff's pleadings broadly “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall, 935 F.2d at 1110. And, a plaintiff's pro se status does not excuse him from complying with federal and local rules. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (“This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (citations and internal quotation marks omitted)).

         II. Factual Background

         The following facts are taken from plaintiff's Second Amended Complaint (Doc. 90) and viewed in the light most favorable to him. See, e.g., S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (explaining that on a Rule 12(b)(6) motion, the court “accept[s] as true all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the [plaintiff]” (citation and internal quotation marks omitted)). The court also construes plaintiff's allegations liberally because he proceeds pro se.

         Plaintiff and defendant Krissy Gorski had two children together. On August 12, 2015, Ms. Gorski took the children away from plaintiff. Ms. Gorski also reported that plaintiff was physically abusing her and the children to various agencies, including the Olathe Police Department, the Johnson County District Court, and the Department for Children and Families (“DCF”). Plaintiff asserts that Ms. Gorski's abuse claims are false.

         Plaintiff accuses defendant Teena Wilke of hiding the children in her home while she and Ms. Gorski contrived the false abuse allegations. Plaintiff also accuses Audra Weaver, President of MOMs Club of Olathe East, of assisting Ms. Gorski by hiding his children from him. He claims Ms. Weaver knew where his children were located but refused to share that with him. He also contends that Ms. Weaver endangered his children's safety by failing to disclose their location to him.

         Also, in August 2015, plaintiff complained to DCF that Ms. Gorski was abusing drugs and physically abusing the two children. Plaintiff claims that DCF ignored his complaints and never investigated them. Plaintiff also asked DCF to require Ms. Gorski to submit to a urinalysis test so she would not continue to abuse drugs. But, DCF refused plaintiff's request.

         In September 2015, the Johnson County District Court placed the two children into DCF custody. Plaintiff alleges that the judge's decision to remove the children from their parents' custody was based on false evidence submitted by Ms. Gorski. Plaintiff claims that the state court placed the children in the temporary custody of Teena Wilkie. Plaintiff claims that Ms. Wikie is an unlicensed foster parent who helped Ms. Gorski abuse drugs. Plaintiff also contends that Ms. Wilke refused to allow plaintiff to see or talk to his children but permitted Ms. Gorski to visit the children at her home each day.

         Plaintiff alleges that various agencies and individuals-including DCF and Assistant District Attorney Erica Miller-conspired to mischaracterize plaintiff as an abusive and aggressive man as part of an effort to deprive him of his parental rights. To that end, plaintiff claims DCF manipulated evidence and covered up information about Ms. Gorski's criminal and drug abuse history. Plaintiff also claims that Assistant District Attorney Erica Miller filed motions requesting the state court to forbid contact between plaintiff and his children based on false information, submitted other false evidence about plaintiff in the state court proceedings, ignored plaintiff's complaints about Ms. Gorski, withheld evidence of Ms. Gorski's criminal record and drug abuse, and authorized the children's reintegration into Ms. Gorski's home. Plaintiff contends that Ms. Miller took these actions to retaliate for plaintiff's filing of a federal lawsuit.[3]

         On January 16, 2016, DCF reintegrated the children into Ms. Gorski's home. Plaintiff claims this happened without a court ruling or other adjudication. Plaintiff also contends that the children were admitted to the emergency room on several occasions after they were placed in Ms. Gorski's care. And, plaintiff asserts that DCF ignored his requests to see his children throughout the time when these events occurred and also ignored his requests for his children's medical information.

         Plaintiff alleges that defendants' actions have violated his constitutional rights. He also claims that defendants' actions have injured him by: depriving him of his children; causing him to suffer humiliation, severe emotional distress, and heartache; tarnishing his reputation as a father and church leader; and losing business. Plaintiff also claims that defendants' actions have injured his children because separating them from their father has caused them to experience abandonment, trauma, loss of appetite, loss of weight, loss of sleep, and emotional distress. Plaintiff seeks monetary damages of $350, 000 from each defendant. Doc. 90 at 22.

         III. Legal Standard

         A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

         “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction of all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are courts of limited jurisdiction, there is a presumption against jurisdiction, and the party invoking federal jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). “First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)) (internal citations omitted).

         “Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. at 1003 (citations omitted); Los Alamos Study Grp. v. U.S. Dep't of Energy, 692 F.3d 1057, 1063-64 (10th Cir. 2012); see also Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324-25 (10th Cir. 2002) (holding that a court must convert a motion to dismiss to a motion for summary judgment under Fed.R.Civ.P. 56 only when the jurisdictional question is intertwined with the merits of case).

         B. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction

         A plaintiff bears the burden to establish personal jurisdiction over each defendant named in the action. Rockwood Select Asset Fund XI (6)-1, LLC v. Devine, Millimet & Branch, 750 F.3d 1178, 1179-80 (10th Cir. 2014). But in the preliminary stages of litigation, a plaintiff's burden to prove personal jurisdiction is a light one. AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008).

         Where, as here, the court is asked to decide a pretrial motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, plaintiff must make no more than a prima facie showing of jurisdiction to defeat the motion. Id. at 1056-57. “The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant.” OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091 (10th Cir. 1998).

         To defeat a plaintiff's prima facie showing of personal jurisdiction, defendants “must present a compelling case demonstrating ‘that the presence of some other considerations would render jurisdiction unreasonable.'” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). Where defendants fail to controvert a plaintiff's allegations with affidavits or other evidence, the court must accept the well-pleaded allegations in the complaint as true, and resolve any factual disputes in the plaintiff's favor. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (1oth Cir. 1995).

         C. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

         Fed. R. Civ. P. 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” which, as the Supreme Court explained, “will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “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.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

         Although the court must assume that the factual allegations in the complaint are true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 1263 (quoting Iqbal, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a ...


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