United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
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.
the seven defendants have filed motions to dismiss
plaintiff's Second Amended Complaint (Doc.
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.
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.
Pro Se Litigant Standard
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
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)).
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.
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.
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
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
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.
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
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
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.
Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter
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).
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).
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).
Rule 12(b)(2) Motion to Dismiss for Lack of Personal
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).
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).
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).
Rule 12(b)(6) Motion to Dismiss for Failure to State a
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)).
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
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 ...