Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shophar v. City of Olathe

United States District Court, D. Kansas

June 16, 2017

JOREL SHOPHAR, Plaintiff,
v.
CITY OF OLATHE, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This lawsuit arises from a child custody dispute between plaintiff Jorel Shophar and a non-party, Krissy Gorski, the mother of two of plaintiff's children. Plaintiff alleges that Ms. Gorski-hoping to terminate plaintiff's parental rights and extort money from others-has “contrived a false campaign of abuse against” him. Doc. 70 at 1. Plaintiff brings this lawsuit pro se against five defendants whom he accuses of helping Ms. Gorski contrive her false abuse claims and her attempts to terminate plaintiff's parental rights. The five named defendants are: (1) the City of Olathe (“Olathe”); (2) Safehome, Inc.; (3) The Layne Project, Inc.; (4) KVC Kansas; and (5) Ashlyn Yarnell.

         All five defendants previously moved to dismiss plaintiff's Complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failing to state a claim for relief. At the same time, plaintiff asked the court for leave to file an Amended Complaint. Several defendants opposed plaintiff's Motion for Leave, arguing that plaintiff's proposed amendments were futile. In a September 13, 2016 Memorandum and Order, the court agreed with defendants, finding plaintiff's proposed Amended Complaint was futile because it still failed to state viable claims against some of the defendants. Doc. 65 at 13. Nevertheless, the court granted plaintiff leave to file an Amended Complaint. Id. But, the court cautioned plaintiff: “[T]he court allows plaintiff one final opportunity to file an Amended Complaint-one that addresses all of the concerns raised by the court in this Order. Specifically, plaintiff must plead facts-and not just conclusions-to state plausible claims and cure the deficiencies identified [in the court's Order].” Id.

         On October 12, 2016, plaintiff filed his Amended Complaint. Doc. 70. Like plaintiff's original Complaint, the Amended Complaint is difficult to understand. But, plaintiff appears to allege, generally, that defendants discriminated against him and violated his constitutional rights. Plaintiff asserts his amended claims under 42 U.S.C. §§ 1983 & 1985, 18 U.S.C. § 1028, and Kan. Stat. Ann. §§ 38-141 & 38-223(e).

         All five defendants have filed Motions to Dismiss the Amended Complaint invoking Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Docs. 77, 79, 84, 86, 88. Plaintiff has responded to all five motions. Docs. 90, 91, 92, 97, 101. And, defendants have submitted Replies. Docs. 93, 94, 95, 99, 102. After considering the parties' arguments, the court grants defendants' motions to dismiss because either the court lacks subject matter jurisdiction over plaintiff's claims or plaintiff's claims fail to state plausible claims for relief. The court explains the reasons for its rulings below.

         I. Factual Background

         The following facts are taken from plaintiff's Amended Complaint (Doc. 70), accepted as true, and viewed in the light most favorable to plaintiff.[1] Plaintiff and a woman named Krissy Gorski had two children together. Plaintiff accuses Ms. Gorski of abusing pain killer medication starting in 2015. Plaintiff alleges that Ms. Gorski's drug abuse has caused her to behave erratically and harm their children. On August 8, 2015, plaintiff says he “made plans to file for paternity” of the two children. Doc. 70 at 1. But, on August 12, 2015, Ms. Gorski took the children away from plaintiff. Ms. Gorski also reported that plaintiff was abusing her and the children physically to various agencies, including the Olathe Police Department, the Johnson County District Court, the Department for Children and Families (“DCF”), and Safehome. Plaintiff asserts that Ms. Gorski's abuse claims are false.

         On August 12, 2015, plaintiff contacted the Olathe Police Department to report that his children were missing and that Ms. Gorski was abusing pain killers. Plaintiff spoke to an officer who reported that Ms. Gorski already had contacted the Olathe Police Department to make an abuse complaint against plaintiff. The officer told plaintiff that he could do nothing for plaintiff. Later that day, a friend of Ms. Gorski's came to plaintiff's home seeking Ms. Gorski's pain killer medication. When plaintiff's wife refused to give the friend the pain killers, the friend called the Olathe Police Department. An officer arrived at the home and demanded that Ms. Shophar provide the medication, even though both plaintiff and Ms. Shophar told the officer that Ms. Gorski was abusing the medication as well as her children.

         Plaintiff alleges that the Olathe Police Department refused to tell him where his children were located, prohibited him from filing a police report against Ms. Gorski, ignored his complaints about Ms. Gorski's drug abuse and child endangerment, and improperly investigated Ms. Gorski's false abuse allegations against him. Plaintiff alleges that the Olathe Police Department discriminated against him because of his gender thus allowing the children's mother to report her abuse allegations. The Olathe Police Department nonetheless investigated Ms. Gorski's allegations and prohibited plaintiff (as the father) from asserting his abuse allegations against Ms. Gorski.

         Although the Amended Complaint does not explain this clearly, it appears that a Child in Need of Care (“CINC”) case was initiated in the District Court of Johnson County, Kansas for plaintiff's two children. Also, Ms. Gorski filed her own lawsuit in Johnson County, Kansas, seeking an order of Protection from Abuse against plaintiff. Plaintiff accuses all five defendants of helping Ms. Gorski to contrive her false abuse allegations so that plaintiff would lose his parental rights to the two children during the legal proceedings in Johnson County, Kansas.

         Plaintiff alleges that Safehome-a shelter for victims of domestic violence-placed his children at its shelter without his consent. Plaintiff contends that Safehome documented the false allegations of abuse against him without evidence and provided therapy to his children without his consent. Plaintiff also alleges that Safehome ignored his complaints that Ms. Gorski was abusing drugs, abusing the children, and engaging in prostitution. Plaintiff contends that Safehome covered up Ms. Gorski's illegal activities, instructed her to file false abuse allegations against plaintiff, and conspired with DCF and KVC Kansas to move Ms. Gorski to a new residence.

         Plaintiff alleges that Layne Project-an organization who provides family services such as supervised parental visitation-discriminated against him because it forced him to pay for services but did not charge Ms. Gorski for services. Plaintiff also accuses Layne Project of documenting the false allegations of abuse against him while ignoring his complaints that Ms. Gorski was abusing drugs and the children and engaging in other criminal activity. Plaintiff contends that Layne Project prohibited him from disciplining his children and prevented one of plaintiff's other children from visiting the two children that were involved in the CINC case.

         Plaintiff alleges that KVC Kansas placed the children in the home of Ms. Gorski's friend-someone who is an unlicensed foster parent and who helped Ms. Gorski abuse drugs by supplying her pain killers. Plaintiff contends that KVC Kansas never spoke with him about the placement and never provided him the chance to object to it. Plaintiff also alleges that KVC Kansas documented Ms. Gorski's false abuse allegations while ignoring evidence that Ms. Gorski had contrived them. He also contends that KVC Kansas ignored his complaints that Ms. Gorski was abusing the children, abusing drugs, and involved with prostitution. Plaintiff accuses KVC Kansas of preventing him from visiting his children, ignoring his phone calls, withholding the case plan from him, lying to the Johnson County District Court about plaintiff's neglect of his children, and conspiring to terminate his parental rights.

         Plaintiff's allegations against defendant Ashlyn Yarnell-the guardian ad litem appointed to represent the two children-claim that she failed to conduct a thorough investigation of Ms. Gorski's false abuse claims. Plaintiff contends that Ms. Yarnell spoke only to Ms. Gorski about the abuse allegations and ignored evidence showing that Ms. Gorski had contrived them. Plaintiff also alleges that Ms. Yarnell ignored his complaints about Ms. Gorski's unlawful activity, wrongfully charged plaintiff with neglect, prevented him from seeing his children, and expressed personal disapproval of plaintiff's religious beliefs. Plaintiff accuses Ms. Yarnell of providing false information to the Johnson County District Court about Ms. Gorski's visitation with the children and about his fitness as a parent. Also, he contends that Ms. Yarnell withheld information from the District Court about Ms. Gorski's false abuse allegations and prostitution.

         Plaintiff alleges that defendants' actions wrongfully have deprived him of his children and have caused him humiliation and severe emotional distress. Plaintiff also contends that defendants' actions have allowed Ms. Gorski to expose his children to criminal activity and to subject them to physical abuse and emotional distress while in her care. Plaintiff seeks just one form of relief against defendants: money damages. He asks the court to award special, general, and punitive damages of $350, 000 against each defendant. Doc. 70 at 24.

         II. 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 case's merits).

         B. 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (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)).

         And, although the Court must assume that the factual allegations in a complaint are true, it is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Carter, 667 F.Supp.2d 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 claim for relief. Bixler v. Foster, 596 F.3d 751, 756 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).

         III. Analysis

         As already recited, all five defendants have filed motions to dismiss. Plaintiff asserts claims against defendants under federal and state law. The court considers the federal claims that plaintiff asserts against each defendant in Part A below. Because the court concludes that none state a plausible claim for relief against any defendant, the court dismisses plaintiff's federal claims against all defendants. And, because the court dismisses all federal claims, the court considers in Part B, below, whether it should exercise supplemental jurisdiction over plaintiff's state law claims. The court declines to do so.

         A. Federal Law Claims

         1. Defendant Layne Project

         Plaintiff asserts that Layne Project violated his constitutional rights under the First Amendment and the Fourteenth Amendment's Equal Protection Clause. Doc. 70 at 12. Layne Project moves to dismiss plaintiff's claims against it under Fed.R.Civ.P. 12(b)(6) for failing to state claims for relief.[2]

         a. Fourteenth Amendment Equal Protection Claim

         The Fourteenth Amendment's Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1 (emphasis added). “That language establishes an ‘essential dichotomy' between governmental action, which is subject to scrutiny under the Fourteenth Amendment, and private conduct, which ‘however discriminatory or wrongful, ' is not subject to the Fourteenth Amendment's prohibitions.” Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016) (quoting Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1446 (10th Cir. 1995) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974))). See also Lugar v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.