United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
March 31, 2016, pro se plaintiffs Raymond and Amelia Schwab
filed this lawsuit against the State of Kansas
(“Kansas”) and various state officials as well as
private entities and private individuals. Doc. 1. Plaintiffs
filed an Amended Complaint on April 25, 2016. Doc. 9. Generally,
plaintiffs' Amended Complaint asserted that Kansas
removed five of their six children from their custody, citing
Mr. Schwab's use of medical marijuana as the basis for
the removal. Plaintiffs contended that defendants had
infringed upon their constitutional rights by removing their
children from their home and initiating child in need of care
(“CINC”) proceedings in Riley County, Kansas.
several defendants moved to dismiss plaintiffs' Amended
Complaint, plaintiffs filed a Motion for Leave to Amend their
Complaint, attaching a proposed Second Amended Complaint to
their motion. Docs. 58, 58-1. On July 28, 2016, the court
granted in part and denied in part plaintiffs' Motion for
Leave to File an Amended Complaint. Doc. 79. The court
concluded that plaintiffs' proposed amendments were
futile because the proposed Second Amended Complaint still is
subject to dismissal. Id. at 17. Nevertheless, the
court granted plaintiffs a final opportunity to file an
amended Complaint. Id. at 18. But the court
cautioned plaintiffs that any such amended pleading must
correct the deficiencies identified in the court's order
to remain viable. Id.
August 26, 2016, plaintiffs filed a 77-page “Revised
Second Amended Complaint”
(“Complaint”). Doc. 85. Plaintiffs also filed a Motion
for Preliminary Injunction and Temporary Restraining Order.
Doc. 86. The court conducted a hearing on the Motion for
Preliminary Injunction and Temporary Restraining Order on
September 8, 2016. At the conclusion of that hearing, the
court denied plaintiffs' motion. Among other concerns,
the court determined that plaintiffs had not shown a
likelihood of success on the merits because the record raised
serious questions whether the court must abstain from
plaintiffs' claims for injunctive relief under the
Younger abstention doctrine.
defendants now have filed motions to dismiss plaintiffs'
Complaint. After reviewing plaintiffs' Complaint and
considering the parties' arguments and
submissions-including the materials from the underlying CINC
case-the court again concludes that the Younger
doctrine requires the court to abstain from deciding
plaintiffs' claims for equitable relief. The court thus
dismisses those claims without prejudice. The court also
concludes that, to the extent plaintiffs' claims
challenge any final orders in the CINC proceeding, the
Rooker-Feldman doctrine bars those claims. The court
thus dismisses those claims without prejudice. And, to the
extent the Rooker-Feldman doctrine does not bar any
of plaintiffs' claims for money damages, the court
dismisses their §§ 1983 and 1985 claims because
they fail to state plausible claims for relief. Finally, the
court declines to exercise supplemental jurisdiction over
plaintiffs' state law claims. The court explains the
reasons for its conclusions in the analysis that follows.
Plaintiffs' Motion to Dismiss Parties Randi Debenham,
Miranda Johnson, Blake Robinson, and Andrew Vinduska
turning to the pending motions to dismiss, the court
addresses plaintiffs' Motion to Dismiss Parties Randi
Debenham, Miranda Johnson, Blake Robinson, and Andrew
Vinduska. Doc. 194. Mr. Debenham, Mr. Robinson, and Mr.
Vinduska are attorneys who the court appointed to represent
plaintiff Raymond Schwab in the CINC case. Ms. Johnson also
is an attorney who the court appointed to represent plaintiff
Amelia Schwab in the CINC case. All four defendants filed
motions to dismiss plaintiffs' claims against them before
plaintiffs filed their Motion to Dismiss them as parties.
See Docs. 118 (Ms. Johnson), 173 (Mr. Vinduska), 183
(Mr. Debenham & Mr. Robinson).
motion does not explain whether it seeks a dismissal with
prejudice or without prejudice. Plaintiffs' motion
recites that plaintiffs “believe that the curr[e]nt
relief being requested [from] the court cannot be granted
toward these defendant[ ]s, and the plaintiff[ ]s are
reserving their right to initiate malpractice litigation at
the removal of these Defendant[ ]s from this current
action.” Doc. 194 at 1.
Debenham and Mr. Robinson have construed plaintiffs'
motion as one seeking a dismissal without prejudice under
Fed.R.Civ.P. 41(a)(2). Doc. 197 at 1. Mr. Debenham and Mr.
Robinson assert that the court lacks subject matter
jurisdiction over plaintiffs' claims against them, and
thus they contend that they have no reason to object to
plaintiffs' motion for voluntary dismissal without
prejudice. Mr. Debenham and Mr. Robinson also assert that
their Motion to Dismiss (Doc. 183) is moot now that
plaintiffs seek to dismiss all their claims against the two
defendants. Because Mr. Debenham and Mr. Robinson do not
object to a dismissal without prejudice, the court grants
plaintiffs' motion to dismiss these defendants without
prejudice. It also denies Mr. Debenham and Mr. Robinson's
Motion to Dismiss (Doc. 183) as moot.
Johnson and Mr. Vinduska oppose plaintiffs' motion to the
extent it seeks a dismissal without prejudice. Docs. 198,
201. Ms. Johnson and Mr. Vinduska assert that plaintiffs'
claims against them fail to state viable claims for relief.
Thus, the court should dismiss the claims against them with
prejudice. The court construes plaintiffs' motion
liberally as one seeking dismissal without prejudice. And,
the court denies plaintiffs' motion because, as explained
below, plaintiffs' Complaint fails to state viable claims
for money damages under federal law against Ms. Johnson and
Mr. Vinduska. These two defendants thus are entitled to
dismissal with prejudice of plaintiffs' federal claims.
The court considers their motions to dismiss below.
then, the court thus grants in part and denies in part
plaintiffs' Motion to Dismiss Parties Randi Debenham,
Miranda Johnson, Blake Robinson, and Andrew Vinduska. Doc.
194. The court grants plaintiffs' motion to dismiss Mr.
Debenham and Mr. Robinson from the case without prejudice.
The court denies the motion to the extent that it seeks
dismissal of all claims against Ms. Johnson and Ms. Vinduska
Defendants' Motions to Dismiss
court now considers the remaining 12 motions to
the following facts are taken from plaintiffs' Complaint,
are accepted as true, and viewed in the light most favorable
to plaintiffs because they are the non-moving parties.
See Garling v. EPA, 849 F.3d 1289, 1292 (10th Cir.
2017) (explaining that, on a Fed.R.Civ.P. 12(b)(1) or
12(b)(6) motion to dismiss, the court must “accept as
true all well-pleaded factual allegations in the complaint
and view them in the light most favorable to the
[plaintiff]” (citations and internal quotation marks
omitted)). The court also construes plaintiffs'
allegations liberally because they proceed pro se. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(holding that courts must construe pro se litigant's
pleadings liberally and hold them to a less stringent
standard than formal pleadings drafted by lawyers).
facts not derived from plaintiffs' Complaint are taken
from state court records in the CINC proceeding pending in
Riley County, Kansas state court. See Doc. 158. The
court can consider these facts on a motion to dismiss because
plaintiffs refer to documents and proceedings from the CINC
case in their Complaint,  the facts are central to
plaintiffs' claims, and the parties never dispute the
documents' authenticity. See Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009) (quoting
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215
(10th Cir. 2007)).
Mrs. Schwab are the natural parents of four children. Mrs.
Schwab is the mother of a fifth child, and Mr. Schwab is his
stepfather. In April 2015, Mr. and Mrs. Schwab allowed their
five children to stay with their maternal grandmother in
Dickinson County, Kansas. Unbeknownst to the Schwabs, the
maternal grandmother and a maternal uncle contacted the Riley
County Police Department (“RCPD”) to express
their concerns about how Mr. and Mrs. Schwab were caring for
their children. The RCPD removed the children from the
Schwab's custody, and the State of Kansas initiated
proceedings in the District Court of Riley County, Kansas
(“District Court”) to determine if the Schwab
children were CINC under Kansas law. See Kan. Stat.
Ann. § 38-2202(d) (providing the statutory definition
for a “child in need of care”).
April 29, 2015, the Riley County District Court held a
temporary custody hearing for the five children. At its
conclusion, the District Court placed the five children in
the temporary custody of the Kansas Department of Children
and Families (“DCF”). The District Court
appointed defendant Lora Ingels as a guardian ad litem to
represent the five children. The District Court also
appointed separate counsel to represent Mr. and Mrs. Schwab
respectively in the CINC case. Through counsel, Mr. and Mrs.
Schwab filed separate motions seeking a rehearing of the
temporary custody ruling.
13, 2015, the District Court held a rehearing. Both Mr. and
Mrs. Schwab attended the hearing, represented by their
separate counsel. Before the hearing started, the District
Court ordered Mr. and Mrs. Schwab to submit to urinalysis and
breathalyzer tests. Both complied with that order. Mr. Schwab
tested positive for methamphetamine, amphetamine,
hydrocodone, and tramadol. Mrs. Schwab tested negative for
any illegal substances. During the hearing, both Mr. and Mrs.
Schwab withdrew their respective motions seeking rehearing of
the temporary custody ruling. At the end of the hearing, the
District Court ordered that the five children remain in
temporary DCF custody.
4, 2015, Mr. Schwab filed a pro se motion to suppress the
results of the May 13, 2015 urinalysis test. His motion
asserted that the test was an unlawful search and seizure
that violated his rights under the Fourth Amendment to the
United States Constitution. His motion also claimed that the
test results were unreliable.
holding a hearing on a June 11, 2015, the District Court
denied Mr. Schwab's pro se motion. The District Court
also ordered Mr. Schwab to submit to another urinalysis and
breathalyzer test. He refused. The District Court considered
Mr. Schwab's refusal to take the tests as a positive
10, 2015, the District Court held an adjudication hearing.
Mr. Schwab attended that hearing, represented by counsel.
Mrs. Schwab did not appear in person, but she was represented
by counsel at the hearing. The parties presented testimony
and evidence during the adjudication hearing, and at its
conclusion, the District Court adjudicated the children as
District Court held a disposition hearing on August 5, 2015.
The District Court ordered that the Schwab children remain in
DCF custody with out-of-home placement. The case plan goal
was reintegration into the parental home.
District Court held review hearings on October 29, 2015 and
January 5, 2016. After both hearings, the District Court
affirmed that reintegration still was the case plan goal,
held that the court's earlier orders still were in
effect, and ordered Mr. and Mrs. Schwab to follow the case
plan. The District Court held a permanency hearing on April
6, 2016. The District Court found that appropriate public and
private agencies had made reasonable efforts to assist and
support the family to accomplish the goal of reintegration
but that the progress of Mr. and Mrs. Schwab to achieve the
permanency plan was not adequate. Nevertheless, the District
Court found that reintegration still was a viable goal, and
it ordered another permanency hearing on October 19, 2016.
Schwab appealed the District Court's CINC adjudication to
the Kansas Court of Appeals. Mrs. Schwab did not appeal this
ruling. On April 8, 2016, the Kansas Court of Appeals issued
four orders affirming the CINC adjudication. See In re
C.S., No. 114, 272, 2016 WL 1391810 (Kan.Ct.App. Apr. 8,
2016); In re A.S., No. 114, 273, 2016 WL 1391817
(Kan.Ct.App. Apr. 8, 2016); In re A.S., No. 114,
274, 2016 WL 1391818 (Kan.Ct.App. Apr. 8, 2016); In re
E.S.. No. 114, 275, 2016 WL 1391819 (Kan.Ct.App. Apr. 8,
2016). The court also rejected Mr. Schwab's arguments
that the District Court had violated his constitutional
rights to due process and against unreasonable searches and
seizures under the Fourth Amendment during the CINC
proceedings. See, e.g., In re
C.S., 2016 WL 1391810, at *8, 11.
Schwab filed Petitions for Review with the Kansas Supreme
Court seeking review of the court of appeals' decisions
affirming the CINC adjudications. The Kansas Supreme Court
denied review on October 21, 2016.
brought this lawsuit against 26 individuals and entities and
10 John Does who are or have been involved in the CINC case.
The Complaint asserts claims under 42 U.S.C. §§
1983 and 1985 for alleged constitutional violations and
conspiracy to commit constitutional violations, as well as
state law tort claims.
seek both monetary and injunctive relief. Plaintiffs also
seek damages in an amount not less than $15 million. The
requested injunctive relief includes: (1) a prohibition
against random drug screenings without warrant or cause; (2)
a requirement that defendants abide by all policies and
procedures contained in the Kansas Title IV-B Child and
Services Plan, and the DCF Policy Handbook; (3) an order that
defendants release certain documents relevant to the CINC
proceedings; (4) a requirement that defendants cease and
desist all harassment, slander, false allegations, and
retaliation against plaintiffs; (5) removal of all defendants
from their involvement in the CINC case and a transfer of the
CINC case from Riley County to Dickinson County; and (6) a
prohibition against harassment of Tyler Scott Allison by
denying access to his siblings and subjecting him to
arbitrary drug testing without warrant or cause. Doc. 85 at
defendants move to dismiss plaintiffs' Complaint for lack
of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
Other defendants move to dismiss under Fed.R.Civ.P. 12(b)(6)
for failing to state a claim. The court recites each
governing legal standard below.
Rule 12(b)(1) Standard
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 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.” Id. at 1003 (citations
omitted). “When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual
allegations.” Id. (citations omitted).
“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. (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).
Rule 12(b)(6) Standard
survive a Rule 12(b)(6) 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.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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)).
the court must assume that the complaint's factual
allegations 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 claim
for relief. Bixler v. Foster, 596 F.3d 751, 756
(10th Cir. 2010) (quoting Iqbal, 556 U.S. at 678).
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court may consider “not only the complaint itself,
but also attached exhibits and documents incorporated into
the complaint by reference.” Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). A court
also “may consider documents referred to in the
complaint if the documents are central to the plaintiff's
claim and the parties do not dispute the documents'
authenticity.” Id. (quoting Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)).
assert many of the same arguments to support dismissal of
plaintiffs' Complaint. The court addresses each of the
arguments, separately, in the following sections. The court
concludes that dismissal of plaintiffs' Complaint is
warranted for several reasons, as explained in more detail