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Schwab v. State

United States District Court, D. Kansas

June 30, 2017

RAYMOND SCHWAB, et al., Plaintiffs,
STATE OF KANSAS, et al., Defendants.


          Daniel D. Crabtree United States District Judge

         On 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[1] 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.

         After 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.

         On August 26, 2016, plaintiffs filed a 77-page “Revised Second Amended Complaint” (“Complaint”).[2] 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.[3]

         All 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.

         I. Plaintiffs' Motion to Dismiss Parties Randi Debenham, Miranda Johnson, Blake Robinson, and Andrew Vinduska

         Before 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).

         Plaintiffs' 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.

         Mr. 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.

         Ms. 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.

         In sum, 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 without prejudice.

         II. Defendants' Motions to Dismiss

         The court now considers the remaining 12 motions to dismiss.[4]

         A. Factual Background

         Most of 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).

         The few 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, [5] 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)).

         Mr. and 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”).

         On 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.

         On May 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.

         On June 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.

         After 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 result.

         On July 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 CINC.

         The 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.

         The 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.

         Mr. 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.[6] 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.

         Mr. 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.

         Plaintiffs 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.

         Plaintiffs 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 66-68.

         B. Legal Standards

         Some 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.

         1. Rule 12(b)(1) Standard

         “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 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.” 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).

         2. Rule 12(b)(6) Standard

         To survive a Rule 12(b)(6) motion to dismiss, [7] “ 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)).

         Although 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).

         When 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)).

         C. Analysis

         Defendants 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 below.[8]

         1. Eleventh ...

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