United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. WAXSE U.S. Magistrate Judge.
matter is a civil rights action filed under 42 U.S.C. §
1983. Plaintiff commenced this action while incarcerated in
the Douglas County Jail; he proceeds pro se and seeks leave
to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
the financial records submitted by the plaintiff reflect no
resources, the Court grants leave to proceed in forma
pauperis and does not assess an initial partial filing fee.
Plaintiff remains obligated to pay the $350.00 filing fee in
installments calculated under 28 U.S.C. § 1915(b)(2).
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 1983, a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“to state a claim in federal court, a complaint must
explain what each defendant did to [the pro se plaintiff];
when the defendant did it; how the defendant's action
harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007).
names as defendants the Chief Executive Officer and two
employees of KVC. The complaint alleges that in July 2015,
KVC violated plaintiff's civil rights by establishing a
case plan under which plaintiff could not attend the same
church as C.S. Plaintiff alleges this decision was the
result of deliberate indifference to his rights under the
First and Fourteenth Amendments and discrimination. As
relief, he asks the Court to reinstate his parental rights
and to award damages.
federal courts are courts of limited jurisdiction and may
exercise jurisdiction only when they are authorized to do so.
Burdett v. Harrah's Kan. Casino Corp., 260
F.Supp.2d 1109, 1112 (D.Kan. 2003). “[T]he domestic
relations exception…divests the federal courts of
power to issue divorce, alimony, and child custody decrees,
” Johnson v. Rodriguez (Orozco), 226 F.3d
1103, 1111 (10th Cir. 2000)(quoting Ankenbrandt v.
Richards, 504 U.S. 689, 703 (1992)).
extent plaintiff asks the Court to reinstate his parental
rights, his claim would require the Court to intrude upon a
domestic relations matter that is traditionally resolved in
the state courts and is outside the Court's jurisdiction.
Therefore, that relief must be denied.
the federal courts do not have subject matter jurisdiction to
consider claims that essentially are appeals from final
judgments entered in the state courts. See Bear v.
Patton, 451 F.3d 639, 642 (10th Cir. 2006)(“if a
lower state court issues a judgment and the losing party
allows the ...