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Jallad v. Beach

United States District Court, D. Kansas

July 19, 2017

KARIM N. JALLAD, Plaintiff,



         This matter comes before the court upon defendant Katie B. LeCluyse's Motion to Dismiss For Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 7) and defendant Ronnie M. Beach's Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. 9).

         I. Background

         On December 30, 2016, plaintiff Karim N. Jallad filed his complaint pursuant to 42 U.S.C. § 1983, claiming violations of various rights. The facts of plaintiff's complaint involve the state court divorce proceedings between plaintiff and his former wife Cyntia Espada. Defendant LeCluyse, a therapist at Behavioral Health Specialists, was hired by plaintiff and Ms. Espada prior to their divorce, to help their minor daughter understand plaintiff's frequent travel. Plaintiff's work as a chemistry professor in Kuwait requires frequent travel. During the divorce proceedings, the state court appointed defendant Ronnie M. Beach to act as a parenting coordinator. Plaintiff brings four claims.

         Count I alleges that defendant Beach violated plaintiff's fundamental and due process rights by deciding to: suspend plaintiff's parenting schedule, eliminating two overnight visits with his daughter; shorten plaintiff's Skype sessions with his daughter to two 20-minute sessions per week; and allowing Ms. Espada to take their daughter to Puerto Rico for one week, and Dallas for five days.

         Count II alleges that defendant Beach violated plaintiff's Fourth Amendment right to be free from unreasonable searches and seizures by monitoring and watching plaintiff's Skype sessions with his daughter.

         Count III alleges that defendant Beach's actions denied plaintiff equal protection of the laws because they favored Ms. Espada, allowed her to travel with their daughter, while restricting plaintiff's parental rights.

         Count IV alleges that defendants “conspired . . . to block Jallad form [sic] accessing the minor child's medical records by being INCONSISTANT and INVENTING unconstitutional Rules and Policies.” (Doc. 1 at 11.) Plaintiff argues that defendants' conspiracy violated his Fourteenth Amendment right to the care, custody, and control of his daughter.

         II. Discussion

         When a plaintiff proceeds pro se, “the court shall dismiss the case at any time if the court determines that . . . the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). The court construes the pro se party's filings liberally and holds them to less stringent standards than pleadings filed by lawyers. Barnett v. Corr. Corp of Am., 441 F. App'x 600, 601 (10th Cir. 2011). Pro se plaintiffs are nevertheless required to follow the Federal and Local Rules of practice and the court does not assume the role of advocating for plaintiff. United States v. Porath, 553 F. App'x 802, 803 (10th Cir. 2014). For the reasons explained below, the court finds that plaintiff fails to state a claim.

         A. Lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)

         “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). The party asserting subject-matter jurisdiction has the burden to establish it. Id.

         First, “[i]t is well-established that federal courts lack jurisdiction over the whole subject of domestic relations of husband and wife, and parent and child.” Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir. 2005) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (quoting Ex parte Burrus, 136 U.S. 586, 593-94 (1890))). This is not a removal action from state court, but plaintiff's claims and especially the facts he describes, read like a list of complaints about the actions taken by a Johnson County Court-appointed parenting coordinator. To the extent plaintiff is trying to raise substantive issues regarding the divorce and child custody proceedings, this court does not have jurisdiction and it is the sole province of the Johnson County Court to address plaintiff's concerns about those proceedings. To the extent that plaintiff does assert claims under federal statutes, the court will address those claims.

         Plaintiff argues that this court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiff's complaint “must identify the statutory provision under which the claim arises, and allege sufficient facts to show that the case is one arising under federal law.” Martinez v. ...

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