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S.F.M. v. Gilmore

United States District Court, D. Kansas

March 29, 2018

S.F.M., a minor, by and through [his grandmother and next friend, TERRI E. BAKER, Plaintiff,
v.
PHYLLIS GILMORE in her official capacity as Secretary of the Kansas Department for Children and Families, et al., Defendants.

          MEMORANDUM AND ORDER

          Carlos Murguia, United States District Judge

         Plaintiff S.F.M. is a minor. He is the three-year-old grandson of his custodian grandmother and next friend, Terri E. Baker. Plaintiff has been adjudicated by a Kansas court to be a Child in Need of Care (“CINC”) and has a CINC proceeding still open. Plaintiff has not been vaccinated. He filed this case when the Kansas Department for Children and Families Agency (“DCF”) and KVC Behavioral Healthcare (“KVC”) sent a letter indicating their intent to immunize plaintiff unless one of his parents took specific actions to show that an exemption to immunization applied. One of those actions was to provide a statement that plaintiff “is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations.” Before plaintiff's biological mother provided this statement, plaintiff filed suit against defendant Phyllis Gilmore, in her official capacity as Secretary for DCF; Susan Mosier, in her official capacity as Secretary for the Kansas Department of Health and Environment (“KDHE”); KVC; Saint Francis Community Services, Inc. (“SFCS”); John Doe 1-10; Ryan McCormick, the biological father of plaintiff; and Maggie McCormick, the biological mother of plaintiff. Two parties have since moved to intervene as additional plaintiffs: Jonathan Schumm and Allison Schumm. The case is before the court on a number of motions:

● Plaintiffs Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 3);
● Plaintiffs Motion for Summary Judgment on Count 1 (Doc. 11);
● Plaintiffs Motion for Summary Judgment on Counts 2-5 (Doc. 17);
● Motion to Intervene (Doc. 21) filed by Jonathan and Allison Schumm;
● Defendant Phyllis Gilmore's Motion to Dismiss (Doc. 23);
● Motion to Dismiss of Defendant Saint Francis Community Services, Inc. (Doc. 32);
● Defendant KVC Behavioral Healthcare, Inc.'s Motion to Dismiss (Doc. 35); and
● Motion to Dismiss of Defendant Susan Mosier in her Official Capacity as Secretary for the Kansas Department of Health and Environment (Doc. 37).

         Because defendants' motions raise jurisdictional defenses, the court stayed briefing on plaintiffs motions and the motion to intervene until after considering the merits of defendants' motions. The arguments in nearly all of defendants' motions overlap to some degree. Most-if not all-defendants argue that this case is not ripe for disposition. Most argue that the court should abstain based on Younger v. Harris, 401 U.S. 37, 45 (1971). Most raise immunity and other grounds for abstention, as well. The court first addresses whether, in light of the pending CINC proceeding, the court should abstain under Younger.

         I. Factual Background

         Pending in state court is a CINC proceeding. By letter dated September 22, 2017, a case manager for KVC notified the McCormicks that DCF intended to authorize immunizations for plaintiff unless the McCormicks exercised one of three options. The case manager represented that DCF or KVC could consent to the immunizations because plaintiff was placed in DCF custody. She advised that within fourteen days, a parent could (1) provide a written statement by a licensed physician; (2) provide a written statement by one parent or guardian that “the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations”; or (3) “file with the Court [the parent's] written objection to [the] child being immunized by DCF and its contractor.”

         Within fourteen days, Maggie McCormick, through her attorney, sent a written statement indicating that plaintiff and Maggie are adherents of a religious denomination whose ...


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