United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
Ricky Stevenson, proceeds pro se in this action for
declaratory and injunctive relief against Judge Christina
Dunn-Gyllenborg of the District Court of Johnson County,
Kansas. Complaint (Doc. #1) filed October 15, 2018.
On October 17, 2018, Magistrate Judge James P. O'Hara
granted plaintiff leave to proceed in forma pauperis.
Order Granting Leave To Proceed In Forma Pauperis And
Report And Recommendation (Doc. #5). Judge O'Hara
also recommended that the Court abstain from exercising
jurisdiction under Younger v. Harris, 401 U.S. 37
(1971), and dismiss this action under 28 U.S.C. §
1915(e)(2) for failure to state a claim. See id. at
5. This matter is before the Court on plaintiff's
Objection To Report And Recommendations (Doc. #6)
filed October 22, 2018 and plaintiff's Motion For
Emergency Injunction (Doc. #4) filed October 15, 2018.
For reasons stated below, the Court overrules plaintiff's
objection, adopts Judge O'Hara's report and
recommendation in its entirety and dismisses this case
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state
a claim. Accordingly, the Court also denies as moot
plaintiff's Motion For Emergency Injunction.
claims arise out of an ongoing state child custody matter in
which plaintiff, the child's father, is the respondent.
Doc. #1 at 3. Plaintiff alleges that a state judge has acted
unfairly toward him and ignored serious allegations against
the child's mother. He claims that the judge's entry
of a no contact order has caused him and his child
irreparable harm. Plaintiff states that not seeing his son
has caused depression and insomnia, and that plaintiff has
missed his child's school events. Doc. #6 at 2. Plaintiff
alleges numerous constitutional violations and asks the Court
to: (1) “declare the child interview and family
assessment unconstitutional and a violation of the Federal
Due Process Clause;” (2) declare the actions of the
state judge to be in violation of Equal Protection and Due
Process; (3) either declare that this Court has permanent
jurisdiction over the custody dispute or transfer the case to
Jackson County, Missouri; (4) declare that plaintiff is
entitled to relief based on “male discrimination in a
child custody matter;” and (5) enter other appropriate
declaratory relief. Doc. #1 at 10-11. He also argues that he
has filed a motion to recuse in state court, but that court
has not yet ruled on it. Plaintiff requests that the Court
restore his right to custody of his child and reinstate the
original parenting plan. Doc. #4 at 3.
October 17, 2018, Judge O'Hara recommended that applying
the doctrine of Younger abstention, the Court
dismiss this action under 28 U.S.C. § 1915(e)(2) for
failure to state a claim. Doc. #5 at 1, 5.
objection to a magistrate judge report and recommendation on
a dispositive matter, the Court reviews de novo those
portions of the report and recommendation to which a party
objects. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). In conducting a de novo review, the
Court must consider relevant evidence of record and not
merely review the magistrate judge recommendation. Griego
v. Padilla (In re Griego), 64 F.3d 580, 584 (10th Cir.
1995). When ruling on objections to the magistrate
judge's findings and recommendations, the Court may
receive further evidence. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b)(3). Here, no additional
evidence is necessary, and the Court reviews the report and
recommendation on the record which already exists.
Younger, a federal district court must abstain from
hearing a case which interferes with certain state
proceedings. Though the primary application of
Younger involves state criminal proceedings, the
doctrine has been extended to ongoing state civil and
administrative proceedings as well. See Amanatullah v.
Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th
Cir. 1999). Younger dictates that a federal district
court abstain from exercising jurisdiction over federal
claims when (1) a state criminal, civil or administrative
proceeding is pending; (2) the state court provides an
adequate forum to hear the claims raised in the federal
complaint; and (3) the state proceedings involve important
state interests, matters which traditionally look to state
law for their resolution or implicate separately articulated
state policies. Id. Absent extraordinary
circumstances, abstention is mandatory if these elements are
satisfied. See id. “Extraordinary
circumstances” include where the state proceeding is
motivated by a desire to harass, is conducted in bad faith or
will cause immediate irreparable injury. Perez v.
Ledesma, 401 U.S. 82, 85 (1971); see Huffman v.
Pursue, Ltd., 420 U.S. 592, 611 (1975).
does not directly challenge Judge O'Hara's finding
that his claims satisfy the three Younger
conditions. See, e.g., Doc. #6 at 1 (“I
respectfully agree that this is a traditional state-law
matter that implicate[s] important state interests”).
Plaintiff does not assert improper motive, bad faith or
harassment. Instead, plaintiff argues that this case is
extraordinary because the capricious state court orders have
caused “tremendous irreparable harm.”
Id. at 2. An allegation of irreparable harm by
itself, however, is insufficient to satisfy the
“extraordinary circumstances” exception in
Younger. 401 U.S. at 46. In addition to establishing
both “great and immediate” harm, plaintiff must
show that the threat to his rights under federal law cannot
be adequately adjudicated in the state proceeding.
Id.; Moore v. Sims, 442 U.S. 415, 423
(1979); see Kugler v. Helfant, 421 U.S. 117, 124-125
(1975) (relaxation of deference accorded to state process
only if extraordinary circumstances render state court
incapable of fairly and fully adjudicating federal issues
before it; circumstances must be “extraordinary”
in sense of creating extraordinarily pressing need for
immediate federal equitable relief, not merely in sense of
presenting highly unusual factual situation). Plaintiff has
not shown that the state courts cannot adequately address his
claims. Plaintiff argues that the state court has delayed
ruling on his motion to recuse, but he concedes that he has
an available remedy through a writ of mandamus in the state
appellate court. Doc. #6 at 2. In sum, plaintiff has not
shown extraordinary circumstances which would distinguish
this case from other child custody cases in which federal
courts routinely apply Younger abstention. See
Moore, 442 U.S. at 435 (Younger abstention
applies in child welfare litigation); see also Gordon v.
(FNU)(LNU), 240 Fed.Appx. 785, 787 (10th Cir. 2007)
(under Younger, court lacks jurisdiction to inquire
into constitutionality of state custody proceeding);
Hennelly v. Flor de Maria Oliva, 237 Fed.Appx. 318,
320 (10th Cir. 2007) (Younger prevents federal
district court from interfering with ongoing state custody
IS THEREFORE ORDERED that plaintiff's
Objection To Report And Recommendations (Doc. #6)
filed October 22, 2018 is OVERRULED. The
Court approves and adopts in its entirety Judge
O'Hara's Order Granting Leave To Proceed In Forma
Pauperis And Report And Recommendation (Doc. #5) filed
October 17, 2018.
IS FURTHER ORDERED that plaintiff's
Complaint (Doc. #1) filed October 15, 2018 is
DISMISSED without prejudice.
IS FURTHER ORDERED that plaintiff's Motion
For Emergency Injunction (Doc. #4) filed ...