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Protheroe v. Masarik

United States District Court, D. Kansas

January 31, 2019

CRYSTALEE PROTHEROE, Plaintiff,
v.
JOSEPH MASARIK, et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Crystalee Masarik filed this pro se action against Joseph Masarik (“Defendant Masarik”) and Judges Amy Hanley, Peggy Kittle, James McCabria, and Sally Pokorny (“Judicial Defendants”), asserting claims under “18 USC 3771, 18 USC 241 & 242” and “US Constitution 4th, 6th, 8th, 9th, & 14th amendments.”[1] In her Complaint, she seeks “Dleclatory [sic] and injunctive relief, reinstate of 1st amendment-right to parent equal access, right to be free from cruel and unusual punishment, children returned” and “lost wages $275, 000.00-from Mr. Masarik. Pain anguish, mental suffering as Court deems. I understand no monetary damages can be collected or requested from judicial members.”[2]

         The case is before the Court on Defendant Masarik's Motion to Dismiss and Motion for Sanctions (Doc. 9) and Judicial Defendants' Motion to Dismiss (Doc. 4). Plaintiff previously filed an action against Defendants Masarik and Pokorny in this Court, [3] as well as two other actions against Defendant Masarik, [4] all of which were dismissed. For the reasons stated below, the Court grants both motions to dismiss, and denies Defendant Masarik's motion for sanctions.

         I. Factual Background

         The Court derives the following facts from Plaintiff's Complaint.

         A. Allegations Relating to Defendant Masarik

         Plaintiff and Defendant Masarik were married in September 2008 and divorced in April 2014. Plaintiff alleges that Defendant Masarik “lied to the home study investigator to fraudulently and erroneously gain custody of the minor children.”[5] At some point, Defendant Masarik moved the children to Alabama. Plaintiff alleges that Defendant Masarik refused to have one of the minor children evaluated to determine whether the minor needed her prescription for ADHD medication. When Plaintiff had the children for Thanksgiving break in 2015, she took the minor to be evaluated, which “enraged” Defendant Masarik, and led to him filing for full legal and physical custody in December 2015, which was granted.[6] Plaintiff alleges that when she visited her children in Alabama, Defendant Masarik did not allow her to visit the minor children.

         B. Allegations Relating to Judicial Defendants

         Plaintiff alleges that she has not had visitation with her children for nineteen months because of the “Doulas [sic] County District Court Judges [sic] contempt and dislike of her refusal to accept their abject failure.”[7] Plaintiff requested a continuance at a “Protection from Abuse hearing” on December 20, 2013 because her attorney did not appear, which was denied.[8]During the divorce hearing, Judge Pokorny awarded Defendant Masarik custody of the minor children, which Plaintiff alleges violated her and her children's constitutional rights. She also alleges that she was not given a copy of her home study, in violation of KSA 23-3210(c). Plaintiff alleges that in the home study, Defendant Masarik threatened to “beat [Plaintiff's] @$$.”[9] In March 2016, Defendant Masarik failed to produce the children for a scheduled visitation, but the court did not hold Defendant Masarik in contempt.

         In March 2017, Plaintiff visited the minors and “noticed evidence that would support the girls [sic] claims that father had abused them.”[10] Plaintiff filed a restraining order, which was denied. In March 2017, Judge McCabria issued an emergency order stating that Plaintiff must undergo a mental health evaluation and ordered that she was only allowed to see the children with supervised visitation. Plaintiff received a mental health evaluation, which was submitted to the court, but the court indicated that a “better one must be done.”[11] Following this, Plaintiff filed a Writ of Mandamus to the court of appeals to gain access to the home study, but this was denied.

         At some point in 2017, Defendant Masarik filed for a no-contact order based on Plaintiff's violations of Judge McCabria's supervision order, which was granted. Plaintiff believes this was granted erroneously and that the guidelines in the supervision order were “vague.”[12] Further, Plaintiff was ordered to pay a $3, 000 bond. Judge Hanley also ordered Plaintiff to undergo a mental health evaluation at her own cost.

         In May 2017, Plaintiff filed an appeal with the Kansas Court of Appeals. Plaintiff states that Judge Kittle falsely certified a Record of Actions for the appellate action, which stated that the home study was not in the file, and Plaintiff's motion to correct this error was denied. Finally, Plaintiff alleges that Judge Hanley ordered the Douglas County Clerk of Court to withhold the home study evidence.

         II. Motion to Dismiss Standard

         Judicial Defendants move to dismiss under Fed.R.Civ.P. 12(b)(1), based on lack of subject matter jurisdiction, and Fed.R.Civ.P. 12(c), based on issue preclusion and judicial immunity, which are both affirmative defenses.[13] Additionally, Judicial Defendants assert that the court must abstain from exercising jurisdiction under Younger abstention and the Rooker-Feldman doctrine, and that declaratory relief is precluded by the Eleventh Amendment.

         Defendant Masarik, who proceeds pro se, moves the Court to issue “a complete dismissal of this case” based on res judicata and because the suit is “completely unfounded.”[14] The Court construes this to be a motion to dismiss on the pleadings under Fed.R.Civ.P. 12(c) and a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Finally, because this action stems from Plaintiff and Defendant's family law dispute, the court will sua sponte consider its jurisdiction under 12(b)(1).[15]

         Rule 12(b)(1) provides for dismissal of a claim where the court lacks subject matter jurisdiction. Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction.[16] A court lacking jurisdiction must dismiss the claim, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.[17] The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper.[18] Mere conclusory allegations of jurisdiction are not enough.[19]

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(c) is decided under the same standard as a motion to dismiss for failure to state a claim under Rule 12(b)(6).[20] The court must accept all facts pleaded by the non-moving party as true and grants all reasonable inferences from the pleadings in favor of the non-moving party.[21] A motion for judgment on the pleadings should not be granted unless the movant has clearly established that there are no material facts to be resolved and that the movant is entitled to judgment as a matter of law.[22] The court does not accept as true legal conclusions that are couched as factual allegations, [23] but rather determines whether the factual allegations “plausibly give rise to an entitlement to relief.”[24] To avoid dismissal, a plaintiff must state a plausible claim, which requires “sufficient factual allegations to ‘raise a right to relief above the speculative level.'”[25]

         Because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.[26] However, the Court may not provide additional factual allegations “to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[27] Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.[28]

         III. Discussion

         A. Failure to Respond

         As an initial matter, Plaintiff has failed to respond to either Motion to Dismiss. Under D. Kan. Rule 7.4,

Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.

         Accordingly, the Court may grant both motions to dismiss as uncontested. Out of an abundance of caution, the Court considers the substance of the motions below.

         B. Subject Matter Jurisdiction

         Judicial Defendants argue that this case falls under the domestic relations exception to federal jurisdiction. The Court sua sponte considers whether this exception equally applies to bar suit against Defendant Masarik. “The domestic relations exception divests federal courts of the power to issue divorce, alimony, and child custody decrees.”[29] Here, Plaintiff asks the Court for declaratory and injunctive relief in the form of “reinstate of 1st amendment-right to parent equal access” and “children returned to mother.”[30] To the extent Plaintiff seeks that the Court reopen and modify the child custody decrees from the state court, the Court lacks federal jurisdiction.

         C. Preclusion

         Both Judicial Defendants and Defendant Masarik seek to enjoin this suit based on preclusion. Judicial Defendants seek dismissal on the basis of issue preclusion and Defendant Masarik seeks dismissal on the basis of res judicata.

         1. Judicial Defendants

         Another judge in this district previously denied Plaintiff injunctive relief sought pursuant to various constitution and federal claims, including fourth, fifth, sixth, ninth, fourteenth amendment claims, and violations under 42 U.S.C. §§ 1981, 1983, 1984, 1985, 1986 and 18 U.S.C. §§ 241, 242 based on child custody rulings of state court judges and derivative judicial orders.[31] In the present case, Plaintiff brings claims pursuant to “18 USC 3771, 18 USC 241 ...


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