United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Daniel Trevor Ashbaugh brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds in forma pauperis. Mr. Ashbaugh commenced
this action while incarcerated in the Crawford County Jail.
For the reasons discussed below, Plaintiff is ordered to show
cause why his complaint should not be dismissed.
Nature of the Matter before the Court
complaint (ECF No. 1) alleges defendants violated his due
process rights. He names as defendants Kaw Valley Center
(“KVC”), a caseworker employed by KVC, and the
supervisor of that caseworker. The complaint claims
Plaintiff's two children were taken away from him by the
State of Kansas and placed in KVC's custody in November
of 2017. He alleges KVC has failed to allow him to see his
children, to give him a court date, or to give him a
“real” case plan. As relief, Plaintiff asks the
Court to return his children to his custody and to order
defendants to establish a case plan for him.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). Additionally, with any litigant, such as Plaintiff,
who is proceeding in forma pauperis, the Court has a duty to
screen the complaint to determine its sufficiency.
See 28 U.S.C. § 1915(e)(2). The Court must
dismiss a complaint or portion thereof if a plaintiff has
raised claims that are legally frivolous or malicious, that
fail to state a claim upon which relief may be granted, or
that seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915A(b)(1)-(2).
state a claim under § 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 (1988)
(citations omitted); Northington v. Jackson, 973
F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes
a pro se complaint and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
addition, the court accepts all well-pleaded allegations in
the complaint as true. Anderson v. Blake, 469 F.3d
910, 913 (10th Cir. 2006). On the other hand, “when the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief, ” dismissal is
appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations
omitted). The complaint's “factual allegations must
be enough to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” Id. at 555, 570.
Tenth Circuit Court of Appeals has explained “that, 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). The court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (citation omitted).
Tenth Circuit has pointed out that the Supreme Court's
decisions in Twombly and Erickson gave rise
to a new standard of review for § 1915(e)(2)(B)(ii)
dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007) (citations omitted); see also Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As
a result, courts “look to the specific allegations in
the complaint to determine whether they plausibly support a
legal claim for relief.” Kay, 500 F.3d at 1218
(citation omitted). Under this new standard, “a
plaintiff must ‘nudge his claims across the line from
conceivable to plausible.'” Smith, 561
F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).
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). The domestic relations
exception to the federal courts' jurisdiction
“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)).
Plaintiff asks the Court to essentially issue a child custody
decree, 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, relief must be denied.
KVC is a private corporation that contracts with the State of
Kansas to provide child welfare services. The two individual
defendants are employed by KVC, a private entity. To state a
claim for relief under §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