United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds
pro se. His fee status is pending.
of the Complaint
Behavioral Healthcare, Inc. (KVC), is a private, non-profit
Kansas corporation licensed by the Kansas Department of
Children and Families as a child placement agency. Plaintiff
complains that the defendants, KVC, its president, and three
case coordinators, have failed to respect his rights as a
noncustodial parent and his family's right to privacy and
have failed to inform him of the status of his children. He
seeks declaratory relief and damages.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
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)). Accordingly, any claim by plaintiff that
involves the custodial status of his children must be
addressed in the state courts.
KVC is a private corporation that contracts with the State of
Kansas to provide child welfare services. The individual
defendants are employed by KVC. 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 of state
law.” Bruner v. Baker, 506 F.3d 1021, 1025-26
(10th Cir. 2007)(citation omitted).
private entity can be treated as a state actor (“acting
under color of state law”) under certain circumstances.
See Gallagher v. Neil Young Freedom Concert, 49 F.3d
1442, 1447 (10th Cir. 1995). The Tenth Circuit has
used four different tests to determine if a private entity is
subject to liability under § 1983 as a state actor: the
nexus test, the symbiotic relationship test, the joint action
test, and the public function test. Id. The nexus
test requires a close connection between the government and
the challenged conduct and generally makes the state liable
for a private individual's conduct “only when [the
State] has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State.”
Schwab v. Kansas, No. 16-CV-4033-DDC, 2017 WL
2831508, *14 (D. Kan. June 30, 2017)(quoting
Gallagher, 49 F.3d at 1448). The symbiotic
relationship test looks at whether the state “has so
far insinuated itself into a position of interdependence with
a private party that it must be recognized as a joint
participant in the challenged activity.” Id.
The joint action test requires the Court ...