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Swift v. Nebraska Family Cooperative

United States District Court, D. Nebraska

October 19, 2017

CHARLES SWIFT and ARNETTA SWIFT, Plaintiffs,
v.
NEBRASKA FAMILY COOPERATIVE, STATE OF NEBRASKA, and ALL UNKNOWN JANE & JOHN DOE OPERATIVES, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiffs, Charles and Arnetta Swift, filed their Complaint (Filing No. 1) on October 5, 2017, and have since been granted leave to proceed in forma pauperis (Filing No. 5). The court now conducts an initial review of Plaintiffs' Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiffs allege their minor child was assaulted by another minor in a foster care setting. Plaintiffs seek to recover $100 million in damages from Nebraska Family Cooperative (“NFC”), the State of Nebraska, and unknown “operatives.”

         II. LEGAL STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         III. DISCUSSION

         Plaintiffs indicate their action is filed pursuant to 42 U.S.C. § 1983, which provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. As will be discussed below, there are several problems with Plaintiffs' Complaint.

         A. Eleventh Amendment Immunity

         The State of Nebraska is immune from suit in federal court in an action brought under 42 U.S.C. § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-66 (1989) (“[A] State is not a ‘person' within the meaning of § 1983 ... The Eleventh Amendment bars ... suits [against States for alleged deprivations of civil liberties] unless the State has waived its immunity.”). This action for damages can only proceed against NFC and persons who are sued in their individual capacities (as opposed to their official capacities, which would be equivalent to suing the State). Importantly, Plaintiffs will need to allege and prove that NFC and any other Defendants were acting under color of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'”).

         B. Plaintiffs' Standing

         Plaintiffs do not allege that they were deprived of any rights, privileges or immunities, or were injured in any way. It appears Plaintiffs are instead claiming that their minor child's constitutional rights were violated. “[P]arents lack standing to bring individual claims under § 1983 based solely upon deprivation of a child's constitutional rights.” Phillips ex rel. Green v. City of New York, 453 F.Supp.2d 690, 734 (S.D.N.Y. 2006). Plaintiffs might be able to sue in a representative capacity as the child's legal guardians. See Fed.R.Civ.P. 17(a)(1)(C) (“The following may sue in their own names without joining the person from whose benefit the action is brought: ... a guardian ....”) and (c)(1)(A) (“The following representatives may sue or defend on behalf of a minor or incompetent person: ... a general guardian ....”). ...


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