United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Charles Swift filed his Complaint (Filing No. 1) on
September 11, 2017, and has been granted leave to proceed in
forma pauperis (Filing No. 5). The court now
conducts an initial review of Plaintiff's Complaint to
determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2).
SUMMARY OF COMPLAINT
alleges that Defendant Angie Williams
(“Williams”) of Nebraska Family Cooperative
(“NFC”) kidnapped Plaintiff's infant son in
March 2017.Plaintiff further alleges that illegal
testing for drugs was performed on the child with no illegal
drugs found. Plaintiff also claims that he was tested for
illegal drugs with negative results, but does not claim that
such testing was illegal. Plaintiff seeks damages for the
kidnapping in the amount of $100 million.
has attached several documents to his Complaint. These
documents reflect, among other things, that a petition filed
in the Separate Juvenile Court for Douglas County, Nebraska,
with respect to Plaintiff's infant son was dismissed
without prejudice on July 17, 2017, and the Nebraska
Department of Health and Human Services was relieved of all
responsibility for the child at that time. (Filing No. 1
at CM/ECF p.5.) Plaintiff alleges he received custody of
the child on or about May 23, 2017. (Id. at CM/ECF
APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
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. §
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.”).
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).
construed, Plaintiff here seeks to allege federal
constitutional claims. To state a claim under 42 U.S.C.
§ 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by
federal statute and also must show that the alleged
deprivation was caused by conduct of a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48
(1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th
DISCUSSION OF CLAIMS
alleges his child was taken by Williams without
“jurisdiction, power of authority, [or] authorization
by any court.” (Filing No. 1 at CM/ECF p.1.)
Plaintiff fails to allege that Williams was acting under
color of state law. Even assuming that William's conduct
was “fairly attributable to the state, ” so that
she can be sued as a state actor under § 1983, see
Filarsky v. Delia, 132 S.Ct. 1657, 1661 (2012), the
facts alleged are not sufficient to state a claim for relief.
Due Process Clause provides that no State shall . . . deprive
any person of life, liberty, or property, without due process
of law. . . . Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that
right they must first be notified.” Lind v. Midland
Funding, L.L.C., 688 F.3d 402, 405- 06 (8th Cir. 2012).
“Parents have a recognized liberty interest in the
care, custody, and management of their children.”
Whisman Through Whisman v. Rinehart, 119 F.3d 1303,
1309 (8th Cir. 1997). However, “[t]hat liberty
interest ‘is limited by the compelling governmental
interest in the protection of minor children, particularly in
circumstances where the protection is considered necessary as
against the parents themselves.'” Id.
(quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir.
1987)). “In cases in which continued parental
custody poses an imminent threat to the child's health or
welfare, emergency removal of children without a court order
is constitutionally permitted.” K.D. v. Cty. of
Crow Wing, 434 F.3d 1051, 1056 (8th Cir. 2006). However,
when a defendant's action is proportional to his or her
reasonable belief that a minor child faces the threat of
immediate harm, no constitutional violation occurs.
Plaintiff alleges that Williams kidnapped his child as
“directed” by NFC. (Filing No. 1 at CM/ECF
p.1.) Plaintiff's allegations are entirely
conclusory and lack factual support sufficient to state a due
process claim regarding his kidnapped infant. Even when
liberally construed, Swift's claims are simply too vague
and conclusory to state a claim for relief. SeeIqbal, 556 U.S. at 678 (“A claim has facial
plausibility when the plaintiff pleads factual ...