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Swift v. Barrett

United States District Court, D. Nebraska

December 18, 2017

CHARLES SWIFT and ARNETTA SWIFT nee HILL, Plaintiffs,
v.
DEBORAH BARRETT and ANGIE WILLIAMS, 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, alleging that a minor child of theirs was assaulted in a foster care setting. Plaintiffs requested that they recover $100 million in damages from Nebraska Family Cooperative (“NFC”), the State of Nebraska, and unknown “operatives.”

         After Plaintiffs were granted leave to proceed in forma pauperis, the court conducted an initial review of the Complaint to determine whether summary dismissal was appropriate under 28 U.S.C. § 1915(e)(2). In a Memorandum and Order entered on October 19, 2017 (Filing No. 6), the court dismissed the State of Nebraska as a Defendant based on Eleventh Amendment immunity and ruled that the Complaint failed to state a claim upon which relief can be granted against NFC. On its own motion, however, the court granted Plaintiffs leave to amend within 30 days.

         On November 14, 2017, Plaintiffs filed an Amended Complaint (Filing No. 7), which no longer names NFC as a Defendant, but which instead is brought against two “NFC workers, ” Deborah Barrett and Angie Williams. The court now conducts an initial review of the Amended Complaint. For the reasons discussed below, the court concludes that the action should be dismissed without prejudice.

         I. SUMMARY OF AMENDED COMPLAINT

         As an initial matter, the court notes that Plaintiffs' Amended Complaint contains the names and dates of birth of several minors. The Federal Rules of Civil Procedure require that such information be redacted, and that only a minor's initials and year of birth be provided. See Fed.R.Civ.P. 5.2(a). Plaintiffs' original Complaint also included the names of three minors, whom the court simply designated by the letters “A, ” “B, ” and “C” in its previous Memorandum and Order (Filing No. 6). The court will continue to use this alphabetical designation and will direct the clerk of the court to restrict access to the Complaint (Filing No. 1) and Amended Complaint (Filing No. 7) to parties of record and court users. See Fed.R.Civ.P. 5.2(e); NECivR 5.3(c); NEGenR 1.3(a)(1)(B)(ii).

         Plaintiffs allege they were married on January 18, 2014, at which time Arnetta “still had all 5 of her kids in custody but they where [sic] living with the paternal Grandmother” while Arnetta was in a drug treatment center. It appears, however, that only four of the children were related to their caretaker grandmother. These four children include “A, ” a girl who was born in 2009. The other three children were born in 2007, 2008, and 2012. Their biological father is deceased. (Filing No. 7 at CM/ECF pp. 1-2, ¶¶ 1-2) Arnetta's fifth child, “C, ” is a daughter who was born in 2004 and has a different biological father. (Filing No. 7 at CM/ECF p. 2, ¶ 3) Charles claims to be “the legal father of all the children” by reason of his marriage to Arnetta. (Filing No. 7 at CM/ECF p. 2, ¶ 3) It appears Plaintiffs may also have a child of their own who was living with the caretaker, as Plaintiffs allege: “Our child [“D”] was walking down street alone ... [and] was given a fire cracker at age 1 and burned a hole in his chest.” (Filing No. 7 at CM/ECF p. 3, ¶¶ 4, 5)

         Plaintiffs allege that they “explained to defendants on more than one occasion at there [sic] family meetings that children weren't being properly cared for and need[ed] to be removed” from the home “[b]ecause of the series of events.” (Filing No. 7 at CM/ECF p. 3, ¶ 3) In addition to the caretaker's alleged neglect involving “D, ” it is claimed that two children were victims of violence. First, Plaintiffs allege: “Our daughter [“A”] was assaulted by [“B”]. (Filing No. 7 at CM/ECF p. 3, ¶ 6) “B” is a male of unknown age and parentage, who, according to the original Complaint, “was then in care with our progeny [in the] same foster home[.]” (Filing No. 1 at CM/ECF p. 1) Second, Plaintiffs allege: “After assault on [“A”] about 6 months later we found out that our daughter [“C”] was raped” by [“B”]. (Filing No. 7 at CM/ECF p. 4, ¶ 6) Plaintiffs do not allege when or where the rape occurred or whether Defendants had any knowledge of it.

         Plaintiffs also fail to state when or where the alleged assault on “A” took place, or to provide any details about the incident. Plaintiffs only allege: “The defendants found out [b]y not only the plaintiffs but by the Visit worker and [“A”] herself. We repeatedly informed defendants in physical control of our minor child being assaulted, and they ... replied with, ‘[“B”] didn't reside in the home[, '] ... [w]hich he did. We also ask[ed] on many occasions for children to be removed because [“B”] had hand guns and marijuana in the home.” (Filing No. 7 at CM/ECF pp. 3-4, ¶ 6)

         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. ...


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