United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
filed her Complaint on January 25, 2018. (Filing No.
1.) She has been given leave to proceed in forma
pauperis. (Filing No. 6.) The court now conducts an
initial review of Plaintiff's Complaint to determine
whether summary dismissal is appropriate under 28 U.S.C.
SUMMARY OF COMPLAINT
seeks a declaratory judgment that Defendant
“Wheelock” violated here constitutional rights to
due process and equal protection under the Fifth and
Fourteenth Amendments. Plaintiff claims Wheelock allowed the
State to take custody of her son, J.V., in an action
originally brought to establish paternity of J.V. and in
which Plaintiff was named as a “Third Party.”
(Filing No. 1 at CM/ECF p.1.) Plaintiff claims that
Wheelock should have appointed counsel for Plaintiff in the
proceedings to remove J.V. from her custody.
APPLICABLE LEGAL STANDARDS ON IN 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).
DISCUSSION OF CLAIMS
indicates this is an “1873Ku Klux Klan Civil
Action” (filing no. 1), which, based on the
conclusory allegations of the Complaint, the court construes
to be an action brought under 42 U.S.C. § 1983.
“To state a claim under 42 U.S.C. § 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).
Complaint contains no facts to show that Wheelock violated
her constitutional rights. Moreover, Wheelock is not even
adequately identified to permit the court to accurately
determine whether Wheelock was acting under color of state
law. Giving the Complaint its most liberal construction, the
court can surmise that Wheelock is most likely the judge
presiding over the paternity action referenced by Plaintiff.
If that is the case, Plaintiff's claims against Wheelock
are barred by judicial immunity.
is immune from suit, including suits brought under section
1983 to recover for alleged deprivation of civil rights, in
all but two narrow sets of circumstances. Schottel v.
Young, 687 F.3d 370, 373 (8th Cir. 2012). “First,
a judge is not immune from liability for nonjudicial actions,
i.e., actions not taken in the judge's judicial capacity.
Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all
jurisdiction.” Id. (internal citations
omitted). An act is judicial if “it is one normally
performed by a judge and if the complaining party is dealing
with the judge in his judicial capacity.” Id.
(internal citations omitted).
Plaintiff alleges only that Wheelock failed to appoint her
counsel in the course of the paternity/custody proceedings.
Although Plaintiff alleges he acted in violation of her
rights to due process and equal protection, Plaintiff alleges
no facts against Wheelock that would fall outside the scope
of a judge's duties in presiding over paternity/custody
proceedings. Accordingly, Wheelock, if a judge, is immune
any immunity applicable to Wheelock, Plaintiff's claims
for declaratory relief are subject to dismissal under the
domestic relations exception to federal court jurisdiction.
It is well-settled that “the whole subject of the
domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the
United States.” In re Burrus, 136 U.S. 586,
593-94 (1890). Although this domestic relations exception to
federal jurisdiction does not apply to a civil action that
merely has domestic relations overtones, federal courts lack