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Withrow v. Regional West Medical Center

United States District Court, D. Nebraska

January 24, 2019



          Joseph F. Bataillon Senior United States District Judge.

         This matter is before the Court on motions to dismiss filed by Deborah and Nicholas Mizelle (“the Mizelles”), Filing Nos. 23 and 38; by the United States, Filing No. 29; by the County of Scottsbluff and Scotts Bluff County Detention Center (collectively “the County Defendants”), Filing No. 34; and by Regional West Medical Center (“Regional West”), Filing No. 36.[1] This is a pro se action alleging negligence, gross negligence, and deliberate indifference in connection with the adoption of a child. The plaintiffs originally commenced this action in the District Court of Scotts Bluff County, Nebraska, and the matter was then removed to this court pursuant to 28 U.S.C. § 1346(b)(1), which grants exclusive jurisdiction to federal courts for actions brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. Filing No. 1. Subsequently, the plaintiffs amended their complaint.[2] Filing No. 27, Amended Complaint.

         I. BACKGROUND

         In their amended complaint, the plaintiffs allege that plaintiff Christopher Withrow is the biological father of a child born to Megan Mizelle, who is not a party. Plaintiffs, Marilyn and David Withrow, are Christopher Withrow's parents (the child's alleged grandparents). They seek to recover damages for the defendants' alleged failure to have Christopher J. Withrow identified on the birth certificate of the child, who was born while both parents were incarcerated on federal charges.

         They allege that, on January 6, 2015, Megan Mizelle gave birth to a child at Regional West. The alleged biological father, Plaintiff Christopher Withrow, was not present for the birth, and his name was not included on the child's birth certificate. Megan Mizelle later signed a “Consent to Adoption” thereby relinquishing all of her parental rights over the child to her sister, Mallory Mizelle. Mallory Mizelle transported the child to Arizona where she ultimately adopted her.

         The plaintiffs allege the United States failed to identify, or properly supervise other state or local agencies/entities in identifying the biological father on the birth certificate of the child. They allege Regional West acted with negligence, gross negligence, and “deliberate indifference” toward the plaintiffs by failing to ensure Christopher Withrow's name appeared on the child's birth certificate and failing to ensure the plaintiffs received a hearing for the purposes of identifying an interim guardian for the child. They assert the same claims against the County Defendants for alleged failure to observe a standard of care to ensure that the child's paternity was noted on the birth certificate, failure to ensure a hearing was held on paternity in Nebraska family or juvenile court failure to “supervise” Regional West so that the hospital would put the father's name on the birth certificate of the child, failure to notify the father of the child's birth, and failure to ensure that the mother be allowed to marry the father while incarcerated. Plaintiffs Marilyn and David Withrow allege they were denied the position of serving as interim guardians for the child and allege they have been denied a proper familial relationship with the child for more than three years.

         The plaintiffs allege claims for intentional or willful negligence, “irreparable Injury, ” “Interference with the Chain of Custody and Child-Kidnapping (Civil), ” and “Tortious Interference with Contractual Relations” against defendants Deborah and Nicholas Mizelle, based on allegations that Nicholas Mizelle chose the first name of the child and told the Withrow family he would do everything possible to prevent them from gaining custody and Deborah Mizelle sent unfavorable texts to the plaintiffs regarding paternity and removed the child from the hospital without a court hearing in Nebraska. Filing No. 27 at 7-12. Essentially, they allege that defendant Mallory Mizelle conspired to kidnap the child and then did so.

         The United States seeks dismissal for failure to exhaust administrative remedies. It submits the Declaration of Gerald Auerbach showing that the plaintiffs never filed a claim under the FTCA. Filing No. 30-1. The County of Scottsbluff moves to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Regional West Medical Center moves to dismiss for lack of subject matter-jurisdiction, improper venue, failure to state a claim upon which relief can be granted, and failure to join a necessary party under Federal Rules of Civil Procedure 12(b)(1), (3), (6), and (7).

         In support of their motions to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the County Defendants, joined by Regional West, submit the Declaration of attorney Thomas J. Freeman, together with various pleadings and orders from Arizona state courts.[3] Among other things, the Regional Center and the County Defendants assert that the plaintiffs lack standing to bring this lawsuit. They have shown that plaintiff Christopher Withrow's parental rights have been terminated by the courts of the State of Arizona. They argue that the plaintiffs' alleged injuries would not be redressed by a favorable decision in this action.

         Deborah and Nicholas Mizelle move to dismiss for lack of jurisdiction, failure to state a claim, improper venue, and failure to join a necessary party. They adopt the arguments presented by the County Defendants.

         In opposition to the motions, the plaintiffs present largely frivolous and unsupported arguments invoking inapplicable Nebraska and federal contractor law. Filing Nos. 49-1, 51 and 52.

         II. LAW

         A motion to dismiss based on standing is properly brought under Rule 12(b)(1), because standing is a jurisdictional matter. Disability Support All. v. Heartwood Enters., LLC, 885 F.3d 543, 547 (8th Cir. 2018). Jurisdiction is a threshold issue for this Court. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-96 (1998); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). The plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); V S Ltd. P'ship v. Dep't of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000)

         A complaint can be challenged under Fed.R.Civ.P. 12(b)(1) either “on its face or on the factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). “In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. In a factual attack on the jurisdictional allegations of the complaint, however, the ...

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