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Deuerlein v. Nebraska CPS

United States District Court, D. Nebraska

June 6, 2019




         Plaintiff filed his Complaint on November 1, 2018. (Filing No. 1.) He has been given 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).


         Plaintiff sues the State of Nebraska Child Protective Services (“CPS”), state and county officials, his attorney, and others involved in the judicial proceedings leading to the termination of Plaintiff's parental rights. Plaintiff alleges he was accused of abuse and his three children were seized from him on July 12, 2008, “when there was no course to do so.” (Filing No. 1 at CM/ECF pp. 4, 9.) On December 15, 2009, Plaintiff alleges Defendant Natalie G. Nelsen (“Nelsen”), the guardian ad litem, filed a petition for the termination of Plaintiff's parental rights, and his rights were ultimately terminated on June 21, 2010, by Defendant Judge Anne Paine (“Judge Paine”). (Id. at CM/ECF p. 9.)

         Plaintiff alleges that on September 15, 2018, he learned that his ex-wife (the mother of his children) and her family were friends with Defendants Bob and Daelene Rogers (“the Rogers”), the foster parents for Plaintiff's children, and that Defendants Dana D. Sears (“Sears”), Nelsen, Judge Paine, and Plaintiff's attorney, Kevin Urbom (“Urbom”), were all somehow personally tied to the Rogers. (Id. at CM/ECF pp. 9-10.) Plaintiff alleges the Defendants conspired to remove Plaintiff's children from him and award custody to the Rogers. (Id.) For relief, Plaintiff asks the court “to reinstate parental right and custody to my minor children as well as damages allowed to the max.” (Id. at CM/ECF p. 4.)

         Plaintiff attached various documents to his Complaint in support of his allegations including court documents, treatment records, and other records related to the proceedings involving the care and custody of his children. (See Id. at CM/ECF pp. 16-76.) Within those documents are two records-a partial copy of the state court order terminating Plaintiff's parental rights and a letter from Urbom to the Nebraska Counsel of Discipline-that bear a CM/ECF header from a prior case filed by Plaintiff in this court. (Id. at CM/ECF pp. 55-56, 59-61.) Taking judicial notice of its own files, [1] the court notes that Plaintiff has filed two previous actions challenging the state court proceedings related to the termination of his parental rights. See Deuerlein v. Nebraska DHHS, No. 4:11CV3065 (D. Neb.) (Filing No. 20, August 17, 2011 Memorandum and Order granting Defendant's motion to dismiss and dismissing action without prejudice pursuant to the Younger abstention doctrine); Deuerlein v. State of Nebraska et al., No. 8:15CV14 (D. Neb.) (Filing No. 8, April 10, 2015 Memorandum and Order dismissing Plaintiff's 42 U.S.C. § 1983 action with prejudice).


         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).


         Liberally construed, Plaintiff alleges Defendants conspired to wrongfully deprive him of his children in violation of his Fourteenth Amendment due process rights and 18 U.S.C. § 371. For the reasons discussed below, the court concludes Plaintiff's Complaint must be dismissed.

         A. No. Private Right of Action under 18 U.S.C. § 371

         As an initial matter, Plaintiff's reliance on 18 U.S.C. § 371 as a basis for this court's federal question jurisdiction is misplaced. (SeeFiling No. 1 at CM/ECF p. 3.) Section 371 makes it a crime for two or more persons to conspire to commit an offense against or to defraud the United States. 18 U.S.C. § 371. There is no private right of action under this section. Navarro v. Emery, No. CV 16-5033-JLV, 2017 WL 3738534, at *5 (D.S.D. Aug. 30, 2017) (citing Lamont v. Haig, 539 F.Supp. 552, 558 (D.S.D. 1982)). To the extent Plaintiff purports to assert claims based on 18 U.S.C. § 371, those claims are dismissed.

         B. Issue Preclusion and Jurisdiction

         The court finds that Plaintiff's action is precluded because the issue of the court's subject matter jurisdiction over Plaintiff's claims related to the judicial proceedings terminating his parental rights has been finally determined. “The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ‘res judicata.'” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “The principles of res judicata apply to questions of jurisdiction as well as to other issues.” Sandy Lake Band of ...

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