Oltremari v. Kansas Social & Rehabilitative Service

• Decision Date: 21 November 1994
• Docket Number: Civ. A. No. 94-2145-JWL.
• Citation: 871 F. Supp. 1331
• Parties: Lynn Christine OLTREMARI, by Susan McDANIEL, natural mother, Plaintiff, v. KANSAS SOCIAL & REHABILITATIVE SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Kansas

871 F. Supp. 1331

Lynn Christine OLTREMARI, by Susan McDANIEL, natural mother, Plaintiff, v. KANSAS SOCIAL & REHABILITATIVE SERVICE, et al., Defendants.

Civ. A. No. 94-2145-JWL.

United States District Court, D. Kansas.

November 21, 1994.

Susan McDaniel, pro se.

Barbara J. Steele, Olathe Area SRS Office, Olathe, KS, for Kansas Social & Rehabalitive Service.

Carl A. Gallagher, Office of the Atty. Gen., Kansas Judicial Center, Topeka, KS, for Johnson County Dist. Attorney's Office.

Christopher T. Fletcher, Overland Park, KS, for Ronald S. Oltremari, Colin Oltremari.

Gregory A. Dean, Overland Park, KS, for Thomas C. Owens.

Stephen M. Fletcher, pro se.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

The court referred to United States Magistrate Judge Gerald L. Rushfelt for report and recommendation eleven separate motions in the above captioned case. Those motions are as follows:

1. Motion for Dismissal of 92JC1481 (Doc. # 4) filed by plaintiff;

2. Motion for Restraining Order (Doc. # 5) filed by plaintiff;

3. Motion for Removal of C111627/92JC1481 from the District Court of Johnson County, Kansas (Doc. # 6) filed by plaintiff;

4. Motion to Dismiss (Doc. # 17) filed by defendant Thomas C. Owens;

5. Special Appearance and Motion to Dismiss Challenging Service/Process/Jurisdiction (Doc. # 19) filed by defendant Stephen M. Fletcher;

6. Special Appearance and Motion to Dismiss Challenging Jurisdiction (Doc. # 20) filed by defendant Ronald Oltremari, Sr.;

7. Special Appearance and Motion to Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (Doc. # 21) filed by defendant Colin Oltremari;

8. Special Appearance and Motion to Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (Doc. # 22) filed by defendant Ronald Oltremari, Jr. 9. Motion to Dismiss by Kansas Department of Social and Rehabilitative Services (SRS) (Doc. # 23);

10. Motion to Dismiss by defendant Johnson County District Attorney's Office (Doc. # 27);

11. Motion to Oppose Dismissal (Doc. # 31) filed by plaintiff.

On October 26, 1994, Judge Rushfelt submitted his Report and Recommendation to the district court. Pursuant to the provisions of Federal Rule of Civil Procedure 72(b), each party had the right within ten days after being served with a copy of the recommended disposition to serve and file specific, written objections to the proposed findings and recommendations. No such objections were filed by any party to the case.

The court has carefully reviewed Judge Rushfelt's extremely thorough report and recommendation, which runs to a total of 77 pages. Judge Rushfelt was thoughtful and detailed in his analysis. He relied on well established legal principles and applied them to this case with care. The court is aware of no reason why the report and recommendation should not be adopted in its entirety.

Although not called upon to do so by any party, the court has, nonetheless, specifically reviewed de novo the argument that the court should decline jurisdiction of this case under the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The court is persuaded that it should, in fact, so abstain on that basis in the interests of federalism. Moreover, the court is also persuaded upon its independent review that the complaint should be dismissed, sua sponte, on the basis of Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) ("Under Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney."). Because Susan McDaniel is not a lawyer, she may not represent her minor child without an attorney because the right to counsel belongs to the child and the parent is powerless to waive it. Osei-Afriyie v. Medical College, 937 F.2d 876, 883 (3rd Cir.1991).

For the foregoing reasons, then, the court ORDERS as follows:

1. The court overrules the motion for dismissal of 92JC1481 (Doc. # 4), the motion for restraining order (Doc. # 5), and the motion for removal of C111627/92JC1481 from the District Court of Johnson County, Kansas (Doc. # 6).

2. The court deems the motion to oppose dismissal (Doc. # 31) to be a response by plaintiff to the defense motions and finds it to be moot as a motion.

3. The court sustains those parts of the motions to dismiss (Docs. 17, 19 through 23 and 27) which are based on Younger abstention.

4. The court finds the balance of the motions to be moot.

5. In the alternative, were a court of appeals to determine that this court erred in abstaining under Younger, it orders the case to be dismissed, sua sponte, under Meeker v. Kercher and, alternatively, in the event that a court of appeals should determine the case was erroneously dismissed on that basis, it orders that the motions to dismiss which are documents No. 27, 21 and 22 are granted and, except as otherwise indicated, the motions to dismiss which are documents No. 17, 19, 20 and 23 are overruled.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

RUSHFELT, United States Magistrate Judge.

By various orders, the District Judge referred to the Magistrate Judge the following motions for report and recommendation:

1. Motion For Dismissal of 92JC1481 (doc. 4), filed by plaintiff;

2. Motion For Restraining Order (doc. 5), filed by plaintiff;

3. Motion For Removal of C111627/92JC1481 From The District Court of Johnson County, Kansas (doc. 6), filed by plaintiff;

4. Motion To Dismiss (doc. 17), filed by defendant Thomas C. Owens 5. Special Appearance and Motion To Dismiss Challenging Service/Process/Jurisdiction (doc. 19), filed by defendant Stephen M. Fletcher;

6. Special Appearance and Motion To Dismiss Challenging Jurisdiction (doc. 20), filed by defendant Ronald Oltremari, Sr.;

7. Special Appearance and Motion To Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (doc. 21), filed by defendant Colin Oltremari;

8. Special Appearance and Motion To Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (doc. 22), filed by defendant Ronald Oltremari, Jr.;

9. Motion To Dismiss By Kansas Department of Social and Rehabilitative Services (SRS) (doc. 23);

10. Motion To Dismiss By Defendant Johnson County District Attorney's Office (doc. 27); and

11. Motion To Oppose Dismissal (doc. 31), filed by plaintiff.¹

(See Orders of April 22, May 10, 12, 25, and 26, 1994.) The Magistrate Judge respectfully submits the following report and recommendation:

As a preliminary matter the court should determine whether and to what extent it has subject matter jurisdiction. Defendants raise that issue by their respective motions. "Federal courts are courts of limited jurisdiction. This court's jurisdiction is established by the Constitution and acts of Congress. The statutory jurisdiction of this court is set forth in 28 U.S.C. § 1330, et seq." Holloway v. Ohio, No. 93-4139-SAC, 1993 WL 302240, at *1 (D.Kan. July 27, 1993).

"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3). Section 1915(d) of Title 28 of the United States Code, furthermore, "authorizes federal courts to dismiss a pro se claim `if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.' A complaint `is frivolous where it lacks an arguable basis either in law or in fact.'" Holloway, 1993 WL 302240, at *2 n. 1. A complaint is frivolous within the meaning of § 1915(d), if its subject matter is outside the jurisdiction of the court. See id.

"A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." "If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte. Therefore, lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation."

Tuck v. United Servs. Automobile Ass'n, 859 F.2d 842, 844 (10th Cir.1988) (citations omitted), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989). "Since federal courts are courts of limited jurisdiction, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof." Penteco Corp. Ltd. Partnership—1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (citation omitted).

Plaintiff has not stated a basis for federal jurisdiction in her complaint. That fact alone, however, does not determine the issue. Plaintiff proceeds pro se. Courts entertain reasonable leniency towards such parties. "The Supreme Court requires that pro se complaints be accorded more leniency when reviewed in light of a motion to dismiss." Powell v. Kelley, 782 F.2d 1043, 1985 WL 14055, at *2 (6th Cir.1985) (Text on WESTLAW) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see also, Stillman v. Division of Hous. & Community Renewal, No. 88 CIV. 4135 (JFK), 1990 WL 52259, at *1 (S.D.N.Y. Apr. 18, 1990) (citing Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-77, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972)). "This requisite, coupled with the policy of liberal construction of the pleadings embodied in Fed. R.Civ.P. 8(f), demands that the Court look beyond the summary statement of the untutored plaintiff and examine whether the Court in fact has subject matter jurisdiction over the claim." Sears v. Equal Employment Opportunity Comm'n, No. CIV.A.862470, 1987 WL 15547, at *1 (D.D.C. Jan. 14, 1987); see also, Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir.1989) (construing plaintiff's claims as arising under the Federal Tort Claims Act, although...