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Kurek v. Burroughs

United States District Court, E.D. North Carolina, Eastern Division

November 16, 2017

JOY KUREK, Plaintiff,
v.
ANDREW BURROUGHS, Defendant.

          ORDER AND MEMORANDUM AND RECOMMENDATION

          James E. Gates, United States Magistrate Judge.

         This pro se case is before the court on the motion (D.E. 1) by plaintiff Joy Kurek (“plaintiff”) to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915(a)(1) and for the associated frivolity review pursuant to 28 U.S.C. § 1915(e)(2)(B). The motion and frivolity review were referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). See unnumbered 8 Sept. 2017 Public D.E. For the reasons stated below, the court will allow plaintiff's motion to proceed in forma pauperis, but recommend that this action be dismissed as frivolous pursuant to the Rooker-Feldman doctrine, Younger abstention doctrine, and domestic relations abstention doctrine.

         ORDER ON IN FORMA PAUPERIS MOTION

         Based on the information in the motion to proceed in forma pauperis, the court finds that plaintiff has adequately demonstrated her inability to prepay the required court costs. Her motion (D.E. 1) to proceed in forma pauperis is therefore ALLOWED.[1]

         MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW

         I. BACKGROUND

         Plaintiff's claims arise from child custody disputes between her and defendant Andrew Burroughs (“defendant”), who is the father of plaintiff's daughter. See generally Compl. (D.E. 1-1). Defendant was awarded sole custody of their daughter pursuant to a final order entered 17 November 2015 (“final order”) in Cattaraugus County Family Court in Olean, New York. Final Order (D.E. 1-4) 6-7. The final order provided that plaintiff be permitted visitation with their daughter in New York State to be supervised by defendant, or as the parties may otherwise agree. Id. at 7.

         Plaintiff contends that communication between her and defendant relating to their daughter deteriorated to the point that she ended up blocking defendant's emails to her. Compl. ¶ III.C.4. Despite plaintiff petitioning for the child support case to be transferred from New York to North Carolina, her requests have been ignored. Id. § III.C.6. Plaintiff's daughter has repeatedly stated that she wishes to live with plaintiff and plaintiff's husband, but has been forced to live in New York with defendant. Id. § III.C.13, 14. Based on what plaintiff's daughter told plaintiff about her time in New York with defendant, plaintiff contacted Child Protective Services. Id. § III.C.16.

         In August of 2017, defendant lied to the New York state family court about plaintiff breaking an agreement to return their daughter to New York, even though no agreement had been reached between them. Id. § III.C.7, 9. As a result of defendant's perjury, plaintiff was directed to appear in family court in New York on 12 September 2017. Id. § III.C.9. When plaintiff contacted the New York court to advise that a forecasted hurricane might impede her ability to be in New York, she was told that she should not have moved from New York and it was not their problem if she missed court. Id. § III.C.17. Because of the repeated legal harassment against plaintiff by the New York courts and defendant, plaintiff is unable to move on with her life. Id. § III.C.10.

         As relief, plaintiff asks this court to enjoin the proceedings in the New York state family court and prevent that court from requiring plaintiff's in-person attendance in New York. Id. § V. She also requests that she be permitted to provide electronic testimony for the New York family court hearing and for future court dates thereafter. Id. Finally, plaintiff seeks temporary sole custody of her daughter. Id.

         II. APPLICABLE LEGAL STANDARDS

         The court must dismiss a case brought in forma pauperis if it determines that the action is frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(i), (ii); see Denton v. Hernandez, 504 U.S. 25, 27 (1992). A complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court is not permitted to dismiss a claim as frivolous merely because the supporting allegations seem unlikely to have occurred. Denton, 504 U.S. at 33.

         The failure to state a claim standard is the same one under Fed.R.Civ.P. 12(b)(6). See De'Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003) (“The standards for reviewing a dismissal under § 1915(e)(2)(B)(ii) are the same as those for reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6).”). In considering a Rule 12(b)(6) motion, a court may consider documents attached to the complaint so long as the documents are integral to the complaint and authentic. See Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012); Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). “Moreover, a federal court may consider matters of public record such as documents from a prior state court proceeding in conjunction with a Rule 12(b)(6) motion.” Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009); see also Papasan v. Allain, 478 U.S. 265, 268 n. 1 (1986).

         Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the complaint must “‘state[ ] a plausible claim for relief' that ‘permit[s] the court to infer more than the mere possibility of misconduct' based upon ‘its judicial experience and common sense.'” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions, ” “a formulaic recitation of the elements of a cause of ...


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