United States District Court, E.D. North Carolina, Eastern Division
ORDER AND MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
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.
ON IN FORMA PAUPERIS MOTION
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.
AND RECOMMENDATION ON FRIVOLITY REVIEW
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.
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.
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.
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.
APPLICABLE LEGAL STANDARDS
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
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
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 ...