United States District Court, D. South Dakota, Southern Division
ADAM GARY MARGLON, SR. Plaintiff,
CHILD PROTECTION SERVICES, VIRGENA WIESELER, BRENDA TIDBALL-ZELTINGER, BRIDGETTE DESTIGTEV, JACKIE SMIDT Defendants.
MEMORANDUM OPINION AND ORDER GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS, DENYING MOTION TO APPOINT COUNSEL
AND GRANTING LEAVE TO AMEND
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
November 26, 2018, plaintiff Adam Gary Marglon, Sr.
("Marglon"), appearing pro se, filed a
complaint ("Complaint") against Child Protection
Services, 700 Governor's Drive, Pierre, South Dakota
("CPS"); Virgena Wieseler; Brenda
Tidball-Zeltinger; Bridgette Destigtev; and Jackie Smidt
("Defendants"). Doc. 1. In the Complaint, Marglon
alleges that he and each of the Defendants are residents of
South Dakota and that defendant Destigtev is an employee of
Minnehaha County, South Dakota. Doc. 1.
Complaint, Marglon alleges "negligence" and that
his "4th Amendment rights were ignored as [his] four
children were taken from [him] and placed in a foster
family-----" Doc. 1, ¶ 1. Marglon also alleges that
defendant CPS was negligent in taking his children from him
and putting them in a dangerous environment. Doc. 1, ¶
IV. Marglon's one-year old child was allegedly
"mauled" by a dog while living in the foster
family's home and Marglon alleges that his children are
"always bruised, scratched, cut up and sick." Doc.
1, ¶¶ I., IV. In addition, Marglon alleges that
there are "many false allegations against [him]."
Doc. 1, ¶ I.
claim for relief, Marglon seeks full custody of his four
children, $75, 000 in real damages, and $840, 000 in punitive
damages. Doc. 1, ¶ VI.
before the Court are Marglon's Application to Proceed in
Forma Pauperis, Doc. 2, and Motion to Appoint Counsel, Doc.
initial matter, Marglon's asserted basis for federal
subject matter jurisdiction should be clarified.
"[F]ederal courts are courts of limited
jurisdiction." United States v. Afremov, 611
F.3d 970, 975 (8th Cir. 2010). A district court "has a
special obligation to consider whether it has subject matter
jurisdiction in every case." Hart v. United
States, 630 F.3d 1085, 1089 (8th Cir. 2011). "This
obligation includes the concomitant responsibility 'to
consider sua sponte [the court's subject matter]
jurisdiction . . . where . . . [the court] believe[s] that
jurisdiction may be lacking. '"Id. (quoting
Clark v. Baku, 593 F.3d 712, 714 (8th Cir. 2010)
subject matter jurisdiction of this Court may derive from the
citizenship of the parties, see 28 U.S.C. §
1332, a federal question posed by the underlying lawsuit,
see 28 U.S.C. § 1331, or special circumstances
covered by federal statute.
diversity jurisdiction does not exist in this
case, in construing the allegations made by
Marglon in his Complaint, the Court concludes that
Marglon's lawsuit poses a federal question.
alleges that his Fourth Amendment rights were violated when
his four children were taken from him and placed in a foster
family. Doc. 1, ¶ I. The Fourth Amendment protects
individuals against unreasonable searches and seizures by
government officials. See Camara v. Mun. Courtofthe City
and Cnty. of San Francisco, 387U.S. 523, 528 (1967).
"Fourth Amendment rights are personal rights which, like
some other constitutional rights, may not be vicariously
asserted." Alderman v. United States, 394 U.S.
165, 174 (1969). As such, the right to assert a Fourth
Amendment unlawful child-seizure claim belongs to the child,
the person being "seized." Southerland v. City
of N. Y., 680 F.3d 127, 143 (2d Cir. 2012).
the Eighth Circuit has not spoken on the issue, some courts
have held that a parent may have standing to assert their
children's Fourth Amendment rights on behalf of
their children. Southerland, 680 F.3d at 143;
Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir.
1997). While Marglon's Complaint alleges that his child
has suffered emotional and physical trauma from a dog attack
in the foster family's home and alleges that his children
are not being adequately cared for by the foster family,
Marglon does not assert in his Complaint, the rights of his
children to be free from unlawful seizure of their
person. Even if Marglon was asserting his
children's Fourth Amendment rights on their behalf,
Marglon is not an attorney and may not litigate, pro
se, his children's Fourth Amendment claims for them.
See Udoh v. Minn. Dep't of Human Servs., No.
16-3119, 2017WL4005606, at *2 (D.Minn. Sept. 12, 2007). For
the foregoing reasons, the Court does not find that
Marglon's claim arises under the Fourth Amendment.
being said, the Court finds, in liberally construing
Marglon's pro se Complaint, that the facts
pleaded by Marglon raise a substantive due process claim. The
Fourteenth Amendment's due process clause states that
"[n]o State . . . shall deprive any person of life,
liberty or property without due process of law." U.S.
Const, amend. XIV, § 1. Embodied in the due process
clause are both a substantive and procedural rights. See
Schmidt v. Des Moines Pub. Schs. , 655F.3d811, 815-19
(8th Cir. 2011). In order to state a procedural due process
claim, a plaintiff must prove that the defendant deprived him
of his protected liberty or property interest without due
process of law. Id. at 817. In the Complaint,
Marglon does not assert any facts to support a procedural due
process claim. The Court therefore construes Marglon's
claim as a substantive due process claim because he alleges
that his constitutional rights were violated when his four
children were taken from him and placed into a foster family.
Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005)
(stating that parents have a substantive due process right in
the care and custody of their children).
the [Fourteenth] Amendment is directed at the States, it can
be violated only by conduct that may be fairly characterized
as 'state action.'" Lugar v. Edmondson Oil
Co., 457 U.S. 922, 924 (1982). Title 42 U.S.C. §
provides a remedy for deprivations of rights secured by the
Constitution and laws of the United States when that
deprivation takes place "under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory . . . ." Lugar, 457 U.S. at 924.
Because the Court finds that the facts alleged in
Marglon's Complaint arise under the Fourteenth Amendment,
the Court liberally construes Marglon's Complaint to
allege a § 1983 claim.
§ 1983 claim, "almost by definition, ... arises
under federal law and will support federal-question
jurisdiction." Convent Corp: v. City of N. Little
Rock, Ark, 784 F.3d 479, 481 (8th Cir. 2015) (per
curiam) (quoting Grapentine v. Pawtucket Credit
Union, 755 F.3d 29, 32 n.l (1st Cir. 2014) (citation
omitted)). Accordingly, the Court concludes that it has
original jurisdiction over Marglon's § 1983 claim
and may exercise supplemental jurisdiction over Marglon's
state law negligence claim. 28 U.S.C. § 1367(a) (stating
that a Court has "supplemental jurisdiction over all
other claims that are so related to claims in the action
within such original jurisdiction that they form part of the
same case or controversy.").
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