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Marglon v. Child Protection Services

United States District Court, D. South Dakota, Southern Division

April 1, 2019

ADAM GARY MARGLON, SR. Plaintiff,
v.
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

         INTRODUCTION AND BACKGROUND

         On 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.

         In his 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.

         In his 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.

         Pending before the Court are Marglon's Application to Proceed in Forma Pauperis, Doc. 2, and Motion to Appoint Counsel, Doc. 3.

         ANALYSIS

         I. Jurisdiction

         As an 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) (per curiam)).

         The 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.

         Although diversity jurisdiction does not exist in this case[1], in construing the allegations made by Marglon in his Complaint, the Court concludes that Marglon's lawsuit poses a federal question.

         Marglon 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).

         Although 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.[2] 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.

         That 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).

         "Because 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. § 1983[3] 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.

         A § 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.").

         II. Application to ...


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