# Marr v. Russell

> District Court, E.D. Missouri · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10240220

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** April 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BROOKE MARR, )
)
Plaintiff, )
)
v. ) No. 4:23-cv-1708-JMB
)
MARY R. RUSSELL, )
)
Defendant. )

OPINION, MEMORANDUM AND ORDER

This matter comes before the Court for review of self-represented Plaintiff Brooke
Marr’s civil Complaint and motion for leave to proceed in forma pauperis. (ECF No. 2). The
Court has reviewed the motion, and has determined to grant it. See 28 U.S.C. § 1915(a)(1).
Additionally, for the reasons discussed below, the Court will dismiss this action, without
prejudice, pursuant to 28 U.S.C. § 1915(e)(2)(B).
Legal Standard on Initial Review
This Court is required to review a complaint filed in forma pauperis, and must dismiss it
if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
An action is frivolous if it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490
U.S. 319, 328 (1989). An action fails to state a claim upon which relief may be granted if it does
not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff “pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
District courts must liberally construe complaints filed by laypeople. Estelle v. Gamble,
429 U.S. 97, 106 (1976). This means that “if the essence of an allegation is discernible,” courts
should “construe the complaint in a way that permits the layperson’s claim to be considered
within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)

(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). However, even pro se complaints
must allege facts that, if true, state a claim for relief as a matter of law. Martin v. Aubuchon, 623
F.2d 1282, 1286 (8th Cir. 1980). District courts are not required to assume facts that are not
alleged, Stone, 364 F.3d at 914-15, or interpret procedural rules so as to excuse mistakes by pro
se litigants. See McNeil v. United States, 508 U.S. 106, 113 (1993).
The Complaint
Plaintiff filed the Complaint against the Honorable Mary R. Russell, Chief Justice of the
Missouri Supreme Court. Plaintiff sues Chief Justice Russell in her “Official Capacity as
Council Chair for the Judicial Council of Missouri.” (ECF No. 1 at 1). In the section of the form
Complaint provided to identify “federal officials or federal agencies involved,” Plaintiff writes:

“Judicial Council of Missouri.” Id. at 3.
Plaintiff identifies the “Judicial Council of Missouri” as “the entity responsible for
establishing policies governing the state’s courts,” and she also states it “holds the pivotal
responsibility of shaping policies within the jurisdiction’s judicial system.” (ECF No. 1-3 at 2).
However, Plaintiff provides no facts to show the entity actually exists, and independent review
revealed no record of such an entity. Public information available on the Missouri Courts’
website includes a list of boards, commissions, and committees tasked with advising “the
Supreme Court and others in carrying out the Court’s administrative responsibilities,” but none
are named “Judicial Council of Missouri.” See https://www.courts.mo.gov.
The Complaint consists of a completed Court-provided form (ECF No. 1), and a
typewritten attachment of Plaintiff’s own creation. (ECF No. 1-3). Plaintiff invokes this Court’s
federal question jurisdiction, and avers she brings claims pursuant to 42 U.S.C. § 1983 and
Monell v. N.Y. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Plaintiff’s allegations are generalized and repetitive, but her claims are discernible. In the
Statement of Claim section of the Complaint form, Plaintiff writes:
On November 15, 2023, my First and Fourteenth Amendment rights under the
United States Constitution were violated. These violations occurred within the
state court system, specifically in St. Louis County, resulting in severe emotional
and psychological distress. The consequences of these violations have been far-
reaching, as I’ve been unjustly deprived of my fundamental parental rights, which
include the ability to provide care, custody, and control of my offspring. These
injustices stem from unconstitutional judicial policies that have led to the
statewide deprivation of federally protected parental rights.

(ECF No. 1 at 5). In the attachment, Plaintiff repeatedly asserts she is subject to a November 15,
2023 state court order that deprives her of “actual parenting time” in the absence of a finding that
she is unfit. It appears Plaintiff’s reference to being denied “actual parenting time” means she
was granted supervised visitation, and the State exercises some form of control over her visits.
Plaintiff writes:
The crux of my argument is that “actual parenting time” happens (if at all) when
parents have the actual ability to exercise (a) care, custody, and control of their
minor offspring, and to exercise, (b) private familial speech with their offspring.
But here, the State wrongfully dispossessed me of these fundamental rights —
despite the fact that I’ve never been found ‘unfit’ — i.e., no findings of (i) abuse,
(ii) neglect, (iii) abandonment, or (iv) endangerment.

. . .

The stark reality is that, when the courts issue “supervised visitation” orders, (and
“no-contact” orders), the noncustodial parents enjoy zero parental rights. Where
courts deprive my 14th Amendment right to care, custody, and control of my
offspring, as well as my 1st Amendment right to private familial speech with my
offspring, it effectively severs the parent-offspring relationship.
Id. at 5-6. Plaintiff repeatedly asserts that child custody orders that deny actual parenting time to
fit parents violate the First and Fourteenth Amendments, and U.S. Supreme Court precedent.
Plaintiff lists Chief Justice Russell’s name in the caption of the complaint form and the
typewritten attachment, but does not refer to Chief Justice Russell in setting forth her claims and

supporting allegations. Instead, Plaintiff uses either singular or plural generic terminology. For
example, Plaintiff alleges that “Defendant” has failed “to train judges in this state that ‘fit’
parents are entitled to ‘actual parenting time,’” and elsewhere she alleges that “Defendants”
maintain a policy of not training judges. Id. at 8, 27. Plaintiff claims “many judges” are ignorant
of the law because they never received training, and “the Defendants” should train them. Id. at
16. She describes the standards she believes should be used.
As relief, Plaintiff asks this Court to grant her declaratory and monetary relief, and to
issue an order “requiring the JUDICIAL COUNCIL to train its judicial officers in this state,
first, that parenting is a fundamental right, and, second, that courts in this state may not issue
physical custody orders that grant no ‘actual parenting time,’ absent findings of “unfitness.” Id.

at 29 (emphasis in original).
Discussion
Plaintiff states she brings claims pursuant to 42 U.S.C. § 1983, which provides a “broad
remedy for violations of federally protected civil rights.” Monell, 436 U.S. at 685. To state a
claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the violation of a right secured by
the Constitution or laws of the United States, and (2) that the alleged deprivation of that right
was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48
(1988). “Liability under § 1983 requires a causal link to, and direct responsibility for, the
alleged deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990).
In the Complaint, Plaintiff does not allege facts that would demonstrate Chief Justice
Russell’s personal responsibility for any deprivation of her rights. Plaintiff does not allege that
Chief Justice Russell was personally involved in any aspect of her child custody case, and she
does not allege specific facts explaining what Chief Justice Russell did or failed to do – with

respect to a policy, custom, training, or something else – to violate her rights. Plaintiff does
attempt to establish Chief Justice Russell’s personal responsibility by identifying her as the
chairperson of an entity called “Judicial Council of Missouri” or “Judicial Council,” and
suggesting she acted (or failed to act) through that entity. Indeed, a § 1983 plaintiff can establish
a defendant’s personal involvement by showing the defendant was involved in creating,
applying, or interpreting a policy that gave rise to unconstitutional conditions, or that the
defendant failed to train or supervise an offending employee. See Jackson v. Nixon, 747 F.3d
537, 543 (8th Cir. 2014). Here, however, Plaintiff has not established that the entity she
references is real, so the suggestion that Chief Justice Russell acted through it is frivolous. In
sum, the Court finds that Plaintiff has failed to state a plausible § 1983 claim against Chief

Justice Russell. See Madewell, 909 F.2d at 1208; see also Martin v. Sargent, 780 F.2d 1334,
1338 (8th Cir. 1985) (to be cognizable under § 1983, a claim must allege that the defendant was
personally involved in or directly responsible for the incidents that deprived the plaintiff of his
constitutional rights).
Plaintiff also states she brings claims pursuant to Monell, 436 U.S. 658, in which the
Supreme Court recognized that a municipality or other local governing body can be sued under §
1983. To prevail on this type of claim, the plaintiff must establish the governmental entity’s
liability for the alleged conduct. Kelly v. City of Omaha, Neb., 813 F.3d 1070, 1075 (8th Cir.
2016). Liability may attach if the constitutional violation “resulted from (1) an official municipal
policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise.”
Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018). In this case, Plaintiff does not sue a
municipality or other local governmental entity, and she does not allege that a constitutional
violation resulted from a municipal policy, custom, or failure to train or supervise. As a result,

the Complaint fails to state a Monell claim. See Monell, 436 U.S. 658.
In addition, it appears Plaintiff filed this action, at least in part, to seek relief on behalf of
parents across the state of Missouri. Plaintiff lacks standing to assert claims on behalf of other
people. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (A party “generally must assert his own
legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.”). Also, there is no indication that Plaintiff is a licensed attorney. While federal law
authorizes Plaintiff to plead and conduct her own case personally, 28 U.S.C. § 1654, she may not
represent others in federal court. See Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 830 (7th Cir.
1986) (a person who is not licensed to practice law may not represent another individual in
federal court).

Finally, to the extent Plaintiff can be understood to ask this Court to review and reject a
Missouri state court child custody order, this Court would likely lack subject matter jurisdiction.
Federal courts generally lack jurisdiction to modify orders relating to child custody, see Kahn v.
Kahn, 21 F.3d 859, 861 (8th Cir. 1994), and with the exception of federal habeas corpus, the
United States Supreme Court is the only federal court with jurisdiction to review and correct
state court judgments. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482
& n. 16 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923).
Having found the Complaint is frivolous and fails to state a claim upon which relief may
be granted, the Court will dismiss this action at this time, without prejudice, under 28 U.S.C. §
1915(e)(2)(B).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's motion seeking leave to commence this
action without prepaying fees or costs (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. A
separate order of dismissal will be entered herewith.
IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
good faith.
Dated this 25" day of April, 2024.

UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10240220. Public record. Not legal advice.