Fisk

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

ASHLEY BRIANNE FISK, )

)

Plaintiff, )

)

v. ) Case No. CIV-25-260-JFH-GLJ

)

OKLAHOMA DEPARTMENT )

OF HUMAN SERVICES, )

)

Defendant. )

REPORT AND RECOMMENDATION

Before the Court is Defendant Oklahoma Department of Human Services’ (“DHS”)

Motion to Dismiss Plaintiff’s Amended Complaint and Brief in Support [Docket No. 29].

On September 5, 2026, the Court referred this matter to the undersigned Magistrate Judge

for all further proceedings in accordance with jurisdiction pursuant to 28 U.S.C. § 636.

Docket No. 10. For the reasons stated below, the undersigned Magistrate Judge

recommends that the motion be GRANTED.

BACKGROUND

This action arises out of a deprived-child proceeding and removal in Oklahoma state

court. Plaintiff Ashley Brianne Fisk is the mother of two Indian children, enrolled with the

Muscogee (Creek) Nation. Docket No. 8, at ¶ 1. In November 2024 removal proceedings

were initiated to remove the children on the basis that the grandmother’s home constituted

“unsuitable housing.” Docket No. 8, at ¶ 21. On August 14, 2025, Plaintiff filed an

Amended Complaint alleging claims against Mary Hosinger,1 Marcia McClean, and Jesse

Cook, all in their individual and official capacities, the Oklahoma Department of Human

Services (“DHS”), DHS of Okfuskee County, Oklahoma, “OKFOSTERS,” “subcontracted

CPAs 1-10,” and John/Jane Does 1-10, in their individual capacities. Docket No. 8.

Plaintiff maintains Defendants, collectively: (i) coerced her to present a child for

removal that was located in Nevada and to enter into a “safety plan” regarding said child,

(ii) failed to comply with the requirements of the Indian Child Welfare Act (“ICWA”) by

not providing a timely written notice, failing to “make and document ‘active efforts’ to

prevent [the] breakup of the Indian family before foster care placement,” disregarding

ICWA’s placement preferences, and not meeting the clear-and-convincing burden of proof

with qualified expert witness testimony, (iii) forged Plaintiff’s signature on an

individualized service plan, (iv) failed to secure timely hearings and orders for maintaining

the removal of the children for extended periods of times, and (v) denied kinship

applications that were submitted through OKFOSTERS but never processed by DHS.

Docket No. 2, at ¶¶ 21-34.

Plaintiff brings five causes of action against all Defendants: (1) violations of ICWA

and the Oklahoma Indian Child Welfare Act (Count I), (2) procedural due process

violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 (Count II), (3)

unreasonable seizure violations under the Fourth Amendment and 42 U.S.C. § 1983 (Count

1 The claims against Defendant Hosinger were dismissed without prejudice on April 6, 2026, after

Plaintiff failed to respond to Defendant Hosinger’s Motion to Dismiss and the undersigned

Magistrate Judge’s Show Cause Order. Docket Nos. 8, 45, 46, & 47.

III), (4) forgery and misrepresentation (Count IV), and (5) retaliation and coercion pursuant

to 42 U.S.C. § 1983 (Count V). Docket No. 2, at ¶¶ 35-45. Plaintiff requests the Court

declare that the Oklahoma state court lacked subject matter jurisdiction, invalidate the state

court orders and actions pursuant to the ICWA, 25 U.S.C. § 1914, enjoin further state

proceedings except to effectuate the transfer of proceedings to the Muscogee (Creek)

Nation District Court or another tribal court of competent jurisdiction, order the immediate

return of the children to Plaintiff or tribal jurisdiction, enjoin Defendants from relying on

forged individualized service plans and safety plans, and award compensatory and punitive

damages under 42 U.S.C. § 1983. Docket No. 2, at ¶¶ 46(A)-(F).

ANALYSIS

Defendant DHS moves to dismiss the Amended Complaint pursuant to 12(b)(1) and

(6) arguing: (i) Plaintiff’s claims are jurisdictionally barred pursuant to the Eleventh

Amendment, (ii) the Roooker-Feldman2 doctrine deprives the Court of subject matter

jurisdiction, (iii) the Court should abstain from exercising jurisdiction pursuant to the

Younger3 abstention, (iv) Plaintiff fails to comply with Fed. R. Civ. P. 8, and (v) Plaintiff

fails to state a claim against DHS. The undersigned Magistrate Judge finds the motion

should be granted and the Court should abstain under Younger for Plaintiff’s claims

pursuing declaratory and injunctive relief.

I. ROOKER-FELDMAN

2 See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Tr.

Co., 263 U.S. 413 (1923).

3 Younger v. Harris, 401 U.S. 37 (1971)

Federal courts are courts of limited jurisdiction and “are empowered to hear only

those cases authorized and defined in the Constitution which have been entrusted to them

under a jurisdictional grant by congress.” Henry v. Off. of Thrift Supervision, 43 F.3d 507,

511 (10th Cir. 1994). Pursuant to Fed. R. Civ. P. 12(b)(1) a party may move to dismiss for

want of subject matter jurisdiction. Such motions may “‘(1) facially attack the complaint’s

allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations

contained in the complaint by presenting evidence to challenge the factual basis upon

which subject matter jurisdiction rest.’” Merril Lynch Bus. Fin. Servs. Inc. v. Nudell, 363

F.3d 1072, 1074 (10th Cir. 1995) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013) (10th

Cir. 2003)). In the case of a facial attack, the Court must accept the allegations in the

Complaint as true. However, where a factual attack is presented the court “may not presume

the truthfulness of the factual allegations in the complaint, but may consider evidence to

resolve disputed jurisdictional facts.” SK Fin. SA v. La Plata Cnty. Bd. of Cnty. Comm’rs,

126 F.3d 1272, 1275 (10th Cir. 1997). Plaintiff, as the party invoking federal jurisdiction,

bears the burden of establishing subject matter jurisdiction. Steel Co v. Citizens for a Better

Env’t, 523 U.S. 83, 104 (1998).

“The Rooker-Feldman doctrine establishes, as a matter of subject-matter

jurisdiction, that only the United States Supreme Court has appellate authority to review a

state-court decision.” Merrill Lynch, 363 F.3d at 1074-75 (citing 28 U.S.C. § 1257(a)).

“Under the Rooker-Feldman doctrine, lower federal courts lack jurisdiction to hear claims

that are either (1) actually decided by a state court, or (2) ‘inextricably intertwined’ with a

prior state court judgment[.]” Dickerson v. Bates, 104 F. App’x. 699, 700 (10th Cir. 2004)

(internal citations omitted). The Tenth Circuit has instructed that “[t]he essential point is

that barred claims are those ‘complaining of injuries caused by state-court judgments.’ In

other words, an element of the claim must be that the state court wrongfully entered its

judgment.” Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012); see also

Taylor v. Fed. Nat. Mortg. Ass’n, 374 F.3d 529, 533 (7th Cir. 2004) (“While ‘inextricably

intertwined’ is a somewhat metaphysical concept, the ‘crucial point is whether the district

court is in essence being called upon to review the state-court decision.’”) (quoting Ritter

v. Ross, 992 F.2d 750, 754 (7th Cir. 1993)). The jurisdictional bar is claim specific, see In

re Flanders, 657 F. App’x 808, 814 (10th Cir. 2016) (unpublished), and a claim is not

barred solely because it seeks relief inconsistent with the state court judgment. Skinner v.

Switzer, 562 U.S. 521 (2011) (“If a federal plaintiff presents an independent claim, it is not

an impediment to the exercise of federal jurisdiction that the same or a related question as

earlier aired between the parties in state court.”).

The Rooker-Feldman doctrine applies only where the challenged order is final. See

D.A. Osguthorpe Fam. P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1230 n.7 (10th Cir. 2013)

(“the Rooker-Feldman doctrine is triggered only ‘after the state proceedings have ended.’”)

(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2013)). State

proceedings are final once the time to appeal the state judgment or final order has lapsed.

See Bear v. Patton, 451 F.3d 639, 642 (10th Cir. 2006). Here, as discussed in more detail

below, the underlying state proceedings were ongoing at the time Plaintiff filed this action.

Accordingly, the Rooker-Feldman doctrine is inapplicable here.

II. YOUNGER ABSTENTION

The Younger abstention doctrine requires a federal court to abstain from exercising

jurisdiction “where 1) there are ongoing state proceedings; 2) the state court offers an

adequate forum to hear the plaintiff’s claims from the federal lawsuit; and 3) the state

proceedings involve important state interests.” Reed v. Stitt, 2024 WL 5131892, at *2

(W.D. Okla. Dec. 16, 2024) (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar

Ass’n, 457 U.S. 423, 432 (1982); Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997)

(noting Younger “commands a federal court to abstain from exercising jurisdiction[.]”);

Chapman v. Barcus, 372 F. App’x 899, 901 (10th Cir. 2010) (“Tenth Circuit cases

consistently state that the application of Younger is mandatory.”).

Ongoing State Proceedings. The first condition “involves two subparts: the

proceedings must be ongoing and they must be the type of proceedings afforded Younger

deference.” Hunter v. Hirsig, 660 F. App’x 711, 715 (10th Cir. 2016) (emphasis in

original). Regarding the first subpart, as is the case under Rooker-Feldman, state

proceedings are final for the purposes of Younger abstention once the time for appeal has

lapsed. Id. (citing Bear, 451 F.3d at 642). Here, based on the allegations contained in the

Amended Complaint, the motion to dismiss, and Plaintiff’s response to said motion, it is

clear the underlying state proceedings are ongoing. Indeed, Plaintiff’s prayer for relief in

the Amended Complaint requests the court enjoin “further state proceedings” and that

Defendants be “[e]njoin[ed] . . . to provide ICWA-Compliant notice, active efforts,

placement preferences, [qualified expert witness] testimony, and recordkeeping in any

further proceedings.” Docket No. 8, at ¶¶ 46(B) & (D). Both statements indicate that the

proceedings are ongoing. Furthermore, in her response brief Plaintiff: (i) does not oppose

Defendant DHS’s assertion that proceedings are ongoing but instead argues that Younger

abstention is improper on other grounds, (ii) included photos of filings in the underlying

state proceedings which indicate that, although the case came on for adjudication on July

11, 2025, a subsequent adjudication hearing was set for August 11, 2025, four days after

this action was filed; and (iii) asserts “[a]t a subsequent state court Deprivation

Adjudication Trial in November 2025, Judge Maxey P. Riley made an explicit judicial

finding[.]”4 Docket No. 33, at pp. 7, 15 & 21 (emphasis added). Based on the foregoing,

the undersigned Magistrate Judge finds the state proceedings were ongoing at the time this

action was filed. Chapman v. Barcus, 372 F. App’x 899, 901 (10th Cir. 2010) (“[T]he state

custody matter was ongoing at the time Chapman filed this action, thus satisfying the first

Younger condition.”).

As to the second subpart, Younger applies in three categories of cases: “(1) ‘state

criminal prosecutions,’ (2) ‘civil enforcement proceedings,’ and (3) ‘civil proceedings

involving certain orders that are uniquely in furtherance of the state courts’ ability to

perform their judicial functions.’” Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC, 953

F.3d 660 (10th Cir. 2020) (quoting Spring Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 73

(2013)). “[T]he breadth of consensus among district courts and Courts of Appeals

4 “Motions to dismiss predicated on abstention doctrines constitute factual attacks on subject

matter jurisdiction.” Info. Dock Analytics LLC v. Coughlin, 2019 WL 1316107, at *1 (D.N.M.

Mar. 22, 2019) (citing Hill v.Whetsel, 2007 WL 963216, at *1 n.2 (W.D. Okla. Mar. 28, 2007)).

As such, the Court may look beyond the allegations in the Complaint. See SK Fin. SA, 126 F.3d at

1275.

demonstrates that direct challenges to child custody and support orders, and related

proceedings . . . fall into Sprint’s third category of exceptional cases.” Balderama v.

Bulman, 2023 WL 2728148, at * 10 (D.N.M. Mar. 31, 2023) (collecting cases); Reed, 2024

WL at *2-3 (finding claims that a state court judge violated due process rights through

state-court paternity proceedings to be the type of proceeding that is due deference under

Younger abstention.); Morkel v. Davis, 513 F. App’x 724, 728 (10th Cir. 2013) (“This court

and other circuits have consistently applied Younger to child custody cases.”) (collecting

cases). Thus, the case before the Court falls within this third category of exceptional cases.

Adequate State Forum. The second Younger requirement—that the state court be an

adequate forum for Plaintiff’s claims—is also met. “A plaintiff ‘typically has ‘an adequate

opportunity to raise federal claims in state court’ unless State law ‘clearly bars the

interposition of the federal statutory and constitutional claims.’” Pickup v. District Court

of Nowata Cnty, Okla., 2023 WL 1394896, at * 66 (N.D. Okla. Jan. 31, 2023) (quoting

Winn v. Cook, 945 F.3d 1253, 1258 (10th Cir. 2019). Plaintiff has not asserted that

Oklahoma state courts are an inadequate forum for asserting his claims, and “[w]hen . . . a

litigant has made no effort in state court to present his claims, a federal court should assume

that state procedures will afford an adequate remedy, in the absence of unambiguous

authority to the contrary.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 16 (1987); See Pickup,

2023 WL 1394896, at * 66 (“The Court has looked at the Oklahoma code to determine

whether any State statute bars the Plaintiff’s federal claims [for a declaratory judgment

under Rule 57 and damages under § 1983] and found none[.] . . . [T]he Court is not aware

of any problem with raising these claims in State Court. Absent any indication that the

Oklahoma Legislature prohibits its courts from hearing the Plaintiffs’ federal claims, the

Court concludes that the State courts offer an adequate forum for the Plaintiffs’ federal

claims.”).

Important State Interests. Lastly, Plaintiff’s claims involve important state interests.

“The whole subject of the domestic relations of husband and wife, parent and child, belongs

to the laws of the State and not to the laws of the United States.” Ankenbrandt v. Richards,

504 U.S. 689, 703 (1992); Morrow v. Winslow, 94 F.3d 1386, 1393 (10th Cir. 1996) (“It

cannot be gainsaid that adoption and child custody proceedings are an especially delicate

subject of state policy, the [Supreme] Court stating that ‘[f]amily relations are a traditional

area of state concern.’”) (quoting Moore v. Sims, 442 U.S. 415, 435 (1979)). Plaintiff’s

argument that this third prong fails because abstention does not apply to federal

constitutional claims such as ICWA is unpersuasive. Courts routinely have found Younger

abstention is required even if Plaintiff’s claims arise out of the ICWA. Yancey v. Bonner,

323 F. App’x 674, 676 (10th Cir. 2009) (“In Morrow . . . we held that the ICWA was not

‘intended to allow federal court interdiction of ongoing state custody disputes involving

Indian Children.’ Moreover, the majority specifically rejected the dissents argument that §

1914 of the ICWA authorizes federal court intervention in ongoing custody proceedings.”)

(quoting Morrow, 94 F.3d at 1395; Luther v. Okla. ex rel Okla. Dep’t of Hum. Servs., 2025

WL 1165282, at *6 (W.D. Okla. Apr. 2, 2025) (“Third, nothing in the record suggests that

Plaintiff lacks a meaningful opportunity to raise ICWA-related arguments in state court. .

. . For these reasons, the Court finds that abstention over Plaintiff’s ICWA claims is

warranted.”).

Having found all three elements met, the undersigned Magistrate Judge finds the

Court must abstain from exercising jurisdiction over Plaintiff’s ICWA claim (Count I) and

state law claims for “forgery and misrepresentation” (Count IV) and recommends these

counts be dismissed without prejudice.5 Goings v. Sumner Cnty. Dist. Att’ys Off., 571 F.

App’x 634, 639-40 (10th Cir. 2014 (“Younger-abstention dismissals have been treated as

roughly akin to jurisdictional dismissals and, accordingly, have been considered to be

without prejudice.”). As it pertains to Plaintiffs § 1983 claims, (Counts II, II, and V), it

appears these claims only seek money damages for relief as opposed to the declaratory or

injunctive relief. To the extent they may be construed as seeking declaratory or injunctive

relief, however, Younger requires dismissal of the claims without prejudice. However, as

to t these claims seek monetary damages “the appropriate course is ‘staying proceedings

on the federal damages claim until the state proceeding is final.’” Graff v. Aberdeen

Enterprizes, II, Inc., 65 F.4th 500, 523 (10th Cir. 2023); See Smith v. Lake, 2016 WL

4690396, at *2 (E.D. Okla. Sept. 6, 2016) (“[T]he court declines to entertain plaintiff’s

claims for declaratory and injunctive relief. Plaintiff, however, also seeks monetary

damages. Such claims do not ‘fall within the purview of Younger abstention.’”) (quoting

Morkel, 514 F. App’x at 727.

III. 28 U.S.C. § 1915

5 Because the undersigned Magistrate Judge finds the Court must abstain from exercising

jurisdiction, the undersigned Magistrate Judge declines to address Defendants’ remaining

arguments regarding Plaintiff’s ability to state a claim or whether he properly effectuated service.

Because Plaintiff is proceeding in forma pauperis, the undersigned Magistrate Judge

proceeds, pursuant to 28 U.S.C. § 1915, to screen the remainder of Plaintiff’s claims prior

to this case being stayed. Section 1915 of the United States Code, Title 28, states as

follows:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-

(A) the allegation of poverty is untrue; or

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune

from such relief.

28 U.S.C. § 1915(e)(2).

A Plaintiff is not required to make out a perfect case in their complaint. Rather,

“[i]t suffices for [her] to state claims that are rationally related to the existing law and the

credible factual allegations.” Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264,

267 (10th Cir. 1994). Notwithstanding these provisions, courts may dismiss an action,

pursuant to § 1915, when “on the face of the complaint it clearly appears that the action is

frivolous or malicious.” Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991). “The term

‘frivolous’ refers to ‘the inarguable legal conclusion’ and ‘the fanciful factual allegation.’”

Id. (citations omitted). Moreover, a “trial court may dismiss a claim sua sponte without

notice where the claimant cannot possibly win relief.” McKinney v. State of Okla. Dep’t of

Hum. Servs., Shawnee Okla., 925 F.2d 363, 364 (10th Cir. 1991).

A court shall dismiss a case at any time if it determines that the action fails to state

a claim on 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)(i) and (ii). Indeed, the Tenth Circuit

has instructed that a district court is required to dismiss an IFP claim that is frivolous,

malicious, fails to state a claim on which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief. Trujillo v. Williams, 465 F.3d 1210,

1216 n.5 (10th Cir. 2006).

Eleventh Amendment Immunity. Federal courts are courts of limited jurisdiction and

“are empowered to hear only those cases authorized and defined in the Constitution which

have been entrusted to them under a jurisdictional grant by congress.” Henry v. Off. of

Thrift Supervision, 43 F.3d at 511. The Eleventh Amendment provides:

[t]he Judicial power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens of Subjects of any Foreign

State.

U.S. Const. amend XI. The Eleventh Amendment has been interpreted such that States are

immune to suit in Federal Court “unless they consent to it in unequivocal terms or unless

Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to

abrogate immunity.” Green v. Mansour, 474 U.S. 64, 68 (1985). “This jurisdictional bar

applies regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984) (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933)).

“‘This prohibition encompasses suits against states agencies [and] [s]uits against state

officials acting in their official capacities.’” Collins v. Daniels, 916 F.3d 1302, 1315 (10th

Cir. 2019) (alterations in original) (quoting Green, Muscogee (Creek) Nation v. Okla. Tax

Comm’n, 611 F.3d 1222, 1227 (10th Cir. 2010)). There is, however, a “narrow exception”

to Eleventh Amendment immunity, set forth under Ex parte Young, 209 U.S. 123 (1908),

for suits against state officials where prospective injunctive relief is sought and the named

state official “actually ‘ha[s] the power to perform the act required[.]’” Luther, 2025 WL

1165282, at *4 (quoting Klein v. Univ. of Kan. Med. Ctr., 975 F. Supp. 1408, 1417 (D.

Kan. 1997)). The Ex parte Young exception applies where four requirements are met:

(1) the plaintiff[] [is] suing state officials, rather than the state itself; (2) the

plaintiff[] ha[s] alleged a non-frivolous violation of federal law; (3) the

plaintiff[] seek[s] prospective equitable relief, rather than retroactive

monetary relief from the state treasury; and (4) the suit does not implicate

“special sovereignty interests.”

Lewis v. New Mexico Dep’t of Health, 261 F.3d 970, 975 (10th Cir. 2001) (citing Elephant

Butte Irrig. Dist. of New Mexico v. Dep’t of Interior, 160 F.3d 602, 609 (10th Cir. 1998)).

Because only Plaintiff’s claims for damages remain, the Ex parte Young exception

does not apply. Indeed, to the extent Plaintiff’s claims could be said to have sought

prospective relief, such claims were dismissed pursuant to Younger abstention

Undoubtedly, DHS is an arm of the state and the claims against it must be dismissed

pursuant to Eleventh Amendment immunity. See K.A. v. Barnes, 134 F.4th 1067, 1073

(10th Cir. 2025) (noting Colorado DHS is an arm of the state).6 Likewise, Plaintiff’s claims

6 The undersigned Magistrate Judge notes that Plaintiff cites K.A. v. Barnes, 134 F.4th 1067 (10th

Cir. 2025) in her response briefing indicating, as it pertains to ICWA, that the Tenth Circuit

“emphasized that ‘a qualified expert witness must be capable of testifying to prevailing social and

cultural standards of the child’s tribe[.]’” Docket No. 33, at p. 10. Notably, however, the case does

not contain the quoted language, nor does it address the qualified expert requirement of ICWA.

This does not appear to be a one-off error as Plaintiff’s response brief contains a reference to at

least one other quote that does not exist, See Docket No. 33, at p. 8 (citing Miss. Band of Choctaw

Indians v. Holyfield, 490 U.S. 30 (1989)), and cites to cases maintaining they stand for one

proposition, when in fact they do not. See Docket No. 33, at p. 10 (citing State ex rel Juv. Dep’t v.

Charles, 810 P.2d 393 asserting it “holds that [a] temporal delay between allegation and removal

is inconsistent with [an] emergency[,]” despite the case not contemplating as such). The

against Marcia McClean and Jesse Cook in their official capacities as personnel of DHS

must be dismissed because Eleventh Amendment immunity “encompasses . . . [s]uits

against state officials acting in their official capacities[,]” Collins, 916 F.3d at 1315.

Therefore, the Court does not have subject-matter jurisdiction over Plaintiff’s §

1983 claims against Defendants DHS, DHS of Okfuskee County, Oklahoma7, Marcia

McLean in her official capacity, and Jesee Cook in his/her official capacity, and the

undersigned Magistrate Judge recommends they be dismissed without prejudice. Luther,

2025 WL 1165282, at *4 (“[W]hile the Supreme Court has created a ‘narrow exception’ to

the Eleventh Amendment immunity for suits against state officials, . . . that exception is

limited to suits seeking prospective injunctive relief, . . . and only where the named state

official actually has the power to perform the act required[.] . . . Plaintiff’s constitutional

claims fail as a matter of law to the extent they are asserted against DHS and its employees

in their official capacities for monetary damages or for retroactive relief they lack authority

to provide.”) (emphasis added) (internal quotations and citations omitted).

Count III: Fourth Amendment Violations. The Fourth Amendment protects persons

from “unreasonable . . . seizures.” U.S. Const. Amend. IV. “A seizure occurs ‘within the

meaning of the Fourth Amendment when a reasonable person would believe that he or she

undersigned Magistrate Judge cautions Plaintiff that Fed. R. Civ. P. 11(b)(2) applies to her despite

her pro se status and continued failures to comply with Rule 11 can result in sanctions.

7 As noted by DHS in its motion to dismiss, in addition to DHS, Plaintiff’s Amended Complaint

names the Oklahoma Department of Human Services of Okfuskee County, Oklahoma, as a

Defendant in this action. However, the DHS office of Okfuskee County is not a distinct entity from

DHS. As such, to the extent DHS of Okfuskee County is named as a Defendant in this action, the

claims against it should be dismissed as well.

is not free to leave.’” Halley v. Huckaby, 902 F.3d 1136, 1145 (10th Cir. 2018) (quoting

Florida v. Royer, 460 U.S. 494, 514 (1983)).

Plaintiff alleges her children were unreasonably seized in violation of the Fourth

Amendment. However, Fourth Amendment rights are personal and cannot be vicariously

asserted. Rakas v. Ill., 439 U.S. 129, 133-34 (1978). “Undoubtedly, parents may assert their

children’s Fourth Amendment rights on behalf of their children.” Hollingsowrth v. Hill,

110 F.3d 733, 738 (10th Cir. 1997) (emphasis in original). But “[i]n this circuit, . . . ‘under

Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent

acting as next friend if the parent is not represented by an attorney.’” Adams ex rel. D.J.W.

v. Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011) (quoting Meeker v. Kercher, 782 F.2d 153,

154 (10th Cir. 1986)). Here, Plaintiff is proceeding pro se on behalf of herself, alleging

vicarious violations of the Fourth Amendment. Such a claim cannot stand against any of

the Defendants. As such, the undersigned Magistrate Judge recommends Count II of the

Amended Complaint be dismissed, without prejudice, against all Defendants.

Rule 8. Lastly, the undersigned Magistrate Judge finds Plaintiff’s remaining § 1983

claims for monetary damages run afoul of Rule 8 which requires a complaint to contain “a

short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.

R. Civ. P. 8. The complaint must “make clear exactly who is alleged to have done what to

whom, to provide each individual with fair notice as to the basis of the claims against him

or her, as distinguished from collective allegations against the state.” Robbins v. Okla., 519

F.3d 1242, 1250 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

Thus, through the complaint Plaintiff “must explain what each defendant did to him or her;

when the defendant did it; how the defendant’s actions harmed him or her; and, what

specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2006). Where a Complaint fails to

accomplish these basic requirements, “a district court may dismiss the action sua sponte

for failure to comply with Rule 8.” Rodriguez v. Nationwide Homes, Inc., 765 F. App’x

782, 785 (10th Cir. 2018) (italics added) (unpublished). Because Plaintiff is proceeding pro

se, her “pleadings are to be construed liberally and held to a less stringent standard than

formal pleadings drafted by lawyers.” Garret v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005). “This [C]ourt, however, will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s

behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).

The Amended Complaint here alleges: (a) DHS is a state child welfare agency, (b)

“OKFOSTERS” is a DHS affiliated entity or vendor/platform that works with DHS to

process kinship/foster placement applications, and (c) Marcia McClean and Jesse Cook are

DHS personnel (either by employment or contract) who were involved in the removal of

Plaintiff’s children. Docket No. 8, at ¶¶ 8-10. Outside of these allegations, the Amended

Complaint refers only to the collective “Defendants” and does not delineate exactly who is

alleged to have done what to whom. See Robbins, 519 F.3d at 1250. Such allegations are

insufficient to provide Defendants fair notice as to the basis of Plaintiff’s claims—

particularly so in the context of § 1983 claims. See Id. Given Plaintiff’s allegations against

the collective “Defendants,” the undersigned Magistrate Judge finds the Amended

Complaint runs afoul of the pleading requirements of Rule 8 and recommends the

Complaint be dismissed in its entirety. Luther, 2025 WL 1165282, at *3 (“[A]lthough

plaintiff sues seven individual DHS employees, the complaint refers to them collectively

throughout and rarely, if ever, attributes specific conduct to any one of them. . . . This

approach falls short of even the basic notice-pleading requirements set forth in Rule 8.”);

Robbins, 519 F.3d at 1250.

IV. LEAVE TO AMEND

In summary the undersigned Magistrate Judge finds and recommends that pursuant

to Younger abstention, Counts I and IV be dismissed in their entirety and Counts II, III,

and IV be dismissed to the extent Plaintiff seeks declaratory and injunctive relief, all

without prejudice. As to Plaintiff’s § 1983 claims for monetary damages (Counts II, III,

and IV), the undersigned Magistrate judge finds and recommends: (i) Count III be

dismissed, without prejudice, as to all Defendants because Plaintiff cannot vicariously

assert a violation of the Fourth Amendment and cannot proceed on behalf of the children

as a pro se litigant, (ii) all remaining claims against Defendants DHS, DHS of Okfuskee,

Oklahoma, Marcia McClean in her official capacity, and Jesse Cook in his official capacity,

be dismissed for want of subject matter jurisdiction pursuant to the Eleventh Amendment,

and (iii) Counts II and IV be dismissed for failing to comply with Fed. R. Civ. P. 8.

Rule 15(a)(2) provides that leave to amend should be freely given “when justice so

requires.” Fed. R. Civ. P. 15(a)(2). However, such leave to amend need not be granted

where such amendment is futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). Here, the

undersigned Magistrate Judge finds leave to amend would be futile with respect to Counts

I, III, and IV as alleged against all Defendants, and Counts II and V as alleged against

Defendants DHS, DHS of Okfuskee County, Oklahoma, Marcia McClean in her official

capacity, and Jesse Cook in his official capacity, and to the extent Plaintiff seeks

declaratory and/or injunctive relief.

However, insofar as Counts II and V seek monetary damages pursuant to § 1983

and are alleged against “OKFOSTERS,” Marcia McClean in her individual capacity, Jesse

Cook in his individual capacity, and unidentified CPAs and John/Jane Does, the

undersigned Magistrate Judge recommends Plaintiff be provided a limited opportunity to

amend her complaint, following the stay of proceedings in this action pursuant to Younger.

Particularly the undersigned Magistrate Judge finds Plaintiff should not be permitted

amend her complaint to add new parties or new claims, but only to add factual allegations

to bolster Counts II and V as to the above defendants and to “make clear exactly who is

alleged to have done what to whom, to prove each individual with fair notice as to the basis

of the claims against him or her, as distinguished from collective allegations.” Robbins,

519 F.3d at 1250.

CONCLUSION

Accordingly, the undersigned Magistrate Judge hereby RECOMMENDS:

1. Defendant DHS’ Motion to Dismiss Plaintiff’s Amended Complaint and Brief In

Support [Docket No. 20] be GRANTED and, pursuant to Younger, Counts I and IV be

dismissed wholesale, without prejudice, and Counts II, III, and IV be dismissed

without prejudice to the extent they may be construed as seeking declaratory or

injunctive relief;

2. All remaining claims against Defendants DHS, DHS Okfuskee County, Oklahoma,

Marcia McClean, in her official capacity, and Jesse Cook, in his official capacity, be

dismissed, for want of subject matter jurisdiction pursuant to the Eleventh

Amendment;

3. Count III be dismissed as Plaintiff cannot vicariously assert her children’s Fourth

Amendment rights;

4. Counts II and IV be dismissed for failing to state a claim;

5. This action be stayed pursuant to Younger abstention;

6. Plaintiff be directed to submit a Joint Status Report within ninety days of any Order

adopting this Report and Recommendation or within thirty days upon the conclusion

of the underlying action, whichever occurs first; and

7. Plaintiff be provided, once the stay is lifted, a limited opportunity to amend her

complaint to add factual allegations to further bolster Counts II and V and comply with

Fed. R. Civ. P. 8 by further delineating who is alleged to have done what to whom.

The undersigned Magistrate Judge recommend that any such amendment be due

twenty-one days after the stay is lifted and contain, as an exhibit, a red-lined copy

reflecting any and all changes made to the Amended Complaint. Should no amendment

be timely filed, the undersigned Magistrate Judge recommends that judgment be

entered against Plaintiff.

Any objections to this Report and Recommendation must be filed within fourteen days, or

by May 18, 2026. See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any objections and

response shall each be limited to 10 pages and a reply is permitted only with leave of court

upon a showing of good cause.

IT IS SO ORDERED this 4th day of May 2026.

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE