Petition for Writ of Certiorari — Aimee Lewis, Petitioner v. Seventh Circuit Court, South Dakota Unified Judicial System, et al.

Winittb States Court of Sppeate

Jfor tlje CtgFjtl) Circuit

No. 19-1443

Aimee Lewis

Plaintiff - Appellant

v.

Seventh Circuit Court - South Dakota Unified Judicial System, individual and

official capacity; Rapid City Police Department, individual and official capacity;

Pennington County Sheriffs Department, individual and official capacity; Debra

Diana Watson, Watson Law Office, P.C. in individual and official capacity;

Joshua Gednalske, individual and official capacity; Dwayne Gednalske, individual

and official capacity; Janice Gednalske, individual and official capacity

Defendants - Appellees

Appeal from United States District Court

for the District of South Dakota - Rapid City

Submitted: January 29, 2020

Filed: February 12, 2020

[Unpublished]

Before SHEPHERD, STRAS, and KOBES, Circuit Judges.

PER CURIAM.

Appellate Case: 19-1443

Page: 1

Date Filed: 02/12/2020 Entry ID: 4880843

Aimee Lewis appeals the district court’s1 dismissal, under Younger v. Harris,

401 U.S. 37 (1971), of her 42 U.S.C. § 1983 complaint alleging violations of her

constitutional rights in a pending state court custody action. Upon review, we find

that the district court did not abuse its discretion in abstaining under Younger. See

Sprint Commc’ns, Inc, v. Jacobs, 571 U.S. 69,78 (2013) (Younger abstention applies

in state civil proceedings involving orders uniquely in furtherance of state courts’

ability to perform their judicial functions); Middlesex Cty. Ethics Comm, v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982) (Younger abstention requires that state

proceeding is judicial, implicates important state interests, and provides adequate

opportunity to raise constitutional challenges); see also Minn. Living Assistance, Inc,

v. Peterson, 899 F.3d 548, 551 (8th Cir. 2018) (abuse of discretion review of district

court’s decision to abstain under Younger; court abuses its discretion when it makes

error of law). We conclude that there is no merit to the contentions that Younger

abstention was unavailable because of Federal Rule of Civil Procedure 24 or because

this case involves an assertion of Lewis’s federal constitutional rights. Moore v.

Sims, 442 U.S. 415, 435 (1979) (approving application of Younger abstention in

child-welfare litigation in the face of federal constitutional claims); see Disability

Advocates, Inc, v. New York Coal, for Quality Assisted Living, Inc., 675 F.3d 149,

160 (2d Cir. 2012) (intervention does not provide a basis for jurisdiction and cannot

be used to circumvent Younger abstention).

The judgment is affirmed. See 8th Cir. R. 47B.

^he Honorable Jeffrey L. Viken, United States District Judge for the District

of South Dakota, adopting the report and recommendations of the Honorable Daneta

Wollmann, United States Magistrate Judge for the District of South Dakota.

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Appellate Case: 19-1443

Page: 2

Date Filed: 02/12/2020 Entry ID: 4880843

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Case 5:18-cv-05071-JLV Document 63 Filed 01/24/19 Page 1 of 1 PagelD #: 500

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

CIV. 18-5071-JLV

AIMEE LEWIS,

Plaintiff,

JUDGMENT

vs.

SEVENTH CIRCUIT COURT - SOUTH

DAKOTA UNIFIED JUDICIAL SYSTEM,

in its official and individual capacity;

RAPID CITY POLICE DEPARTMENT, in

its official and individual capacity;

PENNINGTON COUNTY SHERIFF’S

OFFICE, in its official and individual

capacity; DEBRA WATSON, in her

official and individual capacity;

WATSON LAW OFFICE, P.C., in its

official and individual capacity;

JOSHUA GEDNALSKE, in his official

and individual capacity; DWAYNE

GEDNALSKI, in his official and

individual capacity; and JANICE

GEDNALSKE, in her official and

individual capacity,

Defendants.

Consistent with the court’s order (Docket 62), it is

ORDERED, ADJUDGED AND DECREED that judgment is entered in favor

of defendants and against plaintiff.

Dated Januaiy 24, 2019.

BY THE COURT:

/s/ ‘Jeffrey L. Vikm

JEFFREY L. VIKEN

CHIEF JUDGE

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Case 5:18-CV-05071-JLV Document 42 Filed 11/28/18 Page 1 of 9 PagelD #: 357

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

5:18-CV-05071-JLV

AIMLEE LEWIS,

Plaintiff,

vs.

SEVENTH CIRCUIT COURT - SOUTH

DAKOTA UNIFIED JUDICIAL SYSTEM,

in its official and individual capacity;

RAPID CITY POLICE DEPARTMENT, in

its official and individual capacity;

PENNINGTON COUNTY SHERIFF’S

OFFICE, in its official and individual

capacity; DEBRA WATSON, in her

official and individual capacity;

WATSON LAW OFFICE, P.C., in its

official and individual capacity;

JOSHUA GEDNALSKE, in his official

and individual capacity; DWAYNE

GEDNALSKI, in his official and

individual capacity; and JANICE

GEDNALSKE, in her official and

individual capacity,

REPORT AND RECOMMENDATION

Defendants.

INTRODUCTION

Plaintiff Aimlee Lewis, appearing pro se, filed a complaint pursuant to

42 U.S.C. § 1983 against the defendants alleging numerous violations of her

civil rights. Ms. Lewis also asserts a Bivens claim.

(Docket 1). The case was

referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and

Chief Judge Jeffrey L. Viken’s Standing Order dated April 1, 2018.

22).

(Docket

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BACKGROUND INFORMATION

Ms. Lewis asserts both a § 1983 claim and a Bivens claim. In Ms. Lewis’

§ 1983 claim, she alleges her federal constitutional or statutory rights were

violated by the defendants in the following ways:

(1) A declaratory decree was violated. (2) the State of South Dakota

revoked my parental rights Svithout any’ preponderance of evidence.

(3) Violation of the Due Process Clause of the 14th Amendment. (4)

Violations of the First, Fourth, Fifth, Ninth and Fourteenth

Amendments. (5) 18 USC Ch. 224: Protection of Witnesses Section 3524[,] 28 U.S. Code 1738 A. (6) Section 35 of the Judiciary

Act of 1789,1 Stat. 73. 92.

(Docket 1 at p. 5). Ms. Lewis alleges the following facts in support of her

claims:

Joshua Gednalske, Janice Gednalske, and Dwayne Gednalske Removed and harbored my five-year-old son [B.] -I had full legal and

physical custody of [B.] as per a court order from the State of South

Dakota.

Watson Law Office, P.C. - Watson knew of the existing, legal court

order but ignored it. Debra Watson knowlingly [sic] motioned the

Seventh Circuit Court to uphold a temporary shelter order that was

invalid. Watson also requested supervised visitation claiming a

need without providing any evidence. The Rapid City Police

Department and Pennington County Sheriffs Department - I

contacted them multiple times requesting that they return my son

to me and therefore uphold the legal current, custody

court order from South Dakota but they refused.

Seventh Circuit Court - Was provided with documentation in a

reasonable amount of time for review, before the hearing, that was

Documents show

to take place on September 21st, 2018.

cancellation of temporaiy shelter order, a police report dispelling

allegations, aund South Dakota statutes violated. Without

preponderance of evidence, my parental rights were revoked. Pro

Se rights violated.

(Id. at p. 8).

Ms. Lewis’ claim for relief seeks $20,000,000 and asks that her

son be returned to her custody.

(Id. at p. 9). Ms. Lewis’ civil cover sheet and

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supplement to the Complaint asserts her claims are a “class action lawsuit.”

(Dockets 2 8s 18) (internal quotation marks and capitalization omitted).

Defendant Seventh Circuit Court-South Dakota Unified Judicial System

filed a motion to dismiss and supporting legal memorandum seeking dismissal

pursuant to Fed. R. Civ. P. 12(b).

(Dockets 15 & 16). It asserts dismissal

“based on Eleventh Amendment immunity, lack of subject matter jurisdiction

and . . . the Rooker-Feldman Doctrine, judicial immunity, and abstention.”

(Docket 15 at p. 1).

Defendant Pennington County Sheriffs Department

moved to dismiss the Complaint pursuant Fed. R. Civ. P. 12(b)(1) and 12(h)(3)

for lack of subject matter jurisdiction and Fed. R. Civ. P 12(b)(6) for failure to

state a claim upon for which relief can be granted (Docket 27). The

Pennington County Sheriffs Department likewise asserts that the RookerFeldman Doctrine divests this court of jurisdiction. Defendants Debra Watson

and Watson Law Office P.C. (collectively “Watson”) filed a motion to dismiss on

the grounds that Watson is neither a federal or state actor, therefore the

Complaint fails to state a claim upon which relief can be granted pursuant to

Fed. R. Civ. P 12(b)(6).

(Docket 29).

Defendants Joshua Gednalske, Dwayne

Gednalske and Jancie Gednalske, (collectively “Gednalske”) appearing pro se,

filed a motion to dismiss also seeking dismissal on the grounds of Fed. R. Civ.

P 12(b)(6), given that they are neither federal employees or agents, nor state or

local officials, and the Complaint fails to state a claim upon which relief can be

granted.

(Docket 32).

Defendant Rapid City Police Department (“RCPD”)

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moved to dismiss the Complaint because the RCPD is not an entity amenable

to suit; the Complaint fails to state a claim under Fed. R. Civ. P 12(b)(6); and

because the federal court lacks jurisdiction.

(Docket 35).

Ms. Lewis has filed various responsive pleadings. In large part, these

filings detail conversations between Ms. Lewis and Josh Gednalske’s attorney,

Debra Watson, as well as correspondence with the Seventh Judicial Circuit

Court Judge assigned to the pending child custody dispute between Ms. Lewis

and Josh Gednalske.

(Docket 18-1).

Ms. Lewis’ responsive pleadings and

attachments assert that the child custody dispute is not being properly

handled by the Seventh Judicial Circuit, the Rapid City Police Department, and

the Pennington County Sheriffs Office.

(Docket 21, Attachments 1-12). The

documents purport to show that the state court entered an Interim Custody

Order on September 21, 2018 with an evidentiary hearing for permanent

physical custody to be held on November 20, 2018.

(Docket 21-6).

It appears

that the custody hearing has been continued until November 30, 2018.

(Docket 39, 40).

ANALYSIS

The court must examine whether it should abstain from exercising

jurisdiction under the principles of federal-state comity articulated in Younger

v. Harris. 401 U.S. 37 (1971) (federal courts are to avoid interference with

ongoing state criminal proceedings if the state court provides an adequate

forum to present any federal constitutional challenges).

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“Under current

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-Younger v. Harris doctrine, federal courts should abstain from exercising their

jurisdiction if (1) there is an ongoing state proceeding, (2) that implicates

important state interests, and (3) that provides an adequate opportunity to

raise any relevant federal questions.” Tony Alamo Christian Ministries v.

Selig, 664 F.3d 1245, 1249 (8th Cir. 2012) (citing Plouffe v. Ligon, 606 F.3d

890, 894-95 (8th Cir. 2010)); see also Ohio Civil Rights Commission v. Dayton

Christian Schools. 477 U.S. 619, 627 (1986) (the principals of comity and

federalism underlying Younger are equally applicable “to civil proceedings in

which important state interests are involved.”); Silverman v. Silverman, 267

F.3d 788, 792 (8th Cir. 2001); Middlesex County Ethics Comm, v. Garden State

Bar Association. 457 U.S. 423, 432 (1982); Barzilav v. Barzilav, 536 F.3d 844,

850 (8th Cir. 2008) (“In order for a federal court to abstain under the Younger

doctrine there must be an ongoing state proceeding which implicates important

state interests and which affords an adequate opportunity to raise the federal

issues.”)

A district court’s decision to decline jurisdiction may be sua sponte. See

Bellotti v. Baird. 428 U.S. 132, 143 n. 10 (1976); Guillemard-Ginorio v.

Contreras-Gomez, 585 F.3d 508, 517-18 (1st Cir. 2009). Younger “requires a

federal court to abstain not only when and while the state trial court

proceedings [are] ongoing, but until the state [parties] exhaust [their] appellate

remedies.” Tony Alamo Christian Ministries, 664 F.3d at 1250.

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The District Court of Minnesota addressed the Younger doctrine in

Carlson v. County of Ramsey, Minnesota. Civ. No. 16-765, 2016 WL 3352196

(D. Minn. June 15, 2016). In Carlson, the non-custodial parent filed suit in

federal district court under 42 U.S.C. § 1983 challenging various state court

orders and actions associated with a protracted custody dispute. Id. at If 1.

Carlson claimed that the state court judges, custody evaluators and other

person involved with custody dispute violated his constitutional rights and

committed tortious actions. kL at ^[4. Carlson requested the federal district

court reverse the prior custody order, the prior contempt order, and the prior

restraining orders, as well as federal intervention in the ongoing custody

proceedings. IcL The court concluded that the Younger abstention doctrine

precluded the federal court from interfering with the pending child custody

proceedings. kL at f 6. In reaching this conclusion, the court relied on the

rationale set forth in the following well-settled case law:

The state proceedings involve “orders uniquely in furtherance of the

state courts’ ability to perform their judicial functions,” Sprint

Comms. Inc, v. Jacobs. 571 U.S. 69, 78 (2013), such as the custody,

contempt, and disclosure orders that “are integral to the State

court’s ability to perform its judicial function in ... custody

proceedings,” Falco v. Justices of the Matrimonial Parts of Sup. Ct.

of Suffolk Cty., 805 F.3d 425, 428 (2d Cir. 2015). They also implicate

important state interests in domestic relations, a traditional area of

state concern where federal abstention is particularly appropriate.

See Elk Grove Unified Sch. Dist. v. Newdow. 542 U.S. 1, 12 (2004)

(counseling against federal intervention in “the realm of domestic

relations” given that “the whole subject of the domestic relations of

husband and wife, parent and child, belongs to the laws of the States

and not to the laws of the United States”) (quotation and brackets

omitted), abrogated on other grounds by Lexmark Int'l, Inc, v. Static

Contest Components. Inc., 134 S. Ct. 1377 (2014); Mansell v.

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Mansell. 490 U.S. 581, 587 (1989) (“[DJomestic relations are

preeminently matters of state law.”); Moore v. Sims. 442 U.S. 415,

435 (1979) (“Family relations are a traditional area of state

concern.”); Tony Alamo Christian Ministries y. Selig. 664 F.3d 1245,

1249 (8th Cir. 2012) (“[TJhere is no doubt that state-court

proceedings regarding the welfare of children reflect an important

state interest that is plainly within the scope of [Younger].”); Liedel

v. Juvenile Ct. of Madison Ctv., Ala.. 891 F.2d 1542, 1546 (11th Cir.

1990) (“[UJnder Younger and Sims federal district courts may not

interfere with ongoing child custody proceedings.”); 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).

Id.

Ms. Lewis’ “case is precisely the type of case suited to Younger

abstention.” H.C. ex rel. Gordon v, Koppel, 203 F.3d 610, 613 (9th Cir. 2000).

Ms. Lewis seeks to enjoin the state court and the participants in an on-going

custody dispute from violating her due process rights. Abstention is

warranted in this case “because a federal court should not intervene where

such interference unduly inhibits the legitimate functioning of the . . . state’s

judicial system.” Oglala Sioux Tribe v. Fleming. 904 F.3d 603, 612 (8th Cir.

2018) (internal citation omitted). Therefore, as it pertains to Ms. Lewis’

equitable and injunctive relief that her son be returned to her custody, the

court must abstain pursuant to the Younger doctrine.

In additional to the equitable relief, Ms. Lewis included a demand for

$20,000,000 in actual and punitive damages for the “severe emotional and

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mental trauma (i.e. loss of parental bond/relationship, pain and suffering, loss

of wages, loss of home, loss of stability, etc). Most importantly, my son having

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to. deal with the fact that he is being kept away from his Mother (his Mom) - the

only parent he has ever really known.” (Docket 1, p. 9). The Complaint states

a claim for both equitable and monetary damages.

The Eighth Circuit addressed the propriety of dismissal of non-equitable

claims which are intertwined with those claims seeking injunctive relief in

Amerson v. State of Iowa. 94 F.3d 510 (8th Cir. 1996). Typically, abstention

principles only permit federal courts from staying the adjudication of nonequitable claims; not dismissing the action altogether.

Quackenbush v.

Allstate Ins. Co.. 517 U.S. 706 (1996). However, the court must abstain where

a plaintiffs incidental insertion of a § 1983 claim seeking damages “cannot be

awarded without first declaring unconstitutional a state court judgment on a

matter firmly committed to the states.” Amerson. 94 F.3d at 513. Addressing

Ms. Lewis’ § 1983 claims and Bivens claims would require a preliminary

declaration that the previous custody orders were invalid and would require

this court to interfere with the ongoing state court custody dispute in violation

of Younger and the Rooker-Feldman doctrine. “[I]t would be inappropriate for

a federal district court to address a claim that necessitates invalidating a state

court judgment on a matter committed to the states in order to grant the relief

sought.” Icl Therefore, the court must likewise abstain from Ms. Lewis’ nonequitable claims.

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CONCLUSION

It is therefore recommended that the court abstain from exercising

jurisdiction and dismiss plaintiffs complaint without prejudice. It is

further recommended that the defendants’ motions to dismiss (Docket 15,

27, 29, 32, and 35) be denied as moot.

NOTICE TO PARTIES

The parties have fourteen (14) days after service of this Report and

Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),

unless an extension of time for good cause is obtained.

Failure to file timely

objections will result in the waiver of the right to appeal questions of fact.

Objections must be timely and specific in order to require de novo review by the

District Court.

Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,

781 F.2d 665 (8th Cir. 1986).

Dated November 28, 2018.

BY THE COURT:

DANETA WOLLMANN

UNITED STATES MAGISTRATE JUDGE

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-1443

Aimee Lewis

Appellant

v.

Seventh Circuit Court - South Dakota Unified Judicial System, individual and official capacity,

et al.

Appellees

Appeal from U.S. District Court for the District of South Dakota - Rapid City

(5-18-cv-05071-JL V)

ORDER

The petition for rehearing by the panel is denied.

March 17, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Additional material

from this filing is

available in the

Clerk's Office.