Miller v. McCalla

• Court: District Court, D. Kansas
• Decided: August 22, 2025
• Docket: 2:25-cv-02180
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

MEGHANN MILLER,

Plaintiff,

v. Case No. 25-CV-2180-KHV-TJJ

RANDY MCCALLA, ET AL.,

Defendants.

ORDER

Plaintiff, proceeding pro se, has filed an Emergency Motion to Lift Stay of Service and for Immediate Issuance of Summons (ECF No. 23). Plaintiff requests the Court issue summons and direct the U.S. Marshals Service to effect service of process on all named Defendants pursuant to Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d). As the Court has not yet completed its pre-service review of Complaint, Plaintiff’s motion is denied without prejudice. On June 24, 2025, the Court entered an order granting Plaintiff in forma pauperis status but withholding service of summons and the Complaint.1 The Court withheld service of the Complaint pending the Court’s review of the pursuant to 28 U.S.C. § 1915(e)(2) because it appeared this Court may lack subject matter jurisdiction as Plaintiff’s allegations and causes of action arise from her state-court child custody proceedings. Plaintiff now requests the Complaint and summons be served prior to the Court’s review pursuant to 28 U.S.C. §1915(e)(2). However, the Court is not required to order service of Plaintiff’s

1 See Order (ECF No. 22). Complaint prior to the Court’s screening pursuant to 28 U.S.C. § 1915(e)(2).2 The screening of Plaintiff’s Complaint may occur at any time, and dismissals “are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering.”3 In fact, 28 U.S.C. § 1915(e)(2) requires the “court shall dismiss the case at any time”—including before service of the summons and complaint—if it determines the action 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.4 The Court has not completed its pre-service review of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff’s Complaint asserts thirteen causes of action against four Defendants, including the guardian ad litem and therapists appointed for her child in the state court proceedings in Johnson County, Kansas District Court (Case No. 17CV03002). Additionally, as Plaintiff states in her motion, she has filed at least 71 exhibits and sworn declarations, spanning several hundreds of pages. Until the Court completes its review of Plaintiff’s Complaint in this case, the issuance of summons for service upon the named Defendants is premature.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Lift Stay of Service and for Immediate Issuance of Summons (ECF No. 23) is DENIED without prejudice. IT IS SO ORDERED.

2 See Fuller v. Myers, 123 F. App’x 365, 368 (10th Cir. 2005) (noting that the district courts may dismiss an action without service of process through the screening process of § 1915(e)). 3 Neitzke v. Williams, 490 U.S. 319, 324 (1989). 4 28 U.S.C. § 1915(e)(2) (emphasis added); See Buchheit v. Green, No. 12-4038-CM-KGS, 2012 WL 1673917, at *1 (D. Kan. May 14, 2012), aff’d, 705 F.3d 1157 (10th Cir. 2012); Sclicher v. Hendrick, 982 F.2d 529 (10th Cir. 1992) (finding district court properly dismissed plaintiff’s complaint before service of process) (“Although the statute provides a mechanism for the impoverished plaintiff to obtain ready access to the court, § 1915(d) also provides for prompt dismissal of abusive lawsuits”). Dated August 22, 2025, in Kansas City, Kansas.

et ba Teresa J. Fames U.S. Magistrate Judge