Shophar v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 2, 2020
• Docket: 19-3281
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 2, 2020 _________________________________ Christopher M. Wolpert Clerk of Court JOREL SHOPHAR; SASUAH SHOPHAR,

Plaintiffs - Appellants,

v. No. 19-3281 (D.C. No. 5:19-CV-04052-HLT-KGG) UNITED STATES OF AMERICA; (D. Kan.) KATHLEEN L. SLOAN; ERICA MILLER; KANSAS DEPARTMENT OF CHILDREN AND FAMILIES; STACEY BRAY; RICHARD KLEIN; MARC BERRY; KVC HEALTH; SAARAH AHMAD; KIMBERLY SMITH; PAUL LAFLEUR; TEENA WILKIE; NATHAN WILKIE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Jorel and Sasuah Shophar, husband and wife, appeal from the district court’s

order holding that the federal courts have no power to grant or restore Mr. Shophar’s

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. custody over two children he fathered with a woman named Krissy Gorski. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND & PROCEDURAL HISTORY

This is the second time Mr. Shophar has brought the matter of his and

Ms. Gorski’s children to our attention. See Shophar v. City of Olathe, 723 F. App’x

579 (10th Cir. 2018), cert. denied sub nom. Shophar v. Kansas, 140 S. Ct. 454

(2019). As we recounted in our prior disposition, Ms. Gorski left Mr. Shophar in

August 2015, taking their children with her. See id. at 580. Kansas authorities

investigated Mr. Shophar for domestic abuse, which he denied. See id. He in turn

accused Ms. Gorski of prostitution, drug use, and extortion. See id. Eventually,

Kansas placed the children in state custody. See id.

In November 2015 and April 2016, Mr. Shophar filed pro se lawsuits in the

United States District Court for the District of Kansas, naming as defendants various

persons, organizations, and governmental entities involved in these events. See id. at

580, 581. He attempted to allege numerous causes of action arising from the

defendants’ purported “support” of Ms. Gorski. Id. The district court dismissed both

lawsuits for failure to state a claim. See id. at 581. We affirmed. See id. at 580–82.

In May 2019, Mr. Shophar, now joined by Mrs. Shophar, filed a new lawsuit in

the United States District Court for the Northern District of Illinois. They captioned

their complaint “petition for emergency writ of habeas corpus” and invoked two

federal habeas statutes, 28 U.S.C. §§ 2241 and 2254. R. at 13 (capitalization

normalized; emphasis omitted). Claiming next-friend status to Mr. Shophar’s

2 children with Ms. Gorski, the Shophars argued that the children were “illegally being

held in the State of Kansas as wards of the State of Kansas.” Id. (capitalization

normalized; emphasis omitted). The Shophars named as defendants:

 the United States, which has allegedly failed to supervise the state and

local agencies that receive federal child-welfare funding;

 Johnson County, Kansas, where child-custody proceedings took place;

 Kathleen L. Sloan, judge of the Johnson County District Court, who

presided over the child-custody proceedings;

 the Kansas Department of Children and Families (DCF);

 Stacey Bray, a DCF caseworker;

 KVC Health, a child-advocacy group and DCF contractor;

 Saarah Ahmad, a KVC Health caseworker;

 Kimberly Smith, also a KVC Health caseworker;

 Erica Miller, a Johnson County assistant district attorney involved in the

child-custody proceedings;

 Richard Klein, the children’s guardian ad litem;

 Marc Berry, Ms. Gorski’s court-appointed attorney;

 Paul LaFleur, Mr. Shophar’s estranged brother who participated in the

custody proceedings;

 Teena Wilkie, a friend of Ms. Gorski who became a foster parent for the

children; and

3  Nathan Wilkie, Teena’s husband, who also became a foster parent for

the children.

The Shophars accused the defendants of violating the children’s Fourth and

Fourteenth Amendment rights, Mr. Shophar’s Fourth and Fourteenth Amendment

rights, several statutes relating to child welfare and civil rights, and certain federal

criminal statutes. In addition to habeas relief for the children, the Shophars sought

various forms of injunctive and declaratory relief, and damages from at least DCF,

KVC Health, LaFleur, and the Wilkies.

A little more than a month after the complaint was filed, the Northern District

of Illinois transferred the case to the District of Kansas, stating that “[t]he sole venue

for a 28 U.S.C. § 2241 habeas corpus petition is the judicial district where the

individuals whose release are being sought are located.” R. at 65.

Following transfer, eight of the fourteen defendants moved to dismiss. The

district court granted those motions and dismissed all defendants without prejudice,

including those who had yet to appear or move for dismissal. The district court held

that it must dismiss all claims brought by the Shophars purportedly on the children’s

behalf, because “a minor child cannot bring suit through a parent acting as next

friend if the parent is not represented by an attorney.” Meeker v. Kercher, 782 F.2d

153, 154 (10th Cir. 1986) (construing Fed. R. Civ. P. 17(c)). But cf. Adams ex rel.

D.J.W. v. Astrue, 659 F.3d 1297, 1301 (10th Cir. 2011) (holding that this rule does

not apply to parents of children appealing a denial of Social Security benefits). And

it said that it lacked jurisdiction over the claims brought by the parents themselves 4 for three reasons: (1) federal courts have no jurisdiction over child-custody disputes,

see 3E Charles Alan Wright et al., Federal Practice & Procedure § 3609.1, text

following n.32 (3d ed., Apr. 2020 update) (“[Despite recent cases cutting back on the

scope of the domestic relations exception,] child custody generally is a matter that

should be viewed as being at the heart of the domestic relations exception so that

only special circumstances should bring it within the purview of the jurisdiction of a

federal court.”); (2) the writ of habeas corpus does not extend to child-custody

determinations, see Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S.

502, 511 (1982) (“federal habeas has never been available to challenge parental

rights or child custody,” including the custody of foster or adoptive parents over a

child); and (3) the Rooker-Feldman doctrine prohibits federal courts (other than the

Supreme Court) from reviewing state-court decisions, such as the child-custody

decisions at issue here, see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 42

(1983).

II. ANALYSIS

We review a district court’s real-party-in-interest rulings for abuse of

discretion. See Esposito v. United States, 368 F.3d 1271, 1273 (10th Cir. 2004). We

review de novo a district court’s conclusion that it lacks subject-matter jurisdiction.

See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

In response to the district court’s decision prohibiting them from acting as next

friends to their children, the Shophars assert, without elaboration, that “[the

children’s] cases can be brought by their adult Next Friend when filing a Habeas

5 Corpus for State or Federal cases.” Aplt. Opening Br. at 9. “[S]tray sentences like

these are insufficient to present an argument.” Eizember v. Trammell, 803 F.3d 1129,

1141 (10th Cir. 2015). The Shophars fail to even give us a lead to authority that

might support their assertion. They therefore waive whatever challenges they may

have had to this basis for dismissal. See Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are

waived . . . .”).

The Shophars similarly fail to present an adequate argument that their claims

for declaratory or injunctive relief are not barred by the district court’s first two

grounds for holding that it lacked jurisdiction: the doctrines that habeas jurisdiction

does not extend to questions of child custody and that federal courts ordinarily lack

jurisdiction to decide child-custody questions. Their challenges to those rulings are

limited to an attack on the district court’s underlying premise, i.e., that this lawsuit is

fundamentally a child-custody dispute. See Aplt. Opening Br. at 4 (“The Action is

not a challenge to a State custody order . . . .”); id. at 6 (“The Court errs to document

the Appellants are looking to overturn a custody ruling.”); id. at 8 (“The Plaintiffs are

not [asking] the Federal Court of Kansas to ‘return to their custody.’” (brackets in

original)); id. at 13 (“This case i[s] not a ‘custody’ matter between a father and a

mother.”). This is so, they explain, because “[Mr. Shophar] has custody of his

children by DEFAULT of Krissy Gorski’s criminal conduct.” Id. at 6. The Shophars

appear to be saying that Gorski has forfeited custody by operation of law, so an order

6 returning the children to Mr. Shophar would not interfere with a state-court custody

order.

This attempt at clever lawyering fails. There is no reasonable way to read the

Shophars’ complaint (however obscure much of the language is) as anything but an

attempt to obtain custody of the children (and seek damages, which will be addressed

shortly). To the extent that the complaint seeks an injunction to give Mr. Shophar

custody of the children or seeks a declaration that he is entitled to that custody, the

district court lacked jurisdiction to resolve the merits.

There remain the damages claims in the complaint. But as best we can

decipher that pleading, all the alleged damages suffered by the Shophars resulted

from the court decisions regarding custody. In other words, an essential element of

their damages claims is that the state courts’ various custody decisions were in error.

And this court has recognized that a claim is barred by Rooker-Feldman when the

“claim has merit only if the state-court . . . order was unlawful.” Campbell v. City of

Spencer, 682 F.3d 1278, 1284 (10th Cir. 2012). The Shophars’ arguments against

application of Rooker-Feldman amount to little more than complaints that they have

been wronged by violations of federal law and a federal court must therefore afford

them relief. But the lower federal courts have no authority—that is, no jurisdiction—

to give relief from state-court judgments, whether the Shophars participated in the

state-court proceedings (and presumably lost) or were mere interested bystanders.

The district court’s application of Rooker-Feldman was correct.

7 Finally, if there is any respect in which the Shophars’ claims fall outside the

reasons for dismissal relied upon by the district court, they have not explained it to

us. When faced with a similar situation, where the plaintiff had “made her complaint

unintelligible by scattering and concealing in a morass of irrelevancies the few

allegations that matter,” we stated that “it hardly matters whether the district court

dismissed [plaintiff’s] complaint because it believed all of her claims were barred by

Rooker-Feldman or simply because it could not separate the wheat from the chaff.”

Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007) (internal quotation marks

omitted). Then, as here, “[i]t was not the district court’s job to stitch together

cognizable claims for relief from the wholly deficient pleading that [plaintiff] filed.

As we have frequently noted, we are loath to reverse a district court for refusing to do

the litigant’s job.” Id.

We conclude that the district court properly dismissed without prejudice all

claims for the reasons it expressed.

III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Harris L Hartz Circuit Judge