S.F.M. v. Phyllis Gilmore in Her Official Capacity Dep't for Children & Families

S.F.M., a minor, by and through [his] grandmother and next friend,TERRI E. BAKER, Plaintiff, v. PHYLLIS GILMORE in her official capacityas Secretary of the Kansas Department forChildren and Families, et al., Defendants.

Case No. 17-2574

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

March 29, 2018

MEMORANDUM AND ORDER

Plaintiff S.F.M. is a minor. He is the three-year-old grandson of his custodian grandmother and next friend, Terri E. Baker. Plaintiff has been adjudicated by a Kansas court to be a Child in Need of Care ("CINC") and has a CINC proceeding still open. Plaintiff has not been vaccinated. He filed this case when the Kansas Department for Children and Families Agency ("DCF") and KVC Behavioral Healthcare ("KVC") sent a letter indicating their intent to immunize plaintiff unless one of his parents took specific actions to show that an exemption to immunization applied. One of those actions was to provide a statement that plaintiff "is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations." Before plaintiff's biological mother provided this statement, plaintiff filed suit against defendant Phyllis Gilmore, in her official capacity as Secretary for DCF; Susan Mosier, in her official capacity as Secretary for the Kansas Department of Health and Environment ("KDHE"); KVC; Saint Francis Community Services, Inc. ("SFCS"); John Doe 1-10; Ryan McCormick, the biological father of plaintiff; and Maggie McCormick, the biological mother of plaintiff. Two parties have since moved to intervene as additional plaintiffs: Jonathan Schumm and Allison Schumm. The case is before the court on a number of motions:

• Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 3);

• Plaintiff's Motion for Summary Judgment on Count 1 (Doc. 11);

• Plaintiff's Motion for Summary Judgment on Counts 2-5 (Doc. 17);

• Motion to Intervene (Doc. 21) filed by Jonathan and Allison Schumm;

• Defendant Phyllis Gilmore's Motion to Dismiss (Doc. 23);

• Motion to Dismiss of Defendant Saint Francis Community Services, Inc. (Doc. 32);

• Defendant KVC Behavioral Healthcare, Inc.'s Motion to Dismiss (Doc. 35); and

• Motion to Dismiss of Defendant Susan Mosier in her Official Capacity as Secretary for the Kansas Department of Health and Environment (Doc. 37).

Because defendants' motions raise jurisdictional defenses, the court stayed briefing on plaintiff's motions and the motion to intervene until after considering the merits of defendants' motions. The arguments in nearly all of defendants' motions overlap to some degree. Most—if not all—defendants argue that this case is not ripe for disposition. Most argue that the court should abstain based on Younger v. Harris, 401 U.S. 37, 45 (1971). Most raise immunity and other grounds for abstention, as well. The court first addresses whether, in light of the pending CINC proceeding, the court should abstain under Younger.

I. Factual Background

Pending in state court is a CINC proceeding. By letter dated September 22, 2017, a case manager for KVC notified the McCormicks that DCF intended to authorize immunizations for plaintiff unless the McCormicks exercised one of three options. The case manager represented that DCF or KVC could consent to the immunizations because plaintiff was placed in DCF custody. She advised that within fourteen days, a parent could (1) provide a written statement by a licensed physician; (2) provide a written statement by one parent or guardian that "the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations"; or (3) "file with the Court [the parent's] written objection to [the] child being immunized by DCF and its contractor."

Within fourteen days, Maggie McCormick, through her attorney, sent a written statement indicating that plaintiff and Maggie are adherents of a religious denomination whose religious teachings are opposed to such tests or inoculations.

Since that time, no one at DCF or KVC has attempted to immunize plaintiff. In support of the motion to dismiss filed by Phillis Gilmore, an attorney for KVC—Daniel Gronniger—filed an affidavit. Mr. Gronniger represents that neither a court nor DCF have directed KVC to arrange or obtain any vaccinations for S.F.M. Mr. Gronniger further represents that Maggie McCormick's letter "halted KVC's tentative plans to arrange vaccinations for S.F.M.," and that "KVC has no intentions of moving forward with arrangements for vaccinations of S.F.M. unless or until KVC receives an order or other instruction to do so from the Johnson County, Kansas District Court (i.e., in the [CINC] proceedings) or notification that objections to the vaccinations on behalf of S.F.M. have been withdrawn." (Doc. 36-1, at 1-2.)

II. Standard of Review

In their motions, defendants raise several matters that implicate this court's subject matter jurisdiction. The existence of subject matter jurisdiction is a threshold issue. See Laughlin v. KmartCorp., 50 F.3d 871, 873 (10th Cir. 1995). Federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so. See Castaneda v. Immigration & Naturalization Serv., 23 F.3d 1576, 1580 (10th Cir. 1994). This court's jurisdiction is established by the United States Constitution and by acts of Congress. See United States v. Hardage, 58 F.3d 569, 574 (10th Cir. 1995).

A party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Penteco Corp. v. Union Gas Sys., 929 F.2d 1519, 1521 (10th Cir. 1991).

III. Discussion

Under the Younger abstention doctrine—which is based on principles of federalism, comity, and respect for state functions—a federal court cannot interfere with state court proceedings, absent extraordinary circumstances. 401 U.S. at 43-45. Specifically, "[a] federal court must abstain from exercising jurisdiction when: (1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings 'involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.'" Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (citation omitted). Once the court finds that these conditions have been met, the court has no discretion to exercise jurisdiction; rather, Younger abstention is mandatory absent extraordinary circumstances. Crown Point I, LLC v. Intermountain Rural Elec Ass'n, 319 F.3d 1211, 1215 (10th Cir. 2003). Even a showing of irreparable injury, the standard for obtaining an injunction, is not sufficient cause for federal interference in a state case in light of "the fundamental policy" against federal interference. Younger, 401 U.S. at 46. Instead,plaintiffs must also show "bad faith, harassment, or [some] other unusual circumstance[ ] that would call for equitable relief." Id. at 54.

When Younger abstention applies, a court must dismiss without prejudice any actions for injunctive or declaratory relief and stay proceedings seeking damages. Chapman v. Barcus, 372 F. App'x 899, 902 (10th Cir. 2010); Buck v. Myers, 244 F. App'x 193, 198 (10th Cir. 2007). Finally, a court may raise the application of Younger sua sponte. Sanchez v. Wells Fargo Bank, N.A., 307 F. App'x 155, 157 (10th Cir. 2009). To the extent that not all defendants raised the issue, therefore, the court may still consider it as to all of them.

1. Ongoing State Proceeding

First, the court examines whether there is an ongoing state proceeding that is of the type that Younger is intended to address. See Sprint Commc'ns v. Jacobs, 134 S. Ct. 584, 591 (2013) (citing New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989)). Three types of proceedings meet this definition: (1) ongoing state criminal prosecutions; (2) certain "civil enforcement proceedings" and (3) pending "civil proceedings involving certain orders . . . uniquely in furtherance of the state courts' ability to perform their judicial functions." Id. The relevant question in this case is whether the CINC proceeding qualifies as a civil enforcement proceeding. Cases in this category have generally been "akin to a criminal prosecution" in "important respects." Id. (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975); Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). A state actor often initiates the action, characteristically to sanction the federal plaintiff, and the action commonly involves investigations. Id. at 592.

The court concludes that the CINC proceeding does qualify as a civil enforcement proceeding. Other judges in the District of Kansas have found that Younger applies when a CINC proceeding is pending. See, e.g., Schwab v. Kansas, No. 16-4033-DDC, 2017 WL 2831508, at *7-8 (D. Kan. June30, 2017); Alferez v. Chronister, 41 F. Supp. 2d 1238, 1239-40 (D. Kan. 1999). Here, the state has initiated the action. Although plaintiff is not the person to be "sanctioned" in the CINC proceeding, the proceeding is directed at him and his parents. The proceeding focuses on the interests and well-being of plaintiff, as well as the well-being of other children. This satisfies the first requirement for Younger abstention.

2. Adequacy of State Forum

A state proceeding provides an adequate forum if the plaintiff has an "opportunity to raise and have timely decided by a competent state tribunal" the claims in the federal complaint. Middlesex, 457 U.S. at 435-37 (citation omitted). Generally, "when constitutional challenges impact state proceedings, as they do...