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Mischler v. Stevens

United States District Court, E.D. Kentucky, Pikeville

April 8, 2014

AMY JERRINE MISCHLER, Plaintiff,
v.
JONAH LEE STEVENS, et al., Defendants.

MEMORANDUM OPINION AND ORDER

THOMAS W. PHILLIPS, District Judge.

Plaintiff has filed a complaint against Defendants alleging that she has been denied access to a fair and impartial court system by the Kentucky state courts. Currently pending before the Court are various motions to dismiss and/or for summary judgment filed by the Defendants.

I. Background

Jonah Stevens and Amy Mischler were married on July 30, 1991. Two children were born of this union, a son born in 1994 and a son born in 1999. The couple separated May 30, 2001, and Jonah Stevens filed for divorce. The parties entered into a separation agreement which provided that both parents would share joint legal custody. The agreement was subsequently incorporated into the divorce decree.

On July 22, 2002, Mischler and Stevens took out cross Domestic Violence Petitions in Pike Circuit Court. The two petitions were consolidated pursuant to Kentucky Civil Rule of Procedure 42.01 and Pike Family Court Local Rule 7. Mischler v. Stevens became 02-D-00202-001 (hereinafter "001") and Stevens v. Mischler became 02-D-00202-002 (hereinafter ("002"). On July 25, 2002, Judge Larry Thompson, Pike Family Court Judge, recused himself from both petitions. Judge Thompson requested that Judge Julie Paxton, a Family Court Judge from Floyd County, serve as Special Judge in the domestic violence cases.

Judge Paxton held a joint hearing on September 9, 2002 and dismissed both petitions. She also vacated a temporary custody order that had removed the children from both parents' homes while the petitions were pending. The record shows that Mischler did not object to Judge Thompson's recusal; she did not appeal the temporary custody order; she did not object to Judge Paxton's assumption of the case; and she did not appeal the dismissal of Petition 001 or Petition 002.

On April 14, 2006, Stevens filed another Domestic Violence Petition against Mischler (02-D-00202-003, hereinafter "003") alleging that she was endangering the welfare of their children. Judge Thompson recused on April 24, 2006, and an order appointing Judge Paxton was signed by Chief Regional Judge John David Caudill. A Domestic Violence Order was issued against Mischler on May 24, 2006. Temporary custody of the children was granted to Stevens. Mischler argued that issuance of the Domestic Violence Order was erroneous and Special Judge John David Preston ultimately agreed. Judge Preston vacated the Domestic Violence Order on December 12, 2006. The record shows that Mischler did not object to the dismissal of the Domestic Violence Order or Judge Preston's appointment and she did not appeal the temporary custody order.

A custody dispute was also ongoing in the parties' divorce proceeding. A custody hearing occurred in the divorce proceeding in Pike Circuit Court before Senior Judge Lewis D. Nicholls. Judge Nicholls interviewed the children, appointed a Guardian ad Litem, required psychological reports, and held a lengthy custody hearing during which Mischler and Stevens were permitted to introduce evidence. Judge Nicholls awarded permanent and full custody to Stevens in an order issued August 6, 2009. The record shows that Mischler did not appeal the custody order.

On April 30, 2008, Mischler filed a 42 U.S.C. § 1983 action against Justice Joseph Lambert, Judge Lewis Nicholls, Judge Larry Thompson, the Kentucky Judicial Conduct Commission, and the Kentucky Bar Association in the United States District Court, Western District of Kentucky at Louisville, Case No. 3:08-CV-231-M. Mischler alleged that the Defendants purposely and intentionally deprived her of the right to redress through the courts based on the 2002 domestic violence cases and her divorce action in Pike County. The District Court granted the Defendants' motions to dismiss and dismissed the case in its entirety. The record shows that Mischler did not appeal.

On August 5, 2011, Mischler filed a petition for Writ of Mandamus against former Pike Circuit Clerk David Deskins in the Kentucky Court of Appeals, Case No. 2011-CA-1424. She alleged, among other things, that Deskins has permitted judges who were not appropriately appointed to file documents in the domestic violence cases. On August 30, 2011, Mischler filed a Petition for Writ of Mandamus against Judge Larry Thompson in the Kentucky Court of Appeals in Case No. 2011-CA-1586. Mischler's primary claim was that Judge Thompson improperly recused and permitted Judge Julie Paxton to serve as Special Judge in her domestic violence case. The Court of Appeals denied both Petitions for Mandamus. The record shows that Mischler appealed the denial to the Kentucky Supreme Court, Case No. 2012-SC-030, where the case is currently pending.

Plaintiff has filed the instant Complaint alleging that the Kentucky judicial system is irreparably broken and thus requires intervention by the federal courts. Plaintiff's Complaint is a collateral attack on the Kentucky state court domestic relations proceedings and contains a long and rambling list of allegations that purport to detail a series of misdeeds allegedly aimed at depriving Plaintiff of her federal constitutional rights through a conspiracy involving numerous officials of the Kentucky courts. Plaintiff seeks to nullify the results of her domestic relations proceedings by seeking a declaration that the rulings made in the Kentucky state court proceedings are void ab initio.

II. Standard of Review

Defendants have moved for dismissal of plaintiff's Complaint pursuant to Rule 12(b)(6) and Rule 56, Federal Rules of Civil Procedure. A motion to dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure, requires the court to construe the complaint in the light most favorable to the plaintiff, accept all the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of her claims that would entitle her to relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) cert. denied, 498 U.S. 867 (1990). The court may not grant such a motion to dismiss based upon a disbelief of a complaint's factual allegations. Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990); Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (noting that courts should not weigh evidence or evaluate the credibility of witnesses). The court must liberally construe the complaint in favor of the party opposing the motion. Id. However, the complaint must articulate more than a bare assertion of legal conclusions. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988). "[The] complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Id. (citations omitted).

If, in a Rule 12(b)(6) motion to dismiss, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Wysocki v. IBM, 607 F.3d 1102, 1104 (6th Cir. 2010). Here, the parties have submitted matters outside the pleadings in support of their positions. Consequently, the court will consider the parties' arguments under Rule 56(c), which provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 220 (6th Cir. 1996).

III. Discussion

A. Claims Against Circuit Court Judges Thompson, Wells, and Preston

Plaintiff alleges in her Complaint that Judges Thompson, Wells, and Preston either filed orders in her case without jurisdiction or committed procedural errors that allowed other judges to do so. Plaintiff's allegations are based on her assertion that a judge cannot preside over a case outside his or her district without a formal order of appointment. Plaintiff sought an emergency protective order against her former husband in Case 001. KRS 403.725(6) allows any Circuit Judge to issue an emergency protective order and requires the same judge to conduct the subsequent hearing:

When the elected, appointed, or special judge of the district is absent from the district, otherwise unavailable, or unable to act, any Circuit Judge shall have the authority to issue an emergency protective order pursuant to KRS 403.730 to 403.785. If a Circuit Judge issues an emergency protective order, except as otherwise provided in this section, that judge shall conduct the hearing as required by KRS 403.745 and any order issued shall be enforced as provided in this chapter.

(Emphasis added). KRS 403.725(8) states that any District or Circuit Judge may conduct protective order proceedings if the issuing judge is unavailable:

Following the issuance of a protective order under this section, if the judge who issued the order is absent from the district, otherwise unavailable, or unable to conduct proceedings regarding the enforcement, violation, or modification of the order within a reasonable time, the proceedings shall be conducted by any District or Circuit Judge.

Here, Plaintiff and her former husband initiated Domestic Violence Petitions 001 and 002 on the same day. Pike Family Court Judge Larry Thompson recused and Judge Julie Paxton, a Family Court Judge from a neighboring county, took his place pursuant to the provisions of KRS Chapter 403, which statutorily permitted Judge Paxton to serve without appointment.

Plaintiff also claims that Judge Paxton was without authority to enter a temporary custody order in Case 001. Judge Paxton removed the children from both of their parents' custody and issued a temporary order placing them with their paternal grandmother while the cross domestic violence proceedings were pending. Judge Paxton had authority, pursuant to KRS 403.740(1)(f), to issue a temporary custody order based on the best interests of the children. The Court finds Plaintiff's claims that the Circuit Court Judges filed orders in her case without authority, while other judges permitted this to happen, are without merit.

Plaintiff also seeks injunctive relief against Judges Thompson, Wells, and Preston in their official capacities pursuant to 42 U.S.C. § 1983 which states that "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable." See Savoie v. Martin, 673 F.3d 488, 496 (6th Cir. 2012). Plaintiff's Complaint does not allege that any of the Judges violated a declaratory decree or that declaratory relief was not available. The record shows that none of the three judges has violated a decree issued under the Declaratory Judgment Act, 28 U.S.C. § 2201, and Plaintiff has not alleged that declaratory relief was unavailable to her. Thus, the Court finds Plaintiff's claim for injunctive relief is without merit.

Finally, a lawsuit brought pursuant to 42 U.S.C. § 1983 is subject to a one-year statute of limitations in Kentucky. Collard v. Kentucky Bd. Of Nursing, 896 F.2d 179, 182 (6th Cir. 1990). The last action of any of the judicial defendants took place in 2007. Plaintiff did not file the present suit until January 28, 2013, well beyond the one-year statute of limitations. Although Plaintiff claims that she just recently discovered that Judge Preston and Judge Wells did not have jurisdiction over her cases, the statute of limitations begins to run when a person knew or had reason to know of an injury. Plaintiff has been filing lawsuits challenging the jurisdiction of the judicial defendants in her domestic disputes since 2008 when she began alleging that Judge Paxton did not have jurisdiction over her cases. Plaintiff filed two lawsuits in 2008, one in the United States District Court for the Eastern District of Kentucky at Pikeville, and one in Franklin County Circuit Court. Therefore, the Court finds that Plaintiff's argument for tolling the statute of limitations is without merit.

Accordingly, all of Plaintiff's claims against Judges Thompson, Wells, and Preston are hereby DISMISSED.

B. Claims against former Judge Julie Paxton

On June 26, 2013, the Court entered an order dismissing many of Plaintiff's claims using the screening process set forth in 28 U.S.C. § 1915 for pro se complaints. The Court dismissed most causes of action alleged in Judge Paxton's official capacity and dismissed claims for damages under § 1983 in her personal capacity. However, the Court allowed Plaintiff to proceed on her claims for injunctive and declaratory relief in Judge Paxton's official capacity, declaratory relief in her personal capacity, and claims for damages, injunctive relief, and declaratory relief based upon allegations that Judge Paxton ...


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