United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
Mischler brings this present action for allegations of fraud
and violations of various constitutional rights. However,
this action is simply Ms. Mischler's latest attempt to
challenge the domestic relations and custody orders entered
against her nearly ten years ago. She sues over twenty
defendants, most of which have filed motions to dismiss
claiming the action is barred by immunity and/or the
applicable statutes of limitations. For the foregoing
reasons, these defendants' motions to dismiss are
GRANTED. Additionally, several defendants
have requested sanctions against Ms. Mischler. These motions
are also GRANTED.
past twenty years, Ms. Mischler has spent a considerable
amount of time in federal and Kentucky state
courts. Beginning in 2001, Ms. Mischler and her
ex-husband, Jonah Stevens, initiated divorce proceedings. At
the time, Mr. Stevens was an attorney and a member of the
Kentucky Bar Association. Upon separation, they agreed to
share joint custody of their two children, but in 2002, each
alleged domestic violence and filed two petitions seeking
emergency protection from one another in Pike County Circuit
Court before Judge Thompson. Judge Thompson recused himself
from the matter and Floyd County Family Court Judge Julie
Paxton was appointed Special Judge without objection from
either Mr. Stevens or Ms. Mischler. In September of 2002,
Judge Paxton granted temporary custody to the children's
grandmother, Mr. Stevens's mother, and dismissed the two
pending domestic violence petitions. Neither Ms. Mischler nor
Mr. Stevens appealed this order, though Ms. Mischler now
believes Judge Paxton lacked jurisdiction to hear her
years later, in the spring of 2006, Mr. Stevens filed another
domestic violence petition against Ms. Mischler. Judge
Thompson again recused himself, and Judge Paxton was again
appointed as Special Judge. This time, Judge Paxton granted
Mr. Stevens's petition, entering a domestic violence
order against Ms. Mischler and awarding temporary custody of
the children to Mr. Stevens. Ms. Mischler was granted
supervised visitation rights and ordered to cooperate with
the Kentucky Cabinet for Health and Family Services (CHFS).
Ms. Mischler fought the issuance of the domestic violence
order, even requesting Chief Justice Joseph Lambert and the
Kentucky Judicial Conduct Commission investigate Judge Paxton
for misconduct. Special Judge John David Preston was
appointed to review Judge Paxton's order, ultimately
agreeing with Ms. Mischler and vacating the order on December
this time, the divorce of Mr. Stevens and Ms. Mischler was
still pending and involved a complicated custody battle.
Employees of CHFS investigated Ms. Mischler after the
allegations of domestic violence, and Judge Preston ordered
Ms. Mischler continue supervised visitation with her
children. He thereafter transferred the case to Judge Janie
Wells for final determination. Judge Wells ordered Dr.
Brenzel to complete a custodial evaluation for Ms. Mischler,
which included review of CHFS records of domestic violence
allegations. Judge Wells recused herself prior to final
determination, and Senior Judge Lewis Nicholls was appointed
Special Judge. Finally, in 2009, Judge Nicholls finalized the
divorce and awarded Mr. Stevens full custody.
the divorce was final, on April 30, 2008, Ms. Mischler filed
suit in the Western District of Kentucky, Louisville
Division, against Chief Justice Joseph Lambert, Judge Lewis
Nicholls, Judge Larry Thompson, the Kentucky Judicial Conduct
Committee, and the Kentucky Bar Association. Mischler v.
Lambert, No. 3:08-cv-231-M, 2008 WL 4327444 (W.D. Ky.
Sept. 19, 2008). In this action brought pursuant to 42 U.S.C.
§ 1983, she accused the defendants of violating her
constitutional rights. In particular, Ms. Mischler alleged
that Chief Justice Lambert, the Judicial Conduct Commission,
and the KBA failed to enforce the laws, regulations, and
Supreme Court Rules of Kentucky in her divorce and custody
actions. Id. at *3. Additionally, she asserted
misconduct on behalf of Judge Nicholls and Judge Thompson in
handling her divorce action and subsequent visitation orders.
Id. at *4. The District Judge dismissed this action,
finding that the KBA and Judicial Conduct Commission were
both immune from liability under the Eleventh Amendment and
her claims against Chief Justice Lambert, Judge Nicholls, and
Judge Thompson were precluded by 42 U.S.C. § 1983.
Id. at *5- 6.
failing in the 2008 federal suit, Ms. Mischler sought relief
in Kentucky courts. During the divorce and custody battle,
neither she nor Mr. Stevens objected to either Judge
Thompson's recusal or Judge Paxton's appointment as
Special Judge. Mischler v. Thompson, 436 S.W.3d 498,
500 (Ky. 2014). However, on August 5, 2011, Ms. Mischler
petitioned the Kentucky Court of Appeals for a writ of
mandamus against David Deskins, the former Pike Circuit Court
Clerk, asserting that he should not have entered Judge
Paxton's orders dismissing the domestic violence
petitions. Ms. Mischler believes these orders “were
void ab initio” because Judge Paxton lacked
jurisdiction. Id. Several weeks later, she filed
another challenge to the same dismissal orders, seeking writs
of mandamus against Mr. Deskins, Judge Thompson, and Mr. Fred
Hatfield, the former Pike County Trial Commissioner.
Id. The Court of Appeals of Kentucky denied the
petitions, finding no viable mandamus claims, and the Supreme
Court of Kentucky affirmed. Id. at 504.
that action was pending on appeal, Ms. Mischler filed two
additional actions in the Eastern District of Kentucky. On
January 28, 2013, she filed a complaint in the Pikeville
Division alleging that the domestic relations proceedings
violated her federal constitutional rights and seeking
nullification of those proceedings. Mischler v.
Stevens, No. 7:13-cv-08-TWP, 2014 WL 1378805 (E.D. Ky.
April 8, 2014). In this complaint, she sued Mr. Stevens,
Judge Larry Thompson, Judge Janie Wells, Judge John David
Preston, Judge Julie Paxton, Judge Glenn E. Acree, Judge Joy
A. Moore, Judge Laurence V. Van Meter, Laurie Dudgeon, the
Estate of Glema Stevens (mother of Jonah Stevens), Anne
Swain, Chief Justice John D. Minton, Jr., former Chief
Justice Joseph Lambert, former Circuit Court Clerk David
Deskins, Debbie Reynolds, Circuit Court Clerk Anna Pinson,
Deputy Clerk Claudia King, Deputy Clerk Jennifer Gillespie,
and Stephen Wolnitzek. Id. The District Judge
screened her complaint under 28 U.S.C. § 1915(e)(2) and
dismissed Judge Glenn Acree, Judge Joy A. Moore, Judge
Laurence V. Van Meter, Laurie Dudgeon, the Estate of Glema
Stevens, and Anne Swain on June 26, 2013. Mischler v.
Stevens, No. 7:13-cv-08-ART, 2013 WL 121180793 (E.D. Ky.
July 9, 2013). Before that, however, on May 13, 2013, Ms.
Mischler filed another action in this Court, this
time against Susan Stokley Clary, Chief Justice John Minton,
the Kentucky Supreme Court, Larrin Thompson, Jack Conway,
Laurie Dudgeon, and John Doe, alleging the defendants had
mishandled her filings and grievances in the Kentucky Supreme
Court. See Mischler v. Clary, No. 3:13-cv-26-TWP,
2016 WL 3140423 (Jan. 25, 2016). Action No. 3:13-cv-26-TWP
was ultimately consolidated with No. 7:13-cv-08.
claims were ultimately dismissed, appealed, and then affirmed
by the Sixth Circuit. See Mischler v. Stevens, No.
16-6185, 2017 WL 3220480 (6th Cir. May 16, 2017);
Mischler v. Stevens, No. 14-5567 (6th Cir. Sept. 9,
2015). This most recent matter is the third suit Ms. Mischler
has filed in the Eastern District of Kentucky and the fourth
suit filed in federal district court alleging violations of
her constitutional rights during her domestic violence
proceedings in 2001 and 2002. Additionally, she has initiated
at least thirteen actions in the Kentucky Court of Appeals
and ten actions before the Kentucky Supreme Court. [R. 14-1
receiving the most recent unfavorable opinion on May 16,
2017, Ms. Mischler filed this action on August 24, 2017. She
alleges fraud and various violations of her constitutional
rights and seeks injunctive relief against Governor Bevin.
Ms. Mischler has requested “emergency relief, ”
the text of her motion states she is seeking a preliminary
injunction. [R. 6 at 2.] “A preliminary
injunction is an extraordinary remedy which should be granted
only if the movant carries his or her burden of proving that
the circumstances clearly demand it.” Overstreet v.
Lexington-Fayette Urban County Government, 305 F.3d 566,
573 (6th Cir. 2002) (citing Leary v. Daeschner, 228
F.3d 729, 739 (6th Cir. 2000) (finding that issuance of a
preliminary injunction “involv[es] the exercise of a
very far-reaching power, which is to be applied only in the
limited circumstances which clearly demand it”)). To
issue a preliminary injunction, the Court must consider: 1)
whether the movant has shown a strong likelihood of success
on the merits; 2) whether the movant will suffer irreparable
harm if the injunction is not issued; 3) whether the issuance
of the injunction would cause substantial harm to others; and
4) whether the public interest would be served by issuing the
injunction. Overstreet v. Lexington-Fayette Urban County
Government, 305 F.3d 566, 573 (6th Cir. 2002) (citations
a court need not consider all of the factors if it is clear
that there is no likelihood of success on the merits. See
Amoco Protection Co. v. Village of Gambell, AK, 480 U.S.
531, 546 n. 12 (1987) (“The standard for a preliminary
injunction is essentially the same as for a permanent
injunction with the exception that the plaintiff must show a
likelihood of success on the merits rather than actual
success.”). The Court of Appeals clarified that,
“[w]hen a party seeks a preliminary injunction on the
basis of a potential constitutional violation, the likelihood
of success on the merits often will be the determinative
factor.” City of Pontiac Retired Employees
Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014)
(quoting Obama for Am. v. Husted, 697 F.3d 423, 436
(6th Cir. 2012)). Even if Ms. Mischler is unable “to
show a strong or substantial probability of ultimate success
on the merits” an injunction can be issued when the
plaintiff “at least shows serious questions going to
the merits and irreparable harm which decidedly outweighs any
potential harm to the defendant if an injunction is
issued.” In re Delorean Motor Co., 755 F.2d
1223, 1229 (6th Cir. 1985).
Mischler specifically requests this Court to issue an
injunction against Governor Matt Bevin and his employees,
preventing them from destroying or altering specific records
at the Cabinet for Health and Family Services. [R. 6 at 2.]
However, at no point in her motion does Ms. Mischler attempt
to address the factors outlined in Overstreet v.
Lexington-Fayette Urban Cnty. Gov't. She does not
demonstrate any legal basis for her motion or explain how she
will suffer irreparable harm with the injunction. Unless Ms.
Mischler can allege “certain and immediate, rather than
speculative or theoretical, ” harm, granting emergency
relief in her favor is inappropriate. Mich. Coal of
Radioactive Material Users, Inc. v. Griepentrog, 945
F.2d 150, 154 (6th Cir. 1991). Additionally, Governor Bevin
has indicated the records for which Ms. Mischler seeks
protection do not exist, and therefore, she is highly
unlikely to succeed on the merits. [R. 31 at 8.]
Court remains unpersuaded that this case presents one of the
extraordinary circumstances that require the issuance of a
preliminary injunction. “A preliminary injunction is an
extraordinary remedy which should be granted only if the
movant carries his or her burden of proving that the
circumstances clearly demand it.” Overstreet v.
Lexington-Fayette Urban County Government, 305 F.3d 566,
573 (6th Cir. 2002). Here, Ms. Mischler has failed to do so.
Thus, the Court denies her Motion for preliminary injunction.
the named defendants in Ms. Mischler's latest litigation
chapter have filed various motions to dismiss. Despite two
motions to extend her deadline for filing responses [R. 23,
R. 39], Ms. Mischler has not yet responded to any of these
motions. Federal Rule of Civil Procedure 12(b)(1) provides
that a defendant may assert lack of subject-matter
jurisdiction as a defense. A motion to dismiss under Rule
12(b)(1) is different from a motion to dismiss under Rule
12(b)(6) because it challenges the Court's power to hear
the case before it. When jurisdiction is challenged under
this rule, the burden is on the plaintiff to prove that
jurisdiction exists. RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). In
answering this question, the Court is “empowered to
resolve factual disputes” and need not presume that
either parties' factual allegations are true.
motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of a plaintiff's complaint. In reviewing a
Rule 12(b)(6) motion, the Court “construe[s] the
complaint in the light most favorable to the plaintiff,
accept[s] its allegations as true, and draw[s] all inferences
in favor of the plaintiff.” DirecTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation
omitted). The Court, however, “need not accept as true
legal conclusions or unwarranted factual inferences.”
Id. (quoting Gregory v. Shelby County, 220
F.3d 433, 446 (6th Cir. 2000)). The Supreme Court explained
that in order “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). See also Courier
v. Alcoa Wheel & Forged Products, 577 F.3d 625, 629
(6th Cir. 2009). With the exception of the claims against
Stites & Harbison, Ms. Mischler's complaint involves
actions occurring during her divorce and custody proceedings.
These proceedings concluded in 2009.
Count III, Ms. Mischler sues Attorney General Andy Beshear in
his official capacity for the constructive termination of her
parental rights under 42 U.S.C. § 1983. [R. 1 at 20.]
Additionally, she sues Assistant Attorney General Jeffrey
Prather and former Assistant Attorney General Craig Newbern
in both their official and individual capacities. Ms.
Mischler never completed service on Mr. Prather or Mr.
Newbern in their individual capacities. Additionally, Ms.
Mischler asserts several claims in Counts I and II against
Governor Matt Bevin and various employees of the Cabinet for
Health and Family Services (CHFS) in their official
capacities. Ms. Mischler never completed service on these
employees in their individual capacities. CHFS Deputy
Secretary Timothy Feeley, CHFS Service Region Administrator
Susan Howard, CHFS Service Region Administrator Associate
Debra Wilcox-LeMaster, CHFS Field Service Office Supervisor
Mike Hartlage, CHFS Deputy General Counsel Mona Womack, CHFS
Internal Policy Analyst II Debbie Dile, former CHFS Regional
Attorney Zack Ousley, Jane Doe, and unknown employee Emily
Gray-Jones, along with “Kentucky Social Workers”
Shereena Hamilton-Spurlock, Kathy Larder, Latoya Jones, Wilma
Taylor, Gwen Hatfield, and Deborah Webb filed a motion to
dismiss as the “CHFS Official Defendants.” [R.
29.] Governor Matt Bevin joined this motion. Id.
begin, Governor Bevin, the CHFS Defendants, Mr. Beshear, Mr.
Prather, and Mr. Newbern, in their official capacities, are
entitled to sovereign immunity under the Eleventh Amendment.
A suit against an official acting in his or her official
capacity is considered a suit against the office itself.
Will v. Mich. Dept. of State Police, 491 U.S. 58, 71
(1989). Unless the state has waived immunity, a plaintiff may
not sue the state, state offices, or officials in their
official capacity in federal court. Grinter v.
Knight, 532 F.3d 567, 572 (6th Cir. 2008). Therefore,
all claims Ms. Mischler asserts for damages against Governor
Bevin, the CHFS Defendants, Mr. Beshear, Mr. Prather, and Mr.
Newbern in their official capacities are barred under the