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Mischler v. Bevin

United States District Court, E.D. Kentucky, Central Division, Frankfort

March 28, 2018

MATTHEW G. BEVIN, in his official capacity as Governor of the Commonwealth of Kentucky, et al., Defendants.



         Ms. 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.


         In the past twenty years, Ms. Mischler has spent a considerable amount of time in federal and Kentucky state courts.[1] 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 domestic proceedings.

         Four 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 12, 2006.

         During 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.

         Before 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.

         After 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.

         While 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.

         These 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 at 1.]

         After 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. [R. 1.]



         While Ms. Mischler has requested “emergency relief, ” the text of her motion states she is seeking a preliminary injunction.[2] [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 omitted).

         Further, 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).

         Ms. 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.]

         The 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.


         Many of 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. Id.

         A 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.


         In 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.[3] 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.[4] 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.[5] Id.

         To 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 ...

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