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Farmer v. Duncan

United States District Court, W.D. Arkansas, Fayetteville Division

January 4, 2018

BILLY K. FARMER PLAINTIFF
v.
XOLLIE DUNCAN; BUFFIE MERRYMAN; JENNIFER DuCHARME; ACACIA STINNETT; BRIAN LESTER; KRISTEN PAWLIK; and ERIN JOHNSON DEFENDANTS

          OPINION AND ORDER

          P. K. HOLMES, III, CHIEF U.S. DISTRICT JUDGE

         Plaintiff filed this action pursuant to 42 U.S.C. § 1983. He proceeds pro se. Currently before the Court are the following motions: (1) a Motion to Dismiss filed by Xollie Duncan (ECF No. 8); (2) a Motion to Dismiss filed by Kristin Pawlik (ECF No. 17); (3) a Motion to Dismiss filed by Acacia Stinnett (ECF No. 21);[1] (4) a Motion to Dismiss filed by Buffie Merryman (ECF No. 22); (4) a Motion to Dismiss filed by Brian Lester (ECF No. 23); and (5) a Motion to Dismiss filed by Jennifer DuCharme and Erin Johnson (ECF No. 25).

         I. BACKGROUND

         According to the allegations of the Complaint (ECF No. 1), Plaintiff has been party to a domestic relations case pending in the Benton County Circuit Court, Domestic Relations Division, since August 18, 2010. The most recent hearing occurred on June 14, 2017.

         Plaintiff alleges that all named Defendants have played a part in illegally taking custody of Plaintiff's minor son (age 15), W.G.F., and stopping his visitation with minor daughter (age 17), M.C.F. Custody of W.G.F. was given to Erin Johnson, his Mother, after an emergency ex parte hearing. Johnson was represented by Attorney Jennifer DuCharme. Johnson lives in Kansas.

         Xollie Duncan was the presiding judge over the child custody dispute. Attorney Buffie Merryman was the guardian ad litem. Plaintiff was been represented by Defendant Brian Lester and later was represented by Defendant Kristin Pawlik.

         Plaintiff believes his disability was used against him to remove W.G.F. from his custody. Plaintiff further alleges the two minor children were coached as to what testimony to give against him. Plaintiff indicates he is a disabled veteran who has been diagnosed with Posttraumatic Stress Disorder (PTSD)(ECF No. 5 at 11).

         Plaintiff asserts claims under 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act. It is the Plaintiff's belief that the Defendants should be criminally charged and those who are licensed attorneys should be disbarred.

         Along with his Complaint, Plaintiff filed a Motion for Temporary Custody and Visitation (ECF No. 4). In this Motion, Plaintiff indicates Johnson has obtained an order of protection against him in the State of Kansas which remains in effect until July 20, 2018 (ECF No. 5 at 3). Plaintiff asserts the order of protection thwarts his ability to retain custody or visitation of his children. He asks the Court to order the custody of W.G.F. be immediately changed to him and that he be given visitation with M.C.F. He asks the Court to find Johnson in contempt of court and immediately jail her.

         II. APPLICABLE STANDARD

         Rule 8(a) contains the general pleading rules and requires a complaint to present “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. While the Court will liberally construe a pro se plaintiff's complaint, the plaintiff must allege sufficient facts to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

         III. DISCUSSION

         (A) Section 1983

         Section 1983 provides a federal cause of action for the deprivation, under color of law, of a citizen's "rights, privileges, or immunities secured by the Constitution and laws" of the United States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that defendant acted under color of state law and that he violated a right secured by the Constitution. West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The deprivation must be intentional; mere negligence will not suffice to state a claim ...


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