United States District Court, D. Minnesota
Kevin M. Merck, Plaintiff,
Minnesota Supreme Court, Minnesota Court of Appeals, Minnesota District Court Second, Ramsey County, and Washington County, Defendants.
REPORT AND RECOMMENDATION
R. THORSON, United States Magistrate Judge.
matter is before the Court on Plaintiff Kevin M. Merck's
Complaint for Violation of Civil Rights (Doc. No. 1, Compl.)
and his Application to Proceed in District Court Without
Prepaying Fees or Costs (Doc. No. 2, IFP Application). For
the following reasons, the Court recommends that this action
be dismissed with prejudice.
reviewing the IFP Application, the Court concludes that Merck
qualifies financially for IFP status. That said, an IFP
application will be denied, and an action dismissed, when an
IFP applicant has filed a complaint that fails to state a
cause of action on which relief may be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d
1127, 1128 (8th Cir. 1996) (per curiam); see also Carter
v. Schafer, 273 Fed.Appx. 581, 582 (8th Cir. 2008) (per
curiam) (“[C]ontrary to plaintiffs' arguments on
appeal, the provisions of 28 U.S.C. § 1915(e) apply to
all persons proceeding IFP and are not limited to prisoner
suits, and the provisions allow dismissal without
service.”). In reviewing whether a complaint states a
claim on which relief may be granted, this Court must accept
as true all of the complaint's factual allegations and
draw all reasonable inferences in Plaintiff's favor.
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008). The complaint's factual allegations need not
be detailed, but must be sufficient to “raise a right
to relief above the speculative level . . . .” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
complaint must “state a claim to relief that is
plausible on its face.” Id. at 570. In
assessing a complaint's sufficiency, the court may
disregard legal conclusions couched as factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se
complaints are to be construed liberally, but they still must
allege sufficient facts to support the claims advanced.
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
Complaint's gravamen concerns Merck's attempts to
contest actions taken to enforce certain child-support
obligations. Based on materials Merck has submitted and
public online records from the Minnesota courts, it appears
that Merck was the respondent in an action seeking child
support filed in January 2000 and closed in March 2000.
Jones v. Merck, Register of Actions, Case No.
F5-00-0060 (Minn. Dist. Ct.). That action's docket does
not reveal the case's outcome, but it apparently left
Merck with a child-support obligation. In July 2018, the
Child Support Unit of Washington County Community Services
issued a Notice of Support Judgment Levy to U.S. Bank,
indicating that Merck was more than $45, 000 behind in
child-support payments and requesting that the bank freeze an
account belonging to Merck. (Doc. No. 4, Notice of Support
Judgment Levy, attached to Letter from Kevin Merck
to Court (Dec. 7, 2018) (“Merck Letter”).)
September 3, 2018, Merck filed a motion in Ramsey County
District Court seeking dismissal of the child-support action
for lack of subject-matter jurisdiction. (Doc. No. 4, Mem.
and Mot. to Dismiss for Lack of Subject Matter Jurisdiction,
Jones v. Merck, Case No. F5-00-0060 (Minn. Dist. Ct.
Sept. 3, 2018), attached to Merck Letter.) The
district court sent Merck a deficiency notice stating that
his motion did not conform with Rules 303.01-.03 of the
Minnesota Rules of General Practice. Order 2, Jones v.
Merck, Case No. A18-1618 (Minn.Ct.App. Oct. 10, 2018),
available at http://macsnc.courts.state.mn.us (last
accessed Dec. 18, 2018) (“October 2018 Order”);
see also Minn. R. Gen. Prac. 303.01-.03 (providing
family-court rules for scheduling motions, motion form, and
motion practice). Merck did not refile his motion in district
court, choosing instead to appeal the motion's denial to
the Minnesota Court of Appeals. October 2018 Order 1. The
Court of Appeals dismissed the appeal, noting that Merck
could refile his dismissal motion in district court and that
“[b]ecause the district court has not yet ruled on the
merits of [Merck's] motion to dismiss, appellate review
is premature.” Id. at 2. The Court of Appeals
also noted various failures of Merck to comply with the Court
of Appeals's own procedural rules. Id. at 1.
Merck tried to appeal to the Minnesota Supreme Court, but the
state's Office of the Clerk of the Appellate Courts
refused to accept his filing because it failed to follow
proper appellate procedure. Letter from Office of the Clerk
of the Appellate Courts to Kevin Merck (Oct. 17, 2018),
available at http://macsnc.courts.state.mn.us (last
accessed Dec. 18, 2018).
has now filed suit in federal court, naming as Defendants the
Ramsey County District Court, the Minnesota Court of Appeals,
the Minnesota Supreme Court, and Washington and Ramsey
Counties. (Compl. 1.) The Complaint asserts a cause of action
under 42 U.S.C. § 1983 - specifically, that Defendants
have “den[i]ed [Merck] due process of law.”
(Id. at 4.) For relief, he seeks various forms of
injunctive relief and demands repayment of child-support
payments previously seized from him. (Id. at 5.)
least two reasons, the Complaint fails to state a cause of
action under § 1983. First, Merck names no individual
defendants, opting instead to name five governmental
entities. The Eighth Circuit has recognized that in general,
government officials cannot be sued under § 1983 for
injuries inflicted solely by their employees or agents
“on a respondeat superior theory of liability.”
Marsh v. Phelps Cty., 902 F.3d 745, 751 (8th Cir.
2018) (quoting Monell v. N.Y. Dep't of Soc.
Servs., 436 U.S. 658, 694 (1978)). Merck's claims
against governmental entities must therefore meet the
requirements of so-called official-capacity
claims. Liability attaches for such claims only if
“the violation resulted from an official municipal
policy, an unofficial custom, or a deliberately indifferent
failure to train or supervise an official or employee.”
Bolderson v. City of Wentzville, 840 F.3d 982, 985
(8th Cir. 2016) (citing Atkinson v. City of Mountain
View, 709 F.3d 1201, 1214 (8th Cir. 2013)). The Eighth
Circuit has detailed the parameters of each type of
official-capacity liability, see, e.g.,
Brewington v. Keener, 902 F.3d 796, 800-02 (8th Cir.
2018); Bolderson, 840 F.3d at 985-86, but fulsome
review of that material is unnecessary here. The Complaint
lacks any allegations about the sort of policy, custom, or
failure to train that can ground governmental liability.
(See Compl. 6 (allegations regarding facts
underlying Merck's claims).) As a result, the Complaint
fails to state a cause of action under § 1983.
even if Merck could fix this pleading problem, his Complaint
has an underlying substantive flaw. He claims that he has
been denied “due process of law” by the Minnesota
courts' handling of his jurisdictional challenge to
certain child-support proceedings. (Compl. 4.) Indeed, he
asserts that the Minnesota district court and the Minnesota
Court of Appeals “refused” to enter a ruling on
his motion. (Id.) But this misstates what happened
in the earlier proceedings. What actually happened is that
the Minnesota district court denied his jurisdictional motion
on procedural grounds; he failed to follow the Minnesota
Rules of General Practice. Rather than fix those problems and
refile, Merck immediately appealed. And then, the Minnesota
Court of Appeals did not “refuse” to address his
jurisdictional motion, but instead dismissed his appeal
because (1) the district court had never issued a substantive
ruling on Merck's dismissal motion, and (2) because his
appeal papers were themselves procedurally flawed.
this backdrop, Merck's due-process claim amounts to a
claim that he has a due-process right to demand rulings on
state-court motions that do not follow generally applicable
state-court procedures. Unsurprisingly, the established
elements of due-process claims undercut Merck's argument.
Merck does not specify whether his claims concern procedural
or substantive due process, but neither suffices.
Establishing a procedural due process violation requires a
“show[ing] that the state infringed on a cognizable
liberty interest.” Swipies v. Kofka, 419 F.3d
709, 713 (8th Cir. 2005). Such interests can come from two
sources: the Fourteenth Amendment's Due Process Clause
itself or the laws of the states. Senty-Haugen v.
Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (citing
Ky. Dep't of Corr. v. Thompson, 490 U.S. 454,
460 (1989)). Merck has done nothing to show that the Due
Process Clause or any state laws establish a cognizable
liberty interest in making courts issue rulings on motions
for which the movant fails to follow state procedural rules.
substantive due process, establishing a violation of that
right requires that the claimant “show evidence of a
constitutionally protected property interest and that
governmental officials used their power in such an arbitrary
and oppressive way that it shocks the conscience.”
Azam v. City of Columbia Heights, 865 F.3d 980, 986
(8th Cir. 2017) (internal punctuation marks and brackets
omitted). Merck may have a property interest in the monies
sought from him in the state-court child-support action (or
already taken from him as a result of it). But this Court
need not decide the point, for it is not at all
conscious-shocking that courts would demand that state-court
movants trying to reverse child-support obligations must
follow generally applicable procedural rules. Merck's
argument thus fails as a matter of substantive due process.
summary, the Complaint fails to properly plead
official-capacity claims against any Defendant. Moreover,
even if it did, the gravamen of Merck's allegations-seen
against the actual facts of the state-court
proceedings-utterly fail to show any due-process violations.
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY RECOMMENDED