Shophar v. United States

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JOREL SHOPHAR; SASUAH
SHOPHAR,
Plaintiffs - Appellants,
v. No. 19-3281
(D.C. No. 5:19-CV-04052-HLT-KGG)
UNITED STATES OF AMERICA; (D. Kan.)
KATHLEEN L. SLOAN; ERICA
MILLER; KANSAS DEPARTMENT OF
CHILDREN AND FAMILIES; STACEY
BRAY; RICHARD KLEIN; MARC
BERRY; KVC HEALTH; SAARAH
AHMAD; KIMBERLY SMITH; PAUL
LAFLEUR; TEENA WILKIE; NATHAN
WILKIE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Jorel and Sasuah Shophar, husband and wife, appeal from the district court’s
order holding that the federal courts have no power to grant or restore Mr. Shophar’s
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
custody over two children he fathered with a woman named Krissy Gorski. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. BACKGROUND & PROCEDURAL HISTORY
This is the second time Mr. Shophar has brought the matter of his and
Ms. Gorski’s children to our attention. See Shophar v. City of Olathe, 723 F. App’x
579 (10th Cir. 2018), cert. denied sub nom. Shophar v. Kansas, 140 S. Ct. 454(2019). As we recounted in our prior disposition, Ms. Gorski left Mr. Shophar in
August 2015, taking their children with her. See id. at 580. Kansas authorities
investigated Mr. Shophar for domestic abuse, which he denied. See id. He in turn
accused Ms. Gorski of prostitution, drug use, and extortion. See id. Eventually,
Kansas placed the children in state custody. See id.In November 2015 and April 2016, Mr. Shophar filed pro se lawsuits in the
United States District Court for the District of Kansas, naming as defendants various
persons, organizations, and governmental entities involved in these events. See id. at
580, 581. He attempted to allege numerous causes of action arising from the
defendants’ purported “support” of Ms. Gorski. Id. The district court dismissed both
lawsuits for failure to state a claim. See id. at 581. We affirmed. See id. at 580–82.
In May 2019, Mr. Shophar, now joined by Mrs. Shophar, filed a new lawsuit in
the United States District Court for the Northern District of Illinois. They captioned
their complaint “petition for emergency writ of habeas corpus” and invoked two
federal habeas statutes, 28 U.S.C. §§ 2241 and 2254. R. at 13 (capitalization
normalized; emphasis omitted). Claiming next-friend status to Mr. Shophar’s
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children with Ms. Gorski, the Shophars argued that the children were “illegally being
held in the State of Kansas as wards of the State of Kansas.” Id. (capitalization
normalized; emphasis omitted). The Shophars named as defendants:
 the United States, which has allegedly failed to supervise the state and
local agencies that receive federal child-welfare funding;
 Johnson County, Kansas, where child-custody proceedings took place;
 Kathleen L. Sloan, judge of the Johnson County District Court, who
presided over the child-custody proceedings;
 the Kansas Department of Children and Families (DCF);
 Stacey Bray, a DCF caseworker;
 KVC Health, a child-advocacy group and DCF contractor;
 Saarah Ahmad, a KVC Health caseworker;
 Kimberly Smith, also a KVC Health caseworker;
 Erica Miller, a Johnson County assistant district attorney involved in the
child-custody proceedings;
 Richard Klein, the children’s guardian ad litem;
 Marc Berry, Ms. Gorski’s court-appointed attorney;
 Paul LaFleur, Mr. Shophar’s estranged brother who participated in the
custody proceedings;
 Teena Wilkie, a friend of Ms. Gorski who became a foster parent for the
children; and
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 Nathan Wilkie, Teena’s husband, who also became a foster parent for
the children.
The Shophars accused the defendants of violating the children’s Fourth and
Fourteenth Amendment rights, Mr. Shophar’s Fourth and Fourteenth Amendment
rights, several statutes relating to child welfare and civil rights, and certain federal
criminal statutes. In addition to habeas relief for the children, the Shophars sought
various forms of injunctive and declaratory relief, and damages from at least DCF,
KVC Health, LaFleur, and the Wilkies.
A little more than a month after the complaint was filed, the Northern District
of Illinois transferred the case to the District of Kansas, stating that “[t]he sole venue
for a 28 U.S.C. § 2241 habeas corpus petition is the judicial district where the
individuals whose release are being sought are located.” R. at 65.
Following transfer, eight of the fourteen defendants moved to dismiss. The
district court granted those motions and dismissed all defendants without prejudice,
including those who had yet to appear or move for dismissal. The district court held
that it must dismiss all claims brought by the Shophars purportedly on the children’s
behalf, because “a minor child cannot bring suit through a parent acting as next
friend if the parent is not represented by an attorney.” Meeker v. Kercher, 782 F.2d
153, 154 (10th Cir. 1986) (construing Fed. R. Civ. P. 17(c)). But cf. Adams ex rel.
D.J.W. v. Astrue, 659 F.3d 1297, 1301 (10th Cir. 2011) (holding that this rule does
not apply to parents of children appealing a denial of Social Security benefits). And
it said that it lacked jurisdiction over the claims brought by the parents themselves
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for three reasons: (1) federal courts have no jurisdiction over child-custody disputes,
see 3E Charles Alan Wright et al., Federal Practice & Procedure § 3609.1, text
following n.32 (3d ed., Apr. 2020 update) (“[Despite recent cases cutting back on the
scope of the domestic relations exception,] child custody generally is a matter that
should be viewed as being at the heart of the domestic relations exception so that
only special circumstances should bring it within the purview of the jurisdiction of a
federal court.”); (2) the writ of habeas corpus does not extend to child-custody
determinations, see Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S.
502, 511 (1982) (“federal habeas has never been available to challenge parental
rights or child custody,” including the custody of foster or adoptive parents over a
child); and (3) the Rooker-Feldman doctrine prohibits federal courts (other than the
Supreme Court) from reviewing state-court decisions, such as the child-custody
decisions at issue here, see D.C. Court of Appeals v. Feldman, 460 U.S. 462, 42
(1983).
II. ANALYSIS
We review a district court’s real-party-in-interest rulings for abuse of
discretion. See Esposito v. United States, 368 F.3d 1271, 1273 (10th Cir. 2004). We
review de novo a district court’s conclusion that it lacks subject-matter jurisdiction.
See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).
In response to the district court’s decision prohibiting them from acting as next
friends to their children, the Shophars assert, without elaboration, that “[the
children’s] cases can be brought by their adult Next Friend when filing a Habeas
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Corpus for State or Federal cases.” Aplt. Opening Br. at 9. “[S]tray sentences like
these are insufficient to present an argument.” Eizember v. Trammell, 803 F.3d 1129,
1141 (10th Cir. 2015). The Shophars fail to even give us a lead to authority that
might support their assertion. They therefore waive whatever challenges they may
have had to this basis for dismissal. See Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived . . . .”).
The Shophars similarly fail to present an adequate argument that their claims
for declaratory or injunctive relief are not barred by the district court’s first two
grounds for holding that it lacked jurisdiction: the doctrines that habeas jurisdiction
does not extend to questions of child custody and that federal courts ordinarily lack
jurisdiction to decide child-custody questions. Their challenges to those rulings are
limited to an attack on the district court’s underlying premise, i.e., that this lawsuit is
fundamentally a child-custody dispute. See Aplt. Opening Br. at 4 (“The Action is
not a challenge to a State custody order . . . .”); id. at 6 (“The Court errs to document
the Appellants are looking to overturn a custody ruling.”); id. at 8 (“The Plaintiffs are
not [asking] the Federal Court of Kansas to ‘return to their custody.’” (brackets in
original)); id. at 13 (“This case i[s] not a ‘custody’ matter between a father and a
mother.”). This is so, they explain, because “[Mr. Shophar] has custody of his
children by DEFAULT of Krissy Gorski’s criminal conduct.” Id. at 6. The Shophars
appear to be saying that Gorski has forfeited custody by operation of law, so an order
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returning the children to Mr. Shophar would not interfere with a state-court custody
order.
This attempt at clever lawyering fails. There is no reasonable way to read the
Shophars’ complaint (however obscure much of the language is) as anything but an
attempt to obtain custody of the children (and seek damages, which will be addressed
shortly). To the extent that the complaint seeks an injunction to give Mr. Shophar
custody of the children or seeks a declaration that he is entitled to that custody, the
district court lacked jurisdiction to resolve the merits.
There remain the damages claims in the complaint. But as best we can
decipher that pleading, all the alleged damages suffered by the Shophars resulted
from the court decisions regarding custody. In other words, an essential element of
their damages claims is that the state courts’ various custody decisions were in error.
And this court has recognized that a claim is barred by Rooker-Feldman when the
“claim has merit only if the state-court . . . order was unlawful.” Campbell v. City of
Spencer, 682 F.3d 1278, 1284 (10th Cir. 2012). The Shophars’ arguments against
application of Rooker-Feldman amount to little more than complaints that they have
been wronged by violations of federal law and a federal court must therefore afford
them relief. But the lower federal courts have no authority—that is, no jurisdiction—
to give relief from state-court judgments, whether the Shophars participated in the
state-court proceedings (and presumably lost) or were mere interested bystanders.
The district court’s application of Rooker-Feldman was correct.
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Finally, if there is any respect in which the Shophars’ claims fall outside the
reasons for dismissal relied upon by the district court, they have not explained it to
us. When faced with a similar situation, where the plaintiff had “made her complaint
unintelligible by scattering and concealing in a morass of irrelevancies the few
allegations that matter,” we stated that “it hardly matters whether the district court
dismissed [plaintiff’s] complaint because it believed all of her claims were barred by
Rooker-Feldman or simply because it could not separate the wheat from the chaff.”
Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007) (internal quotation marks
omitted). Then, as here, “[i]t was not the district court’s job to stitch together
cognizable claims for relief from the wholly deficient pleading that [plaintiff] filed.
As we have frequently noted, we are loath to reverse a district court for refusing to do
the litigant’s job.” Id.We conclude that the district court properly dismissed without prejudice all
claims for the reasons it expressed.
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
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