FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 26, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
RAYMOND SCHWAB; AMELIA
SCHWAB; TYELER SCOTT ALLISON,
a/k/a Tyler Allison,
Plaintiffs - Appellants,
v. No. 16-3284
(D.C. No. 5:16-CV-04033-DDC-KGS)
STATE OF KANSAS; STATE OF (D. Kan.)
KANSAS, DEPARTMENT FOR
CHILDREN AND FAMILIES; PHYLLIS
GILMORE, in her capacity as Secretary of
the Kansas Department for Children and
Families; SAM BROWNBACK, in his
capacity as Governor of the State of
Kansas; JOHN BOSCH, an individual;
DOES 1-10; DANIEL DIETRICH;
BARRY WILKERSON; RHONDA
EISENBARGER; RILEY COUNTY
POLICE DEPARTMENT; PATHWAYS
FAMILY SERVICES, LLC; DEJA
JACKSON; RILEY COUNTY; BLAKE
ROBINSON; ANDREW VINDUSKA;
MIRANDA JOHNSON; LORA INGLES;
KVC, a private business entity; ST.
FRANCIS, a private business entity;
KATHY BOYD; KENDRA BAKER, in
her official and individual capacity;
THERESA FREED, in her official and
individual capacity; RANDY
DEBENHAM, in his official and individual
capacity; BETHANY FIELDS, in her
official and individual capacity; CARLA
SWARTZ, in her personal and professional
capacity; PAWNEE MENTAL HEALTH
SERVICES; SUNFLOWER CASA
PROJECT, 501(c)(3) non profit entity;
KAYLEE POSSEN, in her individual and
professional capacity; LAURA PRICE, in
her individual and professional capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Pro se plaintiffs Raymond Schwab and Amelia Schwab, husband and wife, and
Tyeler Allison, their adult son and sibling of their children, appeal the district court’s
decision that denied their motion for a preliminary injunction. Exercising
jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm.
Background
In April 2015, a county police officer placed Raymond and Amelia’s four
minor children in police protective custody. Shortly thereafter, the State of Kansas
filed petitions in state district court alleging that the children were children in need of
care under Kansas law.1 The court subsequently placed the children in the temporary
custody of the Kansas Department for Children and Families, and conditioned
parental visitation on negative random urine and breath tests. Raymond and Amelia
*
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.
1
See Kan. Stat. Ann. § 38-2202(d).
2
filed motions for rehearing of the temporary orders. At the hearing in early May,
Raymond was observed to be acting erratically, and the judge ordered the couple to
submit to urine and breath tests. Raymond tested positive for amphetamine,
methamphetamine, hydrocodone, and tramadol; Amelia’s test was negative. During
the hearing, Raymond and Amelia withdrew their motions.
In June, Raymond filed a motion to suppress the results of the May drug test,
which he argued was an unreasonable search and seizure under the Fourth
Amendment. Following a hearing, the district court denied the motion. At the same
time, the court ordered Raymond to submit to another urine and breath test, but he
refused. The court considered the refusal as a positive test result.
Following an adjudication hearing in July, the district court found the children
to be children in need of care under Kan. Stat. Ann. § 38-2202(d). Raymond
appealed to the Kansas Court of Appeals. While the appeal was pending, the court
held a disposition hearing in August at which a case plan was approved. The plan’s
goal is to reintegrate the children into the parental home; until then, the state-court
proceedings remain open.
Raymond, Amelia, and Tyeler filed suit in federal court in March 2016. In
early April, the Kansas Court of Appeals affirmed the district court’s finding that the
children were children in need of care.2 Shortly thereafter, the state district court
2
The Kansas Supreme Court subsequently denied Raymond’s petition for
review.
3
held a hearing to review the case plan. Neither Raymond nor Amelia attended this
hearing.
In August, Raymond, Amelia, and Tyeler filed their revised second amended
complaint in which they alleged numerous civil rights claims under 42 U.S.C. § 1983
arising from the seizure of their children and loss of familial association. At the
same time, they filed a motion for a preliminary injunction that asked the district
court to enter an order requiring defendants in the state-court proceeding, among
other things, to: (1) stop drug testing Raymond and Amelia; (2) release all
documents in the adjudication proceeding; (3) remove them from all case planning,
case management, and court proceedings; and (4) permit Tyeler to visit his siblings.
Following a hearing, the court denied the motion. This appeal followed.
Standard of Review
“We review the district court’s decision to deny a preliminary injunction for
abuse of discretion.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.
2003). For there to be such an abuse, the “decision [must be] premised on an
erroneous conclusion of law or . . . [find] no rational basis in the evidence.” Fish v.
Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (internal quotation marks omitted). This
means that “we review the district court’s factual findings for clear error and its
conclusions of law de novo.” Id.
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Analysis
To obtain a preliminary injunction, the movants must show that “(1) [they are]
substantially likely to succeed on the merits; (2) [they] will suffer irreparable injury
if the injunction is denied; (3) the . . . threatened injury [to them] outweighs the
injury the opposing party will suffer under the injunction; and (4) the injunction [is]
not . . . adverse to the public interest.” Id. (brackets and internal quotation marks
omitted). Here, the district court did not abuse its discretion in holding that there was
little or no likelihood of success on the merits because the claims were barred on the
ground of abstention under Younger v. Harris, 401 U.S. 37 (1971) (“Younger
abstention”).
“Younger abstention dictates that federal courts not interfere with state court
proceedings by granting equitable relief—such as injunctions of important state
proceedings or declaratory judgments regarding constitutional issues in those
proceedings—when such relief could adequately be sought before the state court.”
Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999)
(internal quotation marks omitted). To that end,
[a] federal court must abstain from exercising jurisdiction when: (1) there
is an ongoing state . . . civil . . . proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal complaint, and
(3) the state proceedings involve important state interests, matters which
traditionally look to state law for their resolution or implicate separately
articulated state policies. Younger abstention is non-discretionary; it must
be invoked once the three conditions are met, absent extraordinary
circumstances.
Id. (citation and internal quotation marks omitted).
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The district court found that all three Younger factors were present, which is
undisputed on appeal. What is disputed is whether an exception to the Younger
abstention doctrine applies. The “doctrine does not apply in cases of proven
harassment or prosecutions undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in other extraordinary circumstances where
irreparable injury can be shown.” Id. at 1165 (internal quotation marks omitted). In
this regard, “[i]t is the plaintiffs[’] heavy burden to overcome the bar of Younger
abstention by setting forth more than mere allegations of bad faith or harassment.”
Id. (brackets and internal quotation marks omitted).
The district court acknowledged the exception to the Younger abstention
doctrine, but found that plaintiffs failed in their burden to show that they were the
victims of proven harassment or that the state court adjudication was undertaken in
bad faith:
I do recognize there are exceptions . . . to the Younger abstention doctrine
such as when there is a showing of proven harassment or prosecutions
undertaken by state officials in bad faith. But I am not persuaded by
anything that I’ve heard [at the hearing] or that has been filed by the
plaintiffs to even suggest that that has happened here. This is a heavy
burden, our cases recognize, before the Younger doctrine . . . can be
overcome, and that has not been shown.
Aplee. Supp. App. at 128.
On appeal, we have not been directed to any evidence of bad faith or
harassment. As such, there was no abuse of discretion.
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Conclusion
The judgment of district court is affirmed. We deny the motions to strike
appellants’ brief as moot. We also deny as moot the motion to compel appellants to
produce a compact disc. We grant Raymond, Amelia, and Tyeler’s motions to
proceed in forma pauperis, and they are reminded to continue making partial
payments until the entire filing and docketing fees are paid in full.
Entered for the Court
Jerome A. Holmes
Circuit Judge
7