UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

BRETT CHILTON, ) ) Plaintiff, ) ) v. ) No. 1:24-CV-00040 ACL ) MISSOURI DEPT. OF SOCIAL ) SERVICES, et al., ) ) Defendants. )

OPINION, MEMORANDUM AND ORDER This matter is before the Court upon the motion of self-represented plaintiff Brett Chilton’s application to proceed in the district court without prepaying fees or costs. [ECF No. 2]. For the reasons stated below, the Court finds that plaintiff does not have sufficient funds to pay the entire filing fee and will assess an initial partial filing fee of $8.46. See

(b)(1). In addition, the Court will dismiss the complaint without prejudice.

(b)(1) Pursuant to

(b)(1), a prisoner bringing a civil action in forma pauperis is required to pay the full amount of the filing fee. If the prisoner has insufficient funds in his or her prison account to pay the entire fee, the Court must assess and, when funds exist, collect an initial partial filing fee of 20 percent of the greater of (1) the average monthly deposits in the prisoner's account, or (2) the average monthly balance in the prisoner's account for the prior six-month period. After payment of the initial partial filing fee, the prisoner is required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner's account.

(b)(2). The agency having custody of the prisoner will forward these monthly

-1- payments to the Clerk of Court each time the amount in the prisoner’s account exceeds $10, until the filing fee is fully paid.

Plaintiff did not provide a certified inmate account statement, but in the motion, he avers his account balance is $42.29. Therefore, the Court assesses an initial partial filing fee of $8.46, an amount that is reasonable based upon the information before the Court. See Henderson v.

Norris,

(8th Cir. 1997). Legal Standard on Initial Review Under

(e)(2), the Court is required to dismiss a complaint filed in forma pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To state a claim for relief, a complaint must plead more than “legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements.” Ashcroft v. Iqbal,

(2009). A plaintiff must demonstrate a plausible claim for relief, which is more than a “mere possibility of misconduct.”

. “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.”

. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw upon judicial experience and common sense.

. When conducting initial review pursuant to § 1915(e)(2), the Court must give the complaint the benefit of a liberal construction. Haines v. Kerner,

(1972). However, this does not mean that complaints filed by self-represented litigants may be conclusory. Even self- represented litigants are required to allege facts in the complaint which, if true, state a claim for relief as a matter of law. Martin v. Aubuchon,

(8th Cir. 1980); see also Stone

-2- v. Harry,

(8th Cir. 2004) (federal courts are not required to “assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint”). In addition, affording a complaint the benefit of a liberal construction does not mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes by those who proceed without counsel. See McNeil v. U.S.,

(1993).

The Complaint Plaintiff Brett Chilton, an inmate incarcerated at Ste. Genevieve Detention Center, brings this civil action pursuant to

against the Missouri Department of Social Services, the 36th Circuit Court of Butler County, Missouri, Social Services Specialist Tammy Peters, Unit Supervisor Brian Jones and Attorney Samantha Pennington Evans. All parties appear to be Missouri citizens. Plaintiff alleges his constitutional rights were violated in his family court proceedings in which he faces termination of his parental rights. He claims that his prior family court attorney, Samantha Pennington Evans, withdrew from representing him in the family court proceedings,

and did not provide effective legal counsel. For relief, plaintiff asks for an injunctive relief in the form of family counseling, as well as monetary damages. Discussion This case will be dismissed due to lack of jurisdiction “The domestic relations exception, first articulated in Barber v. Barber,

(1858), divests the federal courts of jurisdiction over any action for which the subject is a divorce, allowance of alimony, or child custody.” Khan v. Khan,

(8th Cir. 1994) (internal citation amended). Even “when

-3- a cause of action closely relates to but does not precisely fit into the contours of an action for divorce, alimony or child custody, federal courts generally will abstain from exercising jurisdiction.”

In the case at bar, plaintiff is asking this Court to determine that defendants, the Missouri Department of Social Services and its employees, committed wrongdoing in connection with state

child custody proceedings. This Court cannot change state custodial determinations. See Ankenbrandt v. Richards,

(1992) (questions concerning child custody are left entirely to state courts to answer). Because the domestic relations exception divests this Court of jurisdiction, this case will be dismissed without prejudice. See Fed. R. Civ. P. 12(h)(3). Additionally, plaintiff cannot pursue a claim for ineffective assistance of counsel against a private attorney who is not acting under “color of state law” and lawfully withdrew from representing him in a family court proceeding. See West v. Atkins,

(1988) (To state a claim under

, a plaintiff must establish: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation of that right was committed by a

person acting under color of state law). For these reasons, plaintiff’s complaint is subject to dismissal pursuant to

(e) because it is legally frivolous or fails to state a claim upon which relief can be granted. Accordingly, IT IS HEREBY ORDERED that plaintiff’s application to proceed in district court without prepaying fees or costs [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that the plaintiff shall pay an initial filing fee of $8.46 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance

-4- payable to “Clerk, United States District Court,” and to include upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel [ECF No. 3] is DENIED AS MOOT. IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in good faith. A separate Order of Dismissal will be entered herewith. Dated this 28" day of June, 2024.

UNITED STATES DISTRICT JUDGE

5-