United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Timothy J. Cavan United States Magistrate Judge
Dawn Hoots filed a motion to proceed in forma pauperis (Doc.
1) and a Petition for Writ of Habeas Corpus and Emergency
Motion for Return of Child (Doc. 2). Ms. Hoots's motion
to proceed in forma pauperis is sufficient to make the
showing required by 28 U.S.C. §1915(a). (Doc. 1.) The
request to proceed in forma pauperis will be granted. 28
U.S.C. § 1915(a). The petition for writ of habeas corpus
should be denied.
SCREENING PURSUANT TO 28 U.S.C. § 1915
Ms. Hoots is proceeding in forma pauperis, the Court must
review her Complaint under 28 U.S.C. § 1915. Section
1915(e)(2)(B) requires the Court to dismiss a complaint filed
in forma pauperis before it is served if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief.
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege
the “grounds” of her “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
document filed pro se is ‘to be liberally
construed, ' and ‘a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardu, 551 U.S. 89,
94 (2007); cf. Fed. Rule Civ. Proc. 8(e)
(“Pleadings must be construed so as to do
Hoots initiated this action by filing a “Petition for
Writ of Habeas Corpus and Emergency Motion for Return of
Child.” But a writ of habeas corpus is not an available
remedy in a federal civil case involving child custody. 28
U.S.C. § 2254(a) provides that federal courts
“shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.” The Supreme Court has expressly
held that children in foster care are not “in
custody” of the State for purposes of Section 2254.
Lehman v. Lycoming Cnty. Children's Servs., 458
U.S. 502, 510-11 (1982). Simply put, “the
‘custody' of foster or adoptive parents over a
child is not the type of custody that traditionally has been
challenged through federal habeas.” Id. at
511. Such children “are not prisoners[, ] [n]or do they
suffer any restrictions imposed by a state criminal justice
system.” Id. at 510. “They are in the
‘custody' of their foster parents in essentially
the same way, and to the same extent, other children are in
the custody of their natural or adoptive parents.”
Id. at 510-11.
Supreme Court therefore declined to extend federal habeas
jurisdiction under Section 2254 to challenges involving the
custody of children. Id. at 516; see also Bell
v. Dep't of Soc. & Health Servs., 382 Fed.Appx.
669, 670 (9th Cir. 2010) (reaffirming that there is no
federal habeas jurisdiction “to challenge the
constitutionality of a state statute under which a State has
obtained custody of children and terminated involuntarily the
parental rights of their natural parent.”)
Hoots's request for a writ of habeas corpus regarding the
custody of her children is beyond the purview of Section
2254. A writ of habeas corpus is simply unavailable for this
type of challenge.
upon the foregoing, the Court issues the following:
Motion to Proceed in Forma ...