Breedt et al v. Breedt et al, No. 1:2022cv01019 - Document 5 (D.S.D. 2022)
Court Description: MEMORANDUM OPINION AND ORDER. Signed by U.S. District Judge Charles B. Kornmann on 11/28/2022. (VMM)
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Breedt et al v. Breedt et al Doc. 5 Case 1:22-cv-01019-CBK Document 5 Filed 11/28/22 Page 1 of 4 PageID #: 23 ILEi UNITED STATES DISTRICT COURT i^OV. 2 8 DISTRICT OF SOUTH DAKOTA NORTHERN DIVISION CHRISTIAAN THEUNIS GERTSE I:22-CV-0I0I9-CBK BREEDT, JRB, A MINOR CHILD; Plaintiffs, MEMORANDUM OPINION vs. AND ORDER AMY JO BREEDT,THOMAS SANNES, PAMELA JEAN SCHULTE, Defendants. Plaintiff Christiaan Theunis Gertse Breedt filed a pro se complaint on his behalf and, ostensibly, on behalf of his minor child. Plaintiff has failed to allege compliance with Fed. R. Civ. P. 17(c)(1). As such he has no authority to assert claims on behalf of JRB and JRB is not a proper party to this action. Plaintiff contends that this Court has federal question subject matter jurisdiction, citing 42 U.S.C. Chapter 21 [42 U.S.C. §§ 2000a, etseq., prohibition of exclusion from participation in federal benefits or exclusion of or participation in a program receiving federal financial assistance on the basis of discrimination], the Civil Rights Act of 1964 [failing to refer to which ofthe eleven Titles is applicable to this case], several federal criminal statutes, 42 U.S.C. § 1983, and Article 13 of the International Bill of Rights. Plaintiff contends that defendants are engaged in a "pay to play extortion scheme" interfering with his ability to travel with his minor child to South Africa. Plaintiff has filed a request for a temporaiy restraining order preventing "civil rights violations and extortion ofrights." Although not stated in his motion, plaintiff states in an attachment to his complaint that there is a state court hearing on November 29, 2022, wherein defendants seek to deny plaintiff and his minor child "rights to travel. Dockets.Justia.com Case 1:22-cv-01019-CBK Document 5 Filed 11/28/22 Page 2 of 4 PageID #: 24 religion, freedom of choiee, freedom and privacy ofintimate relationships, right of privacy in worship ..." I take judicial notice ofthe files ofthe South Dakota Circuit Courts available on the ecourts.sd.gov web site. The only case currently pending involving plaintiff Christiaan Breedt is the divorce action filed by Amy Jo Breedt in the South Dakota Circuit Court, Third Judicial Circuit, Codington County, 14DIV20-000059. The divorce was final in that case on August 31, 2021. The parties have continued to litigate issues concerning Christiaan Breedt's visitation with the parties' minor child. On October 5, 2022, Christiaan Breedt filed, through counsel of record, a motion to take his minor child to South Africa for visitation. An amended notice of hearing was filed by counsel for Christiaan Breedt on October 18, 2022, noticing the hearing for November 29,2022. The proposed visitation takes place in March of 2023. "Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton. 568 U.S. 251, 256, 133 S. Ct. 1059, 1064, 185 L. Ed. 2d 72(2013)(internal quotations omitted)(quotins Kokkonen v. Guardian Life Ins. Co. of America. 511 U.S. 375. 377. IHS.Ct. 1673, 128 L.Ed.2d 391 (1994)). "The threshold inquiry in every federal case is whether the court has jurisdiction" and the Eighth Circuit has "admonished district judges to be attentive to a satisfaction ofjurisdictional requirements in all cases." Rock Island Millwork Co. v. Hedges-Gough Lumber Co.. 337 F.2d 24, 26-27(8th Cir. 1964), and Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987). As a threshold matter, the district court must determine whether federal subject matter jurisdiction exists and this Court may raise such issue sua sponte. Auto-Owners Inc. Co. v. Tribal Court of Spirit Lake Indian Reservation. 495 F.3d I0I7, 1020 (8th Cir. 2007). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws ofthe United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins. 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40(1988). "Section 1983 secures most constitutional rights from infringement by governments, not private 2 Case 1:22-cv-01019-CBK Document 5 Filed 11/28/22 Page 3 of 4 PageID #: 25 parties." Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590(8th Cir. 2004). Plaintiff has failed to allege that any defendant is a person acting under color of state law. It appears from the complaint and the attachment that the complained-of alleged acts ofthe defendants were purely priyate actions. Plaintiffs citation to 42 U.S.C. Chapter 21 and the Ciyil Rights Act of 1964 similarly fail to satisfy the jurisdictional requirement. Plaintiff has not alleged that he was discriminated in or excluded from participation in a program receiying federal funds. Nor has he alleged any acts of the defendants prohibited by the Ciyil Rights Act of 1964. Plaintiff has no priyate cause of action for alleged criminal yiolations of 18 U.S.C. § 876(mailing threatening communications), 18 U.S.C. § 878 (threats and extortion against foreign officials, et al), 18 U.S.C. § 241 (conspiracy against rights), 18 U.S.C. § 242(depriyation of rights under color of law), or 18 U.S.C. § 245 (federally protected actiyities). Article 13 ofthe Uniyersal Declaration ofHuman Rights guarantees freedom of moyement within the borders of each state and the right to leaye any country and to return to one's country. The Declaration "did not itself create obligations enforceable in the federal courts." Sosa y. Alyarez-Machain, 542 U.S. 692, 735, 124 S. Ct. 2739, 2767, 159 L.Ed. 2d 718(2004). This matter is subject to sua sponte dismissal for lack offederal subject matter jurisdiction. Eyen if this court otherwise possessed subject matter jurisdiction oyer plaintiffs claims, the "domestic relations exception first articulated in Barber y. Barber,62 U.S.(1 How.)582, 584, 16 L.Ed. 226(1859), diyests the federal courts ofjurisdiction oyer any action for which the subject is a diyorce, allowance of alimony, or child custody" or where the claims "are so inextricably intertwined with" matters incident to the diyorce proceeding. Kahn y. Kahn.21 F.3d 859, 861 (8th Cir. 1994). Plaintiffs claims arise out of his claim that defendants are interfering with his rights to yisitation, including yisitation out ofthe country. Such matters are inextricably intertwined with matters of Case 1:22-cv-01019-CBK Document 5 Filed 11/28/22 Page 4 of 4 PageID #: 26 child custody and visitation incident to the divorce proceeding. The domestie relations exception divests this Court ofjurisdiction over such matters. Now,therefore, IT IS ORDERED: 1. Plaintiffs motion. Doc. 2, for a temporary restraining order is denied. 2. This matter is dismissed with prejudice. DATED this 28th day of November, 2022. BY THE COURT: CHARLES B. KORNMANN United States District Judge
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