United States District Court, E.D. Tennessee, Knoxville Division
ANTHEA K. HENDRIX TOUTGES, Plaintiff,
JENNIFER MCKAIG and DENNIS G MCKAIG, Defendants.
MEMORANDUM OPINION AND ORDER
REEVES, UNITED STATES DISTRICT JUDGE
case concerns the limited conservatorship of Joel McKaig.
Plaintiff Anthea K. Hendrix Toutges,  pro se, seeks to
remove to this Court the case In re The Limited
Conservatorship of Joel McKaig, in which she is the
most-recent petitioner, and bring additional claims against
Jennifer McKaig and Dennis McKaig (collectively
“Defendants” or “original
Defendants”). Plaintiff has filed her fifth amended
complaint without leave of the Court or consent from opposing
counsel and has made a flurry of voluminous filings in this
case through substantial motion practice. Before the Court
are four motions: (1) Plaintiff's motion for leave to
proceed in forma pauperis [D. 1, 15]; (2) Defendants'
motion to remand to state court [D. 8]; (3) Defendants'
motion to dismiss for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted;
and (4) Defendants' motion to stay the case [D. 21]. The
parties have responded to each and all are ripe for
adjudication. Further, as leave to amend has not been
granted, the Court will construe Plaintiff's third,
fourth, and fifth “Amended Complaints” as motions
to amend her complaint.
Plaintiff has blended the removed state court action with
further allegations, the Court will attempt to partition the
claims accordingly and address each in the proper context. To
that end, the Court will first address Plaintiff's motion
to proceed in forma pauperis, then address
Defendant's motion to dismiss, Plaintiff's three
additional amended complaints as motions to amend,
Defendants' motion for remand, Defendants' motion to
stay the case, and, lastly, Defendants' request for
attorney's fees under 28 U.S.C. § 1447.
back to 2001, there has been litigation regarding the care of
Joel McKaig, a ward of the State of Tennessee. See
Petition for Appointment of Conservator, In re The
Limited Conservatorship of Joel McKaig, No. 01CH1436
(Anderson Cty. Ch. Ct. May 11, 2001). On May 11, 2001, the
State of Tennessee Department of Children's Services
petitioned the Anderson County Chancery Court for the
appointment of a conservator for Joel McKaig. At some point,
Plaintiff, Joel McKaig's mother, was appointed as
conservator for Joel McKaig. In August 16, 2018, Plaintiff
was relieved of this role and Jennifer McKaig, Joel
McKaig's sister, was appointed as conservator pursuant to
an Agreed Final Judgment. See Agreed Final Judgment,
In re The Limited Conservatorship of Joel McKaig,
No. 01CH1436 (Anderson Cty. Ch. Ct. Aug. 16, 2018).
November 5, 2018, Plaintiff filed a petition to remove
Jennifer McKaig as conservator for Joel McKaig. See
Amended Petition for Removal of Conservator, In re The
Limited Conservatorship of Joel McKaig, No. 01CH1436
(Anderson Cty. Ch. Ct. Nov. 5, 2018). Litigation ensued,
resulting in a Temporary Restraining Order against Plaintiff.
In July 2019, the Anderson County Chancery Court issued
another Restraining Order against Plaintiff.
September 9, 2019, Plaintiff sought to remove her Petition
[D. 9, 16], and ultimately the case, to this Court and moved
to proceed in forma pauperis [D. 1, 15]. After
Plaintiff twice amended her complaint [D. 4, 5], Defendant
moved to remand the case back to the Anderson County Chancery
Court on September 18, 2019 [D. 8]. Plaintiff responded twice
[D. 10, 11]. As Plaintiff's complaint in this case added
various federal and state law claims, Defendant also moved to
dismiss the case for lack of subject matter jurisdiction and
failure to state a claim upon which relief may be granted on
September 27, 2019 [D. 13]. Plaintiff responded three times
[D. 18, 19, 23] and again amended her complaint without leave
of the Court or agreement of Defendants on September 30, 2019
[D. 17]. Defendants then moved to stay the case on October 8,
2019 [D. 21], which Plaintiff opposed [D. 22]. Plaintiff and
Defendants also replied to the responses to the
aforementioned motions. Finally, Plaintiff again amended her
complaint without leave of the Court or agreement of the
Defendants on October 30, 2019 and November 5, 2019 [D. 27,
Motions to Proceed in Forma Pauperis
seeks to proceed in forma pauperis under 28 U.S.C.
§ 1915. The purpose of 28 U.S.C. § 1915 is to
ensure that indigent litigants have meaningful access to the
courts. Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 342 (1948); Neitzke v. Williams, 490
U.S. 319, 324 (1989). The statute therefore allows a litigant
to commence a civil or criminal action in federal court
without paying the administrative costs of the lawsuit.
Denton v. Hernandez, 504 U.S. 25, 27 (1992).
Court's review of an in forma pauperis
application is normally based solely on the affidavit of
indigence. See Gibson v. R.G. Smith Co., 915 F.2d
260, 262-63 (6th Cir. 1990). The threshold requirement which
must be met in order to proceed in forma pauperis is that the
petitioner show, by affidavit, the inability to pay court
fees and costs. 28 U.S.C. § 1915(a).
one need not be absolutely destitute to enjoy the benefit of
proceeding in forma pauperis. Adkins, 335
U.S. at 342. An affidavit to proceed in forma
pauperis is sufficient if it states that the petitioner
cannot, because of poverty, afford to pay for the costs of
litigation and still pay for the necessities of life.
Id. at 339. The decision to grant or deny such an
application lies within the sound discretion of the Court.
Phipps v. King, 866 F.2d 824, 825 (6th Cir. 1988).
In the present case, the petitioner's Application to
Proceed Without Prepayment of Fees and petitioner's
economic status have been considered in making the decision
of whether to grant leave to proceed in forma
pauperis. The application sets forth grounds for so
proceeding. The Applications to Proceed Without Prepayment of
Fees will be granted. However, as the case will be dismissed
herein, summons should not be issued.
Motion to Dismiss
have moved to dismiss the second amended complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief may be granted. As previously noted, this
case involves removal and added claims. The propriety of
removal will be discussed infra, and the Court's
analysis of jurisdiction and sufficiency focus on
Plaintiff's additional claims. In the interest of
thoroughness, the Court will first address questions of
jurisdiction, then turn to the sufficiency of the claims.
Standard of Review
allegations of a complaint drafted by a pro se
litigant are held to less stringent standards than formal
pleadings drafted by lawyers in the sense that a pro se
complaint will be liberally construed in determining whether
it fails to state a claim upon which relief could be
granted.” Jourdan v. Jabe, 951 F.2d 108, 110
(6th Cir.1991) (citing Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see also Haines v. Kerner, 404 U.S.
519, 520 (1972). However, the “lenient treatment
generally accorded to pro se litigants has limits.”
Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). Courts have not been “willing to abrogate basic
pleading essentials in pro se suits.”
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)
(citing cases). Liberal federal pleading standards do not
permit litigants-even those acting pro se-to proceed
on pleadings that are not readily comprehensible. Cf.
Becker v. Ohio State Legal Servs. Ass'n, 19
Fed.Appx. 321, 322 (6th Cir. 2001) (upholding district
court's dismissal of pro se complaint containing
“vague and conclusory allegations unsupported by
material facts”); Janita Theresa Corp. v. United
States Attorney, No. 96-1706, 1997 WL 211247, at *1 (6th
Cir. Apr.28, 1997) (upholding district court's dismissal
of pro se complaint whose allegations were
“far too muddled to serve as a basis for a proper
to dismiss for lack of subject matter jurisdiction under
Fed.R.Civ.P. 12(b)(1) generally come in two varieties. First,
a facial attack on the basis for subject matter jurisdiction
alleged in a complaint merely questions or tests the
sufficiency of the pleading. In considering such facial
attacks, the correct standard of review for a trial court is
to take the allegations of fact in the complaint as being
true. Ohio Nat. Life Ins. Co. v. United States, 922
F.2d 320, 325 (6th Cir. 1990). On the other hand, when a
court reviews a complaint which is under factual attack by a
defendant, the allegations of fact in the complaint are not
presumed to be true. If there is a factual dispute, the
district court must weigh the conflicting evidence to
determine whether jurisdiction exists. The district court has
broad discretion to consider affidavits, documents outside
the complaint, and to even conduct a limited evidentiary
hearing, if necessary, to resolve disputed jurisdictional
facts. Id. Consideration of such evidence does not
convert the motion into one for summary judgment.
considering a motion to dismiss under Rule 12(b)(6), a court
must accept the complaint's factual allegations as true
and construe the complaint in the light most favorable to the
plaintiff. Trzebuckowski v. City of Cleveland, 319
F.3d 853, 855 (6th Cir. 2003). A court may not grant a Rule
12(b)(6) motion based on disbelief of a complaint's
factual allegations, Lawler v. Marshall, 898 F.2d
1196, 1199 (6th Cir. 1990), but the court need not accept
naked assertions, such as “legal conclusions or
unwarranted factual inferences.” Morgan v.
Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.
1987). Indeed, “[the] complaint must contain either
direct or inferential allegations respecting all the material
elements to sustain a recovery under some viable legal
theory.” Scheid v. Fanny Farmer Candy Shops,
Inc., 859 F.2d 434 (6th Cir. 1988).
Subject Matter Jurisdiction
have attacked the sufficiency of jurisdiction based on the
complaint itself, which is a facial attack. As such, the
Court construes the allegations of fact in the complaint as
considering whether to dismiss a complaint for lack of
subject matter jurisdiction, the plaintiff bears the burden
of providing the existence of subject matter jurisdiction.
Walburn v. Lockheed Martin Corp., 431 F.3d 966, 970
(6th Cir. 2006). A plaintiff, even one who is proceeding
pro se, must comply with basic pleading requirements
and is prohibited from “simply referencing a federal
statute or constitutional provision” Bryant v. U.S.
Atty. Gen., 2006 WL 2612730 at *1, 3 (E.D. Tenn. Sept 8,
1331 and 1332 set forth the statutory bases for this
court's subject matter jurisdiction. See 28
U.S.C. §§ 1331, 1332. Section 1331 governs
“federal question jurisdiction, which requires a
plaintiff to plead a colorable claim that arises under the
United States Constitution or federal statutes enacted by
Congress.” See 28 U.S.C. § 1331. Section
1332 applies to case arising under diversity jurisdiction.
See 28 U.S.C. § 1332.
Plaintiff asserts that this Court “has original
jurisdiction under 28 U.S.C. § 1331”and references
several federal statutes. However, these unexplained
references to federal statutes fall short of even the lenient
pleading standards afforded to pro se plaintiffs. As
is discussed infra, the federal statutes cited to do
not provide a cause of action and, likewise, do not provide a
basis for federal question jurisdiction.
diversity jurisdiction, Plaintiff has not alleged a basis for
diversity jurisdiction beyond a checked box on the civil
cover sheet. Nevertheless, Plaintiff does allege that she is
a resident of Tennessee, Jennifer McKaig is a resident of New
York, and Dennis McKaig is a resident of California,
satisfying the diversity requirement. However, Plaintiff has
not alleged damages, instead seeking injunctive relief. In
actions seeking equitable relief, “the amount in
controversy is measured by the value of the object of the
litigation.” Hunt v. Wash. State Apple Adver.
Comm'n., 432 U.S. 333, 347 (1977). The value of the
object of the litigation “is not necessarily the money
judgment sought or recovered, but rather the value of the
consequences which may result from the litigation.”
Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d
250, 253 (6th Cir. 2011) (quoting Lodal, Inc. v. Home
Ins. Co. of Ill., No. 95-2187, 156 F.3d 1230, 1998 WL
393766, at *2 (6th Cir. June 12, 1998)). Here, Plaintiff has
sought the dissolution of a state court's injunction,
transfer of conservatorship, mandatory family therapy,
injunctive relief against Defendants from
“disparaging” Plaintiff, compelled transfer of
the state court case, removal of the state court judge, and
replacement of Joel McKaig's guardian ad litem and
attorney ad litem. Much of this relief sought is well beyond
the limited power and authority of this Court. The forms of
relief that may be valid have not been alleged to, nor appear
to, exceed the $75, 000 threshold.
Plaintiff has not alleged a valid federal question or a
sufficient basis for diversity jurisdiction, Plaintiff has
not met her burden of providing the existence of subject
Failure to State a Claim Upon Which ...