United States District Court, E.D. Oklahoma
OPINION AND ORDER
A. White United States District Judge
the court is the Petition for Writ of Habeas Corpus Under 28
USC § 2241. Plaintiff, EMZ-G, a minor child, requests
the “immediate return to the care and custody of his
biological mother, ” and the dismissal of an alleged
deprived child petition filed in Muskogee County District
Court [Docket No. 2, Page 8]. The petition is signed by
Plaintiff's biological mother, Holly Zuniga-Griffin.
court construes Plaintiff's allegations liberally as
Plaintiff is pro se. See Haines v. Kerner,
404 U.S. 519 (1972). Additionally, the court notes that the
biological mother cannot represent EMZ-G in this action.
Pursuant to Fed.R.Civ.P. 17(c), “a minor child cannot
bring suit through a parent acting as next friend if the
parent is not represented by an attorney.” Meeker
v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986).
petition is a list of accusations against the Defendant.
Plaintiff's arguments involve the “wrongful
detainment” of EMZ-G, the minor child who is currently
in temporary custody of DHS. Plaintiff's arguments are
“completely lacking in legal merit and patently
frivolous.” Lonsdale v. United States, 919
F.2d 1440, 1448 (10th Cir. 1990).
for Writ of Habeas Corpus Under 28 U.S.C. §
has filed the claims as a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241. This statute generally states
that such actions pertain to a “prisoner” who is
in custody under the authority of the United States, or is in
custody in violation of the Constitution or laws or treaties
of the United States. The United States Supreme Court
previously decided the question of whether federal habeas
corpus jurisdiction may be invoked to challenge a state
taking custody of minor children:
Although a federal habeas corpus statute has existed ever
since 1867, federal habeas has never been available to
challenge parental rights or child custody. Indeed, in two
cases, the Court refused to allow the writ in such instances.
Matters v. Ryan, 249 U.S. 375, 39 S.Ct. 315, 63
L.Ed. 654 (1919); In re Burrus, 136 U.S. 586, 10
S.Ct. 850, 34 L.Ed. 1500 (1890). These decisions rest on the
absence of a federal question, but the opinions suggest that
federal habeas corpus is not available to challenge child
custody. Moreover, federal courts consistently have shown
special solicitude for state interests “in the field of
family and family-property arrangements.” United
States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507,
16 L.Ed.2d 404 (1966). Under these circumstances, extending
the federal writ to challenges to state child-custody
decisions-challenges based on alleged constitutional defects
collateral to the actual custody decision-would be an
unprecedented expansion of the jurisdiction of the lower
Lehman v. Lycoming Cty. Children's Servs.
Agency, 458 U.S. 502, 511-12, 102 S.Ct. 3231, 3237-38,
73 L.Ed.2d 928 (1982). See also, Anderson v. State of
Colorado, 793 F.2d 262, 263 (10th Cir. 1986) (“Mr.
Anderson may not use federal habeas corpus as a vehicle to
undo the custody decision of the Colorado court.”)
U.S.C. § 1915
1915 of the United States Code, Title 28, states as follows:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief
may be ...