Breedt et al v. Breedt et al

ILEi
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
i^OV. 2 8
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.
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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
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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
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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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