Full opinion text
MEMORANDUM AND ORDER LUNGSTRUM, District Judge. The court referred to United States Magistrate Judge Gerald L. Rushfelt for report and recommendation eleven separate motions in the above captioned case. Those motions are as follows: 1. Motion for Dismissal of 92JC1481 (Doc. #4) filed by plaintiff; 2. Motion for Restraining Order (Doe. # 5) filed by plaintiff; 3. Motion for Removal of C111627/92JC1481 from the District Court of Johnson County, Kansas (Doc. # 6) filed by plaintiff; 4. Motion to Dismiss (Doc. # 17) filed by defendant Thomas C. Owens; 5. Special Appearance and Motion to Dismiss Challenging Service/Process/Jurisdietion (Doc. # 19) filed by defendant Stephen M. Fletcher; 6. Special Appearance and Motion to Dismiss Challenging Jurisdiction (Doc. #20) filed by defendant Ronald Oltremari, Sr.; 7. Special Appearance and Motion to Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (Doc. #21) filed by defendant Colin Oltremari; 8. Special Appearance and Motion to Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (Doc. #22) filed by defendant Ronald Oltremari, Jr.; 9. Motion to Dismiss by Kansas Department of Social and Rehabilitative Services (SRS) (Doe. #23); 10. Motion to Dismiss by defendant Johnson County District Attorney’s Office (Doc. #27); 11. Motion to Oppose Dismissal (Doc. # 31) filed by plaintiff. On October 26, 1994, Judge Rushfelt submitted his Report and Recommendation to the district court. Pursuant to the provisions of Federal Rule of Civil Procedure 72(b), each party had the right within ten days after being served with a copy of the recommended disposition to serve and file specific, written objections to the proposed findings and recommendations. No such objections were filed by any party to the case. The court has carefully reviewed Judge Rushfelt’s extremely thorough report and recommendation, which runs to a total of 77 pages. Judge Rushfelt was thoughtful and detailed in his analysis. He relied on well established legal principles and applied them to this case with care. The court is aware of no reason why the report and recommendation should not be adopted in its entirety. Although not called upon to do so by any party, the court has, nonetheless, specifically reviewed de novo the argument that the court should decline jurisdiction of this case under the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The court is persuaded that it should, in fact, so abstain on that basis in the interests of federalism. Moreover, the court is also persuaded upon its independent review that the complaint should be dismissed, sua sponte, on the basis of Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) (“[U]nder Fed.R.Civ.P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.”). Because Susan McDaniel is not a lawyer, she may not represent her minor child without an attorney because the right to counsel belongs to the child and the parent is powerless to waive it. Osei-Afriyie v. Medical College, 937 F.2d 876, 883 (3rd Cir.1991). For the foregoing reasons, then, the court ORDERS as follows: 1. The court overrules the motion for dismissal of 92JC1481 (Doc. # 4), the motion for restraining order (Doc. # 5), and the motion for removal of C111627/92JC1481 from the District Court of Johnson County, Kansas (Doc. #6). 2. The court deems the motion to oppose dismissal (Doc. #31) to be a response by plaintiff to the defense motions and finds it to be moot as a motion. 3. The court sustains those parts of the motions to dismiss (Docs. 17, 19 through 23 and 27) which are based on Younger abstention. 4. The court finds the balance of the motions to be moot. 5. In the alternative, were a court of appeals to determine that this court erred in abstaining under Younger, it orders the case to be dismissed, sua sponte, under Meeker v. Kercher and, alternatively, in the event that a court of appeals should determine the case was erroneously dismissed on that basis, it orders that the motions to dismiss which are documents No. 27, 21 and 22 are granted and, except as otherwise indicated, the motions to dismiss which are documents No. 17, 19, 20 and 23 are overruled. IT IS SO ORDERED. REPORT AND RECOMMENDATION RUSHFELT, United States Magistrate Judge. By various orders, the District Judge referred to the Magistrate Judge the following motions for report and recommendation: 1. Motion For Dismissal of 92JC1481 (doe. 4), filed by plaintiff; 2. Motion For Restraining Order (doc. 5), filed by plaintiff; 3. Motion For Removal of C111627/92JC1481 From The District Court of Johnson County, Kansas (doe. 6), filed by plaintiff; 4. Motion To Dismiss (doc. 17), filed by defendant Thomas C. Owens; 5. Special Appearance and Motion To Dismiss Challenging Serviee/Process/Jurisdiction (doc. 19), filed by defendant Stephen M. Fletcher; 6. Special Appearance and Motion To Dismiss Challenging Jurisdiction (doe. 20), filed by defendant Ronald Oltremari, Sr.; 7. Special Appearance and Motion To Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (doe. 21), filed by defendant Colin Oltremari; 8. Special Appearance and Motion To Dismiss Challenging Jurisdiction, Sufficiency of Process, and Sufficiency of Service of Process (doc. 22), filed by defendant Ronald Oltremari, Jr.; 9. Motion To Dismiss By Kansas Department of Social and Rehabilitative Services (SRS) (doe. 23); 10. Motion To Dismiss By Defendant Johnson County District Attorney’s Office (doe. 27); and 11. Motion To Oppose Dismissal (doc. 31), filed by plaintiff. (See Orders of April 22, May 10, 12, 25, and 26, 1994.) The Magistrate Judge respectfully submits the following report and recommendation: As a preliminary matter the court should determine whether and to what extent it has subject matter jurisdiction. Defendants raise that issue by their respective motions. “Federal courts are courts of limited jurisdiction. This court’s jurisdiction is established by the Constitution and acts of Congress. The statutory jurisdiction of this court is set forth in 28 U.S.C. § 1330, et seq.” Holloway v. Ohio, No. 93-4139-SAC, 1993 WL 302240, at *1 (D.Kan. July 27, 1993). “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3). Section 1915(d) of Title 28 of the United States Code, furthermore, “authorizes federal courts to dismiss a pro se claim ‘if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.’ A complaint ‘is frivolous where it lacks an arguable basis either in law or in fact.’ ” Holloway, 1993 WL 302240, at *2 n. 1. A complaint is frivolous within the meaning of § 1915(d), if its subject matter is outside the jurisdiction of the court. See id. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” “If the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte. Therefore, lack of jurisdiction cannot be waived and jurisdiction cannot be conferred upon a federal court by consent, inaction or stipulation.” Tuck v. United Servs. Automobile Ass’n, 859 F.2d 842, 844 (10th Cir.1988) (citations omitted), cert. denied, 489 U.S. 1080, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989). “Since federal courts are courts of limited jurisdiction, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.” Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir.1991) (citation omitted). Plaintiff has not stated a basis for federal jurisdiction in her complaint. That fact alone, however, does not determine the issue. Plaintiff proceeds pro se. Courts entertain reasonable leniency towards such parties. “The Supreme Court requires that pro se complaints be accorded more leniency when reviewed in light of a motion to dismiss.” Powell v. Kelley, 782 F.2d 1043, 1985 WL 14055, at *2 (6th Cir.1985) (Text on WEST-LAW) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); see also, Stillman v. Division of Hous. & Community Renewal, No. 88 CIV. 4135 (JFK), 1990 WL 52259, at *1 (S.D.N.Y. Apr. 18, 1990) (citing Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-77, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96 (1972)). “This requisite, coupled with the policy of liberal eonstruction of the pleadings embodied in Fed. R. Civ.P. 8(f), demands that the Court look beyond the summary statement of the untutored plaintiff and examine whether the Court in fact has subject matter jurisdiction over the claim.” Sears v. Equal Employment Opportunity Comm’n, No. CIV.A.86-2470, 1987 WL 15547, at *1 (D.D.C. Jan. 14, 1987); see also, Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir.1989) (construing plaintiffs claims as arising under the Federal Tort Claims Act, although his complaint did not state a basis for jurisdiction). “[Fjailure to set forth clear and particularized jurisdictional allegations is not fatal to [a pro se party’s] case.” Sears, 1987 WL 15547, at *1. Courts liberally construe pleadings of pro se litigants even when jurisdiction may be based upon a federal question. See Tripati v. United States Immigration & Naturalization Serv., 784 F.2d 345, 346 n. 1 (10th Cir.1986) (citation omitted), cert. denied, 484 U.S. 1028, 108 S. Ct. 755, 98 L.Ed.2d 767 (1988). Defendant SRS has suggested that the court construe the action of plaintiff as a petition for writ of habeas corpus and deny jurisdiction. Section 2254(a) of Title 28 of the United States Code provides that “a district court 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.” On first glance, this section may appear to confer jurisdiction over claims of alleged constitutional violations of a child in any type of custody. The Supreme Court has held, however, that “§ 2254 does not confer federal-court jurisdiction” in all cases of custody. Lehman v. Lycoming County Children’s Servs. Agency, 458 U.S. 502, 516, 102 S.Ct. 3231, 3240, 73 L.Ed.2d 928 (1982). Custody of a child by foster or adoptive parents or by the state “is not the type of custody that traditionally has been challenged through federal habeas____ [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 federal courts.” Id. at 511-12, 102 S.Ct. at 3237-38. Diversity jurisdiction under 28 U.S.C. § 1332(a)(1) also appears to be lacking. Section 1332(a)(1) grants federal district courts “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between ... citizens of different States.” “For purposes of diversity jurisdiction under 28 U.S.C. § 1332(a)(1), state citizenship is the equivalent of domicile. To effect a change in domicile, two things are indispensable: First, residence in a new domicile, and second, the intention to remain there indefinitely.” Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir.1983). “Domicile” is not necessarily synonymous with “residence,” and one can reside in one place but be domiciled in another. For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there. One acquires a “domicile of origin” at birth, and that domicile continues until a new one (a “domicile of choice”) is acquired. Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989) (citations omitted). Domicile, for purposes of diversity jurisdiction, is determined at the moment of filing. When an adult brings an action on behalf of his or her minor child, the domiciles of both relate to determining diversity jurisdiction. See Dunlap v. Buchanan, 741 F.2d 165, 167 (8th Cir.1984) (citation omitted). The domicile of a divorced parent who is granted custody of a child generally determines the domicile of that child. See Clyde v. Ludwig Hardware Store, Inc., 815 F.Supp. 688, 690 (S.D.N.Y.1993) (citations omitted). In eases of joint custody “it is best to resolve domicile in favor of that state in which the infant primarily resides, at least where such residence is with one of the two parents.” Id. at 691. This comports with the underlying purpose of diversity jurisdiction to protect nonresident litigants from state bias. See id. The record does not clearly reflect the domiciles of plaintiff or her mother, Susan McDaniel. The complaint shows only that they were citizens of Kansas when McDaniel divorced defendant Ronald Oltremari, Sr.; that all the parties resided in Kansas when plaintiff filed the present action, and that for a few intervening years plaintiff and her mother lived in Florida. There is no suggestion, however, that plaintiff or her mother do not intend to remain in Kansas. Nothing suggests that their domiciles are somewhere else. The party bringing suit in federal court bears the burden to demonstrate that the court has jurisdiction. In this instance diversity appears to be lacking. Plaintiff has not shown the citizenship of the parties to be diverse. “[Diversity jurisdiction attaches only when all parties on one side of the litigation are of a different citizenship from all parties on the other side of the litigation.” Depex Reina 9 Partnership v. Texas Int’l Petroleum Corp., 897 F.2d 461, 463 (10th Cir.1990). Lacking complete diversity, the court cannot find that it has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). That diversity may be lacking does not resolve the question of jurisdiction. “The district courts shall [also] have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (1993). “[T]he statutory phrase ‘arising under the Constitution, laws, or treaties of the United States’ has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts.” Franchise Tax Bd. v. Construction Laborers Vacation Trust For S. Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 2845, 77 L.Ed.2d 420 (1983). The phrase “arising under” means generally that “ ‘[a] suit arises under the law that creates the cause of action.’” Id. at 8-9, 103 S.Ct. at 2845-46 (quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916)). This common formulation “serves more as a rule of inclusion than exclusion.” Zibell v. Brull, No. 93-4057-SAC, 1993 WL 192831, at *3 (D.Kan. May 20, 1993). “‘[A] right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.’” Franchise Tax Bd., 463 U.S. at 10-11, 103 S.Ct. at 2846-47 (quoting Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936)). “[T]he vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action.” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 3232, 92 L.Ed.2d 650 (1986). Plaintiff filed her Civil Complaint in this case by using a standardized form available to pro se parties. She has attached to the complaint a document, entitled “Cause of Action.” It includes many allegations and conclusions which appear irrelevant to any claim over which this court could assert jurisdiction. Much of it describes the conduct and failures of nonparties. (See Civil Compl., doc. 3, and Cause of Action attached thereto.) In a light most favorable to plaintiff, the complaint and attachment set forth the following material allegations: Plaintiff claims that defendants Kansas Department of Social and Rehabilitative Services (SRS) and the Johnson County District Attorney’s Office have denied them constitutional due process. She further claims that defendant Thomas Owens (Owens), her guardian ad litem in state court proceedings, violated her rights of due process. She alleges that SRS financially and emotionally harassed her and her mother. She also asserts a claim of double jeopardy against defendant Owens and a claim for violation of her constitutional right against cruel and unusual punishment. (Civil Compl., at ¶ II.) She alleges that these wrongs continue to occur. (Civil Compl., at ¶ IV.) For relief she seeks to remove to this court the litigation pending in state court when she filed this action, appoint legal defense, or otherwise authorize litigation. (Civil Compl., at ¶ III.) She also seeks actual and punitive damages in the amount of $500,000 for alleged harassment. (Civil Compl., at ¶¶ V-VI.) All the claims stem from a battle between her parents for her custody. Plaintiff also seeks declarations as to the following issues: (1) whether a minor child has a fundamental right to her own legal counsel when the child asserts inalienable constitutional and legal rights; (2) whether defendants Owens, as guardian ad litem, and SRS “have acted as ‘potted plants growing their own flowers’ or as ‘an arm of a ruling’ while failing to ensure fair hearing and enforcement of said rights;” (3) whether a minor child is guaranteed access to the courts under the procedural and substantive due process clauses of the Fourteenth Amendment of the United States Constitution; (4) whether a minor child has a constitutional right to petition the court in her own name for the right to establish her jurisdiction, legal custody, and her best interests, pursuant to Section 10 of the Kansas Bill of Rights and the Fifth, Eighth, and Ninth Amendments to the United States Constitution; (5) whether Florida is the most convenient and appropriate forum to decide her best interests, considering her significant contacts with Florida “and the wealth of information available to the Court;” and (6) whether the opinions and influence of defendants SRS and Owens are in her best interests, in view of their alleged failure to fulfill their continuing legal obligations to her, their continued assertions of position contrary to her legal rights, tantamount to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution, and their continued threats to her, keeping her from enjoying a normal childhood with a permanent, stable, and healthy environment and thus violating the Fourteenth Amendment of the United States Constitution. Plaintiff also appears to assert claims of gender discrimination against defendants SRS, guardian Owens, opposing counsel Stephen M. Fletcher (Fletcher), and her father Ronald Oltremari, Sr. She alleges that defendants Owens and Fletcher have conspired to cover the dysfunctional handling of her by concocting a “custody battle.” She further alleges that Owens and Fletcher conspired to influence a state court judge. (See Cause of Action, at 2.) Plaintiff has alleged constitutional violations within the jurisdiction of this court, pursuant to 28 U.S.C. § 1331. When the complaint, as here, seeks recovery directly under the Constitution, a federal court should entertain the suit; unless the Constitutional claim clearly appears immaterial and made solely for obtaining jurisdiction or if it is wholly insubstantial and frivolous. Coppedge v. Marsh, 532 F.Supp. 423, 425-26 (D.Kan.1982) (citing Bell v. Hood, 327 U.S. 678, 681-83, 66 S.Ct. 773, 775-77, 90 L.Ed. 939 (1945)). “The reason for this is that the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy.” Id. (quoting Bell, 327 U.S. at 681-82, 66 S.Ct. at 775-76). The claimed violations of due process in this case do not clearly appear immaterial or solely made to bestow jurisdiction upon this court. Nor do they appear wholly insubstantial and frivolous. Section 1331, therefore, provides a basis for jurisdiction over those claims. See Caldwell v. Miller, 790 F.2d 589, 595, 600-05 (7th Cir.1986). The claims of double jeopardy and cruel and unusual punishment, nonetheless, appear wholly insubstantial and frivolous. The prohibition of cruel and unusual punishment of the Eighth Amendment requires that punishment be compatible “with ‘the evolving standards of decency that mark the progress of a maturing society.’ ” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). Plaintiff apparently contends that the termination of the parental rights of McDaniel is cruel and unusual punishment to plaintiff or her mother. She cites no authority for this proposition. The court should find the claim of cruel and unusual punishment frivolous and dismiss it. The court should likewise dismiss the claim of double jeopardy. The protections afforded by the double-jeopardy provision in the Fifth Amendment to the United States Constitution apply to proceedings that are “essentially criminal.” Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975). They protect a person against more than one criminal trial and punishment for the same offense. See One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972). The Supreme Court has often stated that the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. [Its] inquiry in this regard has traditionally proceeded on two levels. First, [it] ha[s] set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, [it] ha[s] inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention. In regard to this latter inquiry, [it] ha[s] noted that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.” United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980) (citations omitted). Plaintiff here suggests that her mother Susan McDaniel is subjected to double jeopardy by virtue of proceedings in state court to determine the custody and best interests of plaintiff. A criminal action in state court resulted in a conviction and punishment of Ms. McDaniel for taking plaintiff out of Kansas in violation K.S.A. 21-3422a. Plaintiff contends that her mother, as a convicted felon, is no longer a candidate for custody. She cites no authority for this proposition. Since this action was filed, however, the state court has granted custody of plaintiff to her mother. (See Mem. Decision, at 13.) This moots the issue of double jeopardy. Determination of child custody, moreover, constitutes a civil proceeding. The Kansas statutes controlling the issue are civil in character, not punitive. Termination of parental rights does not constitute punishment for a crime. Plaintiff, furthermore, would appear to have no standing to assert a double jeopardy claim for her mother. Such a claim, even if meritorious, would be her mother’s alone. The court should dismiss the claim of double jeopardy as frivolous on its face. The claims of plaintiff also invite consideration of jurisdiction under 28 U.S.C. § 1343(a). It provides: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote, (footnotes added). Section 1343(a)(1) appears to bestow jurisdiction over some of the claims for damages. Plaintiff suggests that defendants SRS, Owens, Fletcher, and Ronald Oltremari, Sr. conspired to deprive her of constitutional rights and privileges. In conjunction with § 1343(a)(1), 42 U.S.C. § 1985(3) on its face makes such conduct actionable in federal court. Section 1985(3) provides in pertinent part: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators. The Supreme Court has interpreted this statute: [A]ll indicators — text, companion provisions, and legislative history' — point unwaveringly to § 1985(3)’s coverage of private conspiracies. That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others____ The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnote omitted). To engage federal jurisdiction, therefore, the alleged conspiracy must have some racial or other class-based, invidiously discriminatory animus for its motivation. Plaintiff has not asserted racial discrimination. Liberally construed, however, the complaint alleges that defendants SRS, Owens, Fletcher, and Ronald Oltremari, Sr. conspired to discriminatorily deny constitutional rights to plaintiff because of her gender. At least one decision in the District of Kansas has “conclude[d] that a conspiracy motivated by gender-based animus is actionable under § 1985(3).” Women’s Health Care Servs., P.A. v. Operation Rescue-National, 773 F.Supp. 258, 264 (D.Kan.1991), rev’d on other grounds, 24 F.3d 107 (10th Cir.1994). Granting reasonable liberality to the pro se complaint, the court should construe it to include a claim for damages for discriminatorily harassing plaintiff and violating her constitutional rights because of her gender. The court would have jurisdiction over this claim, pursuant to 28 U.S.C. § 1343(a)(1) or (3). Although the complaint appears to assert claims for damages and other relief consistent with 28 U.S.C. §§ 1331 and 1343(a) by alleging violations of constitutional and statutory rights, it also challenges an anticipated termination of parental rights and adverse determination of custody over plaintiff. Federal courts have varied in applying a jurisdictional exception to federal and constitutional claims involving intra-family disputes, such as underlie this case. See Ingram v. Hayes, 866 F.2d 368, 370-72 (11th Cir.1988) (discussing the different approaches). Neither the Tenth Circuit Court of Appeals nor the District of Kansas appears to have ruled on such an exception. The Supreme Court has not considered it. Discussing a similar exception to diversity jurisdiction, the Tenth Circuit Court stated: The contemporary rationale for the domestic relations exception is premised on policy considerations. Courts have reasoned that: (1) the states have a strong interest in domestic relations matters and have developed an expertise in settling family disputes; (2) such disputes often require ongoing supervision, a task for which the federal courts are not suited; (3) federal adjudication of such disputes increases the chances of incompatible or duplicative federal and state court decrees; and (4) such cases serve no particular federal interest, while they crowd the federal court docket. Vaughan, 883 F.2d at 65. The Eleventh Circuit “has suggested that the domestic relations exception only applies to diversity jurisdiction.” Ingram, 866 F.2d at 370 (citing McDougald v. Jenson, 786 F.2d 1465 (11th Cir.), cert. denied, 479 U.S. 860, 107 S.Ct. 207, 93 L.Ed.2d 137 (1986)). The Fifth Circuit accords. See Franks v. Smith, 717 F.2d 183 (5th Cir.1983). “The mere fact that a claimed violation of constitutional rights arises in a domestic relations context does not bar review of those constitutional issues.” Id. at 185. The court should not dismiss such claims for lack of subject matter jurisdiction, “[ujnless it is determined that an asserted constitutional violation has been forwarded solely for the purpose of obtaining federal jurisdiction or is wholly insubstantial and frivolous, or unless it is determined that such an asserted violation is clearly immaterial to the case.” Id. The Third Circuit has also noted “that the domestic relations exception per se applies only to actions in diversity.” Flood v. Braaten, 727 F.2d 303, 307 (1984). The Sixth Circuit has “rejeet[ed] the rationale that [a] district court [cannot] determine domestic relations issues when they arise in the context of a question properly within the jurisdiction of the federal courts.” Huff v. Metropolitan Life Ins. Co., 675 F.2d 119, 122 (1982). The Sixth Circuit has warned, however, that “when brought under the guise of a federal question action, a suit whose substance is domestic relations generally will not be entertained in a federal court.” Firestone v. Cleveland Trust Co., 654 F.2d 1212, 1215 (1981). The First Circuit has refused to apply a domestic relations exception in federal question cases which do not probe the domestic affairs of the parties or otherwise implicate the prudential concerns behind the exception. Fernos-Lopez v. Figarella Lopez, 929 F.2d 20, 22-23 (1st Cir.), cert. denied, 502 U.S. 886, 112 S.Ct. 244, 116 L.Ed.2d 199 (1991). The Ninth Circuit has noted in dictum that “federal courts decline to hear disputes which would deeply involve them in adjudicating domestic matters,” even when the ease presents a federal question. Thompson v. Thompson, 798 F.2d 1547, 1558 (9th Cir. 1986) (per curiam), aff'd, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (the Supreme Court did not discuss the domestic relations exception). The Ninth Circuit, moreover, applies the exception when a state court action concerning similar issues is pending. Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983). It has held that plaintiffs are at liberty to present whatever constitutional claims they may have to the state court. Id. It has further held that “[a] federal court has jurisdiction over cases when domestic relations issues are implicated only tangentially, but may decline to exercise that jurisdiction where the issues involved are closely related to issues within the domestic relations exception and considerations of comity and policy counsel against federal court intervention.” Fern v. Turman, 736 F.2d 1367, 1370 (9th Cir.1984) (citations omitted). The Eighth Circuit has held that “[w]here a constitutional issue arises out of a custody dispute, and the initial determination involves a reexamination of the custody arrangement, the proper course is to dismiss the case and remand to the state court.” Bergstrom v. Bergstrom, 623 F.2d 517, 520 (8th Cir.1980). The Second Circuit has concluded that federal courts may hear purely constitutional questions that arise from domestic relations disputes, but must apply the domestic relations exception and abstain from jurisdiction, when the district court “could become enmeshed in factual disputes.” Hernstadt v. Hernstadt, 373 F.2d 316, 318 (2d Cir.1967). In this instance it does not matter whether a domestic relations exception to federal question jurisdiction exists. The exception, as defined in the context of diversity jurisdiction by the Supreme Court in Ankenbrandt, appears inapplicable here. By her complaint plaintiff does not specifically ask for a divorce, the imposition of alimony, or a determination of custody. Although her claims may arise from a custody dispute, the court need not determine custody to address the claims. The proper inquiry focuses on the type of determination the federal court must make in order to resolve the claim. If the federal court is called upon to decide those issues regularly decided in state court domestic relations actions such as divorce, alimony, child custody, or the support obligations of a spouse or parent, then the domestic relations exception is applicable. Vaughan, 883 F.2d at 65. This court appears to have subject matter jurisdiction, therefore, over at least some of the claims for damages and violations of due process and gender discrimination, pursuant to 28 U.S.C. §§ 1331 and 1343(a). Plaintiff has not “clothed her complaint in the garb of a civil rights action ... [when] her claim [actually] boils down to a demand for custody of [a] child.” See Sutter v. Pitts, 639 F.2d 842, 844 (1st Cir.1981). Nor does it appear that the relief sought is simply an appellate review of a state court judgment. Pursuant to 28 U.S.C. § 1367(a) the court also appears to have supplemental jurisdiction over some of the other claims of plaintiff. Section 1367(a) provides in pertinent part that in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form the same ease or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. Congress enacted this section “to avoid piecemeal litigation.” Roe v. Little Co. of Mary Hosp., 800 F.Supp. 620, 623 (N.D.Ill. 1992). To invoke supplemental jurisdiction, plaintiff need only demonstrate that the claims not within the original jurisdiction of the court form part of the “same case or controversy under Article III” as their federal claims. Fasco Indus., Inc. v. Mack, 843 F.Supp. 1252, 1256 (N.D.Ill.1994). “In the process of making this determination, the court must define this 'same case or controversy’ concept as it must be understood in the context of the supplemental jurisdictional statute.” Roe, 800 F.Supp. at 623. Section 1367(a) provides little guidance as to what constitutes the same case or controversy under Article III, “[b]ut the legislative history of the Federal Courts Study Committee Implementation Act suggests that, at the very least, the section codifies tests developed by the Supreme Court in United Mine Workers v. Gibbs[, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ] and the Federal Courts Study Committee.” Rolex Watch, U.S.A., Inc. v. Bulova Watch Co., 820 F.Supp. 60, 63 (E.D.N.Y.1993). Gibbs suggests that “[t]he state and federal claims must derive from a common nucleus of operative fact ... [and] if ... a plaintiffs claims are such that he [or she] would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138. “This standard was designed to further judicial economy and promote fairness to the litigants. In determining whether the claims ‘derive from a common nucleus of operative fact’ the Court compared the factual findings required under the respective state and federal laws.” Goger v. Merchants Bank (In re Feifer Indus.), 141 B.R. 450, 453 (Bankr.N.D.Ga.1991). “The Federal Courts Study Committee [ (the Committee) ] describes supplemental jurisdiction as the power to address state claims arising from the same ‘transaction or occurrence’ as a federal claim.” Rolex Watch, U.S.A., Inc., 820 F.Supp. at 63-64. The Committee recommended “that Congress expressly authorize federal courts to hear any claim arising out of the same ‘transaction or occurrence’ as a claim within federal jurisdiction, including claims, within federal question jurisdiction, that require the joinder of additional parties, namely, defendants against whom that plaintiff has a closely related state claim.” Guzman v. Oxnard Lemon Assocs., Ltd., No. CV 91-6957 KN (EX), 1992 WL 510094, at *8 (C.D.Cal. Aug. 28, 1992) (quoting Report of Federal Courts Study Committee at 47-48 (1990)). The report of the Committee suggests that the primary intent behind supplemental jurisdiction was “to allow a plaintiff with a federal claim to bring a related state claim against an additional defendant.” Id. When “there is a single wrong alleged by a plaintiff arising out of an interlocked series of transactions and giving rise to the relief that is sought, the Court should find that the claims against all of the defendants form part of the ‘same case or controversy.’” Roe, 800 F.Supp. at 624. Under such circumstances “the claims against all of the defendants necessarily satisfy ‘the case of [sic] controversy’ requirement.” Fasco Indus., Inc., 843 F.Supp. at 1257. Claims against multiple defendants which form part of single injury “fall comfortably within the scope of this court’s supplemental jurisdiction.” Doe v. Abbott Labs., No. 93 C 0500, 1993 WL 278458, at *2 (N.D.Ill. July 20, 1993). All the claims of plaintiff Lynn Oltremari arise from a dispute over her legal custody. Each of them requires inquiry into the same or similar underlying facts. They derive, therefore, from a common nucleus of operative fact. Based upon an ongoing custody dispute, they also appear to arise from the same transaction or occurrence within the meaning of the cases cited above. Although plaintiff alleges more than a single wrong, her claims arise from a continuing course of alleged misconduct in two related proceedings in state court. They appear, therefore, to involve the same case or controversy. The court should find that it has subject matter jurisdiction over the claims here asserted against defendants SRS, Owens, Fletcher, Ronald Oltremari, Sr., and Johnson County District Attorney’s Office. The complaint and its attached “Cause of Action” state no claims, however, against defendants Colin Oltremari or Ronald Oltremari, Jr. The court should dismiss the complaint as to these two defendants. See McCrum v. Elkhart County Dep’t of Public Welfare, 806 F.Supp. 203, 208 (N.D.Ind.1992). Subject matter jurisdiction would not exist for nonexistent claims. The action against these two defendants appears frivolous. The individual motions invite further consideration upon their respective merits. Defendant Ronald Oltremari, Sr. moves for dismissal only for lack of subject matter jurisdiction. Plaintiff, however, alleges that he conspired with a state agency and her guardian ad litem to discriminate against her because of her gender. She seeks damages for such harassment. The court has jurisdiction over this damage claim under 28 U.S.C. § 1343(a). Accordingly, it should overrule the Special Appearance and Motion To Dismiss Challenging Jurisdiction (doc. 20) of defendant Ronald Oltremari, Sr. Plaintiff herself has brought three motions: a Motion For Dismissal of 92JC1481 (doc. 4), a Motion For Restraining Order (doc. 5), and a Motion For Removal of C111627/92JC1481 From The District Court of Johnson County, Kansas (doc. 6). No one has opposed them. All three motions appear meritless on their face. The court should overrule them for the following reasons: The Motion For Dismissal of 92JC1481 (doe. 4) asks this court to dismiss for lack of prosecution a case pending in the District Court of Johnson County, Kansas when plaintiff filed her complaint. The motion charges that “[t]he Child in need of care filed September 2, 1992 has been incorporated into C111627 [ (another case pending in District Court of Johnson County, Kansas when plaintiff filed suit here)],” that “[t]he child has not been allowed to testify,” and that the prolonged action leaves the child unstable and homeless. Despite these contentions, plaintiff cites no authority for this court to arrogate jurisdiction and dismiss a case in state court. On August 5, 1994, moreover, the District Court of Johnson County, Kansas, dismissed case 92JC1481 and otherwise resolved the companion case C111627. (See Mem. Decision, attached to Supplement To Kansas Department of Social and Rehabilitative Services Mot. To Dismiss, doc. 46, at 13-15, hereinafter simply referred to as Mem. Decision.) For the foregoing reasons, the court should deem the issue moot and otherwise overrule the motion. By the Motion For Removal of C111627/92JC1481 From The District Court of Johnson County, Kansas (doc. 6), plaintiff seeks to remove the two cases from state court to this court. They respectively bear the captions “Susan M. Oltremari, plaintiff v. Ronald S. Oltremari, defendant” and “In the Interest of Lynn Christine Oltremari, A Child Under 18 Years of Age.” Plaintiff here contends that she has been denied constitutional due process, that prejudice has pervaded the state-court proceedings, that defendant SRS has shown contempt for state-court orders and has repressed her, that inappropriate discussion of in camera conferences have occurred, and that the state-court actions constitute double jeopardy and cruel and unusual punishment. “An action initiated in state court may be removed to the appropriate federal court if the alleged claims arise under federal law.” Booth Theatre Foundation, Inc. v. McKiernan, No. 94-1039-PFK, 1994 WL 114305, at *1 (D.Kan. Mar. 11, 1994). Section 1441 of Title 28 of the United States Code governs removal generally. It provides that the defendant(s) in a state-court civil action may remove it “to the district court of the United States for the district and division embracing the place where such action is pending,” if the district court has original or supplemental jurisdiction over the state-court claims. 28 U.S.C. 1441(a), (c) (1994). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). “A case may not be properly removed on the basis of federal defenses.” Malmstrom v. Kansas State Board of Healing Arts, No. 92-4013-R, 1992 WL 104947, at *2 (D.Kan. Apr. 23, 1992). “Because the removal of civil cases to federal court infringes on state sovereignty, courts strictly construe removal statutes and resolve all doubts in favor of remanding the case to state court. The burden of showing the propriety of removal always rests with the removing party.” Barger v. Bristol-Myers Squibb Co., No. 93-2485-JWL, 1994 WL 69508, at *1 (D.Kan. Feb. 25, 1994) (citations omitted). Section 1446 of Title 28 of the United States Code governs the procedure for removal. “In order to properly remove, a defendant must file a notice of removal within thirty days of service of process or of the first date the action becomes properly removable.” Barger, 1994 WL 69508, at *1 (citing 28 U.S.C. § 1446). “As removal is entirely a statutory right, the relevant procedures ... must be followed. ‘Removal statutes are strictly construed to limit the federal court’s authority to that expressly provided by Congress and to protect the states’ judicial powers.” Dick v. John Deere Ins. Co., No. 92-4076-R, 1992 WL 190622, at *1 (D.Kan. July 14, 1992) (quoting Cohen v. Hoard, 696 F.Supp. 564, 565 (D.Kan.1988)). A number of reasons support overruling the motion for removal. First, plaintiff as the party seeking removal is not a defendant in the described actions in state court. 28 U.S.C. §§ 1441, 1443, and 1446. Defendant Ronald S. Oltremari as defendant in C111627 had the only right to remove that case to this court. Unless her status as daughter makes her a defendant for removal purposes, furthermore, plaintiff Lynn Oltremari here was not a defendant in the child in need of care action, 92JC1481. Such actions are to assure “that each child ... receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state.” K.S.A. 38-1501 (1993). Plaintiff here has no standing or right to remove these actions from state court. Second, no one has filed a notice of removal in accordance with 28 U.S.C. § 1446 and D.Kan. Rule 202(a). Third, were the court to construe the motion itself as a notice for removal, plaintiff did not timely file with the clerk of the court a copy of all records and proceedings had in state court within twenty days of filing the notice. Plaintiff filed the “notice of removal” on April 18, 1994. She did not file the requisite state-court records until May 25, 1994. She sought no extension of the deadline. D.Kan. Rule 202(d) provides that such failure constitutes grounds to remand a case to state court. See also 28 U.S.C. § 1447(b) (1994). It further appears that plaintiff failed to file a copy of the notice with the Clerk of the District Court of Johnson County, Kansas in accordance with 28 U.S.C. § 1446(d). Had she done so, that court probably would have proceeded no further unless and until this court remanded the case for further action. See id. The state court, however, has now resolved the principal issue in the two eases. It has dismissed ease 92JC1481 and granted custody of plaintiff to her mother Susan McDaniel. (See Mem. Decision.) Were the court to construe the motion as a notice, waive strict compliance with D.Kan. Rule 202(d), and ignore the noncompliance with 28 U.S.C. § 1446(d), it should nevertheless overrule the motion for removal. Plaintiff has not carried her burden to show removal is proper. To comply with 28 U.S.C. § 1446, the removing party must file the notice within thirty days of service of process or of the first date the action became properly removable. Plaintiff has not shown the “notice” was filed timely. To the contrary, a “Transcript of Proceedings” (doc. 34) shows that the summons and petition were served upon the defendant Ronald S. Oltremari on April 26, 1982 in case C111627 in state court. The court finds no record of when Ms. McDaniel or Ronald S. Oltremari, as parents of Lynn Oltremari, were served with process or otherwise received notice of case 92JC1481. The Transcript does show that summons was issued September 2, 1992, however, for service upon them with notice of a hearing set for September 16,1992. Plaintiff filed her complaint in this court on April 7,1994. The burden to show that removal is proper and timely rests upon plaintiff. She has not met this burden. Nor has plaintiff shown that the claims under state law could have been originally filed in federal court. The “Transcript of Proceedings,” filed by plaintiff shows that case C111627 was filed on or before April 26, 1992 to terminate the marriage of the parties and incidental thereto, determine the child custody of Lynn Oltremari. The Transcript further shows that ease 92JC1481 was filed on or before August 28,1992, as a proceeding for a child in need of care. “The predominate issue before the [state] court is final custodial placement for [plaintiff].” (See Mem. Decision, at 5.) That plaintiff may have federal defenses to these actions provides no proper basis for removal. The court should overrule her motion for removal. By the Motion For Restraining Order (doc. 5), plaintiff seeks a restraining order against all actions by defendants toward her and her mother Susan McDaniel. She contends that defendant SRS has attempted to incarcerate her mother by seeking and obtaining a judgment of $6000 against her mother for her foster care. She submits that SRS failed to give her mother proper notice of a hearing, which resulted in a judgment exposing her mother’s wages to garnishment, her mother’s property to attachment, and a report of the judgment to a credit bureau with consequent destruction of her mother’s good credit rating. Plaintiff further contends that SRS has removed her from classes at school, tried to obtain information from her about in camera conversations, and otherwise threatened her. Plaintiff claims that financial harassment by SRS has emotionally harmed her mother. She also claims that she has suffered both intellectually and emotionally. Fed.R.Civ.P. 65 governs this motion. “The issuance of a temporary restraining order or other preliminary injunctive relief is within the sound discretion of the district court.” Three Ten Enters., Inc. v. Berrenberg Enters., Inc., No. CIV.A. 94-2130-GTV, 1994 WL 243773, at *1 (D.Kan. May 13, 1994). The standards which govern the granting of a preliminary injunction are well settled in this circuit. The moving party must establish: (1) a showing that the movant will suffer irreparable injury unless the injunction issues; (2) a showing that the injunction, if issued, would not be adverse to the public interest; (3) proof that the threatened injury to the movant outweighs whatever damages the proposed injunction may cause the opposing parties; and (4) substantial likelihood that the movant will eventually prevail on the merits. RTC v. Cruce, 783 F.Supp. 1309, 1310-11 (D.Kan.), aff'd, 972 F.2d 1195 (10th Cir.1992). The same standards apply to the granting of a restraining order. See Three Ten Enters., Inc., 1994 WL 243773, at *2. Of these standards, “perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. Only when the threatened harm would impair the court’s ability to grant an effective remedy is there really a need for preliminary relief.” Green Constr. Co. v. Kansas Power & Light Co., No. CIV.A. 87-2070-S, 1989 WL 106797, at *2 (D.Kan. Aug. 10, 1989) (quoting 11 Wright & Miller, § 2948). “The movant has the burden to establish by clear proof its right to a preliminary injunction. Mere allegations are not sufficient.” Financial Control Assocs., Inc. v. Equity Builders, Inc., 799 F.Supp. 1103, 1113 (D.Kan.1992) (citations omitted). “A temporary restraining order, like a preliminary injunction, is an extraordinary remedy that is the exception rather than the rule.” Three Ten Enters., Inc., 1994 WL 243773, at *2. The court should overrule the motion for restraining order. First, plaintiff provides no affidavit or verified complaint to support her motion as required by Fed.R.Civ.P. 65. “Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.” 11 Wright & Miller, § 2929. Second, plaintiff has not established by clear proof that she is entitled to either a restraining order or a preliminary injunction. She has not shown that she or her mother will suffer irreparable injury in the absence of an injunction. She has not demonstrated that the requested injunction is not adverse to the public interest. She has not shown that the threatened injuries to her outweigh whatever damages the injunction may cause defendants. Nor has she shown any substantial likelihood that she will eventually prevail on the merits. She has shown nothing of consequence to warrant the issuance of a preliminary injunction. The defendants have each moved to dismiss this action on various grounds. Some appear meritorious; others do not. This report has already concluded that subject matter jurisdiction appears to exist for the claims against defendants SRS, Owens, Fletcher, Ronald Oltremari, Sr., and Johnson County District Attorney’s Office, but not as to the other defendants. The several motions to dismiss, however, assert additional grounds. Defendants Johnson County District Attorney’s Office and Owens, guardian ad litem for Lynn Oltremari in the state proceedings, argue that plaintiff has not stated a claim against them upon which relief may be granted. Owens contends he is absolutely immune from liability in this action. He suggests that the claims against him are based solely on his functions as guardian ad litem in the state court actions. Plaintiff contends that Owens has not fulfilled a duty to make “independent” evaluations of her best interests. She suggests that he has cooperated with defendant Fletcher, the attorney for Ronald Oltremari, Sr., to threaten incarceration or foster care if plaintiff and her mother did not comply with his opinions. She further suggests that Owens has denied her due process by engaging in ex parte communications with Fletcher. She asserts that guardians ad litem, may not with impunity engage in ex parte communication with opposing attorneys. She also suggests that the cooperation of Owens with SRS shows his failure to independently evaluate her welfare. She characterizes his conduct as gender discrimination, demonstrating his bias. She further contends that he has conspired with co-defendants SRS, Fletcher, and Ronald Oltremari in violation of the Eighth Amendment to the United States Constitution. As to any claim for gender discrimination or other violation of constitutional rights protected under 42 U.S.C. § 1983, defendant Owens as guardian ad litem was not acting under color of state law. Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir.1986). It is the requirement that the guardian ad litem must exercise independent, professional judgment that is crucial to the determination of whether a guardian ad litem acts under color of state law and is therefore a person liable under § 1983. We hold that a guardian ad litem is not acting under color state law for purposes of § 1983. Id. The same principle would not apply, however, to a claim of conspiracy under 42 U.S.C. § 1985. Under the latter section a private actor may be liable. As to a claim of conspiracy under 42 U.S.C. § 1985, however, defendant Owens may assert a defense of immunity. Although the Supreme Court has upheld the defense of absolute immunity in several contexts, it has not yet addressed its applicability to guardians ad litem. See Snell v. Tunnell, 920 F.2d 673, 686-87 (10th Cir.1990), cert. denied, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719 (1991). Other federal courts which have considered the question “have taken a functional approach rather than one based purely on the status of the defendant involved.” Id. at 687. The mere fact that Owens was serving as guardian ad litem for plaintiff does not of itself make him immune to suit. [T]he crucial inquiry in resolving a claim of absolute immunity is whether the function for which immunity is claimed is so much an integral part of the judicial process that to deny immunity would disserve the broader public interest in having participants such as judges, advocates and witnesses perform their respective functions without fear of having to defend their actions in a civil lawsuit. Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir.1989) (citing Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978)). “Immunity from suit attaches to the actions of quasi-judicial officers [such as guardians ad litem ] acting within the scope of their authority.” Short v. Short, 730 F.Supp. 1037, 1038 (D.Colo.1990). “A guardian ad litem must also be able to function without the worry of possible later harassment and intimidation from dissatisfied parents.” Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984). “[A] guardian should be absolutely immune when acting as an ‘integral part[ ] of the judicial process.’” Gardner v. Parson, 874 F.2d 131, 146 (3d Cir.1989) (quoting Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96 (1983)). “A failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings.” Kurzawa, 732 F.2d at 1458. Under Kansas law a guardian ad litem has the duties to make an independent investigation of facts relevant to the action and to appear and represent the best interests of the child at the hearing. In re marriage of Ross, 245 Kan. 591, 597, 783 P.2d 331, 336 (1989). In performing such duties, a guardian ad litem “typically gathers information, prepares a report and makes a recommendation to the court regarding a custody disposition.” Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir.1989). Absolute immunity applies to providing reports and recommendations to the court. McCuen v. Polk County, 893 F.2d 172, 174 (8th Cir.1990). “When a guardian ad litem investigates, makes recommendations to a court, or enters reports, he or she, like the court, must hold paramount the child’s best interests. Thus, the guardian ad litem serves as an adjunct of the court.” Short, 730 F.Supp. at 1038. “Conduct so closely related to a [guardian’s] judicial duties cannot form the basis of a lawsuit if [guardians] are to continue to apprise courts of all relevant information concerning the[ir] ward.” Scheib v. Grant, 22 F.3d 149, 157 (7th Cir.1994). “Without immunity, guardians ad litem would act like litigation lightening rods.” Short, 730 F.Supp. at 1039. Judicial mechanisms exist to prevent abuse, misconduct, and irresponsibility of guardians ad litem. First, the immunity attaches only to conduct within the scope of a guardian ad litem’s duties. Second, the appointing court oversees the guardian ad litem’s discharge of those duties, with the power of removal. Third, parents can move the court for termination of the guardian. Fourth, the court is not bound by and need not accept the recommendations of the guardian. The court can modify or reject the recommendations as it deems appropriate. Parents, of course, may be as involved in the process as they wish. Finally, determinations adopted by an appointing court are subject