UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

KEVIN BROWN,	)
on behalf of himself and all others	)
similarly situated,	)
	)
Plaintiff,	)
	)	1:05-CV-1585-RLY-VSS
v.	)
	)
STATE OF INDIANA, et al.,	)
	)
Defendants.	)

STATE DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO STATE DEFENDANTS’ MOTION TO DISMISS

State Defendants the State of Indiana, Attorney General of Indiana [name omitted], the Justices of the Indiana Supreme Court, [MCOFC Supervisor and Caseworker], by counsel, [names omitted], Deputy Attorneys General, respectfully submit their reply in support of their motion to dismiss Plaintiff’s Complaint in their favor and against the Plaintiff for lack of subject matter jurisdiction pursuant to the doctrine of abstention articulated in Younger v. Harris, 401 U.S. 37 (1971), the Eleventh Amendment of the United States Constitution, standing issues inherent to Article III of the United States Constitution, and for the failure to state a claim for which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

I. Introduction

This matter is before the Court as an uncertified class action on behalf of himself and other men, fathers or fathers-to-be, who have had, or may have, their children removed, for reasons having to do with their sexual orientation: namely, a self-professed attraction to minors. Plaintiff seeks equitable relief against the following State Defendants: the State of Indiana; [name omitted], in his official capacity as Attorney General of the State of Indiana; and the Justices of the Indiana Supreme Court, in their official capacities [names omitted]. In addition, Plaintiff seeks damages from State Defendants [name omitted], Caseworker for the Marion County Office of Family and Children, in her individual capacity; and [name omitted], Supervisor for Marion County Office of Family and Children, in her individual capacity.

State Defendants moved to dismiss on the grounds stated supra on December 9, 2005. Plaintiff’s Response to State Defendants’ Motion to Dismiss does not appear to respond to State Defendants’ legal arguments in support of the motion to dismiss with any legal issues or arguments not already contained in his voluminous Complaint, to wit, 1,751 paragraphs and 83 Counts. While Plaintiff has submitted a thirty-three page “trial brief” in support of his motion, State Defendants do not wish to burden the Court with a Reply to Plaintiff’s Response which is a mere restatement of its motion to dismiss. Plaintiff has, however, included a Fed. R. Civ. P. 41(a)(2) motion in 1 of his purported Response, and State Defendants take the opportunity in this reply brief to acknowledge the motion.

II. Discussion

A. Plaintiff’s Motion to Dismiss pursuant to Fed. R. Civ. P. 41 (a)(2).

Plaintiff requests the Court dismiss State Defendants, the Honorable Justices of the Indiana Supreme Court, pursuant to Fed. R. Civ. P. 41(a)(2), which states, in pertinent part:

(2) Voluntary Dismissal; By Order of Court.
Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the acion shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

State Defendants oppose this motion based on R. 41 and respectfully request the Court to dismiss, with prejudice, the Honorable Justices of the Indiana Supreme Court on the grounds stated in their Motion to Dismiss, to wit, lack of subject matter jurisdiction, the Eleventh Amendment and considerations of standing as expressed in Article III of the United States Constitution.

B. Other Issues Raised by Plaintiff’s Response to State Defendants’ Motion to Dismiss.

First, Plaintiff argues that State Defendants have stated a counterclaim. (Pl.’s Trial Brief, Section IV.) State Defendants (the State, Attorney General [name omitted], the Honorable Justices of the Supreme Court, [MCOFC Supervisor and Caseworker]) respectfully notice the Court that they have stated no counterclaim against plaintiff. (Pl.’s Resp. in Opp’n. pp. 6-8).

Second, Plaintiff responds to State Defendants’ argument that dismiss of his complaint is proper under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971), and progeny in Plaintiff’s Trial Brief, Section VII. State Defendants wish only to indicate to the Court that Plaintiff discusses additional abstention arguments not raised by State Defendants, to which we do not respond because they are inapplicable. State Defendants respectfully direct the Court to the Younger argument in the Motion to Dismiss, pp. 3-7.

Third, Plaintiff re-argues his Motion for Rule 55(a) and 55(c) Entry, R. 31, in Section XV of Plaintiff’s Trial Brief. State Defendants respectfully submit to the Court that their response to the motion for default judgment was timely made and requires no additional response in this Reply Brief. See State Defendants’ Response, R. 34.

Finally, Plaintiff simply reasserts his claims/arguments advanced in his excessively protracted Complaint with respect to his perceived Fourth Amendment violation and substantive due process violation. State Defendants respectfully direct the Court to the Motion to Dismiss, pp. 11-15, in support of their legal arguments that claims against State Defendants [MCOFC Supervisor and Caseworker] must be dismissed, or in the alternative, [MCOFC Supervisor and Caseworker] are entitled to qualified immunity from Plaintiff’s claims.

III. Conclusion

Plaintiff’s claims against State Defendants must be dismissed for lack of subject matter jurisdiction pursuant to the doctrine of abstention articulated in Younger v. Harris, 401 U.S. 37 (1971), the Eleventh Amendment of the United States Constitution, standing issues inherent to Article III of the United States Constitution, and for the failure to state a claim for which relief may be granted, pursuant to Fed. R. Civ. P. 12(b) (6).

State Defendants respectfully move the Court to dismiss Plaintiff’s Complaint in its entirety with prejudice and grant all other just and proper relief.

Respectfully Submitted,

[name omitted]
Attorney General of Indiana

[CERTIFICATE OF SERVICE OMITTED]