United States District Court, D. Colorado
PENELOPE THOME, and DENNIS W. THOME, Plaintiffs,
ALAN L. COOK, et al., Defendants.
RAYMOND P. MOORE, District Judge.
THIS MATTER is before the Court on Defendants' Motion to Dismiss Second Amended Complaint Based on Absolute and Qualified Immunity (ECF No. 92) (the "Motion to Dismiss"), filed May 23, 2013. Also before the Court is Plaintiffs' Motion for Reconsideration (ECF No. 81) and Plaintiffs' Motion to Expedite Trial Date (ECF No. 110). As discussed herein, the Motion to Dismiss is GRANTED; and Plaintiffs' Motion for Reconsideration and Motion to Expedite are each DENIED.
A. Jurisdiction and Legal Standard
This Court has jurisdiction under 28 U.S.C. § 1331 (federal question) and § 1367 (supplemental).
The instant Motion to Dismiss raises issues under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6). A motion to dismiss under 12(b)(1) may consist either of a facial or factual attack on the complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Because Defendants' motion presents a facial attack, I must accept the allegations of the complaint as true. Id.
In considering a motion under Rule 12(b)(6), a court must determine whether the allegations in the complaint are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). All well-pleaded allegations of the Complaint must be accepted as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992 (10th Cir. 2002). Mere conclusory statements or legal conclusions masquerading as factual contentions will not suffice to defeat a motion to dismiss. See also Ruiz v. McDonnell, 299 F.3d 1172, 1181 (10th Cir. 2002) ("All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.").
A court must review the Complaint to determine whether it "contains enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 550 U.S. at 556). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
B. Facts and Procedural History
i. General Background
Penelope Thome brings this suit seeking damages for alleged violation of her rights under the U.S. Constitution, federal law, and Colorado law. Ms. Thome is a 72-year old woman who resides in Arvada, Colorado and is licensed to practice as a professional counselor ("LPC") in the state of Colorado. (Second Amended Complaint at 5.) Ms. Thome has over ten years of experience in her field, and has focused on "children who were victims of severe abuse and neglect." ( Id. ) Prior to the incident described herein, Ms. Thome had never been disciplined or sanctioned in regards to her therapy practice. ( Id. )
The Colorado Board of Licensed Professional Counselor Examiners (the "Board") is an entity which is supervised and directed by the Colorado Department of Regulatory Agencies, organized under the laws of the State of Colorado. ( Id. ) Defendant Alan L. Cook was, and is currently, the Chair of the Board. ( Id. ) Defendant Susan L. Garcia was, and is currently, the Vice Chair of the Board, and Defendants Stephen G. Smith, Sherry Giles, Charles Knoeckel and Jill Vitale are members of the Board. ( Id. at 6.) Defendant Mark Merrill was, and is currently, a Section Director for the Division of Registrations of the Health Services Section. ( Id. ) Defendant Carlotta D. Knox was the Program Director of the Board. ( Id. ) Defendant Rosemary McCool was the Director of the Division of Registrations, Colorado Department of Regulatory Agencies. ( Id. at 7.) Defendant Laurie Rottersman was, and is currently, an Assistant Attorney General of the State of Colorado. ( Id. )
In February of 2007, Ms. Thome began counseling a three-year old at the request of the child's mother. ( Id. at 9.) The child's mother and father were never married, but shared joint custody of the child. ( Id. ) On February 27, 2007, the first visit, the mother completed an intake form and signed a disclosure statement. ( Id. ) Ms. Thome conducted three "play therapy" assessment sessions with the child, and spoke with the child's mother regarding the mother's belief that "the Child was not doing well under Father's care." ( Id. at 10.) On May 16, 2007, the father contacted Ms. Thome and "confronted her with his belief that [she had] accused him of child abuse, " which Ms. Thome denied "and supplied the Father, as she had done previously with the mother, with a general summary" of her assessments. ( Id. ) The mother later told Ms. Thome that the father would not give consent for any further assessments or therapy. "On June 8, 2007, after consulting with an expert in Family Systems Therapy, [Ms. Thome] decided to report Father's behavior to the Department of Human Services, Child Protection Unit." ( Id. ) The father subsequently filed complaints against Ms. Thome with the Board. ( Id. at 11.)
On May 15, 2008, the Board filed formal charges against Ms. Thome. ( Id. ) The Board alleged five violations of applicable standards and requirements: 1) that Ms. Thome's practice was substandard and that she failed to take into account pertinent information; 2) that Ms. Thome failed to make mandatory disclosures about the child to the father; 3) that Play Therapy and the assessment of child sexual abuse were beyond Ms. Thome's experience or competence; 4) that Ms. Thome failed to make appropriate referrals; and 5) that although Ms. Thome did report the father to social services, she did not do so soon enough. ( Id. )
In September 2009, a court-ordered mediation was conducted, but the matter was not resolved. ( Id. ) Defendant Garcia attended the mediation as the Board-appointed Special Representative. ( Id. ) In late October and early November 2009, a hearing was held before an Administrative Law Judge (the "ALJ"). ( Id. at 12.) On December 14, 2009, the ALJ issued a decision finding that none of the charges against Ms. Thome was supported by the evidence, and advising the Board that no disciplinary action should be taken against Ms. Thome. ( Id. at 15.) The Board filed exceptions, stating that all five alleged violations were supported by the evidence. ( Id. )
On March 19, 2010, the Board heard arguments on these issues. ( Id. ) Ms. Thome alleges that Defendant Garcia (who was restricted from participating by Board rules and Colorado law), Defendant Rottersdam, and Defendant McCool each "personally ...