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Doe v. McAfee

United States District Court, D. Colorado

September 29, 2014

JOHN DOE; JANE DOE; Y.C.; E.C., by her parents and next friends; E.S.C., by his parents and next friends; and J.C., by his parents and next friends, Plaintiffs,


MARCIA S. KRIEGER, Chief District Judge.

THIS MATTER comes before the Court on the Magistrate Judge's Recommendation (#73) to grant in part and deny in part certain Defendants' Motions to Dismiss (#52, 59). Defendants McAfee, Tremaine, Hoover, Little, Bengtsson, and Greene (collectively, "DHS Defendants"), Harris, Price, Dearmont, Mihalko, Haynes, Stevenson, and Maketa (collectively, "Sheriff Defendants"), the El Paso County Board of County Supervisors ("Board"), and Haynes and Stevenson (collectively, the "DA Defendants") filed timely Objections (# 76), to which the Plaintiffs filed a response (# 83). Defendants Hudson and Romano (collectively, "Monument Defendants") filed timely Objections (# 78), to which the Plaintiffs responded (# 83). And the Plaintiffs filed timely Objections (# 79), to which the Monument Defendants (# 82) and the DHS/Sheriff/DA Defendants and Board responded (# 84).


The parties do not object to the Magistrate Judge's factual recitation, summarizing the operative facts in the Third Amended Complaint (# 45), and this Court therefore adopts that recitation. In summary, on April 17, 2012, the Does learned that their 15-year old daughter, Y.C., had engaged in sexual activity with a classmate and had broken school rules. The Does punished Y.C. by administering two separate "spanking[s] that consisted of 20 swats on the backside with a light rod."

At some point thereafter, the El Paso County Department of Human Services ("DHS") received an anonymous report of alleged child abuse relating to Y.C. On April 19, 2012, Defendant McAfee, a DHS caseworker, went to the Does' home to investigate. Ms. McAfee interviewed Y.C., who "acknowledged that there were marks on her buttocks, " but when Ms. McAfee requested that Y.C. remove her pants so Ms. McAfee could photograph her buttocks, Y.C. refused. After unsuccessfully prevailing upon the Does to convince Y.C. to comply, Ms. McAfee stated that if Y.C. did not cooperate, Ms. McAfee was "going to have to call law enforcement." That threat was unavailing, and Ms. McAfee then called the El Paso County Sheriff's Department.

Monument Police Department officers Romano and Hudson responded to Ms. McAfee's call. They attempted to persuade Y.C. and the Does to comply with Ms. McAfee's request, but were unsuccessful. El Paso County Sheriff's Deputies Price and Harris also arrived on the scene, but had no more success. Ms. McAfee told Mr. Doe that "she would have to ask for custody if he did not cooperate" and instruct Y.C. to comply, but he continued to refuse. In the meantime, Ms. Doe and Y.C. "left the premises unannounced and drove to Kansas." After conferring with her supervisor (whom the Plaintiffs identify as "possibly [Ms.] Hoover or [Ms.] Little"), Ms. McAfee "personally contacted [a] judge and asked for [an ex parte ] verbal order for DHS custody of all four [of the Does'] children." The Plaintiffs note that "there were no allegations or information whatsoever that any of the other three children had been abused or were in danger."

Ms. McAfee then went to the children's school to talk to the remaining three Doe children. She had the children summoned to the school office, identified herself as being from DHS, and requested certain identifying information about the children. The children refused to provide the information and asked about their rights, to which Ms. McAfee responded that they "have no rights." In the meantime, Ms. McAfee received a call from the court, granting her oral request for a custody order. Ms. McAfee sought to take the children to DHS offices for further questioning, and she and Defendant Tremaine, another DHS caseworker assisting Ms. McAfee, began walking the children out of the school. At that time, Mr. Doe pulled into the parking lot, and the children ran to him and got into his car. The children informed Mr. Doe that they were in fear for their safety from the DHS officials. Mr. Doe and the children then drove to North Carolina.

That afternoon, Ms. McAfee posted a custody order on the door of the Does' residence. Ms. McAfee then contacted her supervisor, the County Attorney, and law enforcement officials. Deputy Price discussed the matter with his supervisor, Defendant Dearmont, who instructed Deputy Price to "initiate a case for Violation of Custody, " despite knowing that neither of the Does had personally been informed of the custody order. At that time, Deputy Price also put out a "BOLO" ("be on the lookout") notification for the Does' vehicles through law enforcement channels.

The following day, the Does' family attorney contacted DHS. That attorney was informed that DHS had obtained a court order directing that Y.C. submit to a medical examination, and the attorney was further notified of the custody order. The attorney informed DHS officials that Ms. Doe would be returning with Y.C. and that they would submit to an examination by their family medical provider that afternoon. The County Attorney found that arrangement unacceptable and directed that Y.C. be examined at Memorial Hospital (although it is unclear from the Third Amended Complaint whether this was communicated to the family's attorney or the Does).

Although Ms. Doe had agreed to return with Y.C., the Sheriff's Department did not cancel the BOLO notification. At some point that day, the Colorado State Patrol ("CSP") spotted Ms. Doe's vehicle, contacted Ms. McAfee to inform her of that fact, and Ms. McAfee responded that the CSP should pull the car over and inform her when they had secured Y.C. The CSP performed a "felony stop" of the vehicle with guns drawn, ordered Ms. Doe and Y.C. out of the car, and handcuffed them. CSP subsequently released Ms. Doe, but retained custody of Y.C. and delivered her to Ms. McAfee. Y.C. then submitted to the medical examination at Memorial Hospital.

Some time thereafter, Mr. Doe arrived in North Carolina, leaving the remaining three children in the custody of their grandparents. DHS personnel were notified of the children's whereabouts through some unknown means. DHS personnel contacted the local social services agency in North Carolina, informing them of the custody order, and directing them to take the remaining children into custody. Ms. McAfee apparently traveled to North Carolina and facilitated the children's return. The DHS prepared a Dependency and Neglect Petition regarding all four children, and the children remained in DHS custody until July 2, 2012. (The parties ultimately entered into "an informal adjustment" in late July, returning custody of the children to the Does. The formal Dependency and Negelct proceeding was ultimately dismissed.)

Meanwhile, on April 20, as the discussions with the family attorney were occurring, Defendant Mihalko, a Sheriff's Department detective, began an investigation into the Does for child abuse. On April 26, 2012, he filed charges of misdemeanor child abuse against both parents. In May 2012, Detective Mihalko considered filed further felony kidnapping charges against Mr. Doe, based on Mr. Doe removing the children to North Carolina in violation of the custody order. (The Plaintiffs point out that Mr. Doe had not, at that time, been personally served with that order.) In August 2012, Defendants Haynes and Stevenson formally charged Mr. Doe with three felony counts of kidnapping and three felony counts of violation of a custody order. Mr. Doe ultimately pleaded guilty to one count of misdemeanor child abuse; the charges against Ms. Doe were dismissed pursuant to a deferred prosecution agreement.

The Third Amended Complaint alleges numerous claims, all under 42 U.S.C. § 1983: (i) a claim by Y.C. against certain DHS Defendants (McAfee, Hoover, Little), certain of the Sheriff Defendants (Price, Dearmont, and Harris), and the Monument Defendants for violation of her Fourth Amendment rights, arising out of the "attempted unreasonable search of her person" on April 19[1]; (ii) a claim by Y.C. against the same subset of DHS Defendants, the same subset of Sheriff's Defendants, and the Monument Defendants for violation of her Fourth and Fourteenth Amendment rights to privacy, in that she "faced an unconstitutional invasion of her privacy when... Ms. McAfee demanded that she expose her private parts for viewing and photography"; (iii) a claim by Y.C. against the same subset of DHS and Sheriff's Defendants for violation of her Fourth Amendment rights, in that these Defendants "sought a custody order for Y.C." based on "reckless omissions and misstatements to a magistrate" and/or issued the BOLO notice (despite the Does not having been notified of the custody order) and failed to rescind it; (iv) a claim by Mr. Doe against same subset of DHS Defendants (plus Defendant Tremaine), the subset of Sheriff's Defendants, and the Monument Defendants for violation of his First Amendment rights, in that they retaliated against him for "refus[ing] to compel his daughter to submit to an unconstitutional strip search" by "harangu[ing] and bull[ying]" him; (v) a claim by Ms. Doe against the same subset of DHS Defendants (including Tremaine) and Sheriff's Defendants for violating her First Amendment rights by retaliating against her for refusing to compel Y.C. to comply with Ms. McAfee's requests by "taking custody of her children and subjecting her to a felony stop"; (vi) a claim by Ms. Doe against the same subsets of DHS and Sheriff's Defendants for violation of her Fourth Amendment rights in that they did not cancel the BOLO notification or inform the CSP of "[Ms. Doe's] cooperation and reason for being there, " causing the CSP to perform a "humiliating and frightening felony stop"; (vii) a somewhat disjointed claim by Mr. and Ms. Doe against the same subsets of DHS and Sheriff's Defendants and the Monument Defendants for violation of the Fourth and Fourteenth Amendment rights, in that the Defendants deprived them of their "constitutional liberty interests in the care, custody, and control over their children and in familial association and privacy" without a compelling interest when the children are not in danger, that "the custody order for children was obtained without good foundation and in retaliation for [the Does'] exercise of constitutional rights, " and that the BOLO notification was unwarranted; (viii) a claim by the three remaining Doe children against the subset of DHS and Sheriff's Defendants and the Monument Defendants for violation of their Fourth Amendment rights, on essentially the same grounds as Claim Seven, along with additional allegations that the Defendants caused the children to suffer during their temporary placement in juvenile custody in North Carolina and their placement in DHS custody upon their return; (ix) a claim by the three remaining children against the same Defendants for violation of their Fourth Amendment rights based on their "seizure" at school and, possibly, their seizure in North Carolina; (x) a claim by all Plaintiffs against a subset of the DHS Defendants (Hoover, Little, Bengtsson, and Greene), a subset of the Sheriff's Defendants (Dearmont and Maketa), and the Board, essentially asserting Monell "custom and policy" liability for actions taken by the individual Defendants; (xi) a similar claim against the same Defendants, essentially asserting Monell "failure to train or supervise" liability; and (xii) a claim by Mr. Doe against Ms. McAfee, Mr. Stevenson, Deputy Haynes, and Detective Mihalko for "retaliatory prosecution for asserting constitutional rights."

Separately, the Monument Defendants (# 52) and the DHS and Sheriff's Defendants and the Board (# 59) moved to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(6). The Court referred the motions to the Magistrate Judge for a recommendation. On March 10, 2014, the Magistrate Judge recommended (# 73) that the motions be granted in part and denied in part.

Specifically, the Magistrate Judge found that: (i) as to Claims One and Two, no cognizable claim lies for an "attempted" constitutional violation; (ii) as to Claim three, the alleged misrepresentations and omissions from Ms. McAfee's oral request for a custody order were immaterial, and thus, the seizure of the children pursuant to the court-approved custody order prevents any claim; (iii) as to Claims four and five, Mr. and Ms. Doe adequately alleged claims of retaliation for the exercise of First Amendment rights (except as to Defendant Dearmont in Claim four and Defendants Dearmont, Harris, and Price in Claim five, who should be dismissed due to a lack of personal participation in the deprivation); (iv) as to Claim six, the undisputed facts and circumstances provided reasonable suspicion for the CSP to conduct the "felony stop"; (v) as to Claims seven and eight, the court's issuance of a valid custody order provided grounds for the DHS to take custody of the children over any constitutional privacy or liberty interests claimed by the Does; (vi) as to Claim nine, it is unclear whether the remaining three children were actually "seized" at their school, but in any event, the valid custody order permitted such a seizure; (vii) as to the Monell claims, the alleged underlying constitutional act was the request that Y.C. submit to a strip search, and because all claims asserting individual constitutional claims arising from that conduct should be dismissed, the Monell claims should be dismissed as well; and (viii) as to Claim twelve, Mr. Doe stated a colorable claim for First Amendment retaliation.

All parties filed timely Objections to various portions of the Recommendation. The Court addresses the parties' particular arguments in the discussion below.


A. Standard of review

When a magistrate judge issues a recommendation on a dispositive motion, the parties may file specific, written objections within fourteen days after being served with a copy of the recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court reviews de novo determination those portions of the recommendation to which a timely and specific objection is made. See United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-plead allegations in the Complaint as true and view those allegations in the light most favorable to the nonmoving party. Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001), quoting Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The Court must limit its consideration to the four corners of the Complaint, any documents attached thereto, and any external documents that are referenced in the Complaint and whose accuracy is not in dispute. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

A claim is subject to dismissal if it fails to state a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). To make such an assessment, the Court first discards those averments in the Complaint that are merely legal conclusions or "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. at 1949-50. The Court takes the remaining, well-pled factual contentions, treats them as true, and ascertains whether those facts support a claim that is "plausible" or whether the claim being asserted is merely "conceivable" or "possible" under the facts alleged. Id. at 1950-51. What is required to reach the level of "plausibility" varies from context to context, but ...

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