United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
This matter is before the Court on three separate motions to dismiss Plaintiff’s second amended complaint (ECF No. 257, the “Amended Complaint”) filed by Defendants Adoption Alliance and Melanie Tem (ECF No. 213), Vicki Little (ECF No. 215), and Audrey Amedie and Amanda Cramer (ECF No. 216). Following the presentation of oral arguments to U.S. Magistrate Judge Craig Schaffer on July 30, 2015, the magistrate judge entered a Report and Recommendation on July 30, 2015 (ECF No. 259, the “Recommendation”) recommending that all Defendants’ motions be granted, and in support referred back to a previous recommendation (ECF No. 159, the “Previous Recommendation”) the magistrate judge had entered in response to motions to dismiss that the Defendants had filed in response to Plaintiff’s previous complaint. Timely objections, and responses thereto, were made to the magistrate judge’s Recommendation.
(ECF Nos. 260, 263, 267, 272, 280, 283, 285, 289.)
I. LEGAL STANDARD
A. Review of the Magistrate Judge’s Recommendation
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge’s [recommendation] that has been properly objected to.” In conducting his review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection to a recommendation is proper if it is filed timely in accordance with the Federal Rules of Civil Procedure and specific enough to enable the “district judge to focus attention on those issues - factual and legal - that are at the heart of the parties’ dispute.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, “the district court may review a magistrate’s report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).
B. Rule 12(b)(6) Motion
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .” Bell Atl. Corp., 550 U.S. at 555 (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. A “plaintiff must ‘nudge  [his] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original, internal citation and quotation omitted).
The Tenth Circuit Court of Appeals has held “that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation and citation omitted). The Tenth Circuit has further noted “that the nature and specificity of the allegations required to state a plausible claim will vary based on context.” Id. (Internal quotation and citation omitted.) Thus, the Tenth Circuit “concluded the Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.’” Id. (Citation omitted.)
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in a plaintiff’s favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996) (citations omitted). However, “when legal conclusions are involved in the complaint ‘the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions. . . .” Khalik, 671 F.3d at 1190 (quoting Iqbal, 556 U.S. at 678). “Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id.
II. FACTUAL AND PROCEDURAL HISTORY
The following factual allegations are taken from Plaintiff’s Amended Complaint. (ECF No. 257.)
Plaintiff was born in October of 1994 in Oklahoma. (Id. at ¶ 14.) After suffering abuse at the hands of his biological parents, Plaintiff was removed from the family home and placed into the protective custody of the State of Oklahoma in 2003. (Id. at ¶ 15.) Plaintiff was moved from foster home to foster home throughout his early childhood, and had lived in over one dozen different foster homes by the age of twelve. (Id. at 18.) In 2007, an adoption agency not a party to this case matched Plaintiff and Jeremiah Lovato as an adoptive parent-child pair. (Id. at ¶ 42.) On January 3, 2008, then 13 year old Plaintiff arrived in Craig, Colorado and was placed in Lovato’s physical custody. (Id. at ¶ 45.) Upon his placement with Lovato, Plaintiff remained a foster child until his adoption by Lovato was finalized by the District Court for Moffat County, Colorado in December, 2008. (Id. at ¶ 46.)
To monitor Plaintiff’s foster placement with Lovato until the adoption was finalized, the State of Oklahoma and/or the State of Colorado contracted with Adoption Alliance, a Colorado nonprofit corporation and private adoption agency licensed by the State of Colorado. (Id. at ¶¶ 12, 20, 22.) In this role, Adoption Alliance was responsible for following procedures related to adoption placement in an interstate adoption subject to the Interstate Compact on the Placement of Children (the “ICPC”), C.R.S. § 24-60-1801 et seq., which statutes authorize the states of Colorado and Oklahoma to work together to ensure that children who are placed across state lines for foster care or adoption receive adequate protection and support services. (Id. at ¶ 22.) Adoption Alliance committed itself to assume these roles, and a variety of obligations under the ICPC, through its contract with the State of Colorado. (Id. at ¶¶ 25-34.)
As part of its assumed roles through its contract with the State of Colorado, in 2006 Adoption Alliance approved Lovato as a prospective adoptive parent. (Id.at ¶40.) And in 2007, when Lovato was being considered as a potential adoptive match with Plaintiff, Adoption Alliance investigated Lovato’s background and ultimately issued a formal report approving his status as a potential adoptive parent. (Id. at ¶¶ 43-44.) This report indicated that Plaintiff had failed to disclose that he had pled guilty to one count of contributing to the delinquency of a minor in 1989 and also that Lovato’s parents had subjected him to “physical discipline.” (Id.)
During the relevant time, Defendants Melanie Tem and Vicki Little were both employees of Adoption Alliance. (Id. at ¶¶ 10, 11.) Defendant Tem was employed as a placement supervisor by Adoption Alliance. Defendant Little was also an employee of Adoption Alliance assigned as a caseworker to Plaintiff’s placement. (Id. at ¶ 54.) In her capacity as caseworker for Plaintiff’s adoption, Little was responsible for making monthly post-placement visits with Plaintiff and Lovato from the time of placement until the adoption was finalized. (Id.) Tem was acting as Little’s supervisor at all relevant times. (Id. at ¶ 56.)
During the relevant time, Defendants Audrey Amedei and and Amanda Cramer were employed as caseworkers for the Moffat County Department of Social Services (the “Moffat County DSS”). (Id. at ¶¶ 8-9.)
After Plaintiff started school in September, 2008, school officials observed signs of suspected child abuse. Between September, 2008 and December, 2008, school officials made three separate reports of suspected child abuse to the Moffat County DSS relating primarily to changes they observed in Plaintiff’s physical condition.
The first report came shortly after Plaintiff missed two weeks of school at the beginning of the 2008 school year. (Id. at ¶ 80.) When he did arrive at school in September, 2008, he had the remnants of a black eye and had lost twenty-five pounds, which was reported by school officials to the Moffat County DSS. (Id. at ¶¶ 81-82.) Defendants Amedei and Cramer were responsible for investigating the allegations of child abuse. (Id. at ¶¶ 92-93.) Amedei and Cramer responded by holding a meeting with Plaintiff and his school counselor and also contacted Lovato by telephone. (Id. at ¶¶ 93, 97.) Both Plaintiff and Lovato denied that Plaintiff had a black eye, although a report made by Amedei and Cramer in connection with their in-person meeting with Plaintiff observes the bruised condition of Plaintiff’s eye. (Id. at ¶¶ 94-98.) Amedei and Cramer’s report, made in connection with this incident, concluded that the report of abuse was unfounded and that no further investigation or action would be necessary. (Id.at ¶ 99.)
School officials reported a second incident of suspected abuse to Moffat County DSS on September 24, 2008, based on Plaintiff arriving to school with additional bruises on his right bicep and right forearm. (Id. at ¶ 101.) Responding to this report, Cramer spoke only to the school’s health technician, and did not interview Plaintiff or Lovato. (Id. at ¶¶ 101-05.) Cramer’s report made in connection with this incident also reveals that at this time Moffat County DSS had also received several emails from teachers concerned for Plaintiff’s safety. (Id. at ¶ 103.)
On December 1, 2008, a third report was made to Moffat County DSS after Craig Police Officer Dale Secules was called to Plaintiff’s school to respond to a report that Plaintiff had another black eye. (Id. at ¶ 130.) Officer Secules spoke with Amedei about his concern for Plaintiff, and Amedei responded to Officer Secules’ inquiry defensively, questioning his jurisdiction to investigate the incident. (Id. at ¶¶ 133-135.) Amedei is alleged to have taken no further action in response to this report of abuse. (Id. at ¶¶ 136-37.)
Around this same time period, Defendants Adoption Alliance, Tem and Little also received several indicators that Plaintiff was being mistreated. In an April 19, 2008 report, Little noted that Lovato had represented that he could not afford to sign Plaintiff up to play baseball, yet Little also observed, without reporting, that Lovato had a brand new sports car. (Id. at ¶¶ 58-59.) In a May, 2008 report, Little noted that Plaintiff had a bruise, but that Plaintiff and Lovato had explained it as coming from “wrestling around.” (Id. at ¶ 61.) Little also permitted Lovato to cancel two scheduled monthly visits in June and July of 2008, and instead spoke to Plaintiff on the phone. (Id. ¶¶ 70-72.) In an August, 2008 report, Little documented that Plaintiff had lost “baby fat” but did not perform or recommend additional investigation. (Id. at ¶¶ 76, 78.) In her September 28, 2008 home visit, which Lovato had previously rescheduled from September 19, Little learned that Plaintiff had been left with Lovato’s brother overnight in violation of Adoption Alliance policies, but did not take any action to reprimand Lovato for this transgression. (Id. at ¶¶ 115-16.) Little’s September, 2008 report also documented the Moffat County DSS’s reports of suspected abuse made around that same time. (Id. at ¶ 110.) During her October, 2008 home visit, Little made no effort to speak to Plaintiff or to follow-up on the reports of abuse from the Moffat County DSS of the prior month. (Id. at ¶¶ 121-122.) In Little’s final report of November, 2008, she approved Lovato’s adoption of Plaintiff. (Id. at ¶ 128.) Tem is alleged to have reviewed and ratified all of the reports made by Little and affirmed Little’s decisions not to investigate further. (Id. at ¶ 129.)
On December 11, 2008, the District Court for Moffat County, Colorado finalized Lovato’s adoption of Plaintiff. (Id. at ¶ 138.) Subsequently, school officials made a fourth report of child abuse on February 27, 2009 based on Plaintiff’s continued absence from school. (Id. at ¶¶ 141-142.) Shortly thereafter, Lovato withdrew Plaintiff from his school to begin homeschooling him. (Id. ¶ 156.)
On January 5, 2010, Lovato was arrested in Colorado Springs and charged with crimes of assault and child abuse against Plaintiff that occurred between October 15, 2009 and January 4, 2010. (Id. at ¶ 178.) On February 8, 2011, Mr. Lovato was convicted by a jury of numerous counts of assault and child abuse and sentenced on May 2, 2011 to 119 ½ years to life in the Colorado Department of Corrections. (Id. at ¶ 184.)
On October 9, 2012, Plaintiff filed the present lawsuit bringing five claims for relief. First, Plaintiff alleges pursuant to 42 U.S.C. § 1983 that all Defendants violated his Fourteenth Amendment right to substantive due process based on the special relationship doctrine. Second, he alleges pursuant to § 1983 that all Defendants violated his Fourteenth Amendment right to substantive due process based on the state-created danger doctrine. Third, he alleges pursuant to § 1983 that Defendants Adoption Alliance, Tem, and Amedei violated his constitutional rights by failing to train or supervise their employees. Fourth, Plaintiff brings a claim of outrageous conduct under Colorado common law and pursuant to C.R.S. § 24-10-118 (2013). Finally, Plaintiff brings a claim of negligence against all Defendants under Colorado common law.
A. Plaintiff’s § 1983 Claims against Adoption Alliance, Tem and Little
Defendants Adoption Alliance, Tem and Little argue that Plaintiff’s §1983 claims against them fail because they are private actors and were not acting “under color of law, ” as is required to establish liability under § 1983 against private individuals. Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995). A proper defendant to a § 1983 claim must have represented the state in some capacity. Id. Private individuals and entities may be deemed state actors if they acted together with or obtained significant aid from state officials, or if their conduct is otherwise chargeable to the state. Johnson v. Rodriguez, 293 F.3d 1196, 1202 (10th Cir. 2002).
In making that determination, the Supreme Court employs a “flexible approach to the state action doctrine” under which it has “appl[ied] a variety of tests to the facts of each case.” Gallagher, 49 F.3d at 1447. At least four tests have been recognized by the Supreme Court, and endorsed by the Tenth Circuit, to determine whether a private party should be deemed a state actor subject to constitutional liability:
In some instances, the Court has considered “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” [Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974).] The Court has also inquired whether the state has “so far insinuated itself into a position of interdependence” with the private party, Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 861-62, 6 L.#d.2d 45 (1961), that there is a “symbiotic relationship” between them, Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 92 S.Ct. 1965, 1972-73, 32 L.Ed.2d 627 (1972). In addition, the Court has held that if a private party is “ ‘a willful participant in joint activity with the State or its agents, ’ ” then state action is present. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605-06, 26 L.Ed.2d 142 (1970) (quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966)). Finally, the Court has ruled that a private entity that exercises “powers traditionally exclusively reserved to the State” is engaged in state action. Jackson, 419 U.S. at 352, 95 S.Ct. at 454.
Id. These tests have been referred to, respectively, as the (1) nexus test, (2) symbiotic relationship test, (3) joint action test, and (4) public function test. Because Plaintiff’s objection to the magistrate judge’s recommendation only argues that state action existed under the public function test and the symbiotic relationship test, (ECF No. 267 at 4), the Court examines only these two.
As explained below, this Court finds that the allegations in Plaintiff’s Amended Complaint are insufficient to state a claim against Adoption Alliance, Tem and Little under either of these theories.
1. Public function
Under the public function test, when a governmental entity delegates one of its traditional or public functions to a private entity, the private entity may be held liable under § 1983 with respect to its performance of that function. Marsh v. Alabama, 326 U.S. 501, 506 (1946). However, in order to satisfy this test, the public function must be one “traditionally exclusivey reserved to the State. Jackson, 419 U.S. at 352 (emphasis added). “This test is difficult to satisfy.” Gallagher, 49 F.3d at 1456. “While many functions have been traditionally performed by governments, very few have been ‘exclusively reserved to the State.’ ” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (quoting Jackson, 419 U.S. at 356). The Supreme Court has found that certain specific functions are traditionally reserved to the state, including the administering of elections of public officials, Terry v. Adams, 345 U.S. 461, 468-70 (1953), the operation of a company owned town, Marsh, 326 U.S. at 505-09 (1946), and the management of a city park, Evans v. Newton, 382 U.S. 296, 298-302 (1966). By contrast, the Supreme Court has found that other functions were not those traditionally reserved to the state, including the provision of nursing home care, Blum v. Yaretsky, 457 U.S. 991, 1011-12 (1982), the education of children, Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982), and the enforcement of a statutory lien by a private warehouse, Flagg Bros., Inc., 436 U.S. at 161-64.
While the Supreme Court has not addressed whether the adoption of children would be considered an exclusive state function, other lower courts have found this to be the case. See, e.g. Smith v. Beasley, 775 F.Supp.2d 1344, 1353 (M.D. Fla. 2011); Perez v. Sugarman, 499 F.2d 761, 765 (2d Cir. 1974) (actions of a private foster agency were taken under color of state law as they would have been performed by the city had the agency not undertaken them and the agency was presumed to be an authorized agency under state law); Phillips ex rel. Green v. New York, 453 F.Supp.2d 690, 738 (S.D.N.Y. 2006) (same); Harris v. Lehigh Cnty. Office of Children & Youth Servs., 418 F.Supp.2d 643, 651 (E.D.Pa. 2005) (foster care agencies that assist in the placement of foster children perform a function that has traditionally been the exclusive prerogative of the State regadless of whether the child is forcibly taken from his home). Courts in other jurisdictions have held the opposite. Milburn by Milburn v. Anne Arundel Cnty. Dep’t of Soc. Servs., 871 F.2d 474, 479 (3th Cir. 1989) (“The care of foster children is not traditionally the exclusive prerogative of the State . . . .”); Rayburn ex rel. Rayburn .v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (affirming district court finding that public function test not met because “the [S]tate exercised no encouragement of the Hogues’ actions, nor is foster care traditionally an exclusive [S]tate prerogative.”) (alterations in original); Phelan ex rel. Phelan v. Torres, 843 F.Supp.2d 259, 271 (E.D.N.Y. 2011) (“[F]oster care agencies do not perform a function that has been ‘traditionally exclusively reserved to the State.’”) (emphasis in original, citing Jackson, 419 U.S. at 352).
Although there is a dearth of case law on the issue in this jurisdiction, the Tenth Circuit has on at least one occasion determined that a private foster care agency did not perform functions traditionally reserved exclusively to the state. Johnson, 293 F.3d at 1203-04. In Johnson, the biological father of a child who was adopted through a private adoption agency in Utah sought to bring §1983 claims against the adoption center, adoptive parents and biological mother claiming that certain of Utah’s adoption statutes violated his rights to due process under the Fourteenth Amendment. Id. Looking specifically at the public function test as articulated in Gallagher, and noting that it presents “an arduous standard to satisfy, ” the Tenth Circuit found that the test was not satisfied in that case with respect to the adoption center because it was not the “exclusive means to adopt children in Utah.” Id. at 1203. The Tenth Circuit gave weight to the fact that there were numerous other adoption agencies existing in the state, that all the actors involved in that controversy were private parties, and that there “was no exclusive state involvement in the adoption process.” Id.
In light of the Tenth Circuit’s holding in Johnson, this Court finds that Adoption Alliance and its agents, Tem and Little, were not serving a function traditionally reserved to the state. As in Johnson, Plaintiff’s Amended Complaint contains no allegations that Adoption Alliance was the exclusive means to adopt out-of-state children, nor does it contain allegations that there is exclusive state involvement in the adoption of children in Colorado, either now or in the past. Accordingly, Plaintiff has failed to establish that these Defendants acted under color of state law through the public function test. Johnson, 293 F.3d at 1203-04.
As noted above, numerous other jurisdictions are divided on the issue of whether an adoption agency is said to perform a function traditionally reserved exclusively to the state, and Plaintiff relies in particular upon the holding in Smith v. Beasley. However, the facts relied upon the Florida District Court in that case are distinguishable from the present situation. In Beasley, the court found it determinative that the legislature in Florida had stated by statute that “the state has traditionally provided foster care services to children who have been the responsibility of the state.” 775 F.Supp.2d at 1353 (quoting Fla. Stat. § 409.1671(1)(f)). However, no such statutory language exists under Colorado law. Plaintiff further argues that Johnson would not apply to the facts in this case because the ward in that case was never in the legal custody of the state, but rather the state only issued an adoption decree. However, the Tenth Circuit’s holding in Johnson with respect to the public function test did not include any analysis with respect to the state’s role in that case, and indeed the private adoption agency that was a defendant in Jo ...