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T.D. v. Patton

United States District Court, D. Colorado

March 16, 2016

T.D., Plaintiff,

          For Regina Garcia, as Parent and next friend, T.D., Plaintiff: James S. Helfrich, LEAD ATTORNEY, Jordan D. Factor, Allen & Vellone, P.C., Denver, CO; Baine P. Kerr, Christopher Wallace Ford, Hutchinson, Black and Cook, LLC, Boulder, CO.

         For T.D., Plaintiff: James S. Helfrich, Allen & Vellone, P.C., Denver, CO.

         For Kelcey Patton, Defendant: Andrew David Ringel, Gillian Dale, Hall & Evans, LLC-Denver, Denver, CO.

         For The Denver Department of Human Services, Defendant: Eric Michael Ziporin, Jennifer Fawn Kemp, Senter Goldfarb & Rice, LLC, Denver, CO.

         For City of Wheatridge, Interested Party: Joseph Michael Rivera, LEAD ATTORNEY, Murray Dahl Kuechenmeister & Renaud, LLP, Denver, CO.

         For Denver Adult Probation Department, Interested Party: Sueanna Park Johnson, LEAD ATTORNEY, Colorado Attorney General's Office, Denver, CO.

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         RAYMOND P. MOORE, United States District Judge.

         On January 19, 2015, plaintiff T.D. (" T.D." or " plaintiff" ) filed a Second Amended Complaint against Kelcey Patton (" Patton" ) and The Denver Department of Human Services (" the DDHS" ). (ECF No. 94).[1] Therein, plaintiff raised a claim pursuant

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to 42 U.S.C. § 1983 (" § 1983" ) for injuries he allegedly suffered after being placed with his father (" Father" ). (ECF No. 94 at ¶ ¶ 55-83.) Plaintiff premised his § 1983 claim under two separate theories of liability: (1) the existence of a special relationship between plaintiff and Patton ( id. at ¶ 58); and (2) Patton and the DDHS' creation of a danger ( id. at ¶ ¶ 59, 72). Plaintiff sought solely monetary damages. ( Id. at 9.)

         Pending before the Court is the DDHS' motion for summary judgment (" the motion for summary judgment" ) (ECF No. 135) and statement of undisputed material facts (ECF No. 135-1). Plaintiff filed a response to the motion for summary judgment (ECF No. 183), and a response and additional facts to the DDHS' statement of undisputed material facts (ECF No. 184). The DDHS then filed a reply (ECF No. 201) and a reply statement of undisputed material facts (" the RSUMF" ) (ECF No. 201-1).

         For the reasons discussed herein, the motion for summary judgment is GRANTED.

         I. Legal Standard for Summary Judgment

         Summary judgment is appropriate " when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Initially, the movant bears the " responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this burden is met, then the non-moving party must set forth specific facts showing that there is a genuine dispute for trial. Id. at 324. A fact is material if it has the potential to affect the outcome of a dispute under applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000).

         In performing this analysis, the factual record and any reasonable inferences therefrom are construed in the light most favorable to the non-moving party. Id. However, a mere " scintilla of evidence" is insufficient to avoid summary judgment. Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1142 (10th Cir. 2009). Instead, a non-movant " must proffer facts such that a reasonable jury could find in her favor." Id.

         II. Eleventh Amendment Immunity

         The Eleventh Amendment bars suit in federal court against a state; it does not, however, bar suits against counties, municipal corporations, or political subdivisions. Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). The prohibition of suits against a state includes suits against arms of the state. Id. In determining whether an entity is an 'arm of the state,' the Tenth Circuit has set forth the following inquiry. First, a court looks to the level of autonomy of the entity, looking specifically at the characterization of the entity under state law, as well as the extent of guidance and control exercised over the entity by the state. Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996). Second, a court looks at the entity's financing, specifically, the amount of financing received independent of the state and the entity's ability to provide its own financing. Id. at 574-575. The entity is immune from suit " if the money judgment sought is to be satisfied out of the state treasury." Id. at 575 (quotation omitted). In performing this inquiry, a court must make reference " to the particular state

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laws characterizing the entity," and, although state court decisions regarding whether an entity is an arm of the state are not dispositive, they may be given " some deference." Sturdevant, 218 F.3d at 1164. Once an Eleventh Amendment defense is asserted, resolution of the same is obligatory. United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008).

         III. Discussion

         A. Liability

         The Court begins its Eleventh Amendment inquiry with attempting to identify the legal liability for any monetary judgment that may be entered against the DDHS. See Sturdevant, 218 F.3d at 1165. This, however, may be a fool's errand for, as the DDHS acknowledges, there is " confusion regarding payment of a judgment." (ECF No. 201 at 8.) Suffice to say, the Court agrees with the DDHS. Notably, the parties have submitted no conclusive evidence from which source any money judgment would be paid, and the statutory law governing human services in Colorado provides no guidance on this matter either. The closest the DDHS could come to pinning down from where any monetary judgment would be satisfied was an affidavit from the Manager of the DDHS, in which the Manager asserted that, " to the best of [her] knowledge," a money judgment would have to be paid out of the DDHS' " general fund," which, she asserts, is made up of approximately 80 percent state and federal funding and 20 percent city funding. (ECF No. 201-2 at ¶ 7.) Although this speculation is all well and good, it brings the Court little closer to determining who is legally liable for any monetary judgment.

         Further, by referencing the " general fund," presumably the DDHS is referring to the " social services fund" created in the Colorado Human Services Code (" the CHSC" ). ( See ECF No. 201 at 7); see also Colo. Rev. Stat. § 26-1-123. The DDHS asserts that the 'general fund' " is the only fund available" to satisfy a monetary judgment. (ECF No. 201 at 7.) As discussed infra, whether or not the general fund or social services fund is made up of 80 percent state funding is far from conclusive, and likely inaccurate. However, assuming for present purposes that the fund is so funded, and further assuming that the fund is from where a monetary judgment would be satisfied, that would put a severe dent in the DDHS' position that it is entitled to Eleventh Amendment immunity.

         Section 26-1-123 of the CHSC provides that the social services fund " shall be available for the program and administrative costs of the county department." Colo. Rev. Stat. § 26-1-123(2). Fortunately, " program costs" and " administrative costs" are defined in § 26-1-122. Specifically, " program costs" include amounts expended for assistance payments and social services under programs for aid to the needy disabled, aid to the blind, child welfare services, expenses related to preventing blindness or restoring eyesight, funeral and burial expenses, and state supplementation of social security. Id. § 26-1-122(4)(c). Amounts paid to satisfy monetary judgments are not included. " Administrative costs" include salaries of county department employees, county payments related to certain types of insurance for employees' and employees' retirement plans; necessary travel expenses, necessary telephone and telegraph, necessary equipment and supplies, necessary postage and printing, and " such other administrative costs as may be approved by the state department." Id. § 26-1-122(3)(c).

         If " such other administrative costs" do not include costs to satisfy a monetary judgment, then there is no basis under § § 26-1-122 and -123 for the social services

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fund to be considered the pot from which a monetary judgment may be satisfied. In that situation, for satisfaction of a monetary judgment to be considered an administrative cost would require a statutory amendment by the Colorado General Assembly. Even worse for the DDHS, though, is if the social services fund does turn out to be the money pot that the DDHS advocates it is. This is because the Tenth Circuit has instructed courts not to look at the practical effect of a money judgment, in terms of who or what ultimately ends up paying it, but, instead, to focus on the legal liability for a judgment. Duke v. Grady Mun. Sch., 127 F.3d 972, 981 (10th Cir. 1997). Here, if payment of a monetary judgment is obtained from the county social services fund, then that would strongly suggest that the county is legally liable for said judgment for the simple reason that the county social services fund has been expressly " created and established in each of the counties of the state of Colorado." See Colo. Rev. Stat. § 26-1-123(1) (emphasis added). Moreover, it is the county board that is charged with administering the social services fund, albeit pursuant to state department rules, and the county treasurer is designated as the treasurer and custodian of the fund. Id. § 26-1-123(3)(a). In this light, the county social services fund appears to be a county fund, not a state one.

         The Tenth Circuit's discussion of this issue in Duke is instructive. In that case, a school district in New Mexico received 98 percent of its funds from the state. Duke, 127 F.3d at 980. Because of this, " as a practical matter," a monetary judgment against the school district would be paid by the state treasury. Id. at 980-981 (emphasis in original). Despite this, based upon decisions from the U.S. Supreme Court, the Tenth Circuit explained that " '[t]he question is not who pays in the end; it is who is legally obligated to pay the judgment that is being sought.'" Id. at 981 (quoting Regents of the Univ. of California v. Doe, 519 U.S. 425, 428, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997)) (internal quotation omitted). In Duke, this meant that " this most important factor" weighed against Eleventh Amendment immunity because the state was not legally liable for a judgment against a school district. Id.

         Nevertheless, as mentioned, in this case the DDHS' pyrrhic reliance on the county social services fund is, at best, merely based on the speculation of its Manager. There is no evidence, either for or against, that the State of Colorado would be liable for any judgment against the DDHS. As a result, although the DDHS may not be entitled to immunity based on liability alone, that does not end the Eleventh Amendment inquiry because the Tenth Circuit has explained that, even if legal liability cannot be ascertained, an entity may still be an arm of the state if " the other factors decisively resolve the question in favor of Eleventh Amendment immunity." Sturdevant, 218 F.3d at 1166.

         B. ...

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