United States District Court, D. Colorado
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.
T.D., Plaintiff: James S. Helfrich, Allen & Vellone, P.C.,
Kelcey Patton, Defendant: Andrew David Ringel, Gillian Dale,
Hall & Evans, LLC-Denver, Denver, CO.
Denver Department of Human Services, Defendant: Eric Michael
Ziporin, Jennifer Fawn Kemp, Senter Goldfarb & Rice, LLC,
City of Wheatridge, Interested Party: Joseph Michael Rivera,
LEAD ATTORNEY, Murray Dahl Kuechenmeister & Renaud, LLP,
Denver Adult Probation Department, Interested Party: Sueanna
Park Johnson, LEAD ATTORNEY, Colorado Attorney General's
Office, Denver, CO.
P. MOORE, United States District Judge.
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). Therein, plaintiff raised a claim
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
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).
reasons discussed herein, the motion for summary judgment is
Legal Standard for Summary Judgment
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
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.
Eleventh Amendment Immunity
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
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).
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
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.
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. §
" 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
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.
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.
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.