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K.B. v. Perez

United States District Court, D. Colorado

April 1, 2016

K.B., by and through her next friend, ANGELA BOURELLE, Plaintiff,
CHRISTOPHER J. PEREZ, in his personal capacity, Defendant.



THIS MATTER comes before the Court upon Defendant Christopher J. Perez’s Motion to Dismiss (Doc. 29), filed August 20, 2015. Having considered the parties’ written submissions, the oral arguments of counsel at the March 22, 2016 hearing, and the applicable law, the Court finds that Defendant’s Motion to Dismiss is well taken, and therefore GRANTED, as set forth in this opinion.


Angela Bourelle (“Ms. Bourelle”) and Mark Bourelle (“Mr. Bourelle”) are the biological parents of the minor female child who is identified in the caption of this case as K.B. Ms. Bourelle has filed this lawsuit and is asserting claims on behalf of her minor daughter K.B. While the Court recognizes that K.B. was a minor child who could not file this lawsuit in her own name at the time the circumstances giving rise to this lawsuit occurred, for ease of reference, the Court will refer to K.B. as Plaintiff in this opinion since K.B. is the individual identified in the Complaint as the one who has suffered injury in this case.

In 2008, Mr. Bourelle pled guilty to a violation of 18 U.S.C. § 2252(a)(2) for distribution of child pornography in the United States District Court for the Southern District of Florida. Mr. Bourelle was sentenced to the statutory minimum sentence of five years imprisonment followed by ten years of supervised release. On September 25, 2012, the district judge in Florida ordered Mr. Bourelle to participate in and complete an approved program of sex offender evaluation and treatment, but also made the express ruling that Mr. Bourelle was authorized to have unsupervised contact with his minor children when his term of supervised release began. Prior to the commencement of his term of supervised release, Mr. Bourelle was transferred to a halfway house in Colorado. Such a placement is still deemed to be in the custody of the Bureau of Prisons. See 18 U.S.C. § 3624(c)(1) (stating that a prisoner may spend a portion of the final months of the term of imprisonment under conditions that will permit the prisoner to prepare for re-entry into the community, including in a community correctional facility). Defendant Christopher J. Perez (“Mr. Perez” or “Defendant”), a U.S. Probation Officer, was assigned as Mr. Bourelle’s federal probation officer.

While Mr. Bourelle was incarcerated, Plaintiff did have visitation with her father in accordance with the family visitation policies in effect at the particular facility where Mr. Bourelle was incarcerated. Plaintiff alleges that when Mr. Bourelle was initially transferred to the halfway house in Colorado, she was allowed to see her father. However, around January 1, 2013, Mr. Perez directed the halfway house to end Mr. Bourelle’s visitations with his minor daughter. Mr. Perez allegedly ordered this change because the Colorado Sex Offender Management Board (“SOMB”) guidelines prohibit sex offenders from having contact with minors. Plaintiff argues that Colorado SOMB guidelines should not be applied to federal inmates in Colorado. On February 12, 2013, Plaintiff was once again permitted to visit Mr. Bourelle. Plaintiff alleges severe emotional distress caused by her inability to see her father for approximately six weeks, and seeks relief in the form of damages pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (“Bivens”). Plaintiff asserts that Mr. Perez violated her First, Fifth, and Fourteenth Amendment right to familial association when Mr. Perez prohibited Plaintiff from visitation with Mr. Bourelle.

Plaintiff filed her initial Complaint for Damages and Injunctive Relief (Doc. 1) on December 31, 2014 in the United States District Court for the District of Colorado. This case was then randomly assigned to U.S. District Judge Raymond P. Moore as the presiding judge. The original Complaint asserted two unnumbered claims for relief. Plaintiff’s first claim sought declaratory and injunctive relief against Walter Vanni in his official capacity as supervising probation officer for Mr. Bourelle, and the second claim sought damages against Mr. Perez in his personal capacity as a probation officer who formerly supervised Mr. Bourelle and allegedly denied Plaintiff visitation with her father when such visitation had been authorized by the federal judge in Florida who sentenced Mr. Bourelle.

By Order electronically filed on January 8, 2015 (Doc. 7), Judge Moore sua sponte dismissed Plaintiff’s first claim on the grounds that Plaintiff was not a party to the criminal case against her father, Mr. Bourelle, and thus, Plaintiff lacked standing to impact the court ordered terms of supervised release imposed in the criminal case against Mr. Bourelle. (Doc. 7 at 2). Additionally, Judge Moore held that Plaintiff’s first claim interferes with the administration of a criminal case, affects its finality and thus, this first claim was not justiciable. Id. As for Plaintiff’s second claim against Mr. Perez, Judge Moore noted that he works directly or indirectly on a daily basis with Mr. Perez based on his status as a Supervising U.S. Probation Officer in the District of Colorado and so recusal was required under 28 U.S.C. § 455(a) because the impartiality of Judge Moore might reasonably be questioned. Consequently, Judge Moore recused himself as did the other Colorado district judges and so the Chief Judge of the Tenth Circuit designated the undersigned, a U.S. District judge in the District of New Mexico, to preside over this case. Plaintiff subsequently filed an Amended Complaint (Doc. 1) on August 6, 2015, asserting the single claim for relief for damages pursuant to Bivens for violations of her First, Fifth, and Fourteenth Amendment right to familial association when Mr. Perez prohibited Plaintiff from visitation with Mr. Bourelle.

Defendant filed his Motion to Dismiss (Doc. 29) on August 20, 2015, Plaintiff filed her Response (Doc. 36) on September 18, 2015 and Defendant filed his Reply (Doc. 37) on October 5, 2015. At a hearing held on March 22, 2016, the Court permitted each party to file a brief of supplemental authority to provide additional support for their arguments. Defendant filed a Supplemental Brief (Doc. 43) on March 25, 2016, and Plaintiff similarly filed a Supplemental Brief (Doc. 44) on the same day.

Legal Standard

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a case for failure to state a claim upon which relief can be granted. Rule 8(a)(2), in turn, requires a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although a court must accept all the complaint’s factual allegations as true, the same is not true for legal conclusions. See Id. Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555. “Thus, in ruling on a motion to dismiss, a court should disregard all conclusory statements of law and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).


Defendant puts forward three arguments in support of his Motion to Dismiss, arguing first that there is no implied damages action for violations of the right to familial association under Bivens, and second, that even if there is a cause of action, Mr. Perez is entitled to qualified immunity. Alternatively, Defendant argues that Plaintiff’s claim also fails because it constitutes a non-justiciable collateral attack on the ...

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