United States District Court, D. Colorado
N.E.L. and M.M.A., Plaintiffs,
DOUGLAS COUNTY, COLORADO; MONICA GILDNER, in her individual capacity; ANGELA WEBB, in her individual capacity; TINA ABNEY, in her individual capacity; LESA ADAME, in her individual capacity; and CARL GARZA, in his individual capacity. Defendants.
RECOMMENDATION ON PENDING MOTIONS TO DISMISS
B. Shaffer United States Magistrate Judge
matter comes before the court on the Motion to Dismiss
Amended Complaint (doc. # 57) filed by Defendants Lesa Adame,
Carl Garza, and Douglas County (hereinafter referred to
collectively as the “Douglas County Defendants”),
and the Motion to Dismiss First Amended Complaint with
Memorandum in Support or, in the alternative, Motion for
Summary Judgment (doc. # 65) filed by Defendants Monica
Gildner, Angela Webb, and Tina Abney (hereinafter referred to
collectively as the “Kansas Defendants”). These
motions have been fully briefed by the parties.
March 1, 2016, this matter was referred to the Magistrate
Judge to, inter alia, “hear and make
recommendations on dispositive matters that have been
referred.” By separate memoranda, both of the pending
motions have been referred to this court for recommendation.
I have carefully reviewed the motions, all related briefing
and attached exhibits, the entire court file, and the
applicable case law.
action was commenced with the filing of the original
Complaint on December 1, 2015. The First Amended Complaint
(doc. #55), filed on April 29, 2016, asserts six claims for
relief. The First Claim asserts a Fourth Amendment violation
and contends that all Defendants “approved and/or
conducted an unlawful seizure . . . by which Plaintiffs were
deprived of their liberty without due process when they were
prohibited . . . from any movement or travel with their
mother, father and grandparents.” The Second Claim is
brought against Defendants Gildner, Webb and Abney and
asserts that Plaintiffs' Fourth Amendment rights were
violated when they were “held against their will for
five days prior to a hearing on the CINC petitions.”
The Third Claim is brought against Defendants Gildner, Webb,
Abney, Adame, and Garza and asserts a violation of
Plaintiffs' Fourteenth Amendment right to maintain a
familial relationship with their parents, siblings, and
grandparents. The Fourth Claim alleges that Defendants
Gildner, Abney, Webb, Adame and Garza conspired to deprive
Plaintiffs of their constitutional rights. The Fifth Claim
contends that Plaintiffs are entitled to exemplary damages
because “[t]he actions of Gildner, Abney, Webb, Adame
and Garza were attended by retaliation, malice, ill will,
intent and/or recklessness, [and] callous disregard of
Plaintiffs' rights, or indifference to Plaintiffs'
rights.” Finally, the Sixth Claim alleges that
Defendant Douglas County violated Plaintiffs' Fourth
Amendment rights by adopting an unlawful policy that
authorized county sheriff's personnel “to seize
Plaintiffs based on an out-of-state ex parte order
in violation of the United States Constitution and Colorado
law, ” or through deliberate indifference by failing to
“adopt a policy requiring . . . or in failing to train
personnel . . . to comply with the United States Constitution
and Colorado law.”
parties are well-familiar with the underlying circumstances
of this case, I will only briefly summarize those facts and
circumstances that are necessary to place the pending motions
and this Recommendation in context.
appears that Mr. and Mrs. Doe had their first contact with
the Kansas Department of Social and Rehabilitation
Services in June 2008 after one of the Doe
children began exhibiting troubling behavior and
making troubling comments that allegedly stemmed from
improper interaction with that child by one of Mrs. Doe's
relatives. See First Amended Complaint at
¶¶ 17 and 21. Later, other Doe children reported
having suffered abuse from the same suspected relative.
Id. at ¶¶ 38, 65 and 77. During the time
period relevant to this case, the Kansas Defendants were
employed by SRS/DCF. The Kansas Defendants' contacts with
the Doe family continued into 2009 and eventually became
contentious. As some point, Mr. Doe apparently
“communicated to [Ms.] Webb and [Ms.] Abney that he did
not wish to have further contact with [Ms.] Gildner due to
the animosity created by her antagonistic, biased and
baseless positions.” Id. at ¶ 55. In
February 2009, Mr. Doe “filed a formal complaint with
SRS/DCF” against Ms. Gildner. Id. at ¶
66. The actual cause of this deteriorating situation is a
matter of some dispute and wholly irrelevant to the
disposition of the pending motions.
about April 20, 2009, ten Child-in-Need of Care (CINC)
petitions were filed in the District Court for Johnson
County, Kansas by the District Attorney's Office. Those
petitions “requested termination of Mr. and Mrs.
Doe's parental rights, appointment of a permanent
custodian for Plaintiffs and their siblings, temporary
removal of Plaintiffs and their siblings from their
Parents' custody, and an order of child support.”
Id. at ¶ 86. The Johnson County District Court
set a non-emergency hearing on these petitions for May 11,
2009. On May 5, 2009, SRS/DCF sought Ex Parte Orders
of Protective Custody in the District Court of Johnson
County. Although Mr. and Mrs. Doe dispute the information
proffered in support of the petitions for those orders, the
District Court entered Ex Parte Orders on May 5,
same day, Mrs. Doe and her children were visiting
long-standing family friends, Dr. and Mrs. G, who were living
in unincorporated Douglas County, Colorado. At some point,
Defendants Adame and Garza were made aware of the Ex
Parte Orders issued by the Johnson County District Court
and they went to the G's residence. After some
discussion on May 6, 2009, Mrs. Doe left the G residence.
Later that same day, Dr. G and his wife drove the Doe
children back to Kansas where they were placed in the
temporary custody of SRS/DCF.
moving to dismiss the First Amended Complaint, the Douglas
County Defendants contend that Plaintiffs' claims are
barred by the applicable statute of limitations, as well as
the doctrines of absolute and qualified immunity. The Douglas
County Defendants further insist that the First Amended
Complaint fails to state a viable claim for relief against
Douglas County. The Kansas Defendants have moved to dismiss
the claims against them based upon a lack of personal
jurisdiction. In the alternative, the Kansas Defendants
insist that Plaintiffs' claims are barred by the statute
of limitations and the doctrines of absolute or qualified
immunity, and that Plaintiffs' alleged Fourth Amendment
violation fails to state a cognizable claim for relief.
Plaintiffs naturally take strong exception to all of these
The Douglas County Defendants' Motion
12(b)(6) states that a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” See Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), the court must
“accept as true all well-pleaded factual allegations .
. . and view these allegations in the light most favorable to
the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However,
a plaintiff may not rely on mere labels or conclusions
“and a formulaic recitation of the elements of a cause
of action will not do.” See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Rather, the
court's analysis is two-fold.
First, the court identifies “the allegations in the
complaint that are not entitled to the assumption of truth,
” that is those allegations that are legal conclusions,
bare assertions, or merely conclusory. Second, the court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.” If the
allegations state a plausible claim for relief, such claim
survives the motion to dismiss. Notwithstanding, the court
need not accept conclusory allegations without supporting
Wood v. Wells Fargo Bank, N.A., No.
13-cv-01731-CMA-KMT, 2013 WL 5763101, at *2 (D. Colo. Oct.
23, 2013) (internal citations omitted).
Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007),
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
burden is on the plaintiff to frame ‘a complaint with
enough factual matter (taken as true) to suggest' that he
or she is entitled to relief.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atl. Corp., 555 U.S. at 556). The ultimate duty
of the court is to “determine whether the complaint
sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the
legal theory proposed.” Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
attached to the First Amended Complaint a redacted Ex
Parte Order of Protective Custody, dated May 5, 2009
(Exhibit 1) (doc. #55-1) and a redacted document entitled
Colorado Department of Social Services, Douglas County
Department of Human Services Safety Plan, dated May 6, 2009
(Exhibit 2) (doc. #55-2). The parties also have attached
exhibits to their briefs in support of or in opposition to
the Douglas County Defendants' motion to dismiss. Those
exhibits consist of judicial records from Colorado's
Eighteenth Judicial District (Defendants' Exhibit A, doc.
# 57-1 and Plaintiffs' Exhibit 3, doc. #67-3) and the
District Court for Johnson County, Kansas (Plaintiffs'
Exhibit 2, doc. #67-2 and Plaintiffs' Exhibit 4, doc.
#67-4). The parties also included as exhibits excerpts from
the Colorado Code of Regulations, 12 CCR 2509-2
(Defendants' Exhibit B, doc. #57-2 and Exhibit C, doc.
a court considers only the contents of the complaint when
ruling on a Rule 12(b)(6) motion. Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this
general rule include: documents incorporated by reference in
the complaint; documents referred to in and central to the
complaint, when no party disputes their authenticity; and
“matters of which a court may take judicial
notice.” Id. (quoting Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007)). Cf. Gilbert v. Bank of Am. Corp., No.
11-cv-00272-BLW, 2012 WL 4470897, at *2 (D. Idaho Sept. 26,
2012) (noting that a court may take judicial notice “of
the records of state agencies and other undisputed matters of
public record” without transforming a motion to dismiss
into a motion for summary judgment). Cf. Catchai v. Fort
Morgan Times, No. 15-cv-00678-MJW, 2015 WL 6689484, at
*4 (D. Colo. Nov. 3, 2015) (in ruling on the pending motion
to dismiss, the court acknowledged its ability to take
judicial notice of court records from Morgan County District
Court); Reyes v. Hickenlooper, 84 F.Supp.3d 1204,
1207 (D. Colo. 2015) (noting that the court could take
judicial notice of court filings from other cases without
converting a Rule 12(b)(6) motion into a summary judgment
motion). While the court has read and considered the
parties' exhibits, I will analyze the issues and
arguments under the standard governing motions to dismiss
under Rule 12(b)(6).
Defendants' Claim to Absolute Immunity
Adame and Garza contend that all claims against them must be
dismissed based on the doctrine of absolute or quasi-judicial
immunity because on May 6, 2009 they were simply executing
orders issued by a Kansas court. Plaintiffs argue in response
that “absolute immunity does not apply because the
Kansas Ex Parte Orders were not facially
valid” and because “Adame and Garza exceeded the
scope of the orders.” See Response to Douglas
Defendants' Motion to Dismiss, at 12.
Tenth Circuit has held that “enforcing a court order or
judgment is intrinsically associated with a judicial
proceeding” and that “[a]bsolute immunity for
officials assigned to carry out a judge's orders is
necessary to insure that such officials can perform their
function without the need to secure permanent legal
counsel.” Valdez v. City & Cty. of Denver,
878 F.2d 1285, 1289 (10th Cir. 1989) (“it is simply
unfair to spare the judges who give orders while punishing
the officers who obey them”). See also Moss v.
Kopp, 559 F.3d 1155, 1163-1168 (10th Cir. 2009) (holding
that “[j]ust as judges acting in their judicial
capacity are absolutely immune from liability under section
1983, ‘official[s] charged with the duty of executing a
facially valid court order enjoy [ ] absolute immunity from
liability for damages in a suit challenging conduct
prescribed by that order”) (quoting Turney v.
O'Toole, 898 F.2d 1470, 1472 (10th Cir. 1990).
“The ‘fearless and unhesitating execution of
court orders is essential if the court's authority and
ability to function are to remain uncompromised.'”
Coverdell v. Dep't of Soc. & Health Servs.,
834 F.2d 758, 765 (9th Cir. 1987). Cf. Smeal v.
Alexander, No. 5:06 CV 2109, 2006 WL 3469637, at *6
(N.D. Ohio Nov. 30, 2006) (“quasi-judicial immunity
extends to those persons performing tasks so integral or
intertwined with the judicial process that they are
considered an arm of the judicial officer who is absolutely
the defendant state official to be entitled to quasi-judicial
immunity, the judge issuing the disputed order must be immune
from liability in his or her own right, the officials
executing the order must act within the scope of their own
jurisdiction, and the officials must only act as prescribed
by the order in question.” Moss, 559 F.3d at
1163. The doctrine of quasi- judicial immunity further
requires that the court order in question be “facially
valid.” Id. at 1164. The Tenth Circuit has
recognized, however, that a court order may be
“facially valid” even if that order is infirm or
erroneous as a matter of state law.
“State officials ‘must not be required to act as
pseudo-appellate courts scrutinizing the orders of judges,
' but subjecting them to liability for executing an order
because the order did not measure up to statutory standards
would have just that effect.” Further, “[t]o
allow plaintiffs to bring suit any time a state agent
executes a judicial order that does not fulfill every legal
requirement would make the agent ‘a lightning rod for
harassing litigation aimed at judicial orders.”
“Simple fairness requires that state officers
‘not be called upon to answer for the legality of
decisions which they are powerless to control.'”
Id. at 1165 (internal citations omitted).
contend that the First Amended Complaint “alleges
specifically that the [Ex Parte Orders] were
facially invalid by being issued from a Kansas court
and being incomplete, such that Adame and Garza could see for
themselves that no one from ‘Kansas State Social
Services' was granted custody by the [Ex Parte
Orders].” See Plaintiffs' Response to
Douglas Defendants' Motion to Dismiss, at 14 (emphasis in
original). Plaintiffs also argue a Kansas judge “had no
jurisdiction to issue ex parte orders for execution
in Colorado.” Id. at 15 (emphasis in
Ex Parte Orders in question purportedly were issued
“pursuant to K.S.A. 38-2242" and specifically
state that the District Court of Johnson County, Kansas
found, in part, that “[r]easonable efforts are not
required to maintain the child in the home because an
emergency exists which threatens the safety of the child,
” that “remaining in the home or returning home
would be contrary to the welfare of the child, ” and
that “immediate placement is in the best interest of
the child.” See Exhibit 1 (doc. #55-1)
attached to First Amended Complaint. The Orders further noted
allegations of “physical, sexual, mental or emotional
abuse.” These documents bear the caption “EX
PARTE ORDER OF PROTECTIVE CUSTODY and the signature of
“Kathleen L. Sloan, Judge of the District Court,
” and apparently ere time-stamped by the Clerk of the
District Court on “2009 May -5 PM 3:40.” Although
these court filings set forth “findings” of fact,
Judge Sloan did not direct any action to be taken based upon
those findings. So, for example, the Ex Parte Order
did not explicitly require that the identified child be taken
into custody. The district judge also did not check the box
that “FURTHER ORDERED that any duly authorized law
enforcement officer of the jurisdiction where the child(ren)
can be found shall take the child(ren) named above into
custody and deliver the child(ren) to” a specified
location or government official. Judge Sloan also did not
indicate that a “restraining order shall be filed
against” anyone.” In short, from the face of the
Ex Parte Order, it is difficult to discern exactly
what actions Judge Sloan required or even contemplated.
matter comes before the court on a motion to dismiss, I must
confine my analysis to the well-pled facts (but not
conclusory allegations) contained in the First Amended
Complaint and the exhibits properly before the court. The
court is required to construe those facts and documents in a
light most favorable to Plaintiffs.
First Amended Complaint contends that the Ex Parte
Orders issued by Judge Sloan were not based upon probable
cause and falsely presented or omitted material facts
concerning Mr. and Mrs. Doe and their children. There are no
well-pled facts in the First Amended Complaint that would
suggest Defendants Adame or Garza were aware of these alleged
deficiencies in the Ex Parte Orders. But see
Moss, 559 F.3d at 1165 (“Simple fairness requires
that state officers ‘not be called upon to answer for
the legality of decisions which they are powerless to
there is a fundamental problem with the Douglas County
Defendants' invocation of quasi-judicial immunity. As the
Tenth Circuit has explained, “an official charged with
the duty of executing a facially valid court order enjoys
absolute immunity from liability for damages in a suit
challenging conduct prescribed by that order.”
Valdez, 878 F.2d at 1286 (emphasis added). Stated
differently the government official is entitled to
quasi-judicial immunity because he or she is taking actions
commanded by the court orders in question. Cf. Martin v.
Bd. of Cty. Comm'rs, 909 F.2d 402, 405 (10th Cir.
1990) (holding that quasi-judicial immunity protects
defendants from damage claims directed to the conduct
prescribed in the court order itself, but not to the manner
of its execution). Here, Judge Sloan's Ex Parte
Orders simply make findings of fact; nothing is specifically
or inferentially “ordered.” Therefore, the
rationale for quasi-judicial immunity seems to be lacking in
this case. I recommend that the motion to dismiss be denied
to the extent Defendants Adame and Garza are relying in whole
or in part on the doctrine of absolute or quasi-judicial
Defendants' Claim to Qualified Immunity
Defendants Adame and Garza are not protected by
quasi-judicial immunity, they are entitled to qualified
immunity for conduct performed within the scope of their
official duties. “The doctrine of qualified immunity
protects government officials from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Messerschmidt
v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1244 (2012)
(internal quotation marks and citations omitted). See
also Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994)
(same). Stated differently, the affirmative defense of
qualified immunity “protects all but the plainly
incompetent [government official] or those who knowingly
violate the law.” Holland ex rel. Overdorff v.
Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001).
Whether Defendants Adame and Garza are entitled to qualified
immunity is a legal question. Wilder v. Turner, 490
F.3d 810, 813 (10th Cir. 2007).
resolving a motion to dismiss based on qualified immunity,
the first prong of the court's analysis asks
“whether the facts that a plaintiff has alleged . . .
make out a violation of a constitutional right.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009). This
determination turns on the substantive law regarding the
constitutional right at issue. See McGettigan v. Di
Mare, 173 F.Supp.3d 1114, 1121 (D. Colo. 2016) (citing
Casey v. City of Fed. Heights, 509 F.3d 1278,
1282-83 (10th Cir. 2007)).
the second prong of the qualified immunity doctrine, the
plaintiff must show that the right at issue was
“clearly established” at the time of the
defendant's alleged violation.Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled on other grounds by
Pearson v. Callahan, 555 U.S. 223 (2009). “The
clearly established inquiry examines whether the contours of
the constitutional right were so well-settled, in the
particular circumstances presented, that every reasonable . .
. official would have understood that what he is doing
violates that right.” Lane v. Yohn, No.
12-cv-02183-MSK-MEH, 2013 WL 4781617, at *3 (D. Colo. Sept.
6, 2013) (internal quotation marks and citation omitted),
appeal dismissed, No. 13-1392 (10th Cir. Oct. 31,
2013). “[T]he salient question . . . is whether the
state of the law at the time of [the] incident provided
‘fair warning'” to Defendants Adame and Garca
that their alleged conduct was unconstitutional. Tolan v.
Cotton, __ U.S. __, 134 S.Ct. 1861, 1866 (2014) (quoting
Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “To
satisfy this prong, the burden is on the plaintiff to point
to Supreme Court or Tenth Circuit precedent (or the clear
weight of other circuit courts) that recognizes an actionable
constitutional violation in the circumstances
presented.” Havens v. Johnson, No.
09-cv-01380-MSK-MEH, 2014 WL 803304, at *7 (D. Colo. Feb. 28,
2014) (citing Schwartz v. Booker, 702 F.3d 573,
587-88 (10th Cir. 2012)), aff'd,783 F.3d 776
(10th Cir. 2015). “It is not necessary for the
plaintiff to adduce a case with identical facts, but the
plaintiff must identify some ...