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N.E.L. v. Douglas County

United States District Court, D. Colorado

January 27, 2017

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.


          Craig B. Shaffer United States Magistrate Judge

         This 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.

         On 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.


         This 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.”

         As the 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.

         It appears that Mr. and Mrs. Doe had their first contact with the Kansas Department of Social and Rehabilitation Services[1] in June 2008 after one of the Doe children[2] 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.

         On or 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, 2009.

         On that 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.[3] 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.

         In 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 arguments.


         I. The Douglas County Defendants' Motion

         Rule 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 factual averments.

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).

         As the 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 these claims.

         “The 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).

         Plaintiffs 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. #76-1).[4]

         Generally, 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).

         A. Defendants' Claim to Absolute Immunity

         Defendants 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.

         The 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 immune”).

         “[F]or 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).

         Plaintiffs 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 original).

         The Ex Parte Orders in question purportedly were issued “pursuant to K.S.A. 38-2242"[5] 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.

         As this 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.

         The 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 control.'”).

         However, 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.”[6] 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 immunity.

         B. Defendants' Claim to Qualified Immunity

         Even if 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).

         In 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)).

         Under 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.[7]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 ...

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