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Gillis v. Phillips

United States District Court, D. Colorado

June 5, 2017

JAMES GILLIS, and CHRISTIE GILLIS, individually and on behalf of their minor children, AG, AW, JG, and WD, Plaintiffs,
v.
PATRICIA PHILLIPS, MELISSA GOSSETT, ANDY LORENSEN, CASSANDRA VERNIE, and KIM BRITTON, Defendants.

          ORDER ON DEFENDANT VERNIE'S MOTION TO DISMISS

          Michael E. Hegarty United States Magistrate Judge

         In response to the Plaintiffs' Amended Complaint, Defendant Cassandra Vernie has moved to dismiss the Plaintiffs' Fourth Amendment claims against her. In this Circuit, parents proceeding pro se may not bring claims on behalf of their minor children; therefore, I must grant the motion to dismiss all claims brought on behalf of AG, AW, JG, and WD against Defendant Vernie. In addition, for the Plaintiffs' lack of standing for their Fourth Amendment claims and failure state Fourteenth Amendment claims against Defendant Vernie, I will grant the motion to dismiss the Plaintiffs' individual claims.[1]

         BACKGROUND

         Plaintiffs initiated this lawsuit on November 2, 2016, then filed the operative Second Amended Complaint on April 9, 2017 as a matter of course.[2]

         I. Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiffs in the Second Amended Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On April 20, 2016, the Lincoln County Department of Human Services (“DHS”) received an anonymous “referral” concerning the Plaintiffs' family. Certain DHS staff (“Red Team”) conducted a meeting the following day on April 21, 2016. After the Red Team gathered all information concerning the referral, it assigned a “High Risk” level to the referral, which was partly based on information procured from previous DHS involvement with the Plaintiffs' family. The reason given for the referral and need for the “High Risk” level was that the victim, AW, was restrained and punched by the alleged perpetrator, AW's step dad, Plaintiff James C. Gillis. Only one victim and only one allegation were noted.

         On April 21-22, 2016, Defendant Case Worker Melissa Gossett, without parental consent or a current court order, interviewed four of the Plaintiffs' children in schools they were attending. The Limon Public School secretary, Defendant Cassandra Vernie (“Vernie”), facilitated interviews with three of the children, AW, AG, and JW, with no policy in place governing such interviews. Limon Child Development Center staff member, Defendant Kim Britton, facilitated the interview with the fourth child with no policy in place governing such interview. Much of the information gathered from the interviews had nothing to do with the allegation or referral and has been documented for future use.

         On April 21, 2016, Vernie was asked to escort AW, AG, and JW from their assigned classrooms. Vernie instructed each child to leave the assigned classroom, follow her, and enter another room where Defendant Gossett was present. Vernie did not inform the children where they were going or why, or that they had a right not to participate. Vernie acted on her own with no law and no Limon Public School policy or procedure in place to govern a visit from the Department of Human Services. Vernie did not have authority to allow another governmental agency to remove the children from the classrooms for interviews.

         II. Procedural History

         Based on these factual allegations, Plaintiffs claim Vernie violated their Fourth Amendment rights to be free from illegal seizures. Am. Compl., ECF No. 39 at 8. Plaintiffs request “the maximum monetary amount allowed by law . . . in punitive damages, ” as well as an order requiring that Limon Public Schools “create policy to protect the Constitutional rights of the parents and the children in the school setting.” Id. at 10.

         Vernie filed the present motion arguing the Plaintiffs fail to state plausible claims for violations of their own constitutional rights under the Fourth Amendment, the Plaintiffs may not represent their children in this litigation, and the allegations taken as true do not demonstrate Vernie violated the Fourth Amendment. In addition, Vernie claims she is entitled to qualified immunity in her individual capacity.

         Plaintiffs counter[3] that their parental rights were violated when their children were interviewed without notice or consent; they “should be allowed” to represent their children where no attorney has expressed interest in taking the case; and, Vernie acted unreasonably and failed to fulfill her duty to protect the children's Fourth Amendment rights when she “seized” the children to bring them to the interviews. Finally, Plaintiffs contend that, by failing to file a motion to dismiss the original complaint, Vernie cannot now claim immunity based on the Second Amended Complaint.

         Vernie replies that Plaintiffs fail to cite any authority contradicting the argument that they cannot bring claims based on their children's constitutional rights; Tenth Circuit precedent holds that parents may not represent their minor children in federal litigation; the focus of the “seizure” inquiry under the Fourth Amendment is on the limitation of a student's movement, not on the reason for the limitation; and, the ...


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