United States District Court, D. Colorado
JAMES GILLIS, and CHRISTIE GILLIS, individually and on behalf of their minor children, AG, AW, JG, and WD, Plaintiffs,
PATRICIA PHILLIPS, MELISSA GOSSETT, ANDY LORENSEN, CASSANDRA VERNIE, and KIM BRITTON, Defendants.
ORDER ON DEFENDANT VERNIE'S MOTION TO
Michael E. Hegarty United States Magistrate Judge
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.
initiated this lawsuit on November 2, 2016, then filed the
operative Second Amended Complaint on April 9, 2017 as a
matter of course.
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).
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.
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
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.
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.
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.
counter 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.
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 ...