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, and KIM BRITTON, Defendants.
ORDER ON MOTION TO DISMISS
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
response to the Plaintiffs' Amended Complaint, Defendants
Melissa Gossett, Andy Lorensen, and Patricia Phillips
(collectively, the "DHS Defendants") moved to
dismiss the Plaintiffs' Fourth and Fourteenth Amendment
claims against them. 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 the
DHS Defendants. In addition, due to the Plaintiffs' lack
of standing for their Fourth Amendment claims and their
failure to state Fourteenth Amendment substantive and
procedural due process claims, I find the DHS Defendants are
entitled to qualified immunity and will grant the motion to
dismiss the Plaintiffs' individual claims against them.
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 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 stepfather, 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, interviewed four of the
Plaintiffs' children in schools or other facilities they
attended. She asked that the children be brought from their
classrooms into a separate room for the interviews.
Plaintiffs believe much of the information gathered from the
interviews had nothing to do with the allegation or referral
and has been documented for future use.
May 3, 2016 meeting, Defendant Supervisor Andy Lorensen
provided Plaintiffs with an April 12, 2010 order issued by
Chief Judge William Blair Sylvester of the Eighteenth
Judicial District relating to child abuse investigations and
allowing children to be interviewed "without a court
order or parental consent." Am. Compl.¶2,
p.3;¶1, p. 6. Lorensen used the order to justify
Gossett's interviews of the Plaintiffs' children.
Plaintiffs believe Lorensen lied to Plaintiffs stating there
was a "government need" for a family meeting
because of a concern from "two incidents" that
occurred during the department's investigation; however,
neither incident related to the referral or allegation.
interviewed one of the Plaintiffs' children, WD, a second
time on June 7, 2016 after the Plaintiffs told her they did
not want their children interviewed without their consent or
a court order. Gossett gained access to WD at home through a
babysitter who was watching WD at the time. Plaintiffs did
not give their consent for such interview. Plaintiffs believe
Gossett entered all information she gained from the
interviews into the Lincoln County "TRAILS" system
for use in the future.
response to the Plaintiffs' grievance, Defendant Director
Patricia Phillips and Lorensen met with the Plaintiffs, and
Phillips told Plaintiffs that Lincoln County policy did not
require either parental consent or a court order to proceed
with interviews of the Plaintiffs' children. Phillips
also determined that the Plaintiffs would not be entitled to
review by a "citizen panel, " which Plaintiffs
believe is typically provided as part of the grievance
assert the Defendants' actions have caused the Plaintiffs
and their children embarrassment and emotional distress; in
addition, the children no longer trust government officials.
on these factual allegations, the Plaintiffs claim the DHS
Defendants violated their Fourth Amendment right to be free
from illegal seizures and their Fourteenth Amendment right to
due process. Am. Compl., ECF No. 39 at 3-7. Plaintiffs
request the following relief: (1) "the maximum monetary
amount allowed by law ... in punitive damages, " (2) an
order requiring that the DHS "create policy to protect
the Constitutional rights of the parents and the children in
the school setting, " (3) an order requiring the DHS to
obtain a court order based upon probable cause prior to
interviewing a child, (4) an order requiring the removal of
all data in the DHS systems that is not supported by fact,
(5) an order requiring the removal of all information from
this case in possession of the DHS, (6) an order requiring
the DHS to adopt a policy for validating information prior to
being entered into the "Trails system, " and (7)
the DHS Defendants be "dismissed" from their
employment with DHS. Id. at 10.
Defendants filed the present motion arguing the Plaintiffs
fail to state plausible claims for violations of their
own constitutional rights under the Fourth Amendment;
Plaintiffs may not represent their children in this
litigation; the allegations taken as true do not demonstrate
the DHS Defendants violated the Fourth Amendment;
Plaintiffs' Fourteenth Amendment rights were not
violated; and the Plaintiffs fail to allege personal
participation by Lorensen and Phillips as required under 42
U.S.C. § 1983. In addition, the DHS Defendants claim
they are entitled to qualified immunity in their individual
response contains several pages of "factual"
argument and attached supporting documentation, apparently in
the Plaintiffs' effort to prove their claims.
However, at this stage of the litigation and in accordance
with the motion filed, the Plaintiffs need only demonstrate
that their allegations in the Second Amended Complaint state
plausible claims for relief. Therefore, the Court has
determined that it need not consider such factual arguments
or evidence for its analysis. Rather, construing the
Plaintiffs' pleading and brief liberally, the Court
recognizes the following arguments from the Plaintiffs in
response to the motion: they contend that their parental
rights were violated when their children were interviewed
without notice or consent; they "should be allowed"
to represent their children when no attorney has expressed
interest in taking the case; the DHS Defendants acted
unreasonably by conducting interviews without parental
consent or a current court order, and they failed to fulfill
their duties to protect the children's Fourth Amendment
rights when Defendant Gossett "seized" the children
to bring them to the interviews; and the DHS Defendants
infringed on their Fourteenth Amendment rights to due process
in that the Plaintiffs' "fundamental liberty
interest in the care, custody, and management of their
children was carelessly and recklessly violated" by the
"many inconsistencies in the investigation starting from
the credibility of the referral to the collection of
invalidated information that is reported as being true."
Defendants reply that Plaintiffs fail to cite any authority
contradicting the argument that they cannot bring claims
based on their children's constitutional rights;
Plaintiffs have no standing to bring Fourth Amendment claims
against them; Tenth Circuit precedent holds that case workers
interviewing children at school does not constitute a
seizure; the Plaintiffs' cited authority was vacated by
the Supreme Court, rejected by the Sixth Circuit, and never
adopted by the Tenth Circuit; parents may not represent their
minor children in federal litigation; Plaintiffs never
identify how "brief interviews in the course of a school
day so deprived them of the right to the care or management
of their children as to rise to the level of a [Fourteenth
Amendment] violation"; and Plaintiffs fail to state
Fourth Amendment violations because they "do not assert
that they were personally subjected to any unreasonable
search or seizure as a result of the investigation or its
outcome." Reply 5.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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.'"
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means
that the plaintiff pled facts which allow "the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. Twombly
requires a two-prong analysis. First, a court must identify
"the allegations in the complaint that are not entitled
to the assumption of truth, " that is, those allegations
which are legal conclusions, bare assertions, or merely
conclusory. Id. at 679-80. Second, the Court must
consider the factual allegations "to determine if they
plausibly suggest an entitlement to relief."
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 680.
refers "to the scope of the allegations in a complaint:
if they are so general that they encompass a wide swath of
conduct, much of it innocent, then the plaintiffs 'have
not nudged their claims across the line from conceivable to
plausible.'" Khalikv. United Air Lines, 671
F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v.
Okla.,519 F.3d 1242, 1247 (10th Cir. 2008)). "The
nature and specificity of the allegations required to state a
plausible claim will vary based on context." Kan.
Penn Gaming, LLC v. Collins,656 F.3d 1210, 1215 (10th
Cir. 2011). Thus, while "the 12(b)(6) standard does not
require that [a] [p]laintiff establish a prima facie case in