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Gillis v. Phillips

United States District Court, D. Colorado

September 26, 2017

JAMES GILLIS, and CHRISTIE GILLIS, individually and on behalf of their minor children, AG, AW, JG, and WD, Plaintiffs,



         In 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.


         Plaintiffs initiated this lawsuit on November 2, 2016, then filed the operative Second Amended Complaint on April 9, 2017 as a matter of course..[1]

I. Facts

         The 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).

         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 stepfather, 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, 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.

         At a 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.

         Gossett 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.

         In 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 process.

         Plaintiffs assert the Defendants' actions have caused the Plaintiffs and their children embarrassment and emotional distress; in addition, the children no longer trust government officials.

         II. Procedural History

         Based 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.

         The DHS 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 capacities.

         Plaintiffs' 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." Resp. 22.

         The DHS 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.


         I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         "To 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.

         Plausibility 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 her ...

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