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,
KIM BRITTON, Defendant.
ORDER ON MOTION TO DISMISS
Michael E. Hegarty, United States Magistrate Judge.
forth in the Plaintiffs' Second Amended Complaint, their
Fourth Amendment claims against Defendant Kim Britton
(“Britton”) are nearly identical to the claims
raised against Defendant Cassandra Vernie
(“Vernie”), who has been dismissed from this
action for the Court's lack of jurisdiction over the
Plaintiffs' Fourth Amendment claims and for their failure
to state other claims pursuant to Fed.R.Civ.P. 12(b)(6).
Compare Am. Compl. 8 with Am. Compl. 9.
Here, after having been identified and served with the
operative pleading, Britton has moved to dismiss the
Plaintiffs' Fourth Amendment claims against her. First,
as the Plaintiffs concede, parents proceeding pro se
may not bring claims on behalf of their minor children;
therefore, as stated in other orders, the Court must grant
the motion to dismiss all claims brought on behalf of AG, AW,
JG, and WD against Britton. Second, for the Plaintiffs'
failure to allege standing to bring their Fourth Amendment
claims and failure state Fourteenth Amendment claims against
Defendant Britton, 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 stepfather,
Plaintiff James C. Gillis. Only one victim and only one
allegation were noted.
April 21-22, 2016, Case Worker Melissa Gossett, without
parental consent or a current court order, interviewed four
of the Plaintiffs' children in schools or centers they
were attending. As pertinent here, on April 22, 2016,
Britton, a staff member at the Limon Child Development
Center, facilitated one of the interviews with the
Plaintiffs' child, WD, by escorting WD from the play area
at the center to a picnic table in a public setting where
Gossett proceeded to interview the child. There was no law
nor a Limon Child Development Center policy or procedure in
place that governed a visit from the DHS.
on these factual allegations, Plaintiffs claim Britton
violated their Fourth Amendment rights to be free from
illegal seizures. Am. Compl., ECF No. 39 at 9. Plaintiffs
request “the maximum monetary amount allowed by law . .
. in punitive damages, ” as well as an order requiring
that the Limon Child Development Center (“LCDC”)
“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
allegations taken as true do not demonstrate Britton violated
the Fourteenth Amendment, the Plaintiffs may not represent
their children in this litigation, and Plaintiffs fail to
allege Britton is a state actor as necessary to state a claim
under 42 U.S.C. § 1983.
respond stating they “do[ ] no[t] object to the motion
to dismiss this civil action but will enter a response for
the record if the court will allow.” Resp. 1.
Plaintiffs proceed to state no arguments rebutting that they
may not represent their children in this action and that they
have failed to allege Britton is a state actor. Rather, they
assert that, at the time of the interview with WD, no policy
was in place to guide LCDC employees to conduct interviews
with DHS, but since that time, a policy has been implemented
in accordance with Colo. Rev. Stat. § 19-3-308(3).
However, the Plaintiffs contend that, in contravention of
§ 19-3-308(3), WD was not “the child who
was the subject of a report of abuse or neglect” and,
thus, Plaintiffs believe the interview was not in line with
prevailing law. Plaintiffs continue to argue that the
information obtained from this interview “had nothing
to do with the original referral and will be used in future
cases, if they should arise.” Resp. 3. Plaintiffs
conclude that they “set out to gain policy to protect
the children and parents with both LCDC and the Limon Public
Schools and had no intentions of gaining any monetary
compensation.”Id. at 4.
replies that Plaintiffs' arguments do not implicate the
conduct alleged against her and the Plaintiffs do not rebut
the “representation” or “state actor”
arguments made in the motion.