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Gillis v. Britton

United States District Court, D. Colorado

November 14, 2017

JAMES GILLIS, and CHRISTIE GILLIS, individually and on behalf of their minor children, AG, AW, JG, and WD, Plaintiffs,
v.
KIM BRITTON, Defendant.

          ORDER ON MOTION TO DISMISS

          Michael E. Hegarty, United States Magistrate Judge.

         As set 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.

         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.[1]

         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 stepfather, Plaintiff James C. Gillis. Only one victim and only one allegation were noted.

         On 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.

         II. Procedural History

         Based 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.

         Britton 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.

         Plaintiffs 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.”[2]Id. at 4.

         Britton 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.

         LEGAL ...


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