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Hurst v. Madera

United States District Court, D. Colorado

February 2, 2018

HENRY A. HURST III, SUSAN I. HEATH, as Co-Personal Representatives of the Estate of NATALEE MARIE SKINNER-HURST, deceased, and JONATHAN ROBERTS HURST, individually, Plaintiffs,
v.
ROTCHANA S. MADERA and SUZANNE DOLAN, Defendants.

          ORDER

          Kathleen M Tafoya United States Magistrate Judge.

         This matter is before the court on “Defendant Dolan's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6).” (Doc. No. 66.) Following Plaintiffs' Amended Complaint, Defendant filed a “Supplement to Her Motion to Dismiss [ECF DOC #66]” (Doc. No. 95.) Plaintiffs filed a Response (Doc. No. 100), to which Defendant replied. (Doc. No. 101.)

         BACKGROUND INFORMATION

         Kelsy Newell-Skinner gave birth to Natalee Marie Skinner-Hurst on May 14, 2014. (Doc. No. 94 at 7-8 [“Am. Comp.”].) On that same date or the next day, an employee(s) of Swedish Medical Center (“SMC”) reported to Colorado Protective Services of the Denver County Department of Human Services (“DDHS”) that Natalee was born prematurely, that her mother had admitted to marijuana use during the pregnancy, and the mother had also tested positive for marijuana. (Id. at 8.) DDHS notes indicate Jo A. Wacker-Farrand, an SMC social worker, made the report indicating that in addition to the mother's marijuana use, Wacker-Farrand's primary concern was neglect, with other complicating factors of stress in the home explained as circumstances that create risk to child safety, and that the baby's urine did not test positive for controlled substances but a Meconium test had been requested. (Id. at 8-9.) Natalee was discharged with her mother on May 23, 2014, prior to receipt of the Meconium test. (Id. at 10.) The Meconium test results were received on May 27, 2014 and were positive for tetrahydrocannabinol (“THC”), a chemical commonly contained in marijuana. (Id.)

         DDHS assigns cases to its case workers on a rotating basis. (Id. at 82.) Thus, when a new case file is opened, it is randomly assigned to the case worker up next in rotation. (Id.) Following Wacker-Farrand's report, Natalee's case was randomly assigned to DDHS case worker, Defendant Rotchana Madera, on May 16, 2014. (Id. at 9.)

         Defendant Madera had begun working as a social case worker for DDHS in May 2013. (Id. at 48.) From May 2013 until October 2013, Defendant Madera's supervisor engaged her in weekly training/meetings regarding her assigned cases. (Id.) After October 2013, the training/meetings occurred bi-weekly. (Id.)

         Defendant Suzanne Dolan was promoted to Social Casework Supervisor in April 2014. (Id. at 10, 20-21.) At that time, she supervised seven social case workers, including Defendant Madera. (Id.) As her supervisor, Defendant Dolan was responsible for the oversight, evaluation, and standards of performance for Defendant Madera. (Id.) Following her promotion and consistent with DDHS policy, Defendant Dolan also continued to carry and engage in her full case load functions and work she had been performing for one year as the Lead Intake Social Caseworker on a different team at DDHS. (Id. at 47, 51-52.) In contrast with Defendant Madera's previous supervisor, Defendant Dolan held only approximately two training/meetings with Defendant Madera between May 2014 and July 2014. (Id. at 48-49.) Additionally, during those meetings, it was apparent Defendant Dolan was not very knowledgeable about Defendant Madera's case files. (Id.) Defendant Dolan would inform Defendant Madera that she had a caseload of her own and would not answer Defendant Madera's questions regarding her expectations. (Id. at 49.)

         At the time Natalee's case was assigned, Defendant Dolan was aware Defendant Madera had 25 cases, more than twice the case load of other case workers. (Id. at 25, 82.) Defendant Madera's case load should have included only 10-15 cases. (Id. at 25, 49.) Defendant Dolan was also aware Defendant Madera had been removed from the “on-call” caseworker rotation in April 2014 due to an excessive caseload. (Id. at 26, 49.) Defendant Dolan placed Defendant Madera back on the on-call caseworker rotation in May 2014. (Id.)

         Defendant Dolan knew that people could not find Defendant Madera during the day when she was supposed to be working on her cases and knew Defendant Madera was behind other case workers in her unit in closing cases. (Id. at 26-27.) At some point, Defendant Madera requested Defendant Dolan relieve her of some of her cases but Defendant Dolan refused, responding, “We're all busy. We have to suck it up.” (Id. at 28-29, 50.) Defendant Madera specifically asked Defendant Dolan to remove her from Natalee's case file but Defendant Dolan refused. (Id. at 71, 83.)

         As Defendant Dolan was aware, at or near the time period in which Defendant Madera was assigned to Natalee's case, Defendant Madera had been the case worker on a case involving infant death. (Id. at 32.) As Defendant Dolan should have been aware, Defendant Madera was exhibiting psychological and/or physical nervousness, stress, duress, sadness, inability to cope, anxiety, and/or a breakdown relative to her job duties. (Id.)

         DDHS administers a statewide, automated database system known as TRAILS that, inter alia, tracks children/youth alleged to have been abused and/or neglected, as well as the protective services delivered to them by each county in Colorado. (Id. at 8, 34.) The TRAILS report showed that there were 21 child welfare reports regarding Kelsy Newell-Skinner prior to Natalee's birth. (Id. at 8-9.) Additionally, a report was made on June 3, 2014, after Natalee was home with Kelsy Newell Skinner, to the Arapahoe County Department of Human Services that Kelsy Newell-Skinner had slammed her two-year-old's head into the bath tub. (Id. at 36.)

         Defendant Madera noted in her TRAILS report that she visited Natalee and her mother at SMC on two occasions prior to their discharge. (Id. at 11-12, 16-17.) However, in reality, Defendant Madera never visited Natalee or her mother at SMC. (Id.) The TRAILS report also indicates Defendant Madera received a voicemail from a SMC employee that Natalee's Meconium test results were negative for “all substances.” (Id. at 12, 16, 18.) However, SMC staff never left such a message and the employee Defendant Madera specified was out of town at the time Defendant Madera documented the call. (Id. at 12-13, 16.) Moreover, as previously noted, Natalee's Meconium test was positive for THC. (Id. at 10.) Defendant Madera also recorded in TRAILS that she had visited the home of Natalee and her mother, had observed and interviewed all children in the home, and interviewed each of Natalee's parents. (Id. at 13, 17-19.) However, Defendant Madera never visited Natalee's home, never met the other children in the home, and never interviewed Natalee's parents. (Id. at 13.)

         On July 8, 2014, Defendant Madera recommended to Defendant Dolan that they close Natalee's file. (Id. at 19.) In reviewing the file, Defendant Dolan noticed it did not contain any interview notes with Natalee's mother or father, as required. (Id. at 19-20.) She informed Defendant Madera that she could not close the case file and instructed her to conduct the required interviews and update the report. (Id. at 44-45.) By reviewing the file, Defendant Dolan would have been aware of the complete file history of Natalee's mother. (Id. at 38-39.) Plaintiffs contend Defendant Dolan should have at that point, if not sooner, known that Natalee was in a high risk household. (Id. at 37, 76-77.) They also contend she should have been spot-checking Defendant Madera's work by independently calling or visiting Natalee's home, calling and/or meeting with witnesses and other family members to elicit feedback about services being provided. (Id.)

         Additionally, Defendant Madera's required documentation assessing the risk factors in Natalee's home contained fraudulent errors. (Id. at 41.) The level of risk assessed on the documentation determines the appropriate level of response by the case worker. (Id. at 42.) Plaintiffs contend that had Defendant Madera completed the documentation correctly, the Newell-Skinner household would have been considered High Risk, rather than Moderate Risk, and would have resulted in assignment to a team specifically designed for High Risk files and, ultimately, Natalee's removal from the home. (Id. at 42-43, 74-75, 82, 90.)

         On July 27, 2014, Natalee was severely injured by her mother and died four days later on July 31, 2014. (Id. at 20.) Following Natalee's death and Defendant Madera's resignation from DDHS on July 31, 2014, Defendant Dolan accessed Natalee's TRAILS file and made her own false notations regarding previous work done in the file. (Id. at 36-37, 79-81.) A subsequent investigation conducted by the OCCPO concluded the actions and inactions of the DDHS were not in compliance with multiple policies and regulations and these failures had a potential impact on not only Natalee's safety and wellbeing but also the other children in the Newell-Skinner household. (Id. at 46-47.)

         By this lawsuit, Plaintiffs have asserted three claims under 42 U.S.C. § 1983 against Defendant Dolan alleging she violated Natalee's rights to substantive due process under the Fourteenth Amendment based on deliberately indifferent training and supervision of Defendant Madera. (Id. at 105-121.) They also assert a due process claim relying on the “danger-creation theory, ” which essentially provides limited circumstances wherein state officials can be liable for the acts of third parties if those officials created the danger that caused the harm. (Id. at 97-105.) Finally, Plaintiffs assert a state law claim alleging willful and wanton conduct on the part of Defendant Dolan resulting in wrongful death. (Id. at 121-27.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotations omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (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 pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers 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 679.

         Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         In evaluating a Rule 12(b)(6) motion to dismiss, courts may consider not only the complaint itself, but also attached exhibits and documents incorporated into the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted). “[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Id. (quotations omitted).

         ANALYSIS

         Defendant Dolan has requested dismissal of Plaintiffs' federal claims on the basis of qualified immunity. Qualified immunity generally protects government officials from lawsuits unless they are “plainly incompetent” or they “knowingly violate the law.” Once a defendant asserts a defense of qualified immunity, the burden is on the plaintiff to establish two propositions: (1) “that the defendant's actions violated a constitutional or statutory right, ” and (2) that the right was “clearly established” when the defendant acted. Smith v. Cochran, 339 F.3d 1205, 1211 (10th Cir. 2003) (quotations omitted). Failure to establish either one requires the court to grant judgment to the defendant. See Id. In the present case, the court can begin, and perhaps end, its inquiry by addressing either proposition. See Pearson v. Callahan, 555 U.S. 223, 236 (2009). As set forth below, the court finds Plaintiffs have failed to sufficiently allege a constitutional violation and that, even if Plaintiffs had sufficiently alleged the same, their theory of liability was not clearly established.

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