Estate of Goodwin v. Connell

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the County Defendants' Motion to Dismiss Second Amended Complaint and Jury Demand [Docket No. 70] filed by defendants Monica Connell, Jefferson County Human Services (“JHS”), and the Board of County Commissioners for Jefferson County, Colorado (“BCC”). The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

         I. BACKGROUND^[1]

         This case arises out of the drowning death of a ten-year-old boy, Angel Goodwin, on May 6, 2015. Docket No. 103 at 2, ¶ 1. Angel was born prematurely on January 12, 2005. Id. at 6, ¶¶ 25-26. From the date of his birth, Angel was “completely disabled physically and developmentally” and “was totally reliant on others for round the clock care.” Id. at 6, ¶¶ 26-27. In August 2005, Jefferson County placed Angel in the custody of his grandmother, Onesia Najera. Id. at 2, ¶ 2. Beginning in 2006, county-level human services agencies in Denver, Adams, and Jefferson Counties received reports that Ms. Najera was abusing Angel and his siblings, who were also in Ms. Najera's care. Id. at 7, ¶ 31. After Ms. Najera's return to Jefferson County in 2014, id., ¶ 35, Jefferson County Human Services was made aware of numerous complaints alleging that Ms. Najera was leaving the children at home alone, leaving Angel in the care of his young siblings and/or locked in a dark closet, failing to provide the children with adequate food, and engaging in drug use and prostitution. Id. at 9, ¶ 54. The complaints came from a variety of sources, including Ms. Najera's neighbor, Angel's school teacher, Ms. Najera's brother, and Ms. Najera herself, who informed Wheat Ridge police that there was violence in the home. See Id. at 10-12, 15-16, 28, ¶¶ 58, 65, 67-68, 70, 91, 159. Many of these complaints were classified under Colorado Department of Human Services regulations as High Risk Assessments (“HRAs”). Id. at 2, 8, 11, ¶¶ 5, 42, 69. HRAs must be completed with a finding within sixty days. Id. at 8, ¶ 48. Defendant Monica Connell, a caseworker with Jefferson County Human Services, became the lead investigator on these complaints in January 2015. Id. at 11, ¶ 69. Ms. Connell had access to all previous complaints against Ms. Najera through the statewide system for tracking reports of child abuse (the “Trails” system). Id. at 7, 12, ¶¶ 37-38, 71.

         As early as February 2015, Ms. Connell determined that a “Dependency and Neglect proceeding was required to protect Angel and the other children in Ms. Najera's care.” Id. at 3, ¶ 6. However, she engaged in “procedural manipulations to avoid carrying out that decision.” Id. Specifically, Ms. Connell would “close one investigation after another as ‘inconclusive, '” and move “[complaints] over into [other], not yet expired, investigation[s]” in order to extend statutory deadlines. Id. at 13-14, 51, ¶¶ 83, 293. Final decision-makers for Jefferson County expressly approved of these procedural tactics. Id. at 33, ¶ 188. Ms. Connell also made “multiple recommendations that a case not be opened” and that Angel “remain in the custody of Onesia Najera.” Id. at 52, ¶ 295. Throughout this process, Ms. Najera repeatedly failed to comply with mandatory drug testing and other requests made to her by Ms. Connell. See Id. at 19, 21, 24, ¶¶ 108, 116-17, 134.

         On May 6, 2015, Angel drowned when Ms. Najera left him unattended in a bath. Id. at 32, ¶¶ 179. Ms. Najera was high on drugs at the time. Id. at 32, ¶¶ 179, 184. Plaintiffs - Angel's estate (“Estate”) and Angel's father, Shawn Alvarado - filed this lawsuit on May 5, 2017. Docket No. 1. The operative complaint, filed on January 9, 2018, asserts claims under 42 U.S.C. § 1983 against Ms. Connell, the Board of County Commissioners for Jefferson County, and Jefferson County Human Services for the violation of Angel's substantive due process rights under the Fourteenth Amendment. See Docket No. 103 at 49-56. The complaint also asserts a claim under section 504 of the Rehabilitation Act against BCC and JHS, and a claim for wrongful death against Ms. Connell. See Id. at 56-58.^[2]

         Defendants Connell, BCC, and JHS (the “county defendants”) moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). Docket No. 70.^[3]Plaintiffs filed a response to the motion on January 10, 2018, Docket No. 104, to which defendants replied on January 24, 2018. Docket No. 107.^[4]

         II. LEGAL STANDARD

         Defendants move to dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When reviewing the factual basis on which subject matter jurisdiction rests, the district court does not presume the truthfulness of the complaint and “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted). Consideration of evidence outside the pleadings does not convert the motion to a Rule 56 motion. Id.

         Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of an action without prejudice based on insufficient service of process. Under Fed.R.Civ.P. 4(m), “[i]f a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time” unless the plaintiff shows good cause for the delay. A court applying these rules engages in a two-part inquiry. See Moore v. Teamsters Local 41, 2015 WL 859074, at *2 (D. Kan. Feb. 27, 2015). First, the court determines whether the plaintiff has shown good cause for his failure to timely serve the defendant. Id. If good cause is shown, then an extension of the time for service of process is mandatory. See Fed. R. Civ. P. 4(m); see also Thunder Mountain Custom Cycles, Inc. v. Thiessen, No. 06-cv-02527-EWN-BNB, 2008 WL 618898, at *6 (D. Colo. Mar. 5, 2008). If good cause is not shown, then the court proceeds to the second step of the analysis and determines whether a permissive extension is warranted. See Moore, 2015 WL 859074, at *2.

         In contrast to motions to dismiss brought under Fed.R.Civ.P. 12(b)(1) and 12(b)(5), a motion under Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the complaint. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent, ” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted).

         III. ANALYSIS

         A. Eleventh Amendment Immunity

         Defendants argue that plaintiffs' § 1983 claims against BCC and JHS are barred by Eleventh Amendment immunity. Docket No. 70 at 12.^[5]

         “Only a state or ‘arms' of a state may assert the Eleventh Amendment as a defense to suit in federal court.” Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1232 (10th Cir. 1999). In determining whether a political subdivision constitutes an “arm of the state, ” courts consider five factors: (1) the characterization of the governmental unit under state law; (2) the guidance and control exercised by the state over the governmental unit; (3) the funding that the governmental unit receives from the state; (4) the governmental unit's ability to issue bonds and levy taxes on its own behalf; and (5) the state's legal liability to pay a judgment against the governmental unit. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017).^[6] The final factor, which the Tenth Circuit has characterized as the most significant, see Duke, 127 F.3d at 974 (noting that the “most salient factor” is the “vulnerability of the State's purse”), focuses on a state's “legal liability for a judgment, rather than [on the] practical, or indirect, impact a judgment would have on a state's treasury.” Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). Applying the factors identified above (the “Mount Healthy factors”), ^[7] defendants argue that both JHS and BCC constitute “arms of the state” for

         Eleventh Amendment immunity purposes.

         1. JHS

         Courts in this District have consistently applied the Mount Healthy factors to hold that county departments of human services constitute “arms of the state” for purposes of Eleventh Amendment immunity. See Schwartz v. Jefferson Cty. Dep't of Human Servs., No. 09-cv-00915-WJM-KMT, 2011 WL 1843309, at *2 (D. Colo. May 16, 2011) (collecting cases); see also T.D. v. Patton, 149 F.Supp.3d 1297, 1308-09 (D. Colo. 2016) (holding that the Denver Department of Human Services constitutes an “arm of the state” for purposes of Eleventh Amendment immunity); Starkey v. Boulder Cty. Soc. Servs., No. 06-cv-00659-LTB-PAC, 2006 WL 8073690, at *4-5 (D. Colo. Nov. 21, 2006) (holding that Boulder County Social Services constitutes an “arm of the state”); Pierce v. Delta Cty. Dep't of Soc. Servs., 119 F.Supp.2d 1139, 1148 (D. Colo. 2000) (finding, based on reasoning in Wigger v. McKee, 809 P.2d 999 (Colo.App. 1990), that Delta Social Services was an “arm of the state” for Eleventh Amendment immunity purposes). In addition, courts have noted the “long line of state precedent” reaching the same conclusion. See Schwartz, 2011 WL 1843309, at *2 (citing cases demonstrating “that county departments of human services are mere agencies and divisions of the State Department of Human Services”); see also Wigger, 809 P.2d at 1004-05 (holding that the Arapahoe County Department of Social Services is an “arm of the state” for purposes of the Eleventh Amendment).

         In Schwartz, the district court found that the factors supported a finding that the Jefferson County and Denver County Departments of Human Services constituted “arms of the state” for purposes of Eleventh Amendment immunity. See 2011 WL 1843309, at *3-5. With respect to the first factor, the court found that Colorado law characterizes county departments of human services as agents of the state. See Id. at *3 (citing Colo. Rev. Stat. § 26-1-118(1) (2010) and 11 Colo. Code Regs. § 2508-1, 5.231); see also Colo. Rev. Stat. § 26-1-118(1) (“The county departments or other state designated agencies . . . shall serve as agents of the state department.”). The court found that the second factor also supported such a finding because the county departments are “charged with the administration of public assistance and welfare . . . in accordance with the rules and regulations of the state department.” Schwartz, 2011 WL 1843309, at *3 (citing Colo. Rev. Stat. § 26-1-118(1)). In reaching this conclusion, the court rejected the plaintiffs' argument that the county human services agencies were not agents of the state because they exercise significant autonomy in personnel and budgetary decisions. See Id. The court acknowledged the existence of some degree of local control, but found that “a careful review” of the statutory provisions demonstrated that the ultimate decision-making and regulatory authority rested with the state. Id. at *4; see also Sturdevant, 218 F.3d at 1168 (finding that, “although the Board enjoy[ed] a significant degree of autonomy, ” the “state control” factor weighed in favor of immunity because the Board's decisions were subject to state approval and “[t]he Board [was] itself the state's instrumentality of control over local and regional educational institutions”). As to the third Mount Healthy factor, the court gave substantial weight to the fact that “Colorado law requires the state to provide eighty percent of the county services departments' total budgets.” Schwartz, 2011 WL 1843309, at *5; see also Freeman v. White, No. 05-cv-00164-EWN-CBS, 2006 WL 2793139, at *10 (D. Colo. Sept. 28, 2006) (noting that “the state fisc is the predominant source of funding for” the Denver Department of Human Services and that “eighty percent of the overall cost of the programs administered by the county departments comes from the state department of human services”). Finally, the court concluded that there was no dispute that county human services agencies lack the power to issue bonds and levy taxes and thus the fourth Mount Healthy factor weighed in favor of a finding that the defendants were arms of the state for immunity purposes. Id.

         The Court finds the analysis in Schwartz persuasive and adopts it here. While plaintiffs make several arguments for why JHS does not constitute an “arm of the state, ” none of those arguments address the court's analysis in Schwartz or mandate a different outcome. Plaintiffs first contend that JHS is not an arm of the state because it is subject to county-level political control, serves a finite geographic area, and has “substantial operational and financial autonomy” with respect to personnel decisions, the administration of child-protective programs and policies, and the management of its own budget. See Docket No. 104 at 14. These arguments pertain to the second Mount Healthy factor - the degree of state control. In Schwartz, however, the court rejected similar arguments, finding that the level of autonomy enjoyed by county human services departments does not outweigh the fact that the state retains ultimate decision-making authority over most issues. See 2011 WL 1843309, at *3-4; see also Colo. Rev. Stat. § 26-1-107(10) (providing that the “state board shall fix minimum standards and qualifications for county department personnel . . . and establish salary schedules based upon prevailing wages for comparable work”); Colo. Rev. Stat. § 26-1-123(3)(a) (providing that the “county board shall administer the [county social services fund] pursuant to rules adopted by the state department”); Colo. Rev. Stat. § 26-1-124(2) (providing that, before a county social services “budget is adopted by the board of county commissioners, it shall be submitted by the county board to the state department for review”). The Court agrees with the reasoning in Schwartz and finds that the state control factor weighs in favor of Eleventh Amendment immunity.

         Plaintiffs also argue that JHS “is defended at the County Attorney level and would likely pay any damage awards out of the county-created and county-administered fund.” Docket No. 104 at 14. While Schwartz did not explicitly address the issue of the state's legal liability, multiple courts considering whether county human services departments in Colorado are entitled to Eleventh Amendment immunity have found this factor to be inconclusive. See, e.g., T.D., 149 F.Supp.3d at 1300 (noting that “the statutory law governing human services in Colorado provides no guidance on” whether the state would be legally liable for a judgment entered against a county human services department); Freeman, 2006 WL 2793139, at *10 (noting that “the state law issue as to the ultimate liability for any judgment against [Denver Department of Human Services] remains uncertain”); Wigger, 809 P.2d at 1004 (“Because no provision has been made for the county departments to have their own funds to satisfy judgments against them, it appears that they would look to the statutory treasury for such.”). Plaintiffs here allege that the “State of Colorado does not, and is not required to indemnify . . . Jeffco Human Services for . . . monetary judgments.” Docket No. 103 at 48, ¶ 263. However, indemnification is separate from the issue of direct liability, with only the latter weighing in favor of a finding that a governmental unit is entitled to immunity. See Pierce, 119 F.Supp.2d at 1147 (stating that the “key question” addressed by the third and fourth Mount Healthy factors is “whether funds to satisfy a money judgment come directly from the state or indirectly through commingled state and local funds or state indemnification provisions”). The parties do not otherwise cite any authority conclusively resolving the state's legal liability for money judgments entered against JHS. Nevertheless, the Court need not decide the issue. Because the remaining Mount Healthy factors weigh in favor of a finding that county human services departments are arms of the state, the Court agrees that JHS is entitled to Eleventh Amendment immunity with respect to plaintiffs' § 1983 claims. See Sturdevant, 218 F.3d at 1166 (declining to resolve issue of state's legal liability where remaining factors weighed in favor of finding that the defendant was entitled to immunity).^[8]

         2. BCC

         Defendants argue that the same rationale for finding that JHS is an arm of the state applies to BCC. Docket No. 70 at 13. Specifically, defendants contend that the county social services budget must be reviewed by the state prior to approval by BCC. Id. But this argument pertains to JHS's arm-of-the-state status, not BCC's. BCC is the governing body of Jefferson County and the proper defendant in any lawsuit against the county. See Colo. Rev. Stat. § 30-11-105 (“In all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be, ‘The board of county commissioners of the county of . . . .'”). It is well established that counties are not entitled to Eleventh Amendment immunity. See Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401 (1979) (“[T]he Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a ‘slice of state power.'”); Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 280 (“The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, but does not extend to counties and similar municipal corporations.” (internal citations omitted)). Defendants do not cite any authority to the contrary. Accordingly, the Court finds that BCC is not entitled to dismissal of plaintiffs' § 1983 claims on the basis of Eleventh Amendment immunity.^[9]

         B. Statute of Limitations

         Defendants move to dismiss all claims on the ground that they are barred by the applicable statute of limitations. Docket No. 70 at 1-2. The Tenth Circuit has “made clear that the statute of limitations for § 1983 actions brought in Colorado is two years from the time the cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). A two-year limitations period also applies to Rehabilitation Act and wrongful death claims. See Ulibarri v. City & Cty. of Denver, 742 F.Supp.2d 1192, 1213 (D. Colo. 2010) (Rehabilitation Act claims); Colo. Rev. Stat. § 13-80-102(1)(d) (wrongful death claims).

         Defendants do not dispute that plaintiffs' original complaint was filed within the two-year statute of limitations. See Docket No. 70 at 2 (stating that all causes of action were time-barred as of May 6, 2017); Docket No. 1 (complaint filed on May 5, 2017). However, they contend that the claims asserted in plaintiffs' second amended complaint do not relate back to the filing of the original complaint and were therefore time-barred as of May 6, 2017. See Docket No. 70 at 2-3.

         Federal Rule of Civil Procedure 15(c)(1) governs the relation back of amended pleadings. Under that rule,

[a]n amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

Fed. R. Civ. P. 15(c)(1). With regard to subsection (B), courts in this circuit have summarized the relation back rule as follows:

         As a general rule, amendments will relate back if they amplify the facts previously alleged, correct a technical defect in the prior complaint, assert a new legal theory of relief, or add another claim arising out of the same facts. For relation back to apply, there is no additional requirement that the claim be based on an identical theory of recovery. On the other hand, amendments generally will not relate back if they interject entirely different facts, conduct, transactions or occurrences. It is a ...