United States District Court, D. Colorado
THE ESTATE OF ANGEL GOODWIN, by and through Shawn Alvarado, personal representative, and SHAWN ALVARADO, individually, Plaintiffs,
MONICA CONNELL, BOARD OF COUNTY COMMISSIONERS FOR JEFFERSON COUNTY COLORADO, and JEFFERSON COUNTY HUMAN SERVICES, Defendants.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.Plaintiffs filed a
response to the motion on January 10, 2018, Docket No. 104,
to which defendants replied on January 24, 2018. Docket No.
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.
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.
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).
Eleventh Amendment Immunity
argue that plaintiffs' § 1983 claims against BCC and
JHS are barred by Eleventh Amendment immunity. Docket No. 70
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). 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”),
defendants argue that both JHS and BCC constitute “arms
of the state” for
Amendment immunity purposes.
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).
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.
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
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
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
Statute of Limitations
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).
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.
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
Fed. R. Civ. P. 15(c)(1). With regard to subsection (B),
courts in this circuit have summarized the relation back rule
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 ...