E.M.M. v. Douglas County

          ORDER GRANTING MOTION TO DISMISS

          R. BROOKE JACKSON JUDGE

         Defendants Douglas County, Colorado, Lesa Adame, and Carl Garza move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) for failure to state a claim on which relief could be granted. The motion is granted.

         I. FACTS

         Plaintiffs’ claims are the latest in a series of litigations to arise out of a welfare check on a home in Colorado. Mr. and Mrs. Doe have ten children, including the three plaintiffs in this case. At the time of the events alleged in this case, the family lived in Kansas but were staying with friends in Colorado.

         In spring of 2008, allegations first surfaced that a relative was abusing some of the children. Mr. and Mrs. Doe reported the first allegations to the Kansas Department of Social and Rehabilitation Services (“SRS/DCF”) in June 2008.^[1] Thereafter Mr. and Mrs. Doe began a fast-souring relationship with SRS/DCF and in particular with the social worker assigned to them, Monica Gildner, and Gildner’s supervisors, Angela Webb and Tina Abney.

         On April 20, 2009 the Kansas District Attorney’s Office filed ten Child-in-Need-of-Care petitions in Kansas state court, one for each child. These petitions requested termination of Mr. and Mrs. Doe’s parental rights, appointment of a permanent custodian for the children, temporary removal of the children from Mr. and Mrs. Doe’s custody, and an order of child support. A non-emergency hearing was set for May 11, 2009.

         Sometime between April 20, 2009 and April 30, 2009, Mrs. Doe took the ten children to Colorado. They stayed at the home of family friends Dr. and Mrs. G in Douglas County. Presumably upon learning of this, the Kansas state court served ten ex parte orders of protective custody on Mr. Doe, who had remained in Kansas. Plaintiffs acknowledge that the ex parte orders contain “alarm[ing]” allegations that Mr. and Mrs. Doe had abused their children. ECF No. 12 ¶ 116. However, plaintiffs maintain that these allegations are false and based on “fraudulent[] misrepresent[ations]” that were retaliatory in nature. Id. ¶¶ 115, 118b.

         On May 6, 2009 two Colorado state authorities-defendant Lesa Adame, a Douglas County social worker, and defendant Carl Garza, a Douglas County Sheriff’s deputy-visited the Doe family at Dr. and Mrs. G’s Colorado home. It is this visit that forms the foundation of the complaint. Plaintiffs allege that at the home, Adame and Garza misrepresented the ex parte orders by incorrectly claiming that they provided for Kansas to take custody of the children, and that they used threats and intimidation to enter the house. Once inside, Adame communicated that Kansas was taking custody of the children and restricting Mr. and Mrs. Doe’s communication with the children. Adame and Garza informed Dr. and Mrs. G that Kansas state authorities would be arriving at an unspecified time to take physical custody of the children. Instead of waiting for the authorities to arrive in Colorado, Dr. and Mrs. G transported the children back to Kansas and delivered them to SRS/DCF custody themselves. Dr. G requested temporary custody of the children, or alternatively for the children’s paternal grandparents to take custody. SRS/DCF denied this request, separated the children, and placed them with foster families.

         Procedural History

         In 2015, upon reaching the age of majority, two of plaintiffs’ older siblings-N.E.L. and M.M.A.-filed suit related to the 2009 conduct (“older siblings’ complaint”). See N.E.L. v. Douglas Cty., Colo., No. 15-CV-02847-REB-CBS, 2017 WL 1242992, at *1, 2 n.2 (D. Colo. Jan. 27, 2017), aff'd, 740 F.App'x 920 (10th Cir. 2018), reh'g denied (July 17, 2018), cert. denied sub nom. N.E.L. v. Douglas Cty., Colo., 139 S.Ct. 1320 (2019). Plaintiffs named as defendants Douglas County, Adame, Garza, Gildner, Webb, and Abney. Id.

         The older siblings’ complaint asserted six § 1983 claims under the Fourth Amendment and Fourteenth Amendment: (1) that all defendants violated the Fourth Amendment by “approv[ing] and/or conduct[ing] an unlawful seizure . . . by which Plaintiffs were deprived of their liberty without due process when they were prohibited . . . from any movement or travel with their mother, father and grandparents;” (2) that Gildner, Webb, and Abney violated the Fourth Amendment by holding plaintiffs “against their will for five days prior to a hearing on the CINC petitions;” (3) that Adame, Garza, Gildner, Webb, and Abney violated plaintiffs’ Fourteenth Amendment right to maintain a familial relationship; (4) that Adame, Garza, Gildner, Webb, and Abney conspired to deprive plaintiffs of their constitutional rights; (5) that plaintiffs were entitled to exemplary damages because “[t]he actions of Gildner, Abney, Webb, Adame and Garza were attended by retaliation, malice, ill will, intent and/or recklessness, [and] callous disregard of [p]laintiffs’ rights, or indifference to [p]laintiffs’ rights;” and (6) that Douglas County violated the Fourth Amendment “by adopting an unlawful policy that authorized county sheriff’s personnel ‘to seize [p]laintiffs based on an out-of-state ex parte order in violation of the United States Constitution and Colorado law, ’ or through deliberate indifference by failing to ‘adopt a policy requiring . . . or in failing to train personnel . . . to comply with the United States Constitution and Colorado law.’” Id. (quoting First Amended Complaint at 44, N.E.L., 2017 WL 1242992 (No. 15-CV-02847-REB-CBS)).

         A magistrate judge recommended dismissal with prejudice of all of the claims against Douglas County, Adame, and Garza. See N.E.L., 2017 WL 1242992, at *18. Following the older siblings’ objections to that recommendation, a Colorado district court adopted the recommendation in full.^[2] See id. The court dismissed the Fourth Amendment and Fourteenth Amendment claims against Adame and Garza based on qualified immunity. See id. at *10 (finding that plaintiffs had failed to allege a Fourth Amendment violation and had failed to show that defendants violated clearly established law); id. at *12 (finding that plaintiffs had failed to allege a Fourteenth Amendment violation). Because the court dismissed the substantive claims against Adame and Garza, it also dismissed the civil-conspiracy claim. Id. at *13 n.14. Finally, the court found that lack of any constitutional violation by Adame and Garza defeated the claim against Douglas County. See id. at *14 (“It is axiomatic that a local government body cannot be liable for damages if the plaintiff suffered no constitutional injury at the hands of a government employee.”).

         The Tenth Circuit affirmed in full and denied plaintiffs’ subsequent petition for panel rehearing. See N.E.L. v. Douglas Cty., Colo., 740 F.App'x 920, 934 (10th Cir. 2018), reh'g denied (July 17, 2018), cert. denied sub nom. N.E.L. v. Douglas Cty., Colo., 139 S.Ct. 1320 (2019). N.E.L. and M.M.A. filed a petition for a writ of certiorari to the United States Supreme Court, which was also denied. See N.E.L., 139 S.Ct. at 1320.

         In the instant case, three different Doe siblings-E.M.M, N.M.M, and G.J.M-have filed a complaint against Douglas County, Adame, and Garza (“younger siblings’ complaint”). ECF No. 12 at 1; id. ¶¶ 196–223. This younger siblings’ complaint is largely identical to the older siblings’ complaint. The plaintiffs assert seven § 1983 claims under the Fourth Amendment, the Fourteenth Amendment, and the right to travel. Id. ¶¶ 196–223. Four of these claims are identical to claims asserted in the older siblings’ complaint, except to the extent that plaintiffs have removed Gildner, Webb, and Abney as defendants. These four identical claims include: (1) that Adame and Garza violated the Fourth Amendment by “approv[ing] and/or conduct[ing] an unlawful seizure . . . by which Plaintiffs were deprived of their liberty without due process when they were prohibited . . . from any movement or travel with their mother, father and grandparents, ” id. ¶¶ 196–98; (2) that Adame and Garza violated plaintiffs’ Fourteenth Amendment right to maintain a familial relationship, id. ¶¶ 202–08; (3) that Adame and Garza conspired to deprive plaintiffs of their constitutional rights, id. ¶¶ 209–12; (4) that plaintiffs were entitled to exemplary damages because “[t]he actions of Adame and Garza were attended by intent, recklessness, callous disregard or indifference to [p]laintiffs’ rights, ” id. ¶¶ 217–18; and (5) that Douglas County violated the Fourth Amendment by “adopt[ing] as its policy or practice . . . warrantless seizure, ” or alternatively by “act[ing] with deliberate indifference” in failing to train personnel, id. ¶¶ 219–23. Plaintiffs have also added two new claims, including: (1) that all defendants violated the Fourteenth Amendment rights by “fail[ing] to afford [p]laintiffs notice and hearing in Colorado;” id. ¶¶ 199–201, and (2) that all defendants violated plaintiffs’ right to travel, id. ¶ 213–16.

         Defendants Douglas County, Adame, and Garza collectively move to dismiss. ECF No. 13 at 1. They argue that plaintiffs’ claims against all defendants are barred by claim preclusion, issue preclusion, and the applicable statute of limitations; that plaintiffs’ claims against Adame and Garza are barred by the doctrine of qualified immunity; and that plaintiffs’ claims against Douglas County have failed to plead a claim for municipal liability. Id. at 3, 6, 8, 13.

         “Plaintiffs naturally take strong exception to all of these arguments.” N.E.L., 2017 WL 1242992, at *2. Relevant here, plaintiffs contest the application of claim preclusion because they are not in privity with their siblings from the prior suit, ECF No. 29 at 3, and because the complaints do not share an identical cause of action, id. at 4.

         Because I find that claim preclusion bars plaintiffs’ claims, I do not address the remainder of defendants’ ...