United States District Court, D. Colorado
ORDER GRANTING MOTION TO DISMISS
BROOKE JACKSON JUDGE
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.
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
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. 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.
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.
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. ¶¶
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.
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
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.
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. 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.”).
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.
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.
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.
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.
I find that claim preclusion bars plaintiffs’ claims, I
do not address the remainder of defendants’ ...