Kaiser v. Raff et al

Filing 8

ORDER Directing Plaintiff To File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 06/26/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01479-BNB
TAMMARA D. KAISER,
Plaintiff,
v.
KIM RAFF,
ETHAN STORENG,
LEANE TOFSRUD, and
KARI KUNES
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Tammara D. Kaiser, initiated this action by filing pro se a Complaint
(ECF No. 1). On June 16, 2014, Ms. Kaiser filed an Amended Complaint (ECF No. 6)
asserting claims that her civil rights have been violated. She seeks damages and
injunctive relief.
The Court must construe the Amended Complaint liberally because Ms. Kaiser is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Ms. Kaiser will be
ordered to file a second amended complaint if she wishes to pursue her claims in this
action.
Ms. Kaiser’s claims concern the removal of her child from her home on February
28, 2013 by Mesa County Department of Human Services, Child Protection. She

alleges that Defendant Raff removed her son based on false allegations; Defendant
Storeng made discriminatory statements about her physical condition and violated client
confidentiality by reporting facts about her case to Ms. Kaiser’s sister; and Defendant
Tofsrud made false allegations about Ms. Kaiser’s compliance with her treatment plan.
She seeks monetary damages, the immediate return of her child, and closure of the
state court proceedings. (ECF No. 1 at 2-6).
It is unclear whether Ms. Kaiser is asserting constitutional claims against
Defendants in their official capacities. Official capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an agent.”
Monell v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978). If Ms. Kaiser’s
damages claims against the Defendants, each of whom is alleged to be an employee of
the Mesa County Department of Human Services, are construed as official capacity
claims, then Defendants are entitled to Eleventh Amendment immunity. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Pierce v. Delta County Dep't of
Social Servs., 119 F.Supp.2d 1139, 1148 (D. Colo. 2000) (Colorado county human
services departments or any of their employees are considered arms of the state for
purposes of the Eleventh Amendment). Thus, Ms. Kaiser cannot seek monetary relief
against Defendants in their official capacities.
The Eleventh Amendment does not bar Ms. Kaiser from suing Defendants in
their official capacities if she is alleging an ongoing violation of federal law and seeking
only prospective injunctive relief. See Rounds v. Clements, 495 F. App’x 938 (10th Cir.
2012). However, to the extent Ms. Kaiser seeks the immediate return of her child and
closure of the state court proceedings, this claim for relief is barred by the Younger
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doctrine, which requires the Court to abstain from exercising jurisdiction over claims
asking the Court to intervene in ongoing state proceedings. See Younger v. Harris, 401
U.S. 37, 44 (1971). Therefore, Ms, Kaiser cannot assert claims for injunctive relief
against Defendants in their officials capacities because the claims are barred by the
Younger abstention doctrine.
For these reasons, Ms. Kaiser will be directed to file a second amended
complaint. If Ms. Kaiser elects to sue any Defendant in his or her individual capacity,
she must make specific allegations regarding what that individual did to violate her
constitutional rights. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011)
(allegations of “personal participation in the specific constitutional violation complained
of [are] essential”). In addition, Ms. Kaiser must identify the specific constitutional
claims she is asserting, the specific factual allegations that support each claim, against
which Defendant or Defendants she is asserting each claim, and what each Defendant
did that allegedly violated her rights. See Nasious v. Two Unknown B.I.C.E. Agents,
492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a claim in federal court, “a
complaint must explain what each defendant did to him or her; when the defendant did
it; how the defendant’s action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated”). The general rule that pro se pleadings must
be construed liberally has limits and “the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the record.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Accordingly, it is
ORDERED that Ms. Kaiser file, within thirty (30) days from the date of this
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order, a second amended complaint on the court-approved form that complies with this
order. It is
FURTHER ORDERED that, if Ms. Kaiser fails within the time allowed to file a
second amended complaint that complies with this order, the action will be dismissed
without further notice.
DATED June 26, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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