Dyer et al v. Lajeunesse et al
ORDER granting 30 City Defendants' Motion to Dismiss granting and 31 County Defendants' Motion to Dismiss. All individual Defendants (Kathleen Carver, Sean Giddings, Susan Kauhl, Denise Lajeunesse, Ben Rayls, Antoinette Sachelben, and Michelle W alker) are DISMISSED WITH PREJUDICE to the extent sued in their official capacities. Plaintiffs 25 Second Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiffs are GRANTED LEAVE to file a Third Amended Complaint on or before February 17, 2017, and shall comply with D.C.COLO.LCivR 15.1(a) when doing so. ORDERED by Judge William J. Martinez on 01/20/2017. (cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-02404-WJM-CBS
S.D., a minor, through her Parents and Next Friends Douglas J. Dyer and Leah S. Dyer,
LEAH S. DYER,
DOUGLAS J. DYER,
DYLAN J. DYER,
DENISE LAJEUNESSE, in her individual capacity and as an employee of the Larimer
County Department of Human Services (“LCDHS”),
ANTOINETTE SACHELBEN, in her individual capacity and as an employee of the
MICHELLE WALKER, in her individual capacity and as an employee of the LCDHS,
SUSAN KAUHL, in her individual capacity and as an employee of the LCDHS,
COUNTY OF LARIMER, COLORADO,
BEN RAYLS, in his individual capacity and as an employee of the Fort Collins Police
KATHLEEN CARVER, in her individual capacity and as an employee of the FCPD,
SEAN GIDDINGS, in his individual capacity and as an employee of the FCPD, and
THE CITY OF FORT COLLINS, COLORADO, a municipal corporation,
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITHOUT PREJUDICE
This civil rights action is brought by Plaintiff S.D., through her parents Douglas
and Leah Dyer; as well as by Douglas and Leah Dyer themselves; and by Dylan Dyer,
S.D.’s brother (collectively, “Plaintiffs”). (ECF No. 25 ¶¶ 1–4.) Plaintiffs sue various
individuals and entities whom the Court will refer to as follows: Denise Lajeunesse,
Antoinette Sachelben, Michelle W alker, Susan Kauhl, and Larimer County will be
collectively referred to as the “County Defendants”; and Ben Rayls, Kathleen Carver,
Sean Giddings, and the City of Fort Collins will be collectively referred to as the “City
Before the Court are two motions to dismiss Plaintiffs’ Second Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6), one motion brought by the
City Defendants (ECF No. 30) and the other brought by the County Defendants (ECF
No. 31). For the reasons explained below, these motions are granted, but Plaintiffs are
granted leave to file a Third Amended Complaint.
I. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” The
12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded
factual allegations and view them in the light most favorable to the plaintiff.” Ridge at
Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such
a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy
which must be cautiously studied, not only to effectuate the spirit of the liberal rules of
pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567
F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
During the time period relevant to this lawsuit, Defendant Lajeunesse was a
caseworker for the Larimer County Department of Human Services (“LCDHS”). (ECF
No. 25 ¶ 6.) On October 24, 2013, Lajeunesse “approv ed supervised parenting time
and referral to a foster home for Plaintiff S.D.,” allegedly “intending to interfere with
[Plaintiffs’] familial relationship.” (Id. ¶ 13.) The following day, a Colorado judge
granted LCDHS’s ex parte motion for an order permitting LCDHS to require Leah and
Douglas Dyer’s cooperation in an investigation of potential abuse of S.D. (Id.
¶¶ 14–15.) See also Colo. Rev. Stat. § 19-3-308(3)(b). Specifically, the warrant
required Leah and Douglas Dyer to “produc[e] [S.D.] for an interview/inspection with
[LCDHS]” and to “allow inspection of the child’s place of residence by [LCDHS].” (ECF
No. 31-2 at 1.)1
On October 28, 2013, Defendants Carver and Giddings (both Fort Collins police
officers) went to Plaintiffs’ home and “made repeated requests” to enter. (ECF No. 25
¶¶ 18–19.) Carver and Giddings did not have “any paperwork in hand and certainly no
warrant of any kind,” but stated that they were there to assist LCDHS in a welfare
check. (Id. ¶¶ 20–21.) Plaintiff Leah Dyer asked that Carver and Giddings wait outside
The warrant itself is not attached to Plaintiffs’ complaint, but is instead supplied by the
County Defendants as an exhibit to their motion to dismiss. The Court may take judicial notice
of this warrant—an official court record—without converting the County Defendants’ motion to
one for summary judgment. Pace v. Swerdlow, 519 F.3d 1067, 1072–73 (10th Cir. 2008)
(district court properly took judicial notice of state court records). The Court can likewise
consider this warrant in a Rule 12(b)(6) posture if the warrant is (1) “mentioned in the
complaint,” (2) “central to [the] claims [at issue],” and (3) not challenged as inauthentic. Toone
v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013). All three elements are satisfied
until LCDHS caseworkers arrived. (Id. ¶ 23.) It is not clear how Leah Dyer knew that
LCDHS caseworkers were on their way. In any event, Carver and Giddings refused this
request, announced that they were entering the home, and then entered. (Id.
¶¶ 24–25.) They did not have a warrant to enter, 2 nor did exigent circumstances exist.
(Id. ¶ 25.)
At that time, seven-year-old S.D. was in Plaintiffs’ living room, watching a movie
and playing with toys, and unaware of the police officers’ entry. (Id. ¶¶ 26–27, 49.)
Carver and Giddings found S.D. there, “stood over [her],” and “announced their
presence, by saying ‘HI S.D.’” (Id. ¶ 28 (capitalization in original).) “S.D. was startled by
their sudden outburst and their arrival and immediately went into a seizure event.” (Id.
¶ 29.) Leah Dyer began attending to S.D., while Carver “proceeded to ask Mrs. Dyer
questions” of an unspecified nature. (Id. ¶¶ 31–32.)
Another Fort Collins police officer, Defendant Rayls, entered the house around
this time, “also without a warrant.” (Id. ¶ 33.) One of the police officers called for
paramedic assistance. (Id. ¶ 34.)
A short time later, the paramedics arrived, as did Lajeunesse and Defendant
Sachelben, another LCDHS caseworker. (Id. ¶ 36.) Lajeunesse and Sachelben
conferred with the paramedics in the Plaintiffs’ driveway, then Lajeunesse and
Sachelben “pulled Mrs. Dyer away from S.D.” (Id. ¶ 37.)3 The paramedics then began
Although a warrant existed permitting LCDHS to enter Plaintiffs’ home, the City
Defendants do not argue that the warrant gave any police officer authority to enter the home
independent of LCDHS.
Presumably Lajeunesse and Dyer entered the house before doing so, although the
complaint does not say so explicitly.
to examine S.D., and as they did so, Lajeunesse and Sachelben questioned Leah Dyer,
while Carver questioned Douglas Dyer. (Id. ¶¶ 40–42.)
In the midst of this questioning, the paramedics began removing S.D. from the
home. (Id. ¶ 43.) All of the then-present Defendants (Lajeunesse, Sachelben, Carver,
Giddings, and Rayls) in some unspecified manner “agreed to and authorized and
participated in S.D.’s removal from her family home,” “[w]ithout permission from S.D.’s
parents.” (Id. ¶ 48.) “Mrs. Dyer frantically asked ‘What is going on?’ and ‘Where are
they taking S.D.?’” (Id. ¶ 44.) As it turned out, the paramedics took S.D. to a local
hospital. (Id. ¶ 45.)
Leah and Douglas Dyer asked the then-present defendants to leave so that they
(the Dyers) “could accompany S.D. at the hospital.” (Id. ¶ 46.) But Giddings, Carver,
and Rayls “remained outside of Plaintiffs’ home continuing to investigate.” (Id. ¶ 47.)
Apparently Leah and Douglas Dyer eventually made their way to the hospital,
where hospital staff refused to let them see their daughter “for close to five hours” in
light of unspecified “information” given to hospital staff by Lajeunesse, Sachelben,
Walker, Carver, Giddings, and/or Rayls. (Id. ¶¶ 50, 70.) “S.D. was without any familial
support during these [five] hours.” (Id. ¶ 52.)
Summary of Claims
Plaintiffs nominally assert two claims for relief, both arising under 42 U.S.C.
§ 1983. The Court will describe them in reverse order given that the second claim is
simpler to understand than the first.
Plaintiffs’ second claim for relief (“Count Two”) asserts municipal liability against
Fort Collins and Larimer County, and claims that all of the alleged constitutional
violations apparently evident in the complaint
were caused by implementation of formal or informal
customs, formal or informal policies, or official acts of
Defendants Larimer County and the City of Fort Collins, or
adopted by those Defendants implicitly, or the failure to
properly implement such customs, policies or official acts
necessary to protect Plaintiffs’ constitutional right of familial
association . . . .
(ECF No. 25 ¶ 74.) Plaintiffs further assert that Fort Collins and Larimer County “have a
policy or policies, of allowing police officers and [LCDHS] workers to make decisions
without reference to applicable statutes and regulations that are designed to protect the
rights of individuals such as Plaintiffs.” (Id. ¶ 76.)
The first claim for relief (“Count One”) is more difficult to understand, given that it
is a mash-up of civil rights terminology suggesting numerous theories of recovery. (See
ECF No. 25 ¶¶ 57–72 (mentioning, among other things, “undu[e] burden [to a]
protected relationship,” “deliberately indifferent behavior,” “rights to familial association,”
“procedural and substantive due process,” and the “right to be free in their home, and
other rights protected by the fourth amendment”).) In their responses to the motions to
dismiss, Plaintiffs attempt to clarify, although little clarity is added:
The first claim . . . [alleges] that the defendants deprived
Plaintiffs of their constitutional rights, against unreasonable
searches and seizures and intending to interfere with
Plaintiffs’ rights to familial association by forcing a
separation of Plaintiffs Dyer from child S.D. That claim
includes an allegation that Defendants subjected Plaintiffs to
deprivation of their procedural and substantive due process
rights engaging in conduct inconsistent with statutes of the
United States and the State of Colorado and polices and
Regulations of the United States and the State of Colorado,
all of which conduct deprived each of the Plaintiffs their
constitutional rights to familial association. [Paragraph] 67
of the Complaint alleges that Defendants Larimer County
and the City of Fort Collins failed to adequately supervise
and train the individually named Defendants in proper
methods and procedures regarding the methods and
procedures necessary to protect children and their parents
and from depriving children and their parents from the right
to familial association, whether maternal, paternal or filial.
(ECF No. 43 at 3; see also ECF No. 45 at 3.)
Considering Plaintiffs’ Second Amended Complaint and their briefing, Plaintiffs’
Count One appears to be potentially asserting any or all of the following:
a Fourth Amendment claim by S.D. based on her removal from her home,
see J.B. v. Washington Cnty., 127 F.3d 919, 928 (10th Cir. 1997) (“the
County officials’ temporary removal of [the child] from her home is a
seizure which implicates [the child’s] own Fourth Amendment rights”);
a Fourth Amendment claim by all Plaintiffs based on the Fort Collins
police officers’ choice to enter Plaintiffs’ home before LCDHS employees
arrived, see Franz v. Lytle, 997 F.2d 784, 790–93 (10th Cir. 1993) (police
officers must have a warrant to enter a home, or satisfy a usual exception
to the warrant requirement, when investigating child abuse);
a Fourteenth Amendment procedural due process claim based on S.D.’s
forced separation from her parents without any sort of process, see id. at
924–25 (parents have a liberty interest in the custody, care, and
management of their children, that normally may not be interfered with
absent procedural safeguards);
a Fourteenth Amendment substantive due process claim based on
interference with the right to familial association, see id. at 927 (“[the] right
of familial association is included in the substantive due process right of
freedom of intimate association”);
a municipal liability claim against Fort Collins and Larimer County
(separate from Count Two) for failure to train the individual defendants to
avoid infringing on the right to familial association, see City of Canton v.
Harris, 489 U.S. 378, 387–88 (1989) (discussing municipal liability for
failure to train employees).
Save for the failure to train claim, it is not clear whether Plaintiffs are directing their
claims at all Defendants or only some of them.
The Court is troubled that it has been required to parse Plaintiffs’ filings—
particularly Count One—in this manner. This is an exercise normally reserved for
actions in which the plaintiff is proceeding pro se, not actions where the plaintiff is
represented by counsel, as here. With the exception of the municipal liability claims,
Defendants obviously struggled with the same problem as they attempted to determine
what theories of liability they might challenge. (See, e.g., ECF No. 31 at 7–12.)
Defendants’ arguments tend to assume that they have properly divined Plaintiffs’
intent, but the Court is not so certain, nor is the Court “charg ed with making the parties’
arguments for them.” Meyer v. Bd. of County Comm’rs, 482 F.3d 1232, 1242 (10th Cir.
2007). Particularly with respect to the portions of Count One directed at individual
Defendants, Plaintiffs’ complaint presents not so much a “plausibility” problem under
Twombly and Iqbal, but a failure under the since-abrogated, more lenient standard
requiring that the defendant receive “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).
Rather than assuming that Plaintiffs intend to bring one type of claim or another
against the various individual Defendants, the Court will dismiss without prejudice all
individual Defendants and grant Plaintiffs leave to file a Third Amended Complaint.4 If
Plaintiffs elect to file such a complaint, the Court expects to see far more specificity and
precision. In particular: (1) each analytically distinct theory of relief must be set forth as
a separate count (e.g., a Fourth Amendment claim and a substantive due process claim
should not be alleged in the same count); (2) each count should specify the Defendants
that Plaintiffs seek to hold liable under that theory of relief; and (3) each count must
summarize the allegations that justify relief against each accused Defendant.
Plaintiffs’ factual allegations also require greater detail. For example:
When Carver and Giddings arrived, how did Leah Dyer know that LCDHS
workers were also on their way?
What questions did Carver ask Leah Dyer while Leah was attending to
By the time of a second amended complaint, it is often the case that pleading
deficiencies such as those evident here may be deemed irreparable, and the complaint will be
dismissed with prejudice. See Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend
properly denied after “repeated failure to cure deficiencies by amendments previously allowed”).
However, Plaintiffs’ Second Amended Complaint is the first version of their complaint to be
challenged by Defendants. Accordingly, Plaintiffs have never before received an opportunity to
cure deficiencies identified by this Court.
What specific information did any Defendant give to the hospital to
convince the hospital to deny Leah and Douglas Dyer’s access to S.D.,
and which specific Defendant conveyed that information?
What circumstances support an allegation that a particular Defendant
intended to interfere with the Dyers’ familial relationship?5
More generally, Plaintiffs are encouraged to elucidate the “who, what, where,
when, why, and how” to the greatest extent of their current knowledge. Counsel for
Plaintiffs are warned that if the Court again finds itself in a similar situation, attempting
to parse Plaintiffs’ theories from inadequate pleading and/or briefing, it may grant relief
to Defendants and/or deny relief to Plaintiffs solely on that basis.
Fort Collins and Larimer County both argue that the municipal liability claims
asserted against them are entirely conclusory. (ECF No. 30 at 4–7; ECF No. 31 at
12–15.) The Court agrees. The factual portion of Plaintiffs’ complaint recounts the
alleged actions of the individual Defendants on October 28, 2013, with no mention of
acting according to municipal policy or with inadequate training. (See ECF No. 25
¶¶ 13–56.) Then, without any background or context, the complaint simply asserts that
A substantive due process claim based on interference with the familial relationship
requires “an allegation of intent to interfere.” Trujillo v. Bd. of Cnty. Comm’rs of Santa Fe Cnty.,
768 F.2d 1186, 1190 (10th Cir. 1985). Stated differently, “to rise to the level of a constitutional
claim, the defendant must direct his or her statements or conduct at the [familial] relationship
with knowledge that the statements or conduct will adversely affect that relationship.” Griffin v.
Strong, 983 F.2d 1544, 1548 (10th Cir. 1993) (emphasis in original). Although states of mind
such as intent may be alleged generally, see Fed. R. Civ. P. 9(b), such an allegation must not
be a mere recitation of the elements. There must be at least a plausible basis from which to
infer intent. See Biro v. Conde Nast, 807 F.3d 541, 544–45 (2d Cir. 2015) (matters that may be
alleged “generally” under Rule 9(b) must still be alleged plausibly), cert. denied, 136 S. Ct. 2015
Fort Collins and Larimer County are liable for failure to train and/or failure to implement
a preventative policy, thus causing the individual Defendants (or some of them) to act in
an allegedly unconstitutional manner. “Plaintiff[s] cannot state a plausible claim of
municipal liability by identifying a single incident of alleged violations and then, without
any further factual substantiation, contending that such actions were consistent with
and caused by a municipal policy, procedure, or failure to train.” Salazar v. Castillo,
2013 WL 69154, at *6 (D. Colo. Jan. 7, 2013).
In response, Plaintiffs attempt to rehabilitate this claim by pointing to municipal
policies that the individual Defendants allegedly failed to follow. (ECF No. 43 at 7,
9–10; ECF No. 45 at 8–10.) Apart from the fact that these specific policies were not
alleged in the complaint,6 an individual Defendant’s failure to follow municipal policy is
obviously not caused by a municipal policy. Accordingly, the portion of Count One
asserting municipal liability against Fort Collins and Larimer County, and all of Count
Two, will be dismissed without prejudice.
“Official Capacity” Claims
The caption of Plaintiffs’ complaint names all of the individual Defendants in their
“individual” or “personal” capacities, but also as “employee[s]” of their various
governmental employers. (ECF No. 25 at 1.) It thus appears that Plaintif fs may have
named the individual Defendants in their official capacities as well. The City
Defendants and County Defendants both attack the complaint to the extent it seeks to
hold the individual Defendants liable for damages in their official capacities. (ECF No.
See Sudduth v. Citimortgage, Inc., 79 F. Supp. 3d 1193, 1200 n.2 (D. Colo. 2015)
(plaintiff may not use a response to a motion to dismiss to amend the complaint).
30 at 7–8; ECF No. 31 at 12–13.)
“Official-capacity suits . . . generally represent only another way of pleading an
action against an entity of which an officer is an agent. As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.” Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985) (internal quotation marks and citation omitted).
Here, Plaintiffs appears to acknowledge this implicitly because Plaintiffs’ response
makes no argument for retaining any individual Defendant specifically as an official
capacity defendant as well. Rather, Plaintiffs seem to treat all individual Defendants as
surrogates for their employers, and Plaintiffs then go on to argue regarding the various
allegedly violated policies already mentioned above. (ECF No. 43 at 8–11; ECF No. 45
at 7–11.) The Court therefore deems Plaintiffs to have conceded that the true target of
any official capacity claim is Fort Collins and/or Larimer County, and that the official
capacity claims are the same as those already alleged against those entities.
Accordingly, all individual Defendants will be dismissed with prejudice to the extent
sued in their official capacities.
For the reasons set forth above, the Court ORDERS as follows:
The City Defendants’ Motion to Dismiss (ECF No. 30) is GRANTED;
The County Defendants’ Motion to Dismiss (ECF No. 31) is GRANTED;
All individual Defendants (Kathleen Carver, Sean Giddings, Susan Kauhl, Denise
Lajeunesse, Ben Rayls, Antoinette Sachelben, and Michelle W alker) are
DISMISSED WITH PREJUDICE to the extent sued in their official capacities;
Plaintiffs’ Second Amended Complaint (ECF No. 25) is DISMISSED WITHOUT
Plaintiffs are GRANTED LEAVE to file a Third Amended Complaint on or before
February 17, 2017, and shall comply with D.C.COLO.LCivR 15.1(a) when doing
If Plaintiffs do not timely file a Third Amended Complaint, this action may be
dismissed with prejudice without prior notice from the Court.
Dated this 20th day of January, 2017.
BY THE COURT:
William J. Martínez
United States District Judge
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