N.E.L. et al v. Douglas County, Colorado et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 65 MOTION to Dismiss filed by Tina Abney, Angela Webb, Monica Gildner, 57 MOTION to Dismiss Amended Complaint filed by Carl Garza, Lesa Adame, Douglas County, Colorado. By Magistrate Judge Craig B. Shaffer on 1/27/2017. (cbslc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02847-REB-CBS
DOUGLAS COUNTY, COLORADO;
MONICA GILDNER, in her individual capacity;
ANGELA WEBB, in her individual capacity;
TINA ABNEY, in her individual capacity;
LESA ADAME, in her individual capacity; and
CARL GARZA, in his individual capacity.
RECOMMENDATION ON PENDING MOTIONS TO DISMISS
Magistrate Judge Craig B. Shaffer
This matter comes before the court on the Motion to Dismiss Amended Complaint (doc.
# 57) filed by Defendants Lesa Adame, Carl Garza, and Douglas County (hereinafter referred to
collectively as the “Douglas County Defendants”), and the Motion to Dismiss First Amended
Complaint with Memorandum in Support or, in the alternative, Motion for Summary Judgment
(doc. # 65) filed by Defendants Monica Gildner, Angela Webb, and Tina Abney (hereinafter
referred to collectively as the “Kansas Defendants”). These motions have been fully briefed by
On March 1, 2016, this matter was referred to the Magistrate Judge to, inter alia, “hear
and make recommendations on dispositive matters that have been referred.” By separate
memoranda, both of the pending motions have been referred to this court for recommendation. I
have carefully reviewed the motions, all related briefing and attached exhibits, the entire court
file, and the applicable case law.
This action was commenced with the filing of the original Complaint on December 1,
2015. The First Amended Complaint (doc. #55), filed on April 29, 2016, asserts six claims for
relief. The First Claim asserts a Fourth Amendment violation and contends that all Defendants
“approved and/or conducted 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.” The Second Claim is brought against Defendants
Gildner, Webb and Abney and asserts that Plaintiffs’ Fourth Amendment rights were violated
when they were “held against their will for five days prior to a hearing on the CINC petitions.”
The Third Claim is brought against Defendants Gildner, Webb, Abney, Adame, and Garza and
asserts a violation of Plaintiffs’ Fourteenth Amendment right to maintain a familial relationship
with their parents, siblings, and grandparents. The Fourth Claim alleges that Defendants
Gildner, Abney, Webb, Adame and Garza conspired to deprive Plaintiffs of their constitutional
rights. The Fifth Claim contends that Plaintiffs are 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 Plaintiffs’ rights, or indifference to
Plaintiffs’ rights.” Finally, the Sixth Claim alleges that Defendant Douglas County violated
Plaintiffs’ Fourth Amendment rights by adopting an unlawful policy that authorized county
sheriff’s personnel “to seize Plaintiffs 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.”
As the parties are well-familiar with the underlying circumstances of this case, I will only
briefly summarize those facts and circumstances that are necessary to place the pending motions
and this Recommendation in context.
It appears that Mr. and Mrs. Doe had their first contact with the Kansas Department of
Social and Rehabilitation Services1 in June 2008 after one of the Doe children2 began exhibiting
troubling behavior and making troubling comments that allegedly stemmed from improper
interaction with that child by one of Mrs. Doe’s relatives. See First Amended Complaint at ¶¶ 17
and 21. Later, other Doe children reported having suffered abuse from the same suspected
relative. Id. at ¶¶ 38, 65 and 77. During the time period relevant to this case, the Kansas
Defendants were employed by SRS/DCF. The Kansas Defendants’ contacts with the Doe family
continued into 2009 and eventually became contentious. As some point, Mr. Doe apparently
“communicated to [Ms.] Webb and [Ms.] Abney that he did not wish to have further contact with
[Ms.] Gildner due to the animosity created by her antagonistic, biased and baseless positions.”
Id. at ¶ 55. In February 2009, Mr. Doe “filed a formal complaint with SRS/DCF” against Ms.
Gildner. Id. at ¶ 66. The actual cause of this deteriorating situation is a matter of some dispute
This state agency is now called the Kansas Department of Children and Families, and is
referenced in the First Amended Complaint as “SRS/DCF.” See First Amended Complaint, at
The Plaintiffs in this action, N.E.L. and M.M.A., are two of the Does’ ten children.
Although Plaintiffs have reached the age of majority, during the relevant time period, both were
and wholly irrelevant to the disposition of the pending motions.
On or about April 20, 2009, ten Child-in-Need of Care (CINC) petitions were filed in the
District Court for Johnson County, Kansas by the District Attorney’s Office. Those petitions
“requested termination of Mr. and Mrs. Doe’s parental rights, appointment of a permanent
custodian for Plaintiffs and their siblings, temporary removal of Plaintiffs and their siblings from
their Parents’ custody, and an order of child support.” Id. at ¶ 86. The Johnson County District
Court set a non-emergency hearing on these petitions for May 11, 2009. On May 5, 2009,
SRS/DCF sought Ex Parte Orders of Protective Custody in the District Court of Johnson County.
Although Mr. and Mrs. Doe dispute the information proffered in support of the petitions for
those orders, the District Court entered Ex Parte Orders on May 5, 2009.
On that same day, Mrs. Doe and her children were visiting long-standing family friends,
Dr. and Mrs. G, who were living in unincorporated Douglas County, Colorado. At some point,
Defendants Adame and Garza were made aware of the Ex Parte Orders issued by the Johnson
County District Court and they went to the G’s residence.3 After some discussion on May 6,
2009, Mrs. Doe left the G residence. Later that same day, Dr. G and his wife drove the Doe
children back to Kansas where they were placed in the temporary custody of SRS/DCF.
In moving to dismiss the First Amended Complaint, the Douglas County Defendants
contend that Plaintiffs’ claims are barred by the applicable statute of limitations, as well as the
doctrines of absolute and qualified immunity. The Douglas County Defendants further insist that
On May 6, 2009, Ms. Adame was a social worker either employed by the Colorado
Department of Social Services or the Douglas County Department of Human Services, and Mr.
Garza was employed by the Douglas County Sheriff’s Office. See First Amended Complaint, at
¶¶ 10 and 11.
the First Amended Complaint fails to state a viable claim for relief against Douglas County. The
Kansas Defendants have moved to dismiss the claims against them based upon a lack of personal
jurisdiction. In the alternative, the Kansas Defendants insist that Plaintiffs’ claims are barred by
the statute of limitations and the doctrines of absolute or qualified immunity, and that Plaintiffs’
alleged Fourth Amendment violation fails to state a cognizable claim for relief. Plaintiffs
naturally take strong exception to all of these arguments.
The Douglas County Defendants’ Motion
Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under
Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view
these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009)). However, a plaintiff may not rely on mere labels or conclusions “and a formulaic
recitation of the elements of a cause of action will not do.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Rather, the court’s analysis is two-fold.
First, the court identifies “the allegations in the complaint that are not entitled to
the assumption of truth,” that is those allegations that are legal conclusions, bare
assertions, or merely conclusory. Second, the court considers the factual
allegations “to determine if they plausibly suggest an entitlement to relief.” If the
allegations state a plausible claim for relief, such claim survives the motion to
dismiss. Notwithstanding, the court need not accept conclusory allegations
without supporting factual averments.
Wood v. Wells Fargo Bank, N.A., No. 13-cv-01731-CMA-KMT, 2013 WL 5763101, at *2 (D.
Colo. Oct. 23, 2013) (internal citations omitted).
As the Tenth Circuit explained in Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007),
the mere metaphysical possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.
“The burden is on the plaintiff to frame ‘a complaint with enough factual matter (taken as true)
to suggest’ that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008) (quoting Bell Atl. Corp., 555 U.S. at 556). The ultimate duty of the court is to
“determine whether the complaint sufficiently alleges facts supporting all the elements necessary
to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v.
Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Plaintiffs attached to the First Amended Complaint a redacted Ex Parte Order of
Protective Custody, dated May 5, 2009 (Exhibit 1) (doc. #55-1) and a redacted document entitled
Colorado Department of Social Services, Douglas County Department of Human Services Safety
Plan, dated May 6, 2009 (Exhibit 2) (doc. #55-2). The parties also have attached exhibits to their
briefs in support of or in opposition to the Douglas County Defendants’ motion to dismiss.
Those exhibits consist of judicial records from Colorado’s Eighteenth Judicial District
(Defendants’ Exhibit A, doc. # 57-1 and Plaintiffs’ Exhibit 3, doc. #67-3) and the District Court
for Johnson County, Kansas (Plaintiffs’ Exhibit 2, doc. #67-2 and Plaintiffs’ Exhibit 4, doc. #674). The parties also included as exhibits excerpts from the Colorado Code of Regulations, 12
CCR 2509-2 (Defendants’ Exhibit B, doc. #57-2 and Exhibit C, doc. #76-1).4
The Kansas Defendants and Plaintiffs also attached exhibits to their briefs in support of
or in opposition to the Kansas Defendants’ motion to dismiss. Most of those exhibits are
Generally, a court considers only the contents of the complaint when ruling on a Rule
12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this
general rule include: documents incorporated by reference in the complaint; documents referred
to in and central to the complaint, when no party disputes their authenticity; and “matters of
which a court may take judicial notice.” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007)). Cf. Gilbert v. Bank of Am. Corp., No. 11-cv-00272-BLW, 2012
WL 4470897, at *2 (D. Idaho Sept. 26, 2012) (noting that a court may take judicial notice “of the
records of state agencies and other undisputed matters of public record” without transforming a
motion to dismiss into a motion for summary judgment). Cf. Catchai v. Fort Morgan Times, No.
15-cv-00678-MJW, 2015 WL 6689484, at *4 (D. Colo. Nov. 3, 2015) (in ruling on the pending
motion to dismiss, the court acknowledged its ability to take judicial notice of court records from
Morgan County District Court); Reyes v. Hickenlooper, 84 F. Supp. 3d 1204, 1207 (D. Colo.
2015) (noting that the court could take judicial notice of court filings from other cases without
converting a Rule 12(b)(6) motion into a summary judgment motion). While the court has read
and considered the parties’ exhibits, I will analyze the issues and arguments under the standard
governing motions to dismiss under Rule 12(b)(6).
Defendants’ Claim to Absolute Immunity
Defendants Adame and Garza contend that all claims against them must be dismissed
based on the doctrine of absolute or quasi-judicial immunity because on May 6, 2009 they were
simply executing orders issued by a Kansas court. Plaintiffs argue in response that “absolute
immunity does not apply because the Kansas Ex Parte Orders were not facially valid” and
judicial records subject to judicial notice by this court.
because “Adame and Garza exceeded the scope of the orders.” See Response to Douglas
Defendants’ Motion to Dismiss, at 12.
The Tenth Circuit has held that “enforcing a court order or judgment is intrinsically
associated with a judicial proceeding” and that “[a]bsolute immunity for officials assigned to
carry out a judge’s orders is necessary to insure that such officials can perform their function
without the need to secure permanent legal counsel.” Valdez v. City & Cty. of Denver, 878 F.2d
1285, 1289 (10th Cir. 1989) (“it is simply unfair to spare the judges who give orders while
punishing the officers who obey them”). See also Moss v. Kopp, 559 F.3d 1155, 1163-1168
(10th Cir. 2009) (holding that “[j]ust as judges acting in their judicial capacity are absolutely
immune from liability under section 1983, ‘official[s] charged with the duty of executing a
facially valid court order enjoy [ ] absolute immunity from liability for damages in a suit
challenging conduct prescribed by that order”) (quoting Turney v. O’Toole, 898 F.2d 1470, 1472
(10th Cir. 1990). “The ‘fearless and unhesitating execution of court orders is essential if the
court’s authority and ability to function are to remain uncompromised.’” Coverdell v. Dep’t of
Soc. & Health Servs., 834 F.2d 758, 765 (9th Cir. 1987). Cf. Smeal v. Alexander, No. 5:06 CV
2109, 2006 WL 3469637, at *6 (N.D. Ohio Nov. 30, 2006) (“quasi-judicial immunity extends to
those persons performing tasks so integral or intertwined with the judicial process that they are
considered an arm of the judicial officer who is absolutely immune”).
“[F]or the defendant state official to be entitled to quasi-judicial immunity, the judge
issuing the disputed order must be immune from liability in his or her own right, the officials
executing the order must act within the scope of their own jurisdiction, and the officials must
only act as prescribed by the order in question.” Moss, 559 F.3d at 1163. The doctrine of quasi-
judicial immunity further requires that the court order in question be “facially valid.” Id. at
1164. The Tenth Circuit has recognized, however, that a court order may be “facially valid”
even if that order is infirm or erroneous as a matter of state law.
“State officials ‘must not be required to act as pseudo-appellate courts
scrutinizing the orders of judges,’ but subjecting them to liability for executing an
order because the order did not measure up to statutory standards would have just
that effect.” Further, “[t]o allow plaintiffs to bring suit any time a state agent
executes a judicial order that does not fulfill every legal requirement would make
the agent ‘a lightning rod for harassing litigation aimed at judicial orders.”
“Simple fairness requires that state officers ‘not be called upon to answer for the
legality of decisions which they are powerless to control.’”
Id. at 1165 (internal citations omitted).
Plaintiffs contend that the First Amended Complaint “alleges specifically that the [Ex
Parte Orders] were facially invalid by being issued from a Kansas court and being incomplete,
such that Adame and Garza could see for themselves that no one from ‘Kansas State Social
Services’ was granted custody by the [Ex Parte Orders].” See Plaintiffs’ Response to Douglas
Defendants’ Motion to Dismiss, at 14 (emphasis in original). Plaintiffs also argue a Kansas
judge “had no jurisdiction to issue ex parte orders for execution in Colorado.” Id. at 15
(emphasis in original).
The Ex Parte Orders in question purportedly were issued “pursuant to K.S.A. 38-2242"5
This statute provides that a court “upon verified application, may issue ex parte an order
directing that a child be held in protective custody and, if the child has not been taken into
custody, an order directing that child be taken into custody.” A court may issue such an ex parte
order “only after the court has determined there is probable cause to believe the allegations in the
application are true.” “If the court issues an order of protective custody, the court may also enter
an order restraining any alleged perpetrator of physical, sexual, mental or emotional abuse of the
child from residing in the child’s home; visiting, contacting, harassing or intimidating the child,
other family member or witness; or attempting to visit, contact, harass or intimidate the child,
other family member or witness.”
and specifically state that the District Court of Johnson County, Kansas found, in part, that
“[r]easonable efforts are not required to maintain the child in the home because an emergency
exists which threatens the safety of the child,” that “remaining in the home or returning home
would be contrary to the welfare of the child,” and that “immediate placement is in the best
interest of the child.” See Exhibit 1 (doc. #55-1) attached to First Amended Complaint. The
Orders further noted allegations of “physical, sexual, mental or emotional abuse.” These
documents bear the caption “EX PARTE ORDER OF PROTECTIVE CUSTODY and the
signature of “Kathleen L. Sloan, Judge of the District Court,” and apparently ere time-stamped
by the Clerk of the District Court on “2009 May -5 PM 3:40.” Although these court filings set
forth “findings” of fact, Judge Sloan did not direct any action to be taken based upon those
findings. So, for example, the Ex Parte Order did not explicitly require that the identified child
be taken into custody. The district judge also did not check the box that “FURTHER
ORDERED that any duly authorized law enforcement officer of the jurisdiction where the
child(ren) can be found shall take the child(ren) named above into custody and deliver the
child(ren) to” a specified location or government official. Judge Sloan also did not indicate that
a “restraining order shall be filed against” anyone.” In short, from the face of the Ex Parte
Order, it is difficult to discern exactly what actions Judge Sloan required or even contemplated.
As this matter comes before the court on a motion to dismiss, I must confine my analysis
to the well-pled facts (but not conclusory allegations) contained in the First Amended Complaint
and the exhibits properly before the court. The court is required to construe those facts and
documents in a light most favorable to Plaintiffs.
The First Amended Complaint contends that the Ex Parte Orders issued by Judge Sloan
were not based upon probable cause and falsely presented or omitted material facts concerning
Mr. and Mrs. Doe and their children. There are no well-pled facts in the First Amended
Complaint that would suggest Defendants Adame or Garza were aware of these alleged
deficiencies in the Ex Parte Orders. But see Moss, 559 F.3d at 1165 (“Simple fairness requires
that state officers ‘not be called upon to answer for the legality of decisions which they are
powerless to control.’”).
However, there is a fundamental problem with the Douglas County Defendants’
invocation of quasi-judicial immunity. As the Tenth Circuit has explained, “an official charged
with the duty of executing a facially valid court order enjoys absolute immunity from liability for
damages in a suit challenging conduct prescribed by that order.” Valdez, 878 F.2d at 1286
(emphasis added). Stated differently the government official is entitled to quasi-judicial
immunity because he or she is taking actions commanded by the court orders in question. Cf.
Martin v. Bd. of Cty. Comm’rs, 909 F.2d 402, 405 (10th Cir. 1990) (holding that quasi-judicial
immunity protects defendants from damage claims directed to the conduct prescribed in the court
order itself, but not to the manner of its execution). Here, Judge Sloan’s Ex Parte Orders simply
make findings of fact; nothing is specifically or inferentially “ordered.”6 Therefore, the rationale
At some point, Judge Sloan apparently realized that her Ex Parte Orders did not mandate
any specific action. Exhibits attached to the Kansas Defendants’ motion to dismiss include two
documents captioned “Pick Up Order,” dated May 5, 2009 and time stamped 3:40 PM. These
Orders state that “on the 5TH DAY OF MAY, 2009, [each Plaintiff] was placed in the care,
custody and control of [the State of Kansas] with authority for suitable placement” and direct
“ANY LAW ENFORCEMENT AGENCY” to take said child into your custody and transport
said child to court approve Juvenile Intake and Assessment Center.” See Exhibits I and J (doc.
## 64-9 and 64-10) attached to Motion to Dismiss. Another exhibit proffered by the Kansas
Defendants consists of a “Journal Entry Nunc Pro Tunc” filed in the District Court of Johnson
County on May 8, 2009 purporting to “correct[ ] the Ex Parte Orders of Custody filed on May 5,
2009 . . . to read as follows: THE COURT HEREBY ORDERS THAT the above named children
for quasi-judicial immunity seems to be lacking in this case. I recommend that the motion to
dismiss be denied to the extent Defendants Adame and Garza are relying in whole or in part on
the doctrine of absolute or quasi-judicial immunity.
Defendants’ Claim to Qualified Immunity
Even if Defendants Adame and Garza are not protected by quasi-judicial immunity, they
are entitled to qualified immunity for conduct performed within the scope of their official duties.
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Messerschmidt v. Millender, 565 U.S.
535, 132 S. Ct. 1235, 1244 (2012) (internal quotation marks and citations omitted). See also
Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994) (same). Stated differently, the affirmative
defense of qualified immunity “protects all but the plainly incompetent [government official] or
those who knowingly violate the law.” Holland ex rel. Overdorff v. Harrington, 268 F.3d 1179,
1185 (10th Cir. 2001). Whether Defendants Adame and Garza are entitled to qualified immunity
is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
In resolving a motion to dismiss based on qualified immunity, the first prong of the
court’s analysis asks “whether the facts that a plaintiff has alleged . . . make out a violation of a
constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). This determination turns
shall be placed in the custody of: The Secretary of Social and Rehabilitation Services.” See
Exhibit K (doc. # 64-11), attached to Motion to Dismiss. The foregoing orders are not
referenced in the First Amended Complaint, and it is not clear whether Defendants Adame and
Garza ever received the foregoing court filings prior to arriving at the G’s residence on May 6,
2009. But again, on a motion to dismiss the court must construe the allegations in a light most
favorable to Plaintiffs.
on the substantive law regarding the constitutional right at issue. See McGettigan v. Di Mare,
173 F. Supp. 3d 1114, 1121 (D. Colo. 2016) (citing Casey v. City of Fed. Heights, 509 F.3d
1278, 1282-83 (10th Cir. 2007)).
Under the second prong of the qualified immunity doctrine, the plaintiff must show that
the right at issue was “clearly established” at the time of the defendant’s alleged violation.7
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan,
555 U.S. 223 (2009). “The clearly established inquiry examines whether the contours of the
constitutional right were so well-settled, in the particular circumstances presented, that every
reasonable . . . official would have understood that what he is doing violates that right.” Lane v.
Yohn, No. 12-cv-02183-MSK-MEH, 2013 WL 4781617, at *3 (D. Colo. Sept. 6, 2013) (internal
quotation marks and citation omitted), appeal dismissed, No. 13-1392 (10th Cir. Oct. 31, 2013).
“[T]he salient question . . . is whether the state of the law at the time of [the] incident provided
‘fair warning’” to Defendants Adame and Garca that their alleged conduct was unconstitutional.
Tolan v. Cotton,
U.S. , 134 S. Ct. 1861, 1866 (2014) (quoting Hope v. Pelzer, 536 U.S. 730,
741 (2002)). “To satisfy this prong, the burden is on the plaintiff to point to Supreme Court or
Tenth Circuit precedent (or the clear weight of other circuit courts) that recognizes an actionable
constitutional violation in the circumstances presented.” Havens v. Johnson, No. 09-cv-01380MSK-MEH, 2014 WL 803304, at *7 (D. Colo. Feb. 28, 2014) (citing Schwartz v. Booker, 702
The court has the discretion to decide “which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009). However,
“[q]ualified immunity is applicable unless” the plaintiff can satisfy both prongs of the inquiry.
F.3d 573, 587-88 (10th Cir. 2012)), aff’d, 783 F.3d 776 (10th Cir. 2015). “It is not necessary for
the plaintiff to adduce a case with identical facts, but the plaintiff must identify some authority
that considers the issue not as a broad general proposition, but in a particularized sense . . . .”
Havens, 2014 WL 803304, at *7. There must be “a substantial correspondence between the
conduct in question and prior law allegedly establishing that the defendant's actions were clearly
prohibited.” Duncan v. Gunter, 15 F.3d 989, 992 (10th Cir. 1994) (internal quotation marks and
In the past, the Tenth Circuit has employed a “sliding scale” in applying the second prong
of the qualified immunity doctrine: “[t]he more obviously egregious the conduct in light of
prevailing constitutional principles, the less specificity is required from prior case law to clearly
establish the violation.” Casey, 509 F.3d at 1284 (quoting Pierce v. Gilchrist, 359 F.3d 1279,
1298 (10th Cir. 2004)). “As long as the unlawfulness of the [defendant’s] actions was ‘apparent’
‘in light of pre-existing law,’ then qualified immunity is inappropriate.” Estate of Booker v.
Gomez, 745 F.3d 405, 433-34 (10th Cir. 2014) (quoting Hope, 536 U.S. at 739).
The Supreme Court recently shed additional light on how the second prong of the
qualified immunity doctrine should be applied in the context of a Fourth Amendment claim. In
vacating the decision of a divided panel of the Tenth Circuit, the Supreme Court in White v.
Pauly, 580 U.S. __, 2017 WL 69170, at *4 (Jan. 9, 2017), reiterated that clearly established law
“should not be defined ‘at a high level of generality’” and “must be ‘particularized’ to the facts
of the case.” Otherwise, “‘[p]laintiffs would be able to convert the rule of qualified immunity . .
. into a rule of virtually unqualified liability simply by alleging violation of extremely abstract
rights.’” Id. The lower court in White “failed to identify a case where an officer acting under
similar circumstances as [the defendant] was held to have violated the Fourth Amendment.” Id.
at *5. The Supreme Court’s per curiam opinion emphasized that White “present[ed] a unique set
of facts and circumstances” and that “alone should have been an important indication to [lower
courts] that [the defendant] did not violate a ‘clearly established’ right.” Id.
1. Plaintiffs’ First Claim Alleging A Fourth Amendment Violation
Plaintiffs’ First Claim asserts that Defendants Adame and Garza violated their Fourth
Amendment right to be free from unlawful seizure.
A violation of the Fourth Amendment requires an intentional acquisition of physical
control. Brower v. County of Inyo, 489 U.S. 593, 596 (1989). A seizure for purposes of the
Fourth Amendment occurs when “government actors have, ‘by means of physical force or show
of authority, . . . in some way restrained the liberty of a citizen.’” JL v. N.M. Dep’t of Health,
165 F. Supp. 3d 996, 1042 (D. N.M. 2015) (quoting Graham v. Connor, 490 U.S. 386, 395 n. 10
[A] person is “seized” only when, by means of physical force or a show of
authority, his freedom of movement is restrained. Only when such restraint is
imposed is there any foundation whatsoever for invoking constitutional
safeguards. The purpose of the Fourth Amendment is not to eliminate all contact
between the policy and the citizenry, but “to prevent arbitrary and oppressive
interference by enforcement officials with the privacy and personal security of
individuals.” * * * We conclude that a person has been “seized within the
meaning of the Fourth Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave. Examples of circumstances that might indicate a seizure, even
where the person did not attempt to leave, would be the threatening presence of
several officers, the display of a weapon by an officer, some physical touching of
the person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 553-54 (1980) (internal citations omitted). Cf.
United States v. Beamon, 576 F. App’x 753, 757 (10th Cir. 2014) (“until a citizen’s liberty is
actually restrained, there is no seizure” for purposes of the Fourth Amendment).
Every “seizure,” however, does not necessarily equate to a constitutional violation,
because the Fourth Amendment only prohibits “unreasonable” seizures. See JL, 165 F. Supp. 3d
at 1043. Cf. Kernats v. O'Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994) (to state a violation of the
Fourth Amendment, a plaintiff must allege both that a defendant’s conduct constituted a seizure
and that the seizure was unreasonable). The Fourth Amendment’s “central requirement” is one
of reasonableness. See Brower, 489 U.S. at 599 (emphasizing that a seizure “alone is not enough
for § 1983 liability; the seizure must be unreasonable”) (internal quotation marks omitted).
“[C]ourts have long recognized that the reasonableness of a seizure depends not just on why or
when it is made, but also on how it is accomplished.” Fisher v. City of Las Cruces, 584 F.3d
888, 894 (10th Cir. 2009) (citation omitted). “[T]o determine whether a seizure is reasonable,
which is the Fourth Amendment’s ‘ultimate standard,’ a court must balance the government’s
interest in conducting the seizure against the individual’s interest in being free from arbitrary
governmental interference.” JL, 165 F. Supp. 3d at 1043 (internal citations omitted).
The First Amended Complaint alleges the following pertinent facts which, for purposes
of the pending motion, the court will presume are true and construe in a light most favorable to
Plaintiffs. On May 6, 2009, Mrs. Doe and all of her children were visiting Dr. and Mrs. G at
their home in Douglas County, Colorado. See First Amended Complaint at ¶ 123. On that same
day, Defendants Adame and Garza, “at the instigation of the Kansas SRS/DCF, Gildner, Abney
and Webb,” went to the home of Dr. and Mrs. G “to carry out official business on behalf of the
Douglas County Sheriff’s Office, the Department of Human Services for Douglas County, and
the Colorado Department of Social Services.” Id. at ¶ 125. Either Defendant Adame or
Defendant Garza told Dr. G that “they were in possession of a court order from the State of
Kansas to seize custody of all ten of the Doe’s children and demanded entry and custody of the
children.”8 Id. at ¶ 132. Defendant Adame also “represented to Dr. G that she had been
contacted by the Kansas SRS/DCF.” Id. at ¶ 133. On the advice of an “attorney-friend [on the]
telephone, Dr. G asked Defendants if they had a warrant or an order issued by a Colorado court.
Id. at ¶ 135. Defendants allegedly responded that they were not required to have a warrant to
enter the residence and “that they ‘do this all the time.’” Id. at ¶¶ 136-137. Plaintiffs allege that
at some point during this exchange, Defendant Garza “became belligerent, raised his voice and
threatened Dr. G with arrest or contempt for interfering with law enforcement.” Id. at ¶ 138.
Deputy Garza allegedly also stated that he and Defendant Adame were “coming in and we’re
taking these kids.” Id. at ¶ 139. Throughout the incident, Defendant Garza was wearing a
sidearm. Id. at ¶ 130. Plaintiffs allege that “[d]ue to the Colorado Agents’ visible weapon, their
false claims of legal authority, their use of force, intimidation, and loud and belligerent
demeanor, Dr. G was powerless to prevent them from entering his house over his objection.” Id.
at ¶ 140.
Once inside the G’s residence, Defendants Adame and Garza “falsely claimed that
Plaintiffs and the other Doe children were in the custody of the State of Kansas.” Id. at ¶ 143.
Although they allegedly found no evidence of “emergency conditions” that threatened the safety
of the Plaintiffs or the other Doe children, Defendants Adame and Garza “commanded Mrs. Doe
to vacate the G’s home immediately.” Id. at ¶ 142. Plaintiffs allege that Defendants Adame and
Based upon other allegations in the First Amended Complaint, it would appear that
Plaintiffs are alluding to the Ex Parte Orders issued by the District Court for Johnson County,
Kansas on May 5, 2009. See First Amended Complaint at ¶¶ 150 and 172.
Garza Defendants “issued summary orders inside the G’s house, both verbal and written, without
a supporting court order, without prior notice, hearing or probable cause, which the G’s, Mrs.
Doe and the Doe children were forced to obey by virtue of the Colorado Agents’ threats of force,
intimidation and false claims of legal authority.”9 Id. at ¶ 146.
The First Amended Complaint also alleges that Defendant Adame signed a document that
Plaintiffs refer to as the “Colorado Order.” That document purportedly required Dr. and Mrs. G
“to take custody of the Doe’s children” and prohibited Mrs. Doe from having any “contact,
physical or verbal with any of the children, including any communication through Dr. G and his
wife Mrs. G or any third party.” Id. at ¶¶ 147 and 151-52. Plaintiffs further assert that in a later
telephone conversation with Dr. G, Defendant Adame “prohibit[ed] Dr. G from allowing Mr.
Doe, or even his parents, to talk to the children on the phone or have any contact with them.” Id.
at ¶ 153. Defendants Adame and Garza purportedly “informed the G’s that government agents
from Kansas would arrive at an unspecified time/day to take physical custody of the Doe
children from Dr. and Mrs. G.” Id. at ¶ 161. That same day, after the exchange with Defendants
Adame and Garza, Dr. G and his wife “personally transported the ten Doe children to Kansas
from Colorado” and “delivered the Doe children the next day to the custody of SRS/DCF in
Compare Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 926-27 (7th Cir. 2011)
(recognizing, in a case where a parent agreed to remove their minor child from the family home
and place him with his grandmother home when told that the child otherwise would be placed in
foster care, that a Fourth Amendment seizure may occur where “coercive conduct on the part of
the police . . . indicates cooperation is required;” the court concluded, however, that the
defendants’ conduct did not rise to the level of a Fourth Amendment violation because the
information available to defendants “[was] sufficient to warrant a prudent caseworker in
believing that [the minor child] was in danger”). See also Schattilly v. Daugharty, 656 F. App’x
123, 129-30 (6th Cir. 2016) (holding that officials did not violate the plaintiff’s constitutional
rights by threatening removal proceedings in order to obtain consent to temporary placement).
Johnson County. Id. at ¶¶ 164 and 166.
The so-called “Colorado Order” is attached to the First Amended Complaint as Exhibit 2.
Notably, the word “order” does not appear any where in that document. To the contrary, Exhibit
2 is captioned “Colorado Department of Social Services, Douglas County Department of Human
Services” and entitled “Safety Plan.” In addition to the provisions cited in the First Amended
Complaint, the Safety Plan apparently required Mrs. Doe “to contact Kansas casework; Monica
Gildner on 5/7/09.” At the bottom of the single-page document is space for the signatures of
“Safety Plan Participants and Parents” which is prefaced by the following:
Family Agreement with Safety Plan
We have participated in the development of and reviewed this safety plan and
agree to work with the provisions and services as described above.10
Exhibit 2 bears two illegible signatures and is dated May 6, 2009.
This court finds the allegations in the First Amended Complaint are insufficient to allege
a violation of Plaintiffs’ Fourth Amendment rights by either Defendant Adame or Garza.11 As
noted earlier, Fourth Amendment seizure requires an intentional acquisition of physical control.
If I credit Plaintiffs’ own allegations, Defendants Adame and Garza announced that Plaintiffs
and the other Doe children already “were in the custody of the State of Kansas.” See First
Colorado law provides that a county department of social services and “any person who
is believed to be responsible for the abuse or neglect of a child” may enter into a safety plan
agreement. See Colo. Rev. Stat. § 19-3-309.5. That statute further provides that “[p]articipation
in a safety plan agreement by an county department and by any person who is believed to be
responsible for child abuse or neglect shall be at the discretion of the person who is believed to
be responsible for the child abuse or neglect.”
It bears noting that the First Amended Complaint does not assert any Fourth
Amendment claims on behalf of Dr. and Mrs. G, or Mrs. Doe.
Amended Complaint at ¶ 143. If that allegation is accepted as true, the Safety Plan Agreement
executed on May 6, 2009 did not further restrict Plaintiffs’ freedom of movement. That seems
consistent with Dr. and Mrs. G’s understanding and subsequent actions, since it is undisputed
that they returned Plaintiffs and their siblings to Kansas that same night. While the First
Amended Complaint portrays the Defendants (and particularly Deputy Garza) as intimidating,
loud and belligerent, those behaviors did not change Plaintiffs’ status or restrict their
movements. I also do not find that the Safety Plan executed on May 6, 2009 was unreasonable
for purposes of the Fourth Amendment in light of the findings contained in Judge Sloan’s Ex
Parte Orders which apparently were available to Defendants Adame and Garza.
Finally, and most importantly, I do not find that Plaintiffs have sustained their burden
under the second prong of the qualified immunity analysis. As the Supreme Court re-affirmed in
White, the clearly established law element “must be ‘particularized’ to the facts of the case” and
“should not be defined ‘at a high level of generality.” In challenging Defendants’ claim of
qualified immunity under the Fourth Amendment, Plaintiffs’ response brief relies on four
reported decisions. In Jones v. Hunt, 410 F.3d 1221 (10th Cir. 2005), the court held that a
sixteen year old student was “seized” within the meaning of the Fourth Amendment when she
was confronted at school and coerced into returning to live with her father. The Tenth Circuit
noted that the deputy sheriff and social worker repeatedly threatened the student with arrest if
she did not comply with their directives. The Tenth Circuit also found that the Fourth
Amendment seizure “was not ‘justified at its inception’” since there was no indication that the
child’s mother was suspected of abusive or neglectful behavior. In Gomes v. Wood, 451 F.3d
1122 (10th Cir. 2006), parents brought a due process claim under the Fourteenth Amendment
after their minor daughter was removed from their home and placed in protective custody. In
holding that the defendants were entitled to qualified immunity from the plaintiffs’ claim for
damages under the Fourteenth Amendment, the appellate court acknowledged that “[s]ocial
workers face extreme difficulties in trying simultaneously to help preserve families and to serve
the child’s best interests” and are required to “balance the parents’ interest in the care, custody
and control of their children with the state’s interest in protecting the children’s welfare.” Id. at
Plaintiffs also rely on two appellate decisions from other Circuits.12 The facts in
Wendrow v. Michigan Department of Human Services, 534 F. App’x 516 (6th Cir. 2013) are
demonstrably different from those in this case. In Wendrow, the Sixth Circuit held that a thirteen
year old child was seized when she was removed from class and then interviewed by prosecutors
and police officers in a separate area on school grounds. The child in question had been
diagnosed with Asperger’s syndrome. The court concluded that “it was objectively unreasonable
for [defendants] to subject [this child] to an interview of this type without consent.” In Wooley
v. City of Baton Rouge, 211 F.3d 913 (5th Cir. 2000), a panel of the Fifth Circuit held that a
minor child was “seized” in violation of the Fourth Amendment when he was physically
removed from his home without a warrant or probable case. The court specifically found that it
was not “objectively reasonable for the officers to believe that [the minor child] was in danger of
I am not convinced these two cases demonstrate “the clearly established weight of
authority from other courts” as contemplated by the qualified immunity doctrine. See PJ ex rel.
Jensen v. Wagner, 603 F.3d 1182, 1196-97 (10th Cir. 2010) (“A right is clearly established
‘when a Supreme Court or Tenth Circuit decision is on point, or if the clearly established weight
of authority from other courts shows that the right must be as [the] plaintiff maintains.”) (quoting
Harman v. Pollock, 586 F.3d 1254, 1260 (10th Cir. 2009).
imminent harm” and further noted that the judicial order in the officers’ possession “in no way
indicated that [the minor child’s] safety might be jeopardized.” Indeed, the appellate court noted
that “the police were not informed of any abuse prior to arriving” at the child’s home.
Here, Plaintiffs were not taken into custody by Defendants Adame and Garz. Defendants
were in possession of court orders that specifically found that “an emergency exists which
threatens the safety of” the Plaintiffs, that “remaining in the home or returning home would be
contrary to the welfare of the child, and that “immediate placement is in the best interest of the
child.” Judge Sloan’s Ex Parte Orders also referred to allegations of physical, sexual, mental, or
emotional abuse involving these children. Echoing the Supreme Court’s observation in White, I
find that Plaintiffs have “failed to identify a case where an officer acting under similar
circumstances as [the defendant] was held to have violated the Fourth Amendment.”
Accordingly, I recommend that Defendants Adame and Garza be dismissed from the first claim
for relief on the basis of qualified immunity.
2. Plaintiffs’ Third Claim Alleging A Fourteenth Amendment Violation
In their Third Claim, Plaintiffs allege that Defendants Adame and Garza “caus[ed]
Plaintiffs to be deprived of their familial associations in violation of the 14th Amendment.” See
First Amended Complaint at ¶ 208. More specifically, Defendants Adame and Garza allegedly
prohibited “Plaintiffs from leaving [the G’s residence] with their mother and . . . prohibit[ed]
Plaintiffs, through written and verbal orders, from movement and travel with their mother, father,
and grandparents.” Plaintiffs further allege that Defendants Adame and Garza knew their
“actions could and did result in Plaintiffs’ detention.” Id. at ¶ 205.
In moving to dismiss this claim, Defendants Adame and Garza argue, in rather cursory
fashion, that they placed only “limited restrictions” on Plaintiffs’ interaction with their parents
that lasted “for a single day when [Plaintiffs] left [Colorado] without the permission or even
knowledge of Garza or Adame.” See Motion to Dismiss, at 9. Defendants insist that they “are
not aware of any Constitutional right to uninterrupted familial relations in the face of credible
evidence of imminent danger of abuse” and that they
acted reasonably when they determined that to protect the Plaintiffs and their
siblings, it was best to separate them from their parents and leave them in the care
of a family friend of the parents for a short time pending further investigation.
Id. Plaintiffs’ analysis of their Fourteenth Amendment claim is equally perfunctory.
In addition to the factual allegations enumerated in support of Plaintiffs’ Fourth
Amendment claim, the First Amended Complaint avers that after Plaintiffs and their siblings
returned to Johnson County on May 7, 2009, “SRS/DCF disregarded the children’s best interest
and proceeded arbitrarily to separate them from each other, from their parents, from their
grandparents, from the G.’s and from anyone known to them, causing the children obvious
mental and physical anxiety, needless worry and grief.” See First Amended Complaint at ¶ 168.
The Due Process Clause of the “Fourteenth Amendment provides that no state shall
‘deprive any person of life, liberty, or property, without due process of law.’” Estate of DiMarco
v. Wyo. Dept. of Corrections, 473 F.3d 1334, 1339 (10th Cir. 2007) (quoting the Due Process
Clause of the U.S. Const. amend. XIV, § 1). “The Supreme Court’s interpretation of this clause
recognizes two different kinds of constitutional protection: procedural due process and
substantive due process.” McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994). “In its
substantive mode, the Fourteenth Amendment provides protection against arbitrary and
oppressive government action, even when taken to further a legitimate governmental objective.”
Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). One strand of the substantive
due process doctrine “protects an individual’s fundamental liberty interest, while the other
protects against the exercise of governmental power that shocks the conscience.” Id. Plaintiffs’
Third Claim fails under either application of the substantive due process doctrine.
The “protections of substantive due process have for the most part been accorded to
matters relating to marriage, family, procreation, and the right to bodily integrity.” Becker v.
Kroll, 494 F.3d 904, 923 (10th Cir. 2007) (quoting Albright v. Oliver, 510 U.S. 266, 272 (1994)).
See also Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 851 (1992) (acknowledging
that constitutional protections extend to personal decisions relating to, inter alia, family
relationships and child rearing, and that Supreme Court precedents “have respected the private
realm of family life which the state cannot enter”). As the Tenth Circuit noted in Starkey ex rel.
A.B. v. Boulder County Social Services, 569 F.3d 1244, 1253 (10th Cir. 2009) (internal citations
“[T]he Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” But this right to family integrity “has never been
deemed absolute or unqualified.” “Courts have recognized that the constitutional
right to familial integrity is amorphous and always must be balanced against the
governmental interest involved.”
Cf. Tenenbaum v. Williams, 193 F.3d 581, 601 (2d Cir. 1999) (“It does not follow from the
principle that brief seizures of people may be unreasonable and therefore violate the Fourth
Amendment that brief removals [of minor children] from their parents to protect them from
abuse are ‘without any reasonable justification in the service of a legitimate government
objective’ under the Due Process Clause.”) (quoting County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998)).
The Tenth Circuit also addressed the constitutionally protected right of familial
association in Silvan W. v. Briggs, 309 F. App’x 216, 223 (10th Cir. 2009). There, the court
The substantive component of the Fourteenth Amendment “protects an
individual’s fundamental liberty interests” and guards “against the exercise of
governmental power that shocks the conscience.” * * * The right of familial
association arises from the concept of ordered liberty. It is violated when
government officers intend to interfere with a protected relationship and the
reason for interfering “constitute[s] an undue burden on [the plaintiffs’]
Id. (internal citations omitted). In Silvan, the Tenth Circuit found no evidence that plaintiffs’
familial association rights were unduly burdened where defendants acted “on the basis of a
reasonable suspicion of past and impending harm.” The court concluded that plaintiffs’
associational rights “[did] not outweigh the government’s ‘interest in protecting [the minor child]
from abuse and from situations where abuse might occur.’” Id. (citing Griffin v. Strong, 983 F.2d
1544, 1547 (10th Cir. 1993)). Cf. Vigil v. S. Valley Acad., No. 06-2309, 247 F. App’x 982, 988
(10th Cir. 2007) (“a plaintiff claiming a violation of the right to familial association must show
that the defendant had the specific intent to interfere with the family relationship”). Cf.
Camuglia v. City of Albuquerque, 448 F.3d 1214, 1222 (10th Cir. 2006) (noting that to properly
allege a substantive due process violation, “a plaintiff must do more than show that the
government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing
government power”) (quoting Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006)).
Although I accept as true the well-pled allegations of the First Amended Complaint, I do
not find that Plaintiffs have alleged facts that rise to the level of a plausible substantive due
process violation by Defendants Adame and Garza.13 Stated differently, the allegations in the
First Amended Complaint do not plausibly demonstrate that Defendants Adame and Garza on
May 6, 2009 intended to interfere with a protected relationship or that the Safety Plan they put in
place on that day constituted “an undue burden” on Plaintiffs’ right of familial association.
Plaintiffs’ allegations make clear that even if Defendants’ underlying assumptions may
have been incorrect or misguided, they were acting in response to the Ex Parte Orders issued by
the District Court of Johnson County. See First Amended Complaint at ¶ 132 (Defendants
represented that “they were in possession of a court order from the State of Kansas”). Cf. Cox v.
Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 275 (2d Cir. 2011) (to prove a due process
violation of the right to familial association, it is not enough to show that the government action
was “incorrect or ill-advised”). The allegations in the First Amended Complaint also
demonstrate Defendants’ appreciation of their limited role on May 6, 2009. See First Amended
Complaint at ¶¶ 143 and 161 (Defendants Adame and Garza stated that “Plaintiffs and the other
Doe children were in the custody of the State of Kansas” and that “government agents from
Kansas would arrive at a unspecified time/day to take physical custody of the Doe children from
Dr. and Mrs. G”). The Safety Plan put in place by Defendants Adame and Garza specifically
directed Mrs. Doe to contact Ms. Gildner, the social worker in Kansas, the very next day (May 7,
2009), presumably to discuss the children’s current and future situation. Cf. Cox, 654 F.3d at
In reaching this conclusion, the court expresses no views as to the actions of other
Defendants taken either before or after May 6, 2009. Under § 1983, the court must consider to
what extent, if at all, Defendants Adame and Garza personally participated in the alleged
constitutional violations because to assert a viable claim under § 1983, the plaintiff must
plausibly allege that the defendant’s own individual actions violated the Constitution. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
275 (“Absent truly extraordinary circumstances, a brief deprivation of custody is insufficient to
state a substantive due process custody claim.”); Silvan, 309 F. App’x at 223 (in finding that the
defendants had not violated plaintiffs’ familial association rights, the court noted “the relatively
short duration” of the child’s placement with her aunt and uncle and cited with favor Nicholson
v. Scoppetta, 344 F.3d 154, 172 (2d Cir. 2003) which held that “brief removals generally do not
rise to the level of a substantive due process violation, at least where the purpose of the removal
is to keep the child safe during investigation and court confirmation of the basis for removal”);
Wofford v. Evans, No. 7:02CV00762, 2002 WL 32985799, at *7 (W.D. Va. Dec. 17, 2002)
(holding that state action that affects a familial relationship only incidentally is not cognizable in
a § 1983 due process claim). There is absolutely no allegation that Defendant Adame or
Defendant Garza had any role or input in the subsequent decision by Kansas authorities to
separate the Doe children “from each other, from their parents, from their grandparents, from the
G’s and from anyone known to them.”
Finally, in finding that Defendants Adame and Garza must be dismissed from Plaintiffs’
Third Claim on the basis of qualified immunity, I remain mindful of the Tenth Circuit’s
observations regarding the “difficult and essential” judgments that social workers must make
when they are confronted with allegations of child abuse and are forced to make “on-the-spot
judgments on the basis of limited and often conflicting information.” Gomes, 451 F.3d at 1138.
Cf. Hedger v. Kramer, No. CIV-13-0654-HE, – F. Supp. 3d –, 2016 WL 3945816, at *9 (W.D.
Okl. Jul. 19, 2016) (heeding “the Tenth Circuit’s admonition that ‘considerable deference should
be given to the judgment of responsible government officials in acting to protect children from
perceived imminent danger or abuse”), appeal pending. “‘[I]f officers of reasonable competence
could disagree’ about the lawfulness of the challenged conduct, then ‘[qualified] immunity
should be recognized.” Gomes, 451 F.3d at 1136 (quoting Malley v. Briggs, 475 U.S. 335, 341
“Officials do not lose their qualified immunity because of a mistaken, yet
reasonable belief, nor do officials lose their immunity because of a reasonable
mistake as to the legality of their actions.” “[T]he purpose of the qualified
immunity doctrine is to provide ample room for mistaken judgments and to
protect ‘all but the plainly incompetent or those who knowingly violate the law.’”
Dupree v. City of Jacksonville, No.4:08CV00327 JMM, 2009 WL 1392578, at *6 (E.D. Ark.
May 13, 2009) (internal citation omitted).
Accordingly, I recommend that Defendants Adame and Garza be dismissed from
Plaintiffs’ Third Claim for Relief based upon the doctrine of qualified immunity.14
The Claim Against Defendant Douglas County
The Sixth Claim in the First Amended Complaint asserts that “[u]nder 42 U.S.C. § 1983,
If the substantive claims against Defendants Adame and Garza are dismissed pursuant
to this Recommendation, those Defendants also must be dismissed under Plaintiffs’ Fourth
Claim which alleges they participated in a conspiracy to deprive Plaintiffs of their constitutional
rights. See Fernandez v. N. Kern State Prison, No. 1:16-cv-1612 AWI JLT, 2016 WL 7324708,
at *6 (E.D. Cal. Dec. 16, 2016) (holding that “[b]ecause Plaintiff’s complaint fails to allege any
substantive claims . . . it follows that Plaintiff’s claim for civil conspiracy must be dismissed”).
Cf. Aleynikov v. McSwain, No. 15-1170 (KM), 2016 WL 3398581, at *19 (D. N.J. Jun. 15, 2016)
(citing the “established rule . . . that a cause of action for civil conspiracy requires a separate
underlying tort as a predicate for liability;” because the court found no violation of the plaintiff’s
constitutional rights, the companion conspiracy claim was dismissed), clarified on other issues,
2016 WL 5340513 (D. N.J. Sep. 22, 2016); Everling v. Ragains, No. 1:14-cv-00024-TWP-DML,
2015 WL 1319707, at *5 (S.D. Ind. Mar. 23, 2015) (holding that in the absence of an underlying
substantive claim, plaintiff’s conspiracy cause of action must be dismissed; “[b]ecause all the
federal claims under 42 U.S.C. § 1983 are barred by prosecutorial immunity, there is no
underlying cause of action on which to base a conspiracy claim”). Also, because this court is
recommending Defendants Adame’s and Garza’s dismissal based upon qualified immunity, there
is no need to address their statute of limitations affirmative defense.
Douglas County is liable for causing Plaintiffs to be seized and deprived of their liberty in
violation of the 4th Amendment of the United States Constitution.” Plaintiffs allege in
conclusory fashion that “Douglas County had adopted an unwritten policy, custom, or practice
by which it authorized county sheriff’s personnel to seize Plaintiffs based on out-of-state ex
parte court orders in violation of the United States Constitution and Colorado law.” See First
Amended Complaint, at ¶ 216.
This claim cannot survive if Defendants Adame and Garza are dismissed from this
action. 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. See, e.g., City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Estate of Larsen ex rel. Sturdivan v.
Murr, 511 F.3d 1255, 1264 (10th Cir. 2008). Cf. Maco v. Baldwin Union Free Sch. Dist., No.
CV 15-3958, 2016 WL 4028274, at *6 (E.D.N.Y. Jul. 26, 2016) (“[W]here there is no underlying
violation of a plaintiff’s constitutional rights, any claim for municipal liability necessarily fails
as well.”); Bonilla, v. City of York, No. 1:14-CV-2238, 2016 WL 3165619, at *12 (M.D. Pa. Jun.
7, 2016) (“[T]here is no municipal liability under Monell where there is no underlying violation
of a constitutional right by the individual officers.”), appeal pending; Caputo v. Rio Ranche
Police Dep’t, No. CIV 05-321-JB/DJS, 2006 WL 4063020, at *9 (D.N.M. Jun. 30, 2006) (while
the acts of a single employee may sometimes give rise to a Monell claim, “such a Monell claim
still requires that a constitutional violation occurred”).
The Kansas Defendants’ Challenge to Personal Jurisdiction
Where a defendant is moving to dismiss under Fed. R. Civ. P. 12(b)(2) for lack of
personal jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to state a cognizable claim for
relief, the court should first address the challenge to personal jurisdiction. “The question of
personal jurisdiction must be addressed before a court can reach the merits of a case, because ‘a
court without jurisdiction over the parties cannot render a valid judgment.’” Doe v. May, No.
14-cv-01740-WJM-NYW, 2015 WL 8519519, at *3 (D. Colo. Nov. 16, 2015) (quoting Omi
Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998)), rec. adopted,
2015 WL 8479808 (D. Colo. Dec. 10, 2015).
In every action, the plaintiff bears the burden of establishing personal jurisdiction over a
non-resident defendant. See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). “In
the preliminary stages of litigation, Plaintiff’s burden is light.” Walker v. Wegener, No. 11-CV3238-PAB-KMT, 2012 WL 1020673, at *3 (D. Colo. Mar. 2, 2012) (citing Wenz, 55 F.3d at
1505), rec. adopted, 2012 WL 1020954 (D. Colo. Mar. 26, 2012). “Where, as here, there has
been no evidentiary hearing, and the motion to dismiss for lack of personal jurisdiction is
decided on the basis of affidavits and other materials, Plaintiff[ ] need only make a prima facie
showing that jurisdiction exists.” Id. at *3 (internal citation omitted). See also Pytlik v. Prof’l
Res., Ltd., 887 F.2d 1371, 1376 (10th Cir. 1989) (Plaintiff “has the duty to support jurisdictional
allegations in a complaint by competent proof of the supporting facts if the jurisdictional
allegations are challenged by an appropriate pleading”). This court must resolve any factual
disputes in Plaintiffs’ favor. See Beyer v. Camex Equip. Sales & Rentals, Inc., No. 10-CV01580-WJM-MJW, 2011 WL 2670588, at *2 (D. Colo. July 8, 2011) (“Any factual conflicts
must be resolved in the plaintiff’s favor.”), aff'd, 465 F. App'x 817 (10th Cir. 2012). “However,
‘only the well pled facts of plaintiff’s complaint, as distinguished from mere conclusory
allegations, must be accepted as true.” Wise v. Lindamood, 89 F. Supp. 2d 1187, 1189 (D. Colo.
1999). The court also should accept as true those facts presented in defendant’s affidavits or
exhibits that remain unrefuted by plaintiff. See Glass v. Kemper Corp., 930 F. Supp. 332, 337
(N.D. Ill. 1996).
Here, both the Kansas Defendants and Plaintiffs have attached exhibits to their motion
and response brief, respectively. “A court may consider material outside of the pleadings in
ruling on a motion to dismiss for lack of . . . personal jurisdiction,” without converting “the
motion into one for summary judgment; ‘the plain language of Rule 12(b) permits only a
12(b)(6) motion to be converted into a motion for summary judgment.’” 1-800-Contacts, Inv. v.
Mem’l Eye, PA, No. 1:08-CV-983 TS, 2009 WL 1586654, at *1 n.1 (D. Utah, Jun. 4, 2009). Cf.
Rich Food Servs., Inc. v. Rich Plan Corp., No.5:99-CV-677-BR, 2001 WL 36210598, at *9 n.2
(E.D.N.C. May 12, 2001) (“Rule 12(b) does not impose a restriction on [a] trial court in
considering matters outside the pleadings in ruling on a motion to dismiss pursuant to Rule
12(b)(2) for lack of personal jurisdiction”); Sunwest Silver, Inc. v. Int’l Connection, Inc. 4 F.
Supp. 2d 1284, 1285 (D. N.M. 1998) (“The submission of affidavits in connection with a motion
to dismiss for lack of personal jurisdiction does not convert the motion into one for summary
judgment, thus, the court examines this jurisdictional issue pursuant to the standards applicable
to a Rule 12(b)(2) motion.”).
“To obtain personal jurisdiction over a nonresident defendant in a diversity action, a
plaintiff must show both that jurisdiction is proper under the laws of the forum state and that the
exercise of jurisdiction would not offend due process.” Intercon, Inc. v. Bell Atl. Internet Sols.,
205 F.3d 1244, 1247 (10th Cir. 2000) (citation omitted). Because Colorado's long-arm statute
permits the exercise of any jurisdiction that is consistent with the United States Constitution, the
personal jurisdiction inquiry under Colorado law “collapses into the single due process inquiry.”
Id. at 1247 (citation omitted). See also Beyer, 2011 WL 2670588, at *3 (The court “need only
address the constitutional question of whether the exercise of personal jurisdiction over
[Defendants] comports with due process.”).
“The Due Process Clause permits the exercise of personal jurisdiction over a nonresident
defendant so long as there exist minimum contacts between the defendant and the forum State.”
Intercon, 205 F.3d at 1247 (internal quotation marks and citation omitted). The minimum
contacts requirement protects a defendant from “being subject to the binding judgment of a
forum with which [it] has established no meaningful contacts, ties, or relations.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 471-72 (1985) (internal quotation marks and citation omitted).
The defendant must have “fair warning that a particular activity may subject [it] to the
jurisdiction of a foreign sovereign.” Id. at 472. “[T]he question of whether a non-resident
defendant has the requisite minimum contacts with the forum state to establish in personam
jurisdiction must be decided on the particular facts of each case.” Benton v. Cameco Corp., 375
F.3d 1070, 1076 (10th Cir. 2004) (internal quotation marks omitted).
In this case, Plaintiffs are asserting the court has specific personal jurisdiction over the
Kansas Defendants. “The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant focuses on the relationship among the defendant, the forum, and the
litigation.” Walden v. Fiore , 571 U.S. __, 134 S. Ct. 1115, 1121 (2014). As the Supreme Court
explained in Walden, the
“minimum contacts” analysis looks to the defendant’s contacts with the forum
State itself, not the defendant’s contacts with persons who reside there. . . . But
the plaintiff cannot be the only link between the defendant and the forum. Rather,
it is the defendant’s conduct that must form the necessary connection with the
forum State that is the basis for its jurisdiction over him.
Id. at 1122. Cf. Giduck v. Niblett, No. 13CA0775, 2014 WL 2986670, at *5 (Colo. App. Jul. 3,
2014) (“[i]n properly viewing the focus of the minimum contacts analysis, . . . it is the
defendants, not plaintiffs or third parties, who must create contacts with the forum state . . . .”),
cert. dismissed, Aug. 28, 2015.
“[A] court may, consistent with due process, assert specific jurisdiction over a
nonresident defendant if the defendant has purposefully directed his activities at residents of the
forum, and the litigation results from alleged injuries that arise out of or relate to those
activities.” Intercon, 205 F.3d at 1247 (citation omitted). “[P]urposeful direction exists when
there is ‘an intentional action . . . expressly aimed at the forum state . . . with [the] knowledge
that the brunt of the injury would be felt in the forum state,” and the “plaintiff’s injuries must
‘arise out of [the] defendant’s forum-related activities.” Anzures v. Flagship Restaurant Group,
819 F.3d 1277, 1280 (10th Cir. 2016) (quoting Dudnikov v. Chalk & Vermillion Fine Arts, Inc.,
514 F.3d 1063, 1071-72 (10th Cir. 2008)). “This purposeful availment requirement ensures that
a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or
attenuated contacts, or of the unilateral activity of another party or a third person.” Rambo v.
Am. S. Ins. Co., 839 F.2d 1415, 1419 (10th Cir. 1988) (quoting Burger King, 471 U.S. at 47475). Cf. New Frontier Media, Inc. v. Freeman, 85 P.3d 611, 614 (Colo. App. 2003) (contacts
that exist with a state due to a plaintiff’s unilateral acts have been held insufficient to establish
For this court to assert personal jurisdiction over the Kansas Defendants, there must be
more than “mere injury to a forum resident.” Walden, 134 S. Ct. at 1125. Indeed, the Tenth
Circuit has acknowledged that “personal jurisdiction cannot be based on a [defendant’s]
interaction with a plaintiff known to bear a strong connection to the forum state.” Rockwood
Select Asset Fund XI(6)-1, LLC v. Devine, Millimet & Branch, 750 F.3d 1178, 1180 (10th Cir.
2014) (citing Walden, 134 S. Ct. at 1122-26)). In this case, it seems clear that on May 6, 2009,
Plaintiffs did not qualify as residents of Colorado or have a strong connection with Colorado.15
In reaching that conclusion, I find instructive the Colorado Supreme Court’s analysis in Brandt
v. Brandt, 268 P.3d 406 (Colo. 2012). Although that case arose under the Uniform Child
Custody Jurisdiction and Enforcement Act and considered when a non-issuing jurisdiction could
modify an out-of-state custody order, the Colorado Supreme Court held that a determination of
where a parent and child “presently reside” for purposes of a residency determination must be
based on a “totality of the circumstances determination.” Id. at 415. Factors that should be
the length and reasons for the parents’ and the child’s absence from the issuing
state; their intent in departing from the state and returning to it; . . . where they
maintain a home, car, driver’s license, job, professional licensure, and voting
registration; where they pay state taxes; the issuing state’s determination of
residency based on the facts and the issuing state’s law; and other circumstances
demonstrated by evidence in the case.
Id. This court has not been provided with any evidence that would suggest Plaintiffs qualified as
“residents” of Colorado on May 6, 2009. With the recommendation to dismiss the claims against
Defendants Douglas County, Adame, and Garza, the remaining parties to this action were all
Kansas residents at the time of the relevant conduct in 2009.
The First Amended Complaint alleges that at all relevant times in 2009, Plaintiffs, as
well as their parents, and their siblings, were residents of the State of Kansas and resided in
Johnson County, Kansas. See First Amended Complaint at ¶ 16.
Moreover, I do not find that the Kansas Defendants’ very brief contact with Colorado
officials is sufficient to demonstrate that these Defendants “purposefully directed” their activities
at this forum with “[the] knowledge that the brunt of the injury would be felt in the forum state.”
I also do not find that any violation of Plaintiffs’ constitutional rights arose “out of [the]
defendant’s forum-related activities.”
The First Amended Complaint alleges that on April 20, 2009, Defendant Gildner
allegedly enlisted the assistance of Assistant District Attorney Jaclynn J.B. Moore, “who filed
ten Child-in Need-of-Care (“CINC”) petitions in the District Court for Johnson County, Kansas.”
See First Amended Complaint at ¶ 85. A “non-emergency hearing” on those petitions was set for
May 11, 2009 in the District Court for Johnson County. Id. at ¶ 92. Thereafter, on May 4, 2009,
Assistant District Attorney Donald W. Hymer, Jr. moved for issuance of Ex Parte Orders of
Protective Custody Pursuant to K.S.A 38-2242 in the District Court of Johnson County, Kansas.
Id. at ¶ 111. See also Exhibit A (doc. #64-1) attached to Motion to Dismiss. Cf. Fitzgerald v.
Zakheim & Lavrar, P.A, 90 F. Supp. 3d 867, 873 (D. Minn. Feb. 11, 2015) (holding that the
defendant law firm did not “purposely direct” its actions at a Minnesota resident when it
obtained from a Florida state court a writ of garnishment aimed at an individual the defendant
believed resided in Florida). Plaintiffs contend that after Dr. and Mrs. G returned the Doe
children to Kansas on May 7, 2009, “SRS/DCF [the Kansas Defendants’ employer] . . .
proceeded arbitrarily to separate them from each other, from their parents, from their
grandparents, from the G’s and from anyone known to them.” The “purposeful activities” which
form the basis for the instant action all took place in Kansas and the consequences of the Kansas
Defendants’ conduct also were felt in that state. Accordingly, I do not find that the Kansas
Defendants had sufficient contacts with Colorado to permit this court to exercise specific
personal jurisdiction over those individuals.
“Even if defendant’s actions created sufficient minimum contacts,” the court “must still
consider whether the exercise of personal jurisdiction over defendant would offend traditional
notions of fair play and substantial justice.” Intercon, 205 F.3d at 1247 (internal quotation marks
and citation omitted). “This inquiry requires a determination of whether the district court’s
exercise of jurisdiction over defendant is reasonable in light of the circumstances surrounding
the case.” Id. The court considers the following factors in deciding whether the exercise of
jurisdiction is reasonable: “(1) the burden on the defendant, (2) the forum state’s interest in
resolving the dispute, (3) the plaintiff’s interest in receiving convenient and effective relief, (4)
the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,
and (5) the shared interest of the several states in furthering fundamental substantive social
policies.” Id. at 1249.
In assessing the reasonableness of jurisdiction, we also take into account the
strength of a defendant’s minimum contacts. [T]he reasonableness prong of the
due process inquiry evokes a sliding scale: the weaker the plaintiff’s showing on
minimum contacts, the less a defendant need show in terms of unreasonableness
to defeat jurisdiction.
Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1161-62 (10th Cir. 2010) (internal
citations omitted). The Supreme Court has cautioned that “jurisdictional rules may not be
employed in such a way as to make litigation ‘so gravely difficult and inconvenient’ that a party
unfairly is at a ‘severe disadvantage’ in comparison to his opponent.” Burger King, 471 U.S. at
On balance, I am not convinced that exercising personal jurisdiction over the Kansas
Defendants in Colorado would comport with traditional notions of fair play and substantial
justice. Colorado does not appear to be the most efficient place to litigate the dispute, and
certainly does not have a greater interest in protecting the interests of the children in this case
than Kansas. To the contrary, this action arises out of orders issued by the District Court for
Johnson County, Kansas. I have no reason to believe that proceeding against the Kansas
Defendants in that forum would impose undue burdens on Plaintiffs or impair their ability to
resolve their claims on the merits. Basic notions of due process mandate that this case proceed,
if at all, in the District of Kansas.
In lieu of dismissing the claims against the Kansas Defendants, the court may exercise its
discretion and transfer the remaining claims and parties to the District of Kansas pursuant to 28
U.S.C. § 1631. That statute provides that if a court finds that it lacks personal jurisdiction, it
“shall, if it is in the interests of justice, transfer such action . . . to any other such court in which
the action . . . could have been brought at the time it was filed.” Cf. Doe v. May, 2015 WL
8519519, at *5; Reynolds v. Henderson & Lyman, No. 13-cv-03283-LTB, 2014 WL 5262174, at
*4-5 (D. Colo. Oct. 14, 2014). It would appear that Plaintiffs could have brought their claims
against the Kansas Defendants originally in that forum. I further find that transferring this action
to the District of Kansas would further the interests of justice, particularly if Plaintiffs’ claims
might be time-barred if filed anew in that jurisdiction. At this point, I cannot say with certainty
that Plaintiffs’ claims against the Kansas Defendants are “unlikely” to have merit, just as I will
not presume that Plaintiffs are pursuing their claims in bad faith. On balance, I recommend that
the action and the remaining claims against Defendants Gildner, Webb and Abney be transferred
to the District of Kansas.16
Accordingly, for the reasons set forth above, this court RECOMMENDS that the Motion
to Dismiss Amended Complaint (doc. #57) filed by Defendants Lesa Adame, Carl Garza, and
Douglas County be GRANTED and that the claims against those defendants be dismissed with
prejudice. I further RECOMMEND that Defendants Monica Gildner, Angela Webb, and Tina
Abney’s Motion to Dismiss First Amended Complaint with Memorandum in Support or, in the
alternative, Motion for Summary Judgment (doc. #65) be DENIED WITHOUT PREJUDICE,
and that this case and the claims against Defendants Gildner, Webb, and Abney be transferred to
the United States District Court for the District of Kansas pursuant to 28 U.S.C. § 1631.
DATED this 27th day of January, 2017.
BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge
In view of this Recommendation, the court need not address the substantive arguments
advanced in the Kansas Defendants’ motion to dismiss. Those arguments should be resolved by
the assigned judicial officer in the District of Kansas.
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