Gillis et al v. Phillips et al

Filing 53

ORDER by Magistrate Judge Michael E. Hegarty on 6/5/2017 granting 42 Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The Clerk of the Court is directed to remove Defendant Vernie from the caption of this case. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02704-MEH
JAMES GILLIS, and
CHRISTIE GILLIS, individually and on behalf of their minor children, AG, AW, JG, and WD,
Plaintiffs,
v.
PATRICIA PHILLIPS,
MELISSA GOSSETT,
ANDY LORENSEN,
CASSANDRA VERNIE, and
KIM BRITTON,
Defendants.
______________________________________________________________________________
ORDER ON DEFENDANT VERNIE’S MOTION TO DISMISS
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
In response to the Plaintiffs’ Amended Complaint, Defendant Cassandra Vernie has moved
to dismiss the Plaintiffs’ Fourth Amendment claims against her. In this Circuit, parents proceeding
pro se may not bring claims on behalf of their minor children; therefore, I must grant the motion to
dismiss all claims brought on behalf of AG, AW, JG, and WD against Defendant Vernie. In
addition, for the Plaintiffs’ lack of standing for their Fourth Amendment claims and failure state
Fourteenth Amendment claims against Defendant Vernie, I will grant the motion to dismiss the
Plaintiffs’ individual claims.1
BACKGROUND
Plaintiffs initiated this lawsuit on November 2, 2016, then filed the operative Second

1

The parties consented to this Court’s jurisdiction on April 18, 2017. ECF No. 40.

Amended Complaint on April 9, 2017 as a matter of course.2
I.

Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions, or

merely conclusory allegations) made by the Plaintiffs in the Second Amended Complaint, which are
taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
On April 20, 2016, the Lincoln County Department of Human Services (“DHS”) received
an anonymous “referral” concerning the Plaintiffs’ family. Certain DHS staff (“Red Team”)
conducted a meeting the following day on April 21, 2016. After the Red Team gathered all
information concerning the referral, it assigned a “High Risk” level to the referral, which was partly
based on information procured from previous DHS involvement with the Plaintiffs’ family. The
reason given for the referral and need for the “High Risk” level was that the victim, AW, was
restrained and punched by the alleged perpetrator, AW’s step dad, Plaintiff James C. Gillis. Only
one victim and only one allegation were noted.
On April 21–22, 2016, Defendant Case Worker Melissa Gossett, without parental consent
or a current court order, interviewed four of the Plaintiffs’ children in schools they were attending.
The Limon Public School secretary, Defendant Cassandra Vernie (“Vernie”), facilitated interviews
with three of the children, AW, AG, and JW, with no policy in place governing such interviews.
Limon Child Development Center staff member, Defendant Kim Britton, facilitated the interview
with the fourth child with no policy in place governing such interview. Much of the information
gathered from the interviews had nothing to do with the allegation or referral and has been

2

Plaintiffs filed duplicate copies of the Second Amended Complaint at ECF Nos. 38, 39.
2

documented for future use.
On April 21, 2016, Vernie was asked to escort AW, AG, and JW from their assigned
classrooms. Vernie instructed each child to leave the assigned classroom, follow her, and enter
another room where Defendant Gossett was present. Vernie did not inform the children where they
were going or why, or that they had a right not to participate. Vernie acted on her own with no law
and no Limon Public School policy or procedure in place to govern a visit from the Department of
Human Services. Vernie did not have authority to allow another governmental agency to remove
the children from the classrooms for interviews.
II.

Procedural History
Based on these factual allegations, Plaintiffs claim Vernie violated their Fourth Amendment

rights to be free from illegal seizures. Am. Compl., ECF No. 39 at 8. Plaintiffs request “the
maximum monetary amount allowed by law . . . in punitive damages,” as well as an order requiring
that Limon Public Schools “create policy to protect the Constitutional rights of the parents and the
children in the school setting.” Id. at 10.
Vernie filed the present motion arguing the Plaintiffs fail to state plausible claims for
violations of their own constitutional rights under the Fourth Amendment, the Plaintiffs may not
represent their children in this litigation, and the allegations taken as true do not demonstrate Vernie
violated the Fourth Amendment. In addition, Vernie claims she is entitled to qualified immunity in
her individual capacity.
Plaintiffs counter3 that their parental rights were violated when their children were

3

Plaintiffs filed duplicate copies of their response briefs at ECF Nos. 48, 50. These briefs
refer in the title and the introductory sentence to the motion to dismiss filed by Defendants Gossett,
Lorensen, and Phillips. Id. However, the content of the briefs reflects the Plaintiffs’ response to
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interviewed without notice or consent; they “should be allowed” to represent their children where
no attorney has expressed interest in taking the case; and, Vernie acted unreasonably and failed to
fulfill her duty to protect the children’s Fourth Amendment rights when she “seized” the children
to bring them to the interviews. Finally, Plaintiffs contend that, by failing to file a motion to dismiss
the original complaint, Vernie cannot now claim immunity based on the Second Amended
Complaint.
Vernie replies that Plaintiffs fail to cite any authority contradicting the argument that they
cannot bring claims based on their children’s constitutional rights; Tenth Circuit precedent holds that
parents may not represent their minor children in federal litigation; the focus of the “seizure” inquiry
under the Fourth Amendment is on the limitation of a student’s movement, not on the reason for the
limitation; and, the Plaintiffs’ cited authority was vacated by the Supreme Court, rejected by the
Sixth Circuit, and never adopted by the Tenth Circuit.
LEGAL STANDARDS
I.

Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis.
First, a court must identify “the allegations in the complaint that are not entitled to the assumption
of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely

Defendant Vernie’s motion to dismiss. Id.
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conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine
if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The
nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint,
the elements of each alleged cause of action may help to determine whether the plaintiff has set forth
a plausible claim. Khalik, 671 F.3d at 1191.
The adequacy of pleadings is governed by Federal Civil Procedure Rule 8(a)(2), which
requires that a complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal
citations omitted). Determining whether the allegations in a complaint are “plausible” is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. If the “well pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the complaint should be dismissed for failing to
“show[ ] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.

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II.

Treatment of a Pro Se Plaintiff’s Complaint
A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less

stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations
and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite
the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the
proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see
also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)).
ANALYSIS
Here, Vernie challenges the Plaintiffs’ theory that the Plaintiffs can (or “should be able to”)
represent their children in this litigation; that the allegations demonstrate the Plaintiffs, individually,
have been injured; and that the allegations demonstrate a plausibility Vernie violated the Fourth
Amendment. The Court will address each of these challenges in turn.
I.

May the Plaintiffs Represent Their Children in this Action?
“Fourth Amendment rights are personal rights which, like some other constitutional rights,

may not be vicariously asserted.” Rakas v. Ill. 439 U.S. 128, 133–34 (1978).

“Undoubtedly,

parents may assert their children’s Fourth Amendment rights on behalf of their children.”

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Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir. 1997) (emphasis in original). To do so, the
children must be named as plaintiffs. Id. (parent failed to demonstrate violation of children’s Fourth
Amendment rights because they were not named in the complaint). Here, the Plaintiffs properly
name their children as Plaintiffs in this action.
However, a pro se parent cannot represent his or her children in federal court for
constitutional claims. Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986). “In this circuit, we
have held ‘that under Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a minor child cannot bring suit
through a parent acting as next friend if the parent is not represented by an attorney.’” Adams ex rel.
D.J.W. v. Astrue, 659 F.3d 1297, 1300 (10th Cir. 2011) (quoting Meeker, 782 F.2d at 154).4 The
purpose of this rule is to “protect the interests of the minor party; in addition, it jealously guards the
judiciary’s authority to govern those who practice in courtrooms.” Id. (quoting Elustra v. Mineo,
595 F.3d 699, 705 (7th Cir. 2010)). Plaintiffs here are proceeding pro se and, thus, cannot bring
claims on behalf of their children. Their argument that they “should be able to” bring such claims
is not supported by any legal authority.
Accordingly, the Court will grant Vernie’s motion to dismiss the children’s Fourth
Amendment claims against her.
II.

Do the Allegations Support Plaintiffs’ Individual Fourth Amendment Claims?
Plaintiffs contend they bring claims not only on behalf of their children, but on behalf of

themselves. The Fourth Amendment guarantees: “The right of the people to be secure in their

4

In Adams, the court found that a non-attorney parent could proceed pro se in federal court
on behalf of her minor child to challenge the denial of social security benefits, because “the reasons
for the general rule do not apply to [ ] appeals [from administrative denials].” 659 F.3d at 1300.
Adams’ exception to the general rule does not apply to this case.
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persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized.” Minn.
v. Carter, 525 U.S. 83, 88 (1998). The Amendment protects persons against unreasonable searches
of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that
must be invoked by an individual. Id. (citing Katz v. United States, 389 U.S. 347, 351 (1967)
(“[T]he Fourth Amendment protects people, not places”)).
While a Fourth Amendment right typically must be invoked by the individual possessing
it, the Tenth Circuit noted that there may be circumstances in which a parent has standing to bring
a Fourth Amendment claim for the seizure of a minor child, but the parent must “allege [his or] her
own distinct injuries” as a result of the seizure. J.B. v. Washington Cnty., 127 F.3d 919, 928 (10th
Cir. 1997). The Ninth Circuit mentioned this note, but determined that a child’s removal from
parental custody invoked his or her Fourth Amendment rights against seizure and, separately, the
parents’ Fourteenth Amendment rights against interference with the right to familial association.
Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000); see also J.B., 127 F.3d at 928 (“it is
clear that constitutional protection afforded a parent against a child’s seizure [from her home to be
interviewed for possible child abuse] may be found in the Fourteenth Amendment”).
Although the Plaintiffs raise both Fourth and Fourteenth Amendment claims against other
Defendants in this case, they specifically assert their claims against Vernie under the Fourth
Amendment. Am. Compl. 8. However, in light of the Plaintiffs’ pro se status in this case, the Court
will construe their claims in accordance with the factual allegations and their corresponding
arguments. Hall, 935 F.2d at 1110.

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Plaintiffs allege that Vernie “was asked on April 21, 2016 to seize/escort our children AW,
AG, and JW from their assigned Classrooms . . ., follow her[,] and to enter another room where DHS
Case Worker Melissa Gossett was present.” Am. Compl. 8. Plaintiffs argue that their individual
rights were violated when “the Limon Public School failed to inform [them] that [the school] would
allow the Department of Human Services to seize their children to interview them” and the
Eighteenth Judicial District “court order that [was] issued approximately 6 years prior to the referral
date cannot be issued upon probable cause, cannot be supported by oath or affirmation, and did not
describe the person to be seized.” Resp. 6–7.
The Court finds these allegations, construed liberally and taken as true, do not implicate the
Plaintiffs’ Fourteenth Amendment rights against interference with familial association. Unlike those
cases involving alleged violations of Fourteenth Amendment rights, Vernie was not alleged to have
separated the Plaintiffs’ children from their parents or removed them from their home. See J.B., 127
F.3d at 927 (“plaintiffs have a substantial interest in the right to associate with their family.”);
Wallis, 202 F.3d at 1136 (“Parents and children have a well-elaborated constitutional right to live
together without governmental interference.”). Therefore, the Court will not infer any claims by the
Plaintiffs brought against Vernie under the Fourteenth Amendment.
Supporting their individual claims under the Fourth Amendment, the Plaintiffs allege that,
as a result of Vernie’s “seizure” of the children for interviews, they, as parents, were “stigmatized”
and the seizure caused them “to question authority.” Am. Compl. 8. However, they request no
recovery for any emotional or mental harms, but seek only “punitive damages from the Limon
Public Schools.” Id. at 10. Moreover, the Plaintiffs proffer no argument in response to the motion
to dismiss concerning their alleged injuries resulting from the seizure.

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Under these circumstances, I find the Plaintiffs have failed to allege an “injury in fact”
necessary to confer standing for their Fourth Amendment claims against Vernie. See J.B., 127 F.3d
at 928. “To satisfy Article III standing requirements, a plaintiff must show that he or she suffered
an ‘injury in fact,’ that is, an injury that is both concrete and particularized and actual or imminent.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Even taking them as true, allegations that
Vernie’s purported seizure of the children—to escort them from their classrooms to another room
where Defendant Gossett awaited an interview with them—placed a “stigmatism”5 on the family and
“caused the children and parents to question authority” are merely bare assertions, do not describe
injuries that are either concrete or particular, and fail to meet the requirements of Fed. R. Civ. P. 8.
Without standing to bring their Fourth Amendment claims against Vernie, the Plaintiffs have
failed to demonstrate this Court’s jurisdiction over such claims. See Morris v. Khadr, 415 F. Supp.
2d 1323, 1329 (D. Utah 2006) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541
(1986)) (“Because standing is a constitutional component of a federal court’s subject matter
jurisdiction, federal courts must ascertain in each case whether the parties have standing to present
their claims.”). Accordingly, the Court will grant Vernie’s motion to dismiss the Plaintiffs’ Fourth
Amendment claims against her for the Court’s lack of subject-matter jurisdiction.6

5

The Court assumes the Plaintiffs intended to use the term, “stigma,” which is defined as “a
mark of shame or discredit.” https://www.merriam-webster.com/dictionary/stigma (last visited May
31, 2017).
6

“Federal courts ‘have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party,’ and thus a court may sua
sponte raise the question of whether there is subject matter jurisdiction ‘at any stage in the
litigation.’” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006)
(citing Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006)).
The Court’s analysis in this regard presents a “facial” attack on the complaint’s allegations
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In light of this order, the Court will not proceed to analyze whether Vernie’s conduct
constituted a “seizure” under the Fourth Amendment pursuant to Fed. R. Civ. P. 12(b)(6).
CONCLUSION
The Court concludes the Plaintiffs may not bring claims on behalf of their children without
legal representation, their allegations against Vernie do not state Fourteenth Amendment claims, and
they lack standing to bring individual Fourth Amendment claims against Vernie. Therefore,
Defendant Cassandra Vernie’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) [filed April
24, 2017; ECF No. 42] is granted. The Clerk of the Court is directed to remove Defendant Vernie
from the caption of this case.
Dated at Denver, Colorado, this 5th day of June, 2017.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

as to the Court’s subject matter jurisdiction, which questions the sufficiency of the complaint. See
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). In reviewing a facial attack on the
complaint, I must accept the allegations in the complaint as true. Id.
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