Alvarado v. Najera et al
Filing
125
ORDER by Chief Judge Philip A. Brimmer on 3/12/2019, re: 70 County Defendants' Motion to Dismiss Second Amended Complaint and Jury Demand is GRANTED in part and DENIED in part; 96 County Defendants' Objection to United States Magistrate Judge's Order Re Motion to Stay Discovery is OVERRULED as moot. ORDERED that the second claim for relief asserted by plaintiff The Estate of Angel Goodwin is dismissed without prejudice as to defendant Jefferson C ounty Human Services. ORDERED that the second claim for relief asserted by plaintiff The Estate ofAngel Goodwin is dismissed with prejudice as to defendant Board of CountyCommissioners for Jefferson County, Colorado. ORDERED that the th ird claim for relief asserted by plaintiff The Estate of Angel Goodwin is dismissed with prejudice as to defendant Jefferson County Human Services. ORDERED that defendant Jefferson County Human Services is dismissed from this lawsuit. (sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 17-cv-01124-PAB-SKC
THE ESTATE OF ANGEL GOODWIN, by and through Shawn Alvarado, personal
representative, and
SHAWN ALVARADO, individually,
Plaintiffs,
v.
MONICA CONNELL,
BOARD OF COUNTY COMMISSIONERS FOR JEFFERSON COUNTY COLORADO,
and
JEFFERSON COUNTY HUMAN SERVICES,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the County Defendants’ Motion to Dismiss
Second Amended Complaint and Jury Demand [Docket No. 70] filed by defendants
Monica Connell, Jefferson County Human Services (“JHS”), and the Board of County
Commissioners for Jefferson County, Colorado (“BCC”). The Court has jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1367.
I. BACKGROUND1
This case arises out of the drowning death of a ten-year-old boy, Angel Goodwin,
on May 6, 2015. Docket No. 103 at 2, ¶ 1. Angel was born prematurely on January 12,
2005. Id. at 6, ¶¶ 25-26. From the date of his birth, Angel was “completely disabled
1
The facts stated below are taken from plaintiffs’ substituted second amended
complaint (“second amended complaint”), Docket No. 103, and are presumed to be true
for purposes of the motion to dismiss.
physically and developmentally” and “was totally reliant on others for round the clock
care.” Id. at 6, ¶¶ 26-27. In August 2005, Jefferson County placed Angel in the custody
of his grandmother, Onesia Najera. Id. at 2, ¶ 2. Beginning in 2006, county-level
human services agencies in Denver, Adams, and Jefferson Counties received reports
that Ms. Najera was abusing Angel and his siblings, who were also in Ms. Najera’s care.
Id. at 7, ¶ 31. After Ms. Najera’s return to Jefferson County in 2014, id., ¶ 35, Jefferson
County Human Services was made aware of numerous complaints alleging that Ms.
Najera was leaving the children at home alone, leaving Angel in the care of his young
siblings and/or locked in a dark closet, failing to provide the children with adequate
food, and engaging in drug use and prostitution. Id. at 9, ¶ 54. The complaints came
from a variety of sources, including Ms. Najera’s neighbor, Angel’s school teacher, Ms.
Najera’s brother, and Ms. Najera herself, who informed Wheat Ridge police that there
was violence in the home. See id. at 10-12, 15-16, 28, ¶¶ 58, 65, 67-68, 70, 91, 159.
Many of these complaints were classified under Colorado Department of Human
Services regulations as High Risk Assessments (“HRAs”). Id. at 2, 8, 11, ¶¶ 5, 42, 69.
HRAs must be completed with a finding within sixty days. Id. at 8, ¶ 48. Defendant
Monica Connell, a caseworker with Jefferson County Human Services, became the lead
investigator on these complaints in January 2015. Id. at 11, ¶ 69. Ms. Connell had
access to all previous complaints against Ms. Najera through the statewide system for
tracking reports of child abuse (the “Trails” system). Id. at 7, 12, ¶¶ 37-38, 71.
As early as February 2015, Ms. Connell determined that a “Dependency and
Neglect proceeding was required to protect Angel and the other children in Ms. Najera’s
2
care.” Id. at 3, ¶ 6. However, she engaged in “procedural manipulations to avoid
carrying out that decision.” Id. Specifically, Ms. Connell would “close one investigation
after another as ‘inconclusive,’” and move “[complaints] over into [other], not yet
expired, investigation[s]” in order to extend statutory deadlines. Id. at 13-14, 51, ¶¶ 83,
293. Final decision-makers for Jefferson County expressly approved of these
procedural tactics. Id. at 33, ¶ 188. Ms. Connell also made “multiple recommendations
that a case not be opened” and that Ang el “remain in the custody of Onesia Najera.” Id.
at 52, ¶ 295. Throughout this process, Ms. Najera repeatedly failed to comply with
mandatory drug testing and other requests made to her by Ms. Connell. See id. at 19,
21, 24, ¶¶ 108, 116-17, 134.
On May 6, 2015, Angel drowned when Ms. Najera left him unattended in a bath.
Id. at 32, ¶¶ 179. Ms. Najera was high on drugs at the time. Id. at 32, ¶¶ 179, 184.
Plaintiffs – Angel’s estate (“Estate”) and Angel’s father, Shawn Alvarado – filed this
lawsuit on May 5, 2017. Docket No. 1. The operative complaint, filed on January 9,
2018, asserts claims under 42 U.S.C. § 1983 against Ms. Connell, the Board of County
Commissioners for Jefferson County, and Jefferson County Human Services for the
violation of Angel’s substantive due process rights under the Fourteenth Amendment.
See Docket No. 103 at 49-56. The complaint also asserts a claim under section 504 of
the Rehabilitation Act against BCC and JHS, and a claim for wrongful death against Ms.
Connell. See id. at 56-58.2
2
While the complaint also asserts claims against Personal Assistance Services
of Colorado, Inc. d/b/a PASCO, all claims against PASCO were dismissed with
prejudice before the filing of the substituted second amended complaint. See Docket
Nos. 95, 99. It therefore appears that the claims against PASCO were included in the
3
Defendants Connell, BCC, and JHS (the “county defendants”) moved to dismiss
the complaint under Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6). Docket No. 70. 3
Plaintiffs filed a response to the motion on January 10, 2018, Docket No. 104, to which
defendants replied on January 24, 2018. Docket No. 107. 4
II. LEGAL STANDARD
Defendants move to dismiss pursuant to Rules 12(b)(1), 12(b)(5), and 12(b)(6) of
the Federal Rules of Civil Procedure. Dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over
claims for relief asserted in the complaint. Rule 12(b)(1) challenges are generally
presented in one of two forms: “[t]he moving party may (1) facially attack the
complaint’s allegations as to the existence of subject matter jurisdiction, or (2) go
beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin.
Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan,
351 F.3d 1001, 1013 (10th Cir. 2003)). W hen reviewing the factual basis on which
subject matter jurisdiction rests, the district court does not presume the truthfulness of
substituted second amended complaint in error.
3
Although the operative complaint was filed after defendants’ motion to dismiss,
see Docket No. 103, the parties agreed that the amended allegations did not affect the
pending motion. See Docket No. 97 at 2, ¶ 5.
4
Each of the claims in this case is asserted against only certain defendants. In
addition, the wrongful death claim is asserted only by plaintiff Alvarado and the § 1983
and Rehabilitation Act claims are asserted only by plaintiff Estate. Nonetheless, for
purposes of ease and consistency, the Court will use the terms “plaintiffs” and
“defendants” in resolving the motion to dismiss as to each claim.
4
the complaint and “has wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted).
Consideration of evidence outside the pleadings does not convert the motion to a Rule
56 motion. Id.
Federal Rule of Civil Procedure 12(b)(5) allows for dismissal of an action without
prejudice based on insufficient service of process. Under Fed. R. Civ. P. 4(m),
“[i]f a defendant is not served within 90 days after the complaint is filed, the court . . .
must dismiss the action without prejudice against that defendant or order that service
be made within a specified time” unless the plaintiff shows good cause for the delay. A
court applying these rules engages in a two-part inquiry. See Moore v. Teamsters
Local 41, 2015 WL 859074, at *2 (D. Kan. Feb. 27, 2015). First, the court determ ines
whether the plaintiff has shown good cause for his failure to timely serve the defendant.
Id. If good cause is shown, then an extension of the time for service of process is
mandatory. See Fed. R. Civ. P. 4(m); see also Thunder Mountain Custom Cycles, Inc.
v. Thiessen, No. 06-cv-02527-EWN-BNB, 2008 WL 618898, at *6 (D. Colo. Mar. 5,
2008). If good cause is not shown, then the court proceeds to the second step of the
analysis and determines whether a permissive extension is warranted. See Moore,
2015 WL 859074, at *2.
In contrast to motions to dismiss brought under Fed. R. Civ. P. 12(b)(1) and
12(b)(5), a motion under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the
complaint. To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
5
Civil Procedure, a complaint must allege enough factual matter that, taken as true,
makes the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged–but it has not shown–that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration m arks
omitted ).
III. ANALYSIS
A. Eleventh Amendment Immunity
Defendants argue that plaintiffs’ § 1983 claims against BCC and JHS are barred
by Eleventh Amendment immunity. Docket No. 70 at 12. 5
5
Defendants do not seek dismissal of plaintiffs’ Rehabilitation Act claims on
immunity grounds. See Docket No. 70 at 11-12; Docket No. 104 at 13 n.12; see also
Arbogast v. Kan., Dep’t of Labor, 789 F.3d 1174, 1183 (10th Cir. 2015) (noting that
“receipt of funds under the Rehabilitation Act is a valid waiver of [Eleventh Amendment]
6
“Only a state or ‘arms’ of a state may assert the Eleventh Amendment as a
defense to suit in federal court.” Sutton v. Utah State School for the Deaf & Blind , 173
F.3d 1226, 1232 (10th Cir. 1999). In determ ining whether a political subdivision
constitutes an “arm of the state,” courts consider five factors: (1) the characterization of
the governmental unit under state law; (2) the guidance and control exercised by the
state over the governmental unit; (3) the funding that the governmental unit receives
from the state; (4) the governmental unit’s ability to issue bonds and levy taxes on its
own behalf; and (5) the state’s legal liability to pay a judgment against the governmental
unit. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017). 6 The final factor, which
the Tenth Circuit has characterized as the most significant, see Duke, 127 F.3d at 974
(noting that the “most salient factor” is the “vulnerability of the State’s purse”), focuses
on a state’s “legal liability for a judgment, rather than [on the] practical, or indirect,
impact a judgment would have on a state’s treasury.” Sturdevant v. Paulsen, 218 F.3d
1160, 1164 (10th Cir. 2000). Applying the factors identified above (the “Mount Healthy
factors”),7 defendants argue that both JHS and BCC constitute “arms of the state” for
immunity” (emphasis omitted)).
6
The Tenth Circuit has alternatively framed the four factors as a two-part inquiry:
“The court first examines the degree of autonomy given to the agency, as determined
by the characterization of the agency by state law and the extent of guidance and
control exercised by the state. Second, the court examines the extent of financing the
agency receives independent of the state treasury and its ability to provide for its own
financing.” Duke v. Grady Mun. Schs., 127 F.3d 972, 974 (10th Cir. 1997) (internal
quotation marks and brackets omitted).
7
The Supreme Court set forth the factors relevant to the Eleventh Amendment
immunity analysis in Mount Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977). The original test appears to have included only the first four
factors identified above. See Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at
7
Eleventh Amendment immunity purposes.
1. JHS
Courts in this District have consistently applied the Mount Healthy factors to hold
that county departments of human services constitute “arms of the state” for purposes
of Eleventh Amendment immunity. See Schwartz v. Jefferson Cty. Dep’t of Human
Servs., No. 09-cv-00915-WJM-KMT, 2011 WL 1843309, at *2 (D. Colo. May 16, 2011)
(collecting cases); see also T.D. v. Patton, 149 F. Supp. 3d 1297, 1308-09 (D. Colo.
2016) (holding that the Denver Department of Human Services constitutes an “arm of
the state” for purposes of Eleventh Amendment immunity); Starkey v. Boulder Cty. Soc.
Servs., No. 06-cv-00659-LTB-PAC, 2006 WL 8073690, at *4-5 (D. Colo. Nov. 21, 2006)
(holding that Boulder County Social Services constitutes an “arm of the state”); Pierce
v. Delta Cty. Dep’t of Soc. Servs., 119 F. Supp. 2d 1139, 1148 (D. Colo. 2000) (f inding,
based on reasoning in Wigger v. McKee, 809 P.2d 999 (Colo. App. 1990), that Delta
Social Services was an “arm of the state” for Eleventh Amendment immunity purposes).
In addition, courts have noted the “long line of state precedent” reaching the same
conclusion. See Schwartz, 2011 WL 1843309, at *2 (citing cases demonstrating “that
county departments of human services are mere agencies and divisions of the State
Department of Human Services”); see also Wigger, 809 P.2d at 1004-05 (holding that
the Arapahoe County Department of Social Services is an “arm of the state” for
purposes of the Eleventh Amendment).
280-81; Sutton, 173 F.3d at 1232 (identifying four factors relevant to immunity analysis).
The Tenth Circuit has since added the fifth factor. See Sturdevant, 218 F.3d at 1164
(identifying “state treasury liability” as a separate factor). For simplicity, this order will
refer to all five factors as the “Mount Healthy factors.”
8
In Schwartz, the district court found that the factors supported a finding that the
Jefferson County and Denver County Departments of Human Services constituted
“arms of the state” for purposes of Eleventh Amendment immunity. See 2011 WL
1843309, at *3-5. With respect to the first factor, the court found that Colorado law
characterizes county departments of human services as agents of the state. See id. at
*3 (citing Colo. Rev. Stat. § 26-1-118(1) (2010) and 11 Colo. Code Regs. § 2508-1,
5.231); see also Colo. Rev. Stat. § 26-1-118(1) (“The county departments or other state
designated agencies . . . shall serve as agents of the state department.”). The court
found that the second factor also supported such a finding because the county
departments are “charged with the administration of public assistance and welfare . . .
in accordance with the rules and regulations of the state department.” Schwartz, 2011
WL 1843309, at *3 (citing Colo. Rev. Stat. § 26-1-118(1)). In reaching this conclusion,
the court rejected the plaintiffs’ argument that the county human services agencies
were not agents of the state because they exercise significant autonomy in personnel
and budgetary decisions. See id. The court acknowledged the existence of some
degree of local control, but found that “a careful review” of the statutory provisions
demonstrated that the ultimate decision-making and regulatory authority rested with the
state. Id. at *4; see also Sturdevant, 218 F.3d at 1168 (finding that, “although the
Board enjoy[ed] a significant degree of autonomy,” the “state control” factor weighed in
favor of immunity because the Board’s decisions were subject to state approval and
“[t]he Board [was] itself the state’s instrumentality of control over local and regional
educational institutions”). As to the third Mount Healthy factor, the court gave
9
substantial weight to the fact that “Colorado law requires the state to provide eighty
percent of the county services departments’ total budgets.” Schwartz, 2011 WL
1843309, at *5; see also Freeman v. White, No. 05-cv-00164-EWN-CBS, 2006 WL
2793139, at *10 (D. Colo. Sept. 28, 2006) (noting that “the state fisc is the predominant
source of funding for” the Denver Department of Human Services and that “eighty
percent of the overall cost of the programs administered by the county departments
comes from the state department of human services”). Finally, the court concluded that
there was no dispute that county human services agencies lack the power to issue
bonds and levy taxes and thus the fourth Mount Healthy factor weighed in favor of a
finding that the defendants were arms of the state for immunity purposes. Id.
The Court finds the analysis in Schwartz persuasive and adopts it here. W hile
plaintiffs make several arguments for why JHS does not constitute an “arm of the state,”
none of those arguments address the court’s analysis in Schwartz or mandate a
different outcome. Plaintiffs first contend that JHS is not an arm of the state because it
is subject to county-level political control, serves a finite geographic area, and has
“substantial operational and financial autonomy” with respect to personnel decisions,
the administration of child-protective programs and policies, and the management of its
own budget. See Docket No. 104 at 14. These arguments pertain to the second Mount
Healthy factor – the degree of state control. In Schwartz, however, the court rejected
similar arguments, finding that the level of autonomy enjoyed by county human services
departments does not outweigh the fact that the state retains ultimate decision-making
authority over most issues. See 2011 WL 1843309, at *3-4; see also Colo. Rev. Stat.
10
§ 26-1-107(10) (providing that the “state board shall fix minimum standards and
qualifications for county department personnel . . . and establish salary schedules
based upon prevailing wages for comparable work”); Colo. Rev. Stat. § 26-1-123(3)(a)
(providing that the “county board shall administer the [county social services fund]
pursuant to rules adopted by the state department”); Colo. Rev. Stat. § 26-1-124(2)
(providing that, before a county social services “budget is adopted by the board of
county commissioners, it shall be submitted by the county board to the state
department for review”). The Court agrees with the reasoning in Schwartz and finds
that the state control factor weighs in favor of Eleventh Amendment immunity.
Plaintiffs also argue that JHS “is defended at the County Attorney level and
would likely pay any damage awards out of the county-created and county-administered
fund.” Docket No. 104 at 14. W hile Schwartz did not explicitly address the issue of the
state’s legal liability, multiple courts considering whether county human services
departments in Colorado are entitled to Eleventh Amendment immunity have found this
factor to be inconclusive. See, e.g., T.D., 149 F. Supp. 3d at 1300 (noting that “the
statutory law governing human services in Colorado provides no guidance on” whether
the state would be legally liable for a judgment entered against a county human
services department); Freeman, 2006 WL 2793139, at *10 (noting that “the state law
issue as to the ultimate liability for any judgment against [Denver Department of Human
Services] remains uncertain”); Wigger, 809 P.2d at 1004 (“Because no provision has
been made for the county departments to have their own funds to satisfy judgments
against them, it appears that they would look to the statutory treasury for such.”).
Plaintiffs here allege that the “State of Colorado does not, and is not required to
11
indemnify . . . Jeffco Human Services for . . . monetary judgments.” Docket No. 103 at
48, ¶ 263. However, indemnification is separate from the issue of direct liability, with
only the latter weighing in favor of a finding that a governmental unit is entitled to
immunity. See Pierce, 119 F. Supp. 2d at 1147 (stating that the “key question”
addressed by the third and fourth Mount Healthy factors is “whether funds to satisfy a
money judgment come directly from the state or indirectly through commingled state
and local funds or state indemnification provisions”). The parties do not otherwise cite
any authority conclusively resolving the state’s legal liability for money judgments
entered against JHS. Nevertheless, the Court need not decide the issue. Because the
remaining Mount Healthy factors weigh in favor of a finding that county human services
departments are arms of the state, the Court agrees that JHS is entitled to Eleventh
Amendment immunity with respect to plaintiffs’ § 1983 claims. See Sturdevant, 218
F.3d at 1166 (declining to resolve issue of state’s legal liability where remaining factors
weighed in favor of finding that the defendant was entitled to immunity).8
8
In arguing that JHS is not an arm of the state for Eleventh Amendment immunity
purposes, plaintiffs rely on a recent decision from another court in this District in which
the court identified “three issues that, if properly raised, argued, and supported” could
result in a finding that a county human services department is an arm of the state. T.D.,
149 F. Supp. 3d at 1308 n.7. Those issues are: (1) the state’s legal liability for a
judgment entered against the county department; (2) the weight and applicability of
local-level political control; and (3) the relevance of the Colorado Supreme Court’s
holding in Davidson v. Sandstrom, 83 P.3d 648 (Colo. 2004), that judicial districts are
political subdivisions of the state because they represent “a finite geographical area.”
T.D., 149 F. Supp. 3d at 1308 n.7. However, T.D. does not ultimately support plaintiffs’
position. Notwithstanding its discussion of the above issues, the court in T.D. found
that the Denver Department of Human Services was entitled to Eleventh Amendment
immunity. Plaintiffs have not cited any cases relying on T.D. to hold that a county
human services department is not an arm of the state.
12
2. BCC
Defendants argue that the same rationale for finding that JHS is an arm of the
state applies to BCC. Docket No. 70 at 13. Specif ically, defendants contend that the
county social services budget must be reviewed by the state prior to approval by BCC.
Id. But this argument pertains to JHS’s arm-of-the-state status, not BCC’s. BCC is the
governing body of Jefferson County and the proper defendant in any lawsuit against the
county. See Colo. Rev. Stat. § 30-11-105 (“In all suits or proceedings by or against a
county, the name in which the county shall sue or be sued shall be, ‘The board of
county commissioners of the county of . . . .’”). It is well established that counties are
not entitled to Eleventh Amendment immunity. See Lake Country Estates, Inc. v.
Tahoe Reg’l Planning Agency, 440 U.S. 391, 401 (1979) (“[T]he Court has consistently
refused to construe the [Eleventh] Amendment to afford protection to political
subdivisions such as counties and municipalities, even though such entities exercise a
‘slice of state power.’”); Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 280
(“The bar of the Eleventh Amendment to suit in federal courts extends to States and
state officials in appropriate circumstances, but does not extend to counties and similar
municipal corporations.” (internal citations omitted)). Defendants do not cite any
authority to the contrary. Accordingly, the Court finds that BCC is not entitled to
dismissal of plaintiffs’ § 1983 claims on the basis of Eleventh Amendment immunity.9
9
While defendants cite Cuin v. Adams County Board of County Commissioners,
No. 10-cv-01704-PAB-MEH, 2011 WL 2683116 (D. Colo. July 11, 2011), for the
proposition that boards of county commissioners are “arms of the state” for Eleventh
Amendment immunity purposes, the Court did not need to address the issue in that
case because it was undisputed by the parties. See id. at *3.
13
B. Statute of Limitations
Defendants move to dismiss all claims on the ground that they are barred by the
applicable statute of limitations. Docket No. 70 at 1-2. The Tenth Circuit has “made
clear that the statute of limitations for § 1983 actions brought in Colorado is two years
from the time the cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006). A two-year limitations period also applies to Rehabilitation Act and
wrongful death claims. See Ulibarri v. City & Cty. of Denver, 742 F. Supp. 2d 1192,
1213 (D. Colo. 2010) (Rehabilitation Act claims); Colo. Rev. Stat. § 13-80-102(1)(d)
(wrongful death claims).
Defendants do not dispute that plaintiffs’ original complaint was filed within the
two-year statute of limitations. See Docket No. 70 at 2 (stating that all causes of action
were time-barred as of May 6, 2017); Docket No. 1 (complaint filed on May 5, 2017).
However, they contend that the claims asserted in plaintiffs’ second amended complaint
do not relate back to the filing of the original complaint and were therefore time-barred
as of May 6, 2017. See Docket No. 70 at 2-3.
Federal Rule of Civil Procedure 15(c)(1) governs the relation back of amended
pleadings. Under that rule,
[a]n amendment to a pleading relates back to the date of the original
pleading when: (A) the law that provides the applicable statute of
limitations allows relation back; (B) the amendment asserts a claim or
defense that arose out of the conduct, transaction, or occurrence set out –
or attempted to be set out – in the original pleading; or (C) the
amendment changes the party or the naming of the party against whom a
claim is asserted if Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment: (i) received such notice of the action that
it will not be prejudiced in defending on the merits; and (ii) knew or should
14
have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.
Fed. R. Civ. P. 15(c)(1). With regard to subsection (B), courts in this circuit have
summarized the relation back rule as follows:
As a general rule, amendments will relate back if they amplify the facts
previously alleged, correct a technical defect in the prior complaint, assert
a new legal theory of relief, or add another claim arising out of the same
facts. For relation back to apply, there is no additional requirement that
the claim be based on an identical theory of recovery. On the other hand,
amendments generally will not relate back if they interject entirely different
facts, conduct, transactions or occurrences. It is a matter committed to
the district court’s sound discretion to decide whether a new claim arises
out of the same transaction or occurrence.
Benton v. Bd. of Cty. Comm’rs, No. 06-cv-01406-PSF-MEH, 2007 WL 4105175, at *3
(D. Colo. Nov. 14, 2007) (quoting Kidwell v. Bd. of Cty. Comm’rs of Shawnee Cty., 40 F.
Supp. 2d 1201, 1217 (D. Kan. 1998)).
Defendants contend that the claims asserted in the second amended complaint
do not relate back to the filing of the original complaint under Rule 15(c)(1) because: (1)
the second amended complaint includes new facts, Docket No. 70 at 3-4; and (2)
plaintiffs assert new claims against BCC, JHS, and Ms. Connell. Docket No. 107 at 2.
Plaintiffs respond that all of the claims asserted in the second amended complaint were
included in the original complaint and that, even if any of the claims could be construed
as new, they all arise out of the same factual context. Docket No. 104 at 15-16. 10
10
Plaintiffs state that “[d]efendants have authorized undersigned counsel to
represent they are not arguing that [BCC and JHS] did not have notice that this action
was filed against them.” Id. at 15 n.14. In their reply brief, however, defendants clarify
that BCC and JHS “do not contest that they had notice of this action – not that the
action was filed against them.” Docket No. 107 at 2 n.2.
15
1. Allegations Against BCC and JHS
Defendants argue that, because the factual bases for plaintiffs’ municipal liability
and Rehabilitation Act claims were not asserted in the initial complaint, these claims do
not relate back to the original filing date. See Docket No. 70 at 2-3.
Plaintiffs’ second amended complaint asserts a municipal liability claim against
BCC and JHS based on “the multiple supervisory approvals of Defendant Connell’s
procedural actions,” which, plaintiffs allege, evince “customs, habits and practices which
condoned the use of subsequent complaints to extend the time for investigation.”
Docket No. 103 at 54, ¶ 311. 11 However, the original complaint did not assert a
municipal liability claim against any of the government defendants. Nor did it contain
any allegations regarding supervisory approvals or the existence of a municipal policy,
practice, or custom sufficient to confer liability on the municipal defendants directly.
Because plaintiffs’ municipal liability claim “interject[s] entirely different facts” and
conduct, it does not satisfy the requirements for relation back under Rule 15(c)(1)(B).
See Benton, 2007 WL 4105175, at *4 (finding that plaintiff’s Fifth Amendment due
process claim did not relate back to the filing of the original complaint because
“plaintiff’s original complaint [did] not describe any conduct, transactions or occurrences
that would support a claim that plaintiff’s termination violated her due process rights”).
Plaintiffs do not dispute that the statute of limitations on their § 1983 claims expired on
May 6, 2017. See generally Docket No. 104 at 15-16. Given that the municipal liability
claim was not asserted until October 25, 2017, see Docket No. 63, the Court finds that
11
Plaintiffs’ municipal liability claim against JHS is barred by Eleventh
Amendment immunity and thus will not be considered here.
16
it is time-barred under the two-year statute of limitations applicable to § 1983 claims.12
The Court reaches a different conclusion as to the Rehabilitation Act claim. In
their original complaint, plaintiffs asserted a Rehabilitation Act claim against the State of
Colorado, the state Department of Human Services, and the Department of Health Care
Policy and Financing alleging that “the regulatory scheme employed by these
Defendants failed in its essential purpose of providing for Angel’s health, safety, and
wellbeing.” Docket No. 1 at 17. Specifically, plaintiffs asserted that the regulatory
scheme “actually allowed and failed to safeguard for PASCO hiring a known drug
addict, prostitute, drug trafficker[, and] violent offender” to care for Angel, thereby
denying him “any semblance of equal access to competent medical assistance.” Id. at
18, ¶ 58. Elsewhere in the complaint, plaintiffs alleged facts showing that the
government defendants – including employees of Jefferson County – failed to respond
to numerous reports of child abuse against Ms. Najera. See, e.g., Docket No. 1 at 2-3,
¶¶ 6-7, 17-18. In their second amended complaint, plaintiffs assert that BCC and JHS
violated Angel’s rights under the Rehabilitation Act by “den[ying him] a valid and timely
investigation, conclusion and related action in response to the serious complaints of
child abuse received by Jefferson County.” Docket No. 103 at 56, ¶ 326. The Court
finds that plaintiffs’ amended Rehabilitation Act claim arises out of the same conduct
alleged in the original complaint, namely, the failure of various government entities to
take appropriate action in response to complaints of child abuse against Ms. Najera.
12
Because the Court finds plaintiffs’ municipal liability claim to be time-barred, the
Court need not determine whether plaintiffs have stated a claim for municipal liability
under Fed. R. Civ. P. 12(b)(6). See Docket No. 70 at 14 (arguing that plaintiffs’ § 1983
claim against BCC should be dismissed for failure to state a claim).
17
Because plaintiffs did not assert a Rehabilitation Act claim against BCC or JHS
in the original complaint, the Court must next determine whether defendants received
adequate notice of the claim under Rule 15(c)(1)(C). Rule 15(c)(1)(C) contains two
requirements: first, that the new party have “received such notice of the action that it will
not be prejudiced in defending on the merits”; and second, that the party “knew or
should have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.” BCC and JHS do not contest that they
had notice of the lawsuit. Docket No. 107 at 2 n.2. Accordingly, the only issue is
whether plaintiffs have satisfied the second requirement under Rule 15(c)(1)(C)(ii).
The Court finds that Rule 15(c)(1)(C)(ii) is satisfied as to BCC. The original
complaint named “The County of Jefferson Colorado” as a defendant. Docket No. 1. It
is well established that Colorado law requires a claim against a county to be asserted
against the Board of County Commissioners. Grady v. Jefferson Cty., Colo., No. 07-cv01191-WDM-CBS, 2008 WL 178923, at *2 (D. Colo. Jan. 17, 2008); see also Colo.
Rev. Stat. § 30-11-105 (“In all suits or proceedings by or against a county, the name in
which the county shall sue or be sued shall be, ‘The board of county commissioners of
the county of . . . .’”). Accordingly, BCC “knew or should have known that the action
would have been brought against it, but for a mistake concerning the proper party’s
identity.” Fed. R. Civ. P. 15(c)(1)(C)(ii); see also Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 548 (2010) (“The question under Rule 15(c)(1)(C)(ii) is . . . whether Costa
Crociere knew or should have known . . . that it would have been named as a
defendant but for an error.”).
18
Likewise, BCC knew or should have known that plaintiffs would have asserted
their Rehabilitation Act claim against Jefferson County/BCC but for a pleading mistake
in the original complaint. Two facts support this conclusion: first, none of the claims in
the original complaint were asserted against either county defendant named in the
complaint; second, the Rehabilitation Act claim was asserted against all the other
government entities responsible for Angel’s continued placement in Ms. Najera’s home.
These facts demonstrate one of three possibilities: (1) that plaintiffs mistakenly omitted
the county defendants from the claim-specific allegations; (2) that plaintiffs viewed the
county defendants as being inseparable from the state entities; or (3) that plaintiffs
misunderstood the role of the county defendants in the events giving rise to their
claims. Such mistakes do not “foreclose a finding that Rule 15(c)(1)(C)(ii) has been
satisfied.” Krupski, 560 U.S. at 549. Accordingly, plaintiffs’ Rehabilitation Act claim
against BCC is not subject to dismissal on statute of limitations grounds.
The Court reaches the opposite conclusion with respect to JHS. There is no
evidence that plaintiffs’ failure to name JHS in the original complaint was the result of a
mistake. To the contrary, plaintiffs’ allegations indicate that they were aware of JHS’s
role in the events at issue yet consciously decided to name the State Department of
Human Services as a defendant instead of the county departments. See, e.g., Docket
No. 1 at 3-4, 11, ¶¶ 6, 9, 24. Plaintiffs do not make any argument in their response that
would undermine this conclusion. The Court therefore finds that plaintiffs have failed to
meet the requirements of Rule 15(c)(1)(C)(ii). See Krupski, 560 U.S. at 552 (“When the
original complaint and the plaintiff’s conduct compel the conclusion that the failure to
name the prospective defendant in the original complaint was the result of a fully
19
informed decision as opposed to a mistake concerning the proper defendant’s identity,
the requirements of Rule 15(c)(1)(C)(ii) are not met.”); Kole v. Smith, No. 14-cv-01435WJM-KLM, 2015 WL 5026194, at *10 (D. Colo. Aug. 26, 2015) (finding that plaintiff “did
not make a mistake concerning the identity of [the] defendant” where plaintiff’s
“inclusion of [the defendant] in the Second Amended Complaint show[ed] that he knew
that [the defendant] participated in his alleged constitutional violations, but chose to not
name him”).
2. Ms. Connell
Defendants argue that plaintiffs’ revised allegations that Ms. Connell piggybacked investigations in order to avoid having to comply with legally mandated
deadlines constitute “new and separate allegations that do not relate back to the
original complaint.” Docket No. 70 at 4. The Court disagrees. As defendants
acknowledge in their motion, plaintiffs’ original complaint asserted that Ms. Connell
acted with deliberate indifference “to her statutory and regulatory obligations during
th[e] investigation [of child abuse reports against Ms. Najera]; discounted reports from
mandatory reporters; failed to acknowledge and recognize the unconscionably poor
health condition and low body weight of Angel; and declined to either institute a
Dependency and Neglect action or take Angel into protective custody.” Docket No. 1 at
8, ¶ 17. These same general allegations continue to form the basis of plaintiffs’
Fourteenth Amendment claim against Ms. Connell. See Docket No. 103 at 51-52,
¶¶ 292-98 (alleging that Ms. Connell violated Angel’s Fourteenth Amendment rights by
(1) failing to investigate his case “with sufficient acuity and diligence,” (2) disregarding
complaints of abuse, (3) recommending that a case not be opened and that Ang el
20
remain in the custody of Ms. Najera, and (4) deciding not to inform the court that a
Dependency and Neglect proceeding was required). Rather than interjecting entirely
new facts, plaintiffs’ allegation that Ms. Connell piggy-backed her investigations in order
to avoid statutory and regulatory obligations amplifies the facts asserted in the original
complaint. See Benton, 2007 WL 4105175, at *4 (finding that plaintiff’s amended
complaint related back to her original complaint where allegations asserted in the
original complaint were “at least a partial basis for plaintiff’s [amended] First
Amendment claim” and thus sufficient to put defendants on notice of that claim).
The Court reaches the same conclusion as to plaintiffs’ wrongful death claim.
Defendants argue that plaintiffs did not assert a wrongful death claim against Ms.
Connell until October 25, 2017. Docket No. 70 at 2. W hile that is true, the original
complaint did assert a § 1983 claim against Ms. Connell as well as a wrongful death
claim against PASCO and Ms. Najera. See Docket No. 1 at 14-18. Plaintiffs’ § 1983
claim against Ms. Connell was based on allegations that she breached her duties to
Angel by failing to take appropriate “corrective action” to protect him from harm. See id.
at 15, ¶ 47. The complaint also alleged that Ms. Connell’s actions constituted “willful
and wanton conduct” that caused Angel’s death. Id., ¶ 49. Thus, although the wrongful
death claim in the second amended complaint constitutes a new claim against Ms.
Connell, it arises out of the same facts asserted in plaintiffs’ original complaint. See
Benton, 2007 WL 4105175, at *4 (finding that newly asserted First Amendment claim
was based on the same general set of facts alleged in the original complaint).
Defendants contend that plaintiffs’ allegations regarding “willful and wanton
21
conduct” do not provide any notice of the facts underlying plaintiffs’ wrongful death
claim and “are not entitled to an assumption of truth.” Docket No. 107 at 2. As to the
first point, the Court has already found other allegations in the original complaint
sufficient to place Ms. Connell on notice of the factual basis for plaintiffs’ wrongful death
claim. As to the second point, defendants appear to challenge the sufficiency of
plaintiffs’ allegations under Rule 12(b)(6). However, the only issue before the Court is
whether plaintiffs’ wrongful death claim satisfies the requirements of Fed. R. Civ. P.
15(c)(1)(B). The Court finds that it does. Accordingly, defendants are not entitled to
dismissal of plaintiffs’ wrongful death claim against Ms. Connell on statute of limitations
grounds.
C. Service of Process
Defendants argue that all claims against Ms. Connell should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(5) because plaintiffs failed to serve Ms. Connell until
111 days after the filing of the original complaint. Docket No. 70 at 4. Federal Rule of
Civil Procedure 4(m) provides that
If a defendant is not served within 90 days after the complaint is filed, the
court . . . must dismiss the action without prejudice against that defendant
or order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Plaintiffs do not dispute that they failed to serve Ms. Connell within the time frame
required by Rule 4(m). See Docket No. 104 at 18. Instead, they argue that “there was
good cause for [their] three-week delay in service” because plaintiffs’ counsel (1)
learned, sometime after June 2017, that his former law firm was not continuing to
represent plaintiffs; (2) promptly entered an appearance in the case on July 14, 2017
22
and attempted to serve all defendants on August 1, 2017; (3) was informed for the first
time on August 1, 2017 that Ms. Connell no longer worked for Jefferson County; and (4)
promptly hired an investigator to locate and serve Ms. Connell on August 24, 2017.
Docket No. 104 at 18-19. According to plaintiffs’ counsel, this sequence of events
demonstrates that “[d]iligent efforts were made to comply” with the deadline for service
and that “‘good cause’ justifies an extension.” Id. at 19.
The Court finds that plaintiffs have not shown good cause for an extension. It is
well established in this Circuit that “inadvertence or negligence alone do not constitute
‘good cause’ for failure of timely service.” In re Kirkland, 86 F.3d 172, 176 (10th Cir.
1996). Neither counsel’s substitution for plaintiffs’ original counsel nor plaintiffs’ failure
to anticipate the possibility that Ms. Connell would no longer be employed by Jefferson
County constitutes good cause for an extension. See, e.g., Wischmeyer v. Wood, No.
07-cv-01863-LTB, 2008 WL 2324128, at *2 (D. Colo. June 2, 2008) (f inding that plaintiff
had failed to show good cause for failure to serve where “(1) present counsel was
substituted for original counsel, (2) Plaintiff’s counsel . . . was busy over the ‘holiday
season,’ and (3) it was difficult to serve Deputy Wood because Park County processors
were reluctant to serve an acting deputy sheriff and because Wood’s home address
was unlisted and he was difficult to locate”). However, the Court’s finding does not end
the inquiry under Fed. R. Civ. P. 4(m). As stated above, the Court must also consider
whether a permissive extension is warranted. See Espinoza v. United States, 52 F.3d
838, 841 (10th Cir. 1995).
In determining whether to grant a permissive extension, courts consider several
factors, including the complex requirements of multiple service, the plaintiff’s pro se
23
status, the statute of limitations, the danger of prejudice to the defendant, and the
length of the delay. See Espinoza, 52 F.3d at 842; Moore, 2015 WL 859074, at *2.
While the first two of these factors are inapplicable in this case, the Court finds that the
remaining factors weigh in favor of a permissive extension. As discussed above, the
statute of limitations expired on plaintiffs’ § 1983 claims on May 6, 2017. Accordingly,
dismissal of plaintiffs’ claims against Ms. Connell would effectively be with prejudice
because they would be unable to refile the claims in federal court. Additionally, Ms.
Connell was served with the complaint only three weeks after the deadline for service,
and defendants have not shown that they suffered any prejudice as a result of the
delay.
Because the Court grants plaintiffs a permissive extension of time for service,
Ms. Connell is not entitled to dismissal of plaintiffs’ claims against her under Fed. R.
Civ. P. 12(b)(5).
D. Qualified Immunity
Ms. Connell argues that she is entitled to qualified immunity with respect to
plaintiffs’ substantive due process claims brought under 42 U.S.C. § 1983. Docket No.
70 at 5. When a defendant raises the defense of qualified immunity, a “plaintiff carries
a two-part burden to show: (1) that the defendant’s actions violated a federal
constitutional or statutory right, and, if so, (2) that the right was clearly established at
the time of the defendant’s conduct.” T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir.
2017) (internal quotation marks omitted).
24
1. Constitutional Violation
Plaintiffs allege that Ms. Connell violated Angel Goodwin’s substantive due
process rights under the Fourteenth Amendment by failing to investigate complaints of
abuse and neglect against his grandmother and legal guardian, Onesia Najera, and by
affirmatively recommending that Angel remain in her care. See Docket No. 103 at 4953, ¶¶ 275-301. Plaintiffs assert the substantive due process claim under the statecreated danger doctrine, which allows a state actor to be “held liable for the violent acts
of a third party if the state actor ‘created the danger’ that caused the harm.” Ruiz v.
McDonnell, 299 F.3d 1173, 1182 (10th Cir. 2002). A prim a facie case under this
doctrine requires a plaintiff to show that:
(1) the charged state actors created the danger or increased the plaintiff’s
vulnerability to the danger in some way; (2) the plaintiff was a member of
a limited and specifically definable group; (3) the defendants’ conduct put
the plaintiff at substantial risk of serious, immediate, and proximate harm;
(4) the risk was obvious or known; (5) the defendants acted recklessly in
conscious disregard of that risk; and (6) the conduct, when viewed in total,
shocks the conscience.
Id. at 1182-83. A plaintiff must also establish two “preconditions” to trigger application
of the doctrine: “that the state actor engaged in affirmative conduct and that there was
private violence.” Estate of B.I.C. v. Gillen, 761 F. 3d 1099, 1105 (10th Cir. 2014).
Defendants argue that plaintiffs cannot demonstrate a constitutional violation
under a state-created danger theory for three reasons: (1) plaintiffs have not
demonstrated any affirmative “bad action” on the part of Ms. Connell, Docket No. 70 at
6-7; (2) there are no allegations or evidence that the risk of harm to Angel was obvious
or that Ms. Connell was aware of the risk, id. at 7-8; and (3) the allegations do not
25
demonstrate that Ms. Connell engaged in “conscience-shocking” conduct. Id. at 8. The
Court finds each of these arguments unpersuasive.
As to the first argument, the Court finds that the second amended complaint
contains plausible allegations of affirmative misconduct. Specifically, plaintiffs allege
that Ms. Connell “made multiple recommendations that . . . Angel remain in the custody
of Onesia Najera,” which “contributed to Onesia Najera retaining custody of [him].”
Docket No. 103 at 52, ¶¶ 295, 299; see also id. at 52, ¶ 298. The Tenth Circuit has
held that a social worker’s recommendation that a child remain in the custody of an
abusive relative constitutes “affirmative” conduct sufficient to confer liability under a
danger-creation theory. See T.D., 868 F.3d at 1226. In T.D., the Tenth Circuit
interpreted its prior decision in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001), as
establishing that conduct by state actors occurring after a child is placed in the legal
custody of a relative “may be considered for a danger-creation claim provided it is
‘affirmative.’” 868 F.3d at 1226. Relying on this rule, the court concluded that the
defendant social worker’s post-placement recommendations that T.D. “remain” in his
father’s temporary custody constituted affirmative action because they “further[ed] the
danger [that] Mr. Duerson posed to T.D.” See id. The same is true of Ms. Connell’s
post-placement recommendations in this case. 13
13
Although the affirmative conduct requirement is often characterized as a
“precondition” to the six-factor test identified above, see, e.g., Estate of B.I.C., 761 F.
3d at 1105, defendants argue that plaintiffs’ failure to allege any affirmative conduct on
the part of Ms. Connell is dispositive of the first and third factors of the six-factor test.
See Docket No. 70 at 6. Because the Court concludes that plaintif fs have alleged
affirmative conduct, and defendants do not raise any other arguments with regard to the
first and third factors, the Court finds those factors satisfied for purposes of the motion
to dismiss. Whether the allegations of affirmative conduct are borne out through
26
On the other hand, the Court is unpersuaded by plaintiffs’ effort to predicate
liability on Ms. Connell’s “affirmative acts” of (1) “engag[ing] in purposeful manipulations
of the complaint system to avoid protective regulatory deadlines” and (2) telling other
individuals concerned about Angel’s well being that she was “conducting an
investigation.” Docket No. 104 at 3-4. The Tenth Circuit has repeatedly stated that
case workers who have no role in a child’s initial placement have “no constitutional duty
to rescue.” Currier, 242 F.3d at 921; see also Hubbard v. Oklahoma ex rel. Okla. Dep’t
of Human Servs., 2018 WL 6822285, at *11 (10th Cir. Dec. 28, 2018) (unpublished)
(explaining that, if “the danger to the plaintiff existed prior to the state’s intervention,
then even if the state put the plaintiff back in that same danger, the state would not be
liable because it could not have created a danger that already existed” (internal
quotation marks omitted)).14 Moreover, a failure to adequately investigate complaints of
child abuse is not sufficient, standing alone, to give rise to liability under the Fourteenth
Amendment. See Matthews v. Bergdorf, 889 F.3d 1136, 1151 (10th Cir. 2018) (f inding
that allegations regarding caseworkers’ “failure to properly investigate and process
reports of child abuse and neglect” did not “give rise to a claim under the state-created
danger exception because they [did] not include any allegation of affirmative conduct”);
discovery is an issue that may arise in subsequent pleadings.
14
This rule does not apply when a child remains in the legal custody of the state
post-placement. Under such circumstances, a “special relationship exists between the
State and foster child, which triggers an accompanying, continuing duty imposed on
state custodial officials thereafter – not a duty limited to only the specific officials who
executed the placement of the child.” Schwartz v. Booker, 702 F.3d 573, 581 (10th Cir.
2012). Here, however, plaintiffs allege that “Onesia Najera was given custody of
[Angel] by Jefferson County” in August 2005. Docket No. 103 at 2, ¶ 2.
27
Estate of B.I.C., 761 F.3d at 1107-08 (finding that allegations that caseworker had (1)
refused to accept evidence of abuse, (2) refused to return police phone calls, (3) told
grandparents that “any abuse of the children was not her issue,” and (5)
misrepresented to grandfather that she had been inside the hom e to investigate did not
demonstrate affirmative conduct sufficient to confer liability under state-created danger
theory). Plaintiffs allege that Ms. Connell engaged in affirmative conduct by
manipulating the complaint system and misrepresenting to others that she was
conducting an investigation; however, such acts are part and parcel of her failure to
investigate. See, e.g., id. (holding that law did not clearly establish that caseworker had
engaged in affirmative conduct by failing to substantiate abuse and lying to grandfather
that she had been inside the father’s home to investigate complaints); Hurst v. Madera,
No. 16-cv-01914-KMT, 2018 WL 684769, at *2-3, *9 (D. Colo. Feb. 2, 2018) (f inding
that complaint did not allege any affirmative conduct for purposes of state-created
danger theory even though caseworker had fraudulently noted in a report that she had
visited the child and her mother on two occasions and improperly designated the family
as “Moderate Risk”). Moreover, the Tenth Circuit has rejected the argument “that
liability can be predicated on a misrepresentation that causes others to lower their
guard and not seek protection by other means.” Estate of B.I.C., 761 F.3d at 1108.
Although the court suggested in Currier that “the state can be [held] liable when it
affirmatively places private citizens in harm’s way by removing what would otherwise be
safety valves” or by “cutt[ing] off potential sources of private aid,” 242 F.3d at 922,
Currier involved allegations that a caseworker had instructed the mother of abused
28
children to stop reporting the abuse. Id. at 921. As relevant to this case, the Tenth
Circuit has since declined to extend the principles announced in Currier to false
“assurances of protection from the State.” Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d
909, 925 (10th Cir. 2012) (finding that hospital’s false assurances that patient would
receive constant supervision during stay did not constitute affirmative conduct giving
rise to constitutional liability); see also Estate of B.I.C., 761 F.3d at 1108 (relying on
Gray to hold that caseworker’s misrepresentation to grandfather that she had visited
home to investigate complaints of child abuse did not constitute “affirmative act”
sufficient to confer liability). Because Ms. Connell’s alleged misrepresentations that she
was conducting an investigation are analogous to the “false assurances” in Gray and
Estate of B.I.C., they are insufficient under Tenth Circuit precedent to confer
constitutional liability.
Turning to the remaining factors applicable to the state-created danger claim,
defendants argue that plaintiffs have failed to allege facts showing that the risk to Angel
was obvious or that Ms. Connell knew of the risk. Docket No. 70 at 7. The Court
disagrees. The complaint is replete with allegations showing that Ms. Connell received
“numerous serious complaints of abuse from family members, neighbors,
schoolteachers, police, and the children themselves.” Docket No. 104 at 5; see also
Docket No. 103 at 7, 9, 11-12, 14-15, ¶¶ 31, 38, 54-55, 65-68, 71, 85, 89. 15
Additionally, Ms. Connell personally observed that Ms. Najera’s home contained
inadequate food, that Angel appeared underweight, and that Ms. Najera consistently
15
These paragraphs represent only a small part of the allegations pertaining to
complaints of child abuse.
29
missed her mandated drug testing appointments. See id. at 12, 18-19, ¶¶ 74, 104-08.
Defendants argue, without providing any support, that plaintiffs’ allegations are
insufficient because they “indicate that the only knowledge [Ms. Connell] had consisted
of reports of allegations by third parties.” Docket No. 70 at 8. In both Currier and T.D.,
however, the Tenth Circuit determined that caseworkers acted in conscious disregard of
a known or obvious risk based, among other things, on their failure to investigate thirdparty reports of child abuse. See T.D., 868 F.3d at 1213 (noting allegations of abuse by
school officials and T.D.); Currier, 242 F.3d at 919-20 (noting mother’s allegations that
father and father’s girlfriend were abusing children). Moreover, Ms. Connell’s
knowledge of the risk to Angel was not based solely on third-party reports. As noted
above, Ms. Connell personally observed a lack of food in Ms. Najera’s house, Angel’s
underweight appearance, and Ms. Najera’s failure to comply with instructions from the
state. The Court finds plaintiffs’ allegations sufficient to demonstrate a known or
obvious risk.
Plaintiffs have also alleged facts that, if true, would demonstrate conscienceshocking conduct. In evaluating whether particular conduct rises to the level of a
substantive due process violation, courts consider “(1) the general need for restraint; (2)
the concern that § 1983 not replace state tort law ; and (3) the need for deference to
local policy decisions impacting public safety.” Currier, 242 F.3d at 920. To establish
conscience-shocking behavior, “the plaintiff must demonstrate a degree of
outrageousness and a magnitude of potential or actual harm that is truly conscience
shocking.” Uhlrig, 64 F.3d at 574. Ordinary negligence will not suffice. See Ruiz, 299
30
F.3d at 1184.
The Court finds that plaintiffs have met their burden at the pleading stage. In
Currier, the Tenth Circuit determined that, “[i]n light of the initial information [the
defendant] had about [the father’s] financial irresponsibility, and in light of the numerous
bruises and allegations of abuse, [the defendant’s] failure to investigate the bruises and
allegations and his subsequent responsibility for the court order granting [the father]
legal custody could be conscience shocking, depending, of course, on further context
as provided by discovery.” 242 F.3d at 920. The facts asserted in this case are at least
as conscience-shocking as those in Currier. Plaintiffs have alleged that, despite reports
of serious child abuse and neglect by family members, teachers, neighbors, and the
children under Ms. Najera’s care, Ms. Connell intentionally manipulated JHS’s
complaint filing system to extend the deadlines applicable to investigations and to avoid
having to conduct a timely investigation into the conditions in Ms. Najera’s home. In
addition, Ms. Connell affirmatively recommended that Angel remain in Ms. Najera’s
custody even though she knew that Ms. Najera had consistently refused to comply with
drug testing requirements. Such conduct rises above the level of ordinary negligence,
especially considering the fact that Angel had severe physical and developmental
disabilities that made him entirely dependent on others for around-the-clock care. See
Docket No. 103 at 6, ¶ 27; see Currier, 242 F.3d at 920 (noting that courts should
consider the “cumulative impression of [a defendant’s] conduct”). 16
16
The Court may consider Ms. Connell’s failure to investigate complaints of child
abuse as part of the danger-creation analysis. As the Tenth Circuit explained in T.D.,
“during the time [a defendant] engage[s] in conduct that affirmatively contribute[s] to
danger creation, all of the defendant’s conduct tending to do so – including a failure to
31
2. Clearly Established Law
Because plaintiffs have alleged a violation of Angel’s substantive due process
rights under the Fourteenth Amendment, the Court must determine whether Angel’s
rights were clearly established at the time of the alleged violation. See T.D., 868 F.3d
at 1220.
A plaintiff may show clearly established law by citing “a Supreme Court or Tenth
Circuit decision on point” or by demonstrating that “the clearly established weight of
authority from other courts . . . have found the law to be as the plaintiff maintains.”
Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (internal quotation m arks
omitted). While “a plaintiff need not show the very act in question previously was held
unlawful in order to establish an absence of qualified immunity,” id., “existing precedent
must have placed the statutory or constitutional question beyond debate.” White v.
Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308
(2015)). In evaluating whether a plaintiff has met this burden, the Supreme Court has
repeatedly cautioned courts “not to define clearly established law at a high level of
generality.” City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1776
(2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Thus, the clearly
established law “must be ‘particularized’ to the facts of the case.” White, 137 S. Ct. at
552.
The Court finds the Tenth Circuit’s decision in T.D. to be determinative of the
clearly established law analysis in this case. T.D. involved facts similar to those
investigate – is relevant” to the danger-creation analysis. 868 F.3d at 1232-33.
32
presented here: a social worker for the Denver Department of Human services failed to
investigate allegations that T.D.’s father was abusing him, despite being on notice of
evidence suggesting abuse, and further recommended, post-placement, that T.D.
remain in his father’s custody. See T.D., 868 F.3d at 1213 (summarizing the factual
similarities between T.D.’s case and Currier). The Tenth Circuit held that it was clearly
established as of the court’s decision in Currier, that (1) a caseworker’s post-placement
recommendation that a child remain in the custody of an abusive relative constitutes an
affirmative act sufficient to confer liability under the danger-creation theory; (2) the facts
alleged in T.D. were sufficient to demonstrate conscious disregard of a known and
substantial risk; and (3) the conduct by the social worker, taken as a whole, shocked
the conscience and amounted to a violation of T.D.’s substantive due process rights
under the Fourteenth Amendment. See T.D., 868 F.3d at 1226 (noting that Currier
shows that “post-placement conduct may be considered for a danger-creation claim
provided it is ‘affirmative’” and holding, based on that rule, that social worker’s postplacement recommendation that T.D. remain in his father’s custody constituted an
affirmative act sufficient to confer liability), 1231 (discussing Currier’s finding that the
failure to investigate evidence of potential abuse “created or increased the children’s
vulnerability to the danger” and “placed the children at an obvious risk of serious,
immediate, and proximate harm”), 1232 (finding that social worker’s conduct resembled
that found to be conscience-shocking in Currier in light of “her awareness of and failure
to investigate evidence of potential abuse” and “her responsibility for T.D.’s being
placed and remaining in Mr. Duerson’s home”). Given the substantial factual
33
similarities between this case and T.D., the Court likewise finds that Currier was
sufficient to place any reasonable caseworker in Ms. Connell’s position on notice that
her failure to investigate allegations of child abuse, coupled with her affirmative
recommendations that Angel remain in his grandmother’s home, violated Angel’s
substantive due process rights. Accordingly, Ms. Connell is not entitled to qualified
immunity with respect to plaintiffs’ substantive due process claim.
E. Governmental Immunity
Defendants assert that the wrongful death claim against Ms. Connell is barred by
the Colorado Governmental Immunity Act (“CGIA”) because plaintiffs have failed to
allege facts showing that Ms. Connell engaged in willful and wanton conduct. Docket
No. 70 at 10.
Because wrongful death claims are derivative, A.B., by Ybarra v. City of
Woodland Park, 174 F. Supp. 3d 1238, 1251 (D. Colo. 2016), they are “subject to the
same defenses available to the underlying claims.” Elgin v. Bartlett, 994 P.2d 411, 416
(Colo. 1999). In this case, plaintiffs predicate the wrongful death claim on a negligence
theory of liability. See Docket No. 103 at 57-58, ¶¶ 333-35, 337. Under the CGIA,
[a] public employee shall be immune from liability in any claim for injury,
whether brought pursuant to this article, . . . the common law, or
otherwise, which lies in tort or could lie in tort regardless of whether that
may be the type of action or the form of relief chosen by a claimant and
which arises out of an act or omission of such employee occurring during
the performance of his duties and within the scope of his employment
unless the act or omission causing such injury was willful and wanton . . . .
Colo. Rev. Stat. § 24-10-118(2)(a).
Defendants argue that plaintiffs have not alleged willful and wanton conduct
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because Ms. Connell’s failure to investigate the complaints of child abuse merely
demonstrates “bad judgment, which is not sufficient” to satisfy the “willful and wanton”
standard under the CGIA. Docket 70 at 11. Plaintif fs respond that Ms. Connell’s
“purposeful procedural manipulations” in the face of an obvious and serious risk to
Angel rise to the level of willful and wanton conduct. Docket No. 104 at 9.
While the CGIA does not define the phrase “willful and wanton,” Moody v.
Ungerer, 885 P.2d 200, 205 (Colo. 1994), Colorado courts hav e often sought guidance
from Colorado’s exemplary damages statute, which describes willful and wanton
conduct as conduct “purposefully committed which the actor must have realized as
dangerous, done needlessly and recklessly, without regard to consequences, or of the
rights and safety of others.” Colo. Rev. Stat. § 13-21-102(1)(b); see also Dahn v.
Adoption Alliance, 164 F. Supp. 3d 1294, 1320 (D. Colo. Feb. 17, 2016), rev’d in part
on other grounds sub nom. Dahn v. Amedei, 867 F.3d 1178 (10th Cir. 2017); Moody,
885 P.2d at 205. The Colorado Supreme Court has also recently stated that,
regardless of the precise definition used, “willful and wanton” always denotes “a
conscious disregard of the danger.” Martinez v. Estate of Bleck, 379 P.3d 315, 323
(Colo. 2016) (surveying various definitions of “willful and wanton” and determining that
“all share a common feature – namely, a conscious disregard of the danger”).
Taking the facts asserted in the complaint as true and drawing all reasonable
inferences in plaintiffs’ favor, the Court finds that plaintiffs have sufficiently alleged
willful and wanton conduct. As discussed above with respect to plaintiffs’ § 1983 claim,
plaintiffs have alleged facts showing that Ms. Connell was aware of numerous
35
complaints of serious abuse and neglect filed against Ms. Najera, Docket No. 103 at 7,
12, ¶¶ 37-38, 71, that she was aware those complaints had been designated “High
Risk,” id. at 11, ¶ 69, and that she had determ ined as early as February 2015 that a
“Dependency and Neglect proceeding was required to protect Angel and the other
children in Ms. Najera’s care.” Id. at 3, ¶ 6. Despite this knowledge, Ms. Connell
intentionally manipulated the complaint filing system to extend the statutory deadlines
applicable to her investigations and affirmatively recommended that Angel remain in
Ms. Najera’s custody. Id. at 13-14, 51, 52, ¶¶ 83, 293, 295, 298. T aken together, these
allegations demonstrate a conscious disregard of a serious risk of harm to Angel, one
that was realized when Ms. Najera left him alone in the bathtub on May 5, 2015.
Compare Castaldo v. Stone, 192 F. Supp. 2d 1124, 1141 (2001) (f inding no indication
of willful or wanton conduct where, although defendants could have done more to
investigate the actions of the perpetrators of a school shooting, they took action
regarding the information they had been given). The Court therefore finds that the
CGIA does not entitle Ms. Connell to dismissal of the wrongful death claim.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that County Defendants’ Motion to Dismiss Second Amended
Complaint and Jury Demand [Docket No. 70] is GRANTED in part and DENIED in part.
It is further
ORDERED that the second claim for relief asserted by plaintiff The Estate of
Angel Goodwin is dismissed without prejudice as to defendant Jefferson County Human
36
Services. It is further
ORDERED that the second claim for relief asserted by plaintiff The Estate of
Angel Goodwin is dismissed with prejudice as to defendant Board of County
Commissioners for Jefferson County, Colorado. It is further
ORDERED that the third claim for relief asserted by plaintiff The Estate of Angel
Goodwin is dismissed with prejudice as to defendant Jefferson County Human
Services. It is further
ORDERED that defendant Jefferson County Human Services is dismissed from
this lawsuit. It is further
ORDERED that County Defendants’ Objection to United States Magistrate
Judge’s Order Re Motion to Stay Discovery [Docket No. 96] is OVERRULED as moot.
DATED March 12, 2019.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
Chief United States District Judge
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