MARCIA S. KRIEGER, Chief District Judge.
The Plaintiffs' Complaint
The issue then turned to the placement of C.N. Ms. Nedd had previously expressed an interest in taking custody of C.N., and at least initially, Jefferson County officials represented to Ms. Nedd that C.N. would likely be placed with her and that she need not take any further legal action. However, Ms. Nedd points out that she was not notified of the termination of the parents' parental rights in June 2016, and it was not until March 2017 that Ms. Nedd formally moved to be considered as C.N.'s custodian. In April 2017, Judge Meinster denied Ms. Nedd's motion as untimely, and in July 2017, Judge Meinster had placed C.N. with foster parents, Defendants Amber and Stephen Farnsworth. The Plaintiffs particularly object to the placement of C.N., who is black, with white foster parents, as Colorado statutory and regulatory laws require "cultural and familiar considerations" when making placement decisions and because Ms. Nedd (who is black) stood by willing and able to adopt C.N.
Based on these facts, the Plaintiffs assert nine claims for relief: (i) a claim, presumably under 42 U.S.C. § 1983 against all Defendants, that the Defendants violated the Plaintiffs' Substantive Due Process rights by disregarding C.N.'s right to be placed with blood relatives, the right to "not be placed for a long period of time in foster care without any certainty of permanency," and the right of blood relatives to be notified of D&N proceedings, among others; (ii) a somewhat uncertain claim, apparently under 42 U.S.C. § 1983 against all Defendants, captioned as "First, Ninth, and Fourteenth Amendments to the United States Constitution," and asserting that "the foregoing actions . . . amount to a policy, pattern, practice, or custom of failure to exercise professional judgment and of deliberate indifference to Plaintiffs' . . . liberty interests, privacy interests, and associational rights not to be deprived of relationships with blood relatives"; (iii) a claim, apparently under 42 U.S.C. § 1983 asserted against all Defendants, sounding in Procedural Due Process and alleging that the Defendants deprived the Plaintiffs of the same rights discussed in the Substantive Due Process claim; (iv) a claim expressly captioned as "42 U.S.C. § 1983 — all Defendants," and which seems to invoke the Plaintiffs' "associational rights, liberty, equal protection, and due process" rights, but which is otherwise difficult to parse and to distinguish from the preceding claims; (v) a claim pursuant to 42 U.S.C. § 1985 that "Defendants, or some of them," conspired to deprive the Plaintiffs of their civil rights; (vi) a claim against all Defendants pursuant to 42 U.S.C. § 1986, alleging that the Defendants had knowledge of the conspiracy alleged in claim (v) and failed to act to prevent it; (vii) and (viii) claims, presumably under Colorado's common law, by Mr. Nortey against Mr. Peper, sounding in legal malpractice and breach of fiduciary duty; and (ix) a claim that all Defendants violated the RICO Act, 18 U.S.C. § 1961 et seq., by forming an association "to perpetrate the various economic and personal injuries alleged herein."
Each of the named Defendants has moved to dismiss the claims against him/her/or it. The Plaintiffs have had several opportunities to file responses, see Docket # 87, 94, but they have not done so prior to prior to the deadlines imposed. Thus, the Court deems the Plaintiffs to have waived the opportunity to file responses.
All of the Defendants observe that most of the Plaintiffs' claims take issue with various decisions made by Judge Meinster during the Dependence and Neglect proceeding involving C.N., as well as the subsequent decisions regarding C.N.'s placement. These matters, the Defendants argue, implicate both the "Domestic Relations Exception" to federal subject-matter jurisdiction and the Rooker-Feldman doctrine.
The Domestic Relations Exception operates to exclude from federal subject-matter jurisdiction claims that ask federal courts to issue "divorce, alimony, or child custody decrees." Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). In Leathers v. Leathers, 856 F.3d 729, 756 (10
The Rooker-Feldman doctrine provides that a losing party in state court may not "seek[ ] what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Morkel v. Davis, 513 Fed.Appx. 724, 727 (10
Here, the Plaintiffs' claims essentially spring from the contention that Judge Meinster's rulings — terminating C.N.'s parents' rights and rejecting Ms. Nedd's application for custody of C.N. — violated their federal rights. Were this Court to entertain those claims and ultimately rule in the Plaintiffs' favor, it would necessarily have to conclude that Judge Meinster's rulings were incorrect, insufficiently-informed, premature, or otherwise reversible. Indeed, among the items of relief that the Plaintiffs seek in their Prayer for Relief are for this Court to "declare unconstitutional and unlawful. . . the above-noted constitutional violations" relating to Judge Meinster's orders and "enter a permanent injunction requiring that [C.N.] be placed with appropriate and willing blood relatives," instead of the Farnsworths as directed by Judge Meinster. In such circumstances, Rooker-Feldman prohibits the Court from hearing those claims.
Alternatively, if the proceedings before Judge Meinster are ongoing, rather than fully-concluded, the Court would abstain from hearing the Plaintiffs' claims here pursuant to Younger abstention instead. Morkel, 513 Fed.Appx. at 727-29 (reversing Rooker-Feldman dismissal but affirming Younger abstention in challenge to state court child custody proceeding that was ongoing).
Because abstention doctrines prevent the Court from hearing any claims that seek, directly or indirectly, to undo Judge Meinster's custody rulings, the Court's next task is to determine whether any of the Plaintiffs' claims are
All but one of the Plaintiffs' constitutional claims must be dismissed on abstention grounds, as the injuries that appear to underlie those claims were allegedly caused by orders of the state court that terminate the parental rights of C.N.'s parents and rejected Ms. Nedd as a foster parent/custodian in favor of the Farnsworths. The one exception is Ms. Nedd's contention that, between July 2015 and December 2016, unspecified persons within the Jefferson County Division of Children, Youth, and Families ("the Division") "led [Ms. Nedd] to believe that . . . she should not take any legal action for the child to be placed with her." Docket # 1, ¶ 47. When Ms. Nedd ultimately realized that she needed to formally petition for custody of C.N., the state court judge rejected her request as untimely. This ruling was premised upon Ms. Nedd's inaction which was allegedly in reliance on the Division's directions. Thus, this claim is properly brought against Jefferson County on the theory that it violated one or more of Ms. Nedd's constitutional rights by giving incorrect advice about petitioning for custody, and it survives dismissal based upon abstention principles.
In addition, the Plaintiffs' RICO claim could — at least conceivably — assert a conspiracy among parties that caused an injury distinct from the injuries caused by Judge Meinster's orders.
Finally, Mr. Nortney's claims of legal malpractice and breach of fiduciary duty against Mr. Peper, arising from legal advice he gave, also survives application of abstention doctrines.
Thus, the Court will proceed to consider the Defendants' arguments directed at these claims.
As noted above, Ms. Nedd asserts that unspecified persons at the Division gave her incorrect legal advice about whether she should file a formal petition to seek custody of C.N. It is difficult to correlate this specific allegation with the Plaintiffs' vague and amorphous allegations of constitutional violations, however. This Court can conceive of no constitutional right that is implicated when a state or county agency dispenses incorrect legal advice about how a person should proceed in a pending judicial matter. See e.g. Hutcherson v. Smith, 908 F.2d 243, 246 (7
Moreover, even if Ms. Nedd had a colorable constitutional claim, she has not identified any individual employee of the Division who gave her the incorrect advice, and she has failed to plead sufficient facts to permit her to assert that claim against Jefferson County instead. Jefferson County is not subject to liability simply because employees within the Division gave inaccurate advice to Ms. Nedd; Jefferson County's liability is limited to those circumstances in which its
To adequately plead a RICO claim, the Plaintiffs must allege facts showing: (i) conduct, (ii) of an enterprise, (iii) through a pattern of racketeering activity. Salinas v. U.S. 522 U.S. 52, 62 (1997). RICO expressly defines the term "racketeering activity" to include violations of a wide range of federal criminal statutes, including mail fraud. 18 U.S.C. § 1961(1). A "pattern of racketeering activity" requires allegations of at least two such acts, plus some indication of a threat of continuing racketeering activity. Bixler v. Foster, 596 F.3d 751, 761 (10
Plaintiffs' RICO allegations are insufficient for multiple reasons. Nearly every allegation related to this claim is entirely conclusory. Moreover, even if the Plaintiffs' vague and conclusory allegations in the Complaint could be said to allege the existence of an enterprise, nothing in the Complaint seems to suggest that this enterprise had any existence separate from the D&N proceedings involving C.N., much less a threat that the parties involved would continue to engage in criminal activity in the future. For these and numerous other reasons, the RICO claim is dismissed.
The dismissal of all claims sounding in federal law terminates this Court's federal question subject-matter jurisdiction over this matter.
For the foregoing reasons, the Court