Chief Judge, Philip A. Brimmer.
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.
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 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 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
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.
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.
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)). When reviewing the factual basis on which subject matter jurisdiction rests, the district court does not presume the truthfulness of the complaint and "has
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 determines 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 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 127 S.Ct. 1955)). 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 marks omitted).
Defendants argue that plaintiffs' § 1983 claims against BCC and JHS are barred by Eleventh Amendment immunity. Docket No. 70 at 12.
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) (finding, 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
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 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. While 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,
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. While 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 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).
Defendants argue that the same rationale for finding that JHS is an arm of the state applies to BCC. Docket No. 70 at 13. Specifically, 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, 99 S.Ct. 1171, 59 L.Ed.2d 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, 97 S.Ct. 568 ("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.
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
Federal Rule of Civil Procedure 15(c)(1) governs the relation back of amended pleadings. Under that rule,
Fed. R. Civ. P. 15(c)(1). With regard to subsection (B), courts in this circuit have summarized the relation back rule as follows:
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.
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
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.
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
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-cv-01191-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, 130 S.Ct. 2485, 177 L.Ed.2d 48 (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.").
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, 130 S.Ct. 2485. 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, 130 S.Ct. 2485 ("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 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-01435-WJM-KLM, 2015 WL 5026194, at *10 (D. Colo. Aug. 26, 2015) (finding that plaintiff "did not make a mistake concerning the
Defendants argue that plaintiffs' revised allegations that Ms. Connell piggy-backed 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 Angel 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. While 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 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
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
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 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) (finding 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 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
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).
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).
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 49-53, ¶¶ 275-301. Plaintiffs assert the substantive due process claim under the state-created 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 prima facie case under this doctrine requires a plaintiff to show that:
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 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
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., 759 Fed.Appx. 693, 707-08, 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) ).
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.
Plaintiffs have also alleged facts that, if true, would demonstrate conscience-shocking 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 v. Harder, 64 F.3d 567, 574 (10th Cir. 1995). Ordinary negligence will not suffice. See Ruiz, 299 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").
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 marks 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, ___ U.S. ___, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (quoting Mullenix v. Luna, U.S. ___, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (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, ___ U.S. ___, 135 S.Ct. 1765, 1776, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (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 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 post-placement 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
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,
Colo. Rev. Stat. § 24-10-118(2)(a).
Defendants argue that plaintiffs have not alleged willful and wanton conduct 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. Plaintiffs 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 have 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
For the foregoing reasons, it is
