N.E.L. v. Douglas County

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 3, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
N.E.L.; M.M.A.,
Plaintiffs - Appellants,
v. No. 17-1120
(D.C. No. 1:15-CV-02847-REB-CBS)
DOUGLAS COUNTY, COLORADO; (D. Colo.)
LESA ADAME, in her individual capacity;
CARL GARZA, in his individual capacity,
Defendants - Appellees,
and
MONICA GILDNER, in her individual
capacity; ANGELA WEBB, in her
individual capacity; TINA ABNEY, in her
individual capacity,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
_________________________________
Kansas child-and-family-services employees obtained an ex parte order from a
Kansas state court to take physical custody of ten minor children. Because the
children were with their mother visiting her college friends in Douglas County,
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Colorado, the Kansas family-services employees somehow arranged for a counterpart
in Colorado, along with a local deputy sheriff, to execute the ex parte Kansas order.1
Two of the minor children, N.E.L. and M.M.A. (after reaching the age of majority),
sued the Kansas and Colorado governmental employees, as well as Douglas County,
Colorado, under 42 U.S.C. § 1983 in the United States District Court for the District
of Colorado.
The Colorado district court dismissed the claims against Douglas County and
the Colorado governmental employees under Federal Rule of Civil Procedure
12(b)(6) and transferred the claims against the Kansas defendants to the United States
District Court for the District of Kansas. N.E.L. and M.M.A. now appeal the
dismissal of their claims against the Colorado defendants.2 Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
BACKGROUND
A. The First Amended Complaint’s Allegations3
1
The First Amended Complaint doesn’t specify which Kansas employees
communicated with the Colorado employees or in what order the communications
occurred.
2
N.E.L. and M.M.A. do not appeal the transfer of their claims against the
Kansas defendants.
3
When reviewing Rule 12(b)(6) dismissals, we accept the well-pleaded
allegations of the complaint as true and view them in the light most favorable to the
plaintiff. Jones v. Hunt, 410 F.3d 1221, 1223 (10th Cir. 2005).
2
N.E.L., M.M.A., and their eight siblings lived with their parents, Mr. and Mrs.
Doe, in Johnson County, Kansas. In spring 2008, “one of the younger” Doe children
“began exhibiting troubling behavior and making troubling comments” that suggested
Mrs. Doe’s brother, the children’s uncle, had sexually abused her in 2006 or earlier.
J.A. at 15–16 ¶¶ 18–19. Alarmed by these revelations, the Does sought counseling for
the girl and any siblings who may have witnessed the abuse. In June 2008, the Does
reported the alleged sexual abuse to the Kansas Department of Children and Families.
The Does told agency employees that since 2006 they had barred the suspected uncle
and all other members of Mrs. Doe’s family from any contact with the children.4 The
Kansas Department of Children and Families assigned Monica Gildner, a defendant
in this case, to serve as the Does’ social worker.
On June 13, 2008, after the Does made the report, Gildner conducted a safety
assessment of the Doe home and found no evidence that the Does “were neglecting
their children’s physical needs.” Id. at 16 ¶ 26(f). Gildner then referred the allegedly
abused child to a facility called the Sunflower House, where staff interviewed the
child and three of her older siblings. In her Sunflower House interview, the child
repeated her allegations. Gildner never interviewed the child. The child later shared
more details of the abuse with her parents, and the Does reported these additional
4
N.E.L. and M.M.A. don’t disclose why the Does ceased contact with all Mrs.
Doe’s relatives, not just her brother.
3
details to the Kansas Department of Children and Families. In response to these
additional allegations, Gildner referred the child back to the Sunflower House.
In December 2008, a second Doe child reported sexual abuse by the same
uncle.5 As with the first child, Gildner referred this child to the Sunflower House for
an interview.
Despite the two children’s reports, “Gildner took a position that the abuse
never occurred,” Id. at 18 ¶ 42, and then “engaged on a course of conduct to smear
Mrs. Doe.” Id. at 18 ¶ 43. Specifically, Gildner “baselessly pronounced that Mrs. Doe
had post-partum depression and mental instability.” Id. at 18–19 ¶ 45. Gildner also
“took a position that Mrs. Doe” and “the Doe children needed counseling to
overcome their supposed false beliefs about the abuse.” Id. at 19 ¶¶ 48, 49.
Mrs. Doe agreed to go to counseling “in an effort to satisfy Gildner’s
outrageous demands that she do so.” Id. at 19 ¶ 50. Despite her efforts, Gildner told
the Does that if they “pursued legal action against the [uncle], either civilly,
criminally, or through further investigation” by the Kansas Department of Children
and Families, “the children would be harmed by ‘borderline emotional abuse.’” Id. at
19 ¶ 51. So the Does “attempted to cease contact with Gildner,” communicating this
desire to Angela Webb and Tina Abney, Gildner’s supervisors at the Kansas
Department of Children and Families (and also defendants in this case). Id. at 19 ¶
53. “Gildner retaliated by threatening to initiate a court action,” and by requiring that
5
The First Amended Complaint doesn’t specify when the alleged abuse
occurred.
4
the entire family participate in counseling through Family Preservation Services. Id.at 20 ¶ 58. Through this counseling, Gildner intended to dissuade the Does and their
children from believing the abuse allegations. Instead of participating in Family
Preservation Services, Mrs. Doe informed Gildner she would “seek counseling
services through Catholic Charities,” and Gildner didn’t object. Id. at 20 ¶ 62.
In February 2009, Gildner received two additional reports that the second-
reporting Doe child had been sexually abused.6 When Gildner failed to act, Mr. Doe
filed a formal complaint with the Kansas Department of Children and Families.
Despite the complaint, Gildner remained the Does’ primary contact for the case, and
she opposed having the reporting children undergo further interviews or medical
exams. After Mr. Doe met with Gildner concerning the children’s abuse claims,
Gildner “threatened him” and said that she’d “possibly have to staff the case with the
District Attorney’s Office and possibly get the Court involved” if the Does refused to
participate in Family Preservation Services. Id. at 21–22 ¶¶ 73–74. After Gildner
issued this warning, she met with Abney and Webb. Together, they decided that if the
Does refused to participate in Family Preservation Services, Gildner would ask the
District Attorney to file child-in-need-of-care petitions for the Doe children. Then in
6
The First Amended Complaint doesn’t identify who made these reports to
Gildner.
5
March 2009, the Does reported to the Kansas Department of Children and Families
that the same uncle had sexually abused a third child of theirs.7
On April 20, 2009, in the Johnson County, Kansas district court, Gildner filed
ten child-in-need-of-care petitions, one for each Doe child.8 The petitions sought to
terminate the Does’ parental rights, to appoint a permanent custodian for the Doe
children, to remove the children temporarily from the Does’ custody, and to require
the Does to pay child support. That same day, the court set the petitions “for a non-
emergency hearing three weeks later, on May 11, 2009,” id. at 25 ¶ 92, and appointed
a Guardian Ad Litem (GAL) for the ten Doe children.
Just eight days after Gildner filed the petitions, Mr. Doe communicated with
Abney to express his willingness to participate in Family Preservation Services, but
Abney referred him to Gildner. Mr. Doe instead communicated with Webb, but she
too referred him to Gildner.
On April 30, 2009, a Doe relative called Gildner and asked her whether the
Does had “left town” and taken their children with them. Id. at 25 ¶ 100. That same
day, Gildner called Mr. Doe and left him a message about Family Preservation
Services but made no further effort to contact him for the next four days.
On May 4, 2009, Gildner “decided to make an uninvited visit to the Doe
home,” even though she knew that the family, except Mr. Doe, had gone to Douglas
7
Again, the First Amended Complaint doesn’t specify when the alleged abuse
happened.
8
At the time, the Doe children ranged in age from six months to thirteen years.
6
County, Colorado to visit the Does’ college friends, Dr. and Mrs. G. Id. at 26 ¶ 104.
Mr. Doe met Gildner outside the home, telling her that “all contact needed to be
through his attorney, whose name he provided.” Id. at 26 ¶ 105. When local police
officers asked for Dr. and Mrs. G’s address, Mr. Doe provided it.
On May 5, 2009, Gildner, Abney, and Webb sought an ex parte protective-
custody order for each Doe child.9 That same day, the Kansas state court issued the
orders, concluding (1) that “[r]easonable efforts have been made and have failed to
maintain the family and prevent the unnecessary removal of the [children] from”
their home and (2) that “reasonable efforts are not required to maintain the child[ren]
in the home because an emergency exists which threatens the safety of the
child[ren].” J.A. at 47.10 The court also found that “remaining in the home or
returning home would be contrary to the welfare of the child[ren]” and that
“immediate placement is in the best interest of the child[ren]” because:
after the child in need of care petitions were filed alleging physical,
sexual, mental, or emotional abuse, it is reported that the children have
been taken out of the area. The father was contacted on May 4, 2009,
and he would not provide any information on the whereabouts of the
children. The whereabouts and safety of the children are unknown.
Id.9
N.E.L. and M.M.A. attached to the First Amended Complaint one of the
Kansas ex parte orders as an example. Because they refer to this example in their
complaint and the order is central to their claims, we consider it. Gee v. Pacheco, 627
F.3d 1178, 1186 (10th Cir. 2010).
10
The court issued an order for each child, but N.E.L. and M.M.A. provide us
with only one order as an example.
7
Despite these conclusions, the issuing judge left blank some parts of the
protection-order forms. In the section concerning custody, for example, the judge
didn’t list where the children should be placed once recovered. And the judge didn’t
check the box that, if so marked, would have denied Mr. and Mrs. Doe visitation
rights during their children’s protective custody. Further, the judge didn’t check a
box empowering law-enforcement officers to take physical custody of the children.
Nor did the judge check another box providing for a restraining order (with a
corresponding blank space to identify who would be restrained). And the court didn’t
set a hearing date.
After obtaining the ex parte orders, Gildner, Abney, and Webb began
“working” with Lesa Adame, a social worker at the Colorado Department of Social
Services and the Douglas County Department of Human Services, and Carl Garza, a
deputy in the Douglas County Sheriff’s Office, “in meetings and over the phone and
by other means of electronic communication.” Id. at 40 ¶ 194. Together, the group
“conspired and agreed to deprive” N.E.L., M.M.A., and the eight other Doe children
of their rights. Id. at 41 ¶ 194.
Despite state laws, chiefly the Colorado Uniform Child-Custody Jurisdiction
and Enforcement Act (Colorado UCCJEA), Colo. Rev. Stat. §§ 14-13-101 to -403
8
(2009), requiring them to do so, Adame and Deputy Garza didn’t register the Kansas
ex parte protection order with a Colorado court before executing it.11
On May 6, 2009, the day after the court entered the ex parte protection orders,
Adame and Deputy Garza took the orders to Dr. and Mrs. G’s home. Deputy Garza
and Adame arrived at the home in his patrol car and together went to the front door.
After Dr. G answered the door, Adame or Deputy Garza told him that they had a
Kansas court order “to seize custody of all ten” Doe children and “demanded entry
and custody of the children.”12 Id. at 32 ¶ 132. Adame told Dr. G that employees of
the Kansas Department of Children and Families had sought her assistance.
Faced with this alarming situation, Dr. G called an attorney for advice. Acting
on the attorney’s advice, Dr. G asked Adame and Deputy Garza to produce a warrant.
Either Adame or Deputy Garza13 responded that they weren’t required to obtain a
11
See Colo. Rev. Stat. Ann. § 14-13-204 (official comment) (“In order for a
protective order that contains a custody determination to be enforceable in another
State it must comply with the provisions of [the Colorado UCCJEA] and the
[Parental Kidnapping Prevention Act].”); id. § 14-13-102 (official comment) (“The
definition of ‘child-custody proceeding’ has been expanded . . . . The inclusion of
proceedings related to protection from domestic violence is necessary . . . .”); see
also id. § 14-11-101(4) (“Notwithstanding [normal docketing procedures required for
out-of-state decrees], a child-custody determination, as that term is defined in section
14-13-102(3), issued by a court of another state shall be registered in accordance with
section 14-13-305.”).
12
The First Amended Complaint doesn’t specify which person made these
statements.
13
Nor does the First Amended Complaint specify which person made this
statement.
9
warrant to enter, claiming that “[w]e do this all the time.” Id. at 32 ¶ 137. After Dr. G
disputed the legality of the entry, Deputy Garza said something to the effect of, “I
don’t care what your lawyer says, we’re coming in and we’re taking these kids.” Id.
at 32 ¶ 139. Deputy Garza wore his sidearm throughout the confrontation, and he
threatened Dr. G “with arrest or contempt for interfering with law enforcement.” Id.
at 32 ¶ 138. Over Dr. G’s objection, Adame and Deputy Garza entered the home.
Inside, Adame announced and began implementing a safety plan,14 which
(1) required Mrs. Doe to leave Dr. G’s house immediately “to ensure safety of the
children”; (2) forbade Mrs. Doe from contacting the children through Dr. G and Mrs.
G; (3) declared that “the children are currently in the custody of Kansas state, [sic]
social services”; (4) advised Mrs. Doe that she must contact Gildner on May 7, 2009;
and (5) advised Dr. G and Mrs. G that they must “follow through with” the safety
plan as agreed.15 Id. at 49. All three adults signed the plan. In the same discussion,
Adame and Deputy Garza told Dr. G that Kansas officials would arrive later to take
physical custody of the Doe children. Later, by phone, Adame prohibited Mr. Doe
and the Doe children’s grandparents from talking to the children. That evening,
seeing the children’s distress, Dr. G and his wife chose to drive through the night to
14
To their First Amended Complaint, N.E.L. and M.M.A. attached the safety
plan that Adame had implemented at Dr. and Mrs. G’s home. Because they refer to
the safety plan in their complaint and it’s central to their claims, we consider it. Gee,
627 F.3d at 1186.
15
The safety plan included a sixth requirement that is redacted or illegible as
scanned into the filed joint appendix.
10
take the ten Doe children back to Kansas to turn them over to the state rather than
wait for the Kansas officials to arrive.
B. The Court Proceedings
Years later, on December 31, 2015, N.E.L. and M.M.A. filed a complaint in
the United States District Court for the District of Colorado, naming Adame, Deputy
Garza, Gildner, Abney, Webb, and Douglas County as defendants. Deputy Garza,
Adame, and Douglas County moved to dismiss the complaint, and Gildner, Abney,
and Webb later filed their own motion to dismiss. The magistrate judge
recommended denying both motions after granting N.E.L. and M.M.A. leave to
amend their complaint.
N.E.L. and M.M.A. then filed their First Amended Complaint, alleging under
42 U.S.C. § 1983 that Adame and Deputy Garza16 had violated the Fourth
Amendment by failing to register the Kansas ex parte order with a Colorado court
before executing it, in violation of the Colorado UCCJEA; by entering Dr. and Mrs.
G’s home without a warrant; and by illegally seizing them. They also alleged that
Adame, Deputy Garza, Gildner, Abney, and Webb had interfered with their right to
familial association in violation of the Due Process Clause of the Fourteenth
Amendment.
Based on these deprivations of their rights, N.E.L. and M.M.A. alleged that
Adame, Deputy Garza, Gildner, Abney, and Webb had engaged in a civil conspiracy
16
N.E.L. and M.M.A. also asserted this claim against Gildner, Abney, and
Webb, presumably for precipitating Adame and Deputy Garza’s actions.
11
to deprive them of their rights. And they alleged Douglas County’s § 1983 liability
for their Fourth Amendment injuries, based on two theories. First, they alleged that
Douglas County had an “unwritten policy, custom[,] or practice” of seizing children
“based on out-of-state ex parte court orders in violation of the United States
Constitution and Colorado law, including but not limited to the Colorado
[UCCJEA].” J.A. at 44 ¶ 216. Alternatively, they alleged Douglas County had acted
with deliberate indifference in failing to adopt policies requiring compliance, or in
failing to train personnel to comply, with “the United States Constitution and
Colorado law, including but not limited to the Colorado UCCJEA.” Id. at 44 ¶ 218.
Adame, Deputy Garza, and Douglas County moved to dismiss the First
Amended Complaint, contending that the statute of limitations had run for N.E.L. and
M.M.A.’s claims and, alternatively, that absolute, quasi-judicial, or qualified
immunity barred the claims. They also contended that the First Amended Complaint
insufficiently alleged Douglas County’s liability on a custom or policy theory
because it asserted only a single instance of unconstitutional conduct. Addressing
N.E.L. and M.M.A.’s deliberate-indifference claim, they contended that the First
Amended Complaint pleaded no supporting facts. In their motion, Adame and Deputy
Garza acknowledged partly relying on a 2007 state-court standing order to enter Dr.
and Mrs. G’s home. The 2007 state-court standing order permitted law-enforcement
and child-and-family-services personnel to interview alleged child-abuse victims “at
a school, daycare, or other place where the child may be located,” without a court
order or signed consent from a parent or a guardian. Id. at 63.
12
Gildner, Abney, and Webb separately moved to dismiss the First Amended
Complaint, alleging that the court lacked personal jurisdiction over them.
The magistrate judge recommended granting Adame, Deputy Garza, and
Douglas County’s motion to dismiss. He concluded that both prongs of the qualified-
immunity analysis supported dismissing the Fourth Amendment claim against Adame
and Deputy Garza, reasoning: (1) that N.E.L. and M.M.A. hadn’t sufficiently alleged
a constitutional violation, and (2) that they hadn’t shown that Adame and Deputy
Garza had violated clearly established law. Addressing the Fourteenth Amendment
claim against Adame and Deputy Garza, he recommended granting the motion to
dismiss on the first prong of the qualified-immunity analysis—that the plaintiffs had
failed to allege a constitutional violation. He also recommended dismissing the civil-
conspiracy claim after applying qualified immunity to defeat the underlying claims.
Having recommended dismissing N.E.L. and M.M.A.’s claims against Adame
and Deputy Garza based on qualified immunity, the magistrate judge declined to
address their statute-of-limitations affirmative defense. He next recommended
dismissing N.E.L. and M.M.A.’s claim against Douglas County because he found no
underlying constitutional violation. Addressing the claims against the Kansas
defendants, Gildner, Webb, and Abney, he recommended transferring the claims to
the United States District Court for the District of Kansas under 28 U.S.C. § 1631 in
lieu of dismissing them for lack of personal jurisdiction.
N.E.L. and M.M.A. objected to the magistrate judge’s recommendation on
several fronts. To establish that he had incorrectly recommended dismissing Douglas
13
County from the case, N.E.L. and M.M.A. offered a 2012 Douglas County internal
policy as evidence of the county’s deliberate indifference. That policy reads:
Out-of-State Court Orders are not valid on their face in Colorado. When
in contact with a citizen who wants an out-of-state court order enforced,
inform them that you can not [sic] do that as their order has no legal
standing in Colorado. Direct the person to the Douglas County District
Court to obtain a Supplemental Colorado Court Order. Once that has
been issued, the out-of-state order is considered ‘domesticated’ and the
Sheriff’s Office can enforce those provisions that are appropriate. (This
is not true, however, in the case of foreign Protection or Restraining
Orders. Those are enforceable. See PAT-D-201 – Foreign Protection
Orders.)
Id. at 209.
But the district court was unpersuaded and adopted the magistrate judge’s
recommendations. In so doing, the court granted Adame, Deputy Garza, and Douglas
County’s Rule 12(b)(6) motion to dismiss on qualified-immunity grounds and
transferred N.E.L. and M.M.A.’s claims against Gildner, Webb, and Abney to the
District of Kansas.
DISCUSSION
N.E.L. and M.M.A. appeal the district court’s Rule 12(b)(6) dismissal of their
Fourth Amendment and Fourteenth Amendment claims against Adame and Deputy
Garza; the dismissal of their civil-conspiracy claim against Adame and Deputy
Garza; and the dismissal of their claim against Douglas County. N.E.L. and M.M.A.
don’t appeal the district court’s transfer of their claims against Gildner, Webb, and
Abney to the District of Kansas.
14
“The legal sufficiency of a complaint is a question of law,” so we review de
novo a district court’s dismissal under Rule 12(b)(6). Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In reviewing Rule 12(b)(6) dismissals, we accept
the well-pleaded allegations of the complaint as true and view them in the light most
favorable to the plaintiff. Jones v. Hunt, 410 F.3d 1221, 1223 (10th Cir. 2005). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plaintiff may not solely rely on “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at
555. A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Pleading
facts “that are ‘merely consistent with’ a defendant’s liability” doesn’t meet that
standard. Id. (quoting Twombly, 550 U.S. at 557).
We first address the qualified-immunity issue and then turn to N.E.L. and
M.M.A.’s claim against Douglas County.17
17
Because we conclude that Adame and Deputy Garza are entitled to qualified
immunity, we don’t reach their statute-of-limitations affirmative defense.
15
A. Qualified Immunity
Qualified immunity protects government officials from liability for civil
damages if their conduct “does not violate clearly established statutory or
constitutional rights” that a reasonable person would have known about. White v.
Pauly, 137 S. Ct. 548, 551 (2017) (internal quotation marks omitted) (quoting
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)).18 “[Q]ualified immunity protects ‘all
but the plainly incompetent or those who knowingly violate the law.’” Mullenix, 136
S. Ct. at 308 (quoting Malley v Briggs, 475 U.S. 335, 341 (1986)). To overcome a
government official’s qualified immunity defense, a plaintiff must demonstrate (1)
that the official violated a statutory or constitutional right and (2) that the law clearly
establishes that right. Pyle v. Woods, 874 F.3d 1257, 1262 (10th Cir. 2017). We may
dispose of N.E.L. and M.M.A.’s claims on either prong. See id. at 1263. Here, we
dispose of them on the second.
The law clearly establishes a right if “existing precedent . . . place[s] the
statutory or constitutional question beyond debate.” Mullenix, 136 S. Ct. at 308(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “The dispositive question is
18
N.E.L. and M.M.A. assert that the district court incorrectly concluded that
clearly established law is proved when the plaintiff proffers case law with closely
analogous facts. They contend that the appropriate test for proving clearly established
law is found in Hope v Pelzer, 536 U.S. 730, 739–40 (2002), which they argue
requires plaintiffs to proffer case law that “only provide[s] ‘fair warning’ that an
officer’s conduct would violate the constitution.” Appellants’ Opening Br. at 25
(quoting Hope, 536 U.S. at 740). But as we have noted, Hope v. Pelzer appears to
have fallen out of favor, yielding to a more robust qualified immunity. See Aldaba v.
Pickens, 844 F.3d 870, 874 n.1 (10th Cir. 2016) (citing Mullenix, 136 S. Ct. at 308,
312 (2015)).
16
‘whether the violative nature of particular conduct is clearly established.’” Id.(quoting al-Kidd, 563 U.S. at 742). A case directly on point from the Supreme Court
or our circuit clearly establishes a right. See White, 137 S. Ct. at 551. The clearly-
established-law inquiry “must be undertaken in light of the specific context of the
case,” and isn’t met by proving “a broad general proposition.” Mullenix, 136 S. Ct. at
308 (internal quotation marks omitted) (quoting Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (per curiam)). The proffered case law “must be ‘particularized’ to the
facts” of the instant case. White, 137 S. Ct. at 552 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)). And it’s the plaintiff’s burden to identify the relevant
clearly established law. Rios v. Riedel, 456 F. App’x 720, 725 (10th Cir. 2012) (citing
Hilliard v. City & Cty. of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991)). We
conclude that no law clearly establishes that Adame or Deputy Garza violated N.E.L.
and M.M.A.’s Fourth Amendment and Fourteenth Amendment rights. We address
each claim in turn.
1. Fourth Amendment
N.E.L. and M.M.A. argue that Adame and Deputy Garza failed to first register
the ex parte Kansas order with a Colorado court as required by the Colorado
UCCJEA, entered Dr. and Mrs. G’s home without a warrant, and illegally seized
them. Alternatively, N.E.L. and M.M.A. allege that Adame and Deputy Garza relied
on the facially invalid Kansas ex parte order to enter the home. Each of these claims
alleges a Fourth Amendment violation.
17
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV. But our inquiry is narrower than whether Adame and Deputy
Garza violated the Fourth Amendment. We address only whether our precedent
clearly establishes that they did.
For clearly established law, N.E.L. and M.M.A. point us to cases broadly
discussing the Fourth Amendment warrant requirement and its exceptions,19 and more
helpfully, to two cases where social-services employees attempting to help abused
children allegedly ran afoul of the Fourth Amendment.20
In Roska v. Peterson, 328 F.3d 1230, 1238, 1242 (10th Cir. 2003), we
concluded that state employees violated the Fourth Amendment by entering a home
without a warrant to remove a young boy suffering from Munchausen Syndrome by
19
Appellants’ Opening Br. at 16 (citing Payton v. New York, 445 U.S. 573, 586
(1980) (holding that warrantless entries into a home are presumptively
unreasonable)); Appellants’ Opening Br. at 22 (citing United States v. Leon, 468 U.S.
897, 926 (1984) (holding that evidence gathered as a result of a facially valid search
warrant that is ultimately determined to lack probable cause shouldn’t be
suppressed)); Appellants’ Opening Br. at 16 n.2 (citing United States v. Rhiger, 315
F.3d 1283, 1286 (10th Cir. 2003) (holding that social guests have Fourth Amendment
expectations of privacy in others’ homes)); Appellants’ Opening Br. at 22, 28 (citing
United States v. Moland, 996 F.2d 259, 261 (10th Cir. 1993) (stating that the Leon
good-faith exception is inapplicable to an improperly executed warrant)).
20
Appellants’ Opening Br. at 24 (citing Roska v. Peterson, 328 F.3d 1230,
1238, 1242 (10th Cir. 2003)); Appellants’ Opening Br. at 15 (citing Jones, 410 F.3d
at 1224–25). But see Appellants’ Opening Br. at 24 (citing Gomes v. Wood, 451 F.3d
1122, 1125–27 (10th Cir. 2006) (concerning Fourteenth Amendment claim brought
under § 1983 by parents of child where social services had removed their child from
their home after the child’s pediatrician reported suspected child abuse)).
18
Proxy (MSBP) from his parents’ custody. We stressed that the social workers “did
not even attempt to obtain an ex parte order” before entering the Roskas’ home
without a warrant to take the boy, Rusty, into their custody. Id. at 1246. We
determined that because “various doctors had suspected that Rusty was a victim of
MSBP for quite some time, and the record indicate[d] that there was nothing
particularly unusual about Rusty’s condition at the time he was removed,” “no
evidence” existed that could have led “a reasonable state actor to conclude that there
were exigent circumstances” permitting entry without a warrant. Id. at 1240–41.
Here, Adame and Deputy Garza did have an ex parte order when they entered
Dr. and Mrs. G’s home without a warrant and purported to place N.E.L., M.M.A.,
and the eight other Doe children in Kansas’s custody. The social workers in Roska
never even attempted to get such an order. 328 F.3d at 1246. So though Roska may
be generally analogous to the present case, see al-Kidd, 563 U.S. at 742, it is far from
“particularized” to the instant facts, see White, 137 S. Ct. at 552 (quoting Anderson,
483 U.S. at 640). In short, Roska doesn’t clearly establish that Adame and Deputy
Garza acted unreasonably.
In Jones v. Hunt, a woman sued a county sheriff and a social worker under
§ 1983 for illegally seizing her under the Fourth Amendment when she was sixteen.
410 F.3d at 1224–25. There, the county sheriff and social worker had met with her at
school and told her that she couldn’t live with her mother. Id. at 1224. They also
informed her that contrary to a temporary protection order against her father, she had
to live with him. Id. We found this seizure unreasonable under the Fourth
19
Amendment because the sheriff and social worker met the girl in “a small, confined
school counselor’s office”; the girl “knew that [the sheriff and social worker] had the
authority to determine her custodial care”; the sheriff and social worker repeatedly
threatened to “arrest her and follow her for at least the next two years, ensuring that
her ‘life would be hell’”; the meeting lasted “an ‘hour or two’”; and she was
“emotionally fragile and distraught” throughout the meeting. Id. at 1226.
Unlike the governmental employees in Jones, Adame and Deputy Garza
purported to place N.E.L. and M.M.A. into Kansas’s custody under the authority of
an ex parte order. That order stated that an emergency threatened the safety of the
Doe children, that “remaining in the home . . . would be contrary to the welfare of the
child[ren],” and that child-in-need-of-care petitions had been filed alleging “physical,
sexual, mental, or emotional abuse.” J.A. at 47. The social worker and county sheriff
in Jones acted contrary to a temporary protection order, not under the authority of
one. 410 F.3d at 1224. So Jones doesn’t clearly establish that Adame and Deputy
Garza acted unreasonably.
Finally, N.E.L. and M.M.A. cite no authority concluding that failing to register
an out-of-state ex parte order with a Colorado court before its execution constitutes a
Fourth Amendment violation. No case they cite even mentions the Colorado
UCCJEA or its registration requirement. Having failed to provide us authority clearly
establishing that violating the Colorado UCCJEA is a Fourth Amendment violation,
N.E.L. and M.M.A. haven’t met their burden. So their Fourth Amendment claim fails
on this theory, too.
20
2. Fourteenth Amendment
N.E.L. and M.M.A. next allege that Adame and Deputy Garza deprived them
of their Fourteenth Amendment right to familial association by requiring Mrs. Doe to
leave Dr. and Mrs. G’s home; by prohibiting N.E.L. and M.M.A. from leaving with
Mrs. Doe; by prohibiting N.E.L. and M.M.A. from traveling with Mrs. Doe, Mr. Doe,
and their grandparents; and by detaining N.E.L. and M.M.A. for the purpose of
terminating Mr. and Mrs. Doe’s parental rights.
The Fourteenth Amendment’s Due Process Clause provides that no state shall
“deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. Under that provision, “[a] child has a constitutionally
protected liberty interest in a relationship with her parent.” Lowery v. Cty. of Riley,
522 F.3d 1086, 1092 (10th Cir. 2008). To state a claim for interference with familial
association, a plaintiff must sufficiently allege that the government actor “inten[ded]
to interfere with” the family relationship. Trujillo v. Bd. of Cty Comm’rs, 768 F.2d
1186, 1190 (10th Cir. 1985).
Here, N.E.L. and M.M.A. fail to provide us any authority clearly establishing
their right to be free from state interference into their familial relationships on similar
facts.21 In so doing, they have failed to meet their burden. Rios, 456 F. App’x at 725
21
N.E.L. and M.M.A. fail to cite in their opening brief any authority clearly
establishing that Adame and Deputy Garza violated the Due Process Clause of the
Fourteenth Amendment. See Appellants’ Opening Br. at 28–32; Appellants’ Reply
Br. at 24–25; see also Appellees’ Answer Br. at 38 (noting lack of cited authority).
But they do cite to Gomes, 451 F.3d at 1128, a Fourteenth Amendment § 1983 case,
21
(citing Hilliard v. City & Cty. of Denver, 930 F.2d 1516, 1518 (10th Cir. 1991)). So
they haven’t shown that the law clearly establishes that Adame and Deputy Garza
violated the Fourteenth Amendment’s Due Process Clause.22
B. Douglas County’s Liability
N.E.L. and M.M.A. alleged that Douglas County (1) had a policy or custom of
seizing children “based on out-of-state ex parte orders in violation of the United
States Constitution and Colorado law, including but not limited to the Colorado
[UCCJEA],” J.A. at 44 ¶ 216; or alternatively, (2) acted with deliberate indifference
by failing to adopt a policy requiring its deputy sheriffs to comply, or in failing to
as clearly establishing their Fourth Amendment claim. See Appellants’ Opening Br.
at 24–25 (arguing that Gomes clearly establishes a parent’s right to a prompt post-
deprivation hearing and that, because Colorado didn’t provide the Does such a
hearing, Adame and Deputy Garza unreasonably seized N.E.L. and M.M.A. under the
Fourth Amendment). Even if we were to consider Gomes as authority supporting
N.E.L. and M.M.A.’s Fourteenth Amendment Due Process claim, it wouldn’t help
them. True, broadly, a parent has a right to a post-deprivation hearing under the
Fourteenth Amendment. But that principle sheds no light on a child’s placement into
state custody under the authority of an ex parte order declaring the child in immediate
danger. So Gomes isn’t particularized to this case’s facts and doesn’t clearly establish
that Adame and Deputy Garza violated the Fourteenth Amendment’s Due Process
Clause.
22
Because Adame and Deputy Garza are entitled to qualified immunity against
N.E.L. and M.M.A.’s Fourth Amendment and Fourteenth Amendment claims, they
are also entitled to such qualified immunity against N.E.L. and M.M.A.’s civil-
conspiracy claim based on the alleged violation of those same rights. See Bisbee v.
Bey, 39 F.3d 1096, 1102 (10th Cir. 1994) (determining that civil-conspiracy claims
under 42 U.S.C. § 1985(3) are subject to a qualified immunity defense); see also
Hale v. Townley, 45 F.3d 914, 921 (5th Cir. 1995) (determining that a conspiracy
claim wasn’t actionable where officers in the case were “alleged to have violated [the
plaintiff’s] First Amendment rights” but were also “entitled to qualified immunity.”).
22
train its officers to comply, with “the United States Constitution and Colorado law,
including but not limited to the Colorado UCCJEA,” Id. at 44 ¶ 218. And, they
contend, this policy or custom, or this failure to adopt a policy or train its officers,
led the county’s personnel to violate the Fourth Amendment.
Under Monell v. New York City Department of Social Services, 436 U.S. 658,
690–91 (1978), counties can be liable under § 1983 even when their individual
employees are shielded by qualified immunity. To state a viable Monell claim against
a county, a plaintiff must sufficiently allege that the county has a “‘policy’ or
‘custom’ that caused the plaintiff’s injury.” Bd. of Cty. Comm’rs v. Brown, 520 U.S.
397, 403 (1997) (citing Monell, 436 U.S. at 694); see also Moss v. Kopp, 559 F.3d
1155, 1168 (10th Cir. 2009) (reviewing a plaintiff’s § 1983 claim against a county
under Rule 12(b)(6)). But a county “may not be held liable under § 1983 solely
because it employs a tortfeasor.” Brown, 520 U.S. at 403.
A county policy or custom may take the form of “a formal regulation or policy
statement” or an informal custom “amount[ing] to a widespread practice that,
although not authorized by written law or express municipal policy, is so permanent
and well settled as to constitute a custom or usage with the force of law.” Bryson v.
City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010) (alteration in original)
(internal quotation marks omitted) (quoting Brammer-Hoelter v. Twin Peaks Charter
Acad., 602 F.3d 1175, 1189–90 (10th Cir. 2010)). When the liability theory rests on a
county’s “failure to act,” the plaintiff must show that the county’s inaction was the
result of “deliberate indifference.” Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
23
Cir. 1993) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Typically, a
“single incident” of unconstitutional behavior “is not sufficient to impose [municipal]
liability.” Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
N.E.L. and M.M.A. argue that Douglas County had either a formal policy or an
unwritten custom that caused their injuries, or alternatively, that the county acted
with deliberate indifference, which caused their injuries. We address all three
theories in turn.
1. Formal Policy
N.E.L. and M.M.A. allege that, in 2009, Douglas County had a formal policy
of complying with a 2007 state-court standing order that, they contend, leads Douglas
County employees to violate the Fourth Amendment. But N.E.L. and M.M.A. didn’t
mention the standing order in their First Amended Complaint or even in their opening
brief to this court. See J.A. at 44 ¶¶ 216–17; Appellants’ Opening Br. at 34–35
(discussing only Douglas County’s (1) informal custom or policy and (2) its
deliberate indifference as the bases for its liability). N.E.L. and M.M.A. first raise
this formal-policy theory of liability in their reply brief on appeal. See Appellants’
Reply Br. at 1–2. So they have waived the argument. United States v. Pickel, 863
F.3d 1240, 1259 (10th Cir. 2017) (determining that when a party “makes [an]
argument for the first time in his reply brief,” it is waived.).
Even absent waiver, we would have concluded that N.E.L. and M.M.A. failed
to sufficiently allege that the standing order caused their seizure in violation of the
Fourth Amendment. The standing order doesn’t authorize county officials to enter
24
homes without a warrant. So N.E.L. and M.M.A. haven’t stated sufficient facts to
sustain their formal-policy-based Monell claim.
2. Informal Custom
N.E.L. and M.M.A. allege that the 2012 Douglas County policy concerning the
enforceability of out-of-state court orders and Deputy Garza’s (or Adame’s)23
statement, “we do this all the time,” evince a county custom that caused their illegal
seizure. J.A. at 44 ¶ 216. For a § 1983 claim based on custom to withstand Rule
12(b)(6) dismissal, the plaintiff must sufficiently allege that the custom amounts to a
widespread, permanent, and well-settled practice with the force of law. Moss, 602
F.3d at 1169 (quoting Melton v. Okla. City, 879 F.2d 706, 724 (10th Cir. 1989), rev’d
in part en banc on other grounds, 928 F.2d 920, 932 (10th Cir. 1991)).
To support their argument of a county custom, N.E.L. and M.M.A. first point
us to the Douglas County’s 2012 policy concerning the enforceability of out-of-state
ex parte orders. But N.E.L. and M.M.A. didn’t attach this policy to their First
Amended Complaint or even reference it by name. Instead, the First Amended
Complaint refers vaguely to “Douglas County’s discovery responses, including
written policies produced in this litigation.” J.A. at 44 ¶ 216. And N.E.L. and M.M.A.
fail to allege facts plausibly showing that Douglas County followed this policy in
2009 (when the alleged illegal seizure occurred). See Gee, 627 F.3d at 1186(permitting consideration of documents outside of the complaint under Rule 12(b)(6)
23
It isn’t clear from the First Amended Complaint whether Deputy Garza or
Adame made this statement.
25
when (1) the complaint refers to the documents or incorporates them by reference or
(2) the documents are undisputed, authentic, and central to the plaintiffs’ claims,
among other inapplicable exceptions). So because N.E.L. and M.M.A. didn’t quote or
reference this policy in their First Amended Complaint, and because it hasn’t been
sufficiently alleged as the county’s authentic and undisputed policy in 2009, the
policy fails to meet Gee’s exceptions. Thus, we don’t consider it in our Rule 12(b)(6)
analysis.
We see just one fact allegation in the First Amended Complaint that could
possibly support their Monell county-custom claim—Deputy Garza’s (or Adame’s)
statement, “we do this all the time.” J.A. at 44 ¶ 216. But a single statement doesn’t
suffice to allege a continuing, persistent, and widespread county custom. So N.E.L.
and M.M.A. haven’t alleged sufficient facts to state a custom-based Monell claim
against Douglas County.
3. Deliberate Indifference
N.E.L. and M.M.A. contend that Douglas County’s failure to adopt a policy
mandating compliance with, or its failure to train its deputy sheriffs to comply with,
“the United States Constitution and Colorado law, including but not limited to the
Colorado UCCJEA” amounted to deliberate indifference. Id. at 44 ¶ 218. Deliberate
indifference may be shown “when the [county] has actual or constructive notice that
its action or failure to act is substantially certain to result in a constitutional violation,
and it consciously or deliberately chooses to disregard the risk of harm.” Carr v.
26
Castle, 337 F.3d 1221, 1229 (10th Cir. 2003) (quoting Barney v. Pulsipher, 143 F.3d
1299, 1307 (10th Cir. 1998)).
The First Amended Complaint makes the following allegations related to
deliberate indifference:
190. Douglas County failed to adopt and/or implement any policy or
policies prohibiting the unconstitutional seizure of children on the basis
of out-of-state ex parte orders when such policy was needed to prevent
predictable violations by Douglas County personnel.
191. The need for a policy or policies prohibiting the unconstitutional
seizure of children on the basis of out-of-state ex parte orders was so
obvious that Douglas County’s failure to adopt and implement any such
a policy is properly characterized as deliberate indifference.
192. Douglas County was deliberately indifferent to training its
employees, including Adame and Garza, in protecting the Plaintiffs’
procedural and substantive rights under the United States Constitution
and the [Colorado UCCJEA] to be free from unlawful seizure without
probable cause.
193. In the alternative, Douglas County acted with deliberate
indifference in authorizing or in failing to adopt a policy or in failing to
train personnel, including Garza and Adame, to ensure that the Ex Parte
orders to seize Plaintiff and his siblings were executed upon only after
such orders were examined for facial validity as to probable cause.
....
218. In the alternative, prior to seizing Plaintiffs, Douglas County acted
with deliberate indifference in failing to adopt a policy requiring Garza,
or in failing to train personnel, including Garza, to comply with the
United States Constitution and Colorado law, including but not limited
to the Colorado UCCJEA
J.A. at 40 ¶¶ 189–93, 44 ¶ 218.
But none of these facts plausibly show that Douglas County’s failing to adopt
a policy on, or in failing to train its officers on, the enforceability of out-of-state ex
27
parte orders “is substantially certain to result in” illegal seizures or entries into homes
without warrants. Carr, 337 F.3d at 1229 (quoting Barney, 143 F.3d at 1307); see
also Shue v. Laramie Cty. Det. Ctr., 594 F. App’x 941, 946 (10th Cir. 2014)
(affirming a Rule 12(b)(6) dismissal of a deliberate indifference claim where the
complaint failed to aver that the municipality’s failure to act was the “moving force”
behind the plaintiff’s constitutional injury). And even if we were to assume that the
First Amended Complaint plausibly alleges a causal relationship between Douglas
County’s failure to act and the Fourth Amendment violations claimed here, the First
Amended Complaint would still fail to state a claim under Rule 12(b)(6).
As written, the First Amended Complaint’s allegations don’t plausibly show
that Douglas County had (1) “actual or constructive notice” that its failure to act
would lead to illegal seizures or entries into homes without warrants, and (2) that the
county “consciously or deliberately [chose] to disregard the risk of harm.” Carr, 337
F.3d at 1229 (quoting Barney, 143 F.3d at 1307); see Lewis v. McKinley Cty. Bd. of
Cty. Comm’rs, 425 F. App’x 723, 728 (10th Cir. 2011) (affirming a Rule 12(b)(6)
dismissal where the complaint “lack[ed] sufficient allegations to meet the element of
deliberate indifference”). N.E.L. and M.M.A.’s allegations at best show that it’s a
“sheer possibility” that Douglas County’s failure to act led to N.E.L. and M.M.A.’s
injuries, not that the county’s liability is plausible. Iqbal, 556 U.S. at 678. So N.E.L.
and M.M.A. have failed to allege sufficient facts to state a deliberate-indifference
Monell claim against Douglas County.
28
CONCLUSION
For the above reasons, we AFFIRM the district court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
29