Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Transcription

1 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 13-cv MSK - MJW JOHN DOE, JANE DOE, Y.C. by her parents and next friends, E.C. by her parents and next friends, E.S.C. by his parents and next friends, and J.C. by his parents and next friends, Plaintiffs, v. JOANNA MCAFEE, El Paso County Department of Human Services intake caseworker, individually, and as an agent, employee, and representative of El Paso County, KATHY TREMAINE, El Paso County Department of Human Services caseworker, individually, and as an agent, employee, and representative of El Paso County, PATSY HOOVER, El Paso County Department of Human Services supervisor, individually, and as an agent, employee, and representative of El Paso County, LISA LITTLE, SUPERVISOR OF THE DAY, El Paso County Department of Human Services supervisor, individually, and as an agent, employee, and representative of El Paso County, RICHARD BENGTSSON, Executive Director, El Paso County Department of Human Services, individually, and as an agent, employee, and representative of El Paso County, JEFF GREENE, County Administrator over El Paso County Department of Human Services, individually, and as an agent, employee, and representative of El Paso County, JOEY HARRIS, Officer, El Paso County Sheriff s Office, individually, and as an agent, employee, and representative of the El Paso County Sheriff s Office, JON PRICE, Officer, El Paso County Sheriff s Office, individually, and as an agent, employee, and representative of the El Paso County Sheriff s Office, BENJAMIN DEARMONT, Supervisor, El Paso County Sheriff s Office, individually, and as an agent, employee, and representative of the El Paso County Sheriff s Office, MITCHELL MIHALKO, Officer, El Paso County Sheriff s Office, individually, and as an agent, employee, and representative of the El Paso County Sheriff s Office, TERRY MAKETA, Sheriff of El Paso County, as an agent, employee, and representative of El Paso County,

2 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 2 of 22 EL PASO COUNTY BOARD OF COUNTY COMMISSIONERS, CHAD HAYNES, Investigator, 4 th Judicial District Attorney s Office, individually, and as an agent, employee, and representative of the 4 th Judicial District Attorney s Office, RANDY STEVENSON, Deputy Chief Investigator, 4 th Judicial District Attorney s Office, individually, and as an agent, employee, and representative of the 4 th Judicial District Attorney s Office, JONATHAN HUDSON, Officer, Monument Police Department, individually, and ANDREW ROMANO, Officer, Monument Police Department, individually, Defendants. COUNTY DEFENDANTS MOTION TO DISMISS THIRD AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(1) and 12(b)(6) COME NOW Defendants Joanna McAfee, Kathy Tremaine, Patsy Hoover, Lisa Little, Richard Bengtsson ( DHS Defendants ), Jeff Greene ( Defendant Greene ), Deputies Joey Harris, Jon Price, Benjamin Dearmont, Mitchell Mihalko, Terry Maketa ( EPSO Defendants ), El Paso County Board of County Commissioners ( BOCC Defendant ), Chad Haynes, Randy Stevenson ( DA Defendants ), (collectively County Defendants ), by and through the Office of the County Attorney of El Paso County, Colorado, who move to dismiss all of Plaintiff s claims against County Defendants pursuant to Fed.R.Civ.P. 12(b)(1) and (6). County Defendants certify that counsel extensively discussed via telephone the grounds for this motion and the relief requested with Plaintiffs counsel and counsel for the Town of Monument Defendants pursuant to D.C. Colo. L. Civ. 7.1(A) on June 13, County Defendants conferred again with 2

3 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 3 of 22 Plaintiffs counsel with an detailing County Defendants grounds for dismissal during the conferral. Upon filing of the First Amended Complaint, County Defendants conferred again with Plaintiffs counsel via , and reiterated grounds for dismissal on July 2, 2013, then filed County Defendants Motion to Dismiss First Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on July 26, 2013, to which Plaintiffs responded on August 5, 2013 and simultaneously filed the Second Amended Complaint 1. Plaintiffs counsel opposes the relief requested herein. CLAIMS The Third Amended Complaint ( TAC ) alleges Twelve Claims for Relief: Y.C. was allegedly subjected to an attempted illegal search 2 in violation of the Fourth Amendment of the United States Constitution and subjected to unconstitutional coercion 3 in violation of the Fourteenth Amendment of the United States Constitution; (ii) Y.C. s right to privacy, secured by the Fourth and Fourteenth Amendment of the United States Constitution, were violated by the attempted search; (iii) Y.C. was allegedly subjected to an unlawful seizure based on a Colorado District Court signed custody order and subsequent felony stop by the Colorado State Patrol; 1 The Third Amended Complaint became the operative complaint by Order of U.S. Magistrate Judge Michael J. Watanabe on August 20, The First and Second Claims are both related to Defendants alleged attempts to conduct a strip search on April 19, The term attempted is used because TAC, 193, alleges that Y.C. refused to be subjected to a search. 3 This Coercive behavior is not alleged to have resulted in consent to the search. TAC, 193, 199, 200,

4 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 4 of 22 (iv) John Doe alleges that his refusal to compel Y.C. to show DHS Defendants Y.C. s injuries was protected under the First Amendment of the United States Constitution, and Defendants chilled his exercise of that right; (v) Jane Doe alleges that her refusal to compel Y.C. to show DHS Defendants Y.C. s injuries was protected under the First Amendment of the United States Constitution, and Defendants chilled her exercise of that right; (vi) Jane Doe was allegedly subjected to an unlawful search and seizure based on a felony stop conducted by the Colorado State Patrol; (vii) John and Jane Doe allege that their liberty interests in care, custody and control of their children, and in familial association and privacy were violated by the application and issuance of the custody order, in violation of the Fourth and Fourteenth Amendments of the United States Constitution; (viii) E.C., E.S.C., and J.C. allege they were subjected to removal from the custody of their parents in violation of the Fourth and Fourteenth Amendments to the United States Constitution; (ix) E.C., E.S.C., and J.C. allege that DHS Defendants conducting an interview at their school resulted in an illegal seizure, in violation of the Fourth Amendment; (x) all Plaintiffs generally allege that their First, Fourth, and Fourteenth Amendment rights and liberty interests were violated by the policies of 4

5 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 5 of 22 DHS Defendants, Defendant Greene, BOCC Defendant, and EPSO Defendants; (xi) all Plaintiffs generally allege defendants failure to train and supervise their employees resulted in violation of the First, Fourth and Fourteenth Amendments to the United States Constitution; and (xii) County defendants instituted a retaliatory prosecution against John Doe by County Defendants, DHS Defendant McAfee, EPSO Defendant Mihalko and DA Defendants Haynes and Stevenson. ARGUMENT County Defendants incorporate their Eleventh Amendment Immunity arguments from their Brief in Support of their Motion to Dismiss ( Brief ) II. to all claims against DHS Defendants and DA Defendants. County Defendants further incorporate their qualified immunity arguments from their Brief III. to all claims against individual County Defendants. I. FIRST CLAIM: UNREASONABLE SEARCH AND UNCONSTITUTIONAL COERCION ALLEGED BY PLAINTIFF Y.C.AGAINST DHS AND EPSO DEFENDANTS A. Burden of Proof. 1. Rule 12(b)(6): A motion to dismiss is properly granted when a complaint provides no more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The inquiry is "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, 5

6 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 6 of 22 LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Twombly, 550 U.S. at 570). 2. Qualified Immunity: County Defendants raise the defense of qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See, Brief III. B. Elements of Claims Asserted or Potentially Asserted in First Claim. 1. Elements of claim of Fourth Amendment unconstitutional search. In order to establish the elements of a Fourth Amendment claim, Plaintiff must plausibly allege: (1) an objectively unreasonable search or seizure 4 ; which (2) took place under color of law; and (3) through means intentionally applied 5. Personal participation is an essential element of this 42 U.S.C claim. See, Brief I. 2. Elements of Claim of Fourteenth Amendment Substantive Due Process Violation. Y.C. s substantive due process claim is raised in the context of an alleged Fourth Amendment violation. Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing such a claim. Graham v. Connor, 490 U.S. 386, 395 (1989). The Fourth Amendment addresses allegations of unreasonable searches, and the standards in I. (B)(1), above, are appropriately applied for consideration of both potential claims 4 Bella v. Chamberlain, 24 F.3d 1251, (10th Cir. N.M. 1994) 5 Brower v. County of Inyo, 489 U.S. 593 (1989) 6

7 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 7 of 22 contained in the First Claim. Albright v. Oliver, 510 U.S. 266, 114 S. Ct. 807, 809, 127 L. Ed. 2d 114 (1994). Alternatively, personal participation is an essential element of this 42 U.S.C claim. See, Brief I. To the extent Plaintiff claims that Defendants abused their authority in an arbitrary and oppressive action in a manner that shocks the conscience 6, the TAC falls short in alleging such action. The First Claim does not even recite the terms arbitrary and oppressive or shocks the conscience, much less allege facts supporting them. See Brief Section IV. C. Elements of claim of unlawful search by Y.C. against DHS Defendant McAfee not supported by the Third Amended Complaint. 1. Attempted Strip Search Plaintiffs fail to allege all three elements. No clearly established right was violated. To the extent Plaintiff Y.C. claims a Fourth Amendment violation by Defendant McAfee for an attempted strip-search, Plaintiff s own allegations concede that no such search actually occurred. TAC, 41; 43; 70. Therefore, no Fourth Amendment violation occurred and Plaintiff Y.C. has no standing to bring this claim. Sanchez v. Port Authority of New York & New Jersey, 1992 U.S. Dist. LEXIS 1637(S.D.N.Y. Feb. 17, 1992); Abbott Labs v. Gardner, 387 U.S. 136, , (1967). D. Elements of claim of unlawful search by Y.C. against DHS Defendants Hoover and Little not supported by the Third Amended Complaint. 1. Attempted Strip Search 6 See Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008) 7

8 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 8 of 22 Plaintiff fails to allege all three elements. No clearly established right was violated. Further, Plaintiff fails to establish any personal participation by Defendants Hoover and Little in the attempted search. See Brief I. and IV. E. Elements of claim of unlawful search by Y.C. against EPSO Defendants not supported by the Third Amended Complaint. 1. Attempted Strip Search Plaintiff fails to allege all three elements. No clearly established right was violated. Further, Plaintiff fails to establish any personal participation by Defendants Price, Harris and Dearmont in the attempted search. See Brief I. and IV. F. Elements of claim of Fourteenth Amendment Substantive Due Process violation by Y.C. not supported by the Third Amended Complaint. See Section I B above. II. SECOND CLAIM: RIGHT TO PRIVACY SECURED BY THE FOURTH AND FOURTEENTH AMENDMENTS BY PLAINTIFF Y.C. AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of a Fourth Amendment Right to Privacy Claim. Similar to the First Claim, the Second Claim is raised under the Fourth and Fourteenth Amendments, based on the same alleged facts surrounding the April 19, 2012 incident. While it is clear that Y.C. alleges a Fourth Amendment violation See Section I. above, it is not clear whether statements about the 8

9 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 9 of 22 Fourteenth Amendment protecting a sphere of privacy in the naked body 7 are intended to articulate a separate substantive due process claim or simply support the Fourth Amendment claim. Regardless, the Second Claim should be analyzed under -Section I. above. C. Elements of a Fourteenth Amendment Right to Privacy Claim. To the extent a Fourteenth Amendment privacy claim is considered, the Court should apply the following analytical framework: (1) if the party asserting right has legitimate expectation of privacy; (2) if the subject of the privacy interest has been disclosed, Plaintiffs would need to establish that disclosure did not serve a compelling state interest; and (3) whether disclosure was made in the least intrusive manner. Nilson v. Layton City, 45 F.3d 369 (10th Cir. 1995). D. Elements of Right to Privacy Claim under the Fourth Amendment not supported by the Third Amended Complaint. Plaintiff fails to allege all three elements against Defendants. No clearly established right was violated. Further, Plaintiff fails to establish any personal participation by DHS Defendants Hoover Little, and EPSO Defendants Harris, Price and Dearmont. E. Elements of Right to Privacy Claim under the Fourteenth Amendment not supported by the Third Amended Complaint. Plaintiff fails to establish elements (2) and (3). No clearly established right was violated. In fact, the claim is based entirely upon a strip search that never happened because Y.C. refused to expose her injuries then fled with Jane Doe. TAC, 41, TAC,

10 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 10 of 22 III. THIRD CLAIM: UNREASONABLE SEIZURE BY PLAINTIFF Y.C. AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of a Fourth Amendment Unreasonable Seizure Claim. See I. (B)(1) above. C. Elements of Fourth Amendment Unreasonable Seizure Claim not supported by the Third Amended Complaint. Plaintiff Y.C. next contends that she was seized by the Colorado State Patrol in a felony stop. TAC, 197. While with this claim Plaintiff properly alleges a seizure contemplated by the Fourth Amendment, the Third Amended Complaint does not support elements 1 or 3. No clearly established right was violated. Further, Plaintiff fails to allege personal participation on the part of DHS defendants, that the seizure was unreasonable. 1. DHS Defendants did not personally participate in the felony stop. Plaintiff Y.C. fails to plead any personal participation by DHS Defendants in the felony-stop seizure of Plaintiff Y.C. Plaintiff Y.C. was seized by the Colorado State Patrol. TAC, ; EPSO Defendants did not personally participate in the felony stop. Plaintiff Y.C. also fails to establish any individual personal participation by any EPSO Defendants; the stop was effectuated by the Colorado State Patrol. Id. 10

11 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 11 of The custody order was valid and reasonable. The facts alleged in the Third Amended Complaint support a conclusion that DHS and EPSO Defendants did reasonably believe that Y.C. faced danger to warrant seeking temporary protective custody. See Brief Section VI, A. 4. The felony stop was a reasonable seizure. The felony stop seizure of the vehicle in which Y.C. was a passenger was based upon probable cause to believe evidence of a crime existed in the vehicle (injuries to minor child, Plaintiff Y.C.). IV. FOURTH CLAIM: VIOLATION OF FIRST AMENDMENT RIGHTS BY PLAINTIFF JOHN DOE AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of First Amendment Retaliation Claim. To establish a 1983 First Amendment retaliation claim, Plaintiff must allege sufficient facts to support a plausible finding that: (1) Plaintiff was engaged in a constitutionally protected activity; (2) a defendant's action caused Plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) a defendant's action was substantially motivated as a response to Plaintiffs exercise of his First Amendment speech rights. C. Elements of claim for First Amendment violation not supported by the Third Amended Complaint. 11

12 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 12 of 22 Plaintiff fails to allege facts to support all three elements: Element 1: the Third Amended Complaint does not allege that John Doe was engaged in constitutionally protected activity; Element 2: the Third Amended Complaint does not allege that John Doe suffered an injury that would chill a person of ordinary firmness from exercising their constitutional rights; and Element 3: the Third Amended Complaint does not allege that that Defendants actions were motivated as a response to an assertion of First Amendment rights. No clearly established right was violated. VII. Further, Plaintiff fails to allege personal participation. See Brief I. and V. FIFTH CLAIM: VIOLATION OF FIRST AMENDMENT RIGHTS BY PLAINTIFF JANE DOE AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above.. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of First Amendment Retaliation Claim. See IV. (B) above. C. Elements of claim for First Amendment violation not supported by the Third Amended Complaint. Plaintiff fails to allege facts to support all three elements: Element 1: The Third Amended Complaint does not allege that Jane Doe was engaged in constitutionally protected activity; Element 2: The Third Amended Complaint does not allege that Jane Doe suffered an injury that would chill a person of 12

13 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 13 of 22 ordinary firmness from exercising their constitutional rights; and Element 3: The Third Amended Complaint does not allege that that Defendants actions were motivated as a response to an assertion of First Amendment rights. No clearly established right was violated. Further, Plaintiff fails to allege personal participation. See Brief I. and VIII. VI. SIXTH CLAIM: VIOLATION OF FOURTH AMENDMENT SEARCH AND SEIZURE RIGHTS BY PLAINTIFF JANE DOE AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of claim of Fourth Amendment unconstitutional search and seizure. See I. (B)(1) above. C. Elements of claim for Fourth Amendment violation not supported by the Third Amended Complaint. 1. Elements of claim unlawful search and seizure by Jane Doe against DHS Defendants not supported by the Third Amended Complaint. Plaintiff alleges a seizure contemplated by the Fourth Amendment. The Third Amended Complaint does not support elements 1 or 3. Furthermore, Plaintiff fails to allege personal participation. See Section III. (C) above. 2. Elements of claim unlawful search and seizure by Jane Doe against EPSO Defendants not supported by the Third Amended Complaint. 13

14 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 14 of 22 Plaintiff alleges a seizure contemplated by the Fourth Amendment. The Third Amended Complaint does not support elements 1 or 3. Further, Plaintiff fails to allege personal participation. See Section III. (C) above. VII. SEVENTH CLAIM: VIOLATION OF FOURTH AND FOURTEENTH AMENDMENT LIBERTY INTERESTS IN CARE, CUSTODY AND CONTROL OF CHILDREN, AND IN FAMILIAL ASSOCIATION AND PRIVACY BY PLAINTIFFS JOHN AND JANE DOE AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of a Fourth Amendment Claim. See I. (B)(1) above. C. Elements of a Fourteenth Amendment substantive and procedural due process claim. The elements of claim of violation of right to familial association and privacy: To determine whether a person's familial association rights have been violated, a court weighs two factors: 1) the state's interests in investigating reports of child abuse; and (2) a plaintiff s interests in the familial right of association. Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993). D. Elements not supported by the Third Amended Complaint. 1. Elements of claim of Fourth Amendment violation of John and Jane Doe against DHS and EPSO Defendants associated with the basis for the Custody Order not supported by the Third Amended Complaint. 14

15 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 15 of 22 Plaintiffs fail to articulate any basis for any Fourth Amendment violation or any of the three associated elements for Claim Seven. Plaintiffs appear to assert that their Fourth Amendment rights were violated when a court issued a custody order concerning their children. TAC, ; 271. Plaintiffs John and Jane Doe do not have standing to assert a violation of constitutional rights for their children. Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir.1990) (citing Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.1982)). No clearly established right was violated. County Defendants incorporate their argument from Section I. (B)(1) above concerning Jane Doe s Fourth Amendment violation claims. Further, Plaintiffs fail to allege personal participation by DHS Defendants Tremaine, Hoover and Little; and EPSO Defendants Harris, Price and Dearmont. 2. Elements of claim of Fourteenth Amendment violations claimed by Plaintiffs against DHS and EPSO Defendants not supported by the Third Amended Complaint. Plaintiffs fail to allege facts to support either element: Element 1: The Third amended complaint does not allege that the state interest in investigating reports of child abuse did not exist; and Element 2: The Third Amended Complaint does not allege plaintiffs interest in the familial right of association was violated. No clearly established right was violated. Further, Plaintiffs fail to allege personal participation by DHS Defendants Tremaine, Hoover and Little; and EPSO Defendants Harris, Price and Dearmont. See Brief I. and X. VIII. A EIGHTH CLAIM: VIOLATION OF FOURTH AND FOURTEENTH AMENDMENT LIBERTY INTERESTS IN FAMILIAL ASSOCIATION AND 15

16 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 16 of 22 PRIVACY BY PLAINTIFFS E.C., E.S.C., AND J.C. AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of claims Fourth Amendment Violation. See I. (B)(1) above. C. Elements of claim of violation Fourteenth Amendment Right to familial association and privacy. See VII. (C) above. D. Elements of claim of violation Fourteenth Amendment Right substantive due process claim. See I. (B) above. E. Elements of claim of unlawful search and seizure by Plaintiffs against DHS Defendants not supported by the Third Amended Complaint. Plaintiffs fail to allege any of the three elements of a Fourth Amendment seizure. County Defendants are unclear what Fourth Amendment Right Plaintiffs are claiming was violated. 8 Further, Plaintiffs fail to allege any personal participation by DHS Defendants Hoover and Little. E. Elements of claim unlawful search and seizure by Plaintiffs against EPSO Defendants not supported by the Third Amended Complaint. Plaintiffs fail to allege all three elements of a Fourth Amendment seizure. No clearly established right was violated. 8 Claim Nine also claims a Fourth Amendment violation on behalf of E.C., E.C.S., and J.C. 16

17 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 17 of 22 Further, Plaintiffs fail to allege any personal participation by EPSO Defendants Harris, Price and Dearmont. Plaintiffs allegations fail to establish that any EPSO Defendants personally participated in their removal from their home, school, father or North Carolina. TAC, F. Elements of claim of Fourteenth Amendment violations claimed by Plaintiffs against DHS and EPSO Defendants not supported by the Third Amended Complaint. To the extent Plaintiffs E.C., E.S.C. and J.C. attempt to bring a Fourteenth Amendment claim; they fail to allege facts to support either element. No clearly established right was violated. See Brief, XI. (C) IX. NINTH CLAIM: UNREASONABLE SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT BY PLAINTIFFS E.C., E.S.C., AND J.C. AGAINST DHS AND EPSO DEFENDANTS. A. Burden of proof. 1. Rule 12(b)(6): I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of Fourth Amendment Search and Seizure violation. See I. (B)(1) above. C. Elements not supported by the Complaint. Plaintiffs fail to meet all three elements. The Third Amended Complaint does not support a plausible finding that Plaintiffs E.C., E.S.C. and J.C. were subject to any search or any seizure. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. 17

18 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 18 of 22 Further, Plaintiffs fail to allege any personal participation by DHS Defendants Hoover and Little, and EPSO Defendants Harris, Price and Dearmont. X. TENTH CLAIM: MUNICIPAL LIABILITY FOR UNCONSTITUTIONAL POLICY, CUSTOM OR PRACTICE A. Burden of proof. Rule 12(b)(6): See I. (A)(1) above. B. Elements of a Municipal Liability Policy, Custom or Practice Claim. The essential elements for a 1983 municipal liability claim for illegal policy, custom or practice are: (1) that an unconstitutional municipal policy, custom or practice exists; and (2) a direct causal link between the policy or custom and the injury alleged. Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006), citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385, (1989). As to the second requirement, a plaintiff must demonstrate that, through its deliberate conduct, the municipality was the moving force behind the injury alleged. Board of County Commissioners v. Brown, 520 U.S. 397, 399 (1997)(emphasis in original). C. Elements not supported by the Third Amended Complaint. Plaintiffs fail to allege either element of a municipal liability custom, policy or practice claim. Furthermore, Plaintiffs fail to allege any facts to support any named Defendant was the moving force behind the injury. Eleventh Amendment applies. See Brief II. A municipal liability against DHS or its employees in their official capacity is barred by the Eleventh Amendment. 18

19 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 19 of 22 D. BOCC Defendant is an improper party. To the extent Plaintiffs are seeking to hold BOCC Defendant responsible for the actions and/or policies and customs of the DHS Defendants or EPSO Defendants, it is an improperly named defendant. Plaintiffs are unable to state a claim against BOCC Defendant. Tunget v. Board of County Comm'rs, 992 P.2d 650 (Colo. App. 1999). XI. ELEVENTH CLAIM: LIABILITY FOR FAILURE TO TRAIN OR SUPERVISE. A. Burden of proof. See, I. (A)(1) above. B. Elements of a 1983 Claim for Supervisory Liability. Although, a government entity can be held liable under 1983 for failure to adequately train its employees, City of Canton, Ohio, v. Harris, 489 U.S. 378, (1989), it is not sufficient for a plaintiff to simply assert that an existing training program for employees represents a policy for which a municipality is responsible. Id. at 389. To satisfy the deliberate indifference standard for a failure to train claim in the Tenth Circuit, a plaintiff must meet the four-part test established in Brown v. Whitman, 651 F. Supp. 2d 1216, (D. Colo. 2009), namely that training was, in fact, inadequate, and: (1) constitutional limitations were exceeded; (2) during a usual and recurring situation; (3) inadequate training demonstrates a deliberate indifference toward citizens coming into contact with government employees at issue; and (4) there is a direct causal link between the constitutional deprivation and the inadequate training. C. Elements of a Supervisory Liability claim not supported by the Third Amended Complaint. 19

20 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 20 of 22 Plaintiffs fail to allege all elements for municipal liability for failure to train or supervise. Further, the Eleventh Amendment applies see Brief II. A municipal liability against DHS or its employees in their official capacity is barred by the Eleventh Amendment. D. BOCC Defendant is an improper party. To the extent Plaintiffs are seeking to hold BOCC Defendant responsible for the actions and/or policies and customs of the DHS Defendants or EPSO Defendants, it is an improperly named defendant. Plaintiffs are unable to state a claim against Defendant BOCC. Tunget v. Board of County Comm'rs, 992 P.2d 650 (Colo. App. 1999). XII. TWELFTH CLAIM: RETALIATORY PROSECUTION A. Burden of proof. 1. Rule 12(b)(6): See I. (A)(1) above. 2. County Defendants have raised qualified immunity. Once raised, the burden shifts to the plaintiff to demonstrate the two prongs. See Brief III. B. Elements of a Retaliatory Prosecution Claim. The elements the Plaintiff must plead and prove of a First Amendment Retaliatory Prosecution claim are: (1) plaintiff was engaged in a constitutionally protected activity; (2) that a defendant's action caused plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that a defendant's action was substantially motivated as a response to plaintiff s exercise of his First Amendment speech rights; and (4) an 20

21 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 21 of 22 lack of probable cause for the prosecution. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000); and Hartman v. Moore, 547 U.S. 250, (2006). C. Elements not supported by the Third Amended Complaint. Plaintiff has failed to plead any facts sufficient for all the required elements. See Brief XV. CONCLUSION: WHEREFORE, County Defendants respectfully requests this Honorable Court dismiss Plaintiffs Third Amended Complaint. County Defendants further request this Court enter judgment in favor of County Defendants and against Plaintiffs for attorney s fees pursuant to 42 U.S.C and for costs. RESPECTFULLY submitted this 13 th day of September, By: s/ Diana K. May Diana K. May Senior Assistant County Attorney Office of the County Attorney of El Paso County, Colorado 200 S. Cascade Colorado Springs, CO (719) Fax: (719) dianamay@elpasoco.com Attorney for County Defendants BY: s/ Kenneth R. Hodges Kenneth R. Hodges, Reg. Assistant County Attorney 200 S. Cascade Ave. Colorado Springs, CO (719) Fax (719) Attorney for County Defendants 21

22 Case 1:13-cv MSK-MJW Document 59 Filed 09/13/13 USDC Colorado Page 22 of 22 CERTIFICATE OF SERVICE I hereby certify that on September 13, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send a copy of the foregoing to the following CM/ECF participant as follows: Theresa Lynn Sidebotham Telios Law PLLC P.O. Box 3488 Monument, CO tls@telioslaw.com Gillian M. Fahlsing Monica N. Kovaci Senter Goldfarb & Rice, L.L.C Broadway, Suite 1700 Denver, CO Telephone: (303) FAX: (303) s: gfahlsing@sgrllc.com; mkovaci@sgrllc.com By: s/ C. Campbell 22