case 1:13-cv-01287-msk-mjw document 64 filed 10/04/13 usdc ... · case 1:13-cv-01287-msk-mjw...

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 13-CV-01287-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, Deputy, El Paso County Sheriff’s Office, individually, and as an agent, employee, and representative of El Paso County, JON PRICE, Deputy, El Paso County Sheriff’s Office, individually, and as an agent, employee, and representative of El Paso County, BENJAMIN DEARMONT, Supervisor, El Paso County Sheriff’s Office, individually, and as an agent, employee, and representative of El Paso County, MITCHELL MIHALKO, Deputy, El Paso County Sheriff’s Office, individually, and as an agent, employee, and representative of El Paso County, TERRY MAKETA, Sheriff of El Paso County, as an agent, employee, and representative of El Paso County, EL PASO COUNTY BOARD OF COUNTY COMMISSIONERS, CHAD HAYNES, Investigator, 4th Judicial District Attorney’s Office, individually, and as an agent, employee, and representative of the 4th Judicial District Attorney’s Office, RANDY STEVENSON, Deputy Chief Investigator, 4th Judicial District Attorney’s Office, individually, and as an agent, employee, and representative of the 4th Judicial District Attorney’s Office,

Case 1:13-cv-01287-MSK-MJW Document 64 Filed 10/04/13 USDC Colorado of 23

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JONATHAN HUDSON, Officer, Monument Police Department, individually, ANDREW ROMANO, Officer, Monument Police Department, individually,

Defendants,

PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS BY EL PASO COUNTY DEFENDANTS

COME NOW Plaintiffs, the Does, by and through their undersigned counsel,

Telios Law PLLC, in opposition to the Motion to Dismiss and Supporting Brief by El

Paso County Defendants, Documents 59 and 60, filed 09/13/13. As directed by Practice

Standards V.I., legal argument is contained in a separate, supporting brief (the same

supporting brief filed with Plaintiff’s Response to Motion to Dismiss by Monument

Defendants).

I. Defendants allege 12(b)(1) lack of jurisdiction over El Paso County employees in their official capacity, under the Eleventh Amendment. Plaintiffs have the burden to establish subject matter jurisdiction. In

determining subject matter jurisdiction, the Court considers the allegations of facts in

the Complaint, as well as matters outside the pleadings if needed. Holt v. United States,

46 F.3d 1000, 1003 (10th Cir. 1995).

Plaintiffs agree the Sheriff of El Paso County in his official capacity may be the

correct person to sue for actions of El Paso County deputies, and have amended their

Complaint to include him. Plaintiffs believe that the El Paso County Board of County

Commissioners is the proper defending entity for a § 1983 claim. See Supporting Brief

IV.E.


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II. Qualified Immunity only applies to individuals.

Even if this Court found that certain individuals had qualified immunity for

certain claims, it is important to note that qualified immunity does not apply to, and

therefore does not bar, claims against a governmental entity. Milligan-Hitt v. Bd. of

Trustees, 523 F.3d 1219, 1223 (10th Cir. 2008).

III. Additional responsibilities of law enforcement officials

Coercive behavior related to the Fourth Amendment is a substantive due process

violation under the Fourteenth Amendment. See Chavez v. Martinez, 538 U.S. 760, 781

(2003) (Scalia, J., concurrence). See Supporting Brief, IV.A. As described in the

Complaint, the deputies helped engage in coercive behavior. See Third Amended

Complaint (“TAC”), Paras. 71-76, 83.

Deputies may commit nonfeasance when they fail to intervene. (1) A deputy has

an affirmative duty to intervene to protect constitutional rights of citizens from

infringement (2) that takes place in his presence (3) by other law enforcement or

government officials (4) if there is a realistic opportunity to intervene. Vondrak v. City

of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008). The deputies were invited to the

scene to participate in a constitutional violation. Ongoing constitutional violations by

the caseworker and other law enforcement took place in their presence for some

extended period, and they did not intervene. See Supporting Brief, IV.B.1.

Further, Defendants are responsible when they personally participate in setting

in motion events that cause a constitutional deprivation. Poolaw v. Marcantel, 565


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F.3d 721, 732-33 (10th Cir. 2009) (quoting Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.

1990)). See Supporting Brief, IV.B.2.

IV. Elements of claims alleged in the Complaint

1. Y.C.’s Fourth (and possibly Fourteenth) Amendment claims, against McAfee, Hoover, Little, Dearmont, Harris and Price A. Burden of proof. Plaintiffs concede they must show that a clearly

established constitutional right was violated, given that Defendants

are pleading qualified immunity. Dodds v. Richardson, 614 F.3d

1185, 1191 (10th Cir. 2010). Fourth Amendment law is clearly

established as to searches and seizures of children for both social

workers and police. Jones v. Hunt, 410 F.3d 1221, 1229 (10th Cir.

2005).

B. Elements. Defendants’ elements are overly vague. (i) Physical

examinations of children are searches within the meaning of the

Fourth Amendment. Dubbs v. Head Start, Inc., 336 F.3d 1194,

1207 (10th Cir. 2003). (ii) Such searches are unconstitutional in the

investigative context unless performed with warrant or parental

consent. Id. (iii) Coercive behavior implicates Fourteenth

Amendment due process violations. Chavez v. Martinez, 538 U.S.

760, 781 (2003).

C. The Complaint sufficiently alleges the elements. (i) McAfee,

Hoover, Little, Dearmont, Harris, and Price personally participated

in the efforts to strip-search Y.C. (ii & iii) Ms. McAfee called the


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deputies to compel the search, and discussed the situation

extensively with the deputies and her supervisors. TAC, Paras. 64,

66, 72-73, 85-87, 93. The deputies also discussed it with their

supervisor, Deputy Dearmont. TAC, Para. 128. See Supporting

Brief, IV.A, IV.B, IV.D, V.1.

2. Y.C.’s Fourteenth and Fourth Amendment right to privacy claims, against McAfee, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly

established constitutional right was violated, given that

Defendants are pleading qualified immunity. Dodds, 614 F.3d at

1191. The right to privacy is clearly established. Poe v. Leonard,

282 F.3d 123, 126 (2nd Cir. 2002).

B. Standard of review. Plaintiffs agree that a Fourteenth Amendment

analysis requires (i) a “legitimate expectation of privacy”; (ii)

“disclosure serves a compelling state interest”; and (iii) “disclosure

is made in the least intrusive manner”. Nilson v. Layton City, 45

F.3d 369, 371 (10th Cir. 1995). Under the Fourth Amendment, it is

simply a reasonableness inquiry. Brannum v. Overton County

Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008).

C. Elements. (i) The Fourteenth Amendment protects a sphere of

privacy in the naked body. Hydrick v. Hunter, 449 F.3d 978, 1003

(9th Cir. 2006). (ii) The Fourteenth Amendment’s right to bodily


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privacy is violated when a government official “views, photographs

or otherwise records another’s unclothed or partially clothed

body.” Poe, 282 F.3d at 126. (iii) The viewing, photographing, or

recording is done without that person’s consent. Id.

D. The Complaint sufficiently alleges the elements. (i) Defendants

disregarded Y.C.’s privacy. (ii) Ms. McAfee tried to compel Y.C. to

cooperate with a strip-search and photographs of her nude

buttocks. TAC, Paras. 41-45. Deputies Harris and Price attempted

to convince Father to compel Y.C. TAC, Paras. 72-76, 83. Hoover,

Little, and Dearmont also participated in, acquiesced in, or

approved the efforts to compel the strip-search. TAC, Paras. 88,

93, 128. (iii) They knew there was no consent. TAC, Paras. 68, 71-

72. Y.C. had a legitimate expectation of privacy. Disclosure, in

such a way and in such a place, did not serve a compelling

governmental interest, because it was unconstitutional and

exposed the child to further harm. It certainly was not made in the

least intrusive manner. See Supporting Brief, IV.A, IV.B, IV.D,

V.2.

3. Y.C.’s Fourth Amendment right to be free from unreasonable seizures, against McAfee, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly



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Defendants are pleading qualified immunity. Dodds v.

Richardson, 614 F.3d at 1191. Fourth Amendment law is clearly

established as to searches and seizures of children for both social

workers and law enforcement. Jones, 410 F.3d at 1229.

B. Elements. Again, Defendants’ elements are vague. (1) A seizure

occurs when “a reasonable person would have believed that he was

not free to leave.” Id. at 1225. (2) To be constitutional, the seizure

must be reasonable, which depends on the context in which it took

place. Id. at 1227. (3) The seizure must be “justified at its

inception.” Id. at 1228. (4) The seizure must be “reasonably

related in scope to the circumstances which justified the

interference in the first place.” Id.

C. The Complaint sufficiently alleges the elements. (i) Defendants

state Y.C. was not seized at her home, and was free to leave.

County MTD, Doc. #27, 7/26/13, p. 8. Yet Defendants in concert

chose to put out a BOLO (“be on the lookout”) on her, which

resulted in a felony stop. TAC, Paras. 127-28. (ii) Y.C. was on her

way to a medical examination at Defendants’ behest at the time of

the stop, and they knew this. TAC, Paras. 134-36, 138. DHS

personnel were in direct contact with Colorado State Patrol

(“CSP”), but not only did they not inform CSP that Mother was

returning in compliance with the medical order, but made it sound


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as if a felony might be in progress. TAC, Para. 139. In these

circumstances, the stop was not reasonable. (iii) Nor was it

justified at its inception, because Defendants knew it was not

necessary. (iv) Nor was a felony stop with several police cars, guns

out, and handcuffs reasonably related in scope to the

circumstances of minor injuries from a spanking. TAC, Paras. 140-

44. See Supporting Brief, V.3.

4. John Doe’s First Amendment claims, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly



Richardson, 614 F.3d at 1191. Free speech rights are clearly

established First Amendment rights. Mimics, Inc. v. Village of

Angel Fire, 394 F.3d 836, 848 (10th Cir. 2005).

B. Elements. (i) The plaintiff was “engaged in constitutionally

protected activity”; (ii) the defendant’s actions caused the plaintiff

“to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity”; and (iii) the

“defendant’s adverse action was substantially motivated as a

response to the plaintiff’s exercise of constitutionally protected

conduct.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).


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C. The Complaint sufficiently alleges the elements. (i) Father

engaged in constitutionally protected activity when he refused to

compel his daughter to submit to a strip search. TAC, Paras. 76-

78. He also engaged in First Amendment expressive conduct in

response to being harangued and bullied, when he lay down in the

driveway in expressive protest. TAC, Para. 83. (ii) Having custody

of one’s children taken away would chill a person of ordinary

firmness from daring to challenge Defendants. (iii) DHS

Defendants acted in concert with EPSO Defendants and

Monument Defendants to retaliate by getting a custody order

taking all four of his children away, which was explicitly stated to

be in response to Father’s lack of cooperation. TAC, Paras. 85-88.

Ms. Tremaine assisted Ms. McAfee to implement that order. TAC,

Paras. 101-116. Deputy Dearmont put out the BOLO on the

children. TAC, Para. 128. See Supporting Brief, V.4-5.

5. Jane Doe’s First Amendment claims, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly



Richardson, 614 F.3d at 1191. Free speech rights are clearly

established First Amendment rights. Mimics, Inc. v. Village of

Angel Fire, 394 F.3d at 848.


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B. Elements. (i) The plaintiff was “engaged in constitutionally

protected activity”; (ii) the defendant’s actions caused the plaintiff

“to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in that activity”; and (iii) the

“defendant’s adverse action was substantially motivated as a


conduct.” Worrell, 219 F.3d at 1212.

C. The Complaint sufficiently alleges the elements. (i) Mother was

engaged in constitutionally protected activity when she refused to

compel her daughter to submit to a strip search over Ms. McAfee’s

objections. TAC, Para. 42. (ii) Having custody of one’s children

taken away and being subjected to rough treatment by the police

would chill a person of ordinary firmness from daring to challenge

Defendants. (iii) DHS Defendants acted in concert with EPSO

Defendants to retaliate by getting a custody order taking all four of

her children away. TAC, Paras. 85-88. Ms. Tremaine assisted Ms.

McAfee in carrying out that order. TAC, Paras. 101-116. Deputy

Dearmont put out the BOLO on the children. TAC, Para. 128.

DHS personnel misrepresented the situation to CSP, concealing

information and providing misinformation. TAC, Para. 139.

Ultimately, Mother was ordered out of her car at gunpoint by


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multiple police, made to kneel, and handcuffed. TAC, Paras. 140-

143. See Supporting Brief, V.4-5.

6. Jane Doe’s Fourth Amendment search and seizure claims, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly



1191.

B. Elements. (i) Seizure must occur; (ii) It must be unreasonable; (iii)

It must be intentional. Brower v. County of Inyo, 489 U.S. 593,

597, 599 (1989).

C. The Complaint sufficiently alleges the elements. (1) Jane Doe was

seized in a felony stop. (2) & (3) Although DHS Defendants knew

Jane Doe was coming back into town to comply with a medical

order, they deliberately withheld this information from CSP and

encouraged patrol officers to believe that she was dangerous and

possibly committing a felony, thus triggering an unreasonable

stop. TAC, Paras. 140-143. See Supporting Brief, IV.6.

7. John and Jane Doe’s Fourteenth Amendment substantive and procedural due process constitutional liberty interests and constitutional rights to familial privacy claims, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly



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1191. These fundamental constitutional family rights are clearly

established. See Lowery v. County of Riley, 522 F.3d 1086, 1092

(10th Cir. 2008); Roska ex rel. Roska v. Peterson, 328 F.3d 1230,

1245 (10th Cir. 2003).

B. Elements. Defendants’ recitation of the elements is inadequate.

1) Right to familial association and privacy, and to the care,

custody, and control of one’s children, secure against undue

intrusion by the state, is a fundamental element of personal

liberty. Lowery, 522 F.3d at 1092; Dubbs, 336 F.3d at 1203;

Malik v. Arapahoe County Dep’t of Soc. Servs., 191 F.3d

1306, 1315 (10th Cir. 1999).

2) The individual’s fundamental liberty interest in family

association is a Fourteenth Amendment substantive due

process right. Lowery, 522 F.3d at 1092.

3) A fundamental liberty interest requires strict scrutiny.

Seegmiller v. Laverkin City, 528 F.3d 762, 767 (10th Cir.

2008).

i. The government must demonstrate a compelling

government interest to warrant removal of children.


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ii. It must demonstrate that the removal was narrowly

tailored to achieve that interest. O’Donnell v. Brown,

335 F.Supp.2d 787, 821 (W.D. Mich. 2004).

4) The individual’s interest in notice and a hearing related to

that same constitutionally protected liberty interest is also a

Fourteenth Amendment procedural due process right.

Roska, 328 F.3d at 1246.

i. Notice and a hearing are required to remove children

from the home except in extraordinary situations.

Roska, 328 F.3d at 1245. Misrepresentations and

omissions in an ex parte hearing violate due process.

Malik, 191 F.3d at 1315.

ii. An “allegation of intent to interfere with a particular

relationship protected by the freedom of familial

association is required to state a claim under section

1983.” Trujillo v. Bd. of County Comm’rs, 768 F.2d

1186, 1189 (10th Cir. 1985).

C. The Complaint sufficiently alleges the elements. (1) & (2) Parents

had a fundamental liberty interest in the society of their children,

which is a substantive due process right. (3) All the County

Defendants acted deliberately in concert to seek custody of the

children without any compelling governmental interest, as the


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children were not in danger, and deputies failed to intervene. Nor

were Defendants’ actions narrowly tailored. (4) Plaintiffs’ due

process rights were also violated, as there were no extraordinary

circumstances justifying emergency removal, and the

misrepresentations and omissions to the magistrate violated due

process. Further, there was intent to interfere with the family

relationship. Deputies Harris and Price participated in the

coercive behavior of DHS Defendants, and the extended

discussions that planned retaliation by seeking an unconstitutional

custody order that was directed at the family relationship. TAC,

Paras. 66-68, 72, 83, 85. See Supporting Brief, IV.A, IV.B, IV.D,

V.7,8.

8. E.C., E.S.C., and J.C.’s Fourth and Fourteenth Amendment substantive and procedural due process constitutional liberty interests and constitutional right to familial privacy claims, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly


are pleading qualified immunity. Dodds, 614 F.3d at 1191. These

fundamental constitutional family rights are clearly established.

See Lowery, 522 F.3d at 1092; Roska, 328 F.3d at 1245.

B. Elements.


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1) Right to familial association, secure against undue intrusion

by the state, is a fundamental element of personal liberty.

Lowery, 522 F.3d at 1092; Dubbs, 336 F.3d at 1203; Malik,

191 F.3d at 1315.

2) The individual’s fundamental liberty interest in family

association is a Fourteenth Amendment substantive due

process right. Lowery, 522 F.3d at 1092.

3) A fundamental liberty interest requires strict scrutiny.

Seegmiller, 528 F.3d at 767.

i. The government must demonstrate a compelling

government interest to warrant removal of children.

ii. It must demonstrate that the removal was narrowly

tailored to achieve that interest. O’Donnell, 335

F.Supp.2d at 821.

4) The individual’s interest in notice and a hearing related to

that same constitutionally protected liberty interest is also a

Fourteenth Amendment procedural due process right.

Roska, 328 F.3d at 1246.

i. Notice and a hearing are required to remove children

from the home except in extraordinary situations.

Roska, 328 F.3d at 1245. Misrepresentations and


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omissions in an ex parte hearing violate due process.

Malik, 191 F.3d at 1315.

ii. An “allegation of intent to interfere with a particular

relationship protected by the freedom of familial

association is required to state a claim under section

1983.” Trujillo, 768 F.2d at 1189.

D. The Complaint sufficiently alleges the elements. (1) & (2) Children

had a fundamental liberty interest in the society of their Parents,

which is a substantive due process right. (3) All the County

Defendants acted deliberately in concert to seek custody of Children

without any compelling governmental interest, as Children were not

in danger, and deputies failed to intervene. Nor were Defendants’

actions narrowly tailored. (4) Plaintiffs’ due process rights were

also violated, as there were no extraordinary circumstances

justifying emergency removal, and the misrepresentations and

omissions to the magistrate violated due process. This also showed

intent to interfere with the family relationship. Deputies Harris and

Price participated in the coercive behavior by DHS Defendants, and

the extended discussions that planned retaliation by seeking an

unconstitutional custody order that was directed at the family

relationship. TAC, Paras. 66-68, 72, 83, 85. See Supporting Brief,

IV.A, IV.B, IV.D, V.7,8.


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9. E.C., E.S.C., and J.C.’s Fourth Amendment claims to be free from unreasonable seizures, against McAfee, Tremaine, Hoover, Little, Dearmont, Harris, and Price A. Burden of proof. Plaintiffs concede they must show that a clearly


are pleading qualified immunity. Dodds, 614 F.3d at 1191. The law

is clearly established that “children enjoy Fourth Amendment rights

to be free from seizure, including the improper removal from their

homes.” Burgess v. Houseman, No. 07-6107, p. 2 (10th Cir. 2008)

(citing J.B. v. Washington County, 127 F.3d 919, 928-29 (10th Cir.

1997)).

B. Elements of Fourth Amendment seizure of minors. (i) A seizure

occurs when “a reasonable person would have believed that he was

not free to leave.” Jones, 410 F.3d at 1225. (ii) To be constitutional,

the seizure must be reasonable, which depends on the context in

which it took place. Id. at 1227. (iii) The seizure must be “justified

at its inception.” Id. at 1228. (iv) The seizure must be “reasonably

related in scope to the circumstances which justified the

interference in the first place.” Id.

C. The Complaint sufficiently alleges the elements. (i) The Children

were seized after the custody order. TAC, Para. 150. (ii) & (iii) The

seizures of the three Children were completely unreasonable and

unjustified, as there were no allegations of either danger or abuse.


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Defendants acted in concert to seek a custody order purely in

retaliation and then keep Children away from their family, and

deputies failed to intervene. (iv) Nor was the scope of the seizure

appropriate to allegations of minor child abuse of a different child.

See Supporting Brief, V.9.

10. Plaintiffs’ claims for violation of Fourth, Fourteenth, and First Amendment rights pursuant to governmental customs, policies, or decisions, against Hoover, Little, Bengtsson, Greene, Dearmont, Terry Maketa in his official capacity, and El Paso County Board of Commissioners A. Burden of proof. Plaintiffs have the burden of proof to

demonstrate the elements of the claim.

B. Elements. To establish liability for the government entity, a

“plaintiff must show: (i) the existence of a [governmental] policy or

custom and (ii) a direct causal link between the policy or custom

and the injury alleged.” City of Canton v. Harris, 489 U.S. 378,

385 (1989) (overruled in part by Farmer v. Brennan, 511 U.S. 825

(1994)). (iii) For “custom,” plaintiffs must show “deliberate

indifference” or “tacit approval.” Brown v. Whitman, 651

F.Supp.2d 1216, 1230 (D. Colo. 2009). For “policy,” plaintiffs must

show a deliberate choice to follow the policy. Brammer-Hoelter v.

Twin Peaks Charter Acad. 602 F.3d 1175, 1188 (10th Cir. 2010).

C. The Complaint sufficiently alleges the elements. (i) The Complaint

alleges the existence of a policy that DHS caseworkers always


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examine the private parts of children when abuse is alleged to their

private parts, always take photographs, and always call the police

to compel cooperation if needed. TAC, Paras. 47-52, 54, 57. Given

EPSO’s enthusiastic cooperation by both deputies and their

supervisor, it is a reasonable inference EPSO, another department

of the same governmental body, has the same policy or custom.

TAC, Paras. 64-91. (ii) There was a direct causal link between the

policy or custom and the injuries suffered by Plaintiffs, because of

retaliation as explained above. (iii) The widespread participation

of all Defendants supports the inference that the policy was chosen

deliberately, or the custom was followed with deliberate

indifference. See Supporting Brief, V.10.

11. Plaintiffs’ claims for violation of Fourth, Fourteenth, and First Amendment rights pursuant to failure to train or supervise, against Hoover, Little, Bengtsson, Greene, Dearmont, Terry Maketa in his official capacity, and El Paso County Board of Commissioners A. Burden of proof. Plaintiffs bear the burden of proof to show these

elements.

B. Elements. (i) The training must be inadequate; (ii) failure to train

amounts to deliberate indifference; and (iii) there is a causal link

between deprivation and inadequate training. Brown, 651 F.Supp.

2d at 1231. Defendants are not accurate about the need for a


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recurring situation. Bryson v. City of Oklahoma City, 627 F.3d

785, 789 (10th Cir. 2010).

C. The Complaint sufficiently alleges the elements. (i) Ms. McAfee

testified that caseworkers receive no training on the Fourth

Amendment, on nude strip searches, on photographing children’s

private areas, or on any limitations to searches. The training

manuals do not contain such training or limitations. TAC, Paras.

59-63, 350-360. Given Ms. McAfee’s testimony that law

enforcement is called regularly to compel parents to cooperate

with strip searches, and EPSO’s cooperation in this case, it is

reasonable to infer that EPSO also has failed to train. TAC, Paras.

52-55. (ii) The Complaint alleges that failure to provide Fourth

Amendment training or limitations regarding strip searches

endangers children. TAC, Paras. 328-334, 351-355. Given the

current awareness of child sexual abuse, it is reasonable to infer

deliberate indifference not to have a policy or training. TAC,

Paras. 357-359. Given EPSO’s cooperation, it is reasonable to infer

that it also has failed to train and is deliberately indifferent. (iii)

The lack of adequate training was a cause of the attempted strip-

search of Y.C., which led to her embarrassment, consternation, and

departure with her Mother—and then to the subsequent retaliation


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that affected the entire family. TAC, Para. 70. See Supporting

Brief, V.11.

12. John Doe’s prior restraint and retaliatory prosecution claim for exercise of First Amendment and other constitutional rights, against McAfee, Mihalko, Stevenson, Haynes, and other County defendants A. Burden of proof. Plaintiffs concede they must show that a clearly



1191. Free speech rights are clearly established First Amendment

rights. Mimics, Inc., 394 F.3d at 848.

B. Elements of retaliatory prosecution. (i) The plaintiff was engaging

in constitutionally protected activity; (ii) defendant’s actions

caused plaintiff to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity; (iii)

defendant’s adverse action was substantially motivated as a


conduct; and (iv) no probable cause for the prosecution. Becker v.

Kroll, 494 F.3d 904, 926 (10th Cir. 2007); Mimics, Inc., 394 F.3d

at 847.

C. The Complaint sufficiently alleges the elements. (i) Father

engaged in constitutionally protected activity, objecting to DHS

and the officers’ coercive conduct. TAC, Paras. 76, 83, 364. (ii)

Part of Defendants’ retaliation was to file six felony charges for


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kidnapping and violation of custody order. TAC, Paras. 165--170.

The felony charges filed would chill a person of ordinary firmness

from continuing to engage in that activity, and in fact did chill

Father from timely filing a notice of his state law claims. TAC,

Paras. 174-75. (iii) Defendants filed the charges in retaliation for

Father’s activities. TAC, Paras. 365-367. (4) There was no

probable cause for the charges because the custody order was

constitutionally invalid, and because Father never knew about the

order until after the fact. TAC, Paras. 368-371. In addition,

because Defendants have asserted that Children were free to leave

school, there could be no basis for the charges. County Supporting

Brief, pp. 23-24.

D. Elements of prior restraint. (i) Chills potential speech before it

happens; and (ii) chilling effect arises from an “objectively justified

fear of real consequences.” Brammer-Hoelter, 602 F.3d at 1182.

E. The Complaint sufficiently alleges the elements. (ii) Once the six

felony charges were filed, Father and the rest of the Does feared to

file notice of their state law claims. (i) This chilled Does’ speech

before it happened and stripped Does of their right to redress

under the state law claims. TAC, Paras. 174-75. See Supporting

Brief, V.12.


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Accordingly, the Plaintiffs request that the Defendants’ Motion to Dismiss

be denied.

Respectfully submitted this 4th day of October, 2013.

s/ Theresa Lynn Sidebotham Theresa Lynn Sidebotham Telios Law PLLC P.O. Box 3488 Monument, CO 80132 Telephone: (719) 271-2342 FAX: (775) 248-8147 E-mail: [email protected] Alt: c/o Buckley Law Offices, PC 1277 Kelly Johnson Blvd., Ste. 250, Colorado Springs, CO 80920

CERTIFICATE OF SERVICE I hereby certify that on October 4, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system that automatically sends notification of such filing to the following email addresses: Diana May: [email protected] Gillian Fahlsing: [email protected]
