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, 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,

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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, JONATHAN HUDSON, Officer, Monument Police Department, individually, and ANDREW ROMANO, Officer, Monument Police Department, individually, Defendants.

COUNTY DEFENDANTS’ REPLY TO PLAINTIFFS’ RESPONSE TO MOTION TO DISMISS

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 reply to Plaintiffs’

Response to Motion to Dismiss as follows:

I. IMMUNITY

A. ELEVENTH AMENDMENT IMMUNITY BARS ALL CLAIMS AGAINST

ALL DHS AND DHS EMPLOYEES1.

1 Eleventh Amendment immunity also bars claims against DA Employees sued in their official capacities,

which claims have been withdrawn. See Response, Doc. 60, §E(3), p. 33.

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Plaintiffs’ official capacity claims against DHS Defendants must be

dismissed pursuant to the Eleventh Amendment as they have failed to establish

jurisdiction by a preponderance of the evidence. Plaintiffs’ position in their

Response contravenes existing 10th Circuit case law. See Crone v. Dep't of

Human Servs., 2012 U.S. Dist. LEXIS 164025, 26-27 (D. Colo. 2012); Schwartz

v. Jefferson County Department of Human Services, 2011 U.S. Dist. LEXIS

52068 (D. Colo. 2011); and Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012).

Ironically, the one case Plaintiffs cite for their position that the Eleventh

Amendment does not apply to the El Paso County Department of Human

Services2 did not involve the Eleventh Amendment being raised as a defense or

considered by the Court.

Plaintiffs’ statements and argument in their Response Brief about matters

outside of the Third Amended Complaint (“TAC”) must be stricken.3 See

Whiteman v. El Paso Crim. Justice Ctr., 2011 U.S. Dist. LEXIS 71458, 2011 (D.

Colo. July 1, 2011); see also Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.

Okla. 1991). Alternatively, if matters outside the pleadings are presented to and

not excluded by the Court, a 12(b)(6) motion must be converted into a motion for

summary judgment, and all parties must be given reasonable opportunity to

present relevant material. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d

1381, 1384 (10th Cir. 1997).

2 Buckley v. Bd. Of County Comm’rs of County of El Paso, 2005 2359475 (Plaintiffs mis-cite the case as

2359476) (D. Colo. 2005). 3 Reply Brief, p. 30 last paragraph though p. 32.

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All official capacity claims against DHS Defendants must be dismissed

pursuant to the Eleventh Amendment.

B. PLAINTIFFS’ FAIL TO MEET THEIR BURDEN TO OVERCOME THE

QUALIFIED IMMUNITY DEFENSE.

All individual County Defendants have claimed qualified immunity. Motion

to Dismiss TAC, Doc. 59. Plaintiffs have failed to meet the heavy two-part

burden of proof required to overcome the qualified immunity claims. Cortez v.

McCauley, 478 F.3d 1108, 1114 (10th Cir. 2007). “If the plaintiff fails to satisfy

either part of the two-part inquiry, the court must grant the dismissal based on

defendants qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir.

2001).

Plaintiffs have failed to address and meet their burden for both of the two-

part test: (1) that Plaintiffs’ specific constitutional rights were violated; and (2)

that each claimed right was clearly established at the time of the alleged

violation. Plaintiffs bear the burden of citing to the requisite authority to

overcome their heavy burden. Thomas v. Durstanti, 607 F.3d 655, 669 (10th

Cir.2010).

Plaintiffs must identify some authority that considers the issue not

as a broad general proposition, but in a “particularized” sense3 – for

example, it is not sufficient to ask whether it is clearly established

that the Fourth Amendment prohibits the use of excessive force in

effecting an arrest; rather, the court examines whether that

constitutional principle has previously been found to prohibit

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“shoot[ing] a disturbed felon, set on avoiding capture through

vehicular flight, when persons in the immediate area are at risk

from that flight.

Brosseau v. Haugen, 543 U.S. 194, 198–200 (2004).

Plaintiffs fail to meet their burden establishing that any of their

constitutional rights were violated by County Defendants. County Defendants

incorporate their arguments from their Motion to Dismiss Third Amended

Complaint and Brief (See Doc. Nos. 59 and 60).

Plaintiffs further fail to meet their burden to establish each alleged

constitutional right was clearly established at the time the events occurred in this

matter.4 Even assuming, arguendo, that Plaintiffs’ constitutional rights were

violated by County Defendants, County Defendants were not on notice that their

conduct, actions or non-actions would violate the individually claimed

constitutional rights. Instead of citing case law to support any clearly established

claimed constitutional right in the 10th Circuit or United States Supreme Court,

Plaintiffs’ argument is “[t]he constitutional rights alleged by Plaintiffs have been

long-known and well-established, so qualified immunity is not available even to

individual Defendants.” Plaintiff’s Brief in Support of the Their Responses to

Defendants’ Motions to Dismiss (π Brief) p.15, Plaintiffs’ Response to Motion to

Dismiss (π Response), pp. 9;12. This argument is circular in nature: County

Defendants violated Plaintiffs’ First, Fourth and Fourteenth Amendment rights; it

is clearly established that Plaintiffs have a right to freedom speech and

4 April 19 2012, April 20, 2012, April 26, 2012, May 3, 2012, August 10, 2012, August 14, 2012, October

12, 2012.

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expression, to be free from unreasonable search and seizure and to receive

substantive and procedural due process of law; Plaintiffs’ rights were violated

and therefore, County Defendants cannot claim qualified immunity. Plaintiffs

completely fail to articulate a “Supreme Court or Tenth Circuit decision on point

or the clearly established weight of authority from other courts must have found

the law to be as the plaintiff maintains.” Cruz v. City of Laramie, Wyo., 239 F.3d

1183, 1187 (10th Cir. 2001). Plaintiffs fail to meet their burden.

Plaintiffs’ position that qualified immunity is not applicable to retaliation

claims is incorrect and exemplifies their lack of understanding of qualified

immunity and their burden.5 Plaintiffs argue throughout their Response and

Response Brief a First Amendment retaliation claim “erases” qualified immunity.

π Brief, pp. 14; 24. The First Amendment right being retaliated against must be

clearly established and the case cited by Plaintiffs reiterate this position. See

DeLoach v. Bevers, 922 F.2d 618, 620 (10th Cir. 1990).

While Plaintiffs are correct that qualified immunity does not shield

municipal liability claims, Plaintiffs fail to address or acknowledge existing law

stating that if individual County Defendants have not violated Plaintiffs’

constitutional rights, neither the municipality nor the entity can be liable for a §

1983 claim. Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir.2004).

Qualified immunity shields all individual County Defendants from liability.

II. PERSONAL PARTICIPATION

County Defendants have asserted in all claims Plaintiffs fail to allege

personal participation by each individual County Defendant for each claimed

5 π Brief, p. 24 § C

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Constitutional violation. 6 Plaintiffs’ response is that County Defendants (1) have

an “affirmative duty to intervene” when another officer is violating a person’s

constitutional rights; and (2) if there is a causal connection to the constitutional

violation, personal participation is not required. π Brief; p. 19-24. Plaintiffs only

cite 10th Circuit case law concerning a clearly established right of police officers

to intervene when another officer is using excessive force. π Brief, pp. 19-20.

Plaintiffs claim in their Brief “it is “clearly established” that “all law enforcement

officials have an affirmative duty to intervene to protect the constitutional rights of

citizens from infringement by other law enforcement officers in their presence.”

Citing Vondrak v. City of Las Cruces, 535 F.3d 1198, 1210 (10th Cir. 2008). π

Brief, p. 19. Vondrak and all the other 10th Circuit cases are inapposite as their

precedent applies to intervention in excessive force cases.

Plaintiffs fail to cite “a Supreme Court or Tenth Circuit decision on point or

the clearly established weight of authority from other courts must have found the

law to be as the plaintiff maintains.” Cruz v. City of Laramie, Wyo., 239 F.3d

1183, 1187 (10th Cir. 2001). Plaintiffs’ reliance on McClelland v. Facteau, 610

F.2d 693 (10th Cir. 1979) is misplaced as McClelland involved supervisor liability

and officers who “failed to intervene.” Furthermore, Plaintiffs cited cases for the

general proposition that “[t]he language of failure to intervene applies to any

constitutional violation” are from outside the 10th Circuit. π Brief, p. 20. Plaintiffs

fail to plead personal participation for all County Defendants.7

6 The only exception to this would be DHS Defendant McAfee as specifically referenced in County

Defendants’ Motion to Dismiss the Third Amended Complaint, p. 7 § C(1)

7 Id.

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Plaintiffs’ second argument to counter their failure to plead personal

participation is “[f]or a defendant to be responsible for a constitutional violation,

neither personal participation nor supervision is necessary”, as “[a]nyone who

‘causes’ any citizen to be subjected to constitutional deprivation is also liable.

Trask, 446 F.3d at 1046.” π Brief pp. 21-22. Plaintiffs must show that an

“affirmative link exists between the [constitutional] deprivation and either the

[officer's] personal participation, his exercise of control or direction, or his failure

to supervise.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997) (quotation

omitted). That showing can be made with “deliberate, intentional act[s]” that

“caused or contributed to the ... violation.” Jenkins v. Wood, 81 F.3d 988, 994–95

(10th Cir.1996) (quotation omitted). Plaintiffs are required to demonstrate that

personal involvement with the requisite state of mind ultimately caused the

misconduct complained of, akin to “but for” tort analysis. See Kemp v. Lawyer,

846 F. Supp. 2d 1170, 1176 (D. Colo. 2012).

Plaintiffs fail to pled facts sufficient to show this “affirmative link” or “but

for” analysis for each claim. One example of this failure would be to examine the

TAC as to EPSO Defendant Harris – Defendant Harris is named in Claims 1-9;

and 12. As alleged by Plaintiffs: Defendant Harris was present at the Does’

residence8 ; Defendant McAfee informed Defendant Harris the Plaintiff John Doe

refused to allow Plaintiff Y.C. to cooperate with the investigation9; Defendant

Harris spoke to Plaintiff John Doe and suggested Plaintiff John Doe encourage

8 TAC, ¶ 71.

9 Id.

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his daughter to show her bruises from her beating from her parents10; Defendant

Harris was informed from Defendant McAfee she intended to get a custody order

for all four children11; and Defendant Harris told Plaintiff John Doe he was free to

leave12. Defendant Harris never responded to the school, had any contact with

Plaintiffs Jane Doe or Y.C., or had any part in child abuse or felony charges

being brought against Plaintiffs John and Jane Doe. The TAC completely fails to

establish how any pled actions or in actions by Defendant Harris show an

“affirmative link” or “but for” causation to any alleged constitutional violations that

may have occurred at the Doe residence or after Defendant Harris left the Doe

residence. This same analysis can be used for each and every individually

named County Defendant.

Again, Plaintiffs’ TAC fails to allege personal participation against

individual County Defendants.

III. THE COURT ORDERS FOR CUSTODY WERE REASONABLE

Plaintiffs allege the lawfully issued court orders for custody (1) lack

probable cause; and/or (2) the court orders were based on material omissions

and falsehoods. π Brief, pp. 53; 55-57.

A. Reasonable Suspicion Existed to Seek a Court Order for Removal

of Plaintiffs Y.C., E.C., E.C.S. and J.C.

Plaintiffs’ argument the decision to remove all children from the home

must be based upon probable cause is misplaced. The 10th Circuit has held the

appropriate standard is reasonable suspicion:

10

TAC, ¶ 74. 11

TAC, ¶ 86 12

TAC, ¶ 89.

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[i]n our view, the reasonable suspicion standard appropriately

balances the interests of the parents, the child, and the state. The

failure to act when a child is in danger may have “unthinkable

consequence[s].” Jordan v. Jackson, 15 F.3d 333, 350 (4th

Cir.1994). As a result, social workers should be afforded some

discretion when they seek to protect a child whose safety may be at

risk. See Hatch, 274 F.3d at 22; Thomason, 85 F.3d at 1373.

Following the majority approach, we conclude that state officials

may remove a child from the home without prior notice and a

hearing when they have a reasonable suspicion of an immediate

threat to the safety of the child if he or she is allowed to remain

there.

Gomes v. Wood, 451 F.32d 1122, 1130 (10th Cir.2006).

The 10th Circuit has further held that “all relevant circumstances, including

the state's reasonableness in responding to a perceived danger, as well as the

objective nature, likelihood, and immediacy of danger to the child” are to be

considered in determining reasonable suspicion. Gomes at 1131.

Even assuming the Plaintiffs’ version of the facts from the TAC, Defendant

McAfee’s decision to seek a court order for custody of Plaintiff Y.C. was

reasonable. Further, her decision was based on a valid court order. Defendant

McAfee was aware of the following information at the time she sought the court

order: DHS received a complaint that Plaintiff Y.C. was abused (TAC, ¶ 37);

Plaintiff Y.C. acknowledged she had been beaten and marks were left (TAC, ¶

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40); Plaintiff John Doe indicated he did not have the authority or right to have

Y.C. examined for injuries (TAC, ¶ 78); Plaintiff John Doe was informed DHS

would have to seek custody of Y.C. if they were unable to fully examine and

investigate the child abuse allegations (TAC, ¶ 81); Plaintiff Y.C. was not

interviewed concerning the child abuse outside the presence of her parents

(TAC, ¶ 39); Plaintiff Jane Doe and left the Does’ residence secretly with Plaintiff

(and child abuse victim) Y.C. (TAC, ¶¶ 92; 222); Plaintiff John Doe left the scene

(TAC, ¶ 90). Defendant McAfee then obtained a valid ex parte order for custody

of Plaintiff Y.C. as permitted by Colorado law. See C.R.S. § 19-3-405.

Defendant McAfee would be remiss in her duties to investigate allegations

of child abuse and protect children from abuse if she had not sought a court

order for custody of Plaintiff Y.C. based on the totality of the circumstances she

was faced with. In fact, if Defendant McAfee had left Plaintiff Y.C. with her

parents and the abuse continued, Defendant McAfee could have been sued

under a state created danger theory. See Seamons v. Snow, 84 F.3d 1226, 1236

(10th Cir.1996).

After leaving the Does residence, Defendant McAfee believed it was

important to speak to the other younger children and went to their school. (TAC,

¶ 96). Defendant McAfee had full knowledge of all the events that occurred at

the Does’ residence, including the fact the abused child, Plaintiff Y.C., had been

secretly removed from the Does’ residence by Plaintiff Jane Doe. After her initial

contact with the younger children, Defendant McAfee again obtained a valid ex

parte order for custody of Plaintiffs E.C., E.C.S., and J.C. (TAC, ¶ 99).

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Defendant McAfee’s decision to apply for a court order to remove Plaintiffs E.C.,

E.S.C. and J.C., based upon the admitted abuse of Plaintiff Y.C. and the actions

of Plaintiffs’ John and Jane Doe, was also reasonable. See Arrendondo v.

Locklear, 462 F.3d 1292 (10th Cir. 2006).13

B. Plaintiffs Fail to Plead Facts Sufficient to Establish the Court

Orders were Misleading and False.

Plaintiffs next claim the court orders were based on material omission and

falsehoods. π Brief, pp. 55-57.

Colorado law permits the county department of human services and/or law

enforcement to obtain an ex parte court order for custody of reasonably believed

to be victims of abuse and neglect, if such caseworker believes that continuing

the child’s place of custody would present a danger to that child’s life or health in

the reasonably foreseeable future. See C.R.S. 19-3-405(2)(a).

While Plaintiffs cite numerous cases in which qualified immunity was

denied for a caseworker who provided false information or omissions, Plaintiffs

have failed to meet their burden:

For this theory to survive qualified immunity, a plaintiff must make a

substantial showing of deliberate falsehood or reckless disregard

for truth, such that would be needed to challenge the presumed

validity of an affidavit supporting a search warrant under Franks v.

Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667

(1978). Myers, 810 F.2d at 1457-58. Likewise, in a § 1983 claim for

13

Plaintiffs’ TAC fails to allege any violations of C.R.S. 19-3-403 and its statutory timing requirements.

See TAC, 157-163.

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judicial deception there must be “a specific affirmative showing of

dishonesty by the applicant,” i.e., knowledge of a plaintiff's

innocence or that a witness was lying. Id. Equally important, a

plaintiff must establish that, but for the dishonesty, the challenged

action would not have occurred. See Franks, 438 U.S. at 171-72,

98 S.Ct. at 2684 (“[I]f when material that is the subject of the

alleged falsity or reckless disregard is set to one side, there

remains sufficient content in the warrant affidavit to support a

finding of probable cause, no hearing is required.”); United States v.

Page, 808 F.2d 723, 728-29 (10th Cir.1987), cert. denied, 482 U.S.

918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987).

Snell v. Tunnell, 920 F.2d 673, need to add page (10th Cir. 1990)

Plaintiffs claim Defendant McAfee “made reckless omissions and

misstatements to a magistrate with disregard for the truth,” and “[d]efendants did

not disclose to the magistrate that they had attempted to compel a strip search in

violation of the Fourth Amendment, and that the only lack of cooperation from

Parents was that they refused to compel their daughter to participate in a strip

search, and had engaged in expressive conduct”; and “[d]efendants did not

disclose to the magistrate that they knew Y.C., was not in any immediate

danger.” TAC, ¶¶ 223-225. Plaintiffs argue next, these pled facts “to the extent”

they were or were not shared with the magistrate establishes falsehoods or

omissions. π Brief, p. 57. Plaintiffs have no evidence and plead no facts to

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support their position. Plaintiffs’ alleged facts do not establish invalidity of the

court order despite Plaintiffs’ vague allegations of falsehoods or omissions.

IV. PLAINTIFFS FAIL TO PLEAD SUPERVISOR PARTICIPATION AND

SUPERVISOR LIABILITY

Plaintiffs acknowledge and correctly state that there is no vicarious

supervisory liability in a § 1983 setting. Section 1983 requires that any official

who “causes” a citizen to be deprived of his or her constitutional rights can also

be held liable, if a plaintiff establishes a deliberate, intentional act by the

supervisor. Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010).

Plaintiffs first argue that Defendant McAfee’s supervisors were “heavily

involved” based on allegations that she discussed the situation of the “attempted

strip search” with her supervisors and the County Attorney’s Office. TAC, ¶¶ 85,

88, 93, 127. Paragraphs cited in the TAC do not allege what was said or done by

supervisors. Following this, Plaintiffs argue that Defendant McAfee’s team and

supervisors were “involved in all the unconstitutional follow-up activities of seizing

the children and taking them away from their parents”. TAC, ¶¶ 132, 134, 137,

149, 150, 154, 158, 161. Once again, the paragraphs cited do not allege what

action was taken by supervisors; instead, they allege that County Defendants: (1)

obtained a court order for a physical examination of Y.C.; (2) Jane Doe agreed to

follow that order based on a conversation with an attorney in North Carolina; (3)

that the BOLO was not removed from Jane Doe’s car; (4) John Doe left the three

younger children with their grandparents and notified DHS; (5) North Carolina

Department of Social Services took the three younger children into custody at

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DHS’ request; (6) Defendant McAfee and another caseworker brought the three

younger children back to Colorado and refused to allow their aunt to accompany

them; (7) Plaintiffs all objected to being separated in light of “no allegations of

abuse because past spankings had only “left minor marks on Children”; and (8)

in a Colorado District Court proceeding, DHS supported the constitutionality of

attempting to photograph visible injuries to Y.C. Not one of these allegations

mentions the term “supervisor,” much less describes what deliberate, intentional

act one allegedly took. In their final attempt to establish supervisory liability for

DHS, Plaintiffs argue that Defendant McAfee’s state court testimony, explaining

her actions in attempting to photograph visible injuries inflicted on YC by John

and Jane Doe, established an unconstitutional policy, custom, or practice. TAC,

¶¶ 48-57, 59-62. Plaintiffs fail to allege that Defendant McAfee’s actions caused

any constitutional violation; in fact, the allegations cited describe how she carried

out her statutory duty to investigate child abuse. See C.R.S. §§ 19-3-304; 308.

Social workers are encouraged to “take or cause to be taken color photographs

of the areas of trauma visible on the [abused] child.” C.R.S. § 19-3-306. Further,

even assuming some constitutional violation for the sake of argument, the

allegations cited do not allege an act or failure to act by a supervisor. They

simply describe the process Defendant McAfee follows when investigating child

abuse allegations.

Plaintiffs next argue that EPSO supervisors were involved, alleging that,

after DHS obtained a custody order and posted it on the door of the Doe home,

John Doe left for North Carolina with the three younger children. As a result, it is

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alleged Sergeant Dearmont instructed Officer14 Jon Price to initiate a case for

violation of custody though they were aware that John Doe had not been

informed of the custody order. TAC, ¶¶ 125-128. While Plaintiffs may allege that

Sergeant Dearmont took deliberate, intentional action in instructing initiating of a

case, there is no allegation of a constitutional violation. In light of the facts

alleged, an EPSO supervisor would be remiss if he or she did not instruct

deputies to investigate a case. Plaintiffs further argue that EPSO Defendants

continued forward with a criminal case despite the “opportunity to consider the

constitutional problems”, citing allegations that: (1) Detective Mihalko

investigated John and Jane Doe for child abuse; (2) Detective Mihalko

determined that neither parent had been served with and that John Doe “likely

had no knowledge” of the custody order15; (3) Detective Mihalko had John and

Jane Doe charged with misdemeanor child abuse; (4) Detective Mihalko

completed a felony filing packet for John Doe leaving with the younger children;

(5) DA Defendants Randy Stevenson and Chad Haynes opened a felony

investigation; and (6) multiple felony charges were filed against John Doe after

the Dependency and Neglect Petition was withdrawn. Once again, Plaintiffs fail

to cite any allegation supporting a constitutional violation or any deliberate,

intentional act taken by a supervisor.

V. PLAINTIFFS FAIL TO PLEAD FACTS TO ESTABLISH A SUBSTANTIVE

DUE PROCESS VIOLATION UNDER THE FOURTEENTH AMENDMENT

14

Jon Price is actually an EPSO Deputy Sheriff 15

It should be noted that a defendant’s knowledge is a necessary element of the crime of violation of

custody order, but personal service of the order is not. C.R.S. § 18-3-304.

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Plaintiffs argue that YC’s Fourteenth Amendment substantive due process

rights were violated on April 19, 2012, despite the fact that no actual search is

alleged to have taken place on that date. TAC, Second Claim; π Brief, pp. 34-37.

In order to establish government liability for a substantive due process violation,

the threshold question is whether behavior of the governmental officer is so

outrageous, given the circumstances, that it may fairly be said to shock the

contemporary conscience, and violates the decencies of civilized conduct. Cnty.

of Sacramento v. Lewis, 523 U.S. 833, 846, (1998). Conduct intended to injure in

some way unjustifiable by any government interest is the sort of official action

most likely to rise to the conscience-shocking level. Daniels v. Williams, 474

U.S. 327, 331(1986). Plaintiffs’ brief correctly states that an example of

conscience shocking behavior would be found in law enforcement officers

coercing confessions from criminal defendants.

In arguing that Defendants behaved in a conscious shocking manner,

Plaintiffs cite the dissent from United States v. Drayton, 536 U.S. 194, (2002), for

the proposition that four officers being at the Doe household carried a

“threatening presence,” forming a coercive environment. This argument ignores

the Supreme Court’s actual ruling in Drake: law enforcement officers do not

violate the Fourth Amendment’s prohibition of unreasonable seizures merely by

approaching individuals. Id at 200. Further, no allegations in the TAC support a

finding of coercion rising to the level of shocking the conscious. Webster’s II New

College Dictionary provides three alternative definitions for “coerce”: “1. [t]o force

to act or think in a given way by pressure, threats, or intimidation: COMPEL. 2.

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To dominate or restrain forcibly. 3. To bring about by force.” The facts alleged in

the TAC come nowhere near any of the definitions.

Reviewing the totality of the circumstances, as alleged by Plaintiffs, the

“coercion” at issue also involved: (1) John Doe laying in the driveway in protest16

(apparently not the intended goal of the “coercion”, considering Claims 4 and 5);

(2) John Doe refusing to allow the officers into his house17; (3) John Doe being

told he was free to leave then actually leaving18; and (4) Jane Doe and YC left

the house without the “strip search” complained of being conducted19.

To the extent Plaintiffs attempt to raise substantive 14th Amendment

claims in their Seventh, Eighth, and/or Tenth Claims such claims similarly suffer

the deficiency of failing to allege conscious shocking government behavior, or, to

the extent they assert claims for familial association rights, they fail to meet the

Griffin20 test.

Any 14th Amendment substantive due process claim should be dismissed

for failure to state a claim.

VI. CONSTITUTIONALITY OF STRIP SEARCHES

The point of constitutionality of strip searches is moot, considering that the

“strip search” complained of did not actually take place. Plaintiffs’ arguments are,

however, addressed below.

Plaintiffs cite Dubbs v. Head Start, Inc. 336 F.3d 1194 (10th Cir. 2003) for

the proposition that physical examinations of clothed areas of children by

16

TAC, ¶ 83 17

TAC, ¶ 84 18

TAC, ¶¶ 89, 90 19

TAC, ¶ 92 20

Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993)

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government workers are searches within the meaning of the Fourth Amendment.

The Dubbs case involved Head Start conducting full medical examinations,

including genital examination and blood draws, of preschool children in a

makeshift setting, without parental consent. Federal regulations regarding the

Head Start program required that the agency obtain a determination from a

health care professional as to whether the child is up-to-date on a schedule of

age appropriate preventative and primary health care, but did not authorize the

agency or health care provider to conduct examinations absent parental consent.

The 10th Circuit determined that Head Start had conducted searches within the

meaning of the Fourth Amendment. Id at 1198; 1207.

The facts alleged in this matter are substantially different than those in

Dubbs. This matter involves a social worker (Defendant McAfee) investigating an

anonymous child abuse complaint about an adolescent girl (Y.C.) who

acknowledged to that social worker that her parents beat her with a stick, leaving

marks on her buttocks. TAC, ¶¶ 33, 37, 40. Under these circumstances,

Defendant McAfee reasonably believed Y.C. had been abused and attempted to

take photographs of the marks21. Based on her own assertion of marks resulting

from her parents’ abuse, Y.C. had a diminished expectation of privacy with

regard to inspection of the area allegedly injured. Even the search complained of

had actually been conducted; Y.C.’s Fourth Amendment rights would not have

21

See C.R.S. § 19-3-306; to the extent Plaintiffs argue that the statute is inapplicable whenever clothing can be used to cover otherwise visible injuries, such argument must fail as the precedent sought would render the statute useless whenever clothing could be used to cover otherwise visible injuries.

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been violated as the search would be based on reasonable suspicion and/or

probable cause.

VII. PLAINTIFF JOHN DOE RETALIATORY PROSECUTION CLAIM FAILS

Aside from County Defendants’ arguments regarding Plaintiff John Doe’s

failure to pled personal participation for the Twelfth Claim, Plaintiff fails to

address or counter the fact that he has failed to “prove” the prosecution lacked

probable cause. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000). Instead,

Plaintiff argues he was forced to pled guilty to “hinder or prevent” him from filing a

civil lawsuit or notice of state claims.22 π Brief, pp. 64-66.

The fact of the matter is Plaintiff John Doe pled guilty to misdemeanor

child abuse. TAC, ¶171. It is well settled that by pleading guilty to a criminal

charge, probable cause is conceded and clearly established. Guinn v. Lakewood

Police Department, 2010 WL 4740326 *6 (D. Colo. 2010).

Plaintiff’s Twelfth Claim must be dismissed.

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. § 1988 and for costs.

22

Plaintiff has not pled in his TAC an “access to the courts” claim. See Ward v. Kort, 762 F.2d 856, 858 (10th Cir.1985)

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RESPECTFULLY submitted this 19th day of October, 2013.

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 80903 (719) 520-6485 Fax: (719) 520-6487 Email: 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 80903 (719) 520-6485 Fax (719) 520-6487 Attorney for County Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on October 19, 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 80132 E-mail: tls@telioslaw.com

Gillian M. Fahlsing Monica N. Kovaci Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mails: gfahlsing@sgrllc.com; mkovaci@sgrllc.com

By: s/ C. Campbell

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