FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 5, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
E.M.M.; N.M.M.; G.J.M.,
Plaintiffs - Appellants,
v. No. 19-1391
(D.C. No. 1:18-CV-02616-RBJ)
DOUGLAS COUNTY, COLORADO; (D. Colo.)
LESA ADAME, individually; CARL
GARZA, individually,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Plaintiffs appeal the district court’s dismissal with prejudice of this action
based on claim preclusion. We affirm the dismissal, but on alternate grounds.
BACKGROUND
This is the third appeal related to this dispute. In our two previous decisions
we comprehensively discussed the facts and legal theories underlying claims brought
by N.E.L., M.M.A., and E.M.M. These three prior plaintiffs, children of Mr. and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mrs. Doe, alleged they were taken into custody and temporarily separated from their
parents as the result of wrongful actions by Kansas and Colorado authorities. See
N.E.L. v. Gildner (N.E.L. II), 780 F. App’x 567 (10th Cir. 2019), cert. denied,
140 S. Ct. 936 (2020); N.E.L. v. Douglas Cnty. (N.E.L. I), 740 F. App’x 920
(10th Cir. 2018), cert. denied, 139 S. Ct. 1320 (2019). N.E.L. I pertained to Colorado
officials and was litigated in the District of Colorado. N.E.L. II pertained to Kansas
officials and was first transferred to and then litigated in the District of Kansas. In
each case we affirmed the district court’s dismissal of all claims.
Following our latest decision, E.M.M., who was a plaintiff in N.E.L. II (the
District of Kansas case) and two of his siblings, N.M.M. and G.J.M., who were not
named as plaintiffs in the prior litigation but have now reached the age of majority,
filed this new suit in the District of Colorado against the Colorado defendants. Five
of their claims are substantially identical to the claims asserted in N.E.L. I. Plaintiffs
have also added two claims, alleging that defendants violated (1) their Fourteenth
Amendment rights, by failing to provide them with notice and a hearing in Colorado;
and (2) their right to travel.
The defendants moved to dismiss this action on several grounds: claim
preclusion, issue preclusion, the statute of limitations, qualified immunity, and failure
to plead a claim of municipal liability. The district court determined that claim
preclusion barred plaintiffs’ claims, dismissed their claims with prejudice, and did
not reach the other asserted grounds for dismissal.
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As plaintiffs acknowledge, see Aplt. Opening Br. at 7, 23, we may affirm this
judgment on any ground that finds support in the record. See GF Gaming Corp. v.
City of Black Hawk, 405 F.3d 876, 882 (10th Cir. 2005). Here, affirmance is
appropriate because all plaintiffs’ claims fail as a matter of law. To the extent
plaintiffs raise claims identical to those previously raised by their older siblings,
those claims were thoroughly litigated in our prior appellate decisions and fail for the
reasons we have identified. 1 To the extent plaintiffs attempt to raise new claims, or
rely on newly stated facts, those claims fail for reasons we will now specify.
DISCUSSION
In assessing whether a complaint states a claim, we accept the well-pleaded
allegations of the complaint as true and view them in the light most favorable to the
plaintiff. Jones v. Hunt, 410 F.3d 1221, 1223 (10th Cir. 2005). “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted).
1. Previously Asserted Claims
The older siblings’ complaint in N.E.L. I raised six claims under the Fourth
and Fourteenth Amendments. As the district court noted, the complaint in this action
“is largely identical to the older siblings’ complaint.” Aplt. App. at 223. Five of the
seven claims raised in this action “are identical to claims asserted in the older
1
We have not simply affirmed based on our decisions in those prior cases,
however. Instead, we have carefully considered the arguments plaintiffs have raised
in their appellate briefing in this case.
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siblings’ complaint, except to the extent that plaintiffs have removed [Kansas
defendants] Gildner, Webb, and Abney,” id., and substituted themselves as plaintiffs.
These five claims are
• “that Adame and Garza violated the Fourth Amendment by approving and/or
conducting an unlawful seizure by which Plaintiffs were deprived of their
liberty without due process when they were prohibited from any movement or
travel with their mother, father and grandparents,”
• “that Adame and Garza violated plaintiffs’ Fourteenth Amendment right to
maintain a familial relationship,”
• “that Adame and Garza conspired to deprive plaintiffs of their constitutional
rights,”
• “that plaintiffs were entitled to exemplary damages because the actions of
Adame and Garza were attended by intent, recklessness, callous disregard or
indifference to plaintiffs’ rights,” and
• “that Douglas County violated the Fourth Amendment by adopting as its
policy or practice warrantless seizure, or alternatively by acting with deliberate
indifference in failing to train personnel.”
Id. at 223-24 (alterations and internal quotation marks omitted).
In N.E.L. I, we affirmed the dismissal of each of these claims, as asserted by
the older siblings. We determined that the Fourth Amendment and Fourteenth
Amendment claims against Adame and Garza failed because the defendants were
entitled to qualified immunity. See N.E.L. I, 740 F. App’x at 929-30 (Fourth
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Amendment claims); id. at 931 (Fourteenth Amendment claims). And the older
siblings’ Fourth Amendment claim against Douglas County failed because they did
not plead sufficient facts to sustain a claim under Monell v. Department of Social
Services, 436 U.S. 658 (1978), whether their claim was based on formal policy, see
N.E.L. I, 740 F. App’x at 932-33; custom, see id. at 933; or deliberate indifference,
see id. at 933-34.
Plaintiffs’ identical claims in this suit fail for substantially the same reasons.
And even though their complaint asserts additional facts to support their
municipal-liability claim, those facts do not warrant a different result.
A. Additional Facts Concerning Formal Policy
In N.E.L. I, we noted the older siblings’ contention that Douglas County
unconstitutionally followed a formal policy of complying with a 2007 state-court
standing order that allegedly led its employees to violate the Fourth Amendment.
But we found this argument waived, because the older siblings “didn’t mention the
standing order in their First Amended Complaint” or their opening brief. N.E.L. I,
740 F. App’x at 932. Perhaps in response to this holding, plaintiffs have added a
paragraph to their complaint alleging that “Douglas County adopted a policy
contained in a standing order, CJO 07-11, authorizing the warrantless entry and
seizure of Plaintiffs, which policy was the moving force behind the deprivation of
Plaintiffs’ [constitutional rights].” Aplt. App. at 34, ¶ 188a. But this additional
allegation does not require a different outcome.
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Notwithstanding our waiver determination in N.E.L. I, we also addressed the
older siblings’ formal-policy argument on the merits. We concluded their reliance on
the policy at issue here, CJO 07-11, failed to establish a Monell claim because the
standing order did not authorize county officials to enter homes without a warrant.
See N.E.L. I, 740 F. App’x at 932-33. Plaintiffs’ invocation of this policy in their
complaint does not dictate a different result.
B. Additional Facts Concerning Deliberate Indifference
In N.E.L. I we also addressed the older siblings’ contention that Douglas
County’s failure to adopt an adequate policy and training concerning the
enforceability of out-of-state ex parte orders constituted deliberate indifference. We
concluded the older siblings failed to allege facts plausibly showing that failure to
adopt such a policy was “substantially certain to result in illegal seizures or entries
into homes without warrants,” or that Douglas County was on notice that its failure to
act would lead to illegal seizures or warrantless entries into homes and was
deliberately indifferent to the risk of harm. Id. at 934 (internal quotation marks
omitted).
Plaintiffs have added two paragraphs to their complaint concerning this claim.
The first confirms that Douglas County lacked an official policy for handling
requests to enforce out-of-state ex parte orders. See Aplt. App. at 35, ¶ 190a. The
second relies on a provision in Douglas County’s policy manual providing that
“[o]ut-of-state Court Orders are not valid on their face in Colorado, except for
Foreign Protection Orders.” Id., ¶ 191a (internal quotation marks omitted). Plaintiffs
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contend this policy manual provision made it obvious that Douglas County needed to
adopt and implement an official policy prohibiting the seizure of children based on
out-of-state ex parte orders. But neither new allegation fills the hole in the complaint
that we previously identified: failure to plausibly allege facts that rise to the level of
deliberate indifference.
2. New Claims
Plaintiffs also added two new claims to their complaint, alleging that the
defendants (1) violated their procedural due process rights under the Fourteenth
Amendment and Colorado’s UCCJEA by failing to afford them notice and a hearing
in Colorado, and (2) violated their right to travel. Our analysis in N.E.L. I dictates
dismissal of the procedural due process claim as stated in plaintiffs’ complaint, both
as it relates to the individual defendants, who are entitled to qualified immunity, see
N.E.L. I, 740 F. App’x at 931 n.21; and as it relates to Douglas County, see id. at
932-34. In addition, plaintiffs have failed to identify clearly established law or a
basis for municipal liability that would permit them to pursue a claim against these
defendants for an alleged deprivation of their right to travel.
Seeking to resurrect their procedural due process claim, plaintiffs nevertheless
urge us to “overturn [our] previous rulings in N.E.L. I and II [and] find that Plaintiffs
had a clearly established right to a post-seizure hearing in Colorado based on the
detailed requirements of Colorado’s UCCJEA and federal decisional law.” Aplt.
Opening Br. at 7. In response, the defendants urge us to follow our law-of-the-circuit
principle, under which we may overturn a prior panel decision only in very specific
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circumstances, such as when there has been an en banc consideration or an
intervening Supreme Court decision. See, e.g., United States v. Doe, 865 F.3d 1295,
1298-99 (10th Cir. 2017). Plaintiffs respond that this principle is inapplicable here,
because both N.E.L. I and II were unpublished decisions. See Kennedy v. Lubar,
273 F.3d 1293, 1300 n.9 (10th Cir. 2001) (“[T]he law of the circuit doctrine . . .
refers generally to our policy that prior circuit precedent, derived from a published
opinion on the merits, will not be overturned absent an en banc ruling of this court.”).
But even if we consider this issue on the merits, the dismissal must still be
affirmed. Having carefully reviewed plaintiffs’ arguments as well as our decisions in
N.E.L. I and II, we conclude that given the unusual facts of this case plaintiffs have
failed to point us to “existing precedent [that] placed the statutory or constitutional
question beyond debate,” Kisela v. Hughes, ___U.S.___, 138 S. Ct. 1148, 1152
(2018) (per curiam) (internal quotation marks omitted), and that made it “sufficiently
clear that every reasonable official would have understood that what he is doing
violates that right,” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam) (internal
quotation marks omitted). Their reliance on the UCCJEA’s procedural requirements
to support their Fourteenth Amendment argument does not satisfy their burden, cf.
N.E.L. I, 740 F. App’x at 930 (“Having failed to provide us authority clearly
establishing that violating the Colorado UCCJEA is a Fourth Amendment violation,
[the older siblings] haven’t met their burden.”), and the other authorities they cite are
insufficiently particularized to the facts of this case to constitute clearly established
law. Thus, dismissal of this claim is proper based on qualified immunity.
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CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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