FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 29, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAWN CANFIELD,
Plaintiff - Appellant,
v. No. 15-1014
(D.C. No. 1:14-CV-00461-KMT)
DOUGLAS COUNTY, a public entity; (D. Colo.)
DOUGLAS COUNTY DEPARTMENT
OF HUMAN SERVICES; VALERIE
ELSON, individual and official capacity;
LESA ADAME, individual and official
capacity; CHERYL CAPLECHA,
individual and official capacity; TRACY
MUDGET, individual and official capacity;
KRISTINE JOHNSON, individual and
official capacity; NICOLE BECHT,
individual and official capacity; PATRICK
SWEENEY, individual and official
capacity; SHERRY HANSEN, individual
and official capacity; DOES 1 THROUGH
10, inclusive,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Dawn Canfield sued the defendants under 42 U.S.C. § 1983, alleging that they
had deprived her of her constitutional rights as a parent by presenting false testimony
and by suppressing evidence during state juvenile-court proceedings, thereby causing
her to lose custody of her children. Her second amended complaint (the Complaint)
also included several related claims under Colorado law. The district court dismissed
her federal claims with prejudice for failure to state a claim because they were
untimely on their face.1 It declined to exercise supplemental jurisdiction over her
state-law claims and dismissed them without prejudice. We affirm.
BACKGROUND
The Complaint sought damages from Douglas County, its Department of
Human Services (DHS), and a number of social workers and others employed by
Douglas County or the DHS. Because we are reviewing a dismissal on the pleadings,
we set forth the facts as alleged in the Complaint.
In 2010 Ms. Canfield applied for a temporary restraining order against her
husband. This matter was set for hearing on September 10, 2010. Before the hearing
the defendant social workers interviewed her husband, who made false statements
about her, characterizing her as mentally unstable and a threat to her children. The
social workers failed to investigate Mr. Canfield’s statements and improperly took
them as true.
1
The parties consented to entry of final judgment by a United States
Magistrate Judge. See 28 U.S.C. § 636(c).
2
At the September 10 hearing Ms. Canfield was confronted by a DHS social
worker who expressed concern about her mental health and the safety of her children.
Either at that hearing or a later one (the Complaint is unclear) DHS social workers
testified that Ms. Canfield was mentally unstable and recommended that her children
be removed from her home and placed with her husband. In addition, the defendants
initiated a dependency-and-neglect (D&N) proceeding on October 4, 2010. The
social workers presented testimony and filed an assessment containing a false
statement regarding Ms. Canfield’s prior conduct. The court ordered her to
relinquish custody to her husband, and allowed her only supervised visitation.
Over the course of a year and a half, DHS and its agents submitted false
information and testimony to the court, presented false reports and findings
concerning Ms. Canfield’s parenting abilities, coerced her into agreeing to a
stipulated adjudication that adversely affected her ability to regain custody of her
children, required her to undergo examinations with biased examiners, interfered
with her therapy, and ignored or covered up Mr. Canfield’s inadequacies as a parent.
Throughout the various proceedings, DHS agents promised Ms. Canfield that if she
cooperated with DHS, her custodial rights would be restored. As a result of the
defendants’ actions, the state court entered a final Order of Allocation of Parental
Responsibilities on February 24, 2012, which awarded Mr. Canfield “sole
decision-making and allocation of parental responsibilities,” Complaint, ¶ 51, and
limited Ms. Canfield to supervised visitation in a professional facility. Ms. Canfield
filed this action on February 21, 2014.
3
DISCUSSION
“We review de novo the dismissal of an action under Rule 12(b)(6) based on
the statute of limitations.” Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.
2010). “We accept as true all well-pleaded factual allegations in the complaint and
view them in the light most favorable to the [plaintiff].” SEC v. Shields, 744 F.3d
633, 640 (10th Cir. 2014) (internal quotation marks omitted). “While the statute of
limitations is an affirmative defense, when the dates given in the complaint make
clear that the right sued upon has been extinguished, the plaintiff has the burden of
establishing a factual basis for tolling the statute.” Aldrich v. McCulloch Props.,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980).
In § 1983 actions we apply the forum state’s statute of limitations for
personal-injury claims, Wallace v. Kato, 549 U.S. 384, 387 (2007), and generally
apply the forum state’s tolling rules, id. at 394. Colorado, the forum state here,
provides a two-year statute of limitations for personal-injury claims. Colo. Rev. Stat.
§ 13–80–102.2 For the accrual date, however, we look to federal law. See Wallace,
549 U.S. at 388. Under federal law, “[a] civil rights action accrues when facts that
2
The district court applied Colo. Rev. Stat. § 13-80-102(1)(g), which provides
a two-year statute of limitations for “[a]ll actions upon liability created by a federal
statute where no period of limitations is provided in said federal statute.” But we
rely on the residual statute of limitations in § 13-80-102(1)(i), which pertains to “[a]ll
other actions of every kind for which no other period of limitations is provided.” See
Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993) (adopting two-year
residual limitations period in § 13-80-102(1)(i) for § 1983 actions); Arnold v.
Duchesne Cty., 26 F.3d 982, 985 n.5 (10th Cir. 1994) (explaining that this court has
applied Colorado’s residual statute of limitations, rather than its statute applicable to
federal actions for which there is no limitations period, to § 1983 claims).
4
would support a cause of action are or should be apparent.” Fratus v. DeLand, 49
F.3d 673, 675 (10th Cir. 1995) (internal quotation marks omitted).
We agree with the district court that Ms. Canfield’s substantive-due-process
claims accrued in 2010, when her children were ordered removed from her custody,
as she knew or should have known at that point that her right to familial association
had been violated. Because Ms. Canfield did not file this action until February 21,
2014, the statute of limitations barred her federal civil-rights claims. She makes
several arguments to salvage her claims, but they are not persuasive.
First, Ms. Canfield argues that her claims did not accrue until February 24,
2012, when the state juvenile court entered its final order determining her parental
rights.3 We disagree. Her relevant injury became evident when her children were
first ordered removed from her custody—the first loss of parental rights that she
attributes, at least in part, to the defendants. Cf. Thomas v. Kaven, 765 F.3d 1183,
1187-88, 1190, 1196 (10th Cir. 2014) (parents stated claim for violation of the right
to familial association after child’s doctors and therapists placed medical hold on
child and sought state-court order for involuntary residential treatment, even though
defendants abandoned involuntary-treatment proceeding before court held hearing or
entered any final order). The cause of action accrued at that time even though “the
full extent of [her] injury [was] not then known or predictable.” Varnell v. Dora
Consolidated Sch. Dist., 756 F.3d 1208, 1216 (10th Cir. 2014) (internal quotation
3
The defendants contend that she forfeited this argument by failing to raise it
in district court. We disagree. She presented the argument sufficiently to preserve it
for our review. See Aplt. App. at 136-37 (response to motion to dismiss).
5
marks omitted). Nor was commencement of the limitations period delayed, as Ms.
Canfield asserts, until the state court reached a final decision. Cf. Brodeur v. Am.
Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007) (accrual date for bad-faith tort
suit based on harmful tardiness in handling worker’s compensation claim was not
postponed until final resolution of worker’s compensation claim). She did not need
to await the final decision to know that her parental rights had been injured.
Second, Ms. Canfield argues that her complaint includes a conspiracy claim
and that for such a claim, “the statute of limitations accrues when the conspiracy is
complete, not when it begins.” Aplt. Opening Br. at 19. She contends that the
conspiracy did not conclude until the juvenile court entered its final order allocating
parental rights. But the district court properly determined that the Complaint did not
assert a claim for conspiracy. Although Ms. Canfield cites three instances in her
38-page Complaint where she alleged that the defendant caseworkers had
“conspired” against her, these passing references—which fail to particularize why it
is plausible to believe that all the defendants entered into a common agreement, as
opposed to engaging in parallel conduct—do not suffice to state a conspiracy claim.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007) (to plead a conspiracy
claim, allegations of parallel conduct must be “placed in a context that raises a
suggestion of a preceding agreement, not merely parallel conduct that could just as
well be independent action”). A conclusory allegation of conspiracy will not suffice.
See id. Further, Ms. Canfield’s response in district court to the defendants’ motion to
dismiss failed to argue that her purported conspiracy claim did not accrue until entry
6
of the 2012 order. It says merely, “The statute of limitations runs in a conspiracy
claim under § 1983 when the conspiracy claim accrued and not when the defendants
commenced the conspiracy.” Aplt. App. at 137. It was not the job of the district
court to rescue Ms. Canfield’s claim by making her legal arguments and factual
allegations for her. In her reply brief, Ms. Canfield requests leave to amend her
complaint to state a conspiracy claim if it fails to do so. But we deny this request,
made for the first time in the reply brief, because (1) she made no specific request in
district court to amend her complaint to state a conspiracy claim, even after the court
had put her on notice that she had not stated such a claim; (2) she had counsel in
district court; and (3) she had already amended her complaint twice.
Third, Ms. Canfield argues that her claims should be equitably tolled until the
state court entered its final order because the defendants’ “wrongful conduct
prevented [her] from pursuing . . . her claim.” Aplt. Opening Br. at 22. See Dean
Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996) (equitable
tolling is appropriate “where the defendant’s wrongful conduct prevented the plaintiff
from asserting his or her claims in a timely manner.”). The defendants’ alleged
wrongful conduct, which “discouraged and circumvented Ms. Canfield’s efforts [to
pursue] a civil action,” consisted of “false promises to her that the fastest way to get
her children back was to comply with their demands.” Aplt. Opening Br. at 24. But
the Complaint alleges that Ms. Canfield knew of the defendants’ false statements
throughout the state litigation, she was continually at odds with the defendants, and
the defendants pursued action against her almost relentlessly. In this context it would
7
have been unreasonable for her to delay filing this suit for fear that the litigation
would harm her in the state proceedings.
Fourth, Ms. Canfield argues that under the “continuing violation doctrine,” her
claims continued to accrue during the entire time period covered by her complaint.
As the district court noted, however, this court has never held that the
continuing-violation doctrine applies to § 1983 cases. And we have assumed that
even if it does, “the doctrine is triggered by continual unlawful acts, not continual ill
effects from the original violation.” Mata v. Anderson, 635 F.3d 1250, 1253
(10th Cir. 2011) (internal quotation marks omitted). Ms. Canfield does not allege
any discrete unlawful acts that occurred during the two years before she filed this
action. The last affirmative act taken by the defendants alleged in the complaint was
in January 2012, when social workers testified at a hearing on the defendants’ motion
for allocation of parental responsibility. This act preceded the two-year period before
Ms. Canfield filed suit. (The Complaint does allege that “Douglas County, through
DHS, continues to this day to deny Plaintiff her parental rights by the fraudulent
omissions of evidence and outright suppression of material exculpatory evidence, by
and through its public employees.” Aplt. App. at 179, ¶ 55. But this sentence fails to
adequately allege additional wrongful acts. See Pike v. City of Mission, 731 F.2d
655, 660 (10th Cir. 1984) (plaintiff could not rely on continuing-violation theory
where he alleged that the defendants “continued to deny him reinstatement and a due
process hearing” and to retain false information about him in their files during the
limitations period, because “[t]hese acts are the natural result of the original
8
employment decision,” not new grounds for relief), overruled on other grounds,
Baker v. Board of Regents, 991 F.2d 628, 633 (10th Cir. 1993).)4
Finally, Ms. Canfield argues that the limitations period should have been tolled
because she was “mentally incompetent.” Aplt. Opening Br. at 28-29. She admits
that she was not really mentally incompetent, but she argues that DHS cannot have it
both ways—arguing that she was not competent to be a parent and needed a guardian
ad litem (GAL), yet was competent enough to understand that her constitutional
rights had been violated as of September 10, 2010. The statute on which she relies,
which deals with commencement of limitations periods for persons under a disability,
provides that if such a person is represented by a legal representative, the
representative has until two years after his or her appointment to take action on
behalf of the person under a disability, notwithstanding any earlier expiration of the
limitations period. Colo. Rev. Stat. § 13-81-103(1)(a). Ms. Canfield states that she
was appointed a GAL in the state-court proceeding on October 28, 2011. Assuming
the statute applies, her GAL thus had two years from that date, or until October 28,
2013, to file this action. The GAL failed to do so.
4
Although Ms. Canfield’s Complaint includes a prayer for injunctive relief,
and a claim for declaratory relief against Douglas County, her claim for such relief
does not allege additional specific acts that occurred or were threatened during the
limitations period. Nor does Ms. Canfield rely on her claim for declaratory or
injunctive relief to support her continuing-violation argument.
9
CONCLUSION
As the district court correctly determined, the allegations of Ms. Canfield’s
Complaint show that it was untimely filed. None of her arguments to the contrary
has merit. We therefore affirm the judgment of the district court.
Entered for the Court
Harris L Hartz
Circuit Judge
10
Canfield v. Douglas County
Court: Court of Appeals for the Tenth Circuit
Date filed: 2015-09-29
Citations: 619 F. App'x 774
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