Opinion
Civil Action 1:22-cv-03252-WJM-SBP
08-29-2023
AMY RUNKLE, Plaintiff, v. STATE OF COLORADO, CITY AND COUNTY OF DENVER, MICHAEL MARTINEZ, Former Chief Judge, BRUCE JONES, Judge, and DARRLY SHOCKLEY, Judge, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge.
This matter is before this court on two motions to dismiss, one filed by the City and County of Denver, ECF No. 21, and the other filed by the defendants associated with the State of Colorado, ECF No. 31. For the reasons set forth below, this court respectfully RECOMMENDS that the pending Motions to Dismiss be GRANTED and that the complaint, ECF No. 1, be DISMISSED WITHOUT PREJUDICE.
BACKGROUND
I. Procedural History
Ms. Runkle filed the complaint in this matter on December 19, 2022, alleging multiple violations of her First, Fourth, and Fourteenth Amendment rights (the “Complaint” or “Compl.”). ECF No. 1. Defendant City and County of Denver (the “City”) filed a motion to dismiss the Complaint on February 27, 2023 (the “City Motion”). ECF No. 21. Defendants the State of Colorado (the “State”), former Judge Michael Martinez, Judge Bruce Jones, and Judge Darryl Shockley (together, the “State Defendants”) filed a motion to dismiss the Complaint on March 14, 2023 (the “State Motion” and, together with the City Motion, the “Motions to Dismiss” or “Motions”). ECF No. 31. All Defendants argue that Ms. Runkle's Complaint should be dismissed for failure to state a claim against them under 42 U.S.C. § 1983. City Mot. At 3-7; State Mot. at 8. The City also contends that Ms. Runkle's § 1983 claims are barred by Colorado's two-year statute of limitations for personal injury claims. City Mot. at 7. The State Defendants further assert that: (1) the court lacks subject matter jurisdiction over Ms. Runkle's claims (State Mot. at 6); (2) the court cannot exercise personal jurisdiction over the Judges because they were not properly served (id. at 3-6); and (3) the Judges are entitled to absolute judicial immunity (id. at 6-8).
Ms. Runkle filed responses in opposition to the Motions to Dismiss on February 23, 2023 (the “City Opp.”), and March 15, 2023 (the “State Opp.”). ECF Nos. 23, 34. The State Defendants filed a reply brief on March 29, 2023 (the “State Reply”). ECF No. 36. The City did not file a reply.
Ms. Runkle, a prolific filer here and in the Colorado state courts, see Ex. A, State Mot., ECF No. 31-1 (Colorado Courts e-filing system reflecting 56 lawsuits brought by Runkle), has filed numerous other documents, seemingly concerning her response to the Motions. ECF Nos. 25-30, 33, 35, 38-39, 41-45. Supplemental responses to motions to dismiss are not permitted. See D.C.COLO.LCivR 7.1(d). Further, sur-replies are an “unusual privilege,” and Ms. Runkle did not seek leave to file a sur-reply and gave no reason why the arguments she sought to raise in these sur-replies “had not been available to [her] when [she] filed [her] response[.]” S.E.C. v. Harman Wright Grp., LLC, 777 Fed.Appx. 276, 278 (10th Cir. 2019). Regardless, the court discerns nothing in these extraneous filings that alters its analysis here. Ms. Runkle is respectfully cautioned that, should she continue to make prolix filings outside those permitted by the Federal Rules of Civil Procedure, those filings may be stricken by the court sua sponte. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act . . . on its own[.]”); see also, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th Cir. 2005) (“Due to the very nature of the court as an institution, it must and does have an inherent power to impose order, respect, decorum, silence, and compliance with lawful mandates . . . Upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”) (cleaned up).
II. Ms. Runkle's Allegations
Ms. Runkle's claims in this action in federal court are premised on the decision-made by a Colorado state court-to remove her children from her custody:
The State of Colorado, along with Denver City and County, took away my beautiful children and adopted them out to another family. I have been unable to contact them or know where they are. I have never healed from the devastation of the sep[a]ration. It still hurts everyday. It took many years before I mustered up the ability to file litigation concerning the many way in which my kids and I were done wrong in the situation.Compl. at 6; see also id. at 9, 11, 12, 15, 16 (asserting that, in connection with the custody proceeding, the State Defendants took away her custody rights, threw away her court filings, forced her to submit to a mental health evaluation, and appointed her a guardian ad litem). Ms. Runkle attached to her Complaint hundreds of pages of filings that she made, or attempted to make, in Colorado state courts. ECF Nos. 1-3 to 1-20.
In her Opposition to the City Motion, Ms. Runkle also complains about alleged conditions in the Jefferson County, Arapahoe County, and Denver City jails. City Opp. at 10-14. However, “a complaint may not be amended by briefs in opposition to a motion to dismiss.” E.g., Am. Cricket Premier League, LLC v. USA Cricket, 445 F.Supp.3d 1167, 1175 n.6 (D. Colo. 2020) (quoting Smith v. Pizza Hut, Inc., 694 F.Supp.2d 1227, 1230 (D. Colo. 2010)). Accordingly, these new allegations, which this court does not address, do not preclude dismissal of the Complaint.
Ms. Runkle claims that her First, Fourth, and Fourteenth Amendments rights have been violated, Compl. at 4, presumably invoking 42 U.S.C. § 1983, which allows a citizen to bring a lawsuit against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]” She seeks “unspecified” relief in the Complaint, id. at 17, but in briefing in the Motion to Dismiss asserts that she seeks the restoration of her parental rights, the reinstatement of her filing rights in state court, and money. See State Opp. at 1.
LEGAL STANDARDS
I. Lack of Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) . Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” Wilderness Soc. v. Kane Cty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from either party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Federal Rule of Civil Procedure 12(b)(1) authorizes the dismissal of a complaint for lack of subject matter jurisdiction. Pursuant to Rule 12(b)(1), a party may bring either a facial or factual attack on subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015) (citation omitted). For a facial attack, the court takes the allegations in the complaint as true; for a factual attack, the court may not presume the truthfulness of the complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citation omitted); see also Ulrich v. Dep't of Human Servs., No. 20-cv-03810-WJM-KMT, 2022 WL 223212, at *2 (D. Colo. Jan. 25, 2022) (holding that a 12(b)(1) motion “must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction,” unless the court finds that it “may not presume the truthfulness of the complaint's ‘factual allegations'”). The burden to establish jurisdiction rests with the party asserting jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
Federal Rule of Civil Procedure 12(b)(5) . “The court may dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process.” Meyers v. Pfizer, Inc., No. 13-cv-01508-WJM-CBS, 2014 WL 1598723, at *2 (D. Colo. Apr. 21, 2014), report and recommendation adopted, 2014 WL 2490158 (D. Colo. June 2, 2014), aff'd, 581 Fed.Appx. 708 (10th Cir. 2014). “Without proof of service, the Court lacks personal jurisdiction over the Defendant.” Id. (citing Okla. Radio Associates v. FDIC, 969 F.2d 940 943 (10th Cir. 1992)); see also Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir. 2008) (same).
When opposing a motion to dismiss for insufficient service of process, the plaintiff “bears the burden of making a prima facie case that [she] has satisfied statutory and due process requirements so as to permit the court to exercise personal jurisdiction over the defendant.” Lopez v. Colorado, No. 19-cv-00684-WJM-MEH, 2020 WL 2309558, at *19 (D. Colo. Jan. 7, 2020) (quoting Allen v. United Props. & Const., Inc., No. 07-cv-00214-LTB-CBS, 2008 WL 4080035, at *9 (D. Colo. Sept. 3, 2008)). “The parties may submit affidavits and other documentary evidence for the Court's consideration, and plaintiff is entitled to the benefit of any factual doubt.” Fisher v. Lynch, 531 F.Supp.2d 1253, 1260 (D. Kan. 2008). A “[p]laintiff must demonstrate that the procedure employed by [him or her] to effect service satisfied the requirements of Rule 4 of the Federal Rules of Civil Procedure.” Meyers, 2014 WL 1598723 at *2 (citation omitted).
II. Failure to State a Claim
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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.” Id. quotation marks omitted). That is, the complaint must include well-pleaded facts that, taken as true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The Twombly/Iqbal pleading standard first requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 679. It next requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. In this analysis, courts “disregard conclusory statements and look only to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). Additionally, “factual allegations that contradict . . . a properly considered document are not well-pleaded facts that the court must accept as true.” Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013) (internal citation omitted). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. Legal Standard for Pleadings of Pro Se Litigants
Ms. Runkle is proceeding pro se. The Court, therefore, “review[s her] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). This rule applies to all proceedings involving pro se litigants. Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) (citations omitted).
However, Ms. Runkle's pro se status does not vitiate her obligation to adhere to, and comply with, “the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)); Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994) (stating that a pro se litigant must “comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure”). Thus, while the court makes “some allowances” for a pro se plaintiff's “failure to cite proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction, or [her] unfamiliarity with the pleading requirements,” the court “cannot take on the responsibility of serving as [her] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at 1110); see also Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (cautioning that the court may not “construct arguments or theories for the [pro se] plaintiff in the absence of any discussion of those issues”) (citation omitted).
ANALYSIS
I. Claims Against the State Defendants
The court first considers the State Defendants' arguments that the claims against them should be dismissed for lack of subject matter jurisdiction. See State Mot. at 6-8; State Reply at 1-2. The Judges point to a further defect in personal jurisdiction: that they have not been properly served. State Mot. at 3-6. see also, e.g., Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 93-94 (1998) (holding that a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction, and explaining that failing to make a determination about jurisdiction first “carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers”); Payton v. U.S. Dep't of Agric., 337 F.3d 1163, 1167 (10th Cir. 2003) (“Jurisdiction is a threshold question that a federal court must address before reaching the merits[.]”) (quotation omitted). The court addresses both jurisdictional arguments in turn.
A. No Subject Matter Jurisdiction
This court lacks jurisdiction to hear these claims, premised as they are on Ms. Runkle's dissatisfaction with the decisions of state court judges in connection with state court proceedings.
1. Domestic Relations and the Rooker-Feldman Doctrine
The Rooker-Feldman doctrine bars “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). It also bars any “action in federal court that alleges an injury ‘inextricably intertwined with a state court decision, such that success in the federal court would require overturning the state court decision[.]'” Wideman v. Colorado, 242 Fed.Appx. 611, 613-14 (10th Cir. 2007) (quoting Epps v. Creditnet, Inc., 320 F.3d 756, 75859 (7th Cir. 2003)). Under the Rooker-Feldman doctrine, a district court has no jurisdiction to review challenges to state court decisions “even if those challenges allege that the state court's action was unconstitutional.” Jackson v. Peters, 81 Fed.Appx. 282, 285-86 (10th Cir. 2003) (quoting Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1108 (10th Cir. 2000)). Only the United States Supreme Court may review such decisions. Id. at 286. A court may, however, exercise jurisdiction so long as “it does not exercise de facto appellate jurisdiction by entertaining a suit that would disrupt the final judgment entered by the state court.” Mo's Express, LLC v. Sopkin, 441 F.3d 1229, 1238 (10th Cir. 2006); see also Mayotte v. U.S. Bank Nat'l Ass'n, 880 F.3d 1169, 1175-76 (10th Cir. 2018) (holding that Rooker-Feldman did not apply when plaintiff was “not seeking to set aside [the state court's] order”).
In addition to the Rooker-Feldman doctrine's general bar against review of state court decisions, federal courts specifically lack jurisdiction over domestic-relations cases. See Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992) (holding that federal courts lack power “to issue divorce, alimony, and child custody decrees”); Hunt v. Lamb, 427 F.3d 725, 727 (10th Cir. 2005) (holding that district court lacked jurisdiction over child custody dispute). This doctrine is known as the “domestic-relations exception,” under which a federal court cannot “reopen, reissue, correct, or modify” an order in a domestic-relations case. Leathers v. Leathers, 856 F.3d 729, 756 (10th Cir. 2017); see also Alfaro v. Cty. of Arapahoe, 766 Fed.Appx. 657, 660-61 (10th Cir. 2019) (affirming dismissal for lack of subject matter jurisdiction under the domesticrelations exception and Rooker-Feldman).
The court concludes that Ms. Runkle's claim against the State Defendants regarding custody of her children is procedurally barred by these principles. In so concluding, the court emphasizes two points:
First, Ms. Runkle indisputably is raising a challenge to the underlying judgment against her in a domestic-relations proceeding in the state court, in which a final order removing her children from her custody was entered. See Compl. at 6, 9, 11, 12, 15, 16, and State Opp. at 1 (“I need my kids. I need my parental rights.”). Therefore, her claims are barred by both the domestic-relations exception and the Rooker-Feldman doctrine, and this court has no jurisdiction to hear her claims. See, e.g., Alfaro, 776 F. Appx' at 559 (upholding decision by district court that “the Rooker-Feldman doctrine barred it from reviewing any final state-court judgment in the divorce and child-custody proceedings”); Landrith v. Gariglietti, 505 Fed.Appx. 701, 702 (10th Cir. 2012)
(Rooker-Feldman doctrine precluded faither's federal lawsuit against state judge and clerk of the state court seeking review of his state court divorce and child custody case).
Second, even if Ms. Runkle was not directly challenging the child custody decision from the state court, her claims would still fail because they are inextricably intertwined with that decision. See Jackson, 81 Fed.Appx. at 286. “The fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.” Read v. Klein, 1 Fed.Appx. 866, 869 (10th Cir. 2001) (quoting Garry v. Geils, 82 F.3d 1362, 1356 (7th Cir. 1996)). Here, Ms. Runkle alleges that her injuries stem from the decision to take away her parental rights. See Compl. at 6 (“The State of Colorado . . . took away my beautiful children and adopted them out to another family.”). Put simply, this alleged injury not only “resulted from” the state court decision; fundamentally, her injury is the state court decision. Because Ms. Runkle's claims are inextricably intertwined with this decision, review by this court is barred by the Rooker-Feldman doctrine.
2. Eleventh Amendment Immunity
Although this court finds that it lacks jurisdiction to consider Ms. Runkle's claims because of the domestic-relations exception and Rooker-Feldman doctrine, there is another defect in subject matter jurisdiction that requires dismissal of all of Ms. Runkle's claims against the State of Colorado and the Judges in their official capacities: Eleventh Amendment immunity.
It is unclear whether Mr. Runkle is bringing claims against the Judges in their official or individual capacities. For purposes of this recommendation, the court assumes that Ms. Runkle is attempting to do both.
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). “It is well established that under the Eleventh Amendment, sovereign immunity prohibits federal courts from entertaining suits against states brought by their own citizens or citizens of another state without their consent.” Hunt v. Colo. Dep't of Corr., 271 Fed.Appx. 778, 780 (10th Cir. 2008). “State sovereign immunity is more than immunity from liability-it actually deprives federal courts of subject-matter jurisdiction.” Wood v. Milyard, 414 Fed.Appx. 103, 105 (10th Cir. 2011).
The Eleventh Amendment thus bars suits against states and state officials sued in their official capacities under § 1983-including the state Judges who have been sued here. See Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222, 1227 (10th Cir. 2010) (stating that § 1983 “does not abrogate a state's sovereign immunity-indeed, states are not even ‘persons' within the meaning of § 1983”) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)); see also, e.g., Strepka v. Miller, 28 Fed.Appx. 823, 828 (10th Cir. 2001) (“Plaintiff's official capacity claims against [the state court judge] . . . were really claims against the State of Colorado.”); Kirchner v. Marshall, No. 1:22-cv-01512-CNS-MEH, 2023 WL 110953, at *3 (D. Colo. Jan. 5., 2023) (holding that “the Eleventh Amendment bars [plaintiff's] claims against Defendant Jefferson County District Court” and recognizing that “[c]ourts have repeatedly held that, under the Eleventh Amendment, state courts and state court judges are immune from claims asserted against them”) (collecting cases); Silva v. U.S. Bank, Nat'lAssoc., 294 F.Supp.3d 1117, 1126 (D. Colo. 2018) (holding that state judicial district “is an arm of the state” and entitled to Eleventh Amendment immunity); Fey v. Washington, No. 16-cv-03103-WJM-MEH, 2017 WL 1344451, at *4 (D. Colo. Apr. 12, 2017) (same); B.J.G. v. Rockwell Automation, Inc., No. 11-CV-262-GKF-TLW, 2012 WL 28077, at *2 (N.D. Okla. Jan. 5, 2012), aff'das modified, 497 Fed.Appx. 807 (10th Cir. 2012) (“[T]he claims against [Oklahoma appellate judges] are precluded by the Eleventh Amendment's grant of sovereign immunity to states.”).
Accordingly, this court finds that Ms. Runkle's claims against the State Defendants-the State of Colorado and three state court judges in their official capacities-are barred under the Eleventh Amendment. The court further concludes that none of the “three well-established exceptions to the bar” of the Eleventh Amendment apply here:
First, the States may consent to suit, waiving their immunity. . . . Second, “Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” . . . Finally, under the doctrine announced in Ex parte Young, . . . an individual seeking only prospective injunctive relief for ongoing violations of federal law may bring suit against state officials in federal courts.Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 866 (10th Cir. 2003) (citations omitted), overruled in part on other grounds by Exby-Stolley v. Bd. of Cty. Comm'rs, 979 F.3d 784 (10th Cir. 2020).
The first two exceptions are readily disposed of. First, the State of Colorado has not consented to this suit, in which a disaffected litigant sues the State and state judges directly in federal court. See State Mot. at 6-7 (raising Eleventh Amendment immunity defense). Second, § 1983 “does not abrogate the state's sovereign immunity and neither the states nor the agencies qualify as ‘persons' under § 1983.” Davis v. California, 734 Fed.Appx. 560, 564 (10th Cir. 2018) (citing Will, 491 U.S. at 67, and Wood, 414 Fed.Appx. at 105).
As for the third exception to Eleventh Amendment sovereign immunity, the “Ex parte Young exception,” Ms. Runkle does not seek proper “prospective relief for an ongoing violation of federal law.” Davis, 734 Fed.Appx. at 563 n.7 (emphasis added); Muscogee (Creek) Nation, 669 F.3d at 1167 (same). Here, the injunctive relief sought by Ms. Runkle-the return of her children and the reinstatement of filing privileges in state court, see State Opp. at 1-is not something that this court can legally provide. As outlined above, federal courts do not have the “power to issue divorce, alimony, and child custody decrees.” Ankenbrandt, 504 U.S. at 703; see also Marck v. Miller, No. 22-1241, 2023 WL 2592176, at *3 (10th Cir. Mar. 22, 2023) (“The district court correctly determined that it lacked jurisdiction to entertain [plaintiff's] attempts to obtain child custody though this federal-court action.”). Moreover, Ms. Runkle ultimately seeks to redress an alleged past harm-relieving her of the state child custody order already entered against her-rather than “prevent[ing] prospective violations of federal law,” which “does not fall within the exception to Eleventh Amendment sovereign immunity.” Kirchner, 2023 WL 110953, at *3.
Further, concerning the claims against the Judges specifically, the Supreme Court has held that the Ex parte Young exception to Eleventh Amendment immunity does not apply to claims for injunctive relief against state court judges. Whole Woman's Health v. Jackson, 142 S.Ct. 522, 532 (2021). In so holding, the Supreme Court emphasized that the exception is a “narrow” one, “grounded in traditional equity practice-one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law.” Id. (emphasis added). Claims against judges, however, are a different story:
[A]s Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases. As Ex parte Young put it, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.”Id. (quoting Ex parte Young, 209 U.S. at 163).
For the same reasons, Ex parte Young does not except Ms. Runkle's claims against state judicial officials from the protection of Eleventh Amendment immunity. Even construing Ms. Runkle's Complaint as one for injunctive relief, this court lacks the authority to “issue injunctions against state-court judges or clerks.” Id. The court therefore respectfully recommends that the official capacity claims against the State Defendants be dismissed for lack of subject matter jurisdiction.
B. No Personal Jurisdiction Over the Judges
The Judges argue that the claims against them must be dismissed because they have not been properly served. State Mot. at 3-4. This court respectfully agrees.
The State Defendants do not appear to argue that the State itself has not been served. State Mot. at 4 (“Based on these facts, the three judges have not been served.”) (emphasis added); see also ECF No. 24 (summons and Complaint served on Colorado Attorney General's Office).
The Proof of Service Ms. Runkle filed in this case reflects service of a summons and complaint on “Gail Griggs,” a “Staff Assistant” located at 1437 Bannock Street, Room 350, in Denver, Colorado. See ECF No. 20 at 4. According to a declaration submitted by a Payroll Analyst with the Colorado Judicial Department, there is no “Gail Griggs” employed by the Colorado Judicial Department. See Purtell Decl., ECF No. 31-2 ¶ 2. That testimony is unrefuted; Ms. Runkle admits that 1437 Bannock Street, Room 350, is the office of the Mayor of Denver. See State Opp. at 5.
Ms. Runkle did not comply with the Colorado rules for serving the Judges, who are employed by the State of Colorado. To effect personal service “[u]pon an officer, agent, or employee of the state, acting in any official capacity,” a litigant must deliver a copy of the summons both “to the officer, agent, or employee, and . . . to the attorney general.” Colo. R. Civ. P. 4(e)(10)(A) (emphasis added). Nothing in the record before this court indicates that the Judges themselves have been served, as required to complete service on an employee of the State of Colorado in their official capacity.
Ms. Runkle did not attempt to comply with the alternative means of serving an individual, i.e., to deliver a copy to the individual personally, to their dwelling, or to an “agent authorized by appointment or by law to receive service of process.” See Fed.R.Civ.P. 4(e)(2). Therefore, she was obliged to comply with the service rules established under Colorado law. See Fed.R.Civ.P. 4(e)(1).
Another provision in Colorado Rule of Civil Procedure 4 allows for personal service on individuals generally by delivering a copy of the summons to “the person's supervisor, secretary, administrative assistant, bookkeeper human resources representative or managing agent[.]” Colo. R. Civ. P. 4(e)(1). Even assuming this more general rule of service applies to state judges, the unrebutted contention is that “Gail Griggs”-a person who does not work for the Colorado Judicial Department-did not serve in any of these capacities for the Judges here.
This court recognizes that, when good cause for a delay in service is shown, an extension of the time for service of process is mandatory. See Fed.R.Civ.P. 4(m). But Ms. Runkle does not seek to avail herself of this Rule. Ms. Runkle was notified of the deficiencies in service on the Judges. Indeed, counsel for the State Defendants twice offered to waive service for the Judges. See State Mot. at 4 (citing ECF No. 25 at 1: attorney for State Defendants representing to Runkle that he has “been authorized by those judges to execute a waiver of service, which would mean that I can sign the attached document saying that you don't need to get a sheriff or process server and we will treat the complaint as properly filed and served,” and ECF No. 26 at 1: subsequent communication from attorney to Runkle stating that he was “not interested in a dispute about proper service here,” and “remain[s] willing and able to execute waivers of service for the three judges”). Both times Ms. Runkle refused the offer of waiver, stating that she “unequivocally stand[s] behind the service from the sheriff [on Gail Griggs].” ECF No. 26 at 1; see also State Opp. at 3 (“The mayors office is very much affiliated with the judges by being a part of Denver City and County and located in the Denver District Courthouse[.] . . . Therefore, I stand firmly on the validity of the service which was already completed.”).
Having refused to take action to correct the deficiencies in service that were explicitly brought to her attention, Ms. Runkle's claims against the Judges should not proceed. This court concludes that it lacks personal jurisdiction over the Judges and recommends that all claims against them be dismissed without prejudice based on this additional jurisdictional defect.
Because the court concludes that jurisdiction is lacking, it does not consider the State Defendants' arguments for dismissal for failure to state a claim pursuant to Rule 12(b)(6). See State Mot. at 8; see also, e.g., Steel Co., 523 U.S. at 93-94.
II. Claims Against the City
In its Motion to Dismiss, the City observes that Ms. Runkle “does not appear to assert any direct claim against Denver . . . in connection with the alleged placement of her children.” City Motion at 1-2 (emphasis added). This court agrees that factual specifics are lacking, but construing Ms. Runkle's pleading liberally, the court discerns two possible bases for her claims against the City: (1) on some unspecified date, she was “taken out of the courthouse”-possibly by City officers-“in handcuffs and forcibly taken in for a mental health evaluation,” Compl. at 9; and (2) on some unspecified date, “Denver Health” and “Denver Jail” refused to respond to her “(very serious) lawsuit.” Id. at 14. These sparse allegations do not permit the court to infer that the City engaged in any misconduct for which it can be held liable to Ms. Runkle.
In evaluating the claims against the City, the court does not consider the allegations concerning the removal of Ms. Runkle's children from her custody in connection with state judicial proceedings. There are no well-pleaded facts plausibly attributing those actions to any City employee.
“Municipal liability is also known as Monell liability, after Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 [] (1978).” Arnold v. City of Olathe, 35 F.4th 778, 795 n.4 (10th Cir. 2022). Government entities can be sued directly only where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694.
In order to state a claim for municipal liability (a “Monell claim”) under § 1983, a plaintiff must allege: (1) the existence of an official policy or custom; (2) that the official policy or custom was the driving force behind the constitutional violation alleged; and (3) that “the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 771 (10th Cir. 2013). The court must also find that the plaintiff has alleged an underlying constitutional violation. See, e.g., Crowson v. Wash. Cty., 983 F.3d 1166, 1191 (10th Cir. 2020) (“[T]here is no question that where the actions of a municipality's officers do not rise to the level of a constitutional violation and the claim against the municipality is based on it serving as the driving force behind those actions, liability cannot lie.”). Applying these legal principles to the allegations against the City, the court is unable to draw a reasonable inference of misconduct by the City.
No allegations of a constitutional violation . Taking first the allegation that Ms. Runkle was removed from a courthouse “in handcuffs and forcibly taken in for a mental health evaluation,” Compl. at 9, the court finds this lone allegation insufficient to allege a constitutional violation. Absent any specific facts illuminating the context in which this event occurred-the identities or job titles of the persons involved (including whether they were City employees), when and where the incident occurred, the actions of Ms. Runkle that precipitated the event, and the manner in which the officers responded-Ms. Runkle's pleading suggests no more “than a sheer possibility that [the City] has acted unlawfully.” See Iqbal, 556 U.S. at 678. At most, her allegation is “‘merely consistent with'” the City's liability, and therefore has “stop[ped] short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557).
The City argues that Ms. Runkle may have attached inaccurate labels to her claims, see City Motion at 4 n.4 (disputing that Runkle has pleaded any claim under the First, Fourth, or Fourteenth Amendments), but the court does not recommend dismissal on that basis. See Dodson v. Board of Cty. Comm'rs, 878 F.Supp.2d 1227, 1242 (D. Colo. 2012) (“The court appropriately disregards the labels applied by a pro se plaintiff when those labels serve to obfuscate the nature of the legal claims asserted.”) (citation omitted). The court further observes that a claim for excessive force that “arises in the context of an arrest or investigatory stop of a free citizen . . . is most properly characterized as one invoking the protections of the Fourth Amendment.” See Graham v. Connor, 490 U.S. 386, 394 (1998).
The City asserts, briefly, that Ms. Runkle's claims fail under Heck v. Humphrey, 512 U.S. 477 (1994), because Ms. Runkle does not “mention any final disposition and thus fails to adequately allege the impropriety of [removing her children or removing her from the courthouse], as would be required for any resulting constitutional claim.” City Opp. at 4. In Heck, the Supreme Court held that in a civil rights case seeking damages under § 1983, “the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of [an existing] conviction or sentence.” Id. at 487. A claim which, if successful, would imply the invalidity of a conviction or sentence is not cognizable under § 1983. The court declines to recommend dismissal on the basis of this undeveloped argument. There is no information before the court establishing that Ms. Runkle was convicted or sentenced, and the City has provided none. Neither is the court aware of any precedent holding that Heck imposes a pleading requirement. See Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1056 (9th Cir. 2016) (“[C]ompliance with Heck most closely resembles the mandatory administrative exhaustion of PLRA claims, which constitutes an affirmative defense and not a pleading requirement.”).
The court reaches the same conclusion concerning Ms. Runkle's second allegation: that on some unspecified date, “Denver Health” and “Denver Jail” refused to respond to her “(very serious) lawsuit” a state court case captioned Runkle v. Denver Health, 2020CV000213 (Denver Cty.) (filed May 13, 2020). See Compl. at 14 (“City of Denver . . . refused to respond, despite being able to clearly see the seriousness of the case[.]”); City Opp. at 28 (stating that the lawsuit “was completely thrown by the wayside . . . even though I had the lawsuit served to Denver City and County more than one time”). It is a matter of public record that the City did not respond to that lawsuit because it was dismissed by the court for failure to effect service. See 11/17/2020 Order Dismissing Matter Without Prejudice, City Motion, ECF No. 21-1 (“Plaintiff has not properly served Defendant, and has not complied with this Court's delay reduction order, nor has she complied with this Court's September 16, 2020 Order which explained what Plaintiff had to do regarding personal service.”). However, even if the disposition of that case were not before this court, it would still find that Ms. Runkle had alleged no constitutional violation concerning the City's failure to respond to one of her myriad lawsuits. The City argues that it is “aware of no precedent which supports a cause of action based on a defendant's failure to respond to a prior lawsuit.” City Mot. at 4-5. Neither is this court aware of precedent that would elevate mere indifference to a lawsuit to a First Amendment violation. Here, too, the court finds that Ms. Runkle's pleading does not cross the line into stating a plausible claim for relief against the City.
This court properly considers this relevant court record here. “[F]acts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” See Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006); see also St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979) (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial systems, if those matters have a direct relation to matters at issue.”) (citations omitted).
The court thus concludes that Ms. Runkle has failed to plausibly allege the existence of conduct undertaken by any City employee rising to the level of a constitutional violation.
No allegations of a City policy or custom . Having found that Ms. Runkle has failed to allege an underlying constitutional violation by a City employee, the court's analysis may end there. But even had Ms. Runkle alleged such a violation, she has failed to plead facts sufficient for this court to infer the existence of a particular policy or custom of the City acting as “the moving force behind [her] injury.” See Estate of Alire v. Wihera, No. 21-cv-00774-GPG, 2023 WL 4339677, at * 7 (D. Colo. June 5, 2023); see also Sanchez v. City of Littleton, 491 F.Supp.3d 904, 920 (D. Colo. 2020) (in order to allege a municipal liability claim under § 1983, “a party must allege sufficient facts to demonstrate that it is plausible . . . ‘that a municipal policy or custom was the moving force behind the constitutional deprivation'”) (quoting Jiron v. City of Lakewood, 392 F.3d 410, 419 (10th Cir. 2004)). Nor do the facts permit the court to infer that that unidentified policy “was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Schneider, 717 F.3d at 769 (citing Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997), and City of Canton v. Harris, 482 U.S. 378, 389 (1989)).
Critically, the Complaint does not once mention the word “policy.” With the lack of “mention of any policies, customs, or training the [City has] regarding situations similar to the instant case, . . . it is impossible to say whether Plaintiff [is] asserting that [the City's] policies are defectively designed, whether [its employees] are inadequately trained on how to apply a properly designed policy, or whether the [City fails] in even having a policy.” See Estate of Alire, 2023 WL 4339677, at *8. These are facts that must be stated-in a clear, non-conclusory fashion-for Ms. Runkle to allege a claim against the City that is plausible on its face. Ms. Runkle has not done so. The court therefore respectfully recommends that the claims against the City be dismissed without prejudice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (recognizing that “[dismissal of a pro se complaint under Rule 12(b)(6) should ordinarily be without prejudice”).
The City argues that all of Ms. Runkle's claims are barred by Colorado's two-year statute of limitations for personal injury actions because “a significant portion of her claims” are “tether[ed]” to the City's failure to respond in Runkle v. Denver Health, 2020CV000213. City Mot. at 7; see also Escobar v. Reid, 668 F.Supp.2d 1260, 1286 (D. Colo. 2009) (applying Colorado two-year statute of limitations to § 1983 claims) (citing Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994)). The court respectfully observes that the City's point is overstated, when viewed in the entire context of the Complaint. Because this court is recommending dismissal of the claims against the City without prejudice, the court finds it premature to conclude that any claim is absolutely barred by the statute of limitations. However, Ms. Runkle is cautioned that applicable statutes of limitations may operate to prevent the filing of certain claims in the future. See, e.g., Clark v. Reardon, No. 20-cv-01410-RMR-KLM, 2023 WL 3937958, at *2 (D. Colo. Jan. 4, 2023) (recognizing that, in some circumstances, “dismissal without prejudice effectively serves as a dismissal with prejudice due to the statute of limitations”).
CONCLUSION
For the reasons stated above, the court respectfully RECOMMENDS that the Motions to Dismiss, ECF Nos. 21 and 31, be GRANTED and that the Complaint, ECF No. 1, be DISMISSED WITHOUT PREJUDICE as to all Defendants.
In submitting a future complaint, should she be allowed to do so, Ms. Runkle should bear in mind the jurisdictional bars referenced herein, as well as the doctrine of absolute judicial immunity. See Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000) (“Judges are absolutely immune from civil liability for judicial acts, unless committed in the clear absence of all jurisdiction. A judge does not act in the clear absence of all jurisdiction even if the action he took was in error, was done maliciously, or was in excess of his authority.”) (citations and quotations omitted).
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).