Ruiz v. McDonnell, No. 01-1010.

Decision Date08 August 2002
Docket NumberNo. 01-1010.
PartiesRose RUIZ, Plaintiff-Appellant, v. Barbara McDONNELL, Executive Director of the Colorado Department of Human Services; Colorado Department of Human Services; Renee L. Gallegos; Charles Gallegos; Victoria Gallegos; Leroy Gallegos; and John Does numbers one through four, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Jonathan S. Willett of Willett & Mestas, LLC, Denver, CO, appearing for Plaintiff-Appellant.

Friedrick C. Haines, Assistant Attorney General, Denver, CO, for Defendants-Appellees Barbara McDonnell and Colorado Department of Human Services, (Ken Salazar, Attorney General, Denver, CO, for Defendants-Appellees Barbara McDonnell and Colorado Department of Human Services, and John Barry, Patrick M. Groom, and Timothy V. Clancy of Witwer, Oldenburg, Barry & Bedingfield, LLP, Greeley, CO, for Defendants-Appellees Victoria Gallegos, and Leroy Gallegos, with him on the brief).

Before HENRY, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and VANBEBBER, Senior District Judge.*

VANBEBBER, Senior District Judge.

Plaintiff-Appellant, Rose Ruiz, filed this action alleging violations of her and her deceased son's Fourteenth Amendment substantive due process rights under 42 U.S.C. § 1983 against Defendants-Appellees Colorado Department of Human Services ("CDHS") and Barbara McDonnell, Executive Director of CDHS (collectively referred to as the "State Defendants"), and John Does numbers one through four. Ms. Ruiz also brought ancillary state law tort and contract claims against Defendants-Appellees Renee Gallegos, Charles Gallegos, Victoria Gallegos and Leroy Gallegos (collectively referred to as the "Private Defendants"). The State Defendants moved to dismiss Ms. Ruiz's claims against them pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The district court granted the motion pursuant to Rule 12(b)(6) and, declining to exercise supplemental jurisdiction over Ms. Ruiz's remaining state law claims, dismissed without prejudice all Defendants except Renee Gallegos. The district court subsequently entered default judgment against Renee Gallegos pursuant to Fed.R.Civ.P. 55. Ms. Ruiz appeals the district court's order granting the State Defendants' motion to dismiss. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Ms. Ruiz relies on the following facts alleged in her first amended complaint and proposed second amended complaint.1 In August 1998, Ms. Ruiz, a single working mother receiving federal assistance to cover day care expenses, began taking her infant son, J.R., to the Tender Heart Day Care ("Tender Heart") in Greeley, Colorado. Tender Heart was a private, licensed day care service operated by Renee Gallegos in the home that she shared with her husband, Charles Gallegos, and which was owned by Charles Gallegos's parents, Leroy and Victoria Gallegos. On October 17, 1998, J.R. suffered severe head injuries consistent with violent shaking while in the care of Tender Heart. J.R. died from his injuries on November 10, 1998. Renee Gallegos later pleaded guilty to felony child abuse charges in connection with J.R.'s death and is now imprisoned for that crime.

Tender Heart, which received federal funding for its services, was licensed as a "Family Child Care Home" by the CDHS, whose Executive Director at the relevant time was Ms. McDonnell. As part of its licensing process, the CDHS was required to conduct an investigation into Renee and Charles Gallegos's fitness as child care providers and to verify that Tender Heart carried valid public liability insurance. Ms. Ruiz alleges in her amended and proposed second amended complaints that the CDHS failed in both regards by neglecting to uncover an extensive history of domestic violence between Renee and Charles Gallegos that Ms. Ruiz contends was available through a simple search of court records, and by failing to discover that Tender Heart did not carry the proper insurance. Ms. Ruiz alleges in her proposed second amended complaint that it was a practice and custom of the agents of the CDHS to neglect conducting the requisite background and insurance checks, and that Ms. McDonnell failed to stop or correct that practice. Both the amended and proposed second amended complaints allege that the Gallegoses' history of domestic violence and Tender Heart's lack of valid public liability insurance were grounds upon which the CDHS should have denied licensing to Tender Heart.

On May 8, 2000, Ms. Ruiz commenced this suit against the State Defendants, the Private Defendants, the Weld County Department of Human Services and its Executive Director, Walter Speckman (collectively referred to as the "County Defendants"), and John Does numbers one through four, all of whom were alleged to be unknown employees of the State and County Defendants.2 Ms. Ruiz based her § 1983 claim on the failure to deny a family child care home license to Tender Heart. Specifically, Ms. Ruiz alleged that the state and federal statutes and regulations governing child care licensing "embody a substantive constitutional right to be free from the deprivation of life and liberty without due process of law under the Fourteenth Amendment of the United States Constitution" and that the licensure of Tender Heart after an inadequate, or nonexistent investigation into the facility ultimately deprived her and J.R. of those rights.

On June 23, 2000, the State Defendants filed a motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6), arguing that: (1) the CDHS was entitled to immunity under the Eleventh Amendment to the United States Constitution; (2) neither the CDHS nor Ms. McDonnell, acting in her official capacity, were "persons" within the meaning of § 1983; (3) Ms. McDonnell, acting in her individual capacity, was entitled to qualified immunity; and (4) Ms. Ruiz failed to allege a constitutional violation by the State Defendants because she could not state facts sufficient to satisfy either the "special relationship" or "danger creation" exceptions to the general rule that state actors are not liable for the violence of private individuals under the Fourteenth Amendment's Due Process Clause.

Ms. Ruiz conceded in her response to the motion to dismiss and at an October 19, 2000, hearing on the motion that her claims against the CDHS and Ms. McDonnell, acting in her official capacity, were improper under § 1983. On December 4, 2000, the district court entered an order dismissing Ms. Ruiz's § 1983 claim against the State Defendants pursuant to Fed. R.Civ.P. 12(b)(6) based on the State Defendants' argument that Ms. Ruiz failed to allege facts sufficient to satisfy either exception to the general rule that state actors cannot be held liable for the violence of private individuals under the Due Process Clause. Having disposed of the only claim over which the district court had original jurisdiction, the court declined to exercise supplemental jurisdiction over Ms. Ruiz's remaining state law claims. As a result, the district court dismissed all Defendants from the case except for Renee Gallegos, against whom the court entered default judgment on March 21, 2001.

Ms. Ruiz now appeals the district court's order of December 4, 2000, arguing that the district court erred when it concluded that Ms. Ruiz's amended complaint failed to sufficiently allege a "danger creation" cause of action under § 1983.

II. DISCUSSION
A. Appellate Jurisdiction

As an initial matter, Defendants-Appellees argue that we lack jurisdiction over this appeal because Ms. Ruiz allegedly failed to properly file her notice of appeal with the district court. Specifically, Defendants Appellees contend that Ms. Ruiz's notice of appeal was premature because the district court had not yet adjudicated all claims against all Defendants when Ms. Ruiz filed the notice. According to Defendants Appellees, Ms. Ruiz should have filed a second, timely notice of appeal after the district court entered final judgment. We disagree.

We directly addressed and rejected the same argument as made by Defendants-Appellees in Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir.1988) (en banc). In Lewis, we held that a notice of appeal filed before the district court disposes of all claims is nevertheless effective if the appellant obtains either certification pursuant to Fed.R.Civ.P. 54(b) or final adjudication before the court of appeals considers the case on its merits. 850 F.2d at 645-46. In such a situation, the premature notice simply ripens on the date of certification or final adjudication, and the filing of a second notice of appeal is unnecessary. Id. at 645.

Here, the district court issued an order on December 4, 2000, dismissing without prejudice all Defendants except for Renee Gallegos. Ms. Ruiz filed her notice of appeal on January 5, 2001. Because the district court had not yet adjudicated all claims against all Defendants, we ordered counsel for Ms. Ruiz to serve and file with us either a district court order granting certification or a district court order explicitly adjudicating the remaining claim against Renee Gallegos. The district court entered default judgment against Renee Gallegos on March 21, 2001, and Ms. Ruiz's counsel provided us with the district court's order to that effect on March 28, 2001. Ms. Ruiz's notice of appeal, filed on January 5, 2001, ripened on March 21, 2001, with the district court's entry of default judgment against Renee Gallegos. Ms. Ruiz was not required to file a second notice of appeal. As a result, we conclude that we have appellate jurisdiction in this case pursuant to 28 U.S.C. § 1291.

B. Eleventh Amendment Immunity

Defendants Appellees next argue that the CDHS and Ms. McDonnell, to the extent that a claim has been asserted against her in her "official capacity," are entitled to Eleventh Amendment immunity. Although the State De...

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