Edwards v. Desbien, Civil Action No. 15-cv-00333-GPG

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtLEWIS T. BABCOCK, Senior Judge United States District Court
PartiesLUCAS EDWARDS, Plaintiff, v. LARRY DESBIEN, Director, Colorado State Child Support Services, REGGIE BUCHA, Executive Director, Child Enforcement Services, and CHERYL TERNES, Child Support Services, Arapahoe Branch Director, and RANDA ALSHAMI, Legal Technician, Arapahoe Branch, Defendants.
Decision Date15 April 2015
Docket NumberCivil Action No. 15-cv-00333-GPG

LARRY DESBIEN, Director, Colorado State Child Support Services,
REGGIE BUCHA, Executive Director, Child Enforcement Services, and
CHERYL TERNES, Child Support Services, Arapahoe Branch Director, and
RANDA ALSHAMI, Legal Technician, Arapahoe Branch, Defendants.

Civil Action No. 15-cv-00333-GPG


April 15, 2015


Plaintiff, Lucas Edwards, is detained in the Arapahoe County Detention Facility, in Centennial, Colorado. He initiated this action by filing, pro se, a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Mr. Edwards has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

On March 2, 2015, Magistrate Judge Gallagher reviewed the Complaint and determined that it was deficient because Plaintiff could not maintain a § 1983 action against former Defendant Jones, the non-custodial parent1; the allegations of the Complaint failed to state an arguable due process claim against Defendants Desbien and Bucha; and, Plaintiff does not have a private right of action under Title IV-D of the Social Security Act, 42 U.S.C. §§ 651-669b, that is enforceable under § 1983.

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Magistrate Judge Gallagher ordered Plaintiff to file an Amended Complaint, within thirty (30) days of the March 2 Order, to allege additional facts that would support an arguable due process claim against the individual Defendants. Mr. Edwards filed an Amended Complaint on March 31, 2015. (ECF No. 12).

Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous or seeks monetary relief against a defendant who is immune from such relief. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).

The Court construes the Amended Complaint liberally because Mr. Edwards is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed.

I. Plaintiff's Allegations

Mr. Edwards alleges in the original Complaint that in 2005, the Arapahoe County District Court, in Case No. 05DR2718, granted him full custody of the child he shared with Courtney Jones, and ordered Ms. Jones to pay $275.00 per month in child support. He further alleges that Colorado Child Enforcement Services is required by law to locate, enforce and collect (distribute) child support payments, but has failed to locate, and collect payments from Ms. Jones. According to Plaintiff, Colorado State Child Support Services, which oversees Child Enforcement Services, "closed" the case in

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2013 "due to the non-custodial parent not being located in the last three years." (ECF No. 1, at 3, 9). Mr. Edwards asserts that the Defendants, who are agents or employees of the state agencies, violated his federal due process rights, and engaged in "misrepresentation or fraud" by failing to adhere to the agencies' child support enforcement obligations. (Id. at 5, 8, 15). For relief, Plaintiff seeks an order requiring Defendants to re-open his child support collection case, and that he be paid all past due child support payments, as well as punitive damages.

Mr. Edwards does not re-assert the allegations of the original Complaint in the Amended Complaint.2 Instead, he alleges why the two new Defendants, Ternes and Alshami, are responsible for the administrative closure of his child support collections case. He further alleges that the closure of his case deprived him of his entitlement to receive the court-ordered child support payments from Ms. Jones because the state court entered a restraining order against him which prevented him from engaging in his own collection efforts. Plaintiff further states that his child was 19 years old at the time the state agencies closed his case administratively, which is beyond the age when child support payments are ordered, so that he is only entitled to child support payments for the five years preceding the administrative closure.

II. § 1983 Claims

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A. Standing

The Court first considers the issue of Mr. Edwards' standing to pursue his § 1983 claims. See Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) ("[S]tanding is a component of this court's jurisdiction, and we are obliged to consider it sua sponte to ensure the existence of an Article III case or controversy."). To possess Article III standing, a plaintiff must "establish (1) that he or she has suffered 'an injury in fact'; (2) that the injury is 'fairly traceable to the challenged action of the defendant'; and[ ](3) that it is 'likely' that the injury will be redressed by a favorable decision." Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012) (quoting Ariz. Christian Sch. Tuition Org. v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1442 (2011) (other internal quotations omitted)).

In Colorado, the inherent right to child support belongs to the child, but is enforceable by the custodial parent, acting on behalf of the child. See In re Marriage of Murray, 790 P.2d 868 (Colo. App. 1989) (citing McQuade v. McQuade, 358 P.2d 470, 472 (1960)). Once a child attains nineteen years of age, the non-custodial parent's obligation to pay child support terminates. See COLO. REV. STAT. (C.R.S.) § 14-10-115(1.5)(a). See also In Re Marriage of Johnson, ___, P.3d ___, 2014 WL 5370023, at *2 (Colo. App. 2014) ("[A]pplying the plain language of the statute, as we must, because the parties' last child under their 1983 child support order turned nineteen on July 17, 1995, father's child support obligation terminated on that date).

Mr. Edwards alleges in the Amended Complaint that his child was 19 years old at the time the state agencies administrative closed his child support collection case. Notwithstanding, relevant case law suggests that Plaintiff has standing to pursue an action for past due child support. See Zimmerman v. Starnes, 35 B.R. 1018, 1022 (D.

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Colo.1984) (concluding that under California and Colorado law, the right to receive back child support belongs to the child and not to the custodial parent, even though the custodial parent may seek to enforce that right in the child's name); In re Marriage of Paul, 978 P.2d 136, 139 (Colo. App. 1998) (recognizing that "'unlike the rights to current and future support which belong to the child, a claim for reimbursement of past-due support belongs to the person who provided that support'") (quoting State ex rel. Utah State Department of Social Services v. Sucec, 924 P.2d 882, 886 (Utah 1996)). Accord Stanton v. Stanton, 421 U.S. 7, 11, 12 (1975) (concluding that where the right to past due child support payments belongs to the custodial parent, and not the child, the custodial parent has standing to sue for payments that accrued before child reached the age of 21, even if child was over 21 at the time suit was filed).

Accordingly, the Court will review the merits of Mr. Edwards' § 1983 claims against the Defendants.

B. Merits of § 1983 Claims

1. Defendants' Liability in their Official Capacities

Mr. Edward purports to sue the Defendants, in their official capacities, for what he characterizes as "p[ro]spective injunctive relief." (ECF No. 12, at 33). Official capacity claims against state officials, for prospective injunctive relief, are not barred by the Eleventh Amendment. See Ex Parte Young, 209 U.S. 123 (1908); see also Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir.1998) ("[A] suit against a state official in his or her official capacity seeking prospective injunctive relief is not . . . against the state for Eleventh Amendment purposes."). However, the injunctive relief requested by Plaintiff is to remedy past wrongs, rather than an ongoing violation of

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federal law. See Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645 (2002) ("Determining whether a request for injunctive relief is prospective requires a "straightforward inquiry into whether [the] complaint alleges an...

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