Free Order Dismissing Case - District Court of Colorado - Colorado

Case 1:03-cv-02339-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 03-cv-02339-RPM-MJW JOHN HIMMLER, individually and on behalf of his minor son, and JACOB HIMMLER, a minor, Plaintiffs, v. ELODE BRODBECK, RICHARD MANGEN, DAVID KIEFFER, PATRICIA ANN PHILLIPS, CHILD AND FAMILY CENTER, INC., and BEHAVIORAL ASSOCIATES, INC., Defendants. _____________________________________________________________________ ORDER OF DISMISSAL _____________________________________________________________________ The operative pleading setting forth the plaintiffs' claims in this case is the third amended verified complaint filed August 13, 2004. The jurisdictional allegations are contained in the following two paragraphs: 1. Plaintiff John Himmler (hereinafter " John" brings this action to redress ) actions taken in furtherance of, and damages resulting from, a conspiracy to deprive and actual deprivation of his rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the U.S. Constitution and Article II, sections 1, 2, 3, 6, 25, 28, 29, Article VI, section 26, Article XI, section 2, Article XII, section 2, 7, the Colorado Constitution as well as 42 U.S.C. sections 1983, 1985(2); intentional infliction of emotional distress (outrageous conduct); breach of contract; and unjust enrichment. John brings this action on behalf of his minor child, Jacob Himmler (hereinafter " Jacob" to redress actions in furtherance of, and damages ), resulting from, a conspiracy to deprive and actual deprivation of rights secured by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to

2.

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the U.S. Constitution, and Article II, sections 1, 2, 3, 6, 25, 28, 29, Article VI, section 26, Article XI, section 2, 7, of the Colorado Constitution as well as 42 U.S.C. sections 1983, 1985(2); intentional infliction of emotional distress (outrageous conduct); breach of contract. The requested relief is damages pursuant to U.S.C. §§ 1983 and 1985(2) and for common law claims of breach of contract, intentional infliction of emotional distress and unjust enrichment. The defendants filed motions to dismiss or for summary judgment. On November 2, 2004, the plaintiffs filed a combined response, setting forth in more detail the factual allegations upon which plaintiffs rely in seeking relief in this court for financial and personal injury arising out of divorce proceedings in the District Court, City and Count of Denver, Colorado. The divorce terminated the marriage of John Himmler and defendant Patricia Ann Phillips with a decree dissolving the marriage and establishing parenting rights and privileges regarding their son, Jacob Himmler. The Denver District Court modified the orders regarding parental rights after proceedings in which the defendant Dr. Elode Brodbeck played a central role as a Special Advocate, appointed by Judge McMullen pursuant to C.R.S. § 14-10-116. Dr. Brodbeck is a co-owner of defendant Child and Family Center, Inc. Essentially the assertions made in this case are that Dr. Brodbeck exceeded her authority as Special Advocate and conspired with the other defendants to submit false information, including false testimony to the court, as a result of which the parental relationship between the plaintiffs was unconstitutionally disrupted. The orders which are alleged to have been the result of the defendants' conduct were later changed by a Denver magistrate and a different district judge. The claims for relief under 42 U.S.C. § 1983 are not supported by the allegations
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of the third amended complaint because none of the defendants are state actors. The core of the plaintiffs' claim is that Dr. Brodbeck was a state actor but the law is clear that she was not. The role of Special Advocate under Colorado law is not different from a guardian ad litem in New Mexico and the decision in Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) is dispositive of this issue. The plaintiffs' claim under 42 U.S.C. § 1985(2) is a collateral attack on the orders entered by the Denver District Court. While the plaintiffs do not seek to overturn or change those orders, the premise for damages is that the orders of Judge McMullen were invalid. It is well established law that the Rooker-Feldman doctrine precludes this court from proceeding on these claims made under federal law. Kenmen Engineering v. City of Union, 314 F.3rd 468 (10th Cir. 2002). Having determined that the plaintiffs have failed to state claims for relief under federal law, there is no jurisdiction to consider the state law claims under 28 U.S.C. § 1367. Accordingly, this civil action should be dismissed with prejudice on the federal claims and without prejudice as to the state law claims. The plaintiffs have asserted that the Colorado statute is unconstitutional but have raised no persuasive argument in support of that assertion. On February 22, 2005, this court granted the motion of John W. McKendree to withdraw as counsel for the plaintiffs. That motion had been scheduled for a hearing on January 31, 2005, but the plaintiff John Himmler on behalf of himself and his plaintiff son on January 27, 2005, filed a statement that the attorney-client relationship with John W. McKendree had been terminated by plaintiffs on January 18, 2005, and that
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the plaintiffs were seeking to obtain new counsel. No new counsel has appeared in this civil action and the Court has ruled on the motions as a result of the responses filed by Mr. McKendree before his withdrawal. It is for the foregoing reasons ORDERED that the defendants' motions submitted under F.R.Civ.P. 12(b)(6) are granted. The first, second, third and fourth claims for relief of the third amended complaint are dismissed with prejudice and it is FURTHER ORDERED that the remaining claims of the third amended complaint are dismissed without prejudice for lack of jurisdiction. DATED: September 30, 2005. BY THE COURT:

s/Richard P. Matsch ________________________________ Richard P. Matsch, Senior District Judge

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Civil Action No.

03-cv-02339-RPM

I do hereby certify that I have mailed a copy of the attached to the following: Dated: September 30, 2005 GREGORY C. LANGHAM, CLERK Leslie A. Martin By__________________________________ Deputy

John and Jacob Himmler 825 9th St. Berthoud, CO 80203

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