United States Court Of Appeals For The Eighth Circuit · United States Court Of Appeals For The...
Transcript of United States Court Of Appeals For The Eighth Circuit · United States Court Of Appeals For The...
United States Court Of Appeals
For The Eighth Circuit No. 17-2279
Anmarie Calgaro,
Plaintiff – Appellant,
v.
St. Louis County; Linnea Mirsch, individually and in her official capacity as Interim Director of St. Louis County Public Health and Human Services;
Fairview Health Services, a Minnesota nonprofit corporation; Park Nicollet Health Services, a nonprofit corporation;
St. Louis County School District; Michael Johnson, individually and in his official capacity as Principal of the Cherry School,
St. Louis County School District; and E.J.K.,
Defendants – Appellees.
APPELLANT’S APPENDIX
Erick G. Kaardal, 229647 Mohrman, Kaardal & Erickson, P.A. 150 South Fifth Street, Suite 3100 Minneapolis, Minnesota 55402 Telephone: 612 341-1074 Facsimile: 612-341-1076 Email: [email protected] Attorneys for the Plaintiff-Appellant Dated: July 31, 2017
Attorneys for St. Louis County and Mirsch Nick D. Campanario COUNTY ATTORNEY'S OFFICE 100 N. Fifth Avenue, W., Room 501 Duluth, MN 55802-2322 Attorneys for Park Nicollet Health Services Stephanie Chandler David M. Wilk LARSON & KING 30 E. Seventh Street, Suite 2800 Saint Paul, MN 55101
Attorneys for Fairview Health Services William Lawrence Davidson Paul C. Peterson LIND & JENSEN 901 Marquette Avenue, S., Suite 1300 Minneapolis, MN 55402 Attorneys for School and Johnson Trevor S. Helmers Elizabeth Jill Vieira RUPP & ANDERSON 333 S. Seventh Street, Suite 2800 Minneapolis, MN 55402 Attorneys for E.J.K. Michael A. Ponto Martin S. Chester Emily E. Chow FAEGRE & BAKER 90 S. Seventh Street, Suite 2200 Minneapolis, MN 55402-3901 and Asaf Orr Christopher F. Stoll NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102-0000
i
APPELLANT’S APPENDIX
INDEX
Civil Docket, USDC Court File No. 16-CV-03919 PAM/LIB ........................................ 1
Verified Complaint for Declaratory Relief and Injunction, USDC Court File No. 16-CV-03919 PAM/LIB, dated November 16, 2016 ........................... 11
Memorandum of Law & Order, USDC Court File No. 16-CV-03919 PAM/LIB, dated May 23, 2017 .............................................................................. 58
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anmarie Calgaro,
Plaintiff,
vs.
St. Louis County; Linnea Mirsch,
individually and in her official
capacity as Interim Director of St.
Louis County Public Health and
Human Services; Fairview Health
Services, a Minnesota nonprofit
corporation; Park Nicollet Health
Services, a nonprofit corporation; St.
Louis County School District; Michael
Johnson, individually and in his
official capacity as Principal of the
Cherry School, St. Louis County
School District; and J.D.K.,
Defendants.
Court File No. _______________
VERIFIED COMPLAINT FOR
DECLARATORY RELIEF
AND INJUNCTION
DEMAND FOR JURY TRIAL
Plaintiff Anmarie Calgaro for her Complaint alleges as follows:
INTRODUCTION
As a parent and mother, Anmarie Calgaro seeks to have this Court
affirm her parental rights over her minor children. Minnesota common law
allows for the emancipation of minor children. However, while the law
provides no distinct process for emancipation, there is no process for a parent
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to protect their fundamental parental rights to make decisions concerning the
care, custody and control of their children.
Under Minnesota Statute § 144.341, Minnesota’s “emancipation law”
for medical services, Ms. Calgaro has no statutory or common law cause of
action to (1) challenge Defendant St. Louis County Public Health and Human
Service’s eligibility determination to pay for and/or approve payment of
J.D.K.’s medical services at Park Nicollet and Fairview without parental
consent, nor (2) to challenge Defendants Park Nicollet’s and Fairview’s
determination of emancipation of J.D.K. to provide medical services without
parental consent. Meanwhile, as J.D.K.’s mother, she is denied access to his
medical records. Likewise, there is no statutory or common law cause of
action for Ms. Calgaro to fully or partially regain her parental rights over her
minor child.
In addition, based upon an attorney’s opinion letter regarding
emancipation, St. Louis County School District officials have refused her
access to common school district records, including class assignments, grades,
and the like of her minor child J.D.K. The letter of emancipation J.D.K.
obtained from a legal aid service agency is not a court order. The School
District provided Ms. Calgaro no notice or hearing prior to in terminating her
parental rights regarding J.D.K.’s education nor a hearing or process
afterwards to regain her parental rights over her minor child.
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Meanwhile, her minor child J.D.K. received, and continues to receive,
major elective medical services provided by Park Nicollet ― and paid by St.
Louis County – for a sex change without her consent or court order of
emancipation. Similarly, Fairview prescribes narcotics to J.D.K. without her
consent and without a court order. As with the St. Louis School District, Park
Nicollet and Fairview Health Services did not provide Ms. Calgaro notice or a
hearing that resulted in the loss of her parental rights.
Ms. Calgaro seeks declaratory and injunctive relief and damages under
42 U.S.C. § 1983 for the loss of her right to due process which directly
affected her parental rights over her minor child. She seeks further relief
necessary to prevent the Defendants from offering any additional services to
her minor children without parental consent until she has had an
opportunity in state court to petition to restore all or part of her parental
rights before an emancipation is adjudicated before a court of law.
Finally, she demands that the Defendants provide her medical records,
educational records, and similar records of her minor child J.D.K. and
prevent the Defendants from refusing to provide the same records of her
minor children until legal processes described above are followed. Attorney
fees for the prosecution of this action are also demanded.
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JURISIDICTION
1. The U.S. District Court has federal issue jurisdiction under 28
U.S.C. § 1331 and civil rights jurisdiction under 42 U.S.C. § 1983.
2. 42 U.S.C. § 1983 is a federal statute authorizing private persons
to bring civil rights lawsuits against defendants who operate under state law
and violate federal legal rights.
PARTIES
Plaintiff:
3. Anmarie Calgaro is a resident of St. Louis County and of the
State of Minnesota. Ms. Calgaro is the biological mother of her minor child,
17 year old son J.D.K. Ms. Calgaro has four additional minor children: J.D.K.
born on July 6, 1999; J.J.K. born on December 22, 2005; J.J.C. born on July 4,
2009; and a step-daughter M.R.C. born on October 10, 2003. As a parent, she
makes decisions regarding her minor children’s care, custody and
management. Ms. Calgaro has not relinquished any of her parental rights
over her minor children.
Defendants:
4. St. Louis County is a political subdivision of the State of
Minnesota. The County and its officials are responsible for creating,
adopting, approving, ratifying, and enforcing policies, customs, practices, or
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procedures (or lack of procedures), which includes the lack of notice or
hearing to retain or restore the parental rights of Ms. Calgaro either before or
after a decision the County or County officials made concluding J.D.K, Ms.
Calgaro’s minor child, was emancipated. The County provided financial aid,
and/or approval thereof, to J.D.K. for living or medical expenses or both.
5. The St. Louis County’s policies, customs, practices, or procedures
(or lack of procedures), acting under the color of state law, were the moving
force behind the constitutional violations asserted in this Complaint.
6. St. Louis County Public Health and Human Services Department
(“Department of Public Health”) is a county agency which provides services in
the areas of Adults, Children & Families, Disabilities, Elderly, Financial
Assistance and Public Health. Under the facts of this case, St. Louis County
provided to the minor child of Ms. Calgaro, J.D.K., funds and/or approved
funding for medical services and other living expenses. As a county which
provides social services to minor children, it is responsible for adhering to its
policies, state law and federal law. The Department of Health and its officials
are responsible for creating, adopting, approving, ratifying, and enforcing
policies, customs, practices, or procedures (or lack of procedures), which
includes the lack of notice or hearing to retain or restore the parental rights
of Ms. Calgaro either before or after a decision the Department of Health
officials made concluding J.D.K, Ms. Calgaro’s minor child, was emancipated.
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The Department of Health provided financial aid, and/or approval thereof, to
J.D.K. for living or medical expenses or both.
7. The Department of Public Health’s policies, customs, practices, or
procedures (or lack of procedures) were the moving force behind the
constitutional violations asserted in this Complaint.
8. Defendant Linnea Mirsch is the interim director of the St. Louis
County Health and Human Services Department. The director is the final
decision and policy maker for the Department.
9. Ms. Mirsch is an agent, representative, or employee of the
Department of Health. As such, she is acting under the color of state law and
is being sued in her individual and official capacity as the director of the
Department of Health.
10. Park Nicollet Health Services (“Park Nicollet”) is a Minnesota
non-profit corporation which provides medical services to the members of the
public. It receives state funding to provide medical services to the public. In
Minneapolis, Park Nicollet Minneapolis has a Gender Services Clinic. At this
clinic, Park Nicollet provides medical services to change sex identity. As a
medical service provider, Park Nicollet is responsible for adhering to its
policies, state law and federal law. Park Nicollet and its officials are
responsible for creating, adopting, approving, ratifying, and enforcing
policies, customs, practices, or procedures (or lack of procedures), which
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includes the lack of notice or hearing to retain or restore the parental rights
of Ms. Calgaro either before or after a decision Park Nicollet officials made
concluding J.D.K, Ms. Calgaro’s minor child, was emancipated under
Minnesota Statute § 144.341. Park Nicollet provided medical services to
J.D.K. without the consent or knowledge of Ms. Calgaro.
11. Park Nicollet’s policies, customs, practices, or procedures (or lack
of procedures), acting under the color of state law, were the moving force
behind the constitutional violations asserted in this Complaint.
12. Fairview Health Services (“Fairview”) is a Minnesota non-profit
corporation which provides medical services to the members of the public.
Fairview receives state funding for services provided to the public. In
Hibbing, Fairview has a hospital known as Fairview Range Hospital. At the
Range Hospital, Park Nicollet provides medical services to the public. As a
medical service provider, Park Nicollet is responsible for adhering to its
policies, state law and federal law. Fairview and its officials are responsible
for creating, adopting, approving, ratifying, and enforcing policies, customs,
practices, or procedures (or lack of procedures), which includes the lack of
notice or hearing to retain or restore the parental rights of Ms. Calgaro either
before or after a decision Fairview officials made concluding J.D.K, Ms.
Calgaro’s minor child, was emancipated under Minnesota Statute § 144.341.
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Fairview provided medical services to J.D.K. without the consent or
knowledge of Ms. Calgaro.
13. Fairview’s policies, customs, practices, or procedures (or lack of
procedures), acting under the color of state law, were the moving force behind
the constitutional violations asserted in this Complaint.
14. St. Louis County School District is a Minnesota school district
which includes J.D.K. as a student enrolled at Cherry School in post
secondary educational opportunities. The School District is a governmental
entity and receives state funding. The School Board is the final decision and
policy maker for the School District. The School District and its officials are
responsible for creating, adopting, approving, ratifying, and enforcing
policies, customs, practices, or procedures (or lack of procedures), which
includes the lack of notice or hearing to retain or restore the parental rights
of Ms. Calgaro either before or after a decision School District officials made
concluding J.D.K, Ms. Calgaro’s minor child, was emancipated. The School
District provided educational services to J.D.K., refused to provide Ms.
Calgaro with district documents regarding J.D.K.’s education and refused to
provide her an opportunity to participate in J.D.K.’s educational
opportunities.
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15. The School District’s policies, customs, practices, or procedures
(or lack of procedures), acting under the color of state law, were the moving
force behind the constitutional violations asserted in this Complaint.
16. Michael Johnson is the principal at Cherry School within the St.
Louis County School District. As principal, Mr. Johnson is the final decision-
and policy maker directly affecting the school, including how to implement
district-wide policies for Cherry School.
17. Mr. Johnson is an agent, representative, or employee of the
School District. As such, he is acting under the color of state law and is being
sued in his individual and official capacity as the principal of Cherry School.
18. J.D.K. is a 17 year old son of Ms. Calgaro and a resident of St.
Louis County, State of Minnesota. J.D.K. is an interested party as it relates
to the allegations asserted in this Complaint.
BACKGROUND FACTS
I. J.D.K. is the biological child of Ms. Calgaro and remains a
minor under Minnesota law.
19. Ms. Calgaro is the biological mother and parent of J.D.K.
20. J.D.K. is Ms. Calgaro’s child.
21. Ms. Calgaro is also the mother and parent of additional minor
children, born after J.D.K.
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22. Ms. Calgaro brings this lawsuit on behalf of her parental rights
regarding these children as well.
23. J.D.K. was born on July 6, 1999.
24. Park Nicollet’s and Fairview’s determination of emancipation
was based on the government’s willingness to pay for the medical services via
Defendant St. Louis County’s determination that J.D.K. was emancipated
and was eligible for such benefits.
25. There is no parental cause of action under Minnesota statute or
common law to challenge St. Louis County’s, Park Nicollet’s and Fairview’s
determinations which led to the government-paid medical services being
provided to J.D.K. without parental consent.
26. The Minnesota statute allowing the medical service provider to
determine emancipation does not provide a cause of action for a parent to
bring a lawsuit to restore full or partial parental rights.
27. Although Minnesota common law recognizes a minor child’s right
to petition for emancipation, there is no Minnesota common law cause of
action for a parent to bring in court to restore full or partial parental rights
once a child is emancipated for medical services without a court order.
28. Specifically, Minnesota Statute § 144.341, enacted in 1971,
authorizes medical service providers to determine whether a minor child such
as J.D.K. is emancipated without a court order:
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Notwithstanding any other provision of law, any
minor who is living separate and apart from
parents or legal guardian, whether with or
without the consent of a parent or guardian and
regardless of the duration of such separate
residence, and who is managing personal
financial affairs, regardless of the source or
extent of the minor's income, may give effective
consent to personal medical, dental, mental and
other health services, and the consent of no
other person is required.
29. There is no corresponding right of a parent to regain or contest
the medical service providers’ determination of the minor’s consent to medical
services.
30. According to the statutes, Park Nicollet and Fairview in
determining J.D.K.’s emancipation took into account under “regardless of the
source or extent of minor’s income” that St. Louis County had determined
J.D.K’s eligibility for government-paid benefits.
31. Moreover, if the medical service provider had refused treating
J.D.K. as emancipated, J.D.K. was entitled under Minnesota common law to
proceed with a petition for emancipation.
32. Conversely, even though Ms. Calgaro as a mother objects to
J.D.K.’s life-changing operation and narcotic drug prescriptions, Ms. Calgaro
has no legal rights under Minnesota Statute § 144.341 to bring a cause of
action against the medical service providers Park Nicollet and Fairview to
restore her full or partial parental rights.
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33. Further, Minnesota common law has never recognized a cause of
action for a parent to sue in district court to restore full or partial parental
rights after emancipation.
34. The medical service providers do not provide parental notice and
opportunity to be heard prior to or after the emancipation determination
terminating parental rights.
35. There is no parental corollary under Minnesota common law for
the minor child’s petition for a court order of emancipation.
36. A parent under Minnesota common law has no right to bring a
lawsuit after a medical service provider has determined a minor child is
“emancipated” under Minnesota Statute § 144.341 without a court order.
37. Since Minnesota Statute § 144.341 does not authorize a parent to
bring such a lawsuit, parents have no legal cause of action in court to
challenge a medical service provider’s determination of “emancipation” under
Minnesota Statute § 144.341.
38. J.D.K. who is a minor child has never obtained a court order of
emancipation.
39. J.D.K has never been involved in Child In Need of Protection or
Services (CHIPS) petition court proceedings, foster placement court
proceedings, child protection court proceedings nor child custody court
proceedings.
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40. Meanwhile, Minnesota courts recognize that J.D.K. as a minor
child is not emancipated until a state court decides the minor child J.D.K. is
emancipated.
41. Minnesota Statute § 645.451 defines that an individual is an
emancipated adult at age 18.
42. Therefore, under Minnesota law, J.D.K. will be emancipated on
July 6, 2017.
43. Ms. Calgaro’s other minor children will reach the age of
emancipation later.
44. Pursuant to a paternity order dated April 14, 2008, Ms. Calgaro
has sole physical custody and joint legal custody of J.D.K. (Cty. of Benton v.
Justin Gerald Karl, et. al., Ct. File. No. 05-FA-07-3058, Findings of Fact,
Concl. of Law, Or. and Jdgmt, Benton Cty. Dist. Ct. (Apr. 14, 2008)).
45. J.D.K.’s father, Justin Karl, also has joint legal custody. Although
Ms. Calgaro and Karl are divorced, that has not interfered with their
communication regarding the welfare of their son J.D.K. Notably, Mr. Karl
has been informed about the instant litigation and the claims asserted and
has consented to Ms. Calgaro’s lawsuit.
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II. Federal courts have recognized that parents have a
fundamental right to the care, custody and control of their
children.
46. As a parent, Ms. Calgaro has a fundamental right to make
decisions concerning the care, custody and control of her children.
47. In Slaven v. Engstrom, 710 F.3d 772, 779 (8th Cir. 2013), quoting
Troxel v. Granville, 530 U.S. 57,66 (2000) (plurality opinion), the Eighth
Circuit wrote, “the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.”
48. The United States Supreme Court in Quilloin v. Walcott, 434
U.S. 246, 255 (1978) wrote, “We have recognized on numerous occasions that
the relationship between parent and child is constitutionally protected.”
49. The United States Court of Appeals for the Eighth Circuit in
King v. Olmstead County, 117 F.3d 1065, 1067 (8th Cir. 1997) wrote, “We
have recognized a right to familial relations, which includes the liberty
interest of parents in the custody, care, and management of their children.”
50. Ms. Calgaro has always offered a home to J.D.K. She has also
communicated with J.D.K. about how he is always welcome in their home.
51. Ms. Calgaro has always made efforts to ensure a connection
between her and J.D.K.
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52. Ms. Calgaro has never willingly or implicitly given up control or
custody of J.D.K.
53. In 2015, J.D.K. moved in with his father and then moved out.
Although J.D.K. refused to come back home, Ms. Calgaro has never
surrendered her parental rights over her son’s actions or in any other way
attempted to sever their relationship as mother and child.
54. St. Louis County, over Ms. Calgaro’s objections, has provided
and/or approved moneys to J.D.K. to allow him to live apart from his mother
Ms. Calgaro.
55. Meanwhile, Ms. Calgaro, at all times, has offered to J.D.K. to live
in her home.
III. A legal aid clinic provides J.D.K. with a “letter of
emancipation,” but fails to investigate the veracity of the
allegations asserted.
Name change efforts of J.D.K. highlight the lack of
a distinct process in emancipation law.
56. During this period, J.D.K. succeeded in obtaining legal advice
from Mid-Minnesota Legal Aid Clinic that he is emancipated without a court
order.
57. The lawyer’s “To Whom It May Concern” letter does not
accurately reflect the relationship between J.D.K. and Ms. Calgaro.
58. The letter reflects only what J.D.K. stated were “his” facts.
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59. The Legal Aid Clinic did not contact Ms. Calgaro to investigate,
question, confirm or affirm the alleged “facts” asserted by J.D.K. about their
relationship.
60. There was no district court hearing regarding any “factual”
allegations asserted in the letter regarding Ms. Calgaro.
61. There was no administrative hearing regarding any “factual”
allegations asserted in the letter regarding Ms. Calgaro.
62. A district court did not issue a court order stating that J.D.K. was
emancipated.
63. There was no district court hearing that adjudicated J.D.K. as
emancipated.
64. There was no administrative order that adjudicated J.D.K. as
emancipated.
65. There was no administrative hearing that adjudicated J.D.K. as
emancipated.
66. Attached hereto as Exhibit A is a copy of the Mid-Minnesota
Legal Aid Clinic letter which states that J.D.K. is emancipated without a
court order.
67. Exhibit A has a filing date of October 8, 2015 in Stearns County
district court.
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68. The filing is in regard to a hearing held on January 20, 2016,
wherein J.D.K. tried to change his name to E.J.K., a female name.
69. The order denying the attempted name change was issued on
April 15, 2016 and is attached as Exhibit B.
70. In the April 15, 2016 order, the district court noted that J.D.K.
had earlier attempted to change his name in Stearns County.
71. The court in that earlier preceding denied J.D.K.’s request noting
that:
the Petitioner failed to comply with the statute
authorizing change of name in Minnesota,
which requires an application for change of
name of a minor child be brought in the name of
that child by the parent or guardian. Minn.
Stat. §259.10.
72. In the April 15, 2016 order, the district court stated that “a legal
issue exists as to whether the juvenile Petitioner herein has a legal basis to
assert emancipation, and if so, how that would affect Petitioner’s entitlement
to bring an action as a juvenile for a change of name in the State of
Minnesota.” Exhibit B.
73. The district court stated that based upon the record before it
finding:
the lack of a parent or guardian bringing the
Application on behalf of the juvenile;
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the lack of any Minnesota trial court
adjudication relative to emancipation;
the lack of proper notice upon the parents
of the juvenile Petitioner;
among other reasons.
74. The procedural jurisdictional defects would not allow the court to
resolve J.D.K.’s application for a name change and dismissed it without
prejudice. Exhibit B.
75. Ms. Calgaro was not present at the hearing. She did not, as the
order reflected, get notice of the hearing. See Exhibit B.
76. Meanwhile, Ms. Calgaro has made repeated attempts to retain or
regain her parental rights regarding J.D.K. She has repeatedly asked for
J.D.K.’s school records from defendant St. Louis School District officials,
including the Cherry School principal(s), but they refused her access to his
records and refused to communicate with her regarding matters affecting her
son.
77. Ms. Calgaro has made repeated attempts to retain or regain her
parental rights regarding J.D.K. with the Defendants St. Louis County and
St. Louis County Public Health and Human Services Department. Both
officials from these Defendants have refused to provide her with any
information regarding J.D.K. and in fact, have refuted further attempts by
her to speak with County officials.
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78. Ms. Calgaro has made repeated attempts to retain or regain her
parental rights with officials defendants Fairview Health Services and Park
Nicollet Health Services to retain or to regain her parental rights regarding
J.D.K. They have refused and refuted any attempts by Ms. Calgaro to obtain
any information regarding medical services being provided to J.D.K.
79. Likewise, Ms. Calgaro sought legal counsel advice from private
attorneys about processes or procedures available to maintain, regain, or
restore her parental rights in full or in part; however, multiple counsel
identified that there is no distinct process in Minnesota to assert her rights
as it pertained to maintaining, regaining, or restoring parental rights against
the emancipation of her minor child under the circumstances described.
IV. In Minnesota, procedural due process is afforded to parents
regarding children on matters from marital dissolution
proceedings to child protection proceedings.
80. Minnesota has a strong legal tradition of protecting parental
rights.
81. For instance, in the context of marital dissolution, paternity, and
child protection, Minnesota provides parents due process – notice and an
opportunity to be heard – prior to or after terminating parental rights.
82. Moreover, procedural due process rights relating to parental
rights are statutorily codified in the contexts of marital dissolution, paternity,
and child protection.
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83. Parents in the contexts of marital dissolution, paternity and child
protection receive statutorily-required notice and opportunity to be heard in
court prior to or after parental rights are terminated.
84. Minnesota Statute § 518.09, et seq., requires notice and hearing,
that is due process, relating to parental rights as part of a marital dissolution
proceeding.
85. Minnesota Statute § 257.57 requires notice and hearing, that is
due process, relating to parental rights as part of a paternity proceeding.
86. Minnesota Statute § 260C.141 requires notice and hearing, that
is due process, relating to parental rights as part of a child protection
proceeding.
V. Minors may obtain medical services, including sex change
procedures, based on a health service provider’s
determination of emancipation without notice or hearing
regarding the affected parental rights.
87. Minnesota Statute § 144.341, enacted in 1971, authorizes medical
service providers to determine whether a minor child such as J.D.K. is
emancipated without a court order:
144.341 LIVING APART FROM PARENTS AND
MANAGING FINANCIAL AFFAIRS.
Notwithstanding any other provision of law,
any minor who is living separate and apart
from parents or legal guardian, whether with
or without the consent of a parent or guardian
and regardless of the duration of such separate
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residence, and who is managing personal
financial affairs, regardless of the source or
extent of the minor's income, may give effective consent to personal medical, dental,
mental and other health services, and the
consent of no other person is required.
(Emphasis added).
88. There are no rules promulgated by the state or any other agency
regarding the implementation of Minnesota Statute § 144.341.
89. Under § 144.341, there is no provision providing for a process or
procedure to give notice to the minor’s parent or parents before or after
“effective consent” is determined, regarding their protected right to the care,
custody, and control of their child.
90. Under § 144.341, there is no provision providing for a process or
procedure to provide the minor’s parent or parents a hearing, before or after
“effective consent” is determined, regarding their protected right to the care,
custody, and control of their child.
VI. There is no distinct process to challenge, retain or restore
parental rights after an emancipation determination under
Minnesota Statute § 144.341 concerning medical services or
under common law regarding all matters for which a
minor’s emancipation determination is used.
91. Procedural due process rights relating to parental rights after a
minor child’s emancipation for medical services under Minnesota Statute §
144.341 are not statutorily codified.
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22
92. Minnesota common law does not recognize a parental cause of
action to restore partial or full parental rights in an emancipation context.
93. Notably, the Minnesota judicial website recognizes and states
that there is no “specifically defined process” for a minor to become
emancipated:
Minnesota Statutes define who is a minor and who is
an adult at MN Statutes § 645.451. Generally, being
"emancipated" means that a minor has the same
legal responsibilities as an adult. Minnesota Statutes
do not specifically define a process by which a minor
can become emancipated.
Courts will review "Petitions for Emancipation" and
decide on a case-by-case basis if there is sufficient
evidence to find that a minor may live
"independently" of his/her parents or guardian.
However, the courts do not publish forms or
instructions to petition for "emancipation." The Legal
Fact Sheet on Emancipation published by Mid-
Minnesota Legal Aid explains the basics on this area
of law. To get legal advice on your situation, you
should talk with a lawyer.1
(Original emphasis).
94. Notably, the Minnesota judicial website does not identify a
corollary process for a parent to petition for a full or partial restoration of
parental rights in the context of an emancipation application or petition in
1 Website: http://www.mncourts.gov/Help-Topics/Emancipation.aspx
(emphasis added).
CASE 0:16-cv-03919 Document 1 Filed 11/16/16 Page 22 of 47
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the context of an agency or entity recognizing the emancipation of a minor in
the absence of any judicial review process as outlined in the website.
95. In other words, Minnesota courts recognize that a “petition for
emancipation” – and the due process for the parent(s) relating thereto – is
necessary prior to terminating parental rights in the context of a minor child
being emancipated.
96. However, the state legislature, unlike in the subjects areas of
marital dissolution, paternity and child protection, have not statutorily
codified the procedural due process rights of parents with respect to
emancipation of a minor child or with respect to emancipation as determined
under Minnesota Statute § 144.341 by finding a minor’s giving of “effective
consent.”
97. Minnesota Statute § 144.341, as to medical treatment for an
emancipated minor child without a court order, terminates parent rights and
provides no procedure before nor after to retain, regain, or restore parental
rights:
Notwithstanding any other provision of law,
any minor who is living separate and apart
from parents or legal guardian, whether with
or without the consent of a parent or guardian
and regardless of the duration of such separate
residence, and who is managing personal
financial affairs, regardless of the source or
extent of the minor's income, may give effective
consent to personal medical, dental, mental and
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24
other health services, and the consent of no
other person is required.
98. Minnesota Statute § 144.341 does not provide Minnesota parents
with any procedural due process rights prior to or after a minor child being
emancipated for the purposes of medical, dental, mental, and other health
services.
99. Neither Park Nicollet nor Fairview provided notice and
opportunity to be heard to Ms. Calgaro to participate in or challenge their
emancipation decisions regarding J.D.K. before or after the termination of
her parental rights.
VII. The County, Park Nicollet and Fairview determined J.D.K.
is emancipated under Minnesota Statute § 144.341 without
parental consent and without a court order and denied
Plaintiff access to J.D.K.’s medical records.
100. J.D.K., without parental consent, succeeded in obtaining
medical services from Park Nicollet and Fairview.
101. J.D.K., without parental consent, succeeded in obtaining medical
services in the form of prescription drugs, including narcotics, from Fairview,
and succeeded in obtaining medical services to change sex from a male to a
female from Park Nicollet.
102. St. Louis County is paying for and/or approving payment for
J.D.K.’s medical services through the Department of Health.
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25
103. The governmental moneys compensate Fairview and Park
Nicollet for the medical services provided to J.D.K.
104. Attached hereto as Exhibit C is a copy of Park Nicollet
Minneapolis Gender Services letter which states that J.D.K. is receiving
medical services to change sex from a male to a female.
105. Park Nicollet and Fairview are treating J.D.K. as an adult with
exclusive rights to information and decision-making regarding the medical
procedures and services J.D.K. is receiving.
106. Elective medical services for a sex change for a minor child is a
life-changing event.
107. Seeking elective medical services for a sex change by minor child
is a life-changing decision.
108. Park Nicollet did not contact Ms. Calgaro about J.D.K.’s request
or consent for a sex change.
109. Park Nicollet and Fairview did not sufficiently inquire about the
sincerity and/or veracity of the minor child J.D.K..
110. Without any investigation or inquiry regarding the consent of
J.D.K. for elective medical services, neither Park Nicollet nor Fairview can
assert that either entity rendered the medical services or procedures in good
faith under Minnesota Statute § 144.345.
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111. Further, Park Nicollet and Fairview have determined that
medical records will not be provided to Ms. Calgaro under Minnesota Statute
§ 144.346 governing when medical professions may inform parents about
medical treatment where the failure to inform the parent would jeopardize
the health of the minor child:
The professional may inform the parent or legal
guardian of the minor patient of any treatment given
or needed where, in the judgment of the professional,
failure to inform the parent or guardian would
seriously jeopardize the health of the minor patient.
112. Therefore, under the circumstances of this case, Ms. Calgaro has
no access to J.D.K.’s medical records from Park Nicollet, nor Fairview.
113. In 2016, and through the date of filing of this Complaint, Ms.
Calgaro has requested J.D.K.’s medical records from Park Nicollet and has
asked to participate in J.D.K.’s medical decisions.
114. Park Nicollet refused and refuses Ms. Calgaro’s requests because
Park Nicollet has determined J.D.K. is emancipated.
115. There is no court order granting J.D.K. emancipation that would
allow him to give effective consent for medical services, particularly that of a
sex change.
116. Park Nicollet has provided and continues to provide medical
services to J.D.K. without Ms. Calgaro’s consent.
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27
117. Moreover, Park Nicollet does not provide a process in which Ms.
Calgaro can regain or otherwise retain her parental rights over the care,
custody and control of her minor child J.D.K. regarding the medical services
Park Nicollet is providing J.D.K.
118. In 2016 and through the date of filing this complaint, Plaintiff
has requested J.D.K.’s medical records from Fairview and asked to
participate in J.D.K.’s medical decisions, but Fairview refuses because
Fairview has determined J.D.K. is emancipated.
119. There is no court order granting J.D.K. emancipation that would
allow him to give effective consent for medical services, particularly that of
prescribed narcotics.
120. Fairview has provided and continues to provide medical services
to J.D.K. without Ms. Calgaro’s consent.
121. Moreover, Fairview does not provide a process in which Ms.
Calgaro can regain or otherwise retain her parental rights over the care,
custody and control of her minor child J.D.K. regarding the medical services
Fairview is providing J.D.K.
122. During this period, J.D.K., without parental consent, has also
succeeded in convincing St. Louis County that he is emancipated without
court order for the purposes of receiving government-paid medical benefits.
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28
123. St. Louis County determined, without a hearing or notice to Ms.
Calgaro, that J.D.K. is emancipated.
124. It is the practice and custom of St. Louis County to determine
that a minor is emancipated without notice to or a hearing for the minor
child’s parents.
125. St. Louis County’s determination of J.D.K. as emancipated has
effectively terminated the parental rights of Ms. Calgaro.
126. Furthermore, the St. Louis County is providing or approving
other governmental moneys to J.D.K. related to living expenses.
127. St. Louis County is treating J.D.K. as an adult with exclusive
rights to information and decision-making.
128. Therefore, Ms. Calgaro has no access to his county records or
legal authority to affect J.D.K.’s decision-making with the county.
129. In 2016, and through the date of filing this complaint, Ms.
Calgaro has made requests to the County to access county records and to
participate in J.D.K.’s decision-making with the County.
130. The County refuses Ms. Calgaro’s requests to participate and for
access to J.D.K.’s county records.
131. St. Louis County’s determination that J.D.K. was eligible for
government-paid medical services was the cause of why Park Nicollet and
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29
Fairview determined that J.D.K. was emancipated for the purposes of
providing medical services.
132. St. Louis County provides no process of notice to or hearing for
Ms. Calgaro, as the biological mother and parent of J.D.K., to regain, retain,
or restore in full or in part her parental rights.
133. In summary, without parental consent and without a court order
adjudicating emancipation, St. Louis County, Park Nicollet and Fairview
paid for and provided medical services to J.D.K. and denies Plaintiff access to
J.D.K.’s records.
VIII. The School District has determined J.D.K. is emancipated
without parental consent and without a court order and
denied Plaintiff access to J.D.K.’s educational records.
134. In 2016, Ms. Calgaro requested the School District to allow her to
participate in J.D.K.’s educational decisions and to have access to J.D.K.’s
educational records.
135. The School District has denied Ms. Calgaro’s request to
participate in J.D.K.’s educational decisions and has denied access to his
educational records.
136. At about the same time, Ms. Calgaro requested the principal of
Cherry School an opportunity to participate in J.D.K.’s educational decisions
and to have access to J.D.K.’s school records.
137. The principal of Cherry School refused Ms. Calgaro’s requests.
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APP. 39
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138. The School District determined J.D.K. emancipated without Ms.
Calgaro’s knowledge or parental consent.
139. The School District did not give notice or hold a hearing when it
determined J.D.K. emancipated.
140. The determination by the School District effectively terminated
the parental rights of Ms. Calgaro.
141. The School District is aware of parental rights.
142. The School District is aware that parental rights are protected
under the U.S. Constitution.
143. It is the policy, practice, and custom of the School District not to
give notice or hold a hearing with the parent(s) present when it determines a
minor child is emancipated.
144. Further, the School District does not have a process in which a
parent may seek to retain or restore in full or in part their parental rights.
145. Ms. Calgaro was not provided a process in which she was given
notice or an opportunity to have a hearing to retain or restore in full or in
part her parental rights over J.D.K.
146. Notably, there is no statute that allows the School District to
make an emancipation decision for a minor, to refuse parents access to school
records or to refuse parents an opportunity to participate in the decision-
making of the educational opportunities of a minor child.
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APP. 40
31
147. Unlike the medical service providers, described above, the School
District has no statute to rely on for its emancipation decision.
148. The School District’s policy does not provide parents with notice
and opportunity to be heard prior to or after school district emancipation
without a court order.
149. The School District did not obtain nor have in hand a court order
prior to declaring J.D.K. emancipated.
150. Further, the common law provides no right for Ms. Calgaro to
petition the School District to restore full or partial parental rights after the
School District’s determination of emancipation of J.D.K.
151. Likewise, the common law provides no right for Ms. Calgaro to
petition the court to restore full or partial parental rights before the School
District determined J.D.K. as emancipated.
152. So, Ms. Calgaro, as the biological mother and parent of J.D.K.,
has no recourse to the courts prior to or after the school district’s
emancipation determination.
153. Likewise, the principal of Cherry School is an agent,
representative, or employee of the School District.
154. The principal implements the policies, practices, and customs of
the School District as it would be applied to the Cherry School.
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APP. 41
32
155. Moreover, the principal is also provided some discretion to
decision-making regarding matters as it affects the school and, therefore, acts
as the final-decision maker regarding policies, practices, and customs at
Cherry School.
156. The principal of Cherry School interacts with students and
parents on a daily basis.
157. The principal is well aware of parental rights in the context of
educational services and decision-making for minor children.
158. The principal understands that parental rights are protected
under the U.S. Constitution.
159. The principal of Cherry School determined that J.D.K. was
emancipated.
160. The principal did so without notice or a hearing involving Ms.
Calgaro as J.D.K.’s parent and biological mother.
161. The principal’s determination effectively terminated the parental
rights of Ms. Calgaro.
162. It is the policy, practice and custom of the principal of Cherry
School not to give notice or hold a hearing with the parents present when the
principal determines a minor child is emancipated.
163. Further, the principal does not have a process in which a parent
may seek to retain or restore in full or in part their parental rights.
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33
164. Ms. Calgaro was not provided a process in which she was given
notice or an opportunity to have a hearing to retain or restore in full or in
part her parental rights over J.D.K.
165. Notably, there is no statute that allows the principal of a school
to make an emancipation decision for a minor, to refuse parents access to
school records or to refuse parents an opportunity to participate in the
decision-making of the educational opportunities of a minor child.
166. The school principal’s policy does not provide parents with notice
and opportunity to be heard prior to or after school district emancipation
without a court order.
167. The school’s principal did not obtain nor have in hand a court
order declaring J.D.K. emancipated.
168. Further, the common law provides no right for the Ms. Calgaro to
petition the principal of a school to restore full or partial parental rights after
the principal’s determination of emancipation of J.D.K.
169. Likewise, the common law provides no right for Ms. Calgaro to
petition the court to restore full or partial parental rights before the principal
determined J.D.K. as emancipated.
170. So, Ms. Calgaro, as the biological mother and parent of J.D.K.,
has no recourse to the courts prior to or after a school principal’s
emancipation determination.
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APP. 43
34
171. The School District has violated Plaintiffs’ federal due process
rights to notice and an opportunity to be heard.
COUNT I
The Defendants violated Ms. Calgaro’s protected rights under the Due
Process Clause of the U.S. Constitution Fourteenth Amendment.
172. All of the above paragraphs are incorporated herein as if they
were stated in their entirety.
173. This complaint is a 42 U.S.C. § 1983 civil rights action based on
the U.S. Constitution Fourteenth Amendment Due Process Clause seeking a
declaratory judgment and injunction enjoining defendants from acting as if
minor child J.D.K. is emancipated without a court order until Plaintiff as the
minor’s mother is afforded an opportunity by statute to petition in state court
to restore her partial or full parental rights.
174. The Fourteenth Amendment of the United States Constitution
states:
[N]or shall any state deprive any person of life,
liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws.
175. Under 42 U.S.C. § 1983, the statutory provisions provide persons
a federal cause of action based on persons operating under color of state law
violating of federal law:
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APP. 44
35
Every 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, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress….
176. Courts have recognized that the Due Process Clause of the U.S.
Constitution protects the fundamental right of parents to make decisions
concerning the care, custody and control of their children, as expressed for
instance in Santosky v. Kramer, 455 U.S. 745, 753 (1982) and Quilloin v.
Walcott, 434 U.S. 246, 255 (1978).
177. Courts have recognized that the right to familial relations
includes the liberty interest of parents in the custody, care and control of
their children, as expressed for instance in King v. Olmstead County, 117
F.3d 1065, 1067 (8th Cir. 1997) and Slaven v. Engstrom, 710 F.3d 772, 779
(8th Cir. 2013) quoting Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality
opinion).
178. Parental due process rights regarding termination of parental
rights are clearly established.
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APP. 45
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179. At all times, the Defendants knew that their respective
determination of J.D.K.’s emancipation effectively terminated the protected
constitutional parental rights of Ms. Calgaro.
180. At all times, the Defendants knew that their respective
determination of J.D.K’s emancipation without notice nor a hearing before or
after their decision violated the federal due process rights of Ms. Calgaro.
181. At all times, the Defendants have refused to provide Ms. Calgaro
notice and an opportunity to be heard to retain or to restore her parental
rights in full or in part over her minor child J.D.K.
182. At all times, the Defendants purposefully failed to provide Ms.
Calgaro notice or an opportunity to be heard before they determined J.D.K.
emancipated.
183. Parental rights are considered a protected fundamental right
and, specifically, a “liberty” interest under the Fourteenth Amendment
which, therefore, may not be terminated without “due process of law.”
184. A governmental determination of emancipation effectively
terminates the custody and control decision-making of a parent or parents.
185. The decisions concerning the custody and control over a minor
child involve parental rights protected under the U.S. Constitution.
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APP. 46
37
186. A decision that has the legal effect of granting a minor child
emancipation, effectively terminating parental rights of the child’s parent(s),
requires notice to the parent(s).
187. A decision that has the legal effect of granting a minor child
emancipation, effectively terminating parental rights of the child’s parent(s),
requires a hearing involving the parent(s).
188. Under Minnesota Statute § 144.341, there is no provision
allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to restore in
full or in part her parental rights protected under the U.S. Constitution
regarding medical services the Defendants Department of Public Health,
Fairview Health Services, and Park Nicollet Health Services have provided
and continue to provide to J.D.K. without parental consent.
189. Under Minnesota common law, there is no private cause of action
allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to restore in
full or in part her parental rights protected under the U.S. Constitution to
challenge the St. Louis County School District’s and Cherry School’s
determination and enforcement of the “emancipation letter” of the Mid-
Minnesota Legal Aid clinic or J.D.K.’s declaration that he is emancipated.
190. Under Minnesota common law, there is no private cause of
action allowing Ms. Calgaro, as J.D.K.’s biological mother and parent to
restore in full or in part her parental rights protected under the U.S.
CASE 0:16-cv-03919 Document 1 Filed 11/16/16 Page 37 of 47
APP. 47
38
Constitution to regain or restore in full or in part, her parental rights over
J.D.K. that the St. Louis County School District and Cherry School have
refused to recognize by their respective determination and enforcement
actions of the “emancipation letter” of the Mid-Minnesota Legal Aid clinic or
J.D.K.’s declaration that he is emancipated.
191. This complaint based on the U.S. Constitution Fourteenth
Amendment Due Process Clause seeks a declaratory judgment and injunction
enjoining all defendants from acting as if any of Ms. Calgaro’s children are
emancipated without a court order until Ms. Calgaro has an opportunity to
petition the state court to restore full or partial parental rights.
192. Ms. Calgaro’s parental rights are fundamental rights recognized
and protected under the U.S. Constitution.
193. As fundamental rights, Ms. Calgaro’s parental rights cannot be
terminated without procedural due process under the U.S. Constitution
Fourteenth Amendment Due Process Clause.
194. St. Louis County, Park Nicollet, Fairview, the School District,
and their respective officials, acting under the color of state law and their
own policies, customs, or usages by emancipating J.D.K., without a prior
court order of emancipation, have subjected Ms. Calgaro to the deprivation of
her procedural due process rights secured by the U.S. Constitution prior to
and after the termination of her parental rights by the respective Defendants.
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APP. 48
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195. The Defendants’ actions, individually and collectively, have
violated Ms. Calgaro’s procedural due process rights under the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution.
196. Ms. Calgaro is entitled to a court process – notice and
opportunity to be heard – prior to or after termination, or both, concerning
her parental rights.
197. In this lawsuit relating to medical and educational services
provided to a minor, Ms. Calgaro claims that the Defendants violate her
federal procedural Due Process Clause rights because she has no statutory or
common law cause of action in court (1) to challenge Defendant St. Louis
County Public Health and Human Service’s eligibility determination to pay
for J.D.K.’s medical services at Park Nicollet and Fairview and deny parental
access to medical records without a court order; (2) to challenge Defendant
Park Nicollet’s and Defendant Fairview’s determination of emancipation of
J.D.K. to provide medical services and deny access to medical records without
a court order; and (3) to challenge the School District’s and the principal of
Cherry School determinations of emancipation of J.D.K. to provide
educational services and deny access to educational records without a court
order.
198. Park Nicollet’s and Fairview’s determination of emancipation
without a court order was based upon the government’s willingness to pay for
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APP. 49
40
the medical services via Defendant St. Louis County’s determination that
J.D.K. was eligible for such benefits.
199. There is no parental cause of action under Minnesota statute or
common law to challenge St. Louis County’s, Park Nicollet’s, and Fairview’s
emancipation determinations without a court order which led to the
government-paid medical services being provided to J.D.K. without parental
consent.
200. The Minnesota statute § 144.341, allowing the medical service
provider to determine emancipation, does not provide a cause of action for a
parent to bring a lawsuit to restore full or partial parental rights.
201. Although Minnesota common law recognizes a minor child’s right
to petition for emancipation, there is no Minnesota common law cause of
action for a parent to bring in court to restore full or partial parental rights
once a child is emancipated by Defendants without a court order.
202. Specifically, Minnesota Statute § 144.341 authorizes medical
service providers to determine whether a minor child such as J.D.K. is
emancipated without a court order:
Notwithstanding any other provision of law, any minor who
is living separate and apart from parents or legal guardian,
whether with or without the consent of a parent or
guardian and regardless of the duration of such separate
residence, and who is managing personal financial affairs,
regardless of the source or extent of the minor's income,
may give effective consent to personal medical, dental,
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APP. 50
41
mental and other health services, and the consent of no
other person is required.
203. According to the state statute, Park Nicollet and Fairview in
determining J.D.K.’s emancipation took into account under “regardless of the
source or extent of minor’s income” that St. Louis County had determined
J.D.K’s eligibility for government-paid benefits.
204. Moreover, if the medical service provider had refused treating
J.D.K. as emancipated, J.D.K. was entitled under Minnesota common law to
proceed with a petition for emancipation.
205. Conversely, even though Ms. Calgaro as a mother objects to
J.D.K. being provided such medical services without court order and without
parental consent, Ms. Calgaro has no legal rights under Minnesota Statute §
144.341 to bring a cause of action to restore her full or partial parental rights
prior to or after the Defendants’ determinations of emancipation under state
law.
206. Further, Minnesota common law has never recognized a cause of
action for a parent to sue in district court to restore full or partial parental
rights after a determination of emancipation under Minnesota Statute §
144.341 or otherwise.
207. There is no parental corollary under Minnesota common law for
the minor child’s petition for a court order of emancipation.
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APP. 51
42
208. A parent under Minnesota common law has no right to bring a
lawsuit after a Defendant has determined a minor child is “emancipated”
under Minnesota Statute § 144.341 or otherwise without a court order.
209. Since Minnesota Statute § 144.341 does not authorize a parent to
bring such a lawsuit, parents have no legal cause of action in court to
challenge the government’s and medical service provider’s determination of
“emancipation” under Minnesota Statute § 144.341 to provide medical
services to a minor child.
210. Further, Plaintiff has requested from the School District to
participate in J.D.K.’s educational decisions and have access to J.D.K.’s
educational records.
211. The School District has denied Plaintiffs’ request to participate in
J.D.K.’s educational decisions and denied Plaintiff access to J.D.K.’s
educational records.
212. The School District has emancipated J.D.K. without parental
consent and without a court order.
213. However, unlike the medical service providers, the School
District has no statute to rely as its legal authority for its emancipation
decision.
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APP. 52
43
214. The School District’s policy does not provide parents with notice
and opportunity to be heard prior to or after school district determines
emancipation without a court order of emancipation.
215. The common law provides no right for the Plaintiff to petition to
restore full or partial parental rights after the school district’s determination
of emancipation.
216. So, Ms. Calgaro has no recourse to the courts prior to or after
school district emancipation to restore partial or full parental rights.
217. The School District has violated Ms. Calgaro’s federal due process
rights to notice and opportunity to be heard.
218. Under these circumstances, parents like the Plaintiff have no
notice nor opportunity to be heard pre-deprivation nor post-deprivation.
219. Ms. Calgaro’s federal due process rights have been violated by
Defendants.
220. The Defendants’ violative actions have caused damages to Ms.
Calgaro including loss of wages, personal injury and emotional distress.
221. The Defendants’ violative actions have caused damages to Ms.
Calgaro in an amount exceeding $50,000.
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APP. 53
44
COUNT II
DECLARATORY JUDGMENT
222. All of the above paragraphs are incorporated herein as if they
were stated in their entirety.
223. The Court has inherent or statutory authority to issue
declaratory judgments.
224. Ms. Calgaro seeks a declaratory judgment declaring that her due
process rights under the U.S. Constitution Due Process Clause were violated
by Defendants because she has no statutory or common law cause of action to
challenge in state court the Defendants’ determinations of emancipation
without a court order which led to the medical, educational and other services
being provided and denial of access to medical, educational and other records
without parental consent and without a court order.
COUNT III
INJUNCTION
225. All of the above paragraphs are incorporated herein as if they
were stated in their entirety.
226. The Court has legal authority to issue injunctions.
227. The Ms. Calgaro petitions for an injunction enjoining the
Defendants from providing any additional services to the minor children of
Ms. Calgaro without parental consent until she has had an opportunity in
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45
state court to petition to restore all or partial parental rights or until a state
court order of emancipation is issued.
228. Additionally, Ms. Calgaro petitions for an injunction requiring
the Defendants to provide medical, educational and other records of the
minor children to Ms. Calgaro until she has had an opportunity in state court
to petition to restore all or partial parental rights or until a state court order
of emancipation is issued.
DEMAND FOR JURY TRIAL
229. Plaintiff Anmarie Calgaro also demands a jury trial regarding
the allegations asserted in the instant Complaint.
PRAYER FOR RELIEF
The Plaintiff Anmarie Calgaro prays for the following relief:
1. a 42 U.S.C. § 1983 judgment awarding nominal damages and
damages against each Defendant in an amount exceeding
$75,000;
2. a declaratory judgment declaring that Ms. Calgaro’s due process
rights under the U.S. Constitution Due Process Clause were
violated when the Defendants treated J.D.K as emancipated
without a court order and provided medical, educational and
other services without parental consent and refused parental
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46
access to medical, educational and other records while Minnesota
statues, common law and Defendants’ policies provided no cause
of action to Ms. Calgaro to petition to restore full or partial
parental rights;
3. an injunction enjoining the Defendants from providing any
additional medical, educational or other services to any of the
minor children of Ms. Calgaro deemed emancipated by
Defendants without Ms. Calgaro’s consent until she has had an
opportunity in state court to petition to restore all or partial
parental rights or until a state court order of emancipation is
issued and requiring the Defendants to provide medical,
educational and other records of any of Ms. Calgaro’s minor
children deemed emancipated by Defendants to Ms. Calgaro until
she has had an opportunity in state court to petition to restore all
or partial parental rights or a state court order of emancipation is
issued;
4. an award under 42 U.S.C. § 1988 and other applicable laws
against each Defendant of attorney’s fees, costs, witness fees,
expenses, etc.; and
5. any other legal or equitable relief which the Court deems just to
award.
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47
Dated: November 16, 2016 /s/Erick G. Kaardal
Erick G. Kaardal, 229647
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Facsimile: 612-341-1076
Email: [email protected]
Attorneys for Petitioner
VERIFICATION OF PETITION
I sign the petition as a petitioner. I declare under penalty of perjury
that the foregoing is true and correct to the best of my knowledge.
Dated: November 16, 2016 /s/Anmarie Calgaro
Anmarie Calgaro
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APP. 57
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Anmarie Calgaro, Case No. 16-cv-3919 (PAM/LIB) Plaintiff,
v. MEMORANDUM AND ORDER St. Louis County, Linnea Mirsch, Fairview Health Services, Park Nicollet Health Services, St. Louis County School District, Michael Johnson, and E.J.K.1, Defendants. This matter is before the Court on Plaintiff Anmarie Calgaro’s Motion for
Summary Judgment, Defendants St. Louis County’s and Linnea Mirsch’s Motions for
Judgment on the Pleadings and Summary Judgment, and Defendants Park Nicollet Health
Services’, Fairview Health Services’, St. Louis County School District’s, Michael
Johnson’s, and E.J.K.’s Motions to Dismiss. For the following reasons, Defendants’
Motions are granted and Calgaro’s Motion is denied.
BACKGROUND
E.J.K. is a 17-year-old transgender youth who identifies as female. (Compl.
(Docket No. 1) ¶¶ 18, 32, 104, Ex. C.) She will turn 18 in less than two months. (Id.
¶ 3.) Calgaro is E.J.K.’s biological mother and has sole physical and joint legal custody
of E.J.K. (Id. ¶¶ 3, 44.) 1 Although referred to as J.D.K. in Calgaro’s Complaint, the Court uses the name, initials, and pronouns consistent with E.J.K.’s female gender identity.
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Sometime in 2015, E.J.K. moved out of Calgaro’s home in St. Louis County,
Minnesota and moved in with her biological father in St. Cloud. (Id. ¶¶ 3, 53.) Shortly
thereafter, E.J.K. moved out of her father’s home and began living with various family
and friends. (Id. ¶ 53.) Since moving out of her father’s home, E.J.K. has refused to
move back in with Calgaro. (Id.) Calgaro claims that she has always offered a home to
E.J.K. (Id. ¶ 50.)
E.J.K. currently lives on her own in St. Louis County. (Id. ¶ 18.) She attends the
Cherry School in the St. Louis County School District (the “School District”) and
enrolled herself in post-secondary educational opportunities at a local college. (Id. ¶ 14.)
On June 29, 2015, E.J.K. consulted a lawyer with Mid-Minnesota Legal Aid who
provided her with a letter that concluded she was legally emancipated under Minnesota
law. (Compl. Ex. A.) E.J.K. has never obtained a court order of emancipation. (Id.
¶ 38.)
Sometime before January 15, 2016, Park Nicollet and Fairview began providing
E.J.K. with medical treatment for a gender transition to the female gender. (Id. ¶¶ 10, 12,
Ex. C.) Calgaro alleges that St. Louis County is providing E.J.K. with general
government assistance and paying for these medical services. (Id. ¶¶ 54, 102.)
Sometime in 2016, Calgaro requested that Fairview and Park Nicollet provide her with
E.J.K.’s medical records, but they refused. (Compl. ¶¶ 113, 114, 118.) Also in 2016,
Calgaro requested that the School District allow her to participate in E.J.K.’s educational
decisions and to have access to E.J.K.’s educational records, but the School District
refused. (Id. ¶¶ 134, 135.)
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On November 16, 2016, Calgaro filed this lawsuit against seven Defendants:
(1) St. Louis County; (2) Linnea Mirsch, individually and in her official capacity as
Interim Director of St. Louis County Public Health and Human Services; (3) Fairview;
(4) Park Nicollet; (5) the School District; (6) Michael Johnson, individually and in his
official capacity as Principal of the Cherry School (“Principal Johnson”); and (7) E.J.K.
(collectively, “Defendants”). Calgaro is suing Defendants under 42 U.S.C. § 1983 for
allegedly violating her Fourteenth Amendment procedural due process rights. Calgaro
alleges that Defendants terminated her constitutionally protected parental rights without
due process by determining E.J.K. emancipated without notifying her, providing E.J.K.
with medical services and government assistance without Calgaro’s consent, and refusing
to provide Calgaro with E.J.K.’s medical, governmental, and educational records.
Twelve days after filing a Complaint, Calgaro filed her Motion for Summary
Judgment. Park Nicollet, Fairview, the School District, Principal Johnson, and E.J.K.
each subsequently filed Motions to Dismiss. St. Louis County and Mirsch also filed a
Motion for Judgment on the Pleadings and a Motion for Summary Judgment.
DISCUSSION
A. Motions to Dismiss and the Motion for Judgment on the Pleadings
To survive a motion to dismiss for failure to state a claim, a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 12(b)(6). A claim
bears facial plausibility when it allows the Court “to draw the reasonable inference that
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4
the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to
dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 660 (8th Cir. 2012), but it need not give effect to those that simply
assert legal conclusions, McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” are insufficient to support a claim. Iqbal, 556 U.S. at 678. The same
standard that applies to a motion to dismiss under Rule 12(b)(6) applies to a motion for
judgment on the pleadings under Rule 12(c). Haney v. Portfolio Recovery Assocs.,
L.L.C., 837 F.3d 918, 924 (8th Cir. 2016) (per curiam).
1. Emancipation
Throughout her 229-paragraph Complaint, Calgaro repeatedly alleges that
Defendants “determined [E.J.K.] emancipated.” (See, e.g., Compl. ¶ 138.) This
allegation is distracting for two reasons. First, Defendants legally cannot emancipate
E.J.K. In Minnesota, emancipation is an act of the parent and need not be in writing or in
express words. In re Fiihr, 184 N.W.2d 22, 25 (Minn. 1971) (citation omitted).
“Whether a child has been emancipated must be determined largely upon the peculiar
facts and circumstances of each case and is ordinarily a question for the jury.” Id.
Calgaro does not dispute this. (See Compl. ¶ 40 (“Minnesota courts recognize that
[E.J.K.] as a minor child is not emancipated until a state court decides the minor child
[E.J.K.] is emancipated.”).) Calgaro also admits that E.J.K. has not obtained a court
order of emancipation. (Id. ¶ 38.) Defendants therefore did not emancipate E.J.K. and
Calgaro continues to have sole physical and joint legal custody of E.J.K. Second, even
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assuming Defendants determined E.J.K. emancipated—as the Court must do at this stage
of the litigation—Defendants’ emancipation determinations did not terminate Calgaro’s
parental rights. Only a court order can do so. Absent that, Calgaro’s parental rights over
E.J.K. remain intact. The Court will therefore not further entertain Calgaro’s
characterization of Defendants’ actions as “determining E.J.K. emancipated,” except
when necessary to address one of Calgaro’s claims against St. Louis County.
2. Fairview and Park Nicollet
To state a claim under § 1983, Calgaro must establish that Fairview and Park
Nicollet deprived her of a right secured by the Constitution or laws of the United States
and that the deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49 (1999). Calgaro alleges that Fairview and Park Nicollet
deprived her of her constitutionally protected parental rights without due process by
providing E.J.K. with medical services without Calgaro’s consent and refusing to provide
Calgaro with E.J.K.’s medical records. (Compl. ¶¶ 11, 13, 188, 197.) Fairview and Park
Nicollet argue that they cannot be held liable under § 1983 because they did not act under
color of state law. Fairview and Park Nicollet are correct.
“Section 1983 secures most constitutional rights from infringement by
governments, not private parties.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388
F.3d 588, 590 (8th Cir. 2004) (citation omitted). But private parties may be held liable
when they act under color of state law. Id. (citation omitted). A private party acts under
color of state law when they are a “willful participant in joint activity with the state.”
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Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 536 (8th Cir. 2014)
(quotations and citation omitted).
Fairview and Park Nicollet did not willfully participate in any joint activity with
the state. Fairview and Park Nicollet are private, non-profit corporations that provide
medical services to the public. Merely because they are extensively regulated by the state
and receive state funding does not mean that they willfully participate in joint activity
with the state. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir. 1999).
Likewise, merely because Fairview and Park Nicollet provided E.J.K. with medical
services under Minn. Stat. § 144.341 does not mean they willfully participated in joint
activity with the state. See Sullivan, 526 U.S. at 52 (“Action taken by private entities
with the mere approval or acquiescence of the State is not state action.”). Because
Fairview and Park Nicollet did not willfully participate in joint activity with the state,
they did not act under color of state law. Calgaro therefore fails to state a claim against
Fairview and Park Nicollet upon which relief can be granted.
3. The School District
Calgaro alleges that the School District deprived her of her constitutionally
protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational
decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 14, 76,
134-38.) The School District argues that Calgaro has failed to plausibly allege that the
execution of a School District policy or custom caused the deprivation of Calgaro’s
parental rights. The School District is correct.
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Local governmental bodies like the School District “may not be sued under § 1983
for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 694 (1978). It is only when “execution of a government’s
policy or custom . . . inflicts the injury that the government as an entity is responsible
under § 1983.” Id.
Calgaro fails to provide any facts that the School District executed a policy or
custom that deprived Calgaro of her parental rights without due process. Instead, Calgaro
merely states in conclusory fashion that “[t]he School District’s policies, customs,
practices, or procedures (or lack of procedures), acting under the color of state law, were
the moving force behind the constitutional violations.” (Compl. ¶ 15.) But the “mere
invocation of the words ‘policies’ and ‘customs’ is insufficient to plead a Monell claim.”
Rickmyer v. Browne, 995 F. Supp. 2d 989, 1030 (D. Minn. 2014) (Nelson, J.). Calgaro
therefore fails to state a claim against the School District upon which relief can be
granted.
4. Principal Johnson
Calgaro alleges that Principal Johnson also deprived her of her constitutionally
protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational
decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 76, 136,
137.) Principal Johnson argues that he is entitled to qualified immunity. Principal
Johnson is correct.
Qualified immunity applies unless the government official’s conduct “violated a
clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
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The purpose of qualified immunity is to “give government officials breathing room to
make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-
Kidd, 563 U.S. 731, 743 (2011).
The Eighth Circuit has explicitly left open the question “whether and to what
extent the fundamental liberty interest in the custody, care, and management of one’s
children mandates parental access to school records.” Schmidt v. Des Moines Pub. Sch.,
655 F.3d 811, 819 (8th Cir. 2011). The only other circuit to have ruled on this issue has
held that a noncustodial parent does not have a protected liberty interest in receiving their
children’s school records. Crowley v. McKinney, 400 F.3d 965, 968-71 (7th Cir. 2005).
Because this existing precedent does not place the constitutional question “beyond
debate,” Principal Johnson is entitled to qualified immunity. Ashcroft, 563 U.S. at 741.
5. St. Louis County
Calgaro alleges that St. Louis County deprived her of her constitutionally
protected parental rights without due process by refusing to provide Calgaro with E.J.K.’s
governmental records, providing E.J.K. with general government assistance without
Calgaro’s consent, and providing E.J.K. with medical assistance without Calgaro’s
consent. St. Louis County has moved for judgment on the pleadings regarding the
general government assistance and governmental records claims. St. Louis County
argues that Calgaro has failed to allege that a St. Louis County policy or custom deprived
her of her parental rights without due process. St. Louis County is correct, but not
exactly for the reasons it argues.
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Like the School District, St. Louis County “may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. It is only
when “execution of a government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible under § 1983.” Id. Furthermore, when a
municipality is acting under compulsion of state or federal law, “it is the policy contained
in that state or federal law, rather than anything devised or adopted by the municipality,
that is responsible for the injury.” Bethesda Lutheran Homes & Servs., Inc. v. Leean,
154 F.3d 716, 718 (7th Cir. 1998). Although the Eighth Circuit has not decided whether
to adopt this common-sense limitation on municipal liability under § 1983, see Slaven v.
Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013), every circuit to have ruled on this issue
has done so. See Vives v. City of New York, 524 F.3d 346, 353 (2d Cir. 2008)
(collecting and analyzing cases).
St. Louis County provided E.J.K. with general government assistance under Minn.
Stat. § 256D.03, which provides that every county “shall provide general assistance to
persons residing within its jurisdiction who meet the need requirements of sections
256D.01 to 256D.21.” Minn. Stat. § 256D.03, subd. 1. St. Louis County argues that
because it is required to provide general government assistance to E.J.K. under this
statute, it is the policy of the state of Minnesota, rather than St. Louis County, that
allegedly deprived Calgaro of her constitutionally protected parental rights without due
process. But the state does not require St. Louis County to provide E.J.K. with general
assistance.
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Minn. Stat. 256D.03 requires St. Louis County to provide E.J.K. with general
government assistance if she meets the need requirements of sections 256D.01 to
256D.21. E.J.K. meets those need requirements if she does not have adequate income
and is “a child under the age of 18 who is not living with a parent, stepparent, or legal
custodian, and only if: the child is legally emancipated or living with an adult with the
consent of an agency acting as a legal custodian . . . .” Minn. Stat. § 256D.05, subd.
1(a)(10). For purposes of this clause:
‘legally emancipated’ means a person under the age of 18 years who: (i) has been married; (ii) is on active duty in the uniformed services of the United States; (iii) has been emancipated by a court of competent jurisdiction; or (iv) is otherwise considered emancipated under Minnesota law, and for whom county social services has not determined that a social services case plan is necessary, for reasons other than the child has failed or refuses to cooperate with the county agency in developing the plan.
Id. As previously discussed, E.J.K. has not been emancipated by a Minnesota court. And
the other three ways E.J.K. could be considered legally emancipated under the statute are
likewise inapplicable. Thus, it is not the policy contained in the state law that is
responsible for the alleged constitutional deprivation, rather it is St. Louis County’s
decision to provide E.J.K. with general government assistance, although not required to
do so, that allegedly deprived Calgaro of her constitutionally protected parental rights
without due process.
This technicality, however, does not save Calgaro’s general assistance claim
against St. Louis County. Calgaro still fails to allege any specific facts that St. Louis
County has a policy or custom that provides non-emancipated minors with general
government assistance in contradiction of state law. For example, Calgaro does not
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allege that St. Louis County has ever provided general government assistance to a non-
emancipated minor before doing so with E.J.K. Nor does Calgaro allege that St. Louis
County has ever provided any individual with government assistance in contradiction
with state law. Instead, Calgaro once again merely alleges in conclusory fashion that “St.
Louis County’s policies, customs, practices, or procedures (or lack of procedures), acting
under the color of state law, were the moving force behind the constitutional violations
asserted in this Complaint.” (Compl. ¶ 5.) Such a conclusory allegation is insufficient to
support Calgaro’s general government assistance claim against St. Louis County. See
Rickmyer, 995 F. Supp. 2d at 1030. Calgaro’s claim concerning St. Louis County’s
refusal to provide her with E.J.K.’s governmental records fails for the same reason.
6. Mirsch
Calgaro fails to state a claim against Mirsch upon which relief can be granted
because Calgaro fails to allege that Mirsch was personally involved in depriving Calgaro
of her parental rights without due process. To establish Mirsch’s personal liability under
§ 1983, Calgaro must allege “specific facts of personal involvement in, or direct
responsibility for, a deprivation of [her] constitutional rights.” Clemmons v. Armontrout,
477 F.3d 962, 967 (8th Cir. 2007) (quotations and citation omitted). Calgaro utterly fails
to do this.
Calgaro mentions Mirsch only twice in her Complaint. (Compl. ¶¶ 8-9.) Calgaro
alleges that Mirsch is the interim director of the St. Louis County Health and Human
Services Department and that she is the final decision- and policy-maker in the
department. (Id. ¶ 8.) Calgaro also alleges that Mirsch is an agent, representative, or
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employee of the department, and as such is acting under color of state law. (Id. ¶ 9.)
These two general allegations do not come close to alleging specific facts of Mirsch’s
personal involvement in, or direct responsibility for, a deprivation of Calgaro’s
constitutional rights. Calgaro therefore fails to state a claim against Mirsch upon which
relief can be granted.
7. E.J.K.
Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of
her parental rights without due process while acting under color of state law. Calgaro
merely argues that E.J.K. is a required party who must be joined in the action because
E.J.K. “claims an interest relating to the subject of the action and is so situated that
disposing of the action may as a practical matter impair or impede the person’s ability to
protect the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i). Although E.J.K. likely is a required
party under Rule 19, because Calgaro’s claims against all other Defendants fail, any
claims she might raise against E.J.K. are likewise dismissed.
B. Motions for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The moving party bears “the initial responsibility of
informing the . . . court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations
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omitted). Where the moving party makes such a showing, the burden shifts to the
nonmoving party, who must demonstrate the existence of specific facts in the record that
create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). A party opposing a properly supported motion for summary judgment may not
rest upon mere allegations or denials and must do more than simply show that there is
some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
1. St. Louis County
St. Louis County moved for summary judgment on Calgaro’s allegation
concerning government assistance of medical payments because the state of Minnesota,
not St. Louis County, provided E.J.K. with that assistance. (See Waldriff Decl. (Docket
No. 39) ¶¶ 6-7.) Calgaro does not dispute this. In fact, Calgaro utterly fails to respond to
St. Louis County’s Motion for Summary Judgment. (See generally Pl.’s Opp’n Memo.
(Docket No. 65).) This allegation is therefore deemed abandoned and summary judgment
is appropriate. See Truong v. Hassan, No. 13cv2947, 2015 WL 2341979, at *7 (D. Minn.
May 14, 2015) (Montgomery, J.) (considering state-law claims abandoned after plaintiff
failed to respond in his opposition memorandum to defendant’s summary judgment
motion).
2. Calgaro
Because her claims are meritless, Calgaro is not entitled to summary judgment.
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CONCLUSION
Calgaro has failed to plausibly allege any § 1983 claims against Defendants.
Accordingly, IT IS HEREBY ORDERED that:
1. Calgaro’s Motion for Summary Judgment (Docket No. 6) is DENIED;
2. Park Nicollet’s Motion to Dismiss (Docket No. 15) is GRANTED;
3. E.J.K.’s Motion to Dismiss (Docket No. 24) is GRANTED;
4. Fairview’s Motion to Dismiss (Docket No. 28) is GRANTED;
5. The School District’s and Principal Johnson’s Motion to Dismiss (Docket
No. 31) is GRANTED;
6. St. Louis County’s and Mirsch’s Motion for Judgment on the Pleadings and
Motion for Summary Judgment (Docket No. 34) are GRANTED; and
7. Calgaro’s Complaint (Docket No. 1) is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 23, 2017 s/ Paul A. Magnuson Paul A. Magnuson United States District Court Judge
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