Tharp et al v. Utah Division of Child and Family Services

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JONATHAN THARP; and LAUREN LUBY,
Plaintiffs,
v.
UTAH DIVISION OF CHILD AND FAMILY
SERVICES,
Defendant.
REPORT AND RECOMMENDATION
TO GRANT DEFENDANT’S MOTION
TO DISMISS (DOC. NO. 23) AND
DENY PLAINTIFFS’ CROSS-MOTION
FOR DECLARATORY AND
INJUNCTIVE RELIEF (DOC. NO. 27)
Case No. 2:25-cv-00304
District Judge Dale A. Kimball
Magistrate Judge Daphne A. Oberg
Claiming the Utah Division of Child and Family Services (DCFS) interfered with
their custodial rights and relationship with their children in violation of law, Jonathan
Tharp and Lauren Luby (proceeding without an attorney) filed this civil rights action.1
DCFS moves to dismiss the complaint, claiming immunity and arguing the court lacks
subject-matter jurisdiction and the plaintiffs failed to state a claim.2 Mr. Tharp and Ms.
Luby oppose, and argue they should be permitted to amend their complaint to name
1 (Compl., Doc. No. 1 at 1.)
2 (Def.’s Mot. to Dismiss (Mot.), Doc. No. 23.)
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individual defendants.3 In addition, Mr. Tharp and Ms. Luby filed a cross-motion for
declaratory and injunctive relief.4
Because Mr. Tharp lacks standing, DCFS has immunity from most of the
plaintiffs’ claims, and the complaint otherwise fails to state a plausible cause of action,
the undersigned5 recommends the district judge: (1) grant DCFS’s motion to dismiss but
give the plaintiffs leave to file an amended complaint naming individual defendants; and
(2) deny Mr. Tharp and Ms. Luby’s cross-motion for declaratory and injunctive relief.
BACKGROUND
Mr. Tharp and Ms. Luby generally claim DCFS violated federal laws and
international treaties by interfering with their custodial rights and their relationship with
their minor children.6 Ms. Luby is the mother of the children.7 Mr. Tharp is not their
father. But Mr. Tharp is in a long-term relationship with Ms. Luby and has acted as a
3 (Pls.’ Resp. in Opp’n to Mot. (Opp’n), Doc. No. 24.) Mr. Tharp and Ms. Luby moved
for leave to amend the complaint once already, submitting a proposed amended
complaint several weeks later. (Pls.’ Mot. for Leave to File Am. Compl. (Mot. to Am.
Compl.), Doc. No. 34; Notice of Proposed Am. Compl. (Proposed Am. Compl.), Doc.
No. 39.) This motion to amend is denied in a separate order because the proposed
amended complaint contains claims the undersigned is recommending be dismissed.
(Order Denying Pls.’ Mot. for Leave to File Am. Compl. Without Prejudice, Doc. No. 45.)
4 (Pls.’ Cross-Mot. for Declaratory and Injunctive Relief, Doc. No. 27.)
5 This case is referred to the undersigned magistrate judge under 28 U.S.C.
§ 636(b)(1)(B). (See Doc. No. 9.)
6 (See Compl., Doc. No 1 at 1–2, 5–10.)
7 (Id. ¶ 6.)
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father figure and “de facto parent to the two children for more than seven years.”8 Ms.
Luby and the biological father (and paternal grandparents) are litigating over custody of
the children in Utah courts.9 According to exhibits attached to the complaint, Mr. Tharp
is not a party to those state court proceedings. But Mr. Tharp is referenced in various
state court orders10 and is the subject of a related administrative proceeding by DCFS
for child abuse.11 The sequence of events giving rise to the state court cases is unclear
from the complaint, as is the current custodial status of the children.
According to the complaint, DCFS violated the plaintiffs’ rights by relying, in state
court proceedings against Ms. Luby, on an expired no-contact order and on abuse
findings against Mr. Tharp which were later dismissed. Specifically, Mr. Tharp and Ms.
Luby allege that in March 2022, a Utah court issued a “temporary no-contact order.”12
In addition to providing that Ms. Luby and the children’s father would share custody of
8 (Id. ¶¶ 5, 9.) Nothing in the complaint suggests Mr. Tharp has any legal custody or
guardianship rights to Ms. Luby’s children.
9 (Id. ¶¶ 14, 16.)
10 (Ex. H to Compl., Doc. No. 1-12.) Review of the exhibits attached to the complaint
does not require converting the motion to dismiss into a motion for summary judgment.
See Brown v. City of Tulsa, 124 F.4th 1251, 1263–64 (10th Cir. 2025) (explaining that
even on a motion to dismiss, courts may consider “documents attached to the complaint
as exhibits” and “matters subject to judicial notice”); see also United States v. Ahidley,
486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (noting courts have “discretion to take judicial
notice of publicly-filed records in our court and certain other courts concerning matters
that bear directly upon the disposition of the case at hand”).
11 (Ex. J to Compl., Doc. No. 1-14.)
12 (Compl. ¶ 14, Doc. No. 1; Ex. H to Compl., Doc. No. 1-12.)
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the children,13 the order stated: “Under no circumstances will [Ms.] Luby or the minor
children have any contact, direct or indirect, with [Mr.] Tharp, now or in the future.”14
According to Mr. Tharp and Ms. Luby, this no-contact order expired in November
2023.15 In addition, they allege a DCFS administrative law judge dismissed a “severe
finding of child abuse” against Mr. Tharp in April 2022, finding DCFS lacked
jurisdiction.16 Allegedly, however, DCFS still relies on the expired no-contact order and
child abuse finding “in Juvenile Court proceedings to claim [Ms.] Luby is chronically
neglectful solely due to her association with [Mr.] Tharp” and “to justify further
separation between Plaintiffs and the children.”17 The state courts have allegedly
refused to address the “jurisdictional defect[] and expired order[]” issues.18 And the
plaintiffs have had no evidentiary hearing on the “revived” abuse finding, no “opportunity
13 (Ex. H to Compl. 2, Doc. No. 1-12.)
14 (Id. at 3.)
15 (Compl. ¶ 14, Doc. No. 1.) The order itself does not set an expiration for the
restriction on contact with Mr. Tharp. Instead, the order suggests the restraint remains
in place until changed by the court. (See Ex. H to Compl., Doc. No. 1-12 at 3; see also
Ex. M to Compl. ¶¶ 11, 14–15, Doc. No. 1-16 (explaining that Ms. Luby violated “the
order restraining her from allowing Mr. Tharp[] to have any contact with the children
whatsoever,” and that “one simply cannot violate a court order because they believe it
should no longer apply”).)
16 (Compl. ¶ 15, Doc. No. 1.)
17 (Id. ¶¶ 14, 16.)
18 (Id. ¶ 21.)
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to confront or question accusers,” and no “clear notice of allegations” or opportunity to
respond.19
Separately, Mr. Tharp and Ms. Luby make allegations regarding the children’s
removal to Canada. They allege the children’s father took the children to Canada in
July 2023 and “unlawfully retained” them “in violation of Plaintiffs’ custodial rights.”20
Mr. Tharp and Ms. Luby claim DCFS “permitted or facilitated the removal” to Canada,
without securing “appropriate federal or state-level clearances.”21 The plaintiffs
subsequently filed a petition in Canada’s Supreme Court under the Hague
Convention.22 According to Mr. Tharp and Ms. Luby, the Canadian court found the
children’s “removal and retention wrongful” and ordered their return to the United
States.23 But “DCFS and the Utah Juvenile Court have refused to recognize the order,
considering de facto custody to the father and paternal grandparents.”24 (The current
custody status of the children is unclear, but this dispute appears to be ongoing.)25
19 (Id. ¶ 19.)
20 (Id. ¶¶ 34, 35.) Again, nothing in the complaint suggests Mr. Tharp has any custody
rights.
21 (Id. at 5, 9.)
22 (Id. ¶ 36.)
23 (Id. ¶ 37.)
24 (Id. ¶ 38.)
25 (See id. ¶ 3 (alleging “ongoing separation of the Plaintiffs and the children”).)
However, Ms. Luby and Mr. Tharp filed a notice on December 27, 2025, indicating the
state juvenile-court entered an order “resolving the dependency matter.” (Pls.’ Notice of
Suppl. Authority (Notice), Doc. No. 42 at 1; Ex. 1 to Notice, Doc. No. 42-1 at 2 (“The
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Based on these allegations, Mr. Tharp and Ms. Luby assert eight claims against
DCFS. In Counts I, II, III, and V, they bring Fourteenth Amendment claims under 28
U.S.C. § 1983. Specifically, they claim DCFS: violated their right to family integrity and
familial association by interfering with the parent-child relationship and continuing to rely
on the previously dismissed abuse finding and expired no-contact order (Count I);26
“acted without jurisdiction in continuing its investigation and removing the children”
(Count II);27 violated “Utah state law and federal constitutional protections against
arbitrary government interference” (Count III);28 and violated the Full Faith and Credit
Clause29 by refusing to recognize or act in accordance with the Canadian court’s return
order (Count V).30 In Count VII, Mr. Tharp and Ms. Luby bring a § 1983 claim under
Monell v. Department of Social Services,31 contending DCFS acted “pursuant to an
unofficial policy or custom of disregarding court orders and due process rights.”32 In
Counts IV, VI, and VIII, Mr. Tharp and Ms. Luby claim DCFS: violated the International
court grants the paternal grandparents’ permanent custody and guardianship of
Children.”).)
26 (Id. ¶¶ 23–25.)
27 (Id. ¶¶ 27–29.)
28 (Id. ¶¶ 31–32.) Count III generally references “Utah law” or “Utah state law” but does
not identify any specific state law claims.
29 U.S. Const. art. IV § 1.
30 (Compl. ¶¶ 42–48, Doc. No. 1.)
31 436 U.S. 658 (1978).
32 (Compl., Doc. No. 1 at 10.)
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Child Abduction Remedies Act33 (ICARA) by refusing to recognize the Canadian court’s
return order (Count IV);34 violated Title IV-E of the Social Security Act35 because the
children’s removal to Canada did not follow the statute’s child placement procedures
(Count VI);36 and violated the Interstate Compact and the Placement of Children
(ICPC)37 by not securing “appropriate federal or state-level clearances” and ignoring the
Canadian court’s return order (Count VIII).38
Although Mr. Tharp and Ms. Luby deny they are seeking review of a “private
custody dispute,”39 they request “declaratory and injunctive relief requiring Utah
authorities to recognize and enforce the [Canadian] return order and to prevent further
alienation by the paternal family.”40 Mr. Tharp and Ms. Luby also seek to enjoin DCFS
from acting on the no-contact order or previously dismissed abuse finding and from
granting or facilitating “visitation, custody, or intervention by the paternal
33 22 U.S.C. §§ 9001–11.
34 (Compl. ¶¶ 33–41, Doc. No. 1.)
35 42 U.S.C. §§ 670–79b.
36 (Compl. ¶¶ 49–54, Doc. No. 1.)
37 The ICPC is not a federal law but, instead, an interstate agreement enacted into law
by individual consenting states, such as Utah. See Utah Code § 80-2-905.
38 (Compl. ¶¶ 55–56, Doc. No. 1.) This ICPC claim is referred to as “Count VIII” for
clarity, although the complaint does not include this in the claim’s title.
39 (Id. at 2.)
40 (Id. ¶ 41; id. at 11.)
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grandparents.”41 And they ask the court to declare DCFS’s actions unconstitutional and
violative of ICARA, and to hold that DCFS’s “failure to protect” finding against Ms. Luby
is invalid because the DCFS administrative law judge dismissed the abuse finding
against Mr. Tharp in April 2022.42 Finally, the plaintiffs seek “nominal, compensatory
and/or punitive damages.”43
LEGAL STANDARDS
DCFS moves to dismiss the complaint pursuant to Rule 12(b)(1) and Rule
12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) permits dismissal for
lack of subject-matter jurisdiction.44 A motion to dismiss under Rule 12(b)(1) may
mount either a facial or factual attack.45 A facial attack looks only to the allegations in
the complaint, assumes them to be true, and argues they fail to establish jurisdiction.46
41 (Compl., Doc. No. 1 at 11.)
42 (Id.) Plaintiffs also ask the court to declare that this action is not barred by Younger v.
Harris, 401 U.S. 37 (1971). (Id.) DCFS did not address Younger abstention in its
motion, and it is unnecessary to address.
43 (Compl., Doc. No. 1 at 12.)
44 Fed. R. Civ. P. 12(b)(1).
45 Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020); Rural Water Dist.
No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012).
46 Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015) (citing
Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)).
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A factual attack goes beyond the allegations and adduces evidence to challenge the
court’s jurisdiction.47
Rule 12(b)(6) permits dismissal for “failure to state a claim upon which relief can
be granted.”48 To avoid dismissal under this rule, a complaint must allege “enough facts
to state a claim to relief that is plausible on its face.”49 At the motion to dismiss stage,
courts accept well-pleaded factual allegations as true and view them in the light most
favorable to the plaintiff, drawing all reasonable inferences in the plaintiff’s favor.50 But
courts need not accept a plaintiff’s conclusory allegations as true.51 “[A] plaintiff must
offer specific factual allegations to support each claim,”52 and “[t]hreadbare recitals of
47 Id.; Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).
Although DCFS claims it mounts a factual attack here, its jurisdictional arguments
depend only on the allegations in the complaint and exhibits attached thereto. So long
as the allegations in the complaint and its exhibits as assumed true, DCFS’s motion is
properly construed as a facial attack. See State Auto Ins. Cos. v. Christensen, No.
2:19-cv-00751, 2020 U.S. Dist. LEXIS 34503, at *2 (D. Utah Feb. 27, 2020)
(unpublished) (“When reviewing a facial attack, the district court accepts the allegations
in the complaint and accompanying exhibits as true.” (citing E.F.W. v. St. Stephen’s
Indian High Sch., 264 F.3d 1297, 1303 (10th Cir. 2001))).
48 Fed. R. Civ. P. 12(b)(6).
49 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
50 Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
51 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
52 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
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the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”53
Because Mr. Tharp and Ms. Luby proceed without an attorney (pro se), their
filings are liberally construed and held “to a less stringent standard than formal
pleadings drafted by lawyers.”54 Still, pro se plaintiffs must follow the same rules of
procedure governing other litigants.55 For instance, pro se plaintiffs still have “the
burden of alleging sufficient facts on which a recognized legal claim could be based.”56
While courts make some allowances for a pro se plaintiff’s “failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements,”57 courts “will not supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.”58
ANALYSIS
DCFS moves to dismiss the complaint for lack of jurisdiction and failure to state a
claim, based on several grounds.59 Specifically, DCFS contends the Eleventh
53 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
54 Hall, 935 F.2d at 1110.
55 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
56 Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (citation modified).
57 Hall, 935 F.2d at 1110.
58 Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (citation modified).
59 (Mot., Doc. No. 23 at 5.)
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Amendment bars this action; the complaint is not properly pled; DCFS is not a “person”
subject to suit under § 1983; relief is unavailable under ICARA, Title IV-E of the Social
Security Act (SSA), or the ICPC; and Mr. Tharp lacks standing where he alleges no
cognizable injury.60 In response, Mr. Tharp and Ms. Luby argue Ex parte Young’s61
exception to Eleventh Amendment immunity applies, the complaint is sufficiently pled,
equitable relief is available under ICARA and Title IV-E of the SSA, and Mr. Tharp has
standing because the custody dispute affected him.62 However, the plaintiffs concede
DCFS is not a person subject to suit under § 1983. And they ask that any dismissal of
their claims be without prejudice to allow them “to amend and substitute individual
defendants.”63
The motion to dismiss should be granted. First, Mr. Tharp lacks standing as to
any of the claims. Independent of this, Counts I, II, III, and V must be dismissed
because the Eleventh Amendment bars § 1983 claims against state agencies like
60 (Id. at 9–15.)
61 209 U.S. 123 (1908).
62 (Opp’n 15–18, Doc. No. 24.) Mr. Tharp and Ms. Luby abandoned their ICPC claim
(Count VIII), explaining they “do not assert a private cause of action under ICPC” and
instead, reference the procedural violations to provide context for their federal
constitutional claims. (Id. at 17.)
63 (Opp’n 16, Doc. No. 24.) The plaintiffs filed an additional memorandum of law in
opposition to DCFS’s motion, arguing the judge, prosecutor, guardian ad litem, and
DCFS employees involved in the state juvenile court proceedings lack immunity from
being sued in their individual capacities. (Pls.’ Mem. of Law in Opp’n to Def.’s Claims of
Immunity 7–20, Doc. No. 26.) These arguments are inapplicable to the present motion
because DCFS is not an individual and no individuals are named in this action.
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DCFS. Count VII must be dismissed because Monell only permits § 1983 claims
against local governments, not a state or state agencies. Count IV should be dismissed
because the complaint fails to state an ICARA claim against DCFS. Count VI must be
dismissed because Title IV-E of the SSA does not provide a private cause of action.
And Mr. Tharp and Ms. Luby explicitly abandoned Count VIII, their ICPC claim. For
these same reasons, Mr. Tharp and Ms. Luby’s cross-motion for declaratory and
injunctive relief should be denied. Each dismissal recommendation is explained in more
detail below.
A. Mr. Tharp Lacks Standing
First, as a threshold matter, Mr. Tharp lacks standing to pursue any of these
claims because they arise from injuries to Ms. Luby. “For federal courts to have
jurisdiction over an action, the party bringing the suit must establish standing.”64
Standing includes two strands: “Article III standing, which enforces the Constitution’s
case-or-controversy requirement,” and “prudential standing which embodies judicially
self-imposed limits on the exercise of federal jurisdiction.”65 For Article III standing, a
plaintiff must have suffered an injury-in-fact fairly traceable to the defendant and
64 Wilderness Soc’y v. Kane Cnty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011) (en
banc) (citation omitted); see also Susan B. Anthony List v. Driehaus, 573 U.S. 149,
157–58 (2014) (“The party invoking federal jurisdiction bears the burden of establishing
standing.” (internal quotation marks and citation omitted)).
65 Wilderness Soc’y, 632 F.3d at 1168 (quoting Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1, 11 (2004)).
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redressable by a favorable judgment.66 Prudential standing “encompasses various
limitations, including ‘the general prohibition on a litigant’s raising another person’s legal
rights.’”67 Ultimately, every “plaintiff must demonstrate standing for each claim he seeks
to press and for each form of relief that is sought.” 68
Mr. Tharp fails to demonstrate his standing. The claims in the complaint arise
out of alleged actions by DCFS affecting Ms. Luby. Mr. Tharp contends he was “directly
affected by the challenged abuse findings,” the children’s removal to Canada, and “the
ongoing deprivation of his parental and custodial rights or at least his fundamental
liberty interest in familial association.”69 But Mr. Tharp is not the children’s father. He
has not alleged he has any parental, guardianship, or custodial rights.70 And he is not a
party to the custody dispute. Although Mr. Tharp was the subject of the abuse finding
and no-contact restriction, DCFS relied on those in proceedings to allegedly interfere
with Ms. Luby’s parental and custodial rights. Similarly, any DCFS involvement in the
66 See Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016); Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992); Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir.
2005).
67 Wilderness Soc’y, 632 F.3d at 1168 (quoting Allen v. Wright 468 U.S. 737, 751
(1984)).
68 See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (internal quotation
marks omitted).
69 (Opp’n 17–18, Doc. No. 24.)
70 See, e.g., D.L. v. Unif. Sch. Dist. No. 497, 392 F.3d 1223, (10th Cir. 2004) (holding
cohabitating boyfriend of students’ mother lacked standing where he failed to allege
denial of a legal right of his own in claiming the defendant school district violated federal
law when it denied the mother’s request for a due process hearing after learning of the
school’s plan to expel the children).
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children’s removal to Canada or failure to recognize the Canadian court’s return order
does not implicate any legally protected interest held by Mr. Tharp.71 Because Mr.
Tharp lacks standing, he should not be permitted to pursue these claims.72
B. The Eleventh Amendment Bars § 1983 Claims Against DCFS (Counts I, II, III, V,
and VII)73
Next, because the Eleventh Amendment bars § 1983 claims against DCFS,
Counts I, II, III, V and VII should be dismissed without prejudice.74 In Count I, the
plaintiffs claim DCFS violated their right to family integrity and familial association by
interfering with the parent-child relationship and continuing to rely on the previously
dismissed abuse finding and expired no-contact order.75 In Count II, they claim DCFS
71 See Spokeo, 578 U.S. at 339 (explaining that an injury-in-fact is “‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent,
not conjectural or hypothetical’” (quoting Lujan, 504 U.S. at 560)).
72 See Thiebaut v. Colo. Springs Utils., 455 F. App’x 795, 802 (10th Cir. 2011)
(unpublished) (“[C]ourts retain discretion to analyze the standing of all plaintiffs in a
case and to dismiss those plaintiffs that lack standing.” (citing Mount Evans Co. v.
Madigan, 14 F.3d 1444, 1451–53 (10th Cir. 1994)).
73 According to the complaint, this entire “civil rights action is brought pursuant to
42 U.S.C. § 1983.” (Compl., Doc. No. 1.) Counts I, II, III, and V explicitly reference
§ 1983 and assert claims for Fourteenth Amendment violations. (See id. ¶¶ 23–25, 27–
29, 31–32, 42–48; id. at 10.) Count VII appears to assert a § 1983 claim based on a
theory of Monell liability. (Id. ¶¶ at 10.) But Count IV (for violation of ICARA) and Count
VI (for violations of Title IV-E of the Social Security Act) do not, making it unclear
whether Mr. Tharp and Ms. Luby also assert those counts under § 1983 or as
standalone claims. Regardless, neither count states a plausible claim upon which relief
may be granted, as explained in the following sections.
74 Because Eleventh Amendment immunity is jurisdictional, dismissals on this basis
should be without prejudice. See Colby v. Herrick, 849 F.3d 1273, 1278 (10th
Cir. 2017).
75 (Compl. ¶¶ 23–25, Doc. No. 1.)
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“acted without jurisdiction in continuing its investigation and removing the children.”76
Mr. Tharp and Ms. Luby claim in Count III that DCFS violated “federal constitutional
protections against arbitrary government interference.”77 In Count V, the plaintiffs claim
DCFS violated the Full Faith and Credit Clause and the Fourteenth Amendment right to
familial association and procedural due process by refusing to recognize or act in
accordance with the Canadian court’s return order.78 And in Count VII, Mr. Tharp and
Ms. Luby assert a § 1983 claim for Monell liability, contending DCFS acted “pursuant to
an unofficial policy or custom of disregarding court orders and due process rights.”79
Section 1983 provides a recovery mechanism for violations of federal rights in
certain circumstances.80 “To establish a cause of action under [§] 1983, a plaintiff must
allege (1) deprivation of a federal right by (2) a person acting under color of state law.”81
But regardless of the relief sought, the Eleventh Amendment prohibits suits against a
76 (Id. ¶¶ 27–29.)
77 (Id. ¶¶ 31–32.) As noted above, Count III also generally references “Utah law” or
“Utah state law” but does not identify any specific state law claims.
78 (Id. ¶¶ 42–48, Doc. No. 1.)
79 (Id. at 10.) In Monell, the Supreme Court concluded local governing bodies, such as
municipalities, could be sued directly under § 1983 based on policies or customs
responsible for the deprivation of constitutional rights. See 436 U.S. at 690–91.
80 See 42 U.S.C. § 1983; see also Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir.
2017) (describing § 1983 generally).
81 Watson v. Kansas City, 857 F.2d 690, 694 (10th Cir. 1988).
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state and agencies acting “as arms of the state”82—unless the state waives its
sovereign immunity or Congress abrogates it through legislation.83 But Utah has not
waived its sovereign immunity to being sued under § 1983, nor has Congress abrogated
it.84 Because DCFS is an agency acting as an arm of the state,85 it has Eleventh
Amendment immunity.
82 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66, 70 (1989) (citation omitted);
see also Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1559 (10th Cir. 1992)
(“Eleventh Amendment immunity extends to state agencies that act as arms of the
state.”).
83 See Will, 491 U.S. at 66; Kentucky v. Graham, 473 U.S. 159, 167 (1985); see also
Papasan v. Allain, 478 U.S. 265, 276 (1986) (“This [Eleventh Amendment] bar exists
whether the relief sought is legal or equitable.”); Edelman v. Jordan, 415 U.S. 651, 663
(1974) (“[A]n unconsenting State is immune from suits brought in federal courts by [its]
own citizens as well as citizens of another State.”).
84 See Quern v. Jordan, 440 U.S. 332, 345 (1979) (holding that Congress did not
abrogate the states’ Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983);
Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1233 (10th Cir. 1999)
(explaining in § 1983 action that “Utah has not waived its Eleventh Amendment
immunity by statute”).
85See Schaffrath on Behalf of R.J.J. v. Thomas, 993 F. Supp. 842, 845 (D. Utah 1998)
(“It is clear . . . that the [Division of Child and Family Services] acts as an arm of the
State and is, therefore, entitled to immunity.”) aff’d sub nom. Schaffrath v. Thomas, 189
F.3d 478 (10th Cir. 1999); see also Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.
1988) (explaining that determining whether a state agency is to be treated as an arm of
the state “is made by examining the powers, nature, and characteristics of the agency
under state law” (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 280 (1977))); Utah Code Ann. § 26B-1-204(3)(c)(i) (providing that DCFS is a
division within Utah’s Department of Health and Human Services); Utah Code Ann.
§ 63G-7-102(10) (providing that the State of Utah includes each “division . . . of the
state”); Utah Code Ann. § 26B-1-201(2) (providing that Utah’s Department of Health and
Human Services “shall serve as the health, health planning, medical assistance, and
social services authority of the state”).
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Mr. Tharp and Ms. Luby concede DCFS is an arm of the state and generally
protected by the Eleventh Amendment. But they contend it is not immune to claims for
“prospective injunctive and declaratory relief” for ongoing constitutional violations or for
“retroactive monetary damages for past unconstitutional conduct.”86 In support of their
position, the plaintiffs rely on Ex parte Young.87 In Ex parte Young, the Supreme Court
recognized a narrow exception to Eleventh Amendment immunity: "suits seeking
prospective, but not compensatory or other retrospective relief, may be brought against
state officials in federal court challenging the constitutionality of official conduct
enforcing state law.”88 But this exception explicitly prohibits claims for retrospective
monetary damages.89 And it ultimately “has no application in suits against the States
and their agencies, which are barred regardless of the relief sought.”90
Because DCFS is a state agency acting as an arm of Utah, the Eleventh
Amendment bars § 1983 claims against it in federal court. This bar extends to Mr.
Tharp and Ms. Luby’s Monell claim as well.91 In other words, even if the plaintiffs
86 (Opp’n 15–16, Doc. No. 24.)
87 209 U.S. 123 (1908).
88 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145
(1993) (explaining the Ex parte Young doctrine).
89 Id.
90 Id.
91 Mr. Tharp and Ms. Luby cannot circumvent the Eleventh Amendment’s jurisdictional
bar under a theory of Monell liability. See Gillespie v. Utah Dep’t of Corr., No. 2:23-cv-
221, 2025 U.S. Dist. LEXIS 61592, at *10 (D. Utah Mar. 31, 2025) (unpublished)
(rejecting argument that arms of the state may be held liable under Monell because
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identified a custom or policy that caused a constitutional injury for purposes of a Monell
claim,92 the claim cannot be brought against DCFS, as an arm of the State.
Accordingly, Counts I, II, III, V and VII against DCFS should be dismissed without
prejudice.
C. Failure to State a Claim Under ICARA (Count IV)
Count IV also fails to state a claim against DCFS. In count IV, Mr. Tharp and Ms.
Luby claim DCFS violated ICARA by refusing to recognize the Canadian court’s return
order.93 The United States is a signatory to the Hague Convention on the Civil Aspects
of International Child Abduction, which Congress implemented through ICARA “to
facilitate custody disputes promptly and exclusively, in the place where the child
“Monell reflects the Supreme Court’s conclusion that municipalities and other local
governing bodies—unlike state entities—are ‘persons’ within the meaning of [§] 1983”
(citations omitted)); Royal-Mack v. N.M. Dep’t of Pub. Safety, 286 F. Supp. 3d 1226,
1238 (D.N.M. 2017) (explaining Monell liability does not apply to arms of the state,
“which are immune from suit” under § 1983); Shapiro v. Rynek, No. 13-cv-03086, 2015
U.S. Dist. LEXIS 53938, at *6 (D. Colo. Mar. 17, 2015) (unpublished) (explaining
“Monell established a doctrine of municipal liability” that “does not apply to state
defendants, nor does it abrogate a state defendant’s immunity” under the Eleventh
Amendment (emphasis original)); see also Will, 491 U.S. at 70 (“[I]t does not follow that
if municipalities are persons then so are States. States are protected by the Eleventh
Amendment while municipalities are not . . . .” (citing Monell, 436 U.S. at 690 n.54));
Quern, 440 U.S. at 338 (explaining that Monell’s holding “was limited to local
government units which are not considered part of the State for Eleventh Amendment
purposes” and does not cast doubt on the Supreme Court’s decisions holding § 1983
does not abrogate Eleventh Amendment immunity (citations omitted)).
92 See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760 (10th Cir. 2013)
(explaining each required element of a Monell claim).
93 (Compl. ¶¶ 33–41, Doc. No. 1.)
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habitually resides.”94 ICARA provides that “[c]hildren who are wrongfully removed or
retained within the meaning of the Convention are to be promptly returned unless one of
the narrow exceptions set forth in the Convention applies.”95 But ICARA is “limited to
the merits of the abduction claim.”96 It is “not directed to the underlying merits of child
custody claims.”97 To establish an ICARA violation, a petitioner must show the
“respondent wrongfully’ took or retained the child.”98 This requires showing:
(1) the children habitually resided in a signatory state at the time they were
wrongfully removed or retained; (2) such removal or retention breached the
petitioner’s custody rights under the law of that state; and (3) the petitioner
was 	exercising 	those 	rights 	at 	the 	time 	of 	the 	wrongful 	removal 	or
retention.99
DCFS contends the complaint does not demonstrate an ICARA violation,
because it does not indicate whether the children are still in Canada and, if they are, it is
unclear how DCFS could facilitate their return.100 Mr. Tharp and Ms. Luby neglect to
directly address this argument.101 However, they contend the complaint alleges “DCFS
94 Watts v. Watts, 935 F.3d 1138, 1140–41 n.1 (10th Cir. 2019) (citations omitted).
95 In re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1033 (D. Colo. 2014)
(quoting 22 U.S.C. § 9001(a)(4)).
96 Shealy v. Shealy, 295 F.3d 1117, 121 (10th Cir. 2002) (citation omitted).
97 Johnson v. Johnson, 669 F. Supp. 3d 1089, 1100 (D. Colo. 2023).
98 Id. (quoting West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013)).
99 Id. (citing West, 735 F.3d at 929).
100 (Mot. 13, Doc. No. 23.)
101 (See Opp’n 17, Doc. No. 24 (noting that they do not seek damages under ICARA,
and not addressing ICARA’s elements).)
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workers executed the physical removal and transport of the children.”102 This is not
true.
The complaint does not state facts showing DCFS removed Ms. Luby’s children
to Canada. In count IV, the plaintiffs claim DCFS violated (and continues to violate)
ICARA by refusing to recognize and enforce the Canadian court’s return order.103 But
this is not a wrongful removal claim. It is an allegation that DCFS failed to facilitate the
children’s return. In fact, the complaint explicitly alleges the “children were removed
from the United States to Canada . . . by their father, under the guise of a temporary
visit,” and “the father unlawfully retained the children in Canada, in violation of Plaintiffs’
custodial rights.”104 Accordingly, Count IV fails to state a wrongful removal claim
against DCFS under ICARA and should be dismissed.
D. Failure to State a Claim Under Title IV-E of the SSA (Count VI)
In count VI, Mr. Tharp and Ms. Luby claim DCFS violated Title IV-E of the SSA
because the children’s removal to Canada did not follow the statute’s child placement
procedures.105 Count VI should be dismissed because Title IV-E of the SSA does not
provide a private cause of action. This statute, known as the Adoption Assistance and
102 (Id. at 21.) The parties also disagree as to the remedy available under ICARA.
(Compare Mot. 13, Doc. No. 23 (arguing ICARA does not provide a cause of action for
monetary damages), with Opp’n 17, Doc. No. 24 (asserting Plaintiffs “do not rely on
ICARA for damages but rather for remedies related to custody and removal issues”).)
103 (Compl. ¶¶ 33–41, Doc. No. 1.)
104 (Id. ¶¶ 34–35 (emphasis added).)
105 (Id. ¶¶ 49–54.)
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Child Welfare Act,106 “establishes a federal reimbursement program for certain
expenses incurred by the States in administering foster care and adoption services”
when a state satisfies the statute’s requirements.107 Relevant here is § 671(a)(15)’s
requirement that states make “reasonable efforts”—before placing a child in foster
care—to prevent the need to remove the child from the home and to make it possible to
return the child to home.108 But the Supreme Court has concluded there is no “private
remedy for enforcement of the ‘reasonable efforts’ clause” in § 671(a)(15).109
In count VI, Mr. Tharp and Ms. Luby invoke § 671(a)(15), claiming DCFS failed to
“make reasonable efforts” because it “made no good-faith effort to maintain the family
unit” or to recognize the Canadian court’s return order.110 Where the Adoption Act does
not permit a private right of action against DCFS, Count VI should be dismissed.111
106 See Suter v. Artist M., 503 U.S. 347, 350 (1992).
107 Id. at 350–51.
108 Id. at 351.
109 Id. at 364.
110 (Compl. ¶ 51, Doc. No. 1.)
111 Although Mr. Tharp and Ms. Luby also reference § 672(a)(2) and § 675(1), (Compl.
¶¶ 49–50, Doc. No. 1), these provisions are inapplicable and do not provide them with a
private cause of action. Both provisions relate to foster care, and there are no
allegations foster care is at issue in this case. See 42 U.S.C. § 672(a)(2) (providing for
states to make foster care payments if a child is placed in care); 42 U.S.C. § 675(1)
(identifying information required to be in a “case plan” when deciding to place a child in
foster or permanent care); see also New York State Citizens’ Coal. for Child. v. Poole,
922 F.3d 69, 81 (2d Cir. 2019) (holding § 672(a) grants “a specific entitlement to an
identified class of beneficiaries”—foster parents). Instead, the plaintiffs allege the
children’s father removed the children unilaterally, contrary to state court orders.
(Compl. ¶ 34, Doc. No. 1; see also Ex. M to Compl., Doc. No. 1-16 at 7–8 (order
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E. ICPC Claim Abandoned (Count VIII)
Count VIII should be dismissed as abandoned. In Count VIII, the plaintiffs claim
DCFS violated the ICPC by not securing “appropriate federal or state-level clearances”
and ignoring the Canadian court’s return order.112 DCFS argues the ICPC does not
contemplate a private right of action.113 But rather than responding to this argument,
Mr. Tharp and Ms. Luby explicitly abandoned Count VIII.114
F. Cross-Motion for Declaratory and Injunctive Relief
For all these same reasons, Mr. Tharp and Ms. Luby’s cross-motion for
declaratory and injunctive relief115 should be denied. In the motion, the plaintiffs seek
the same declaratory relief as in the complaint—an order declaring the abuse and
“failure to protect” findings void and the no-contact order expired.116 And they request a
preliminary injunction requiring the “immediate return” of the children.117 Because this
admonishing the father for defying court custody orders by not returning the children
from Canada).
112 (Compl. ¶¶ 55–56, Doc. No. 1 (alleging DCFS failed to secure “appropriate federal or
state-level clearances” and ignoring the Canadian court’s return order).)
113 (Mot. 14, Doc. No. 23.)
114 (Opp’n 17, Doc. No. 24 (explaining they “do not assert a private cause of action
under ICPC” and instead reference the “procedural violations” only to provide context
for their “federal constitutional claims”)); see also Mitchell v. Wells Fargo Bank, 355 F.
Supp. 3d 1136, 1154, 1168 (D. Utah 2018) (deeming claims abandoned where party
failed to respond to opposing party’s arguments for dismissal).
115 (Pls.’ Cross-Mot. for Declaratory and Injunctive Relief, Doc. No. 27.)
116 (Id. at 1–2.)
117 (Id. at 2.)
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cross-motion relates to the claims discussed above (which should be dismissed) and
depends on their success on the merits, it should be denied.118
G. Leave to File an Amended Complaint
Finally, Mr. Tharp and Ms. Luby should be permitted to amend their complaint.
They previously moved for leave to amend the complaint,119 seeking to cure standing
issues and adding individual defendants and further facts.120 In a separate order, the
court is denying that motion because the proposed amended complaint asserts claims
against DCFS that the undersigned is recommending be dismissed, and it does not
sufficiently demonstrate Mr. Tharp’s standing.121 But the plaintiffs also sought to add
new claims and allegations against individual defendants. Because the plaintiffs
proceed pro se and have not yet amended their complaint, they should be permitted to
file an amended complaint raising claims against the individual defendants.
RECOMMENDATION
Because the Eleventh Amendment bars § 1983 claims (including Monell claims)
against DCFS, the Adoption Act does not support a private cause of action, and the
plaintiffs failed to state an ICARA claim and abandoned their ICPC claim, the
118 See Leachco, Inc. v. Cons. Prod. Safety Comm’n, 103 F.4th 748, 752 (10th Cir.
2024) (explaining that a preliminary injunction in part requires showing “a substantial
likelihood of success on the merits,” and that, because “a preliminary injunction is an
extraordinary remedy, the right to relief must be clear and unequivocal”).
119 (Mot. to Am. Compl., Doc. No. 34; Proposed Am. Compl., Doc. No. 39.)
120 (Mot. to Am. Compl., Doc. No. 34 at 1–3.)
121 (Order Denying Pls.’ Mot. for Leave to File Am. Compl. Without Prejudice, Doc.
No. 45.)
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undersigned recommends the district judge: (1) grant the motion to dismiss122 and
dismiss Counts I, II, III, V, and VII without prejudice123—and Counts IV, VI, and VIII with
prejudice; and (2) deny Plaintiffs’ cross-motion for declaratory and injunctive relief.124
However, because Plaintiffs proceed pro se and have not yet been permitted to amend
the complaint, the undersigned also recommends the district judge grant leave to file a
new motion to amend and a proposed amended complaint naming individual
defendants within thirty days of the district judge adopting this recommendation.
Mr. Tharp and Ms. Luby have the right to object to this Report and
Recommendation within fourteen days, and failure to object may be considered a
waiver of objections.125
DATED this 28th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
122 (Doc. No. 23.)
123 See Colby, 849 F.3d at 1278 (noting that because Eleventh Amendment immunity is
jurisdictional, dismissals on this basis should be without prejudice).
124 (Doc. No. 27.)
125 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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