Brokaw, C.A. v. Mercer County ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-1131
C.A. Brokaw,
Plaintiff-Appellant,
v.
Mercer County, James Brokaw,
Weir Brokaw, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 C 4011--Joe Billy McDade, Chief Judge.
Argued September 16, 1999--Decided December 19, 2000
Before Ripple, Manion, and Diane P. Wood, Circuit
Judges.
Manion, Circuit Judge. In July 1983, when he was
six years old, C.A. Brokaw and his three-year-old
sister were forcibly removed from their parents’
home in Mercer County, Illinois. After he turned
eighteen, C.A. filed suit against his grandfather
and aunt, who he contends conspired with his
uncle, a Deputy Sheriff of Mercer County, to
violate his constitutional rights. C.A. also sued
the social worker and other officers involved in
removing him from his home, along with the state
judge who presided over various hearings.
Additionally, the suit named Mercer County and
the State of Illinois (although the State of
Illinois is no longer a party to the case). After
allowing C.A. to amend his pro se complaint, the
district court dismissed the complaint for
failure to state a claim. Brokaw appeals. We
reverse as to all defendants except the presiding
judge and Probation Officer Hansen.
I. Factual Background
Because this case comes to us from a 12(b)(6)
dismissal, we assume that the facts alleged in
the complaint are true, and read those facts, and
all reasonable inferences flowing from those
facts, in the light most favorable to C.A.
Bethlehem Steel Corp. v. Bush, 918 F.2d 1323,
1326 (7th Cir. 1990). In determining whether C.A.
failed to state a claim, we also consider any
additional consistent facts presented by C.A. on
appeal. Albiero v. City of Kankakee, 122 F.3d
417, 419 (7th Cir. 1997). With this in mind, we
go back in time to 1983.
In early July of that year, the plaintiff’s
father, Dennis Brokaw, who had recently been
released from the hospital and who was still
recuperating, was invited by his sister, Karen
Weaver, and their father, Weir Brokaw, to Weir’s
home. The invitation specifically excluded
Dennis’ wife, Bonnie, and their children, the
plaintiff C.A. and C.A.’s sister. As it turned
out, they were excluded because Karen and Weir
were attempting to convince Dennis to leave his
family. During the next few days, Weir and Karen
brought intense pressure on Dennis to leave his
family and to obtain a divorce because they
objected to Dennis and his family’s religious
beliefs and practices. Dennis refused. Soon
thereafter, on the evening of July 5, 1983, there
was a confrontation between C.A.’s parents and
Weir Brokaw and Karen Weaver, during which C.A.’s
parents expressed their "vehement repugnance" of
Weir and Karen’s attempts to split the family
apart.
The next morning Weir and Karen, along with
James Brokaw (Weir’s son and Dennis and Karen’s
brother and, significantly, a Deputy Sheriff for
Mercer County) conspired in a plan to end the
marriage. Together, in response to the previous
evening’s confrontation and because they
disagreed with Dennis and Bonnie’s religious
beliefs, James, Karen and Weir decided to file
"baseless and scurrilous"/1 claims of child
neglect. They believed that this would cause C.A.
and his sister to be removed from their parents’
home, and in turn prompt Dennis to divorce his
wife and leave his family. To further this plan,
they enlisted the help of the Sheriff of Mercer
County, Marvin Thirtyacre, and "fabricated
concerns about the welfare of Plaintiff and his
sister."
At about noon that same day (July 6, 1983),
Sheriff Thirtyacre contacted Penny Ingersoll, who
was a caseworker for the Department of Children
and Family Services, and arranged a meeting for
later in the afternoon. Thirtyacre, Weir, James
and Karen met with Ingersoll briefly outside the
courthouse in Aledo, Illinois, and a few minutes
later Judge Susan Gende joined them. During this
meeting, Thirtyacre, Weir, James and Karen
allegedly made allegations of child neglect to
cause the DCFS to remove C.A. and his sister from
their home.
According to C.A., although Judge Susan Gende
attended this meeting, she did not issue a court
order concerning the children’s custody.
Nonetheless, at dusk that evening, two men walked
into C.A.’s home, grabbed C.A. and his three-
year-old sister, and carried the crying children
out of their home. C.A.’s parents chased the
intruders while repeatedly demanding that they
identify themselves and explain what was
happening. The men refused, one shouting: "We
don’t have to tell you a damn thing!" C.A.
believed he was being kidnaped and was going to
be killed. His parents also believed that their
children had been kidnaped, and they called the
police. (They later learned that their children
were removed based on the alleged child neglect.)
The strangers, who were later identified as
Deputy Sheriff Jonathon Weakley and Probation
Officer James Bartelt, drove C.A. and his sister
to a lane that led into a cornfield, where they
were met by Deputy Sheriff James Brokaw and
Sheriff Martin Thirtyacre. While it is unclear
from the record, it appears that from there the
children were taken to a foster home where they
spent the night.
The next day Sheriff Thirtyacre filed a petition
for adjudication of wardship, and the children
were ordered to remain in foster care. About one
week later, on July 13, 1983, Probation Officer
Vickie Hansen picked up C.A. from the foster home
and drove him to a courthouse. At the courthouse,
Judge Gende and several other of the defendants
questioned C.A. about the alleged abuse, and
according to C.A., he "was frightened and coerced
into answering questions, [and] Defendants
attempted to make him say derogatory statements
about his parents."
About three weeks later, Judge Gende began
presiding over an adjudication hearing. The
hearing was continued until August 3, 1983, at
which time Judge Gende ordered C.A. and his
sister wards of the state, in part based on a
social study prepared by Probation Officer James
Bartelt. C.A. contends that the report contained
false information, and that his parents were
denied the opportunity to disprove those
allegations because they were not given access to
the report until after the hearing and after the
court had already made C.A. a ward of the state.
After her ruling, Judge Gende allegedly
threatened the parents’ attorney that if the
children’s parents appealed her decision of
wardship, she would personally see to it that
they would not see their children until they were
adults, but that if they did not appeal, she
would be more inclined to allow the children to
return home someday.
It is unclear what, if any, investigation took
place or what facts came to light, but on October
28, 1983, almost four months after they were
first removed from their home, Judge Gende
entered an order permitting C.A. and his sister
to return home, finding insufficient evidence
that they needed protection. However, it was not
until July of 1984--after C.A.’s parents
dismissed a federal lawsuit they had filed
concerning their children’s custody-- that Judge
Gende dismissed the order of wardship.
In February 1997, after he had reached the age
of majority, C.A. filed a pro se complaint in
federal court against Mercer County; Marvin
Thirtyacre, the Mercer County Sheriff; James
Brokaw, a Mercer County Deputy Sheriff; Weir
Brokaw, his paternal grandfather; Karen Weaver,
his paternal aunt; the State of Illinois; Penny
Ingersoll, a caseworker for the Illinois
Department of Children and Family Services; Steve
Dickens, a caseworker for the Illinois Department
of Children and Family Services; Susan Gende, a
state judge in the 14th Judicial Circuit of
Illinois; James Bartelt, the Director of the
Mercer County Probation Department; Jonathon
Weakley, a Mercer County Deputy Sheriff; and
Vickie Hansen, a Mercer County Probation Officer.
The district court, thinking this late-filed
complaint was barred by the statute of
limitations, ordered C.A. to show cause why the
complaint should not be dismissed. C.A. responded
by citing Illinois’ tolling statute, which
provides that the statute of limitations does not
begin to run on a minor’s claim until he reaches
the age of eighteen. 735 ILSC 5/13-211. The
district court then struck the complaint,
ordering C.A. to file an amended complaint
specifying the legal basis on which it was
brought. C.A. complied with the order, and filed
an amended complaint under 42 U.S.C. sec. 1983,
alleging claims under the First, Fourth, Fifth,
Eighth, Ninth, Tenth, and Fourteenth Amendments.
C.A. also alleged state law claims of intentional
infliction of emotional distress and false
imprisonment.
All of the defendants, except Thirtyacre,
appeared and filed motions to dismiss. The
district court dismissed the federal claims
against all of the defendants, including
Thirtyacre, for failure to state a claim, or
based on sovereign, absolute, or qualified
immunity. The district court further stated that
because it had dismissed all of C.A.’s federal
claims, it was dismissing his state law claims as
well. C.A. moved for leave to file an amended
complaint, which the district court denied. C.A.
appeals./2
II. Analysis
On appeal, C.A. contends that the defendants
violated and conspired to violate 42 U.S.C.
sec.sec. 1983, 1985(3), by depriving him of
certain constitutional rights, and that he is
entitled to attorney’s fees under Section 1988.
We first consider the Section 1983 claim.
A. Section 1983
In order to state a claim under Section 1983, a
plaintiff must allege that the defendants
deprived him of a right secured by the
Constitution or laws of the United States, and
that the defendants acted under color of state
law. Starnes v. Capital Cities Media, Inc., 39
F.3d 1394, 1396 (7th Cir. 1994). In this case,
C.A. alleged that the defendants violated, and
conspired to violate, his constitutional rights
under the First, Fourth, Fifth, Eighth, Ninth,
Tenth, and Fourteenth Amendments. On appeal,
however, C.A. presents arguments based on only
three constitutional theories: first, he contends
that the defendants violated his Fourth Amendment
rights by forcibly removing him from his home
without cause; second, he asserts that the
defendants violated his substantive due process
right to familial relations; and third, C.A.
argues that the defendants violated his right to
procedural due process by denying him fair and
constitutionally adequate process both before and
after his removal. We consider each theory below,
keeping in mind that dismissal is appropriate
only if C.A. is unable to present any set of
facts consistent with the complaint which would
entitle him to recover. Crenshaw v. Baynerd, 180
F.3d 866, 868 (7th Cir. 1999).
Initially we need to clear up the issue of
Eleventh Amendment immunity. On appeal, the
Illinois Attorney General’s office argues that
the claims against Judge Susan Gende and
Probation Officers James Bartelt and Vickie
Hansen are barred by the Eleventh Amendment to
the extent that C.A. is suing those defendants in
their official capacities. Federal suits against
state officials in their official capacities are
barred by the Eleventh Amendment, Gossmeyer v.
McDonald, 128 F.3d 481, 487 (7th Cir. 1997), but
on appeal C.A. contends that we should construe
his claims against Gende, Bartelt and Hansen as
individual capacity claims. Because the state
defendants have treated C.A.’s suit as an
individual capacity claim--as demonstrated by
their assertion of the defense of qualified
immunity--we will too. Stevens v. Umsted, 131
F.3d 697, 707 (7th Cir. 1997) (explaining that
while a suit against a government official will
be assumed an official capacity suit, that
assumption is negated if the parties have treated
it as an individual capacity suit by asserting
the defense of qualified immunity). An individual
capacity suit is not barred by the Eleventh
Amendment, so C.A.’s individual capacity claims
against Judge Gende and Probation Officers
Bartelt and Hansen remain. Gossmeyer, 128 F.3d at
487./3 That said, we move on to the three legal
theories presented, beginning with the Fourth
Amendment.
1. Fourth Amendment
The Fourth Amendment, incorporated by the
Fourteenth Amendment, provides that "[t]he right
of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures, shall not be violated, . .
." U.S. Const., amend. IV. C.A. contends that the
defendants violated, and conspired to violate,
his Fourth Amendment rights when they forcibly
removed him from his home on July 6, 1983.
To determine whether C.A. stated a cause of
action under the Fourth Amendment, we must
determine whether the defendants’ alleged conduct
constituted a seizure and if so, whether the
seizure was unreasonable in light of the factual
allegations./4 Donovan v. City of Milwaukee, 17
F.3d 944, 948 (7th Cir. 1994). "[A] person has
been ’seized’ within the meaning of the Fourth
Amendment . . . if, in view of all of the
circumstances surrounding the incident, a
reasonable person would have believed that he was
not free to leave." United States v. Mendenhall,
446 U.S. 544, 554 (1980). In this case, C.A.
claims that he was physically carried out of his
home, placed in a car, and driven away from his
family. Under these circumstances, a reasonable
person would believe that he was not free to
leave, and thus a "seizure" occurred within the
meaning of the Fourth Amendment.
"Of course, . . . seizure alone is not enough
for sec. 1983 liability; the seizure must be
unreasonable." Donovan, 17 F.3d at 949 (internal
quotations omitted). However, "[t]he test of
reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical
application," and "its proper application
requires careful attention to the facts and
circumstances of each particular case." Graham v.
Connor, 490 U.S. 386, 396 (1989). Accordingly, we
must consider C.A.’s allegations in light of the
specific circumstances at issue, namely the
removal of a child from his home based on
allegations of child neglect.
In the context of removing a child from his home
and family, a seizure is reasonable if it is
pursuant to a court order, if it is supported by
probable cause, or if it is justified by exigent
circumstances, meaning that state officers "’have
reason to believe that life or limb is in
immediate jeopardy.’"/5 Tenenbaum, 193 F.3d at
605 (quoting Good v. Dauphin County Social
Services for Children and Youth, 891 F.2d 1087,
1094 (3d Cir. 1989)). See, e.g., Tenenbaum, 193
F.3d at 603-05 (analyzing child’s removal as a
seizure under the Fourth Amendment, and
considering whether a court order, probable cause
or exigent circumstances justified the child’s
removal); Wooley v. City of Baton Rouge, 211 F.3d
913, 925-26 (5th Cir. 2000) (noting that a
warrant, probable cause, or a reasonable belief
that a child is in imminent harm is necessary to
justify a seizure of a child under the Fourth
Amendment); J.B. v. Washington County, 127 F.3d
919, 929 (10th Cir. 1997) (applying probable
cause standard to removal of child); Wallis v.
Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)
("state may not remove children from their
parents’ custody without a court order unless
there is specific, articulable evidence that
provides reasonable cause to believe that a child
is in imminent danger of abuse"). Cf. Landstrom
v. Illinois Dept. of Children and Family Serv.,
892 F.2d 670, 676 (7th Cir. 1990) (search or
seizure of child by DCFS must be "reasonable,"
but that does not necessarily require probable
cause or warrant); Darryl H. v. Coler, 801 F.2d
893, 902 (7th Cir. 1986) (accord). Of course,
even then the manner in which the seizure is
carried out must be reasonable. Tennessee v.
Garner, 471 U.S. 1, 8 (1985) ("reasonableness
depends on not only when a seizure is made, but
also how it is carried out").
In light of these general principles and C.A.’s
allegations, we consider the reasonableness of
C.A.’s seizure. First, C.A. contends that he was
removed from his home without a court order
authorizing his seizure, and that it was not
until the next day that a petition for
adjudication of wardship was filed with the
court. Assuming these facts are true, C.A.’s
seizure cannot be justified by a court-ordered
pickup. That still leaves the possibility that
C.A.’s removal was justified by probable cause or
exigent circumstances. See supra at 10. However,
all we know at this stage is that C.A.’s aunt,
grandfather, and uncle (who, remember, as a
deputy sheriff is a state actor) told the DCFS
and the Sheriff’s office something which set in
motion C.A.’s removal that same evening, and that
the removal occurred without any further
investigation into the allegations of child
neglect--not even a home visit, or a conversation
with C.A. While in rare circumstances allegations
of neglect may be so credible and severe that
they justify a pre-investigation and pre-hearing
removal, without knowing the details of the
alleged neglect, under the alleged facts before
us, we cannot conclude that exigent circumstances
justified C.A.’s removal. See, Darryl H., 801
F.2d at 903 n.8 (not every report of child
neglect constitutes exigent circumstances). See
also, Wooley, 211 F.3d at 926 (statements made to
police casting doubt on mother’s fitness
insufficient to create reasonable belief that the
child was in danger of imminent harm so as to
justify removal, especially in light of the
child’s apparent safety at his home); Wallis v.
Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)
("[T]he police cannot seize children suspected of
being abused or neglected unless reasonable
avenues of investigation are first pursued,
particularly where it is not clear that a crime
has been--or will be--committed."); id. ("Whether
a reasonable avenue of investigation exists,
however, depends in part upon the time element
and nature of the allegations."); Croft v.
Westmoreland County Children and Youth Serv., 103
F.3d 1123, 1127 (3d Cir. 1997) (allegations of
neglect insufficient to establish as a matter of
law that caseworker had reasonable grounds to
believe that a child was in imminent danger so as
to justify removal without court order). Nor can
we conclude that the unspecified allegations of
neglect against C.A.’s parents established
probable cause justifying C.A.’s removal. Because
the allegations fail to establish the
reasonableness of C.A.’s seizure as a matter of
law, we must conclude at this juncture that C.A.
has stated a claim under the Fourth Amendment.
Even if a court order directed C.A.’s removal,
or exigent circumstances or probable cause
justified C.A.’s seizure, the manner in which the
defendants seized C.A. may still make his seizure
unreasonable. As the Supreme Court stated in
Tennessee v. Garner, 471 U.S. 1, 8 (1985), the
Fourth Amendment’s guarantee of reasonableness
"depends on not only how a seizure is made, but
also how it is carried out." More recently, the
Court explained in Graham v. Connor, 490 U.S.
386, 397 (1989), that the manner in which a
seizure occurs must be analyzed under the Fourth
Amendment’s objective reasonableness standard.
Applying the objective reasonableness standard
here, we conclude that C.A. has stated a Fourth
Amendment claim premised on the manner in which
the defendants allegedly seized him--dressing in
plain clothes, driving an unmarked car, entering
his home in the evening without knocking or
identifying themselves, and then refusing to do
so when asked. Most significantly, they abruptly
removed the screaming children from the home
without explanation. In effect they acted like
kidnappers rather than law enforcement officers.
Cf. Yates v. City of Cleveland, 941 F.2d 444, 447
(6th Cir. 1991) (it was not objectively
reasonable for a police officer to enter the dark
hallway in the entrance of a private residence at
2:45 a.m. without identifying himself as a police
officer, without shining a flashlight, and
without wearing his hat); Jacobs v. City of
Chicago, 215 F.3d 758, 770 n.5 (7th Cir. 2000)
(complaint stated a cause of action under the
Fourth Amendment where allegations failed to
justify a "no-knock" entry of plaintiff’s
apartment by breaking through door).
Finally, we note that to the extent the
defendants knew the allegations of child neglect
were false, or withheld material information, and
nonetheless caused, or conspired to cause, C.A.’s
removal from his home, they violated the Fourth
Amendment. Malik v. Arapahoe County Dept. of
Social Services, 191 F.3d 1306, 1315 (10th Cir.
1999) (government officials’ procurement of a
court order to remove children based on
information they knew was founded on distortion,
misrepresentation and omission, violated the
Fourth Amendment).
Up to this point, we have treated the defendants
together, questioning only whether C.A. stated a
Fourth Amendment claim. However, we cannot stop
there because "[t]o establish personal liability
in a sec. 1983 action, the plaintiff must show
that the government officer caused the
deprivation of a federal right." Luck v.
Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999)
(internal quotation omitted). Thus, we must
determine which of the defendants caused--and are
therefore liable for--any alleged Fourth
Amendment violations.
An official causes a constitutional violation if
he sets in motion a series of events that
defendant knew or reasonably should have known
would cause others to deprive plaintiff of
constitutional rights. Morris v. Dearborne, 181
F.3d 657, 672 (5th Cir. 1999). Therefore, "[a]n
official satisfies the personal responsibility
required of sec. 1983 if she acts or fails to act
with a deliberate or reckless disregard of
plaintiff’s constitutional rights, or if the
conduct causing the constitutional deprivation
occurs at her direction or with her knowledge or
consent." Smith v. Rowe, 761 F.2d 360, 369 (7th
Cir. 1985) (internal quotation omitted).
Against this backdrop, we consider each
defendant’s participation in the seizure of C.A.
The easiest case concerns Probation Officer
Bartelt and Deputy Sheriff Jonathon Weakley,/6
who C.A. contends physically removed him and his
sister from their home. Because these two
defendants actually seized C.A., the Fourth
Amendment claims against them are clearly proper.
Also straightforward is the claim against Deputy
Sheriff James Brokaw, who joined in the seizure
of the children at the cornfield where C.A. was
taken immediately after he was snatched from his
home. Because he also participated in the
seizure, the Fourth Amendment claim against him
stands as well./7
The claim against Sheriff Thirtyacre is a little
more complicated, not because of the seizure
issue--he was also involved at the cornfield--but
because in his complaint C.A. alleged that Marvin
Thirtyacre "was acting in his official capacity
under color of state law." Thus, C.A.’s suit is
not really against Thirtyacre, but against the
governmental entity he represents, which in this
case is the Mercer County Sheriff’s Office.
Franklin v. Zaruba, 150 F.3d 682, 684 n.2 (7th
Cir. 1998). However, the Mercer County Sheriff’s
Office is not automatically liable for the acts
of its employees. Luck, 168 F.3d at 325.
Therefore, we must determine whether the Mercer
County Sheriff’s Office--as opposed to Thirtyacre
personally--caused C.A.’s constitutional
deprivation.
A municipality violates the Constitution when it
has an unconstitutional custom or policy. Id. A
"custom" or "policy" can take one of three forms:
(1) an express policy that, when enforced, causes
a constitutional deprivation; (2) a widespread
practice that, although not authorized by written
law or express municipal policy, is so permanent
and well settled as to constitute a "custom or
usage" with the force of law; or (3) an
allegation that the constitutional injury was
caused by a person with final policy-making
authority. McTigue v. City of Chicago, 60 F.3d
381, 382 (7th Cir. 1995). In this case, C.A.
contends that the Sheriff of Mercer County
participated in his unconstitutional seizure,
along with two other Deputy Sheriffs. We have
previously held that a sheriff in Illinois has
"final policy-making authority," Ryan v. County
of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995),
and that a "custom or policy" may be established
by "an allegation that the constitutional injury
was caused by a person with ’final policymaking authority.’"
McTigue, 60 F.3d at 382. See also, Baxter by
Baxter v. Vigo County Sch. Corp., 26 F.3d 728,
735 (7th Cir. 1994) ("It is true that a single
act or decision of a final policymaker can
establish municipal policy."). Therefore, C.A.’s
allegations that Sheriff Thirtyacre participated
in his seizure are sufficient at this stage for
C.A. to state a claim against the Mercer County
Sheriff Department./8
To further complicate matters, C.A. also sued
Mercer County, alleging that the defendants’
actions were consistent with the policy, custom,
and usage of Mercer County, and that therefore
Mercer County is also liable under Section 1983
for the alleged Fourth Amendment violations. This
complicates things because it is unclear whether
the Sheriff and the Deputy Sheriffs involved in
C.A.’s seizure were acting on behalf of Mercer
County and/or the Mercer County Sheriff’s Office.
We have struggled with the appropriate defendant
in such a case, see Ryan v. County of DuPage, 45
F.3d 1090 (7th Cir. 1995); Franklin v. Zaruba,
150 F.3d 682 (7th Cir. 1998); DeGenova v. Sheriff
of DuPage County, 209 F.3d 973 (7th Cir. 2000),
and unfortunately are unaided by the
defendants./9 Because at this stage (based on
C.A.’s allegations) we cannot determine on whose
behalf the Sheriff and Deputies were acting, we
remand the claims against Mercer County and the
Mercer County Sheriff’s Office for the district
court to further consider which entity is the
appropriate defendant.
Next we consider defendant Penny Ingersoll, who
was a DCFS caseworker involved in C.A.’s removal.
While Penny was not present during the actual
seizure of C.A., the allegations read in the
light most favorable to C.A. indicate that she
directed those who removed the children to do so.
That is enough to affix liability. Ryan v. Mary
Immaculate Queen Ctr., 188 F.3d 857, 859 (7th
Cir. 1999) (holding that allegations that a
supervisor directed the unconstitutional search
is enough to affix liability). See also, Morris,
181 F.3d at 672 (defendant who was moving force
behind the removal of children was responsible
for causing allegedly unconstitutional removal).
Ingersoll responds by arguing that she acted
only after having received three complaints of
alleged neglect, and that she did not have a
constitutional obligation to investigate those
complaints. However, that argument begs the
question of whether the complaints she received
were legally sufficient to justify the immediate
pre-hearing removal of C.A. We do not know the
nature of the allegations of child neglect,
whether or not the allegations of neglect could
be easily verified or negated, or whether the
alleged neglect created an imminent risk to the
children. Without knowing these details, we
cannot conclude at the pleadings stage that
Ingersoll could reasonably believe that an
immediate pre-investigation, pre-hearing removal
of C.A. was reasonable./10
While C.A. presented sufficient facts to create
an inference that Ingersoll caused his alleged
constitutional deprivation, he did not do so for
Probation Officer Vicki Hansen. In his complaint,
C.A. merely alleged that Probation Officer Hansen
conspired with the other defendants to violate
his constitutional rights. That allegation,
however, is insufficient to put Hansen on notice
of the gravamen of C.A.’s complaint. And while
the federal rules of notice pleading do not
require the plaintiff to allege all of the
relevant facts, "[f]or fair notice to be given, a
complaint must at least include the operative
facts upon which a plaintiff bases his claim."
Kyle v. Morton High. Sch., 144 F.3d 448, 455 (7th
Cir. 1998). C.A.’s sole allegation that Hansen
conspired with the other defendants is
insufficient to put her on notice of C.A.’s
complaint against her. While C.A.’s allegations
against the other defendants were also meager,
they were sufficient to meet the minimal notice
pleading standards. Moreover, C.A. presented
numerous additional consistent facts on appeal
concerning the other defendants’ involvement in
his seizure, and showing their responsibility for
his allegedly unconstitutional seizure. But all
C.A. adds on appeal to Hansen is that she was
present during a conference in which C.A. was
questioned by Judge Gende and several of the
other defendants./11 Hansen’s mere presence at
this conference is insufficient to create a
reasonable inference that Hansen had a meeting of
the minds with the other defendants to remove him
from his parents based on false claims of child
neglect. Kumil v. Racine County, Wis., 946 F.2d
1574, 1580 (7th Cir. 1991) (allegations of
conspiracy "must be further supported by some
factual allegations suggesting ’meeting of the
minds’"). Therefore, even considering the facts
added on appeal by C.A., he still fails to state
a claim against Hansen.
That leaves Judge Gende. The district court
dismissed C.A.’s claims against Judge Gende based
on absolute judicial immunity. This common law
doctrine shields judges from civil liability for
their judicial actions. Tucker v. Outwater, 118
F.3d 930, 932 (2d Cir. 1997). The principle of
judicial immunity recognizes that "[a]lthough
unfairness and injustice to a litigant may result
on occasion, it is a general principle of the
highest importance to the proper administration
of justice that a judicial officer, in exercising
the authority vested in him, shall be free to act
upon his own convictions, without apprehension of
personal consequences to himself." Mireles v.
Waco, 502 U.S. 9, 10 (1991). Thus, judges are not
liable in civil actions for their judicial acts
unless they have acted in the clear absence of
jurisdiction. Stump v. Sparkman, 435 U.S. 349,
356-57 (1978). Moreover, a judge will not be
deprived of immunity even if the action was in
error, was done maliciously, was in excess of his
authority, id., and even if his exercise of
authority is flawed by the commission of grave
procedural errors. Id. at 359.
C.A. attempts to overcome judicial immunity by
arguing that Judge Gende’s actions were
extrajudicial and thus beyond the protection of
judicial immunity, relying on Buckley v.
Fitzsimmons, 509 U.S. 259 (1993). In Buckley, the
Supreme Court held that when a prosecutor
performs investigative--as opposed to judicial--
functions, he is acting extrajudicially and thus
is not entitled to absolute judicial immunity.
Id. at 273. C.A. attempts to cast Judge Gende’s
involvement in his removal in a similar light.
First, he points to Judge Gende’s participation
in the initial meeting with Sheriff Thirtyacre,
Weir, Karen and DCFS Agent Ingersoll outside the
Aledo courthouse, claiming that at this point she
was not acting as a judge, but rather as a social
worker. Next, he cites Judge Gende’s questioning
of him on July 13 to show that she was acting
outside her judicial role. However, under
Illinois law, a judge may partake in an informal
conference in child custody matters, Ill. Rev.
Stat. Ch. 37, para. 703-8 et seq. (1983), and
therefore we cannot conclude Judge Gende was
acting in the clear absence of jurisdiction by
participating in these conferences. See, e.g.,
J.R. v. Washington County, 127 F.3d 919, 925
(10th Cir. 1997) (judge did not abandon impartial
judicial role by having ex parte communication
with social worker); Newman v. State of Ind., 129
F.3d 937, 941 (7th Cir. 1997) (holding that judge
acted within the outer bounds of his jurisdiction
when he ordered parents to remain in courtroom
pending the removal of their children from their
home); Dellenbach v. Letsinger, 889 F.2d 755, 761
(7th Cir. 1989) (telephone call from trial judge
to appellate judge was judicial act not outside
scope of immunity). Nor do C.A.’s allegations
that Judge Gende joined the conspiracy alter the
outcome. See John v. Barron, 897 F.2d 1387, 1393
(7th Cir. 1990) (mere allegations of conspiracy
insufficient to overcome judicial immunity).
Accordingly, she is absolutely immune from suit.
Still remaining are C.A.’s claims against Weir
Brokaw and Karen Weaver for conspiracy to violate
his Fourth Amendment rights. While a private
citizen cannot ordinarily be held liable under
Section 1983 because that statute requires action
under color of state law, if a private citizen
conspires with a state actor, then the private
citizen is subject to Section 1983 liability.
Bowman v. City of Franklin, 980 F.2d 1104, 1107
(7th Cir. 1992). "To establish Section 1983
liability through a conspiracy theory, a
plaintiff must demonstrate that: (1) a state
official and private individual(s) reached an
understanding to deprive the plaintiff of his
constitutional rights, and (2) those
individual(s) were willful participants in joint
activity with the State or its agents." Fries v.
Helsper, 146 F.3d 452, 457 (7th Cir. 1998)
(internal quotation and citations omitted).
In this case, C.A. alleged just such a
conspiracy between Weir and Karen, and Deputy
Sheriff James Brokaw. Specifically, C.A. asserted
that Weir and Karen conspired with James, who was
a deputy sheriff, in July 1983 to file false
allegations of child neglect in order to cause
the DCFS to remove C.A. from his home and to
thereby cause C.A.’s parents to divorce, because
of the religious beliefs and practices of C.A.’s
family./12 While Weir and Karen claim that
C.A.’s allegations are too vague to withstand
dismissal under 12(b)(6), C.A. has alleged all of
the necessary facts: the who, what, when, why,
and how. No more is required at this stage.
Weir and Karen also argue that merely filing a
report of child neglect with a state actor, even
if false, is insufficient to create liability
under Section 1983. We have no qualms with Weir
and Karen’s proposition. But as summarized above,
C.A. alleged much more. In short, C.A. alleged
facts supporting the reasonable inference that an
agreement existed between Weir and Karen and a
Deputy Sheriff, i.e. James, to deprive C.A. of
his constitutional rights, and that these
defendants then jointly acted in furtherance of
this conspiracy by reporting the false neglect
charges to DCFS Agent Ingersoll, and this set in
motion C.A.’s seizure.
Weir and Karen respond by citing cases which
hold that a private citizen is not liable under
Section 1983 for reporting crimes to the police,
or urging the government to prosecute criminal
offenses. Flagg Bros., Inc. v. Brooks, 436 U.S.
149 (1978); Gramenos v. Jewel Comp., Inc., 797
F.2d 432 (7th Cir. 1986); Butler v. Goldblatt
Bros., Inc., 589 F.2d 323 (7th Cir. 1978). But
those cases are distinguishable because they did
not involve an alleged agreement between the
police and the private citizens; rather, the
private individuals acted independently from the
government in making the police reports. Here, on
the other hand, C.A. alleged facts creating a
reasonable inference that Weir and Karen
conspired with state actors to cause his removal.
If true, Weir and Karen are subject to Section
1983 liability.
Alternatively, Weir and Karen seek cover in the
various proceedings instituted as a result of
their complaint: a formal petition for
adjudication of wardship, a court hearing,
investigatory conferences held by the DCFS,
adjudication of wardship by the court, and a
dispositional hearing by the court, seemingly
arguing that because a court determined that C.A.
should remain in foster care, that demonstrates
that their complaints of neglect were justified.
But, assuming that Weir, Karen and Deputy Sheriff
James Brokaw knew the allegations of child
neglect were false, then these proceedings
actually weaken their case because that means
they succeeded in the earlier stages of their
conspiracy--they created upheaval in C.A.’s
family by having him removed from his home and by
subjecting his family to governmental
interference. Moreover, as we have held in the
criminal context, "[i]f police officers have been
instrumental in the plaintiff’s continued
confinement or prosecution, they cannot escape
liability by pointing to the decisions of
prosecutors or grand jurors or magistrates to
confine or prosecute him." Jones v. City of
Chicago, 856 F.2d 985, 994 (7th Cir. 1988).
Similarly, Weir and Karen cannot escape the
consequences of their (alleged) actions based on
the unwitting decisions of the various judges
involved. See Morris v. Dearborne, 181 F.3d 657,
672-73 (5th Cir. 1999) (plaintiff stated a
constitutional claim against a teacher who
allegedly created false evidence of sexual abuse,
notwithstanding the fact that welfare officials
and state judge independently evaluated
allegations of sexual abuse and ordered child
removed from home)./13
Weir and Karen also seek refuge in public
policy, arguing that a person who reports child
abuse should not be subjected to a civil rights
action for the act of reporting. We have no
qualms with that proposition, but as noted above
this case involves a different situation: C.A.
claims that the defendants knew the allegations
were false and that they conspired with a family
member who was a Deputy Sheriff. In fact, it is
reasonable to infer that Weir and Karen were able
to pull off their plan to have C.A. removed only
because they had a relative in a position of
governmental authority; in any other
circumstance, it seems reasonable to believe that
the government would investigate the complaint
before bursting into C.A.’s home and snatching
him from his family. It is a rare situation
indeed where family members will be conspiring
with another family member who is a state actor,
and thus the parade of horribles that Karen and
Weir march out in the form of "public policy"
will seldom, if ever, come to pass.
Before closing the Fourth Amendment discussion,
it is important to reiterate two points. First,
our holding should not be read as creating a
constitutional claim any time a child is removed
from his home and a later investigation proves no
abuse occurred. The alleged facts here go much
beyond that scenario, and our holding is limited
to the unique circumstances of this case. Second,
it is important to remember that this case is
here on 12(b)(6) dismissal. Further proceedings
and discovery may well narrow this case
substantially, but at this point the question is
solely whether C.A. can succeed under any set of
facts. Gregory v. Nunn, 895 F.2d 413, 414 (7th
Cir. 1990). Because there are several factual
scenarios under which C.A. could prevail,
dismissal of his Fourth Amendment claim at this
time would be inappropriate.
2. Substantive Due Process--Familial
Relations
In addition to suing under the Fourth Amendment,
C.A. presents a substantive due process claim. To
the extent that this claim is premised on his
seizure from his home, however, it cannot succeed
because, as the Supreme Court has recently
reiterated, substantive due process should not be
called upon when a specific constitutional
provision protects the right allegedly infringed
upon. United States v. Lanier, 520 U.S. 259, 272
n.7 (1997) ("[I]f a constitutional claim is
covered by a specific constitutional provision,
such as the Fourth or Eighth Amendment, the claim
must be analyzed under the standard appropriate
to that specific provision, not under the rubric
of substantive due process."). As to C.A.’s
initial removal, the Fourth Amendment
specifically addresses that seizure, and thus his
claim should be considered under the Fourth
Amendment, not under the rubric of substantive
due process.
However, C.A. also asserts that his
constitutional rights were violated during the
entire (near) four-month period of government-
forced separation from his parents. This forced
separation implicates substantive due process, or
more specifically C.A.’s constitutional right to
familial relations./14
The Supreme Court has long recognized as a
component of substantive due process the right to
familial relations. See Prince v. Massachusetts,
321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262
U.S. 390, 399 (1923); Santosky v. Kramer, 455
U.S. 745, 753 (1982) (there is "a fundamental
liberty interest of natural parents in the care,
custody, and management of their child."). See
also, Wallis v. Spencer, 202 F.3d 1126, 1136 (9th
Cir. 2000) ("Parents and children have a well-
elaborated constitutional right to live together
without governmental interference."); Croft v.
Westmoreland County Children and Youth Services,
103 F.3d 1123, 1125 (3d Cir. 1997) ("We recognize
the constitutionally protected liberty interests
that parents have in the custody, care and
management of their children."). See generally
Troxel v. Granville, 120 S.Ct. 2054 (2000). The
Due Process Clause "includes a substantive
component that provides heightened protection
against government interference with certain
fundamental rights and liberty interests." Id. at
2060. These decisions recognize that the right of
a man and woman to marry, and to bear and raise
their children is the most fundamental of all
rights--the foundation of not just this country,
but of all civilization. Wisconsin v. Yoder, 406
U.S. 205, 232 (1972) ("The history and culture of
Western civilization reflect a strong tradition
of parental concern for the nurture and
upbringing of their children."); id., ("This
primary role of the parents in the upbringing of
their children is now established beyond debate
as an enduring American tradition."); Moore v.
City of East Cleveland, Ohio, 431 U.S. 494, 503
(1977) ("[T]he institute of the family is deeply
rooted in this Nation’s history and tradition.").
Equally fundamental is the substantive due
process right of a child to be raised and
nurtured by his parents. See Santosky v. Kramer,
455 U.S. 745, 760 (1982) ("[U]ntil the state
proves parental unfitness, the child and his
parents share a vital interest in preventing
erroneous termination of the natural
relationship.") (emphasis added); J.B. v.
Washington County, 127 F.3d 919, 925 (10th Cir.
1997) ("We recognize that the forced separation
of parent from child, even for a short time,
represents a serious infringement upon both the
parents’ and child’s rights.") (internal
quotations omitted); Wooley v. City of Baton
Rouge, 211 F.3d 913, 923 (5th Cir. 2000) ("a
child’s right to family integrity is concomitant
to that of a parent")./15 Thus, substantive due
process provides the appropriate vehicle for
evaluating the constitutionality of the nearly
four-month government-forced separation of C.A.
from his parents. See, e.g., J.B. v. Washington
County, 127 F.3d 919, 927 (10th Cir. 1997) ("[I]t
is evident that there was interference with
plaintiffs’ rights of familial association
because L.B. was physically removed from her home
and from her parents for a period of almost 18
hours, which included an overnight stay in a pre-
arranged shelter home."); Croft, 103 F.3d at 1125("The due process clause of the Fourteenth
Amendment prohibits the government from
interfering in the familial relationship unless
the government adheres to the requirements of
procedural and substantive due process.").
However, like Fourth Amendment rights, the
constitutional right to familial integrity is not
absolute. See Weller v. Department of Soc. Serv.,
901 F.2d 387, 392 (4th Cir. 1990) ("Substantive
due process does not categorically bar the
government from altering parental custody
rights."). "Indeed, this liberty interest in
familial integrity is limited by the compelling
governmental interest in the protection of
children particularly where the children need to
be protected from their own parents." Croft, 103
F.3d at 1125. Thus, a balance must be reached
between the fundamental right to the family unit
and the state’s interest in protecting children
from abuse, especially in cases where children
are removed from their homes. Miller v. City of
Philadelphia, 174 F.3d 368, 373 (3d Cir. 1999)
(the fundamental interest in the familial
relationship must be balanced against the state’s
interest in protecting children suspected of
being abused). The balance here, however, is no
different than that developed in the Fourth
Amendment context. Darryl H. v. Coler, 801 F.2d
893, 901 n.7 (7th Cir. 1986). See also, Wallis v.
Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)
("the same legal standard applies in evaluating
Fourth and Fourteenth Amendment claims for the
removal of children"). In balancing these
competing interests, courts have recognized that
a state has no interest in protecting children
from their parents unless it has some definite
and articulable evidence giving rise to a
reasonable suspicion that a child has been abused
or is in imminent danger of abuse. Croft, 103
F.3d at 1126. But in this case and at this stage,
we lack sufficient factual details from which we
can decide whether the government was justified
in interfering with C.A.’s familial relations.
Therefore, for the same reasons that C.A.’s
Fourth Amendment claim survives, his substantive
due process claim covering the approximately
four-month time period during which C.A. was
separated from his parents, does as well.
At this point, we again must consider which
defendants are subject to suit for the alleged
violation. We need not dwell on each individual
defendant’s involvement, however, because, as
detailed above, C.A. alleged that the defendants
conspired to violate his constitutional rights--
including his right to familial relations--and he
presented sufficient facts to support a
reasonable inference that each defendant (other
than Hansen) joined the conspiracy, and thus was
responsible for causing the alleged substantive
due process violation. For the reasons discussed
above in the context of the Fourth Amendment
claim, Judge Gende is entitled to absolute
immunity.
3. Procedural Due Process
C.A. also alleges a procedural due process
claim, asserting that the government infringed on
his liberty interest in familial relations
without a pre-deprivation hearing, and that
following his removal, the post-deprivation
hearings lacked a semblance of due process. In
contrast to substantive due process claims, "[i]n
procedural due process claims, the deprivation by
state action of a constitutionally protected
interest in ’life, liberty, or property’ is not
in itself unconstitutional; what is
unconstitutional is the deprivation of such an
interest without due process of law."/16 Doe by
Nelson v. Milwaukee County, 903 F.2d 499, 502
(7th Cir. 1990). Thus, a procedural due process
claim involves a two-part analysis: First, we
determine whether the defendants deprived the
plaintiff of a protected liberty or property
interest, and if so, then we assess what process
was due. Hamlin v. Vaudenberg, 95 F.3d 580, 584
(7th Cir. 1996).
In this case, C.A. alleged a liberty interest in
his familial relations. This is a protected
liberty interest. Santosky, 455 U.S. at 753;
Stanley v. Illinois, 405 U.S. 645, 651-52 (1972).
See also, Doe, 903 F.2d at 504 n.9. Thus, we must
consider what process was due. Hamlin, 95 F.3d at
583. The Supreme Court has said that parental
rights cannot be denied without an "opportunity
for them to be heard at a meaningful time and in
a meaningful manner." Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (internal quotations
omitted). Similarly, a child’s right to be
nurtured by his parents cannot be denied without
an opportunity to be heard in a meaningful way.
What exactly this means is less clear, as the
amount of process due varies with the particular
situation--it is a "flexible" concept. Id. at
334.
However, no matter how much process is required,
at a minimum it requires that government
officials not misrepresent the facts in order to
obtain the removal of a child from his parents.
Malik v. Arapahoe County Dept. of Social Serv.,
191 F.3d 1306, 1315 (10th Cir. 1999) ("An ex
parte hearing based on misrepresentation and
omission does not constitute notice and an
opportunity to be heard."). Minimally, it also
means that governmental officials will not remove
a child from his home without an investigation
and pre-deprivation hearing resulting in a court
order of removal, absent exigent circumstances.
Hollingsworth v. Hill, 110 F.3d 733, 739 (10th
Cir. 1997) ("Removal of children from the custody
of their parents requires predeprivation notice
and a hearing except for extraordinary situations
where some valid governmental interest is at
stake that justified postponing the hearing until
after the event."); Malik, 191 F.3d at 1315 (a
parent has a liberty interest in familial
association and privacy that--absent
extraordinary circumstances--cannot be violated
without adequate pre-deprivation procedures). Cf.
Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.
1983) ("When a child’s safety is threatened, that
is justification enough for action first and
hearing afterward."); Jordan by Jordan v.
Jackson, 15 F.3d 333, 346 (4th Cir. 1994)
("[O]nly where a child’s life is in imminent
danger or where there is immediate danger of
severe or irreparable injury to the child’s
health (and prior judicial authorization is not
immediately obtainable) may an official summarily
assume custody of a child from his parents.").
Because C.A. claims that he was removed based on
knowingly false statements of child neglect, and
that the defendants removed him from his home
without an investigation, a pre-deprivation
hearing, or exigent circumstances, he has stated
a procedural due process claim as well.
Perhaps the facts as developed on remand will
demonstrate that a pre-deprivation hearing was
not constitutionally required because emergency
action was required to avert imminent harm to
C.A. Donald v. Polk County, 836 F.2d 376, 380
(7th Cir. 1988) ("In an emergency situation the
government may take away liberty with post-
deprivation hearing."). Nevertheless, "the
constitutional requirements of notice and an
opportunity to be heard are not eliminated, but
merely postponed." Weller, 901 F.2d at 393(internal quotations omitted). Thus, due process
guarantees that the post-deprivation judicial
review of a child’s removal be prompt and fair.
See, e.g., Campbell v. Burt, 141 F.3d 927, 929
(9th Cir. 1998) (procedural due process
guarantees prompt and adequate post-deprivation
judicial review in child custody case); Jordan by
Jordan, 15 F.3d at 343 ("[I]t is well-settled
that the requirements of process may be delayed
where emergency action is necessary to avert
imminent harm to a child provided that adequate
post-deprivation process to ratify the emergency
action is promptly accorded.").
In this case, C.A. presents several facts
calling into question the constitutional adequacy
of the post-deprivation hearing: He contends that
the defendants filed or conspired to file false
statements with the court. He also contends that
the social study prepared concerning C.A. and his
sister was not provided to his parents prior to
the custody hearing, and that the court relied in
part on this study to order him a ward of the
state; he asserts that the study included false
information. Together, these allegations are
sufficient to state a procedural due process
claim based on the post-deprivation process
afforded C.A. See, e.g., Morrison v. Jones, 607
F.2d 1269, 1276 (9th Cir. 1979) (dismissal of
procedural due process claim improper where
mother alleged child was removed without adequate
post-deprivation hearing)./17 Cf., Schacht v.
Wisconsin Dept. of Corrections, 175 F.3d 497, 503
(7th Cir. 1999) ("We agree that sham procedures
do not satisfy due process and that, for purposes
of something like Rule 12(b)(6), [plaintiff]
stated a claim."). Moreover, because of the
alleged constitutional defects of the post-
deprivation hearing, at this stage we cannot
conclude that the post-deprivation hearings
eliminated any procedural due process claim based
on C.A.’s pre-deprivation removal. Compare with
Lossman v. Pekarske, 707 F.2d 288 (7th Cir.
1983), and Donald v. Polk County, 836 F.2d 376,
380 (7th Cir. 1988) (holding that post-
deprivation hearing establishing probable cause
of abuse prevented due process claim for lack of
pre-deprivation hearing).
Again the question remains as to which
defendants are liable for any procedural due
process violation. The defendants who allegedly
made the false statements, Deputy Sheriff James
Brokaw, Weir Brokaw and Karen Weaver, are
appropriate defendants. C.A. alleged that the
other defendants conspired with those state
actors (and except as to Probation Officer
Hansen, gave sufficient details of their role in
the conspiracy to create liability), and thus,
the remaining defendants (other than Probation
Officer Hansen, and Judge Gende--who is entitled
to absolute judicial immunity) are likewise
appropriate defendants for this claim as well.
B. Qualified Immunity
Next we consider whether the individual
defendants are entitled to qualified
immunity./18 Qualified immunity protects
government officials from individual liability
under Section 1983 for actions taken while
performing discretionary functions, unless their
conduct violates clearly established statutory or
constitutional rights of which a reasonable
person would have known. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Thus, before liability
will attach, "[t]he contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing violates
that right." Anderson v. Creighton, 483 U.S. 635,
640 (1987).
The defendants argue that it was not clearly
established in June 1983 that their actions
violated C.A.’s constitutional rights, noting
that C.A. failed to cite to closely analogous
cases clearly establishing his constitutional
rights. However, a plaintiff need not always
identify a closely analogous case; rather, he can
establish a clearly established constitutional
right by showing that the violation was so
obvious that a reasonable person would have known
of the unconstitutionality of the conduct at
issue. Thus, binding precedent is not necessary
to clearly establish a right. Rakovich v. Wade,
850 F.2d 1180, 1209 (7th Cir. 1988). In fact, in
the most extreme cases, an analogous case might
never arise because "the existence of the right
was so clear, as a matter of the wording of a
constitutional or statutory provision or
decisions in other circuits or in the state
courts, that no one thought it worthwhile to
litigate the issue." Burgess v. Lowery, 201 F.3d
942, 945 (7th Cir. 2000). See, e.g., K.H. Through
Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.
1990) (An easy or obvious case of deprivation
that has no precedent does not mean that
"officials would be immune from damages liability
because no previous case had found liability in
those circumstances.").
As alleged, this case fits that principle to a
T. The defendants’ alleged conduct in this case
is so severe that a reasonable person would have
understood that he was violating C.A.’s
constitutional rights. Specifically, a reasonable
person would have known that it was
unconstitutional to use the government’s power to
cause, or conspire to cause, the unjustified
removal of a six-year-old child from his parents
in order to destroy the family, based simply on
the family’s religious beliefs. Cf. Morris v.
Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) ("It
is beyond purview that any rational teacher could
believe that governmental destruction of a family
based on fabricated evidence is constitutionally
allowed."); id. at 672 (making knowingly false
statements of child neglect violates clearly
established constitutional right to familial
relations); Malik, 191 F.3d at 1316 ("[I]t is
clearly established law that government
official’s procurement through distortion,
misrepresentation and omission of a court order
to seize a child is a violation of the Fourth
Amendment.") (internal quotation omitted).
Moreover, even if the individual defendants did
not know the allegations of neglect were false,
qualified immunity may still not protect them
because, depending on the nature of the claims of
neglect, it may well be that a reasonable law
enforcement official would recognize that C.A.’s
pre-hearing, pre-investigation seizure violated
the Fourth Amendment. See, e.g., Good, 891 F.2d
at 1094-95 (denying defendants’ claim of
qualified immunity because a reasonable person
should have known that warrantless search was
unconstitutional given that allegations of
neglect would not cause a reasonable person to
believe the child was in imminent danger of
serious bodily injury); Franz v. Lytle, 997 F.2d
784, 791-92 (10th Cir. 1993) (no reasonable
officer would believe that he could visually and
physically inspect two-year old child’s vagina
based on one complaint that the child had a
severe diaper rash). Therefore, while the facts
ultimately may not support these claims, at this
stage we must reject the defendants’ qualified
immunity defense.
In closing our discussion of qualified immunity,
we note that several circuit courts have
concluded that because the balance between a
child’s liberty interest in familial relations
and a state’s interest in protecting the child is
nebulous at best, social workers and other state
actors who cause a child’s removal are entitled
to qualified immunity because the alleged
constitutional violation will rarely--if ever--be
clearly established. See, e.g., Kiser v. Garrett,
67 F.3d 1166, 1169-74 (5th Cir. 1995); Hodorowski
v. Ray, 844 F.2d 1210, 1216-17 (5th Cir. 1988);
Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d
Cir. 1999); Doe v. State of Louisiana, 2 F.3d
1412, 1416-21 (5th Cir. 1993); Frazier v. Bailey,
957 F.2d 920, 929-31 (1st Cir. 1992). While we
agree that that is generally the case, see e.g.,
Landstrom v. Illinois Dept. of Children and
Family Serv., 892 F.2d 670, 674-78 (7th Cir.
1990); Darryl H. v. Coler, 801 F.2d 893, 907-08
(7th Cir. 1986), as noted above, some
governmental actions are so clearly beyond the
pale that a reasonable person should have known
of their unconstitutionality even without a
closely analogous case. Thus,
[c]ases claiming governmental interference with
the right of family integrity are properly
analyzed by placing them, on a case by case
basis, along a continuum between the state’s
clear interest in protecting children and a
family’s clear interest in privacy. When the
facts of a case place it in the center of the
continuum where the two interests overlap and
create a tension, the right to family integrity
may properly be characterized as nebulous, and
thus a defendant may claim the protection of
qualified immunity. However, when the facts of a
case place it squarely on the end of the
continuum where the state’s interest is
negligible and where the family privacy right is
well developed in jurisprudence from this circuit
and the Supreme Court, a defendant’s defense of
qualified immunity, based on a claim that the
right to family integrity was not clearly
established, will fail.
Morris, 181 F.3d at 671.
Here we do not know enough facts to determine
where along the continuum this case falls. And
given the role of specific facts, "[i]t is
impossible to know which clearly established
rules of law to consult unless you know what is
going on." Elliott v. Thomas, 937 F.2d 338, 342
(7th Cir. 1991). Accordingly, at this time, we
cannot conclude that the individual defendants
are entitled to qualified immunity because the
facts once uncovered may turn out to be so severe
and obviously wrong that the defendants should
have known they were violating C.A.’s
constitutional rights. See, e.g., Good, 891 F.2d
1087.
C. Section 1985(3)
C.A. also seeks recovery under Section
1985(3)./19 Section 1985(3) provides in
relevant part: "If two or more persons in any
state or Territory conspire . . . for the purpose
of depriving either directly or indirectly, any
person or class of persons of the equal
protection of the laws . . . the party so injured
or deprived may have an action for the recovery
of damages occasioned by such injury or
deprivation, against any one or more of the
conspirators." 42 U.S.C. sec. 1985(3). "A
plaintiff raising a claim under sec. 1985(3) must
allege (1) the existence of a conspiracy, (2) a
purpose of depriving a person or class of persons
of equal protection of the laws, (3) an act in
furtherance of the alleged conspiracy, and (4) an
injury to person or property or a deprivation of
a right or privilege granted to U.S. citizens."
Majeske v. Fraternal Order of Police, Local Lodge
No. 7, 94 F.3d 307, 311 (7th Cir. 1996).
To establish that the purpose of the conspiracy
is to "deprive a person or class of persons of
equal protection of the laws," the plaintiff must
allege "some racial, or perhaps otherwise class-
based invidiously discriminatory animus behind
the conspirators’ action." Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). This court
has clarified that otherwise "class-based
invidiously discriminatory animus" includes
"conspiracies to discriminate against persons
based on sex, religion, ethnicity or political
loyalty." Volk v. Coler, 845 F.2d 1422, 1434 (7th
Cir. 1988).
C.A. alleged sufficient facts to support a claim
under Section 1985(3): He alleged a conspiracy
(and as discussed in the context of Section 1983,
he did so with sufficient factual detail), and
several acts in furtherance of the alleged
conspiracy. He also alleged that the conspirators
had an invidious animus--religion. As a result of
this conspiracy, C.A. alleged that he was injured
in that his Fourth Amendment and Due Process
rights were violated. While Due Process rights
and Fourth Amendment rights are not protected
against private conspiracies under Section
1985(3),/20 in this case C.A. alleged that the
conspiracy included state actors and that the
alleged conspiracy was aimed at influencing state
activity--the court proceeding in his custody
case. Therefore, C.A. has sufficiently alleged "a
deprivation of a right or privilege granted to
U.S. citizens." See, e.g., United Brotherhood of
Carpenters and Joiners of America, Local 610,
AFL-CIO v. Scott, 463 U.S. 825, 830 (1983).
Accordingly, C.A.’s allegations are sufficient to
state a claim under Section 1985(3) as well.
D. Disqualification
One issue remains. Before the district court,
C.A. moved to disqualify Judge McDade arguing
that he has demonstrated bias and created an
appearance of partiality through his handling of
C.A.’s complaint. Specifically, C.A. complains
that Judge McDade demonstrated an alliance with
the defendants by issuing a Rule to Show Cause as
to why C.A.’s complaint was not barred by the
statute of limitations. C.A. asserts that because
the statute of limitations is a waivable
affirmative defense, the district court could not
raise it sua sponte. C.A. also contends that the
district court demonstrated partiality by sua
sponte waiving the local rule requiring the
defendants to file a memorandum of law in
response to the motion to dismiss; by failing to
give him the benefit of Rule 6(e) which allowed
him three additional days to respond to the
defendants’ motion to dismiss because it was
served by mail; by sua sponte dismissing the
complaint against Sheriff Thirtyacre; and by
refusing to accept as true his allegations that
Judge Susan Gende acted in a dual role of
investigator and judge. C.A. argues that
cumulatively these rulings indicate that Judge
McDade assumed an advocacy role on behalf of the
defendants requiring his disqualification under
28 U.S.C. sec. 455(a) and (b)(1), and 28 U.S.C.
sec. 144.
Section 455(a) requires a federal judge to
"disqualify himself in any proceeding in which
his impartiality might reasonably be questioned,"
and section 455(b)(1) provides that a judge shall
disqualify himself if he "has a personal bias or
prejudice concerning a party." C.A. seeks Judge
McDade’s recusal under both sections. However, we
have held that "the denial of a request that the
judge recuse himself under section 455(a) must be
appealed immediately by application for writ of
mandamus, or it is waived." United States v.
Horton, 98 F.3d 313, 316 (7th Cir. 1996). Because
C.A. did not petition for mandamus, "this Court
cannot review [the district court’s] disposition
of the Section 455(a) motion." Durhan v.
Neopolitan, 875 F.2d 91, 96-97 (7th Cir. 1989).
"It is less clear under our case law whether we
may review a refusal to recuse under section
455(b) when the argument is raised for the first
time on appeal." United States v. Smith, 210 F.3d
760, 764 (7th Cir. 2000).We need not decide
whether a claim for recusal under Section 455(b)
can be raised on direct appeal rather than
mandamus, however, because we conclude that under
Section 455(b), Judge McDade was not required to
recuse.
"In determining whether a judge must disqualify
himself under 28 U.S.C. sec. 455(b)(1), the
question is whether a reasonable person would be
convinced the judge was biased." Hook v. McDade,
89 F.3d 350, 355 (7th Cir. 1996) (internal
quotation omitted). Recusal under Section 455
(b)(1) "is required only if actual bias or
prejudice is proved by compelling evidence." Id.Moreover, as the Supreme Court has made clear,
"judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion."
Liteky v. United States, 510 U.S. 540, 555
(1994). Against this backdrop, we must conclude
that a reasonable person would not reasonably
believe that the district court was biased or
prejudiced against C.A. because the only evidence
of bias C.A. presents consists of judicial
rulings. Moreover, those rulings do not
demonstrate evidence of personal animosity or
malice, which is necessary to succeed on a
Section 455(b)(1) motion. Hook, 89 F.3d at 355("bias or prejudice from which the law of recusal
protects a party must be grounded in some
personal animus or malice that the judge harbors
against him, . . ."). Therefore, the district
court did not err in refusing to recuse under
Section 455(b)(1).
C.A. also asserts that the district court was
required to recuse under 28 U.S.C. sec. 144 which
provides in pertinent part:
Whenever a party to any proceeding in a district
court makes and files a timely and sufficient
affidavit that the judge before whom the matter
is pending has a personal bias or prejudice
either against him or in favor of any adverse
party, such judge shall proceed no further
therein, but another judge shall be assigned to
hear such proceeding.
28 U.S.C. sec. 144.
Because the phrase "personal bias or prejudice"
found in Section 144 mirrors the language of
Section 455(b), our analysis under Section 144 is
identical. United States v. Balistrieri, 779 F.2d
1191, 1202 (7th Cir. 1985) ("[W]e shall view
judicial interpretations of ’personal bias or
prejudice’ under sec. 144 as equally applicable
to sec. 455(b)(1)."). Therefore, for the same
reasons that recusal was not required under
Section 455(a), it was not required under Section
144./21
III. Conclusion
Dismissal pursuant to 12(b)(6) is appropriate
only if the plaintiff could not possibly succeed
under any set of facts. Reading the facts in the
light most favorable to C.A., he may be able to
succeed on his Fourth Amendment and Due Process
claims under both Sections 1983 and 1985 against
all of the defendants except Probation Officer
Hansen and Judge Gende. Therefore, we reverse the
district court, except as to these defendants.
Having dismissed the federal claims, the district
court also dismissed C.A.’s supplemental state
law claims of intentional infliction of emotional
distress and false imprisonment. Because the
federal claims were improperly dismissed, we also
reverse the dismissal of the supplemental claims.
This case is REMANDED for further consideration
consistent with this opinion.
/1 While the complaint does not explicitly state
that these defendants knew the allegations of
child neglect were false, that is the reasonable
implication of "baseless," and the parties on
appeal seem to assume that is what C.A. meant
when he alleged in his pro se complaint
"baseless." Therefore, for purposes of 12(b)(6),
we will analyze the constitutional claims
assuming that Weir, James and Karen knew the
allegations of child neglect were false.
/2 C.A. does not appeal the dismissal of his claims
against the State of Illinois or defendant Steve
Dickens.
/3 The Attorney General maintains that probation
officers are entitled to Eleventh Amendment
immunity because they are state officers, as
demonstrated by the fact that they serve in the
state court system and are considered judicial
employees in Illinois. 730 ILCS 110/9b(3) (1996).
Of course, the question is whether, in this case,
the probation officers were acting on behalf of
the state or a local subdivision of the state.
See, e.g., McMillian v. Monroe County, Ala., 520
U.S. 781 (1997) (establishing an analytical
framework for determining whether a state actor
is acting on behalf of the state, and thus
entitled to Eleventh Amendment immunity, or a
county or local municipality, and thus not so
entitled). But we need not decide that issue
because, as noted above, C.A. asserts that he is
suing those defendants in their individual
capacities, and thus the Eleventh Amendment is
not implicated.
/4 In denying C.A.’s motion to amend his complaint,
the district court stated that it is not "fair to
characterize the plaintiff’s removal from his
family home as an ’arrest.’" However, the Fourth
Amendment extends beyond criminal "arrests" to
civil "seizures," Wooley v. City of Baton Rouge,
211 F.3d 913, 925 (5th Cir. 2000), including a
child’s removal by social workers. Id. See also,
Tenenbaum v. Williams, 193 F.3d 581, 601-06 (2d
Cir. 1999) (analyzing seizure of a child by the
State during an abuse investigation under the
Fourth Amendment); J.B. v. Washington County, 127
F.3d 919, 928-31 (10th Cir. 1997) (county
officials’ temporary removal of child is a
seizure implicating the Fourth Amendment); Wallis
v. Spencer, 202 F.3d 1126, 1137 n. 8 (9th Cir.
2000) (removal of children should be assessed
under the Fourth Amendment). Cf. Darryl H. v.
Coler, 801 F.2d 893, 900 (7th Cir. 1986)
(analyzing visual inspection of child in neglect
investigation under reasonableness standard of
the Fourth Amendment).
/5 In his brief on appeal, C.A. also argues that
because the standards for seizing a child under
the Fourth Amendment differ from those applicable
to an arrest of an adult, his seizure violates
the Equal Protection Clause of the Constitution.
The Fourth Amendment, however, requires a seizure
to be "reasonable" and "reasonableness" depends
upon the surrounding circumstances, including
whether the seizure is of a child for protective
purposes. The fact that the standard may differ
does not implicate the Equal Protection Clause.
/6 C.A. did not allege in his pro se amended
complaint that Weakley removed him from his home,
but he presents this additional fact in his brief
on appeal. He also sought leave to amend his
complaint against Weakley to correct this
oversight, but the district court denied his
motion. Because this fact is consistent with the
other allegations against Weakley, and for the
sake of judicial economy, we will consider it on
appeal, rather than reversing the district
court’s decision denying C.A. leave to amend his
complaint--a decision premised on the district
court’s incorrect belief that the Fourth
Amendment did not apply to C.A.’s seizure.
/7 It is unclear whether C.A. intended to sue
Weakley and Brokaw in their individual or
official capacities. However, in their motions to
dismiss, Weakley and Brokaw both seem to have
treated C.A.’s pro se complaint as alleging
individual capacity claims. Additionally, C.A.’s
pro se complaint indicates that he intended to
sue Weakley and Brokaw in their individual
capacities because the complaint does not allege
they were acting in their "official capacity," as
it does in the count against Sheriff Thirtyacre.
Therefore, for purposes of appeal, we will
consider C.A.’s claims against Weakley and Brokaw
as individual capacity claims. See, e.g., Stevens
v. Umsted, 131 F.3d 697, 707 (7th Cir. 1997)
(while a suit against a government official will
be assumed an official capacity suit, that
assumption may be overcome if the parties treat
it as an individual capacity suit).
/8 While Sheriff Thirtyacre was served, he did not
respond to the lawsuit. It is unclear from the
record whether Thirtyacre is still the Sheriff of
Mercer County, and whether or not service of
Thirtyacre sufficed for purposes of the Mercer
County Sheriff’s Office. We leave this issue for
remand.
/9 The Mercer County Sheriff’s Department never
responded to C.A.’s complaint, see supra at 14-15
n.7, and while Mercer County originally filed a
brief on appeal, it was stricken following our
appointment of counsel to represent C.A. and the
filing of a new brief on C.A.’s behalf, and
Mercer County never filed an amended brief.
Therefore, we lack the benefit of its input.
/10 On appeal, Ingersoll does not argue that she is
entitled to absolute immunity. Nor would absolute
immunity protect Ingersoll for her role in
initiating C.A.’s removal, or in gathering
evidence. See Millspaugh v. County Dept. of Pub.
Welfare of Wabash County, 937 F.2d 1172, 1175
(7th Cir. 1991) (social worker is not entitled to
absolute immunity for actions taken in applying
for a court order to remove children or for steps
taken to gather evidence). However, absolute
immunity would protect Ingersoll for her
involvement in the judicial process. Id. See
also, K.H. through Murphy v. Morgan, 914 F.2d
846, 853 (7th Cir. 1990).
/11 In his complaint, C.A. alleged that Ingersoll,
Bartelt, Thirtyacre, and Gende attended the
investigatory conference. In his brief on appeal,
C.A. states that Hansen was also present.
/12 In his complaint, C.A. asserted that the
defendants violated his First Amendment rights,
probably because of the defendants’ alleged anti-
religious motivation for seeking his removal.
However, on appeal, C.A. does not argues this
theory, so we need not consider whether
defendants’ alleged motive creates a First
Amendment claim as well.
/13 While we have held that a post-deprivation
hearing which results in a judicial determination
that a child’s removal is justified would prevent
a due process claim based on the lack of a pre-
deprivation hearing, see, e.g., Lossman v.
Pekarske, 707 F.2d 288 (7th Cir. 1983); Donald v.
Polk County, 836 F.2d 376, 380 (7th Cir. 1988),
those cases are distinguishable because they did
not involve allegations that the defendants
intentionally presented the court with false
claims of neglect. Compare with, Morris v.
Dearborne, 181 F.3d 657, 673 (5th Cir. 1999).
/14 This assumes of course that C.A.’s four-month
"separation period" is not a "seizure" within the
meaning of the Fourth Amendment. In the criminal
context, this court has rejected the concept of a
"continuing seizure," holding instead that
following a Gerstein probable cause hearing, the
Fourth Amendment no longer applies, but that
substantive due process addresses the post-
probable cause detention. Wilkins v. May, 872
F.2d 190, 194 (7th Cir. 1989). See, e.g., Reed v.
City of Chicago, 77 F.3d 1049, 1051-52 (7th Cir.
1996) (summarizing the constitutional approach
applied in the sequence from arrest to post-
conviction confinement). But in Albright v.
Oliver, 510 U.S. 266 (1994), the Supreme Court
held that an action for malicious prosecution
cannot be based on substantive due process. This
has led us to question the continued validity of
Wilkins. Reed, 77 F.3d 1052 (noting that the
analysis enunciated in Wilkins may not have
survived Albright). However, we need not revisit
Wilkins today because C.A. has a substantive due
process right beyond that rejected in Albright--
namely the right to familial relations--and
whether we analyze C.A.’s claim under the Fourth
Amendment or substantive due process, the result
is the same. See infra at 27-28.
/15 But see Lossman v. Pekarske, 707 F.2d 288, 290
(7th Cir. 1983) (questioning whether a child has
a liberty interest given that a child is always
subject to someone’s custody).
/16 It is possible to state both a procedural and
substantive due process claim. Cf. Owen v. Lash,
682 F.2d 648, 652 n.4 (7th Cir. 1982) (holding
that "[a] single act of depriving a citizen of
his right to correspond may simultaneously
constitute a violation of substantive
constitutional right and of the right to
procedural due process"). Therefore, the
defendants’ actions toward C.A. may
simultaneously constitute a violation of his
substantive due process rights (if his removal
was not justified by a sufficiently compelling
governmental interest) and his right to
procedural due process (if the manner in which
the deprivation occurred violates procedural
norms). See, e.g., Croft, 103 F.3d at 1125 ("The
Due Process Clause of the Fourteenth Amendment
prohibits the government from interfering in
familial relationships unless the government
adheres to the requisites of procedural and
substantive due process.").
/17 C.A. also contends that his procedural due
process rights were violated because he was
questioned without the benefit of a guardian ad
litem or an attorney. At this stage, and based on
the sparse factual allegations, we cannot
evaluate the constitutional impact of any
questioning done outside the presence of his
parents and without the benefit of someone
representing C.A.’s interests. This issue should
be considered on remand following further
development of the factual record.
/18 Qualified immunity is a defense available only to
individual defendants; it does not apply to the
Mercer County Sheriff’s Department or Mercer
County. See, e.g., Tenenbaum, 193 F.3d at 597("While the individual defendants are entitled to
qualified immunity, the City is not.") (citing
Owen v. City of Independence, Mo., 445 U.S. 622,
657 (1980)).
/19 In his pro se complaint, C.A. cited only to
Section 1983, but the district court considered
his complaint under Sections 1983 and 1985(3),
and on appeal C.A. contends that his suit is
brought under both sections. As we have explained
before, notice pleading requires the plaintiff to
allege just enough to put the defendant on notice
of facts providing a right to recovery and not to
cite to the appropriate statute creating that
right. Bartholet v. Reishauer A.G. (Zurich), 953
F.2d 1073, 1078 (7th Cir. 1992) ("Instead of
asking whether the complaint points to the
appropriate statute, a court should ask whether
relief is possible under any set of facts that
could be established consistent with the
allegations."). Therefore, even though C.A. did
not cite Section 1985(3), we must nonetheless
consider whether C.A. alleged facts sufficient to
sustain a claim under Section 1985(3).
/20 While Section 1985(3) extends to private
conspiracies, for a private conspiracy to be
actionable it must affect the "Thirteenth
Amendment right to be free from involuntary
servitude, and, in the same Thirteenth Amendment
context, the right of interstate travel." Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263,
278 (1993).
/21 C.A. requests that this case be reassigned on
remand. We see no reason to do so.