126 F.3d 895 (7th Cir. 1997), 96-1842, Hutchinson on Behalf of Baker v. Spink

Docket Nº:96-1842.
Citation:126 F.3d 895
Party Name:Linda HUTCHINSON, on behalf of Andrew Michael BAKER and in her own right, Twyla Jane Baker, a minor, Amy Lynn Baker, a minor, Robert Raymond Hutchinson, a minor, and Katie Ann Hutchinson, a minor, Plaintiffs-Appellants, v. David SPINK, Karen Spink, Grinnell Mutual Reinsurance Company, Debbie Donald, Steven Obershaw, Jon Angeli, and Kill Brothers Co
Case Date:September 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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126 F.3d 895 (7th Cir. 1997)

Linda HUTCHINSON, on behalf of Andrew Michael BAKER and in

her own right, Twyla Jane Baker, a minor, Amy Lynn Baker, a

minor, Robert Raymond Hutchinson, a minor, and Katie Ann

Hutchinson, a minor, Plaintiffs-Appellants,


David SPINK, Karen Spink, Grinnell Mutual Reinsurance

Company, Debbie Donald, Steven Obershaw, Jon

Angeli, and Kill Brothers Company,


No. 96-1842.

United States Court of Appeals, Seventh Circuit

September 23, 1997

Argued Feb. 10, 1997.

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Adrienne R. Borisy (argued), Borisy & Gross, Platteville, WI, for Plaintiffs-Appellants.

Todd L. Stevenson, Stephen C. Krumpe, O'Connor & Thomas, Dubuque, IA, for Defendants-Appellees David and Karen Spink.

Todd L. Stevenson (argued), Stephen C. Krumpe, O'Connor & Thomas, Dubuque, IA, for Defendant-Appellee Grinnell Mut. Reinsurance Co.

Edward M. Kay, James T. Ferrini, Susan Condon (argued), Clausen Miller P.C., Chicago, IL, Thomas R. Challos, Jr., Charles Stone, Cohen, Weisenburger & Challos, Chicago, IL, for Defendants-Appellees Debbie Donald, Steven Overshaw and Jon Angeli.

Bruce A. Schultz, Kirtt Godager (argued), Coyne, Niess, Schultz, Becker & Bauer, Madison, WI, for Defendant-Appellee Kill Brothers Co.

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Andrew Michael Baker was a disabled child who was killed in a horrifying way while he was under the care of the foster parents to whom he was entrusted by representatives of Wisconsin's Grant County Department of Social Services. His mother, Linda Hutchinson, along with her co-plaintiffs, tried to

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bring this action in federal court as indigents, under 28 U.S.C. § 1915. The district court rejected her motion for leave to proceed in forma pauperis (IFP), not because it found fault with her allegations of indigence (which it accepted), but because it found that her complaint failed to state any legally cognizable federal claim. It dismissed the proposed state law claims without prejudice, because complete diversity was lacking and the case was not an appropriate candidate for supplemental jurisdiction.

Although we agree that many of the counts in Hutchinson's complaint would probably fall under Rule 12(b)(6), at least one probably survives. Furthermore, because Hutchinson's complaint was filed before the effective date of the amendments to § 1915 contained in the Prison Litigation Reform Act (PLRA), some of which apply to nonprisoner litigation like this, the legal standard by which the complaint should have been tested is the one found in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), and Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). We therefore reverse and remand for further proceedings.


From the proposed complaint, one learns that the unhappy events underlying this suit centered around the care and placement of Hutchinson's son Andrew. As of early January 1993, Andrew (then twelve) was living with his mother. He suffered from hyperactivity and attention deficit disorder, for which he received daily doses of Ritalin and Imipramine. One night, Andrew became uncontrollable and a neighbor called the police. The responding police officer in turn contacted Debbie Donald, the Grant County social worker on call that night, who instructed him to remove Andrew from the home. Hutchinson acquiesced, but she asked that Andrew be taken to Parkway Hospital, in Madison, Wisconsin, because of his disabilities. At the time Andrew left, she understood that this was where he was going.

In fact, Donald and her direct supervisor, Steven Obershaw, decided that Andrew was not eligible for hospitalization and would not be until he displayed uncontrollable or dangerous behavior while in foster care. Instead, on January 5, 1993, they placed him in the foster home operated by David and Karen Spink. As soon as Hutchinson learned of this, she asked the Grant County authorities to change his placement, because the Spinks used foster boys for farm work, and she believed it would be dangerous for Andrew to be working either near farm equipment or on a farm, in light of his disabilities. Hutchinson specifically requested that Andrew be placed with Clyde Halverson, who was his Boy Scout leader and who was interested in serving as a foster parent. The Grant County authorities rejected her suggestion on the astonishing ground that the Halversons are Mormon.

Andrew, meanwhile, was still at the Spinks' farm, and was (as his mother had feared) engaged in farm work. On February 2, 1993, he and another boy were working with an operating Killsbro Gravity Box, manufactured by appellee Kill Brothers, unloading shelled corn. David Spink instructed Andrew to stand inside the Gravity Box and to push the corn down, so that it would move into an auger and blower, and then into a grain bin. While inside the machine, Andrew fell into the corn. The other boy shouted at Spink to stop the tractor, but nothing happened until it was too late. Inhaling some 20 pounds of corn into his lungs and body, Andrew died by suffocation. Spink allowed him to flow through the chute so that he could remove him from the corn. Spink did not apply proper emergency methods once he had retrieved Andrew, nor did he seek emergency medical help in time to save Andrew's life.


Hutchinson filed her proposed complaint with the district court on February 1, 1996, seeking IFP status under 28 U.S.C. § 1915. She sued both on behalf of Andrew and in her own right, and she included Andrew's half-siblings Twyla Jane Baker, Amy Lynn Baker, Katie Ann Hutchinson, and Robert Raymond Hutchinson as co-petitioners. At that time, as we explain in greater detail below, no estate had been opened under Wisconsin law on Andrew's behalf. The proposed

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defendants were David and Karen Spink, Grinnell Mutual Reinsurance Company (the Spinks' insurer), Debbie Donald, Steven Obershaw, and Jon Angeli (all of Grant County), and Kill Brothers. Count I of the complaint alleged a right to relief under 42 U.S.C. § 1983 against the County defendants and the Spinks, with specific allegations charging violations of Andrew's rights under the Eighth Amendment, the substantive due process component of the Fourteenth Amendment, the Equal Protection clause of the Fourteenth Amendment, and the Thirteenth Amendment. Count II claimed that the County defendants had violated Andrew's rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. § 5106(a)-(c), and the rights of both Andrew and his mother under numerous amendments to the U.S. Constitution. Count III raised state tort claims against Kill Brothers.

The district court, as noted above, concluded from the affidavit of indigence that the petitioners were unable to prepay the fees and costs of instituting their lawsuit. With respect to Counts I and II, the court then denied leave to proceed IFP for everyone except Linda Hutchinson, proceeding on behalf of Andrew's estate. Evaluating the claims under Counts I and II as one would approach a motion under Rule 12(b)(6), the court concluded that none had merit. For Count III, it dismissed because (1) citizens of Wisconsin appeared both as plaintiffs and defendants, which defeats jurisdiction under 28 U.S.C. § 1332, and (2) the tort claims against Kill Brothers did not arise from the same operative facts as the remainder of the complaint, which makes supplemental jurisdiction under 28 U.S.C. § 1367 unavailable.


The first issue we consider is whether we actually have a proper plaintiff before us. As the district court correctly recognized, the only possible party entitled to raise the claims in the proposed complaint would be Andrew's estate, through a proper representative. Wisconsin law governs not only Count III for this purpose but also Counts I and II. The question whether a § 1983 claim survives the tort victim's death (like many background questions in federal statutes) follows state law. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Spence v. Staras, 507 F.2d 554, 557 (7th Cir.1974) ("In a federal civil rights action where the person who has been deprived of his rights has died, the action survives for the benefit of the estate if the applicable state law creates such a survival action."). Similarly, whether by incorporation through federal common law or more directly (a question we need not resolve here), state law governs the survival of statutory civil rights actions like the ADA claim asserted in Count II of the complaint. See Slade v. U.S. Postal Serv., 952 F.2d 357, 360 (10th Cir.1991) (for Title VII purposes, federal common law incorporates state statute for survival of personal injury actions); Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 875-76 (11th Cir.1986) (declining to decide whether state law or federal common law applies to survival of Title VII action, because result was the same); see also U.S. E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995) (damages under ADA upheld, where employee died while suit was pending). In Wisconsin, a tort action for "injuries to the person" survives the victim's death, see Wis. Stat. Ann. § 895.01(1), and thus the § 1983 and ADA claims would (if otherwise sustainable) survive. But only the decedent's estate is entitled to sue on such a claim in Wisconsin. Wis. Stat. Ann. § 777.01. The problem here was that, as of the time of oral argument, no estate had been opened on Andrew's behalf in a Wisconsin court.

Four days after oral argument, on February 14, 1997, Hutchinson obtained an order from the Grant County Circuit Court appointing her as the special administrator of the Estate of Andrew Michael Baker. Addendum to Supplemental Brief of Appellants at 1....

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