Brunken v. Lance

• Decision Date: 22 August 1986
• Docket Number: No. 85-1854.,85-1854.
• Citation: 807 F.2d 1325
• Parties: Barry Dean BRUNKEN, et al., Plaintiffs-Appellees, v. Carol LANCE and the Illinois Department of Children and Family Services, Defendants-Appellants, and Kendra Sue Brunken, Intervening Defendant.
• Court: U.S. Court of Appeals — Seventh Circuit

807 F.2d 1325

Barry Dean BRUNKEN, et al., Plaintiffs-Appellees, v. Carol LANCE and the Illinois Department of Children and Family Services, Defendants-Appellants, and Kendra Sue Brunken, Intervening Defendant.

No. 85-1854.

United States Court of Appeals, Seventh Circuit.

Argued February 26, 1986.

Decided August 22, 1986.

As Amended September 22, 1986.

Rita M. Novak, Asst. Atty. Gen., Chicago, Ill., for defendants-appellants.

Frank H. Byers, Byers Byers & Greenleaf, Decatur, Ill., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and SARAH EVANS BARKER, District Judge.^*

CUMMINGS, Chief Judge.

This case comes to us on appeal from the district court's award of nominal damages of $1 against defendant Carol Lance ("Lance") and in favor of plaintiff Barry Brunken, and the court's award of injunctive relief against defendant Department of Children and Family Services, State of Illinois ("DCFS") and in favor of plaintiff Garold Brunken. This case raises several important jurisdictional issues concerning federalism, as well as the meaning of "deprivation" under the due process clause of the Fourteenth Amendment. For the reasons set forth below, the decision of the district court is reversed.

I

Kerry Brunken is the daughter of Kendra Brunken and Barry Brunken. In early 1983, which is the time of the events relevant to the instant case, Kerry was three years old and resided with her mother Kendra. Her father Barry had visitation rights pursuant to a 1981 divorce decree. Barry lived near his parents. Garold and Jean Ellen Brunken, and Kerry often visited her paternal grandparents.

In early 1983, Kendra became concerned that Barry might be sexually abusing Kerry during her visits. On January 21, 1983, Kendra called Carol Lance, a social worker employed by DCFS, and expressed this concern. Both Lance and others proceeded to interview Kerry and concluded that Kerry had been sexually abused.

Barry shortly thereafter learned of Kendra's charges. More precisely, on January 28, John House, a DCFS employee, interviewed Barry and informed him of the charges of sexual abuse. That same day Lance spoke to Barry and advised him of the charges; Barry then referred Lance to his attorney. Lance then spoke to Barry's attorney and advised him that she intended to proceed with an action in state court.

On February 10, Lance, on behalf of DCFS, petitioned the Circuit Court of the Fourth Judicial Circuit of Effingham County for an adjudication of wardship for Kerry. A shelter care hearing was scheduled for February 14. Lance claims that the State's Attorney told her that he would give Barry notice of that hearing. This testimony by Lance is uncontroverted. Nevertheless, Barry received no notice of this hearing. At the February 14 hearing the court found probable cause to believe that Kerry had been abused by her father Barry, and that it was urgent for her to be placed in shelter care. The court therefore placed Kerry in the custody of DCFS, with the understanding that she would remain with her mother Kendra. Barry was denied the privilege of unsupervised visits. The court initially set the adjudicatory hearing for March 8. Barry learned of the February 14 shelter care hearing on February 15, when he received a transcript of the hearing.

Barry subsequently filed a motion to set aside the temporary order entered at the shelter care hearing. The case was initially set for hearing on May 25, 1983. At that time Barry filed a motion for mental examinations of Kendra and Kerry, which was granted. The report of those examinations was filed with the court on November 14. Because of the examinations, the adjudicatory hearing was subsequently rescheduled and took place on December 1-2, 1983, and March 22-23, 1984. All parties were present with counsel at these times. On December 1, 1983, counsel for Barry argued to the circuit court his motion to set aside the temporary order. On April 10, 1984, the circuit court issued an opinion finding that Kerry had been sexually abused, and ordering DCFS to conduct an investigation about Kerry, her mother Kendra, and her father Barry and paternal grandparents (if they should request custodial or visitation rights). The court also denied Barry's motion to set aside the temporary order.

On June 28, 1984, the circuit court entered an Order of Adjudication, denying Barry's motion to set aside the temporary order placing Kerry in the custody and guardianship of DCFS, and directed that further studies be made. On October 9, 1984, the court entered a Dispositional Order that placed custody and guardianship of Kerry in her mother Kendra. It also awarded Barry visitation rights, which required Kerry to stay in Garold and Jean Brunken's home during her visits.¹

In the interim, while these proceedings were progressing in state court, Barry and his father Garold Brunken filed suit in federal court on July 20, 1983. In separate counts, Barry and Garold each alleged that Lance and DCFS violated their due process rights by not giving notice to them before taking protective custody of Kerry. They sought damages and "such other and further relief as the Court deems just and appropriate." On June 28, 1984, the district court ruled that Barry had been deprived of due process, and awarded nominal damages of $1 in favor of Barry and against Lance. With respect to Garold and his due process claims, the court held that unless DCFS petitioned the Circuit Court within 30 days, it would be permanently enjoined from interfering with Garold's right to unsupervised visits with his granddaughter.

II

The Eleventh Amendment constitutionally limits the type of suit that a citizen may bring against its own State. At first glance, this is not an obvious result. The Constitution, as part of the federal court's diversity jurisdiction, originally allowed a State to be sued in federal court by a citizen of another State, and the language of the Eleventh Amendment does nothing more than repeal this type of diversity jurisdiction by prohibiting a suit against a State by a citizen of another State. Despite the appealing logic of this view, and its many adherents, see, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 125-26, 104 S.Ct. 900, 921, 79 L.Ed.2d 67 (Brennan, J., dissenting), citing Gibbons, The Eleventh Amendment and State Sovereignty Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889, 1893-1894 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U.Pa.L.Rev. 515, 538-540, and n. 88 (1978), the Supreme Court has consistently interpreted the Eleventh Amendment as also prohibiting a suit against a State by a citizen of that same State, and it is this view which must govern our disposition of the instant case.

The effect of the Eleventh Amendment is in part determined by the nature of the suit brought against the state. One type of suit is a personal-capacity suit against a state official for actions taken by that official under the color of state law. This type of suit seeks to impose personal liability on the state official, and such an official can raise applicable personal immunity defenses. An award of damages in such a suit can be executed only against the official's personal assets. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114. Although the official has the requisite nexus to the state in order for his actions to be labeled state action, the Eleventh Amendment does not affect such a suit.

A second type of suit is an official-capacity suit against a state official for actions taken under the color of state law. This type of suit "is, in all respects other than name, to be treated as a suit against the government entity." Graham, 105 S.Ct. at 3106. Any damage award must be satisfied by looking to the entity itself, rather than the official individually, and the official cannot assert any personal immunity defenses. Id. at 3105-06. This type of suit does implicate the Eleventh Amendment, but its precise impact on the suit depends on the nature of relief sought. If the action is for damages so that payment of a damages award requires payment from the State Treasury to remedy past wrongs, the Eleventh Amendment bars such an action, in the absence of a waiver by the State or a valid override by Congress. Graham, 105 S.Ct. at 3107; Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358. By contrast, under the landmark case of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the Eleventh Amendment does not bar a citizen from seeking injunctive or declaratory relief against a state official "to conform his future conduct to the requirements of federal law." Quern, 440 U.S. at 332, 99 S.Ct. at 1143; see also Graham, 105 S.Ct. at 3107 n. 18. Moreover, monetary relief that is merely "ancillary" to injunctive relief is also not barred by the Eleventh Amendment. Graham, 105 S.Ct. at 3107 n. 19.

A third type of suit is a suit by a citizen directly against an entity of the state, without naming state officials as defendants. In this type of suit, regardless of the relief sought, the Eleventh Amendment bars the suit, unless the state has waived its immunity or Congress has overridden it. Graham, 105 S.Ct. at 3106 n. 14; Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114; Gleason v. Board of Education of the City of Chicago, 792 F.2d 76, 79 (7th Cir.1986). With these principles in mind, the nature of the suits filed in the instant case will be examined.

It is not perfectly clear what types of suits have been brought by Barry and Garold against Lance and DCFS. Paragraph 4 of Count I of the federal Complaint, which represents Barry's suit for relief and also serves as Garold's suit for relief under Count II, states as follows:

4. Each and all of the acts of the Defendants alleged herein were done by Defendants and each of them, not as

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