Doe v. Bobbitt
| Decision Date | 29 July 1987 |
| Docket Number | No. 85 C 7104.,85 C 7104. |
| Citation | 665 F. Supp. 691 |
| Parties | Brenda DOE, in her own proper person and as next best friend of Michelle Doe, Plaintiffs, v. Booker BOBBITT and Gary T. Morgan, individually and as employees of the Illinois Department of Children and Family Services; Unknown Employees of the Department of Children and Family Services; Leo Wiggins and Leonard Goodman, individually and as employees of the Cook County Office of the Guardian Ad Litem; and the County of Cook, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
John P. DeRose, DeRose and Russo, Chicago, Ill., for plaintiffs.
Karen Diamond, Asst. State's Atty. of Cook County, Paula Giroux, Atty. Gen., Chicago, Ill., for defendants.
Brenda Doe says she warned state officials at least twice against placing her 11-year old daughter Michelle in the custody of Michelle's aunt. She told them that members of the aunt's household frequently fought and abused drugs and alcohol, and that one member of the household was under investigation for sexually abusing a child. The officials ignored her pleas and gave the aunt temporary custody of Michelle, who became the victim of repeated sexual abuse while living with her aunt.
Brenda brings this action "in her own proper person and as next best friend of Michelle" under 42 U.S.C. § 1983 and the common law of Illinois. Brenda and Michelle name five defendants: two are employees of the Illinois Department of Children and Family Services ("DCFS") — Booker Bobbitt and Gary Morgan; two are employees of the Cook County Office of the Guardian Ad Litem — Leo Wiggins and Leonard Goodman; and the fifth defendant is the County of Cook. The individual defendants are sued both individually and in their official capacities. All defendants have filed motions to dismiss.
The complaint alleges the following facts. Brenda had a history of alcohol abuse, which at some unspecified time prompted the Juvenile Court of Cook County to place Michelle under the guardianship and protective custody of defendant Gary Morgan, a DCFS employee. On December 16, 1983, Brenda told defendant Booker Bobbitt, a DCFS social worker assigned to Michelle's case, that Michelle would not be safe if the DCFS placed her in the home of Margaret Proctor, the child's aunt. Brenda told Bobbitt that residents of the Proctor home abused drugs and alcohol, and that "physical abuse frequently occurred among family members of the Proctor household."
Two days later Bobbitt went to see Michelle at the Proctor residence — the complaint does not say how long she had been staying there — and spoke briefly with Margaret Proctor, Michelle, and Michelle's six-year old brother. Without further investigation of Brenda's charges, Bobbitt "allowed Margaret Proctor to retain custody of Michelle pending the custody hearing three days later."
The custody hearing took place on December 21, 1983 for the purpose of determining Michelle's temporary placement. Brenda Doe testified "that drugs and alcohol were abused at the Proctor residence, that the family had repeated fights in the presence of the children, and that one of the male residents of the Proctor residence had been accused of having a sexual affair with a young boy, which incident was actually being handled by the Cook County Circuit Court, Juvenile Division." She said she "was willing to agree to the temporary custody of the Department of Children and Family Services as long as the children were placed in a proper foster home other than that of Margaret Proctor."
Bobbitt testified that while he had not conducted a detailed investigation of the Proctor household, it was not his job to do so, and he recommended Michelle's placement with Margaret Proctor. Defendant Leo Wiggins, an employee of the Cook County Office of the Guardian Ad Litem appointed to represent Michelle's interests, showed no more inclination than Bobbitt to follow up Brenda's allegations, and insisted that Michelle be placed with Margaret Proctor. At the conclusion of the custody hearing the court appointed Morgan as Michelle's temporary custodian and ordered "defendants to further investigate the Proctor residence for possible placement there."
After the hearing, and without any further investigation, Michelle "was left in the custody of Margaret Proctor." She subsequently became the victim of repeated sexual abuse by members of the Proctor household. Despite "continued and repeated complaints" by her mother to the DCFS, the DCFS failed to report or investigate the abuse until, after an unspecified period of time, Michelle was placed in a foster home.
Count I of the Does' complaint alleges a cause of action under § 1983 against all five defendants. Plaintiffs contend that Bobbitt, Morgan, and Wiggins "failed to take necessary ministerial action specifically required by statute and Court Order so as to prevent abuses of Michelle's rights under Illinois law and the Fifth and Fourteenth Amendments to the United States Constitution." Specifically, the Does accuse Bobbitt, Wiggins, and Morgan of failing to investigate the Proctors' suitability as a foster family, failing to investigate Brenda Doe's allegations about the Proctor residence, failing to have Michelle examined by a physician to determine whether she was being abused, and failing to speak with Michelle away from the coercive atmosphere of the Proctor household. The Does additionally allege that Morgan, as Michelle's court-appointed custodian, abused his discretion by placing the child in the Proctor residence.
Plaintiffs contend that defendant Leonard Goodman is liable under § 1983 because he failed to prevent violations of Michelle's Fifth and Fourteenth Amendment rights insofar as he failed to supervise Michelle's representation by Wiggins and failed to develop a system for adequately training, informing, and monitoring assistant guardians ad litem.
Finally, the Does name Cook County as a defendant in Count I on the ground that it maintains the Cook County Office of the Guardian Ad Litem, which has repeatedly furnished guardians poorly prepared to represent the interests of minor children such as Michelle.
The concluding paragraphs of Count I allege that each defendant acted with gross negligence and deliberate indifference to the Does' interests, and that as a result the Does "suffered deprivations of their rights under the Fifth, Ninth and Fourteenth Amendments to the United States Constitution in that they were denied due process and equal protection under the law for persons similarly situated." The Does also claim an invasion of their "right to family privacy without state interference." They seek damages of at least $1,000,000, and treatment and rehabilitation for Michelle.
Counts II, III, and IV allege claims under Illinois law. Count II alleges that the gross negligence of all defendants resulted in battery to Michelle. Count III alleges that the intentional and negligent conduct of all defendants inflicted emotional distress on Brenda and Michelle. Count IV alleges that the negligence of Wiggins and Bobbitt resulted in Michelle's sexual abuse.
Defendants focus their challenges on Count I, which provides the sole basis for federal jurisdiction. The court considers the sufficiency of the complaint with respect to each defendant in turn.
The complaint fails to state a claim against Cook County. Plaintiffs allege that the county "maintained, operated and managed the Cook County Office of the Guardian Ad Litem," that it "has promulgated and/or operated pursuant to certain policies and customs whereby minors are represented by guardians who have insufficient information to adequately protect the minors' interests," and that "as its custom and practice the Defendant, Cook County, failed to properly supervise, train and instruct the individually named Defendants."
These boilerplate allegations are not enough. "To establish a municipal policy or custom sufficient for municipal liability under § 1983, the plaintiff must allege a specific pattern or series of incidents that support the general allegation of a custom or policy; alleging one specific incident in which the plaintiff suffered a deprivation will not suffice." Henry v. Farmer City State Bank, 808 F.2d 1228, 1237 (7th Cir. 1986). Here plaintiffs fail to supply sufficiently detailed factual allegations supporting their claim that Cook County maintained an unlawful policy or practice, so Count I must be dismissed against the county.
Count I accuses Wiggins, Michelle's court-appointed guardian ad litem, of failing to object to Michelle's placement with Margaret Proctor. Wiggins claims absolute immunity for his actions as a guardian ad litem.
The Illinois courts and the Seventh Circuit have yet to decide whether court-appointed guardians ad litem enjoy absolute immunity from suits arising out of their official duties. Although one circuit has answered this question in the affirmative, Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir.1984), it is unnecessary to address the issue here because plaintiffs' § 1983 claim against Wiggins fails on a narrower point.
A § 1983 plaintiff must allege that the defendant acted under color of state law. Because a guardian ad litem owes his undivided loyalty to the minor whose interests he represents, courts have reasoned that guardians ad litem, like public defenders, do not act under color of state law in fulfilling their official duties. Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir.1986); Clay v. Friedman, 541 F.Supp. 500, 103-04 (N.D.Ill.1982) (Shadur, J.). See Polk County v. Dotson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (). Count I therefore fails to state a claim against Wiggins because...
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