Hicks v. Clark, Case No. 13 C 989

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtMilton I. Shadur, Senior United States District Judge
Citation107 F.Supp.3d 905
Docket NumberCase No. 13 C 989
Decision Date04 June 2015
Parties Christopher Hicks, Plaintiff, v. Barry Clark, et al., Defendants.

107 F.Supp.3d 905

Christopher Hicks, Plaintiff,
Barry Clark, et al., Defendants.

Case No. 13 C 989

United States District Court, N.D. Illinois, Eastern Division.

Signed June 4, 2015

107 F.Supp.3d 906

Jonathan I. Loevy, Rachel Steinback, Arthur R. Loevy, Elizabeth N. Mazur, Michael I. Kanovitz, Roshna Bala Keen, Loevy & Loevy, Chicago, IL, Attorney for Plaintiff.

Barbara Lynn Greenspan, Michaelina Gianaris Camp, Patricia L. Llacsa, Illinois Attorney General's Office, Chicago, IL, Attorney for Defendant.


Milton I. Shadur, Senior United States District Judge

Just short of four decades have elapsed since Christopher Hicks ("Hicks") was appallingly returned to the custody of his adoptive mother Gloria Jemmison ("Jemmison") despite the unquestioned and serious child abuse that he had sustained at her hands and that had led to Department's originally ousting her from such custody only a few months earlier. And even more appallingly, that pattern of grievous physical abuse not only resumed immediately but actually worsened during the next few years—abuse that was fully documented and well known to Department and its cohorts2 —until Jemmison's custody of Hicks was finally revoked permanently.3 According to Hicks, his long-repressed memory of that deplorable situation has emerged from the depths of despond only recently, and he seeks recompense for that horrific experience through this 42 U.S.C. § 1983 (" Section 1983") action, coupled with related state law claims under the auspices of the supplemental jurisdiction provision of 28 U.S.C. § 1367.

At this point the most recent reiteration

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of Hicks' claims is embodied in his TAC,4 and the two sets of defendants have taken aim at that pleading by separate motions. Because the motion by Department and its cohorts advanced a "Gotcha!" type of argument of qualified immunity that sought to rest on a similar child abuse case that rejected legal responsibility on the part of a Wisconsin state agency (DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) ), this Court's immediate response was to focus defense counsel's attention on the obvious proposition that it was totally improper to judge defendants' conduct during the 1970s and very early 1980s by a standard not announced by the United States Supreme Court until a decade later—a kind of "post hoc ergo propter hoc" approach.5

Indeed, startlingly enough, it was DeShaney itself—in both the majority opinion authored by then Chief Justice Rehnquist and the powerful dissent voiced by Justice Brennan for himself and two other justices6 —that pointed the way toward upholding rather than rejecting Hicks' TAC here: Each of those opinions expressly adverted to Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and the later (and conceptually parallel) decision in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) as exemplifying the law as of the time that is relevant for evaluation of the litigants' rights and duties in this case. Because that reasoning is so dramatically demonstrated by those two opinions, which led to disagreement within the Supreme Court in DeShaney but both of which really call for upholding Hicks' claim here, this opinion will quote extensively from the Justices' respective expositions (omitting internal citations, quotation marks and footnotes).

First, then, here is a slightly (but not substantively) bobtailed reproduction of the now-relevant portions of Chief Justice Rehnquist's statement in DeShaney, 489 U.S. at 198–200, 109 S.Ct. 998 (emphasis added):

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), we
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recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, requires the State to provide adequate medical care to incarcerated prisoners. We reasoned that, because the prisoner is unable "by reason of the deprivation of his liberty [to] care for himself," it is only "just" that the State be required to care for him.

In Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), we extended this analysis beyond the Eighth Amendment setting, holding that the substantive component of the Fourteenth Amendment's Due Process Clause, requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. As we explained: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed—who may not be punished at all—in unsafe conditions."

But these cases, ... [t]aken together, ... stand only for the proposition that, when

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