Jeanine B., by Blondis v. Thompson

• Citation: 967 F.Supp. 1104
• Decision Date: 09 June 1997
• Docket Number: No. 93-C-547.,93-C-547.
• Parties: JEANINE B., by her next friend, Robert BLONDIS, et. al., Plaintiff(s), v. Tommy G. THOMPSON, et al., Defendant(s).
• Court: U.S. District Court — Eastern District of Wisconsin

967 F.Supp. 1104

JEANINE B., by her next friend, Robert BLONDIS, et. al., Plaintiff(s), v. Tommy G. THOMPSON, et al., Defendant(s).

No. 93-C-547.

United States District Court, E.D. Wisconsin.

June 9, 1997.

Christopher T. Dunn, New York Civil Liberties Union, New York City, Peter M. Koneazny, American Civil Liberties Union, Milwaukee, WI, Marcia Robinson-Lowry, Daniel S. Dorsky, Martha Stone, Mark G. Peters Children's Rights, Inc., New York City, for Plaintiffs.

Peter C. Anderson, Mary Woolsey Schlaefer, Wisconsin Dept. of Justice, Madison, WI, John F. Jorgensen, Milwaukee County Corp. Counsel, Milwaukee, WI, for Defendants.

DECISION AND ORDER

RANDA, District Judge.

This matter comes before the Court on plaintiffs' motion for a preliminary injunction requesting that the defendants be directed to make certain changes in the Milwaukee County Child Protective Services Unit. The motion is based upon plaintiffs' claims under the Child Abuse Prevention and Treatment Act ("CAPTA"). In their respective responses, defendants ask the Court to reconsider Judge Reynolds' prior decision finding that CAPTA is enforceable in a private action under 42 U.S.C. § 1983. For the following reasons, the Court grants defendants' request to reconsider and denies plaintiffs' motion for a preliminary injunction.

I

This class action lawsuit was initially filed in 1993. Throughout this lawsuit, the plaintiff-class has sought permanent injunctive relief against Milwaukee County and the State of Wisconsin, through various county and state officials, essentially requesting that they be required to address various alleged deficiencies in Milwaukee County's foster care system. These deficiencies, plaintiffs argue, violate the rights of individual class members which are guaranteed by the federal constitution and certain federal statutes. The matter was initially assigned to another Court of this District. That Court, in a published decision, denied-in-part the State defendants' motion to dismiss. See, Jeanine B, v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995)(Reynolds, J., presiding). That motion had argued, inter alla, that only Milwaukee County had direct responsibility for the services at issue and that the federal statutes involved did not give rise to private rights of action. The matter was subsequently transferred to this Court.

Shortly after transfer, the State defendants moved for partial summary judgment on the constitutional issues. The Court denied the motion without prejudice. The Court did so because recent legislative developments at the State level had significantly altered the playing field. Specifically, the Wisconsin Legislature, as part of the State's 1995 budget legislation, passed a provision requiring the State Department of Health and Social Services ("DHSS") to submit a proposal to the Legislature and the Governor, by April 1, 1996, transferring authority and responsibility for Milwaukee County's child welfare services to the State. The legislation required DHSS to include within the proposal an implementation plan for taking over the provision of all child welfare services in Milwaukee County beginning January 1, 1998. Because the plaintiffs sought only injunctive relief — meaning a court order that the State and County defendants take action to address the deficiencies in Milwaukee County's child welfare system — it was obvious to the Court that the State takeover impacted dramatically on the possibility for relief in this case. For that reason — and in deference to the State's political branches, where resolution of the current dispute is most properly addressed — the Court denied the summary judgment motion and adjourned the trial date in order to entertain briefs concerning whether the case was rendered moot by the legislative action. The Court subsequently ruled that the State takeover indeed mandated summary judgment for the State on plaintiffs' constitutional claims and also — as a practical matter — was likely to render moot any potential relief on plaintiffs' constitutional claims against the County. Plaintiffs' federal statutory claims were allowed to go forward, however, in part because the defendants had not asked the Court to reconsider Judge Reynolds' prior ruling that the statutes at issue gave rise to federal rights enforceable under § 1983.

Plaintiffs subsequently filed their current motion for immediate injunctive relief. Their basic claim is that the pending State takeover has only exacerbated-at least in the short term — the problems within Milwaukee County's child welfare system; specifically, the County's Child Protective Services Unit ("CPS"). They claim the situation has become so bad that the Court must exercise its equitable powers to put in place certain stopgap measures designed to alleviate the breakdown within CPS.¹ In support of this claim, they submit 17 affidavits from individuals involved in the child welfare system. These affidavits detail 27 separate stories of tragic child abuse and neglect within Milwaukee County. The stories are alleged evidence of a "state of crisis" within the child welfare system and the defendants' "total abdication of their legal responsibility to investigate and act upon reports of child abuse". Plaintiffs argue that CPS is so grossly understaffed, and/or that CPS employees are so grossly undertrained, that CPS simply cannot and will not promptly receive and investigate increasing reports of child abuse. Their affidavits describe a system that is "completely overwhelmed", social workers that are "too overworked and inadequately trained", and case loads that make it "physically impossible to go out and promptly investigate all of the reports of abuse and neglect". Such allegations are not new to this case, but plaintiffs argue that the "situation has only grown worse" and that immediate judicial intervention is needed to prevent a complete breakdown of the system.²

In response, the defendants ask the Court to reconsider Judge Reynolds' prior conclusion that CAPTA — the statute underlying plaintiffs' current request for injunctive relief — gives rise to federal rights enforceable under § 1983. Plaintiffs reply that Judge Reynolds' prior decision is the law of the case and that there is no basis for reconsidering the same. Plaintiffs also argue that Judge Reynolds' decision was the right decision under the law and therefore, even upon reconsideration, this Court should reach the same conclusion. The following decision is thus divided into two parts: (1) Analysis of the law-of-the-case doctrine; and (2) analysis of whether CAPTA creates federal rights enforceable in an action under 42 U.S.C. § 1983.

II

The current "law-of-the-case" is found in Judge Reynolds' prior decision denying the bulk of the State defendants' motions to dismiss. See, Jeanine B. v. Thompson, 877 F.Supp. 1268 (E.D.Wis.1995). The law-of-the-case doctrine generally holds that "`when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.'" United States v. Cleveland, 1995 WL 535110 *3 (N.D.Ill.1995), quoting Donohoe v Consolidated Operating & Prod. Corp., 30 F.3d 907, 910 (7th Cir.1994), quoting, Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Put another way, "the same issue presented a second time in the same case in the same court should lead to the same result." LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C.Cir.1996). The 7<sup>th</sup> Circuit has stated that "[t]he law of the case doctrine is not to be lightly disregarded. It is `based on the salutary and sound public policy that litigation should come to an end.'" Rothner v. City of Chicago, 929 F.2d 297, 301 (7th Cir. 1991), quoting, Shakman v. Dunne, 829 F.2d 1387, 1393 (7th Cir.1987), quoting, White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967), cert. denied, 484 U.S. 1065, 108 S.Ct. 1026, 98 L.Ed.2d 991 (1988). To this end the 7^th Circuit states that the doctrine should be applied absent "unusual circumstances" or "compelling reason[s]". Parts and Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 231 (7th Cir.1988). Such circumstances include:

(1) substantial new evidence that has come to light after the initial decision; (2) a subsequent opinion from a superior court of controlling authority that is contrary or inconsistent with the initial decision; and (3) a conviction that the initial decision was clearly erroneous and would work a substantial injustice.

LaBoy v. Zuley, 1993 WL 390249 *3 (N.D.Ill. 1993), citing, Evans v. City of Chicago, 873 F.2d 1007, 1014 (7th Cir.1989), cert. denied, 495 U.S. 956, 110 S.Ct. 2560, 109 L.Ed.2d 742 (1990).

"Unlike the doctrine of stare decisis, however, law of the case is a discretionary doctrine." Redfield v. Continental Casualty Corp., 818 F.2d 596, 605 (7th Cir.1987). "Justice Holmes established early on that `the phrase, law of the case, ... merely expresses the practice of courts generally to refuse to open what has been decided, not a limit to their power.'" Id., quoting, Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912). "[T]he doctrine is not a straightjacket. `[I]t is clear that all federal courts retain power to reconsider [issues] if they wish. Law of the case principles ... are a matter of practice that rests on good sense and the desire to protect both court and parties against the burdens of repeated reargument by indefatigable diehards.'" United States v. Shannon, 94 F.3d 1065, 1076 (7^th Cir.1996), vac'd on other grounds on reh'g en banc, 110 F.3d 382 (7th Cir. 1997), quoting, Wright, Miller & Cooper, Federal Practice and Procedure § 4478. And while it is said that the law of the case has more "bite" when judges in one case are "changed in midstream", Cleveland, 1995 WL 535110 at *3, quoting Williams v. C.I.R., 1 F.3d 502, 503 (7th Cir.1993), it is also said that "`the only restraint upon a second judge in passing...