Landstrom v. ILLINOIS DEPT. OF CHILD. & FAM. SERV.

• Decision Date: 31 October 1988
• Docket Number: No. 87 C 3423.,87 C 3423.
• Citation: 699 F. Supp. 1270
• Parties: Ashley LANDSTROM, et al., Plaintiffs, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

699 F. Supp. 1270

Ashley LANDSTROM, et al., Plaintiffs, v. ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Defendants.

No. 87 C 3423.

United States District Court, N.D. Illinois, E.D.

October 31, 1988.

COPYRIGHT MATERIAL OMITTED

Dennis E. Carlson, Chicago, Ill., for plaintiffs.

James O. Nolan, Katharine G. Hill, Clausen Miller Gorman Caffrey & Witous, P.C., Chicago, Ill., for all defendants except Harris.

Neil F. Hartigan, Atty. Gen. of Illinois, Kathleen Kreisel Flahaven, Asst. Atty. Gen., Chicago, Ill., for defendant Harris.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Ashley and Lara Landstrom ("Ashley" and "Lara" respectively), two grammar school students in Barrington School District 220 ("District"), and their parents Paul Landstrom ("Paul") and Jane Jensen (collectively "Parents") have sued District and four of its employees (collectively "District Employees") — teacher Maggie Gruber ("Gruber"), principal Marie Plozay ("Plozay"), nurse Mary O'Boyle ("O'Boyle") and psychologist Lorenz Petersen ("Petersen"):

1. charging violations of plaintiffs' constitutional rights in the course of a child abuse investigation (in this respect plaintiffs' claims are brought under 42 U.S.C. § 1983 ("Section 1983")); and

2. asserting pendent claims for false arrest, false imprisonment, battery, intentional or reckless infliction of emotional distress, negligent malpractice and wilful-wanton conduct.

Plaintiffs also claim similar violations by Illinois Department of Children and Family Services ("DCFS") employee David Harris ("Harris").

All defendants except Petersen have moved to dismiss the Fifth Amended Complaint (the "Complaint") under Fed.R.Civ.P. ("Rule") 12(b)(6).¹ For the reasons stated in this memorandum opinion and order:

1. Count I is dismissed as to the individual defendants but not as to District.

2. Count II is dismissed in its entirety.

3. Counts III through VI are dismissed as to the individual defendants under the principles of United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

4. District's motion to dismiss Count IV is denied.

5. District's motion to dismiss Counts V and VI is granted.

Facts²

On March 17 Gruber removed Ashley from her first grade class (¶ 19). District Employees and apparently Harris as well,³ acting in concert, conducted an oral and physical examination of Ashley because she had complained of soreness in her rear end (id.). During the examination Gruber physically restrained Ashley and O'Boyle removed her underpants (id.).

On March 18 Paul notified Plozay he disapproved of Ashley's treatment and instructed Plozay not to engage in such conduct again (¶ 21). Nevertheless, on March 19 Plozay removed Lara from her classroom (¶ 22). Plozay and Petersen (and perhaps Harris and O'Boyle⁴) then questioned Lara about her sister's complaint of soreness and about Parents' conduct (id.). Lara was not physically examined.

Harris then telephoned Parents, insisting they and the children meet with him for further inquiry about whether there had been parental child abuse (¶ 24). Parents responded that any such meeting must occur in the presence of their attorney (id.). Despite that, on April 7 Harris telephoned Parents' attorney to say the children would be questioned that day.⁵ Over the attorney's objection, Harris, Plozay, Petersen and perhaps O'Boyle⁶ questioned Ashley at school (in the absence of either Parents or their attorney) regarding the suspected abuse (¶¶ 26-27). Plozay physically restrained Ashley during that interrogation (¶ 27).

Count I

Count I asserts a Section 1983 claim by Ashley and Lara against all defendants. Specifically ¶ 32 alleges defendants' conduct:

violated the civil rights of these children to be free from the use of unnecessary and unjustified use of force upon them, the wilful or intentional deprivation of the care, security and sustenance of their natural parents by agents of the government, to be free from improper detention or arrest and imprisonment, and from unreasonable search and seizure by agents, employees and servants of the government of any state of sic local authority and the right to be represented by counsel in any attempt to infringe upon any of the foregoing civil rights which they enjoy by reason of the due process clause of the 14th Amendment to the United States Constitution and the Fourth Amendment thereto.⁷

Ashley and Lara seek compensatory damages in an unspecified amount plus $100,000 in punitive damages against each individual defendant, as well as costs and attorney's fees.

1. Individual Defendants (Gruber, Plozay, O'Boyle, Petersen and Harris)

All individual defendants have clearly been sued in their individual and not their official capacities (¶ 34). But as this Court's September 16, 1987 memorandum opinion and order ("Landstrom I") available on WESTLAW, 1987 WL 17487 pointed out in dealing with an earlier version of the Complaint (plaintiffs' second attempt to state their claims), government officials (such as the individual defendants here) who are engaged in discretionary functions are entitled to qualified immunity from money damages unless the conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). It is plaintiffs' burden to show the constitutional right was "clearly established" (Abel v. Miller, 824 F.2d 1522, 1534 (7th Cir.1987), quoting Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)).⁸

As the extended quotation from ¶ 32 demonstrates, Ashley and Lara charge a panoply of alleged constitutional violations. To that end plaintiffs rely (as they have in their earlier memoranda) on Darryl H. v. Coler, 801 F.2d 893 (7th Cir.1986) to establish their constitutional rights. And as in Landstrom I, this Court again rejects that analysis.

Darryl H. challenged DCFS policies calling for nude visual inspections of children suspected of being the victims of child abuse — a challenge that did raise constitutional doubts (801 F.2d at 903-04). Our Court of Appeals confirmed such nude inspections are "searches" within the scope of the Fourth Amendment (id. at 900).⁹ It further recognized such investigations implicate "the closely related legitimate expectations of the parents ..., protected by the fourteenth amendment, that their familial relationship will not be subject to unwarranted state intrusion" (id. at 901). But the opinion (id. at 902) also stressed the "extraordinarily weighty" interests and obligations of the state in protecting children from physical abuse. Consequently the Court of Appeals was unable to determine whether the Darryl H. plaintiffs' constitutional rights had been violated at all, much less to enunciate a rule that all nude inspections of children in the course of a child-abuse investigation violate constitutional rights (id. at 908).

Just what plaintiffs hope to make of Darryl H. is unclear. Presumably they believe that case supports all their ¶ 32 allegations. But Darryl H. plainly does not strip the individual defendants of qualified immunity. As was true in Darryl H. itself, the constitutionality of the individual defendants' actions here can be determined only by balancing the state's "extraordinarily weighty" interests and multifaceted obligations (id. at 902) against the severity of the intrusion into protected personal interests. By definition that inquiry must proceed on a case-by-case basis. As noted in Landstrom I, for any defendant to be stripped of qualified immunity in that situation "the facts of the existing case law must closely correspond to the "contested action" (Benson v. Allphin, 786 F.2d 268, 276 (7th Cir.1986)). And Darryl H. had set out no factual roadmap of constitutionally violative conduct against which defendants here could have measured their own proposed course of conduct.

Landstrom Mem. 2-5¹⁰ cites Murray v. City of Chicago, 634 F.2d 365 (7th Cir. 1980) for the proposition that "nude searches of adults and children of tender years are offensive without tomes of law." But Murray, which involved a constitutional challenge to a nude search of a woman arrested under a withdrawn arrest warrant, clearly has no application to the qualified immunity issue here.

Landstrom Mem. 1-3 also points to Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987). That case involved a Section 1983 challenge to an arrest by two Chicago police officers. Lester alleged the absence of probable cause and the use of excessive force. On appeal the jury verdict for the officers on the probable cause claim was upheld, but the case was remanded for a new trial on the excessive force charge. Overruling Gumz v. Morrissette, 772 F.2d 1395 (7th Cir.1985), Lester, 830 F.2d at 710 held "that the proper standard for analyzing excessive force in arrest claims is a Fourth Amendment standard."

Lester obviously has no application to this case either. Lara and Ashley were never "arrested," nor did defendants' alleged actions as to Ashley at all resemble the excessive force at issue in Lester. In sum, the facts of Lester are not even close to corresponding to the facts here.¹¹

So much, then, for plaintiffs' efforts to place the actions taken as to either child outside any "clearly established" constitutional norm. And plaintiffs fare no better in attempting to invoke a constitutional "right to counsel." As United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2296, 81 L.Ed.2d 146 (1984) makes clear, even in the criminal context "the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant." No such adversary proceeding has been initiated in this case, and there is certainly no established right to counsel in the controversy described in the Complaint when viewed in civil terms.

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