Lintz v. Skipski

• Decision Date: 25 November 1992
• Docket Number: No. 1:92-CV-83.,1:92-CV-83.
• Parties: Sherry LINTZ, Keith Lintz, Sr., and Richele Nicole Jacobs, Brian Allen Jacobs and Keith James Lintz, Jr., by next Friend, Sherry Lintz, Plaintiffs, v. Linda K. SKIPSKI, Kendall Krause, Shirley Krause, Dale Krause, individually and in their official capacities, and Cass County Department of Social Services, and Other Unnamed Co-Conspirators, jointly and severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

807 F. Supp. 1299

Sherry LINTZ, Keith Lintz, Sr., and Richele Nicole Jacobs, Brian Allen Jacobs and Keith James Lintz, Jr., by next Friend, Sherry Lintz, Plaintiffs, v. Linda K. SKIPSKI, Kendall Krause, Shirley Krause, Dale Krause, individually and in their official capacities, and Cass County Department of Social Services, and Other Unnamed Co-Conspirators, jointly and severally, Defendants.

No. 1:92-CV-83.

United States District Court, W.D. Michigan, S.D.

November 25, 1992.

Robert A. Yingst, Holly F. Underwood, Boothby & Yingst, Berrien Springs, Mich., for plaintiffs.

Charles C. Schettler, Jr., Asst. Atty. Gen., Frank J. Kelley, Atty. Gen., Tort Defense Div., Lansing, Mich., for Linda K. Skipski, Cass County Dept. of Social Services.

James M. Straub, Straub, Seaman & Allen, St. Joseph, Mich., for Kendall Krause, Shirley Krause and Dale Krause.

Richard H. Winslow, Cummings, McClorey, Davis & Acho, P.C., Battle Creek, Mich., for Mitchell Walker.

Gary R. Peterson, Oosterbaan, York, Cooper & Peterson, Kalamazoo, Mich., for Robin Zollar Smietanka.

OPINION

QUIST, District Judge.

Plaintiffs brought this action under Title 42 U.S.C. § 1983 claiming they were deprived of constitutional rights. They have also alleged several pendent state law claims. Defendants Linda Skipski, Kendall Krause, Shirley Krause, Dale Krause and the Cass County Department of Social Services have filed motions to dismiss and motions for summary judgment claiming a variety of defenses and immunities.

FACTS

Plaintiff Sherry Lintz is the natural parent of the minor plaintiffs, Richele Jacobs, Brian Jacobs and Keith Lintz, Jr. Plaintiff Keith Lintz, Sr. is the natural father of Keith Lintz, Jr. On May 22, 1987, the Cass County Probate Court made the minor plaintiffs temporary wards of the court pursuant to a neglect petition brought by the Michigan Department of Social Services.¹ By court order, the children were placed in the home of defendants Kendall and Shirley Krause. Mr. and Mrs. Krause were licensed foster care parents pursuant to M.C.L. §§ 722.111-118; M.S.A. §§ 25.358(11)-(18). The children remained with the Krauses until approximately November 6, 1990, when they were placed in another foster home. The children were returned to the home of their natural parents on December 7, 1990.

Plaintiffs have alleged that during the children's stay in the Krause home, numerous atrocities occurred. They cite the following incidents. On June 16, 1988, Shirley Krause advised Robin Smietanka, a certified social worker, that Brian and Keith were acting out in a sexual manner. Brian was touching Keith's genitals. On September 12, 1988, Ms. Smietanka was advised that the minor plaintiffs were complaining of being hurt by Dale Krause, the minor son of Dale and Shirley Krause. On July 17, 1990, Ms. Smietanka noted in her files that Shirley Krause had heard Keith saying "stop" after Brian had crawled into bed with him. On October 2, 1990, Mrs. Krause reported that she overheard Brian say to Keith "you take my pants down and I'll take your pants down." Plaintiffs contend that because no investigation was initiated to ascertain the reason for the inappropriate sexual behavior exhibited by these children the defendants were conspiring to cover up these incidents.

Finally, in approximately October of 1990, the children were allegedly sexually and physically abused by defendant Dale Krause. Dale Krause is the adopted son of Mr. and Mrs. Krause. He was placed with Mr. and Mrs. Krause as a foster child when he was two weeks old and was legally adopted by them at the age of two. In October of 1990, Keith, one of the minor plaintiffs, accused Dale Krause of inappropriate sexual contact. Keith allegedly told Ms. Smietanka that he had sucked Dale's penis after Dale promised him $2.00 and an opportunity to play Nintendo. The children were questioned about the incident by Mrs. Krause and Linda Skipski, a Department of Social Services worker. After this alleged incident, Mrs. Krause allegedly requested that the children be removed from the Krause home immediately. However, defendants Linda Skipski and Robin Smietanka told Mrs. Krause to keep the children. Based upon this recommendation the Krauses kept the children. As a result of the accusations against Dale Krause, Mrs. Krause allegedly took steps to ensure that the children were never in unsupervised contact with Dale Krause. Approximately a month later on November 6, 1990, the children were removed from the Krause home.

The plaintiffs' First Amended Complaint contains nine counts. Counts I, II and III allege federal claims pursuant to 42 U.S.C. § 1983 for deprivation of constitutional rights. Specifically, Count I alleges violation of Fourteenth Amendment substantive due process rights; Count II alleges violation of Fourteenth Amendment procedural due process rights; and Count III alleges § 1983 conspiracy and coverup. The remaining counts set forth state claims.²

Defendants Cass County Department of Social Services, Linda Skipski and Kendall, Shirley and Dale Krause have filed motions for summary judgment and/or motions to dismiss.

Summary Judgment Standard

Summary judgment is appropriate if there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the nonmoving party. Id. This standard requires the nonmoving part to present more than a scintilla of evidence to defeat the motion. The summary judgment standard mirrors the standard for a directed verdict. The only difference between the two is procedural. Summary judgment is made based on documentary evidence before trial, and directed verdict is made based on evidence submitted at trial. 477 U.S. at 250-51, 106 S.Ct. at 2511. A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate that there is a genuine issue of material fact for trial. Id. The Court must draw all inferences in a light most favorable to the non-moving party, but the Court may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)).

Cass County Department Of Social Services

Defendant Cass County Department of Social Services (Cass County DSS) contends that plaintiffs' claims against it are barred by the Eleventh Amendment. The Eleventh Amendment to the United States Constitution restricts the power of federal courts to hear claims against states. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const.amend. XI.

Although the Eleventh Amendment, itself, does not bar a suit by a citizen of a state against the citizen's own state, the Supreme Court in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890) extended the Eleventh Amendment by holding that citizens could not sue their own state in federal court. Therefore, the State of Michigan and its agencies are immune from liability for damages or injunctive relief in federal court pursuant to the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984) ("a suit in which the State or one of its agencies or departments, is named as the defendant is proscribed by the Eleventh Amendment").

Although a state's Eleventh Amendment immunity can be waived, the Supreme Court has held that Congress, in enacting § 1983, did not intend to abolish a state's Eleventh Amendment immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). In Will, the court stated that § 1983 does not provide a federal forum for litigants seeking a remedy against a state for alleged deprivations of civil liberties.

Thus, this Court must consider whether the Cass County DSS is a state agency which is immune from liability under the Eleventh Amendment.³ County DSS offices have repeatedly been found to be instrumentalities of the state. In Emerson v. State of Michigan, No. G88-562 CA (W.D.Mich. January 10, 1989), Judge Gibson found that the Grand Traverse County Department of Social Services and the Wexford County Department of Social Services were agents of the state for purposes of the Eleventh Amendment and therefore were entitled to dismissal on Eleventh Amendment grounds. Similarly, in Monk v. Minzey, No. K85-46 CA (W.D.Mich. December 26, 1985), this Court held that the Berrien County Department of Social Services was an agency of state government subject to dismissal pursuant to the Eleventh Amendment. See also O.A.G. 1967-1968, No. 4607, p. 174 (February 6, 1968) and O.A.G. 1975-1976, No. 4973, p. 400 (April 16, 1976). Plaintiffs have conceded in their Amended Complaint that the "Cass County Department of Social Services is a...