Opinion
Case No. 01 C 5090
July 17, 2002
ORDER
Plaintiffs, J.H. and J.D., minors, by and through their father and next friend, Todd Higgin, have filed a seven-count complaint against twelve employees of the Illinois Department of Children and Family Services ("DCFS"). Defendants move the court to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the court denies the motion.
Background
Defendants, all DCFS employees, are William Curtis, general counsel; Patricia Bennett, Chief of the Office of Licensing; Glynne Gervais, an Associate Deputy Director; Carol Borders, Jean Williams, and Shirley Nash, Licensing Representatives; Camille Sleet, Licensing Supervisor; Jeanette Hamilton, Licensing Administrator; Jeannine Detwiler, Licensing Specialist for Enforcement; Charles Johnson, Licensing Administrator; Richard Johnson, Licensing Supervisor; and Gloria Hunt, a caseworker. In 1988, the Cook County Juvenile Court awarded temporary custody of plaintiffs to DCFS. Plaintiffs were placed in separate foster homes, where each was sexually abused. They were both removed from their homes by the end of 1989. The gravamen of plaintiffs' complaint is that each defendant failed to act when defendants knew or should have known that plaintiffs were in abusive or neglectful environments.
Plaintiffs' complaint includes one federal claim and six state claims against each defendant in his or her personal capacity. In Count I, plaintiffs allege a due process violation pursuant to 42 U.S.C. § 1983. In Counts II through IV, plaintiffs allege Illinois statutory negligence (Count II), willful and wanton misconduct (Count III), and intentional misconduct (Count IV), pursuant to the Children and Family Services Act, Ill. Rev. Stats. Ch. 20, § 5006, and the Abused and Neglected Children Reporting Act, Ill. Rev. Stats. Ch. 23, §§ 2054, 2057. In addition, plaintiffs allege three state common law claims: negligence (Count V), willful and wanton misconduct (Count VI), and intentional misconduct (Count VII).
Plaintiffs filed a similar complaint in another federal court, with the same federal claim and six state-law claims, against eight different employees at DCFS. J.H. v. Johnson, No. 95 C 2822 (N.D. Ill. filed May 11, 1995). The district court denied the defendants' motion to dismiss, but later granted summary judgment in favor of all eight defendants on the federal claim, then dismissed the remaining six state claims for lack of subject matter jurisdiction.
Discussion
Defendants move to dismiss the case in its entirety, arguing that plaintiffs have failed to state a claim upon which relief can be granted. Alternatively, defendants contend that they are entitled to qualified immunity with respect to Count I. In addition, they invoke the Illinois public officials immunity doctrine with respect to state-law Counts II through VII. Finally, defendants argue that defendant Hunt should be dismissed from this case because plaintiffs could have, but failed to, join Hunt as a defendant in the previous case of J.H. v. Johnson. Plaintiffs also refer the court's attention to J.H. v. Johnson. They invoke the doctrine of "virtual representation," arguing that the Johnson court's denial of the defendants' motion to dismiss should preclude this court's consideration of defendants' motion in the instant case. The court need not resolve this issue, however, because it denies defendants' motion to dismiss on the merits.
I. Constitutional Violation
Defendants argue that plaintiffs have failed adequately to state a claim against each defendant except Hunt, whom they argue should be dismissed from this case for other reasons. They direct their arguments exclusively at Count I, plaintiffs' § 1983 claim. Essentially, defendants contend that plaintiffs have failed to allege that defendants ever had reason to know that plaintiffs were being abused before they were removed from the foster homes.
Defendants ask this court to dismiss Count I, the sole federal claim, and subsequently decline to exercise supplemental jurisdiction over the remaining state-law claims.
To state a claim under § 1983, "a plaintiff must allege that the defendant has acted under the color of state law and has deprived him of a right secured by the Constitution or laws of the United States." Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000). In cases where a plaintiff asserts that state employee-defendants had an affirmative duty to protect the plaintiff against private violence, the plaintiff must also allege that a "special relationship" existed between the state and the victim, thus giving rise to a duty of protection. Id. at 457-58. In addition, a plaintiff must allege personal involvement of the individual defendants, as "there is no respondeat superior liability in the § 1983 context." Id. at 458. Finally, a plaintiff must allege that the individual defendants acted with "deliberate indifference" in their failure adequately to protect the plaintiff. Id. (citing Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997)).
Plaintiffs' complaint adequately alleges that defendants acted under color of state law and that defendants deprived plaintiffs of their due process rights under the Constitution. Defendants do not challenge the complaint in this regard. Rather, defendants contend that the complaint fails to allege personal involvement by each defendant and that it fails to allege that each defendant acted with "deliberate indifference." Defendants also appear to argue that plaintiffs fail to allege the required "special relationship."
Although defendants do not seem to challenge it, the constitutional right at issue is worth mentioning. The Seventh Circuit has explicitly held that a child has a constitutional right "not to be placed with a foster parent who the state's caseworkers and supervisors know or suspect is likely to abuse or neglect the foster child." K.H. through Murphy v. Morgan, 914 F.2d 846, 853 (7th Cir. 1990). In B.H. v. Johnson, 715 F. Supp. 1387, 1396 (N.D.Ill. 1989), a district court held that "a child has a § 1983 action against the state . . . where the state is deliberately indifferent to the likelihood that a foster home is unsafe, yet places a child there or allows the child to remain there." (emphasis added). This court agrees. Therefore, to succeed on their claim, plaintiffs must establish that each named defendant knew or suspected that plaintiffs were likely to be abused or neglected and failed to respond.
The court rejects defendants' arguments regarding personal involvement and deliberate indifference. Paragraphs 544 and 545 of the complaint state:
544. By placing and maintaining J.H. and J.D. in unsuitable and harmful foster homes which were unlicensed or improperly licensed and operating in excess of their licensed capacity, by placing J.D. in a foster family home with a foster father who was an active alcoholic and a known pedophile, by placing J.H. in a foster family home with a foster father who was known to be psychologically unstable when they knew or should have been known these facts and by discovering or failing to discover that the child welfare agency to which the children had been consigned was operating in extreme and severe violation of licensing standards and program requirements by using unqualified personnel to conduct its license and other supervisory and casework functions and by failing to provide required and necessary services to the foster children, including plaintiffs, and by failing to take action to protect children consigned to McKinley, including plaintiffs, [each named defendant] acted with deliberate indifference to the minor plaintiffs and their substantive rights under the Due Process Clause of the United States Constitution to adequate treatment and to be free from unreasonable and unnecessary intrusions on their physical, psychological and emotional well-being, including the right to be free of physical and sexual attack, abuse and exploitation and their right to be free from placement in a foster care environment which the defendants knew or should have known was abusive or where they were unable to exercise the necessary degree of supervision over them and the foster families to which they had been consigned, and in so acting, defendants . . . deprived plaintiffs of their rights to adequate care and treatment secured to them under the Due Process Clause of the United States Constitution.
545. In acting as aforesaid, [defendants] knew or reasonably should have known that the actions they took would violate the constitutional rights of the minor plaintiffs.
These paragraphs are sufficient to withstand defendants' Rule 12(b)(6) challenge. They state that each defendant knew or should have known that plaintiffs' foster care environments were abusive and failed to take any action, satisfying the personal involvement element. The complaint lists each defendant's actions in further detail. The paragraphs also explicitly allege that each defendant acted with deliberate indifference. Defendants' contentions that they were not personally involved and were not deliberately indifferent raise factual issues that cannot be resolved on a motion to dismiss.
Defendants raise an argument that the court interprets to be a challenge to plaintiffs' allegation of a "special relationship." Defendants appear to argue that plaintiffs have pled themselves out of court by alleging facts that demonstrate that they have no legal claim. Holman v. Indiana, 211 F.3d 399, 406 (7th Cir. 2000). Specifically, defendants claim that plaintiffs have admitted that "[d]efendants did not place J.H. and J.D. in these foster homes. . . ." (Defs.' Reply at 6.) Instead, "Defendants' interaction with the Plaintiffs or the foster homes existed only because they were assigned to the team investigating McKinley, or because they were licensing representatives." (Id. at 7.) This shows, defendants argue, that they were not responsible for deciding whether plaintiffs should have been placed in their foster homes and whether they should have been removed; thus, they cannot be held liable under § 1983. The court disagrees.
Defendants ignore the fact that plaintiffs allege that each named defendant, in fact, knew that the foster homes were unsafe. This is not outside the realm of possibility as defendants suggest, because each defendant had access to information that would have confirmed suspicions about plaintiffs' foster homes. Furthermore, while it may be true that defendants' duties do not include deciding whether and when to remove foster children from their homes, plaintiffs have alleged that defendants knew of the abusive environments and failed to take any action. Such knowledge and failure to act is enough to establish § 1983 liability. See Taahira W. v. Travis, 908 F. Supp. 533, 542 (N.D.Ill. 1995) (holding licensing representative could be liable where he knew that a teen who had previously raped a small child was residing in a foster home, the defendant did not make any notation in the licensing file, and another small girl was subsequently placed in the home and raped). There is no per se rule that licensing personnel and investigation team members are immune from § 1983 actions such as this. The court holds that the complaint adequately alleges a § 1983 claim.
The court is not concluding that defendants' access to information created a duty on their part to know about plaintiffs' problems. Rather, their access bolsters the conclusion that plaintiffs could prove a set of facts, consistent with their complaint, that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Strasburger v. Bd. of Educ., 143 F.3d 351, 359 (7th Cir. 1998) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. Qualified Immunity
All defendants except defendant Hunt argue that they are entitled to qualified immunity. The defense of qualified immunity provides government officials immunity from suit "when their conduct 'does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Kitzman-Kelley, 203 F.3d at 457 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To defeat a qualified immunity defense, plaintiffs must meet two requirements: (1) the complaint must adequately allege a violation of a constitutional right; and (2) "the case law must be 'clearly established' at the time of the alleged violation, so that a reasonable public official would have known that his conduct was unlawful." Delgado v. Jones, 282 F.3d 511, 515-16 (7th Cir. 2002) (quoting Harlow, 457 U.S. at 818). As discussed above, plaintiffs have alleged a constitutional violation, leaving only the second prong of the test unresolved.
The Seventh Circuit held that in 1986, the right of a child not to be placed with foster parents that are known to have the propensity to neglect or abuse children was clearly established. K.H. through Murphy v. Morgan, 914 F.2d 846, 852 (7th Cir. 1990) (citing Youngberg v. Romeo, 457 U.S. 307 (1982), and Doe v. New York City Dep't Soc. Servs., 649 F.2d 134 (2d Cir. 1981)).
From this holding, it necessarily follows that a child's right not to remain in an abusive home was also clearly established. See B.H. v. Johnson, 715 F. Supp. 1387, 1396 (N.D.Ill. 1989) (holding that allowing children to remain in a likely neglectful home is a constitutional violation). This right remained clearly established in 1988 and 1989, at the time of the alleged constitutional violations in this case. Cf. J.H. v. Johnson, No. 95 C 2822, 2000 U.S. Dist. LEXIS 5508, at *11 (N.D.Ill. Apr. 4, 2000) (in another case arising from the same allegations of abuse as the case at bar, holding that the right not to be placed with foster parents who are known to be likely to neglect or abuse children was clearly established).
During the time of the alleged constitutional violations, plaintiffs had a right not to remain in their allegedly abusive foster homes. Defendants should have known of this right. They also should have known that their failure to act, once they knew that plaintiffs were in abusive homes, would violate plaintiffs' rights. Therefore, assuming plaintiffs succeed in establishing the constitutional violation alleged, defendants' qualified immunity argument fails.
III. Duplicative Litigation
Next, defendants argue that defendant Hunt should be dismissed from this case. Specifically, defendants argue that the case against Hunt constitutes duplicative litigation because Hunt should have been named or joined as a defendant in the previous related case, J.H. v. Johnson, No. 95 C 2822. Plaintiffs sue Hunt as a caseworker assigned to plaintiffs' cases. The remaining eleven defendants in this case, however, are either licensing workers or investigation team members. In J.H. v. Johnson, the defendants included caseworkers who were at one time assigned to plaintiffs' cases. Therefore, defendants argue, the present case against Hunt is duplicative.
As a general rule, a federal suit may be dismissed "for reasons of wise judicial administration . . . whenever it is duplicative of a parallel action already pending in another federal court." Serlin v. Arthur Andersen Co., 3 F.3d 221, 223 (7th Cir. 1993) (internal quotation marks omitted).
Generally, a suit is duplicative if the "claims, parties, and available relief do not significantly differ between the two actions." Id. (internal quotation marks omitted). "District courts are accorded a great deal of latitude and discretion in determining whether one action is duplicative of another." Id. (internal quotation marks omitted). Before dismissing a suit as duplicative, "the district judge should consider any special factors counseling for or against the exercise of jurisdiction in the case before him." Id. at 224 (internal quotation marks omitted).
This court concludes that plaintiffs' case against Hunt is not duplicative of the case in J.H. v. Johnson. Although the claims and available relief may be similar, the parties are not. Cf. id. at 223-24 (affirming district court's dismissal of second case as duplicative where it was "clear that [the] two complaints involve the same parties and seek the same remedies"). Even more significant is the fact that the district court in J.H. v. Johnson has already ruled in favor of those defendants on their motion for summary judgment. Thus, dismissing Hunt from this case would altogether deprive plaintiffs of their day in court with respect to that defendant. See Berry v. Illinois Dep't of Human Servs., No. 00 C 5538, 2001 U.S. Dist. LEXIS 1041, at *66 (N.D.Ill. Feb. 1, 2001) ("Generally, dismissal of one of the [duplicative] cases is inappropriate if it will adversely affect a litigant's interests."). In its discretion, the court declines to allow such a drastic outcome and denies defendants' motion on these grounds.
IV. Public Official Immunity
Finally, defendants argue that the state-law claims against them should be dismissed because they are shielded from liability by the common law doctrine of public official's immunity. They contend that they were acting as state officials, their actions were discretionary, and they acted based on their perception of the public need.
In Illinois, "[t]he common law doctrine of public officials' immunity dictates that public officials are immune from personal liability for their performance of discretionary duties." Currie v. Lao, 592 N.E.2d 977, 983 (Ill. 1992). The doctrine "rests on the theory that government officials should not be impeded from acting in ways they perceive are in the public's best interest because of fears of personal liability." Janes v. Albergo, 626 N.E.2d 1127, 1131 (Ill.App.Ct. 1993) (citations omitted).
However, public official's immunity only applies where "the duty owed is to the public generally, not to an individual." Currie v. Lao, 556 N.E.2d 318, 323 (Ill.App.Ct. 1990).
The court in Johnson addressed an identical argument in its opinion denying the defendants' motion to dismiss. It observed: "The duties owed by defendants are owed only to the individual plaintiffs who are taken into custody by the State." J.H. v. Johnson, No. 95 C 2822, 2000 U.S. Dist. LEXIS 5508, at *19-20 (N.D.Ill. Apr. 4, 2000). Therefore, defendants were not entitled to public official's immunity. Furthermore, in that case plaintiffs alleged that the defendants knowingly allowed minors to be placed into abusive foster homes. "If plaintiffs ultimately prove that allegation, it would be absurd to allow defendants to evade liability for their conduct on the basis of an immunity doctrine that, historically, was only designed to protect public officials who believed that they were acting in the best interest of the public." Id. at *20.
The same can be said in this case. First, defendants' duties in this case are owed only to plaintiffs and other minors in the state's custody, not to the public in general, as the immunity doctrine requires. Second, defendants have not been so bold as to claim that, assuming plaintiffs' allegations are true, defendants believed that their actions were in the public's best interest. Defendants' motion on these grounds is denied.
Conclusion
For the foregoing reasons, defendants' motion to dismiss is denied.