Opinion
No. 99-1222
December 6, 1999
REPORT AND RECOMMENDATION
This cause is before the Court on Defendants' Motion to Dismiss Counts III, IV, and V of Plaintiff's Amended Complaint (d/e 15). Plaintiff has brought this suit seeking redress for violations of 42 U.S.C. § 1983, defamation, and Illinois Administrative Code, 325 ILCS 5/11.
I. FACTS ALLEGED IN THE COMPLAINT
Plaintiff Robert Meehan has been an educator in the State of Illinois for nearly 25 years, and worked as the principal of Oglesby, Illinois Elementary School District since 1987. Defendants were employees of the Illinois Department of Children and Family Services ("DCFS").
In the fall of 1998, Defendant Liz McCallister, one of the employees of the DCFS, confirmed to a newspaper reporter that DCFS had received a complaint that Meehan was involved in an alleged sexual abuse of a five-year-old student. Liz McCallister told a newspaper reporter that DCFS "did receive a call to our hotline," and that DCFS would "speak to anybody who might have information." On October 8, 1998, these statements were printed on the front page of the local newspaper. This statements were allegedly made prior to McCallister, and/or the DCFS, conducting an investigation as to the truth of the allegation.
On October 27, 1998, Defendant Sharon Davis and Gerry Gibson sent the Superintendent of Oglesby Elementary School District No. 125 a letter indicating that they were requesting to speak to a random sampling of students for interviews concerning allegations of sexual abuse. Davis and Gibson allegedly stated that the letter to the parents of the children would indicate that the children were not believed to be the subject of a child abuse report. Shortly thereafter, Davis and Gibson sent letters to nearly one hundred parents of children of Oglesby School District 125 which stated that DCFS had received a report that their children may have been subjected to abuse.
The Complaint further alleges that Jess McDonald, as Director of DCFS, promulgated the policies and procedures that allowed and encouraged DCFS employees to divulge confidential information to the public, as well as policies and procedures that allowed DCFS employees to divulge or publicize the alleged false and defamatory information to the public.
Defendants have answered Counts I and II, but move the Court to dismiss Counts III, IV and V. Count III relates to Plaintiff's sec. 1983 claim against Jess McDonald individually, and in his official capacity as the Director of DCFS. Count IV is a defamation claim against Sharon Davis and Gerry Gibson, individually. Count V is a claim under the Illinois Administrative Code, 325 ILCS 5/11, against Liz McCallister, in her individual capacity.
II. LEGAL STANDARD FOR MOTION TO DISMISS
In ruling on a motion to dismiss, the Court must accept well pleaded allegations of the complaint as true. See Hishon v. King Spalding, 467 U.S. 69, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1104 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Although a complaint is not required to contain a detailed outline of the claim's basis, it nevertheless must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Car Carriers, 745 F.2d at 1106. Mere conclusions, without supporting factual allegations, are insufficient to support a claim for relief. Cohen v. Illinois Inst. of Tech., 581 F.2d 658, 663 (7th Cir. 1978). Dismissal should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957).
III. DISCUSSION
A. Count III § 1983
Section 1983 provides a cause of action for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, usage, or any State or Territory." 42 U.S.C. § 1983. The statutory purpose was to vindicate violations of constitutional rights. See Owen v. City of Independence, 445 U.S. 622, 636 (1980). To further this purpose, the Supreme Court has interpreted the statute to require a low threshold for pleading alleged constitutional violations. See e.g., Gomez v. Toledo, 446 U.S. 636, 640 (1980). "By the plain terms of § 1983, two — and only two-allegations are required in order to state a cause of action under that [' 1983] statute. First, the Plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law [citation omitted]." Id. In other words, the two requirements for adequately pleading a § 1983 claim against a person in their individual capacity is as follows: (1) a violation of a federal right, (2) by a defendant under color of law. See Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991).
Defendant Jess McDonald moves to dismiss Count III of the Complaint based on grounds of the Eleventh Amendment, lack of personal involvement, and qualified immunity. With respect to the Eleventh Amendment, McDonald argues that the official capacity suit is really a suit against the State, and thus, barred by the Amendment. The Court agrees. See Scott v. O'Grady, 975 F.2d 366, 369 (7th Cir. 1992) (finding that "an official-capacity suit against a state official is deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent a waiver by the state or a congressional override"). The Court, therefore, recommends that Plaintiff's claim against Defendant Jess McDonald in his official capacity as director of DCFS, be dismissed.
Plaintiff does not raise a challenge as to this argument. Moreover, Plaintiff seeks "money damages exclusively," in this lawsuit, which the Eleventh Amendment clearly bars, as compared with an action prospective injunctive relief under Ex Parte Young.
Defendant McDonald next argues that the individual capacity claim should also be dismissed because there are no allegations in the Complaint to suggest that he was personally involved in the alleged constitutional violation. There can be no dispute that the Complaint does not allege that McDonald personally made the alleged defamatory statements to the press. Liz McCallister made the statements. Under Plaintiff's theory of recovery, McDonald was personally involved because, as the director of DCFS, he was the "ultimate decision maker and promulgated the policies and procedures." Defendant argues that such allegations are insufficient to survive a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6). The Court disagrees.
In order for a supervisor to be held personally liable under § 1983, he must have personally participated to deprive the Plaintiff of his constitutional rights. See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) ("[a]n individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation"); An official satisfies the personal responsibility requirement of § 1983 if he acts or fails to act with a deliberate or reckless disregard of Plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. See Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982) (Citations omitted.)
Plaintiff has alleged that McDonald acted with reckless indifference. In ¶ 16, Plaintiff alleges that "McDonald . . . acted with reckless indifference in his failure to train and supervise his employees with regards to the proper conduct in their investigation of potential child abuse." Although this allegation may be a "stretch", the Court cannot say beyond doubt that no jury could find in favor of Plaintiff. Viewing the facts alleged in the Complaint as true, a jury could infer that McDonald, as the policy maker, knew that his failure to supervise or train his employees could violate a persons's constitutional or statutory rights. As such, the Court recommends denying the motion to dismiss the individual capacity suit against McDonald on this ground.
McDonald next argues that the individual capacity suit should be dismissed based on the doctrine of qualified immunity. He argues that since that there is no clearly established law which would have put him on notice that he was violating Plaintiff's rights, he is entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800 (1982). Plaintiff argues that McDonald is not entitled to qualified immunity because a "reasonable official" in his position would have known that a policy that allows and encourages a spokesperson for DCFS to speak to the press, and to disclose alleged false information would violate Plaintiff's constitutional right to privacy.
Qualified immunity is an affirmative defense which may be raised in a motion to dismiss, but the Court considers only the facts alleged in the complaint, which the Court must accept as true. See Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997) (citation omitted). However, the Court notes that qualified immunity is an immunity from suit, not just from liability for damages. See Mitchell v. Forsyth, 472 U.S. 511, 529 (1985). Therefore, the availability of immunity in a given case should be decided as early as possible in litigation. See Hunter v. Bryant, 502 U.S. 224, 226 (1991). See also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified immunity is a "threshold" question).
The Seventh Circuit has held that while public officials asserting the defense have the burden of pleading, the plaintiff bears the burden of demonstrating that the conduct at issue violated a right that was clearly established when the conduct occurred. See, e.g., Magdziak v. Byrd, 96 F.3d 1045, 1047 (7th Cir. 1996); Montville v. Lewis, 87 F.3d 900, 902 (7th Cir. 1996). With respect to Plaintiffs' burden of proof, the Supreme Court set forth the following two-part analysis: "(1) Does the alleged conduct set out a constitutional violation? and (2) Were the constitutional standards clearly established at the time in question?" Wade v. Hegner, 804 F.2d 67, 70 (7th Cir. 1986) (citing Mitchell, 472 U.S. at 525-26); Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir. 1985). The Court must now apply this two-part test.
With regard to the first prong of the test, Plaintiff has alleged that McDonald promulgated an unconstitutional policy and failed to train and supervise employees in reckless disregard of Plaintiff's constitutional rights. Plaintiff has also alleged that, as a result of McDonald's alleged malfeasance, his constitutional right to privacy has been violated. Plaintiff has not, however, specified from where his privacy interest originates. He has merely alleged a legal conclusion assuming that he had a privacy interest in being free from defamatory statements. Moreover, he seems to alleged that the information divulged by the employees of DCFS to the press was somehow "confidential." However, the Complaint is devoid of allegations as to how that "confidential information" was federally protected.
As the Supreme Court stated in Paul v. Davis, 424 U.S. 693, 712, 96 S. Ct. 1155, 1166 (1976), there is no "right to privacy" found in any specific guarantee of the Constitution, but some "zones" of privacy may be created by other specific constitutional guarantees. In Paul, the Supreme Court rejected the respondent's argument that loss of reputation through a state official's defamatory statements implicated the Fourteenth Amendment which was enforceable through 42 U.S.C. § 1983.See id. at 712. In discussing whether the defamatory statements implicated the respondent's privacy interest, the Court suggested that the only privacy interests that were constitutionally protected were those articulated in the Fourth Amendment search and seizure law, and those matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. See id. at 713. The Court then went on and rejected the respondent's § 1983 claim because the respondent's claim did not fall within those "zones of privacy."See id.
Similarly, the Court fails to see how Plaintiff's constitutional "right to privacy" is implicated in this case. Like the respondent in Paul, Plaintiff alleges that alleged defamatory statements — that he sexually abused a five year old — violated his right to privacy. However, his privacy interest is not one that is of a constitutional dimension. See Robbins v. Bentsen, 41 F.3d 1195, 1200 (7th Cir. 1994) ("the Constitution does not protect individuals against mere defamation.") Further, Plaintiff's claim is not rooted in Fourth Amendment law, nor does it relate to matters relating to marriage, procreation, and contraception. Accordingly, the Court finds that Plaintiff failed to allege a constitutional violation in order to overcome the first prong of the qualified immunity test.
Even if the Court was to assume that Plaintiff met the first prong, the Court finds that the claim must still be dismissed because he cannot overcome the second prong of the qualified immunity test. The issue of whether the law is "clearly established" is even more difficult for Plaintiff to overcome. A right is clearly established when its contours are sufficiently clear so that a reasonable official would realize that what he is doing violates that right. See e.g., Shields v. Burge, 874 F.2d 1201, 1203 (7th Cir. 1989) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039 (1987)). This does not mean that there has to be a case on point holding that the official's exact conduct is illegal before the Court will find the officials liable; however, "in the light of preexisting law the unlawfulness must be apparent." Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). Plaintiff bears the burden of demonstrating that the constitutional right allegedly violated was clearly established "before the defendant [s] acted or failed to act." Casteel v. Pieschek, 3 F.3d 1050, 1053 (7th Cir. 1993). This requires the Plaintiff to point to either a closely analogous case or evidence that the defendant's conduct is so violative of the constitutional right that reasonable officials would know that their conduct was unconstitutional without guidance from courts. Id.
Plaintiff does not cite to a case which is analogous to the alleged facts in this case. He appears to be arguing that McDonald's conduct of promulgating policies was patently unreasonable. As support to show "unreasonableness," Plaintiff alleges that McDonald violated state law, particularly, 325 ILCS 5/11. The Court finds this argument unpersuasive.
As noted before, it is the burden of Plaintiff to show that the law was clearly established. Plaintiff must show that Defendant McDonald should have known that his conduct was violative of a Plaintiff's constitutional right-in this case, his right to privacy. However, as noted previously, Plaintiff has failed to show or allege that he had a constitutional or federal statutory right to privacy. At the very least, whether Plaintiff's claimed privacy interest is cognizable is still unclear as to give a reasonable official notice that his actions violates that right. In other words, the Court does not find that McDonald's conduct was so "blatant" as to find that he should have known that his conduct violated Plaintiffs rights.
In sum, Plaintiff has failed to show that a reasonable official in McDonald's position "would have known" that his conduct violated Plaintiff's privacy rights. Accordingly, the Court finds that McDonald is entitled to qualified immunity, and thus, recommends that Count III be dismissed in its entirety.
B. Counts IV and V — Supplemental claims
Count IV is a defamation claim brought against Defendant Gibson and Davis in their individual capacity, and Count V is a claim under 325 ILCS 5/11 against Defendant McCallister in her individual capacity. Defendants argue that they are immune from suit under the Sovereign Immunity doctrine and the Public Official Immunity doctrine.
1. Sovereign immunity doctrine
Generally, with few exceptions, 745 ILCS 5/1 prevents the State of Illinois from being a defendant in any court. Since the State can act only through its agents, this immunity has been extended to cover certain acts of the State's employees. In determining whether a suit is against a State and not against the employee for purposes of applying the immunity, the Court must focus on the facts of each particular case. "Where the charged act of negligence arose out of the State employee's breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action." Currie v. Lao, 592 N.E.2d 977, 980 (Ill. 1992). Conversely, if the employee is charged with breaching duty that rose independently of his state employment, he or she is not shielded by the immunity. Id. Not surprisingly, Defendants argue that since their acts arose out of their employment as employees of DCFS, they are immune from suit in this Court.
The statute deprives a court of general jurisdiction of its jurisdiction to hear such a suit, and shifts the jurisdiction to the Illinois Court of Claims. The Court finds it unnecessary to resolve whether this statute would deprive a federal court's supplemental jurisdiction.
Plaintiff argues that Defendant's duty to refrain from disclosing confidential information, and the duty to refrain from sending out numerous letters indicating that there was reason to believe that numerous children had been abused, without any evidence of such, arises independently of their employment with the State. However, the Court cannot find such allegations in the Complaint. Nevertheless, the Court must deny the motion to dismiss based on this ground at this time, because there are insufficient facts before the Court to determine whether the alleged duties/acts occurred independent of Defendants' employment with the State. Logically, more information is needed with regard to the Defendants' defined duties in order to make a determination as to the applicability of the immunity.
Accordingly, the Court recommends denying the motion to dismiss on this ground.
2. Public official immunity
Defendant also claim that their actions are immune from suit under the public official immunity. That immunity summarized inHenzel Const. Inc. v. Wehde Southwick, Inc., 474 N.E.2d 38, 41-42 (Ill.App. 1985) as follows:
[the] doctrine provides that State officials and employees are protected from personal liability for actions taken in the exercise of their official discretion. (Mora v. State (1977), 68 Ill.2d 223, 234, 12 Ill.Dec. 161, 369 N.E.2d 868; Madden v. Kuehn (1978), 56 Ill. App.3d 997, 1000, 14 Ill. Dec. 852, 372 N.E.2d 1131.) To be protected, the actions taken must be within the scope of the official's authority and not as a result of malicious motives. (Hicks v. Williams (1982), 104 Ill. App.3d 172, 177, 60 Ill.Dec. 379, 432 N.E.2d 1278 (leave to appeal denied.) The doctrine is based upon the policy that public officials should be free to exercise their judgment according to their best perception of public needs. Kelly v. Ogilvie (1965), 64 Ill. App.2d 144, 147, 212 N.E.2d 279.
Defendants argue that when they allegedly disclosed information regarding Plaintiff, they were exercising discretionary functions of their respective positions with DCFS. As such, they argue that the immunity applies in this case. The Court disagrees.
The Court does not express an opinion as to whether Defendants were fin fact exercising discretion. The Complaint does not provide enough facts to support such a finding. In any event, the Court finds that Plaintiff has alleged enough facts, if true, to support a finding that Defendants were not performing a discretionary function. Initially, the Court notes that in order for the immunity to apply, Defendants must be acting within the scope of discretion given to the position. In this case, Plaintiff has alleged that Defendants have violated state law, 325 ILCS 5/11, which criminalizes disclosure of confidential records. Hence, when the Court views all allegations as true, the Court finds that a jury can find in favor of Plaintiff. Presumably, if Defendants were in fact violating the law by disclosing records related to child abuse, they cannot be (by definition) acting within their discretion because they would be acting beyond the scope of their authority.
Accordingly, the Court recommends denying Defendants' motion to dismiss on this basis.
Wherefore, the Court recommends that Defendants' motion to dismiss counts III, IV, and V (d/e 15) be allowed in part, and denied in part. The Court recommends that Count III be dismissed in its entirety, while Counts IV and V should be allowed to proceed.
The parties are advised that any objection to this Report and Recommendation must be filed in writing with the Clerk of the Court within ten working days after being served with a copy of this Report and Recommendation. See 28 U.S.C. § 636(b)(1). Failure to file a timely objection will constitute a waiver of objections on appeal. Video Views, Inc. v. Studio 21, Ltd., 797 F.2d 538, 539 (7th Cir. 1986).