Misters v. State of Illinois DCFS
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 1/28/2015. Plaintiffs Motion for Leave to Proceed in Forma Pauperis 5 is DENIED. On merit review pursuant to 28 U.S.C. § 1915(e)(2), Plaintiffs claim against Defendant Tina Shepke is DISMISSED WITH PREJUDICE. Plaintiffs Motion to Request Counsel is therefore DENIED as MOOT 6 . CASE TERMINATED.(RK, ilcd)
E-FILED
Wednesday, 28 January, 2015 11:25:09 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
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TERRIBIA MISTERS
Plaintiff,
v.
TINA SHEPKE
Defendant.
Case No. 14-1465
ORDER & OPINION
This matter is before the Court on Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis (Doc. 5) and Plaintiff’s Motion to Request Counsel. (Doc. 6). As
explained below, Plaintiff’s Amended Complaint fails to state a claim on which
relief may be granted. Therefore, pursuant to 28 U.S.C. § 1915(e)(2)(B), Plaintiff’s
Amended Complaint is dismissed, and both motions are denied.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Terribia Misters filed a
pro se Complaint against the Illinois
Department of Children and Family Services (DCFS) pursuant to 42 U.S.C. § 1983
on December 8, 2014. (Doc. 1). On December 9, 2014, the Court dismissed the
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) because Plaintiff failed to comply
with Federal Rules of Civil Procedure 8 and 10, and failed to state a claim on which
relief can be granted. (See Doc. 3). In its Order, the Court informed Plaintiff that he
could not sue the DCFS, and could not sue DCFS employees in their official capacity
for money damages. (Doc. 3 at 5). The Court informed Plaintiff that he needed to
request some sort of relief, which he had failed to do in the Complaint. (Id.). It also
informed Plaintiff that if he sought money damages, he would need to sue any
employee of DCFS in her individual capacity. (Id.). Finally, the Court explained
that it could not discern a causal connection between the quality of DCFS’s
investigation and the fact that Plaintiff lost custody of his son. (Id.). It instructed
Plaintiff that to state a claim under § 1983, he must allege that a person, acting
under color of state law, deprived him of a federally protected right. (Id. at 3). The
Court granted Plaintiff leave to correct these errors and file an amended complaint.
(Id. at 5).
Plaintiff filed this Amended Complaint on December 22, 2014. (Doc. 4).
Rather than suing DCFS, Plaintiff has named Tina Shepke, a DCFS caseworker, as
a Defendant. (Doc. 4 at 1). He has also requested relief: $4 million in damages for
emotional harm, pain and suffering, loss of income, and loss of enjoyment of life. (Id.
at 7).
Plaintiff’s Amended Complaint is very vague. In it, he alleges that DCFS
fabricated “false charges without evidence” in 2005. (Id. at 6). He does not explain
what the false charges were, but suggests that DCFS failed to properly investigate
an incident. (Id.). He alleges that DCFS did “not conduct their investigation the
same as the police,” and did not “investigate many different people where the
incident occurred.” (Id.). As a result of this, he alleges that his “son was abducted.”
(Id.). Plaintiff’s sole allegation against Shepke is that she told Plaintiff that DCFS’s
“investigation is different.” (Id.).
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STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(a)(1), “any court of the United States may
authorize the commencement . . . of any suit, action or proceeding . . . without
prepayment of fees or security therefor, by a person who submits an affidavit that
includes a statement of all assets . . .” The same section instructs that courts “shall
dismiss the case at any time if the court determines that . . . the action or appeal . . .
fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(ii).
Dismissals pursuant to § 1915(e)(2)(B)(ii) are treated in the same manner as
dismissals under Federal Rule of Civil Procedure 12(b)(6). Arnett v. Webster, 658
F.3d 742, 751 (7th Cir. 2011). Therefore, the court must take “all well-pleaded
allegations of the complaint as true and view[] them in the light most favorable to
the plaintiff.” Id. A plaintiff’s complaint must contain sufficient detail to give notice
of the claim, and the allegations must “plausibly suggest that the plaintiff has a
right to relief, raising that possibility above a ‘speculative level.’” EEOC v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plausibility standard requires
enough facts “to present a story that holds together,” but does not require a
determination of probability. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.
2010). Pro se complaints are to be liberally construed and “must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erikson v. Pardus,
551 U.S. 89, 94 (2007)(per curiam).
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DISCUSSION
Plaintiff’s Amended Complaint fails to state a claim under § 1983. In order to
state a claim under § 1983, a plaintiff must allege that a person, acting under color
of law, deprived him of a federally protected right. See 42 U.S.C. § 1983. In this
case, Plaintiff has named Tina Shepke as a Defendant. However, he has not alleged
any facts that suggest she violated his federally protected right. The only fact with
respect to Tina Shepke that Plaintiff has alleged is that she told him that DCFS
investigates matters differently than the police do. (See Doc. 4 at 6).
Such a factual allegation does not begin to explain how Shepke might have
deprived Plaintiff of a federally protected right. As the Court explained in its Order
dismissing Plaintiff’s first Complaint, it appears that Plaintiff is alleging that his
due process rights were violated when his child was removed from his custody. (Doc.
3 at 4). To state such a claim in this context, Plaintiff must allege both that he had
a constitutionally protected liberty interest and that a state actor “caused a
deprivation of that liberty interest without due process of law.” See Doyle v. Camelot
Care Centers, Inc., 305 F.3d 606, 616 (7th Cir. 2002). However, Plaintiff has not
made any allegations with respect to Shepke’s role in the alleged investigation or in
the alleged “abduction.” He has not alleged that she was involved in any
investigation, and he has not alleged that she made any decisions that limited his
parental rights. See id.
As the Court observed in its order dismissing the first Complaint, it could not
discern a causal connection between DCFS’s investigation and the imposition of
custody restrictions on Plaintiff. In his Amended Complaint, Plaintiff has not pled
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any additional facts regarding the process through which his parental rights were
affected. He merely says that his son was abducted. Therefore, the Court still
cannot discern a causal connection between DCFS’s investigation and the manner
in which he lost custody rights. Because there are no such allegations in the
Amended Complaint, let alone allegations that relate to Tina Shepke, the Amended
Complaint does not sufficiently allege that a state actor caused Plaintiff’s
deprivation of liberty. See id.
The Court already provided Plaintiff with an opportunity to file an Amended
Complaint, as is his right. (See Doc. 3 at 5, citing Luevano v. Wal-Mart Stores, Inc.,
722 F.3d 1014, 1022 (7th Cir. 2013)). Although the Amended Complaint addressed
some of the flaws that the Court identified in the original Complaint, it still
altogether fails to explain how Plaintiff’s federal rights were violated by a state
actor. Plaintiff has made vague allegations that relate to an “incident” and an
“investigation,” but has not pled any sort of details that “present a story that holds
together.” Swanson, 614 F.3d at 404. Therefore, the Court must dismiss the
Amended Complaint.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Proceed
in Forma Pauperis (Doc. 5) is DENIED. On merit review pursuant to 28 U.S.C. §
1915(e)(2), Plaintiff’s claim against Defendant Tina Shepke is DISMISSED WITH
PREJUDICE. Plaintiff’s Motion to Request Counsel is therefore DENIED as MOOT.
(Doc. 6). CASE TERMINATED.
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Entered this 28th day of January, 2015.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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