Mohil et al v. Glick et al

Filing 105

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/1/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RAVIRAJ MOHIL, et al., etc.,
Plaintiffs,

)
)
)
)
)
)
)
)
)

v.
JILL GLICK, et al., etc.,
Defendants.

No.

07 C 1600

MEMORANDUM OPINION AND ORDER
Raviraj Mohil and Christina Mohil, on behalf of themselves
and their minor children Olivia and Hari (collectively termed
“the Mohils” and all individually referred to, for simplicity,
only by their first names), sued Jill Glick (“Dr. Glick”) and the
University of Chicago Medical Center (the “Hospital”), charging
that Dr. Glick and the Hospital had violated 42 U.S.C. §1983
(“Section 1983") by depriving them of rights secured by the
Fourth and Fourteenth Amendments.

On April 23, 2007 Dr. Glick

and the Hospital moved to dismiss the Complaint, arguing (1) that
they were not state actors and hence not constrained by Section
1983 and (2) that if they were held to be state actors, they were
entitled to qualified immunity.

After Mohils had filed a

response, this Court orally rejected both of those efforts to cut
Mohils off at the pass via Fed. R. Civ. P. (“Rule”) 12(b)(6):
1.

With Mohils’ allegations accepted as gospel,

together with their receiving the benefit of reasonable
inferences, both as called for by Rule 12(b)(6)

jurisprudence, the allegations sufficed to provide a
plausible assertion of state action by both defendants.
2.

Mohils had also identified clearly established

constitutional rights so that, depending on how the facts of
the case developed, they might well be able to prove a
violation of those rights, hence negating the early
availability of qualified immunity.1
Thereafter the parties engaged in prolonged discovery to
flesh out the facts, ultimately resulting in their joint
production of a proposed Final Pretrial Order (“FPTO”) looking to
trial of the case.

This Court entered the FPTO on August 24,

2011, and in the course of the conference that always antedates
and culminates in such an entry, defense counsel announced their
intention to renew those same motions, this time with the benefit
of a full airing of the facts developed during discovery.

This

Court scheduled the briefing of those motions as part of the
pretrial motion-in-limine practice, and the two motions are now
fully briefed as Dkt. Nos. 89 and 90 and ripe for disposition

1

That ruling anticipated the statement in Pearson v.
Callahan, 555 U.S. 223, 238-39 (2009) that “[w]hen qualified
immunity is asserted at the pleading stage, the precise factual
basis for the plaintiff's claim or claims may be hard to
identify.” As Judge Easterbrook had earlier observed in his
concurrence in Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th
Cir. 2000):
Rule 12(b)(6) is a mismatch for immunity and almost
always a bad ground of dismissal.
2

under Rule 56.
What follows then is a recital of the parties’ joint
statement of stipulated facts, followed in turn by the analysis
of the legal issues in light of those facts.

Because that

analysis shows that even though Dr. Glick and the Hospital are
indeed state actors (a conclusion as to which there may be some
difference of opinion), they are entitled not only to qualified
immunity in that capacity, but actually to absolute immunity.
That being so, Mohils do not have a viable claim under
Section 1983.

So this action must be and is dismissed, with all

remaining motions in limine by both sides being denied as moot.
Facts
Raviraj and Christina have two children, Olivia and Hari
(SUF ¶¶3-4).2

Olivia was born on April 25, 2005 (id. ¶18).3

Just a week later (on May 2) Raviraj and Christina brought Olivia
to the emergency room at Hinsdale Hospital and told doctors that
she had fallen from a kitchen counter (id. ¶19).

Neither had

witnessed the fall, but they reported that Hari had pulled Olivia

2

All citations to the parties’ Statement of Uncontested
Facts (attached as Ex. A to defendants’ Motion in Limine No. 1,
Dkt. 90) will appear as “SUF ¶--.” Because the parties have
submitted separate memoranda in connection with each motion in
limine, citations to defendants’ memoranda will simply take the
form “D. Mem. --,” and citations to Mohils’ responsive memoranda
will simply take the form “M. Mem. --,” without any need to
differentiate them further.
3

Further references to events during 2005 will omit
mention of the year.
3

down (id.).

After the hospital x-rayed Olivia’s spine and

performed a CT scan on her head, the doctors there saw no damage
reflected on the x-ray or CT scan (id.).
On June 17 Christina brought Olivia to her pediatrician, Dr.
Limaye, who found the baby to be in normal health (SUF ¶21).

On

June 30 Christina went to see her obstetrician, who noted that
Olivia was “good and easy to care for” but that Christina “can’t
stop crying” and “feels depressed” (id. ¶22), as a result of
which the obstetrician decided that Christina was suffering from
post-partum depression and prescribed Prozac for her (id.).

That

diagnosis was later confirmed by a psychiatrist (id. ¶23).
On July 14 Christina left Hari and Olivia with a 12-year-old
girl, whom she and Raviraj had hired to watch the children (SUF
¶25).

Christina went to a therapy appointment and then visited a

store (id.).

When the babysitter called Christina and reported

that Olivia was acting strangely and not moving her arms or legs
(id.),

Christina returned home to find Olivia unresponsive.

called 911 (id.).

She

Paramedics took Olivia to Hinsdale Hospital,

but Christina did not accompany her in the ambulance, instead
waiting for Raviraj to return home (id. ¶27).

When he did, the

couple went to the hospital, arriving roughly 15 minutes after
Olivia (id. ¶28).
Doctors at the hospital found that Olivia had abrasions to
her forehead and abdomen, subdural hematomas (bleeding in the

4

brain), and bilateral retinal hemorrhages (bleeding into the
retinas in both of her eyes)(SUF ¶28).

Those injuries were

reported by an ER nurse at Hinsdale Hospital to the Illinois
Department of Children and Family Services (“Child Services”), a
state agency charged with protecting children from abuse and
neglect (id. ¶¶9, 29).

That triggered an investigation by Child

Services, the Burr Ridge Police Department, the Du Page County
Children’s Center and the Du Page County State’s Attorney’s
Office (id. ¶29).

Meanwhile Hinsdale Hospital concluded that it

lacked the medical facilities necessary to treat Olivia, and it
transferred her to the Hospital (recall that this opinion uses
that capitalized term to refer to the University of Chicago
Medical Center)(id. ¶30).
Part of the Hospital is its Children’s Hospital, and one
department within the Children’s Hospital is called the
Department of Child Protective Services (“Department”) (SUF ¶7).4
Child abuse investigations require the police and various state
agencies to speak to a number of different hospital workers
(Glick Tr. 11-12), and the Hospital established the Department to
coordinate the flow of information from hospital workers to the

4

There is confusing overlap between the names of state
entity Child Services and private actor Department of Child
Protective Services. For purposes of this opinion the reader
should keep in mind that the term “Department” refers to a unit
of a private entity (the Hospital), while “Child Services”
denotes a state agency.
5

police and state agencies (id. 14-15).
In addition, the Hospital also participates in a state-run
program called the Multi-disciplinary Pediatric Education and
Evaluation Committee (“Committee”5)(SUF ¶8), created in 2001 to
provide a network of physicians skilled in the detection of child
abuse (id. ¶11).

Those physicians evaluate potentially abused

children to determine whether the medical evidence supports an
inference of child abuse (id.).

They provide their opinions to

Child Services and the police, and they serve as expert witnesses
in legal proceedings instituted by Child Services (id.).
To that end the Hospital receives money from the Cook County
Children’s Advocacy Center, a state agency, in exchange for its
doctors providing their expert review and consultation for the
Committee (Glick Tr. 19, 41-42).

Their contract calls for such

expert consultation as to children under the age of three who
reside in Chicago (id.).
When Olivia was brought to the Hospital, Dr. Glick was both
the director of the Department and under contract to provide
services for the Committee (Glick Tr. 19, 41-42).

Dr. Glick

performed such services for both the Child Protective Services
Department and the Committee, looking for medical evidence of

5

Although the Committee is commonly known by its acronym
“MPEEC,” this Court’s distaste for alphabet-soup designations
(particularly when the acronym is unpronounceable) usually leads
it to employ a common English word instead.
6

child abuse and relaying her findings, as well as the findings of
her colleagues, to the police and other state agencies (id. at
42-43; SUF ¶¶7, 11).
Because the nurse at Hinsdale Hospital had referred Olivia’s
case to Child Services, team members from the Department,
including Dr. Glick, examined her (SUF ¶31)(that work was not
part of Dr. Glick’s work for the Committee as such, because
Olivia was not from Chicago)(id.).

On July 15 Dr. Glick noted

that Olivia had “traumatic brain injury” and that the doctor
needed to “await retinal exam, review of medical records, review
imaging with radiology and [neurosurgery]” (id. ¶34).
Another physician at the Hospital, Dr. Greenwald, conducted
a retinal exam the same day.

Finding extensive retinal

hemorrhaging, he noted that “these findings are virtually
diagnostic of shaking injury.

No other reported cause of the

picture in an infant of this age” (SUF ¶33).

After further

observation of Olivia, Dr. Glick concluded that Olivia’s injuries
had resulted from abuse (id. ¶39).

She reported her conclusion

during a teleconference with the DuPage County Children’s Center,
Child Services, the Burr Ridge Police Department and the DuPage
County State’s Attorney’s Office (id.).
Dr. Glick then made a written report of her findings and
faxed it to those same entities--all state actors (SUF ¶40).
That report included her medical findings as well as the results

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of interviews conducted by social workers and medical staff in
the Hospital (id. ¶41).

Dr. Glick’s report also noted that

Christina had postpartum depression, had failed to accompany
Olivia to the hospital and had supposedly taken a shower before
going to the hospital (id. ¶43).

Dr. Glick excluded the May 2

fall as a cause of Olivia’s injuries, based on her examination of
the images and associated report generated at Hinsdale Hospital
after the fall and based on her review of the images with a
doctor from Hinsdale Hospital (id. ¶42).
On July 28 the police and various state agencies met to
discuss the case.

They agreed that they suspected Christina of

abusing Olivia but could not be sure without further
investigation (SUF ¶46).

Despite that uncertainty, a Child

Services worker decided to seek protective custody for Olivia
(id. ¶47).

Shortly thereafter someone advised Raviraj and

Christina that Child Services would seek protective custody of
Olivia and that the State’s Attorney planned to file criminal
charges against them (SUF ¶48).

They hired a lawyer.

Olivia was discharged from the Hospital on August 2 (SUF
¶49).

Before her discharge Child Services presented Christina

and Raviraj with a safety plan--a written agreement to place
Olivia and Hari in the custody of relatives, with limited
visitation from Christina and Raviraj (id. ¶49).
plan (id.).

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They signed the

On August 4 the State’s Attorney filed an Abuse and Neglect
Petition in the Circuit Court of DuPage County, alleging that
Olivia was an abused and neglected minor and that Hari was a
neglected minor and seeking protective custody for both children
(SUF ¶50).

There was a hearing on that Petition the same day,

with Christina and Raviraj present and represented by counsel
(id. ¶51).

At the conclusion of the hearing the court put the

children in protective custody, because Olivia “had sustained
serious injuries while in the care of her parents” (id. ¶51).
Months later, on March 21, 2006, Christina pleaded guilty to
one misdemeanor count of child endangerment (SUF ¶55).
fined and placed on probation (id.).

She was

Further juvenile court

proceedings took place sometime after that, with the parties
stipulating to the evidence presented at the earlier August 4
hearing (id. ¶56).

Those proceedings resulted in a court order

to Child Services to reunite Olivia and Hari with Raviraj and to
develop a safety plan for Christina (id.).

Under the new safety

plan Christina was not permitted to sleep in the home with the
children, but she was given the right to supervised visits with
them (id. ¶57).

On July 16, 2006 those restrictions were lifted

(id.).

9

State Action6
Section 1983 applies both to governmental actors and to
private entities that acted “under color” of state law.

Mohils

concede that Dr. Glick and the Hospital are not governmental
actors but assert that they acted under color of state law when
examining Olivia and presenting oral and written reports to the
police.

Brentwood Academy v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001) succinctly summed up the standard
for deciding when a private entity acts under color of state law:
Thus, we say that state action may be found if, though
only if, there is such a “close nexus between the State
and the challenged action” that seemingly private
behavior “may be fairly treated as that of the State
itself.”
That standard concededly “lack[s] rigid simplicity,” and “no one
fact can function as a necessary condition across the board for
finding state action; nor is any set of circumstances absolutely
sufficient” (id.).
Each side seeks to call to its aid caselaw that assertedly
deals with analogous situations and that assertedly supports the
desired result--state actor status for Dr. Glick and Hospital as
urged by Mohils, or no such status as urged by Dr. Glick and

6

That term and its counterpart “state actor” are not of
course to be taken literally. Instead they are the customary
shorthand terms for activities and persons functioning as part of
governmental activity at any level of government other than
federal--whether state, city, municipal or any other
instrumentality less comprehensive in scope. That generic usage
applies throughout this opinion.
10

Hospital.

By the same token, each side denigrates as

nonanalogous the caselaw authority advanced by the other.

Shades

of the approach brilliantly described in the late great Edward
Levi’s seminal article Introduction to Legal Reasoning7 as the
means by which legal doctrine changes shape!
In fact all such attempted analogies are imperfect, as we
learn in law school and as we practice professionally via the
process of distinguishing earlier precedents.

Here it is far

more constructive to examine the core values that are served by
the concepts at issue.
In that respect it is not merely tautological, but rather a
truism, to recognize that a “state actor” is someone who
participates in “state action” in a meaningful and essential way.
Take the governmental function of seeking to prevent, or to deal
with, child abuse.

It would of course be intolerable to permit

amateurs--lay personnel--to reach judgments independent of
skilled medical evaluations and to make those amateur judgments
the basis for separating children from their parents.

7

Instead

This Court was privileged to have had that tour de force
by then Professor Levi (later Dean of the Law School, President
of the University of Chicago and United States Attorney General)
published during its own tenure as Editor-in-Chief of the
University of Chicago Law Review (15 U. Chi. L. Rev. 502 (1948)).
Later that work, which demonstrates graphically that so-called
“legal reasoning” fails to satisfy the rigorous elements of
logical proof, as explained in Logic 101 and advanced courses on
the subject, was published in book form.

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the expertise of medical professionals necessarily plays a key
role--in many ways, the most important role--in evaluating both
the effects and the causes of child abuse.
In short, it cannot be disputed that the governmental task
in the field of child abuse could not function responsibly
without the invaluable input provided by medical professionals.
And when those professionals are not themselves governmental
employees, it is equally beyond dispute that the
interrelationship between those professionals and the purely
governmental people involved in the decisionmaking process is
truly a close entwinement (the word repeatedly used in Brentwood
Academy as meeting the state-actor test).

Whether because the

recruiting of top people to fulfill the medical professionals’
function on a full-time basis would not have been feasible, or
for some other reason or congeries of reasons, that is obviously
why the Committee contracted for such service from Dr. Glick and
the Hospital, rather than hiring staff doctors (who would by
definition have been “state actors”).
Nor is there any legitimate basis for arguing that different
treatment, or a different analysis, is called for because Olivia
does not reside in Chicago and therefore was not evaluated when
Dr. Glick and the Hospital might be said to have been wearing
their contractual hats.

There is no gainsaying the fact that

they were brought into the process for exactly the same reason,

12

and to perform exactly the same function, as under the contract,
and to do so precisely because their expertise was vital to, and
an integral part of, the governmental act--and therefore they are
by definition “state actors” for Section 1983 purposes.
Immunity
But Mohils have cleared that state actor hurdle only to fall
at the next:

the need to avoid foundering on the shoals of

immunity--not just qualified immunity, but absolute immunity.8
This opinion turns then to that issue.
As for qualified immunity, Pearson, 555 U.S. at 232 teaches
that on such a claim a court “must decide whether the facts that
a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c))
or shown (see Rules 50, 56) make out a violation of a
constitutional right” and also “whether the right at issue was
‘clearly established’ at the time of defendant’s alleged
misconduct.”

Mohils fail on the first of those two requirements:

As now fully developed, rather than in the initial threshold Rule

8

This Court is aware that Richardson v. McKnight, 521 U.S.
399 (1997) has been understood to hold that private entities who
act under color of state law are not entitled to qualified
immunity, though some cases limit its reach to the specific facts
of that case, in which a private firm managed a prison with
limited government supervision. Questions regarding the reach of
Richardson as to qualified immunity in a case such as this one
may perhaps be clarified in the recently argued Filarsky v.
Delia, United States Supreme Court Docket No. 10-1018. But how
Filarsky is decided is irrelevant here, because as discussed
later Dr. Glick and the Hospital are entitled to absolute
immunity.
13

12(b)(6) terms (see the introductory explanation in this
opinion), the facts do not make out a violation of a
constitutional right.
Raviraj and Christina claim that Dr. Glick violated three
constitutional rights:

their fundamental right to familial

relations, their right to due process before the seizure of their
children, and Olivia’s and Hari’s Fourth Amendment rights to be
free from unreasonable seizures.

Those alleged violations stem

from Dr. Glick’s medical opinion that Olivia’s injuries were
inflicted, which Mohils say was biased and “failed to meet the
standards of evidence based medicine” (M. Mem. 11).
Analysis of Mohil’s contention reveals that they have
really advanced a state law negligence or medical malpractice
claim masquerading as a constitutional violation.

Nothing that

Dr. Glick did in her investigation or report deprived Mohils of
any constitutional right.
To understand why, it’s helpful to start with a brief
chronological recapitulation of the events leading up to Olivia’s
and Hari’s placement in the custody of a family member.9

From

July 14 until August 2 Olivia was in the hospital and Hari was
with his parents--hence there was plainly no governmental
seizure, and thus no constitutional violation, during that time.

9

Once again dates without a year designation denote
occurrences during 2005.
14

Then on August 2 Child Services presented Mohils with a safety
plan--an agreement by which the State agreed to postpone placing
the children in foster care and Mohils agreed to place the
children in the care of relatives and limit their visitation of
the children.

Safety plans are voluntary, which is why Dupuy v.

Samuels, 465 F.3d 757, 761 (7th Cir. 2006) ruled that safety
plans do not infringe any substantive rights of parents.

So

there’s still no constitutional violation as of August 2.
Then on August 4 the Mohils had a hearing at which a judge
determined that Olivia and Hari should be placed in protective
custody because Olivia “had sustained serious injuries while in
the care of her parents,” a finding that was confirmed on March
21, 2006 when Christina pleaded guilty to one misdemeanor count
of child endangerment (SUF ¶55).

So Mohils received notice and a

hearing at which they were represented by counsel (satisfying
their right to due process), and their children were “seized” (in
the language of the Fourth Amendment) based on a factual finding
that they do not contest even today (putting to rest any question
of a Fourth Amendment violation or a fundamental right
violation).
But Mohils have a claimed answer:

the principle announced

in Brokaw v. Mercer County, 235 F.3d 1000, 1012 (7th Cir. 2000)
that “[a]n official causes a constitutional violation if he sets
in motion a series of events that defendant knew or reasonably

15

should have known would cause others to deprive plaintiff of
constitutional rights.”

According to Mohils, Dr. Glick’s report

caused Child Services to seek custody of Olivia and Hari and
caused the court to rule in the state’s favor.

In those terms

she assertedly set into motion the events that resulted in
Olivia’s and Hari’s forced separation from their parents, a
constitutional violation.
That position is seriously flawed, with its principal
substantive defect being its premise that the seizure of Olivia
and Hari violated the Constitution.

It didn’t.

Indeed, Brokaw,

id. at 1019 expressly confirmed that “some definite and
articulable evidence giving rise to a reasonable suspicion that a
child has been abused or is in imminent danger of abuse” suffices
to justify the seizure of children under both the Fourth
Amendment and the fundamental right analysis.

And on that score

(essentially a probable-cause standard) Siliven v. Ind. Dep’t of
Child Servs., 635 F.3d 921, 927 (7th Cir. 2011 (internal
citations and quotation marks omitted)) has recently reconfirmed:
But, while probable cause requires more than
bare suspicion, it does not demand
probability or even a showing that the
officer’s belief is more likely true than
false. Moreover, probable cause need not be
based on evidence sufficient to support a
conviction.
In this instance there was clearly probable cause to support
the initial decision to seek to remove Olivia and Hari from the

16

custody of Christina and Raviraj.

Olivia had been injured twice

while in the care of her parents.

That was enough to provide

probable cause for the belief that Olivia and Hari were in danger
of future injuries.

Dr. Glick’s report hypothesized that

Olivia’s injuries had been intentionally inflicted, perhaps by
Christina who had recently been diagnosed with post partum
depression and had taken some questionable actions in the recent
past (such as ignoring a pediatrician’s advice to take Olivia to
the emergency room).

But even without Dr. Glick’s report, there

was probable cause to seek the children’s removal from
Christina’s and Raviraj’s care when one of the children had been
severely injured on their watch.
What’s more, no actual seizure occurred until after Mohils
had received a hearing--recall that before the hearing the
parents had voluntarily relinquished custody of their children by
signing the safety plan.

So to the extent that Mohils were

assertedly injured by Dr. Glick’s report, it had to have been
solely as a result of the use of the report at the hearing.
That, however, actually spells defeat for Mohils’ claim, for
reasoned court decisions require that witnesses put their best
foot forward at hearings and present the judge with their
unvarnished views of the facts, unencumbered by a fear of future
liability for their testimony.

So cases such as Manning v.

Miller, 355 F.3d 1028, 1031-32 (7th Cir. 2004) hold that

17

testimony in court is protected by immunity--immunity that is
absolute and not qualified.

And although Dr. Glick did not

testify in person at the hearing, Giffin v. Summerlin, 78 F.3d
1227, 1231 (7th Cir. 1996)(per curiam) holds that “[t]he policy
considerations underlying witness immunity for testimony in open
court apply with equal force to other forms of testimony such as
depositions and affidavits.”

Dr. Glick is thus absolutely immune

to claims of damage from the introduction of the report at the
hearing, and the Hospital--whose fate is inextricably linked to
hers for purposes of this case--is likewise absolutely insulated
against Section 1983 liability.
In a sort of fallback argument, Mohils say that they could
not contest Dr. Glick’s findings because they did not have enough
time to review her report before the hearing (M. Mem. 16).

In

his deposition testimony, the attorney who represented them at
the hearing said that he did not think that he could get a long
enough continuance to mount a serious challenge to the report
(id.).

That was a strategic decision that the attorney was

entitled to make, but it too cannot justify an award of damages
against Dr. Glick in the face of her absolute immunity.
Conclusion
Although the Dr. Glick-Hospital Motion in Limine No. 1 (Dkt.
90)--that dealing with the “state actor” issue--is denied, their
Motion in Limine No. 2 (Dkt. 89)--that asserting immunity--is

18

granted, albeit on a somewhat different basis.

And that means

Mohils have no claim for relief under Section 1983.

Hence the

entire action must be and is dismissed with prejudice.

That in

turn means that all other motions in limine by each side (Dkt.
Nos. 82-85 by Mohils and Dkt. Nos. 87, 88 and 91 by Dr. Glick and
the Hospital) are denied on mootness grounds.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 1, 2012

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