G. et al v. Corona et al

Filing 56

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 1/17/2012: Mailed notice (mw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIA V., et al.,

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Plaintiffs,
v.
ELISA CORONA, et al.,
Defendants.

No. 11 C 1538

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Elisa Corona’s (Corona),
Defendant Sousan Bahavar’s (Bahavar), Defendant Alicia Pickett’s (Pickett),
Defendant Roi Montalvo’s (Montalvo), Defendant Stany D’Souza’s (D’Souza), and
Defendant DCFS Director Erwin McEwen’s (McEwen)(collectively, “DCFS
Defendants”) motion to dismiss the claims brought against them in their official
capacity. For the reasons stated below, the partial motion to dismiss is denied.

BACKGROUND
Plaintiff Maria V. and her minor children, Plaintiff S.G. and Plaintiff B.G.,
allege that in July 2008, S.G. reported to Maria V. that her father, H.G., had sexually
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abused her. H.G. allegedly denied that he had sexually abused S.G., and Maria V.
allegedly discussed what to do with her personal counselor. Shortly after, Maria V.’s
counselor called an Illinois Department of Children and Family Services (DCFS)
Hotline to report S.G.’s claim of sexual abuse, as required by Illinois law. Pickett
and Corona, as investigators for DCFS, allegedly each went to the family’s home in
July of 2008 to investigate the matter. Defendant Child Advocacy Center of
Hoffman Estates (CAC) allegedly then interviewed S.G. and B.G., and after the
interview, the allegations of sexual abuse were determined to be “unfounded.”
In October 2008, another issue arose and H.G. again allegedly denied any
wrongdoing. Maria V. then allegedly contacted Corona, who instructed Maria V. to
report the matter to the police. The police allegedly searched the family’s home and
found a pornographic video among the children’s PlayStation games. Maria V. and
H.G. allegedly separated shortly thereafter, and H.G. moved to another residence.
In late October 2008, Maria V. allegedly informed the children’s doctor that
she suspected that the children had been sexually abused by H.G., and B.G. allegedly
reported instances of sexual abuse to the doctor and to Maria V. Allegedly, a CAC
employee later interviewed the children in the presence of Corona and others. In
addition, Maria V. was allegedly questioned regarding her marital relationship, was
informed that the children had not reported any sexual abuse during the CAC

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interviews, and was accused of making false reports against H.G. Plaintiffs claim
that no official notice of this allegation against Maria V. was ever provided to her
and that, regardless, such “coaching” does not constitute child abuse. Plaintiffs also
claim that Corona, allegedly with the support of her supervisor, Bahavar, “relied
upon a ground for DCFS intervention against a parent that did not exist as a matter of
law.” (A Compl. Par. 37). In late November 2008, Maria V. allegedly received
notification that, after conducting a second investigation, DCFS had concluded that
both the allegations of child abuse against her husband and the allegation of
“coaching” against her were determined to be “unfounded.”
In February 2009, Maria V.’s children allegedly began counseling with
Miriam Lopez (Lopez) at a center that provides services to victims of sexual assault.
In late May 2009, Maria V. and H.G. divorced and Maria V. was awarded primary
custody of the children pursuant to a Joint Parenting Agreement (Agreement).
Pursuant to the Agreement, Maria V. and H.G. worked out a visitation schedule that
did not include any overnight visits with H.G. After the divorce, both children
allegedly continued to report that H.G. had abused them at the family’s home prior to
Maria V.’s and H.G.’s separation. Plaintiffs allege that Maria V. again reported this
information to her counselor and that, based on her counselor’s advice, Maria V.
called the DCFS Hotline to report the abuse.

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Shortly after, Corona allegedly began investigating the new allegations of
abuse and, on July 1, 2009, Corona removed S.G. and B.G. from Maria V.’s custody
for one day, allegedly with no safety plan, court order, or any other legal authority.
Approximately three weeks later, Corona allegedly informed Maria V. that the third
investigation had been closed and that DCFS had again determined the allegations of
sexual abuse against H.G. to be “unfounded.” Bahavar also allegedly communicated
this information to Lopez and also told Lopez that Bahavar believed that Maria V.
might be “coaching” the children to make false reports of sexual abuse against H.G.
Lopez allegedly indicated to Bahavar that Lopez did not believe such coaching had
occurred, and Bahavar allegedly indicated to Lopez at that time that the investigation
against Maria V. regarding the alleged coaching would likely be resolved as
“unfounded” and the case transferred to an intact family services team, with referrals
for H.G. to complete a sex offender evaluation and Maria V. to undergo a
psychological examination.
After the close of the third investigation, the children’s visits with H.G.
allegedly resumed, and soon thereafter S.G. allegedly began to have problems
sleeping. In November 2009, S.G. allegedly reported further sexual abuse to her
aunt, who reported the information to the DCFS Hotline. CAC allegedly interviewed
the children, but a DCFS investigator allegedly told Maria V. that DCFS could not

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accept the new report. In addition, S.G. allegedly reported additional incidents of
sexual abuse to Lopez in therapy sessions that occurred throughout November 2009.
Lopez allegedly attempted to contact DCFS regarding S.G.’s statements at least three
times in late November 2009, and was allegedly informed by Corona in December
2009 that a sex offender evaluation suggested there was some likelihood that H.G.
was a sex offender and that there was a recommendation that H.G. have no further
contact with the children. In late December 2009, DCFS allegedly authorized H.G.
to speak with the children, and in January 2010, DCFS allegedly authorized H.G. to
see the children.
In early January 2011, an additional report of sexual abuse was allegedly
made, and thereafter, DCFS investigator Celmira Bolanos (Bolanos) allegedly forced
Maria V. to sign a safety plan placing the children in the custody of their babysitter
and prohibiting Maria V. from having contact with the children. Bolanos allegedly
took such actions without DCFS ever having provided Maria V. with any
documentation of any allegations made against her. Corona was allegedly also
involved in this investigation and allegedly required the children to submit to an
interview at CAC. A short time later, Bolanos allegedly accused Maria V. of
coaching the children, but indicated that the children could return to Maria V.’s
custody and be contacted by H.G. DCFS later “unfounded” the case against H.G.

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In March 2010, both children allegedly exhibited sleep disturbances. In early
April, a DCFS Investigator identified as “Ms. Rivera” (Rivera) allegedly went to
Maria V.’s home to enroll her in a program that would permit the children to
continue counseling with Lopez. Later that day, Rivera allegedly informed Maria V.
that H.G. had passed all evaluations that DCFS had subjected him to and denied that
any of the evaluations had shown some likelihood that H.G. was a sex offender.
Rivera also allegedly denied that Lopez had ever made any reports to the DCFS
Hotline, accused Maria V. of making all the Hotline reports and coaching the
children, and threatened to remove the children from Maria V.’s custody.
The children’s sleep disturbances and reports of sexual abuse allegedly
continued in April and May 2010. Lopez allegedly again reported the abuse to the
DCFS Hotline. DCFS Investigator Esther Cordova, after conducting an interview
with the children, allegedly accused Maria V. of coaching the children. DCFS
allegedly again took the children into state custody without providing Maria V. any
documentation regarding any allegations against her. In addition, at the close of the
investigation, DCFS allegedly again “unfounded” the allegations against H.G.
In December 2010, the children allegedly made additional allegations of
sexual abuse to Lopez, which Lopez allegedly reported via the DCFS Hotline.
Allegedly Corona, under the supervision of Bahavar, conducted another

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investigation. On January 10, 2011, Corona allegedly requested that Maria V. bring
the children to CAC to be interviewed. There, Maria V. was allegedly accused of
coaching her children, and the children were allegedly removed from Maria V.’s
custody without her consent and without probable cause or a reasonable suspicion
that Maria V. had abused or neglected her children or that the children were in
imminent risk of harm from Maria V. Upon removal from Maria V’s custody, the
children were allegedly placed in the custody of H.G. under another safety plan,
despite Maria V.’s alleged protests. Maria V. was allegedly instructed to leave CAC
without her children. Plaintiffs allege that, pursuant to DCFS policy, Bahavar’s
supervisors, Montalvo and/or D’Souza, would have been required to approve the
removal of the children from Maria V.’s custody without her consent and the
placement of the children with H.G. In addition, Plaintiffs allege that CAC also
participated in or permitted DCFS’ removal of the children from Maria V.’s custody
without her consent.
On January 25, 2011, Maria V. allegedly received a copy of a safety plan
signed by H.G., which prohibited Maria V. from contacting her children and required
Maria V. to submit to a psychological evaluation. On February 1, 2011, Maria V.
allegedly contacted Corona to request permission to see her children, since the safety
plan had allegedly expired by its terms. Corona allegedly failed to respond to Maria

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V., but communicated to H.G. that the safety plan was still in effect and that he
should not permit Maria V. to have any contact with her children. Allegedly under
the direction of Pickett, the children continued to reside with H.G. and the children’s
contact with Maria V. was allegedly limited to telephone calls until Maria V. agreed
to submit to “an unspecified psychiatric assessment.” (A Compl. Par. 70). Plaintiffs
allege that at no time during the events described above did DCFS file a petition for
temporary custody in the juvenile court, nor did any court ever modify Maria V.’s
rights with respect to the custody of her children.
On February 18, 2011, Pickett allegedly informed Maria V. that H.G. had
secured an order of protection against her. Plaintiffs allege that Maria V. did not
receive any notice of such action against her or any copy of the order of protection.
A short time later, H.G. allegedly offered to allow Maria V. to visit her children, and
Maria V. allegedly sought permission from Corona to visit her children. Corona
allegedly denied Maria V. access to the children because Maria V. had not submitted
to a psychological evaluation. Maria V. allegedly indicated to Corona that she was
never told where to go for such an evaluation, and Corona allegedly accused Maria
V. of coaching the children and hung up on her. Plaintiffs allege that from January
10, 2011 until March 9, 2011, Maria V. was largely denied any contact with her
children, and additionally that the children were denied access to needed counseling

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during that time period. In addition, Plaintiffs allege that DCFS permitted Maria V.
to regain custody of her children only after the filing of the complaint in this case and
that H.G. is allegedly permitted to visit the children pursuant to a court order.
Plaintiffs further allege that in late April, 2011, S.G. made another report of
sexual abuse, that Maria V. took S.G. to the hospital after S.G. made this report, that
the hospital informed the police of S.G.’s report, and that the police directed that
H.G. have no further contact with the children. After DCFS learned of these facts,
two investigators allegedly visited Maria V.’s home and indicated that they are
currently investigating the report. According to Maria V., H.G. has not denied this
instance of reported sexual abuse, and has allegedly informed Maria V. that she
could have complete custody of the children. In addition, on May 19, 2011, B.G.
allegedly disclosed to school officials that H.G. had physically abused him, and
Maria V. was allegedly informed by school officials that DCFS would be notified of
this allegation.
Plaintiffs include in their Amended Complaint claims against Corona,
Bahavar, Montalvo, and D’Souza, each in their individual capacities, and against
CAC, alleging unlawful seizure in violation of the Fourth Amendment brought under
42 U.S.C. § 1983 (Section 1983) based upon the alleged seizure on January 10, 2011
(Count I), Section 1983 claims against Corona, Bahavar, Pickett, Montalvo, and

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D’Souza, each in their individual capacities, alleging a violation of S.G. and B.G.’s
Fourth Amendment and due process rights based upon their alleged continued
seizure from January 10, 2011 until March 9, 2011 (Count II), Section 1983 claims
against Montalvo, D’Souza, Bahavar, Pickett, and Corona, each in their individual
and official capacities, alleging violations of procedural and substantive due process
(Count III), and Section 1983 due process policy claims against Montalvo, D’Souza,
Bahavar, Pickett, Corona, each in their individual and official capacities, and
McEwen, in his or her official capacity (Count IV). DCFS Defendants move to
dismiss the claims brought against them in their official capacities in Counts III and
IV.

LEGAL STANDARD
In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Rule 12(b)(6)), a court must “accept as true all of the allegations
contained in a complaint” and make reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(stating that the tenet is “inapplicable
to legal conclusions”); Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d 750,
753 (7th Cir. 2002). To defeat a Rule 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is

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plausible on its face.” Iqbal, 129 S.Ct. at 1949 (internal quotations omitted)(quoting
in part Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that
contains factual allegations that are “merely consistent with a defendant’s liability
. . . stops short of the line between possibility and plausibility of entitlement to
relief.” Iqbal, 129 S.Ct. at 1949 (internal quotations omitted).

DISCUSSION
DCFS Defendants argue (1) that the claim brought against McEwen should be
dismissed because Plaintiffs have not alleged that McEwen was personally involved
in the investigations at issue, (2) that the claims brought against DCFS Defendants in
their official capacities should be dismissed because they are barred by the Eleventh
Amendment, and (3) that the claims brought against DCFS Defendants in their
official capacities should be dismissed because Plaintiffs lack standing to sue for
prospective injunctive relief.

I. Personal Involvement by McEwen
DCFS Defendants argue that the claim against McEwen should be dismissed
because Plaintiffs have not alleged that McEwen was personally involved in the
matters at issue. A state actor can only be held individually liable under Section

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1983 if he was “personally responsible for the constitutional deprivation.” J.H. ex
rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003)(citations omitted)(internal
quotations omitted). Therefore, a supervisor cannot be held individually liable under
Section 1983 unless he “had some personal involvement in the constitutional
deprivation, essentially directing or consenting to the challenged conduct.”
Id.(citations omitted)(internal quotations omitted). However, where a plaintiff
alleges that a state actor was responsible for creating or maintaining policy, practices
and customs that resulted in a constitutional violation, such facts are sufficient to
allege personal involvement in the constitutional deprivation. See Doyle v. Camelot
Care Centers, Inc., 305 F.3d 603, 615 (7th Cir. 2002)(indicating that a plaintiff could
sufficiently plead a Section 1983 claim against a supervisor in his individual capacity
by alleging that the supervisor “created policy, practices and customs” relating to the
matters at issue in a case). Further, a plaintiff may bring a Section 1983 claim
against a supervisor in his official capacity to challenge the official policies of a state
entity. See Hill v. Shelander, 924 F.2d 1370, 1372-74 (7th Cir. 1991)(indicating that
“in an official capacity suit the plaintiff alleges that the defendant was party to the
execution or implementation of official policy or conduct by a government because
the real party in interest is the entity”).
In the instant action, Plaintiffs have sued McEwen in his official capacity,

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seeking declaratory and permanent injunctive relief “to ensure that the policies and
practices [alleged] are not applied to Plaintiffs in the future” and to ensure that in the
future the children are not separated from Maria V. without due process of law. (A.
Compl. Par 108). In support of their claim against McEwen, Plaintiffs have alleged
that McEwen “is responsible for ensuring that DCFS policies and practices conform
to Illinois and federal law.” (A Compl. Par. 16). In addition, Plaintiffs have alleged
that DCFS investigators “have a practice, custom and usage of disregarding the
limitation of the scope of their authority as set forth in DCFS rules and written
procedure,” and as provided for under Illinois and federal law. (A. Compl. Par. 21,
26, 29, 110). Plaintiffs have further alleged that McEwen has permitted unlawful
practices, customs, or usage to continue “despite his legal duty to ensure that
employees of DCFS operate lawfully. . . .” (A. Compl. Par. 109, 112). Such facts
are sufficient to state a Section 1983 claim against McEwen.

II. Eleventh Amendment Bar
DCFS Defendants contend that the Eleventh Amendment bars the claims
brought against them in their official capacities. In support of their argument, DCFS
Defendants argue (A) that Plaintiffs have failed to sufficiently allege an ongoing
constitutional violation, (B) that Plaintiffs are improperly seeking an order requiring

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DCFS Defendants to conform their conduct to state law, and (C) that Plaintiffs are
improperly seeking an order that would interfere with DCFS Defendants’ state law
mandate to investigate allegations of child abuse.

A. Whether Plaintiffs Have Alleged an Ongoing Constitutional Violation
DCFS Defendants argue that the claims brought against them in their official
capacities are barred by the Eleventh Amendment because Plaintiffs have not alleged
an ongoing constitutional violation or that Plaintiffs will likely be subject to
constitutional violations in the future. Under the Eleventh Amendment, “states, as
sovereigns in our federal system, will not be held amenable to suit in federal court
without their consent.” Protestant Memorial Medical Center, Inc. v. Maram, 471
F.3d 724, 728 n.3 (7th Cir. 2006). In other words, the Eleventh Amendment
generally “bars actions in federal court against a state, state agencies, or state
officials acting in their official capacities. . . .” Peirick v. Indiana University-Purdue
University Indianapolis Athletics Dept., 510 F.3d 681, 695 (7th Cir. 2007).
However, in Ex parte Young, 209 U.S. 123 (1908), the Supreme Court established an
exception to the Eleventh Amendment bar on claims brought nominally against a
state.
The Court held in Young that “a suit challenging the constitutionality of a state

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official’s action is not one against the State.” Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 102 (1984). The Court reasoned that “an unconstitutional
enactment is ‘void’ and therefore does not ‘impart to [the officer] any immunity from
responsibility to the supreme authority of the United States.’” Id. (citing Young, 209
U.S. at 160). The court further reasoned that if “the State could not authorize the
action, the officer was ‘stripped of his official or representative character and [was]
subjected to the consequences of his official conduct.’” Pennhurst, 465 U.S. at 102
(citing Young, 209 U.S. at 160). Therefore, under the Young exception, a plaintiff
could “file suit[ ] against state officials [acting in their official capacities] seeking
prospective equitable relief for ongoing violations of federal law.” Indiana
Protection, 603 F.3d 365, 371 (7th Cir. 2010)(internal quotations omitted)(quoting
Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997)); see also Vickery v. Jones, 100
F.3d 1334, 1346-47 (7th Cir. 1996)(stating that “the Young exception permits relief
against state officials only when there is an ongoing or threatened violation of federal
law”).
DCFS Defendants argue that Plaintiffs’ alleged need for prospective injunctive
relief is speculative and remote. In support of their argument, DCFS Defendants rely
on Plaintiffs’ allegation that H.G. has told Maria V. that “she could now ‘keep the
children’ completely.” (A. Compl. Par. 78). The Supreme Court has advised that

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“[p]ast wrongs [are] evidence bearing on ‘whether there is a real and immediate
threat of repeated injury’” and that the relevant inquiry is whether the alleged facts
demonstrate a likelihood that a plaintiff’s constitutional rights will again be violated.
City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983)(quoting O’Shea v.
Littleton, 414 U.S. 488, 196 (1974)). In this case, Plaintiffs have alleged that DCFS
Defendants have violated their federal constitutional rights on multiple occasions by
employing numerous unconstitutional policies or practices. Plaintiffs have further
alleged that there is a current investigation pending that Plaintiffs believe will result
in further violations of their constitutional rights. H.G.’s alleged informal statement
that he is willing to give up his rights to the children does not negate the fact that
Plaintiffs have alleged sufficient facts relating to alleged constitutional violations and
have alleged sufficient facts relating to the likelihood that they might be subject to
constitutional violations in the future. This ruling is based on the facts alleged,
which must be taken as true at the pleadings stage. At the summary judgement stage,
Plaintiffs will be required to point to sufficient evidence to support their claims.

B. Conformity to State Law
DCFS Defendants argue that Plaintiffs’ claims for injunctive relief must be
dismissed because the Eleventh Amendment bars the court from ordering DCFS

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Defendants to conform their conduct to state law. Notwithstanding Young, the
Eleventh Amendment precludes a federal court from ordering a state to conform its
conduct to state law. Pennhurst, 465 U.S. at 106 (holding that the exception
established in Young is inapplicable to “a suit against state officials [brought] on the
basis of state law”). In this action, Plaintiffs have not merely alleged that DCFS
Defendants violated state law. Plaintiffs have alleged federal constitutional
deprivations in addition to violations of state law. Therefore, the dismissal of
Plaintiffs’ claims for injunctive relief pursuant to the Eleventh Amendment would
not be appropriate.

C. Interference with State Law Mandate
DCFS Defendants argue that Plaintiffs’ claims for injunctive relief must be
dismissed because the injunctive relief sought would restrain DCFS Defendants from
complying with their “statutory mandate to investigate reports of child abuse and
neglect” and would, in effect, “[prohibit DCFS] Defendants from following the law.”
(Mem. 2, 8). The court is not entering an injunctive order at this juncture. Further,
even if the court were to enter the requested relief, it would not conflict with state
law since state law cannot authorize federal constitutional violations. See Alden v.
Maine, 527 U.S. 706, 747 (1999)(recognizing that the Constitution is “the supreme

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law of the land”). Therefore, the dismissal of Plaintiffs’ claims for injunctive relief
pursuant to the Eleventh Amendment would not be appropriate at this juncture.

III. Plaintiffs’ Standing to Sue for Prospective Injunctive Relief
DCFS Defendants argue that Plaintiffs lack standing to sue for prospective
injunctive relief because Plaintiffs have failed to sufficiently allege that future harm
to them is imminent. Pursuant to Article III of the United States Constitution, the
court may only exercise jurisdiction over a plaintiff’s claims if “an actual case or
controversy” exists. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)(citations
omitted). To satisfy the standing component of this requirement, “[a] plaintiff must
show that he has sustained or is immediately in danger of sustaining some direct
injury as the result of the challenged official conduct and the injury or threat of injury
must be both real and immediate, not conjectural or hypothetical.” Id. at 101-02
(citations omitted)(internal quotations omitted). As discussed above, Plaintiffs have
alleged sufficient facts that not only have they suffered injury in the past, but that
they are likely to suffer further injury in the near future as a result of official conduct.
Therefore, Plaintiffs have standing to sue for prospective injunctive relief. Based on
the above, the court denies DCFS Defendants’ motion to dismiss the claims brought
against them in their official capacities.

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The court notes that, at this juncture, the court is merely ruling on the
sufficiency of the allegations in the complaint, which must be accepted as true. At
this juncture, the court is not making any ruling on the merits of Plaintiffs’ claims.
The court, by this ruling, is not enjoining DCFS Defendants from acting in the best
interests of children or otherwise engaging in any activities necessary to protect the
safety of children, including the minor Plaintiffs.

CONCLUSION
Based on the foregoing analysis, the court denies DCFS Defendants’ partial
motion to dismiss.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: January 17, 2012

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