Hicks v. Clark et al
Filing
152
MEMORANDUM Opinion and Order: For the reasons announced orally during this Court's June 1, 2015 hearing and recast in written form here, all defendants' motions for dismissal from Hicks' Third Amended Complaint are denied, and all defendants are ordered to file answers to the Third Amended Complaint on or before June 29, 2015. Finally, a status hearing is set for 9 a.m. July 13, 2015. Signed by the Honorable Milton I. Shadur on 6/4/2015:Mailed notice(clw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTOPHER HICKS,
Plaintiff,
v.
BARRY CLARK, et al.,
Defendants.
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Case No. 13 C 989
MEMORANDUM OPINION AND ORDER 1
Just short of four decades have elapsed since Christopher Hicks ("Hicks") was
appallingly returned to the custody of his adoptive mother Gloria Jemmison ("Jemmison")
despite the unquestioned and serious child abuse that he had sustained at her hands and that had
led to Department's originally ousting her from such custody only a few months earlier. And
even more appallingly, that pattern of grievous physical abuse not only resumed immediately but
actually worsened during the next few years -- abuse that was fully documented and well known
to Department and its cohorts 2 -- until Jemmison's custody of Hicks was finally revoked
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1
This memorandum opinion and order memorializes and formalizes in written form the
rulings announced by this Court in its extended oral in-court statement on June 1. On reflection
this Court has decided that the analysis tendered by defendant Department of Children and
Family Services ("Department") and its related co-defendants was so fundamentally flawed that
a full-blown exposition of its defective nature will serve the public interest.
2
Third Amended Complaint ("TAC") ¶¶ 35, 36, 47, 49, 51, 53, 55 and 57, which must of
course be credited for Fed. R. Civ. P. ("Rule") 12(b)(6) purposes, recount documented evidence
of the sheer cruelty repeatedly practiced by Jemmison against the helpless child then in her
charge. To characterize her as Hicks' "mother" does total violence to the normal connotations of
that label in the English language.
permanently. 3 According to Hicks, his long-repressed memory of that deplorable situation has
emerged from the depths of despond only recently, and he seeks recompense for that horrific
experience through this 42 U.S.C. § 1983 ("Section 1983") action, coupled with related state law
claims under the auspices of the supplemental jurisdiction provision of 28 U.S.C. § 1367.
At this point the most recent reiteration of Hicks' claims is embodied in his TAC, 4 and
the two sets of defendants have taken aim at that pleading by separate motions. Because the
motion by Department and its cohorts advanced a "Gotcha!" type of argument of qualified
immunity that sought to rest on a similar child abuse case that rejected legal responsibility on the
part of a Wisconsin state agency (DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S.
189 (1989)), this Court's immediate response was to focus defense counsel's attention on the
obvious proposition that it was totally improper to judge defendants' conduct during the 1970s
and very early 1980s by a standard not announced by the United States Supreme Court until a
decade later -- a kind of "post hoc ergo propter hoc" approach. 5
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3
According to TAC ¶¶ 23 and 5, the time during which Hicks was subjected to
Jemmison's brutality spanned his years from age 3 through age 8.
4
Hicks' counsel had earlier filed a motion to strike some affirmative defenses from the
response to his Second Amended Complaint. This Court's brief April 21, 2015 memorandum
order granted leave for the filing of Hicks' then-proposed TAC and ordered the two sets of
defendants in this case to file responsive pleadings to that restatement on or before May 12. That
of course logically rendered Hicks' earlier motion [Dkt. 118] moot, and this Court's oral June 1
rulings began with the denial of that motion on mootness grounds. It should be stressed,
however, that the contentions advanced by Hicks in his earlier motion would have equal force if
either set of defendants were to ignore the teaching for defense counsel set out in App'x ¶ 5 to
this Court's opinion in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill.
2001).
5
Even apart from the time warp that torpedoes the effort by counsel for Department and
its cohorts to look to DeShaney as precedential support for their position in this case, their
counsel has also missed the irony implicit in the DeShaney majority's reference to the harms
(continued)
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Indeed, startlingly enough, it was DeShaney itself -- in both the majority opinion
authored by then Chief Justice Rehnquist and the powerful dissent voiced by Justice Brennan for
himself and two other justices 6 -- that pointed the way toward upholding rather than rejecting
Hicks' TAC here: Each of those opinions expressly adverted to Estelle v. Gamble, 429 U.S. 97
(1976) and the later (and conceptually parallel) decision in Youngberg v. Romeo, 457 U.S. 307
(1982) as exemplifying the law as of the time that is relevant for evaluation of the litigants' rights
and duties in this case. Because that reasoning is so dramatically demonstrated by those two
opinions, which led to disagreement within the Supreme Court in DeShaney but both of which
really call for upholding Hicks' claim here, this opinion will quote extensively from the Justices'
respective expositions (omitting internal citations, quotation marks and footnotes).
First, then, here is a slightly (but not substantively) bobtailed reproduction of the
now-relevant portions of Chief Justice Rehnquist's statement in DeShaney, 489 U.S. 198-200
(emphasis added):
In Estelle v. Gamble, 429 U. S. 97 (1976), we recognized that the Eighth
Amendment's prohibition against cruel and unusual punishment, made applicable
to the States through the Fourteenth Amendment's Due Process Clause, requires
the State to provide adequate medical care to incarcerated prisoners. We reasoned
that, because the prisoner is unable "by reason of the deprivation of his liberty [to]
care for himself," it is only "just" that the State be required to care for him.
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(footnote continued)
suffered by the youngster there as having "occurred not while he was in the State's custody, but
while he was in the custody of his natural father" (489 U.S. at 201, emphasis added), while by
contrast in this case Hicks was in the custody of his quite unnatural mother Jemmison (see n.2).
6
This Court freely acknowledges that if it were approaching the issue by writing on a
clean slate, it would be inclined to favor Justice Brennan's dissenting position (and the poignant
brief additional dissent by Justice Blackman) over the narrower reading set out in Chief Justice
Rehnquist's majority opinion. That however has not impacted at all on this opinion or on the
stance taken here, for this Court of course recognizes and respects the DeShaney majority
opinion as the controlling law of the land today.
-3-
In Youngberg v. Romeo, 457 U. S. 307 (1982), we extended this analysis beyond
the Eighth Amendment setting, holding that the substantive component of the
Fourteenth Amendment's Due Process Clause, requires the State to provide
involuntarily committed mental patients with such services as are necessary to
ensure their "reasonable safety" from themselves and others. As we explained:
"If it is cruel and unusual punishment to hold convicted criminals in unsafe
conditions, it must be unconstitutional [under the Due Process Clause] to confine
the involuntarily committed -- who may not be punished at all -- in unsafe
conditions."
But these cases, . . . [t]aken together, . . . stand only for the proposition that, when
the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility
for his safety and general well-being. See Youngberg v. Romeo, supra, at 317
("When a person is institutionalized -- and wholly dependent on the State[,] . . . a
duty to provide certain services and care does exist"). The rationale for this
principle is simple enough: when the State, by the affirmative exercise of its
power, so restrains an individual's liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human needs -- e.g.,
food, clothing, shelter, medical care, and reasonable safety -- it transgresses the
substantive limits on state action set by the Eighth Amendment and the Due
Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo,
supra, at 315-316. The affirmative duty to protect arises not from the State's
knowledge of the individual's predicament or from its expressions of intent to
help him, but from the limitation which it has imposed on his freedom to act on
his own behalf. See Estelle v. Gamble, supra, at 429 U. S. 103 ("An inmate must
rely on prison authorities to treat his medical needs; if the authorities fail to do so,
those needs will not be met"). In the substantive due process analysis, it is the
State's affirmative act of restraining the individual's freedom to act on his own
behalf -- through incarceration, institutionalization, or other similar restraint of
personal liberty -- which is the "deprivation of liberty" triggering the protections
of the Due Process Clause, not its failure to act to protect his liberty interests
against harms inflicted by other means.
And here is the identical lesson that Justice Brennan drew in DeShaney, 489 U.S. at 205
from Estelle and its later compatriot Youngberg:
Both Estelle v. Gamble, 429 U. S. 97 (1976), and Youngberg v. Romeo, 457 U. S.
307 (1982), began by emphasizing that the States had confined J. W. Gamble to
prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered
these people helpless to help themselves or to seek help from persons
unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that
the public be required to care for the prisoner, who cannot by reason of the
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deprivation of his liberty, care for himself"); , at 104 ("[I]t is but just that the
public be required to care for the prisoner, who cannot by reason of the
deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a
person is institutionalized -- and wholly dependent on the State -- it is conceded
by petitioners that a duty to provide certain services and care does exist"). Cases
from the lower courts also recognize that a State's actions can be decisive in
assessing the constitutional significance of subsequent inaction. For these
purposes, moreover, actual physical restraint is not the only state action that has
been considered relevant.
Indeed, Chief Justice Rehnquist's majority opinion recognized that other courts have
found a parallel between the teaching of Estelle and Youngberg and the situation posed for
consideration in this case. Here is the relevant portion of n.9 to that opinion (489 U.S. at 201,
citations omitted):
Had the state by the affirmative exercise of its power removed Joshua from free
society and placed him in a foster home operated by its agents, we might have a
situation sufficiently analogous to incarceration or institutionalization to give rise
to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by
analogy to Estelle and Youngberg, that the State may be held liable under the Due
Process Clause for failing to protect children in foster homes from mistreatment at
the hands of their foster parents.
Although the Supreme Court majority did not opine "on the validity of this analogy," this Court
holds that defendants can take no comfort from any attempted distinction, at the time relevant for
judging the availability or unavailability of qualified immunity in the fact-bound antecedents to
DeShaney, between foster parents and the appallingly non-maternal "mother" Jemmison.
It is important to note in that respect how the Illinois Abused and Neglected Child
Reporting Act at 325 ILCS 5/2 defines Department's role in cases such as this one:
The Illinois Department of Children and Family Services shall, upon receiving
reports made under this Act, protect the health, safety, and best interest of the
child in all situations in which the child is vulnerable to child abuse or neglect,
offer protective services in order to prevent any further harm to the child and to
other children in the same environment or family, stabilize the home environment,
and preserve family life whenever possible.
-5-
No limitation is placed there on whether the severe abuse visited on a child such as Hicks is
inflicted by a foster parent or by an adoptive "mother" such as Jemmison, who abused her status
as a parent just as she abused Hicks himself.
In another effort to "make the worse appear the better reason," 7 Department's counsel
retreated to point out during the June 1 hearing (Tr. 28:24) that "it was the State Court who
removed -- who returned him." That is really an unsupportable attempt at a cop-out. Was the
state court acting sua sponte? Of course not. It was the duty of Department and its cohorts to
present the facts that would have spared Hicks renewed torture at Jemmison's hands. It simply
will not do for those defendants' counsel to try to shift responsibility in that fashion.
All of that, then, spells defeat for the attempted dismissal of the defendants referred to
here as "Department and its cohorts." But a few words should be added about the separately
represented co-defendants whose counsel did not predicate their motion to dismiss in DeShaney
terms.
On that score it is only necessary to say that the TAC's allegations -- once again credited
for Rule 12(b)(6) purposes in accordance with the "plausibility" standard established by the
Twombly-Iqbal dichotomy -- are adequate to tar those defendants with the same "color of law"
brush as Department and its cohorts, and that the related state law claims are sustainable on the
premise of those defendants' asserted complicity in the wrongs suffered by Hicks (a subject that
clearly calls for factual development). And that counsels the denial of their motion to dismiss at
this threshold stage as well.
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7
That felicitous phraseology first appeared in Diogenes' Socrates more than two millenia
ago -- and John Milton paid tribute to its felicitousness by repeating it in his Paradise Lost more
than 1800 years later.
-6-
Conclusion
For the reasons announced orally during this Court's June 1 hearing and recast in written
form here, all defendants' motions for dismissal from Hicks' TAC are denied, and all defendants
are ordered to file answers to the TAC on or before June 29, 2015. Finally, a status hearing is set
for 9 a.m. July 13, 2015.
__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: June 4, 2015
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