Tyagi et al v. Sheldon et al
MEMORANDUM Opinion and Order: For the reasons set forth in the memorandum opinion and Order, the following defendants are dismissed from this case: Former-Director Sheldon in his individual and official capacities, Judge Djurisic, Large, Pavelski, Le mon, Stephens, Epstein, Bicknese, Cirrillo, Mafee, Marsillio, the John Doe defendants, the corporate defendants, and Lurie Hospital. The following claims are dismissed: under § 1983, the First Amendmentclaim, the Fourth Amendment claims arising from the incidents at Lurie Hospitaland at A.T.'s public school, the Sixth Amendment claim, and the FourteenthAmendment procedural and substantive due process claims; the negligent infliction of emotional distress claim; any medical malpractice claim; and all equitable claims (either because the plaintiffs' lack standing or because allegations of unconstitutional policies are conclusory). The plaintiffs' First and Fourteenth Amendment right to choose mode of medical treatment clai ms, the Fourth Amendment claim based on the incident at A.T.'s public school, the SixthAmendment claim, the Fourteenth Amendment substantive due process claim, thenegligent infliction of emotional distress claim, and claims related to "medi calkidnapping" are dismissed with prejudice. All other claims are dismissed withoutprejudice. If the plaintiffs believe they can cure the defects identified in this opinion,they may move to file an amended complaint. Any such motion should be fi led within 21 days of the date of this ruling and should attach the proposed amended complaint and a memorandum of no more than five pages explaining how the new complaint cures the defects. The following claims survive defendants' motions to di smiss: the plaintiffs' Fourth and Fourteenth Amendment claims under § 1983 arising from the incidents at the plaintiffs' home against defendants Burleson and Rubio in their individual capacities, and the plaintiffs' intentional in fliction of emotional distress and invasion of privacy claims against Burleson and Rubio to the extent they are coextensive with the remaining § 1983 claims.In addition to the pending motions to dismiss 115 , 117 , this Opinionand Order also resolves a number of other motions pending in this case. Theplaintiffs' motion for additional service of summons and complaint by alternative means 78 is denied as moot. The plaintiffs' motions to file opposing memoranda of law in connec tion with several of the defendants' responses 159 is granted. The motion to intervene 155 pertains to medical kidnapping and is dismissed for lack of standing. The motion to declare the Adoption and Safe Families Act unconstitutional 156 , related intervention motion 155 , and accompanying declaration of Kathleen Clark 186 are likewise dismissed for lack of standing. The motion to declare Keppra dangerous 164 , related letter from Kathleen Clark 187 , motion to appoint an exper t 167 , and motion to order production of medical records 169 are stricken as contrary to this Court's earlier ruling 122 . The motion to declare the DCFS practice of seizing, searching, and interrogating children at public schools without p arental consent and in the absence of exigent circumstances unconstitutional 177 is dismissed for the same reason the Court has dismissed Claims 2 and 7 of the complaint. The "Motion to Order Defendants George Sheldon and Deanna Large to remov e Plaintiffs' names from Illinois SCR Register" 95 , the Lurie defendants' motion to strike non-compliant filings 182 , and the plaintiffs' Motion to Declare the SCR Unconstitutional 139 are all denied for the reasons set fort h above. The DCFS defendants' motion to leave to file certain records under seal in conjunction with their response to the plaintiffs' Motion to Declare the SCR Unconstitutional 152 is granted. Status hearing set for 10/19/2017 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 9/18/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
SANJAY TYAGI, ALKA JAGATIA, and
A.T., a minor,
GEORGE SHELDON, MARCO I. DJURSIC
DONALD JONKER, LAWRENCE ALBERG,
DEANNA LARGE, NORA HARMS PAVELSKI,
STEVIE LEMON, ERAINA ROSS BURLESON,
MARISOL RUBINO, SYLVIA TORRES
STEPHENS, ANN & ROBERT H. LURIE
CHILDREN’S HOSPITAL OF CHICAGO, ANN &
ROBERT H. LURIE CHILDREN’S HOSPITAL
OF CHICAGO FOUNDATION, PEDIATRICS
FACULTY FOUNDATION INC., CHILDREN’S
HOSPITAL OF CHICAGO MEDICAL CENTER,
LURIE CHILDREN’S MEDICAL GROUP LLC,
LEON EPSTEIN, ALMA BICKNESE, MELISSA
CIRRILLO, LAUREN MARSILLIO, RANA
MAFEE, AND JOHN DOES 1-100,
No. 16 C 11236
Judge Thomas M. Durkin
MEMORANDUM OPINION & ORDER
Pro se plaintiffs Sanjay Tyagi and Alka Jagatia (“the plaintiffs”) are married.
Their minor son and co-plaintiff, A.T., has had a number of seizures over the last
several years. The plaintiffs disagreed with A.T.’s doctors—defendants Leon
Epstein, Alma Bicknese, Melissa Cirrillo, Lauren Marsillio, and Rana Mafee (“the
doctor defendants”)—on the appropriate course of treatment for A.T.’s seizures after
his admission to Defendant Lurie Children’s Hospital1 (Lurie’s) for status
epilepticus. That disagreement ultimately led an unnamed employee at Lurie’s to
initiate a referral to the Illinois Department of Child and Family Services (“DCFS”).
Three DCFS social workers—Defendants Eraina Ross Burleson, Marisol Rubino,
and Sylvia Torres Stephens (“the social worker defendants”)—were assigned to
investigate allegations of medical neglect.2
At the conclusion of their investigation, the social worker defendants
determined that the allegations of medical neglect were supported by “credible
evidence,” and a report was filed against the plaintiffs in the State Central Register
(“SCR”), of which Defendant Deanna Large is alleged to be the administrator. A.T.
was never removed from the plaintiffs’ custody, but at some point he began
following the doctor defendants’ recommended course of treatment, presumably over
the plaintiffs’ objections.
Drs. Epstein, Bicknese, Cirrillo, and Marsillo are alleged to work at Lurie’s,
and Dr. Mafee is alleged to work at non-defendant APAC Center of Pain
Management. The complaint names a number of entities in addition to the hospital
itself as “directly or indirectly employ[ing] the above doctors.” Those entities are
Defendants Ann & Robert H. Lurie Children’s Hospital of Chicago Foundation,
Pediatrics Faculty Foundation Inc., Children’s Hospital of Chicago Medical Center,
and Lurie Children’s Medical Group LLC. They are referred to collectively as “the
The complaint also names Nora Harms Pavelski, the Deputy Bureau Chief of
DCFS, and Stevie Lemon, a supervisor in the Department of Child Protection.
Other than identifying them by their job titles, the complaint is silent as to their
role in this case. The Court infers from their titles that they are alleged to have
played a supervisory role in the social worker defendants’ investigation.
expungement of their record in the SCR through DCFS’s administrative review
process. DCFS was represented by Defendants Donald Jonker and Lawrence Alberg
(“the attorney defendants”) during that appeal. Following an evidentiary hearing,
Defendant Marco Djurisic, the presiding Administrative Law Judge, sustained the
report of medical neglect, finding that it was supported by a preponderance of the
evidence. He recommended to the then-Director of DCFS, Defendant George
Sheldon, that the report of medical neglect should remain on file in accordance with
DCFS rules, and that the plaintiffs’ request for expungement should be denied.
Former-Director Sheldon summarily adopted Judge Djurisic’s ruling and followed
his administrative recommendations. In a letter to the plaintiffs notifying them of
Former-Director Sheldon’s decision, they were advised of their right to seek judicial
review in the state circuit court.
On December 9, 2016, the plaintiffs filed a 91-page complaint in federal court
against the defendants identified above and 100 John Does. The complaint asserts
seven claims for relief, several with multiple subparts.3 According to the complaint,
“[t]his action arises under the First, Fourth, Sixth and Fourteenth Amendments to
The plaintiffs appear to have attempted to file the complaint as a class action
lawsuit on behalf of themselves and “all others similarly situated.” R. 1 (Compl.) at
1. But their civil cover sheet does not check the required box for class actions, R. 2,
and the complaint does not allege any of the prerequisites to filing on behalf of a
class set forth in Federal Rule of Civil Procedure 23(a). In the absence of any
plausible allegations that a certifiable class exists, and because the plaintiffs need
counsel in order to pursue a class suit, see Howard v. Pollard, 814 F.3d 476, 478
(7th Cir. 2015), the Court will treat the lawsuit as an action by and on behalf of the
individual plaintiffs only.
the United States Constitution and under federal law, particularly 42 U.S.C.
§ 1983,” and so falls within the subject matter jurisdiction of this Court pursuant to
28 U.S.C. § 1331 and 28 U.S.C. § 1343.4 R. 1 ¶ 6. The complaint also invokes the
Court’s supplemental jurisdiction over several state law claims pursuant to 28
U.S.C. § 1367.5
Former-Director Sheldon, Judge Djurisic, the attorney defendants, the social
worker defendants and their supervisors (collectively, “the DCFS defendants”), and
Dr. Mafee, Dr. Epstein, Dr. Bicknese, Dr. Cirrillo, Dr. Marsillio, Lurie’s, and the
corporate defendants (collectively “Dr. Mafee and the Lurie defendants”) separately
move to dismiss the complaint in its entirety. Although their reasoning differs, both
groups of defendants argue that: (1) the claims advanced against them have not
been pled with the particularity required by the Federal Rules of Civil Procedure;
(2) they are immune from suit; and (3) the plaintiffs have failed to allege facts
The complaint also purports to state claims under criminal statutes 18 U.S.C.
§§ 241 and 242. See, e.g., R. 1 (Compl.) ¶¶ 1, 7. “[I]t is well settled no private right of
action inheres in those criminal provisions.” Pawelek v. Paramount Studios Corp.,
571 F. Supp. 1082, 1083 (N.D. Ill. 1983) (citing Aldabe v. Aldabe, 616 F.2d 1089,
1092 (9th Cir. 1980) (per curiam)). In addition, the complaint incorrectly alleges
subject-matter jurisdiction pursuant to 28 U.S.C. § 1332. See, e.g., R. 1 ¶¶ 2, 7, 1215. The parties are not diverse; they are all residents of the state of Illinois. Finally,
the plaintiffs’ citations to 28 U.S.C. §§ 1441, 1443 and 1446, see R. 1 ¶¶ 2, 7, 12-15,
are also incorrect because, among a number of other reasons, this case has not been
removed from state court.
The Rooker-Feldman doctrine, which deprives the federal district courts of
appellate jurisdiction over state court judgments, does not apply to bar collateral
review of administrative decisions. See Van Harken v. City of Chicago, 103 F.3d
1346, 1348 (7th Cir. 1997).
sufficient state a plausible claim against them. R. 117 (the DCFS defendants); R.
115 (Dr. Mafee and the Lurie defendants).
Several procedural issues must be addressed before the Court can reach the
merits of the pending motions. All parties, including parties proceeding pro se, are
required to comply with the Federal Rules of Civil Procedure, the local rules of this
district, and the rules of this Court. All of these rules are available on the public
website for the United States District Court for the Northern District of Illinois. The
parties are instructed to consult these rules, including the rules setting forth
formatting and searchability requirements for electronic filings, page limits,
citations to unpublished opinions, and rules regarding providing courtesy copies to
chambers. The parties are also instructed to review and comply with rules
pertaining to motion practice, including pre-filing meet-and-confer requirements
and post-filing notice procedures. Pro se parties may wish to contact the District
Court’s Self-Help Assistance Program to ensure compliance with all applicable
rules. See R. 147 (setting forth instructions on how to make an appointment).
With respect to page limits, if a party requires pages beyond the number
permitted by the local rules, that party must seek leave from this Court to file an
oversized brief by filing a motion. Shrinking margins, changing spacing, or
adjusting font size does not make a brief compliant if the margins, spacing, and font
size do not comport with local formatting rules. When requesting leave to file an
oversized brief, a party must inform the Court why it is unable to argue its position
in the number of pages the rules allow. Only in exceptional circumstances will
oversized briefs be warranted and therefore allowed.
Importantly, all authority relevant to a motion must be cited in that motion
within permitted page limits. If a party wishes to file additional authority in
support of a pending motion after its brief has been filed, the party must seek leave
to do so, explaining in its motion for leave why the authority was not cited in the
first instance. The Court is capable of conducting its own legal research. To that
end, decades-old judicial opinions may not be the subject of a motion to file
additional authority. The Court will consider permitting parties to submit judicial
opinions issued after the filing of their briefs, but only if they control or are directly
relevant to the resolution of a contested issue. If leave to file such authority is
granted, it should be filed without annotation or explanation.
Further, no party may file any documents in support of a motion that has
been denied or in contravention of a ruling of this Court. For example, if the Court
has stayed discovery, a party may not file a motion to compel the production of
records or to appoint an expert witness (which the Court usually cannot do in any
event). In the same vein, if the Court has ruled that it is premature to rule on
evidentiary matters, a party should not seek such a ruling until the procedural
posture of the case has changed or unless the party has sought and been granted
leave of court to file such a request. Finally, the Court does not accept any
documents filed simply for its education, particularly if they have little to nothing to
do with the allegations in the case. And all meet-and-confer, electronic filing, and
notice requirements apply to motions for leave to deviate from any applicable rules
or court orders.
The Lurie defendants have moved to strike all non-compliant filings from the
docket. R. 182. Although their concerns are well-taken, in light of the greater
leniency permitted to pro se plaintiffs, the Court denies the motion. But the parties
are hereby on notice that failure to comply with the rules will, from this point
forward, result in the immediate striking of any non-compliant filings from the
docket. Continual and willful non-compliance may result in harsher sanctions.
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. E.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
In evaluating a pro se complaint, the Court applies a less stringent standard
than it applies to formal pleadings drafted by lawyers. Smith v. Dart, 803 F.3d 304,
309 (7th Cir. 2015). But the Court need not ignore facts set forth in the complaint
that undermine the plaintiff’s claim, nor is the Court required to accept the
plaintiff’s legal conclusions. Johnson v. Thompson-Smith, 203 F. Supp. 3d 895, 900
(N.D. Ill. 2016).
Reading the 91-page pro se complaint broadly, as the Court must, and
incorporating any facts consistent with the allegations in the complaint set forth in
the plaintiffs’ response briefs and additional filings,6 the Court understands the
relevant factual allegations as follows.7
A motion under Rule 12(b)(6) can be based “on the complaint itself,
documents attached to the complaint, documents that are critical to the complaint
and referred to in it, and information that is subject to proper judicial notice.”
Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (citations
omitted). The Court therefore considers the complaint, R. 1, and the Opinion and
Recommendation of Administrative Law Judge, R. 125, which is extensively
referenced in the complaint, see, e.g., R. 1 ¶¶ 120-122, and of which the Court may
take judicial notice, see Park Superintendents’ Prof’l Ass’n v. State of Illinois, 1998
WL 525810, at *2 (N.D. Ill. Aug. 18, 1998) (citing Doherty v. City of Chicago, 75 F.3d
318, 324 n. 4 (7th Cir. 1996)).
And, although a plaintiff may not amend its complaint by way of a response
brief, see Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996), nothing
A.T. has had at least four seizures in his life. See R. 1. ¶¶ 60, 68, 103
(referring to four “provoked seizures”). At least two of those seizures have been
classified as “status epilepticus.”8 See R. 125 at 5-8. The plaintiffs believe that the
doctors at Lurie’s either misdiagnosed or insufficiently investigated the cause of
A.T.’s seizures. See, e.g., R. 1. ¶¶ 60, 68, 103. They dispute that A.T. has epilepsy;
they consider each of his seizures to have been “provoked” by different
circumstances including “(1) Strep throat (2) Persistent diarrhea for 15-20 days (3)
high fever (4) Overheated and dehydration while playing basketball.” Id. ¶ 103.
prevents a plaintiff opposing a motion to dismiss from elaborating on the facts
allegations in the complaint, as long as the new elaborations are consistent with
those facts. See Smith, 803 F.3d at 311 (“[F]acts alleged by a plaintiff in a brief in
opposition to a motion to dismiss ‘may be considered when evaluating the
sufficiency of a complaint so long as they are consistent of the allegations in the
complaint.’”) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1367 n. 2 (7th Cir. 1997)));
see also Geinosky, 675 F.3d at 745 n. 1 (collecting authority); Early v. Bankers Life
& Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (“[A] plaintiff is free, in defending
against a motion to dismiss, to allege without evidentiary support any facts he
pleases that are consistent with the complaint, in order to show that there is a state
of facts within the scope of the complaint that if proved (a matter for trial) would
entitle him to judgment.”). This is particularly true when the plaintiffs are pro se,
and the court must construe their allegations liberally and make reasonable
presumptions in their favor. In deciding these motions, the Court therefore
considers all relevant facts set forth in the plaintiffs’ miscellaneous filings in
opposition to dismissal, provided those facts are consistent with the allegations set
forth in the operative complaint.
A number of paragraphs in the complaint set forth facts entirely irrelevant to
the alleged constitutional claims. E.g., R. 1 ¶ 74 (alleging the location of certain of
the Lurie defendants’ bank accounts); id. ¶ 108 (excerpting a study about the
national rate of unreported medical mistakes and “iatrogenic events”).
Judge Djurisic found that “status epilepticus” is a “severe, continual seizure
that can lead to brain damage, motor impairment, internal organ failure and death.
Estimates of mortality during an individual episode of status epilepticus are
approximately ten to twenty percent.” R. 125 at 6.
The Dispute Regarding A.T.’s Treatment
At some point, A.T.’s doctors prescribed a medication called Keppra as part of
A.T.’s treatment regimen. Id. ¶ 63. Keppra is an antiepileptic medication with a
host of potentially undesirable side effects. See, e.g., id. ¶¶ 79, 99, 100. The
plaintiffs allege that the doctors decided on this course of treatment not because it
would best control A.T.’s seizures, but because the hospital and certain of its
administrators receive financial benefits from the pharmaceutical company that
makes Keppra. See id. ¶¶ 102, 105.
The plaintiffs determined based on their own research that a ketogenic diet is
an alternative medical treatment scientifically proven to treat seizures. See id.
¶¶ 64-66. They raised the possibility of treating A.T. with the ketogenic diet with
A.T.’s doctors at Lurie’s, and while at least one doctor agreed that the diet might be
reasonable treatment option, see id. ¶ 61, other doctors disagreed, see id. ¶¶ 62-63.
Dr. Epstein was so resistant to the plaintiffs’ plan to put A.T. on the ketogenic diet
without daily antiepileptic medication that his discussion with the plaintiffs on the
topic “escalated into a very contentious situation.” R. 148-1 (Resp. to Mot. for
Prelim. Inj.) at 3. Nevertheless, the plaintiffs purchased a book about the diet
written by a physician and initiated the ketogenic diet on their own, without
medical supervision. R. 1 ¶¶ 64-66. They did not administer Keppra. The plaintiffs
allege that A.T. was then seizure-free for fourteen months on the ketogenic diet
alone, and that he excelled at school during that time. See id. ¶¶ 67-68.
On February 25, 2016, A.T. had one of his four documented seizures, leading
to his admission to Lurie’s Pediatric Intensive Care Unit. Id. The plaintiffs allege,
and the doctor defendants do not dispute, that even if A.T. had been taking Keppra,
he may nevertheless have had the seizure that required his admission to intensive
care. See id. ¶¶ 96-98.
The DCFS Referral
According to the plaintiffs, once A.T. was admitted to Lurie’s following the
February 25, 2016 seizure, Dr. Epstein remembered the disagreement he had with
the plaintiffs about the course of treatment for A.T.’s seizures. R. 148-1 at 3. The
plaintiffs allege that Dr. Epstein devised a plan, with support from Lurie’s, to “get
back at the plaintiffs,” which included “build[ing] a coalition of medical
professionals willing to . . . falsely accuse the plaintiffs of medical neglect” by
“falsify[ing] the Lurie Medical History to . . . paint [the] plaintiffs as [persons who]
medically neglect[ed] their child.” Id. The plaintiffs allege this plan was set in
motion on or around February 28, 2016, when an unidentified member of this
coalition at Lurie’s (John Doe 1) reported the plaintiffs to DCFS for acting against
medical advice. R. 1 ¶ 68. The plaintiffs do not allege what records were falsified,
what false information they contained, or how that information made it appear as
though the plaintiffs had been neglectful. They do allege that DCFS was falsely
informed that A.T. has asthma, which he does not, and that certain brain scans
were never taken, even though they were, R. 148-1 (Resp.) at 3-4. But neither of
these facts is alleged to have played a role in the events that followed.
Once A.T. recovered from his seizure and was well enough to leave the
hospital, another unidentified Lurie defendant (John Doe 2) refused to authorize
A.T.’s discharge for thirty-six hours despite the plaintiffs’ “repeated demands” that
A.T. be permitted to leave. R. 1 ¶ 68. To keep A.T. in the hospital over the plaintiffs’
objections, an unnamed Lurie’s social worker (John Doe 3) told the plaintiffs that if
they tried to leave with A.T., a police officer waiting in the lobby would be called up
to speak with them. R. 148-1 at 3-4.
The DCFS Investigation
After A.T.’s discharge, DCFS investigated the allegations made by John Doe
1. See R. 1 ¶ 77. As part of the investigation, the social worker defendants visited
A.T. at the Chicago public school he attends without his parents’ knowledge or
consent. Id. ¶¶ 177-83. This took place “[a]round March 2016 and May 2016.” Id.
¶ 177. The complaint alleges that “no exigent circumstances” existed at the time
these school visits took place. Id. ¶ 176. The “interrogation” of A.T. at school is
alleged to have been permitted by the school principal; the school social worker is
alleged to have accompanied A.T. to the interview and to have failed to inform him
that he could call his parents or refuse to cooperate. Id. ¶¶ 178-82. During that
school visit, A.T. was forced to answer “intrusive” questions about his parents and
to submit to a physical examination. Id.
The social worker defendants also came to the plaintiffs’ home twice, both
times asking to be let inside to interview A.T. Id. ¶ 185. The plaintiffs refused. Id.
They allege that the social worker defendants threatened to remove A.T. and his
brother from the plaintiffs’ custody if the plaintiffs did not allow them to enter their
home. Id. Fearful of losing their children, the plaintiffs reluctantly allowed the
social worker defendants into their home. Id. Once there, the social worker
defendants allegedly “strip searched” both children, asking them over parental
objection to pull down their underpants and submit to an invasive physical
examination. Id. ¶ 186.
During the course of the investigation, A.T. had another of his two
documented status epilepticus seizures requiring his admission to Lurie’s. R. 125 at
8. At that time, he began taking Keppra over his parents’ continued objections. See
R. 1 ¶ 104. It is unclear from plaintiffs’ allegations whether he also discontinued the
ketogenic diet at that time. It is clear from those allegations, however, that A.T.
began experiencing several of the negative side-effects of Keppra that his parents
were initially concerned about, including headaches, dizziness, hallucinations, and
aggressive behavior. See id. ¶ 79 (recounting a July 17th email from Tyagi to the
defendants describing these symptoms); id. ¶ 104 (noting A.T.’s problematic
behavior in school). After these side-effects were brought to the attention of DCFS
and A.T.’s treating neurologists, no adjustments were made to A.T’s seizure
management protocol. See id.
At the conclusion of the investigation, on July 4, 2016, the defendant
investigators determined that “credible evidence” supported that the plaintiffs
medically neglected A.T. See id. ¶ 77; R. 25 at 4. The plaintiffs allege that the
defendant investigators failed to complete their investigation within the permitted
time limits. R. 1 ¶ 93. They further allege that the investigators “failed to gather
and consider evidence of innocence,” id. ¶ 94, which the Court understands to refer
to evidence that the ketogenic diet is widely considered an effective treatment for
determination, a report of the indicated findings was filed against the plaintiffs
with the SCR. Id. ¶ 77. The plaintiffs allege that this report impacted their
employment or employability. See R. 95 at 4 (“Plaintiffs lost their jobs due to
addition of names in Illinois SCR Registry. Employers decline to offer jobs after
checking the names in Illinois SCR Registry.”).
The Administrative Appeal
The plaintiffs each appealed the medical neglect determination separately
through the statutory administrative review process. R. 1 ¶¶ 82, 91. Tyagi appealed
on July 24, 2016, and Jagatia appealed on August 12, 2016. See id. Jagatia
requested to have her appeal expedited pursuant to DCFS Rule 336.85, which
entitles child care workers to administrative review on an expedited timeline. Id.
¶ 91. The Chief Administrative Law Judge denied her request, determining that she
was not within the class of persons entitled to expedited review. Id. ¶ 92. The
plaintiffs claim this denial was erroneous, alleging that “Jagatia is a qualified nurse
who [was] looking to work in a children’s health clinic,” and therefore fell within the
class of persons permitted to expedited review. Id.
Judge Djuristic held a preliminary hearing in Tyagi’s case on August 15,
2016. See R. 139 (Mot. for Prelim. Inj.) ¶¶ 24-25. He continued the hearing twenty-
eight days to September 12, 2016 so that Tyagi could review the investigative file,
which he had not yet received because it had been mailed out just a few days earlier
(nineteen days after Tyagi faxed his notice of appeal and one day before the
expiration of the deadline for turning over the file set forth in DCFS Rule
336.40(d)). Id. ¶ 26. The plaintiffs allege that the investigative file sent to them was
“heavily redacted,” and that this impacted their ability to defend themselves. R.
159-1 (Resp.) at 4.
Judge Djuristic held a preliminary hearing in Jagatia’s case on September 6,
2016; she was represented by her husband at that hearing. R. 139 ¶¶ 30-31. During
the hearing, Tyagi renewed his request to expedite Jagatia’s appeal pursuant to
DCFS Rule 336.85. R. 126 (partial administrative hearing transcripts) at 8. Judge
Djurisic informed Tyagi that prior to the scheduling of Jagatia’s preliminary
hearing, the chief administrative law judge had determined that Jagatia did not
qualify for expedited review. See id. at 8-9. Judge Djurisic informed Tyagi that he
would not disturb the chief judge’s determination, but that Jagatia could appeal
that determination to the state circuit court. See id. at 9-11.
At Tyagi’s continued preliminary hearing on September 12, 2016, the
plaintiffs agreed to consolidate their appeals. Id. at 6. Their cases were set for a
joint-evidentiary hearing on September 22, 2016. R. 25 (Mot. to Remove Names
from Registry) at 4. In preparation for that hearing, Tyagi and Jagatia requested
that DCFS subpoena 38 witnesses to testify. R. 1 ¶ 127. The subpoenaed witnesses
were, for the most part, doctors from Lurie’s—a majority of them listed on Lurie’s
website as neurologists and others having a neurological focus within their practice.
See R. 139-4 at 2-3. The subpoenaed witnesses also included the head of the
hospital’s ketogenic diet team and four members of the hospital’s in-house legal
staff. See id. The subpoenas were sent by DCFS as requested. See id.
On September 22, 2016, all but three of the subpoenaed witnesses, Dr.
Epstein, Dr. Bicknese, and Dr. Mafee, failed to appear at the plaintiffs’ evidentiary
hearing. Id.; see also R. 1 ¶ 95. Judge Djurisic did not sanction the non-appearing
witnesses. Id. He informed the plaintiffs that he was without authority to do so, and
their only means of compelling witness attendance would be to seek a writ of
mandamus in the circuit court. R. 126 at 2-3. DCFS attorney Alberg offered to
continue the hearing so that the plaintiffs could attempt to marshal their witnesses,
but the plaintiffs declined. Id. at 4. The plaintiffs instead opted to proceed with the
Representing himself and his wife, Tyagi extensively questioned Dr. Epstein,
Dr. Bicknese, and Dr. Mafee, all of whom appeared by telephone. R. 1 ¶¶ 96-98.
When asked if they made the referral to DCFS, all three doctors testified that they
did not. Id. Tyagi also presented evidence about the dangers of the Keppra and the
efficacy of the ketogenic diet. See id. ¶¶ 99-100. Dozens of emails from Tyagi
attaching hundreds of reports on these topics were also admitted as evidence.9 See
R. 125 at 4-5. Further, DCFS stipulated at the hearing “that the Ketogenic Diet is a
One of those e-mails, sent on July 23, 2016, indicates that “80+ published
medical papers” have already been sent and hundreds more are forthcoming.
R. 139-2 at 4.
medically recognized and valid form of treatment for some cases of Epilepsy to
prevent seizure that may lead to episodes of Status Epilepticus.” Id. at 5. Still, the
plaintiffs considered the proceeding to have been a “sham trial,” because, among
other reasons, so many of the subpoenaed witnesses failed to testify. See R. 1 ¶ 95;
see also R. 139 at 16 (“The witnesses did not appear and it was a mockery of
Thirty-five days after the hearing, on October 27, 2016, Judge Djurisic issued
an opinion and recommendation finding that DCFS had shown by a preponderance
of the evidence that the plaintiffs committed medical neglect. R. 125. His opinion
detailed the people who attended the hearing, the witnesses’ testimony, the
stipulation that was entered, evidence that was admitted, and his findings of facts
and conclusions of law. Id. The plaintiffs allege that the ruling was “legally
erroneous.” R. 1 ¶ 131.
Exactly two weeks later, on November 10, 2016, Former-Director Sheldon
issued his decision adopting Judge Djurisic’s opinion and recommendation. Id.
¶ 110. The plaintiffs say Former-Director Sheldon’s decision was untimely and
“arbitrary and capricious.” Id. ¶¶ 123-33. Accompanying the notice of the final
administrative decision was a letter informing the plaintiffs of their right to seek
judicial review in state court. R. 139-12. Rather than seek judicial review in state
court, the plaintiffs filed the instant lawsuit. The time to appeal the administrative
ruling in circuit court expired on December 15, 2016, six days after this lawsuit was
The plaintiffs seek to enforce their First, Fourth, Sixth, and Fourteenth
Amendment rights through 42 U.S.C. § 1983. R. 1 at 53-71 (Claim 1, Counts 1-6).
The plaintiffs also assert state law claims for intentional and negligent infliction of
emotional distress and invasion of privacy. Id. at 76-80 (Claims 3-5).10 All of the
claims purport to be asserted against all defendants, but the actual allegations
specify the defendants against whom each claim is directed. Therefore, the Court
declines the defendants’ request to summarily dismiss all claims for failure to
comply with Rule 8. R. 116 at 4-6; R. 119 at 5-8; see Fed. R. Civ. P. 8; Ross Bros.
Const. Co. v. Int'l Steel Servs., Inc., 283 F.3d 867, 873 (7th Cir. 2002) (“Rule 8 does
not demand perfection—just notice.”)
In addition to monetary damages, the plaintiffs seek various forms of
equitable relief, see R. 1. at 81-90 (Claims 6 and 7), including a preliminary
injunction ordering their names be removed from the SCR and ordering that
Former-Director Sheldon show “good cause why his final administrative decision of
medical neglect should not be overturned by this court,” id. ¶ 255. They also request
In their response to the Lurie defendants’ motion to dismiss, the plaintiffs
suggest that they also meant to bring a claim for medical malpractice. See R. 148-1
at 6 (“[T]hey were responsible for misdiagnosis and not doing proper testing.”); id.
at 10 (“The defendants failed to order the proper tests for the minor A.T. The
defendants misdiagnosed the symptoms. The defendants misinterpreted the test
results.”). To bring a medical malpractice claim in Illinois, a plaintiff is required to
file the affidavit of a qualified healthcare professional with his complaint. In it, the
affiant must declare that he has determined in a written report, based on a review
of the medical record, that “there is a reasonable and meritorious cause for the filing
of [a malpractice] action.” 735 ILCS 5/2-622. Plaintiffs have not filed any such
affidavit. Therefore, to the extent the plaintiffs intended that a malpractice claim be
construed as part of their complaint, it is dismissed.
an order essentially dismantling the SCR. R. 139 at 19 (asking the court to “declare
the statutory scheme underlying the Illinois State Central Register unconstitutional
on its face [and] as applied to the Plaintiffs”). More broadly, they request future
equitable relief against DCFS in the form of an order prohibiting DCFS from:
(1) “removing children from their family and homes without exigent circumstances,
court order and/or consent,” R. 1 ¶¶ 246(A)-(B) (internal parenthetical omitted);
(2) “examining children without exigency, need, or proper court order, and without
the presence and/or consent of their parent or guardian,” id. ¶ 246(C); (3) “detaining
children . . . for an unreasonable period after any alleged basis for detention is
negated,” id. ¶ 246(D); and (4) accusing parents of “medical neglect of their children
without finding unfitness by a standard of ‘clear and convincing’ evidence,” id.
¶ 251.11 They also seek an order compelling a level of training and supervision of
The complaint seeks an array of other equitable relief, but the Court either:
(1) cannot decipher its meaning, see, e.g., R. 1 ¶ 246(E) (seeking an injunction
against “using trickery, duress, fabrication and/or false testimony and/or evidence,
and in failing to disclose exculpatory evidence, in preparing and presenting reports
and court documents to the court, causing an interference with parental rights,
including those as to 5 familial relations”); (2) finds the need for the requested relief
belied by the plaintiffs’ own allegations, see, e.g., id. ¶ 246(G) (seeking an injunction
against “setting forth allegations in DCFS Court against parents . . . regardless of
whether or not specific, articulable evidence exists,” despite also pleading that
appeals to administrative courts only follow a finding a neglect based on credible
evidence); see also id. at ¶ 246(I); or (3) finds that the plaintiffs do not allege facts
plausibly suggesting the practice they seek to enjoin actually takes place, and, even
if they did, that they lack standing to seek the requested relief because they do not
allege to have suffered the harm it would redress, see R. 1 ¶ 246(H) (seeking an
injunction against DCFS “making knowingly false allegations of child abuse,
neglect, or abandonment . . . as a means of intimidating parents, by coercion, into
accepting lesser charges . . . thereby enabling the county to . . . record the case as a
positive outcome for purposes of statistical analysis related to funding by the State
and Federal governments”).
DCFS employees that will ensure their comportment with families’ constitutional
rights. See id. ¶¶ 146(F), 146(J)-(M).
Challenges to Judge Djurisic’s Judgment on its Merits
As an initial matter, the plaintiffs make a number of allegations and seek
several forms of relief (including removal of their names from the SCR) that amount
to challenges to Judge Djuristic’s judgment on its merits. Where appellate review of
a state administrative ruling is vested by statute in the state circuit courts and no
appeal is taken, “the scope of [federal] review . . . is extremely limited and is no
substitute for a direct appeal.” Suggs v. C.W. Transport, Inc., 421 F. Supp. 58, 62
(N.D. Ill. 1976). Although federal courts may consider constitutional claims
collateral to an administrative judgment, claims that the judgment was “erroneous,”
“factually incorrect,” or “against the manifest weight of the evidence” do not present
such a constitutional claim. Id.
A plaintiff also may not seek in a federal lawsuit to overturn an adverse state
administrative judgment. Van Harken, 103 F.3d at 1349. Although nothing
prevents a plaintiff from bringing a lawsuit under § 1983 challenging the
constitutionality of a rule or procedure underlying an adverse administrative
judgment, a plaintiff may not seek to avoid the judgment itself through a federal
lawsuit. Id. (holding that a class of plaintiffs could challenge the city’s
administrative procedures for assessing parking fines, “[b]ut insofar as they are
seeking refunds of the parking fines imposed upon them, they are barred”).
Accordingly, the plaintiffs’ allegations that Judge Djurisic “got it wrong” are
insufficient to confer authority on this Court to reconsider his judgment on its
merits. The plaintiffs’ only recourse for such a grievance is a direct appeal to the
circuit court under the Illinois Administrative Review Law.12 Suggs, 421 F. Supp. at
62; see also Maum Meditation House of Truth v. Lake Cnty., Ill., 55 F. Supp. 3d
1081, 1090 (N.D. Ill. 2014). Additionally, the plaintiffs are barred from seeking
relief in this lawsuit in the form of an order that DCFS remove their names from
the SCR, and the Court cannot order Former-Director Sheldon to show cause why
his decision should be overturned. See id. For this same reason, the plaintiffs’
“Motion to Order Defendants George Sheldon and Deanna Large to remove
Plaintiffs’ names from Illinois SCR Register,” R. 95, is denied.
Nothing, however, prevents this Court from considering the constitutional
and state law claims raised by the plaintiffs that Judge Djurisic did not address or
did not have the opportunity to address. Neither the Illinois Abused and Neglected
Child Reporting Act (“ABCRA”) nor the DCFS rules governing administrative
appeals conveys authority on Judge Djurisic to consider the plaintiffs’ § 1983 claims
or their state law claims. And it does not appear from the current record that any
such claims were put before him. Thus, the Court may consider those claims here.
See, e.g., Ibitayo v. McDonald, 2003 WL 22767046, at *3-4 (N.D. Ill. 2003) (issue
preclusion did not bar claims where, “[t]aking the facts as alleged by Plaintiff as
If such a review is now time-barred (on which this Court takes no position),
that does not change the Court’s analysis.
true, the state court never considered” the constitutionality of searches by DCFS,
and the state court’s determination “did not necessarily include consideration of
whether the constitutional rights of the family or children were violated by the
conduct of DCFS”).
Defendants Dismissed Outright for Failure to State a Claim
Before turning to the substance of the plaintiffs’ claims, this Court dismisses
four defendants—DCFS defendants Nora Harms Pavelski and Stevie Lemon, doctor
defendant Melissa Cirrillo, and SCR administrator Deanna Large—outright. Other
than identifying those individuals’ job positions, the complaint is silent as to their
roles in any of the alleged deprivations. For that reason, they are properly
dismissed. E.g., Brokaw v. Mercer Cnty., 235 F.3d 1000, 1014 (7th Cir. 2000).
42 U.S.C. § 1983 Claims
The plaintiffs allege numerous violations of their rights under the First,
Fourth, Sixth, and Fourteenth Amendments pursuant to § 1983. To state a claim
under § 1983, a plaintiff must allege (1) the deprivation of a right secured by the
Constitution or laws of the United States that (2) was committed by a person acting
under color of state law. 42 U.S.C. § 1983 (“Every person who, under color of any
statute, ordinance, regulation, custom or usage, of any State . . . subjects or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution laws, shall be liable to the party injured in an action at
law.”) (emphasis added); Brokaw, 235 F.3d at 1009 (citation omitted).
The Court first will address a number of general arguments made by
different groups of defendants regarding whether they are subject to liability under
§ 1983. The Court then will address each alleged constitutional violation in turn.
General Arguments Regarding Defendants’ § 1983 Liability
The DCFS Defendants
The DCFS defendants (Former-Director Sheldon, Judge Djurisic, the attorney
defendants, and the social worker defendants and their supervisors) do not dispute
that in their individual capacities, they are “persons” acting under color of state law
within the meaning of the § 1983. See Shields v. Ill. Dep’t of Corrections, 746 F.3d
782, 789 (7th Cir. 2016).
The DCFS defendants nevertheless make blanket arguments that they are
not subject to liability under § 1983 because they are: (1) not personally liable; and
(2) entitled to qualified immunity. To state a claim for personal liability against
public employees, plaintiffs must allege how each official personally deprived them
of a federal right. Brokaw, 235 F.3d at 1012. “[A]n official satisfies the personal
responsibility required of § 1983 if she acts or fails to act with a deliberate or
reckless disregard of the plaintiff’s constitutional rights, or if the conduct causing
the constitutional deprivation occurs at her direction or with her knowledge or
consent.” Id. Because this is an individualized inquiry, the Court will evaluate
whether and with respect to which defendants the plaintiffs have adequately
pleaded personal responsibility when considering particular constitutional claims
Even where a plaintiff adequately alleges personal involvement of a public
employee in the deprivation of a constitutional right, that employee is entitled to
qualified immunity “for actions taken while performing discretionary functions,
unless their conduct violates clearly established statutory or constitutional rights of
which a reasonable person would have known.” Id. at 1022; see also Ibitayo, 2003
WL 22765046, at *5 (“Qualified immunity remains as a basis on which to grant a
motion to dismiss.”) (collecting authority).
To state a claim against a public employee defendant in his or her individual
capacity under § 1983, a plaintiff must not only allege the violation of a
constitutional right, but also that the right was clearly established. See Doe v. Heck,
327 F.3d 492, 509 (7th Cir. 2003) (“If no constitutional right would have been
violated were the allegations established, there is no necessity for further inquiries .
. . If, on the other hand, a violation could be made out on a favorable view of the
parties’ submissions, the next, sequential step is to ask whether the right was
clearly established.”) (citing Saucier v. Katz, 533 U.S. 194 (2001)). Because qualified
immunity offers not merely a defense from liability, but also provides immunity
from suit, courts address the issue as early as possible. Hughes v. Jones, 40 F. Supp.
3d 969, 985 (N.D. Ill. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
Here, as with the personal responsibility inquiry, the Court will evaluate
whether particular defendants are entitled to qualified immunity when considering
specific constitutional claims below.
Mafee and the Lurie Defendants
Mafee and the Lurie defendants claim that, as private citizens and entities,
they are not susceptible to liability under § 1983. Ordinarily, it is true that a private
citizen or entity cannot be held liable under § 1983. Brokaw, 235 F.3d at 1016. But
this bar is not automatic. “[I]f a private citizen conspires with a state actor, then the
private citizen is subject to Section 1983 liability.” Id. (citation omitted). And
private corporations can be held liable under § 1983 if a plaintiff must allege that
his injury was caused by an unconstitutional policy, custom, or practice of the
corporation. Shields, 746 F.3d at 795-96 (expressing doubts about the wisdom and
precedential basis of the rule against respondeat superior liability for private
corporations, but holding that “[f]or now, this circuit’s case law still extends Monell
from municipalities to private corporations”) (collecting circuit authority), cert.
denied, 135 S.Ct. 1024 (2015).
Here, construing the complaint liberally as the Court must, the plaintiffs
allege that the private individual actors in this case (i.e., Mafee and the Lurie
defendants) conspired with state actors and that the private corporations’
unconstitutional policies or practices caused their injuries. Accordingly, Mafee and
the Lurie defendants are not entitled to a blanket ruling that they are private
entities and individuals shielded from liability under § 1983. The Court will
evaluate whether the plaintiffs have alleged specific facts supporting liability for
Mafee and the Lurie defendants below in connection with its analysis of the
plaintiffs’ constitutional claims.
First, Fourth, Sixth, and Fourteenth Amendment Claims under
The plaintiffs assert violations of the First, Fourth, Sixth, and Fourteenth
Amendments. The Court analyzes all of these claims in turn, though not necessarily
in order, and groups the claims where appropriate to avoid duplicative analysis.
First & Fourteenth Amendments: Parents’ right to choose
the mode of medical treatment for their child
The plaintiffs allege that the doctor defendants and the Lurie John Does
conspired with DCFS to require the plaintiffs to administer Keppra to A.T., even
though doing so was contrary to the plaintiffs’ sincerely held religious beliefs and
not in A.T.’s medical interest. R. 1 (Claim 1, Counts 1 & 3). They allege that the
doctor defendants did so in order to “get back at” the plaintiffs and provide a
financial benefit to the corporate Lurie Defendants. They allege that under the
circumstances, a religious accommodation was required. And because no course of
treatment could promise to prevent A.T.’s seizures altogether, the plaintiffs allege
that the proper religious accommodation would have been to continue treating A.T.
with the ketogenic diet. They appear to seek both an injunction against having to
give A.T. Keppra going forward and a variety of damages.
The Court assumes for the purposes of its analysis that despite failing to
plead the religion they ascribe to or the basis of their objection to pharmaceutical
drugs, the plaintiffs have adequately alleged their religious beliefs and that giving
A.T. Keppra is contrary to those beliefs. That is not enough to state a claim under
the First Amendment, however, because the right to freely exercise one’s religion is
limited where the health of a minor is at stake. See People ex. rel. Wallace v.
Labrenz, 104 N.E. 2d 769 (Ill. 1952). The Illinois Supreme Court held more than
sixty years ago that Jehovah’s Witnesses’ First Amendment rights were not violated
when a court appointed a guardian ad litem to approve a blood transfusion for their
child, despite their religious objections to the procedure. Id. at 773. The Court
sustained a finding of neglect based on parents’ refusal to permit their child to
receive a blood transfusion despite the almost certain risk of severe brain damage or
death without one, where the parents had not failed in their parental duties in any
other respect. Id. In reaching that conclusion, the Labrenz court held that while
“freedom of religion and the right of parents to the care and training of their
children are to be accorded the highest possible respect,” id. (citations omitted),
“neither rights of religion or rights of parenthood are beyond limitation,” id. at 77374 (quoting Prince v. Mass., 321 U.S. 158, 167 (1944)).
Setting forth the contours of those limitations, the Labrenz court recited the
long-settled principle that “[l]aws are made for the government of actions, and while
they cannot interfere with [ ] religious belief and opinions, they may with practices.”
Id. at 774 (quoting Reynolds v. United States, 98 U.S. 145, 166 (1878)). Where
parents’ religious practices endanger their child’s life, those practices fall beyond
the scope of the Free Exercise clause. Id. (citing Prince, 321 U.S. at 166 (“The right
to practice religion does not include liberty to expose the community or child to
communicable disease or the latter to ill health or death . . . Parents may be free to
become martyrs themselves. But it does not follow they are free, in identical
circumstances, to make martyrs of their children before they have reached the age
of full and legal discretion when they can make that choice for themselves.”)); see
also In re A.E., 2013 WL 4678227, at * 5 (Ill. App. Ct. Aug. 26, 2013) (unpublished)
(“Respondent is certainly allowed to be of the opinion that traditional medical care
is not necessary, but that does not mean she can practice those beliefs to the extent
they provide for the ill health of her children.”).
Under Labrenz, if the plaintiffs’ religious practices unduly endangered A.T.’s
life or well-being, the First Amendment did not confer on them the liberty to engage
in those practices. Judge Djurisic found, after reviewing hundreds of pages of
exhibits and hearing sworn testimony from three physicians, that treating A.T. with
the ketogenic diet alone exposed him to risk of status epilepticus, brain damage,
and possibly death. See R. 125 at 16-17. He found that the ketogenic diet, while
efficacious in certain cases of epilepsy, was inadequate to control A.T.’s seizures,
and furthermore that the plaintiffs should have recognized as much. See id. This
Court cannot review or contradict those findings. E.g., Suggs, 421 F. Supp. at 62
(federal courts may not review claims that state administrative judgment was
“erroneous,” “factually incorrect,” or “against the manifest weight of the evidence”);
University of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (“[W]hen a state agency
acting in a judicial capacity resolves disputed issues of fact properly before it which
the parties have had an adequate opportunity to litigate,” federal courts must give
the agency’s “factfinding . . . preclusive effect.”) (internal punctuation and citation
omitted). Therefore, the plaintiffs have not alleged a violation of their rights under
the First Amendment.
Religion aside, the plaintiffs argue that “[p]arents’ [r]ight to make health care
decisions for their child is absolute,” and “[s]tate interference in the child’s medical
care . . . constitutes a gross violation of the parents’ fundamental rights.” R. 148-1 at
1. In support, the plaintiffs rely primarily on Hofbauer v. Saratoga County
Department of Social Services, 393 N.E.2d 1009 (Ct. App. N.Y. 1979). The Hofbauer
case involved a child with Hodgkin’s disease. Id. at 1011. The child’s attending
physician recommended that he should be seen by an oncologist or hematologist to
begin radiation and chemotherapy. Id. at 1012. Rather than pursue that course of
treatment, the child’s parents took him to Jamaica, where a course of nutritional
therapy was initiated, which was then overseen locally by a licensed physician in
New York. Id. On appeal, the highest court of New York affirmed the legal
determination reached by the appellate division that the child’s parents had not
neglected him by pursuing the alternative, less traditional treatment regimen. Id.
at 1013-14. The court took pains to note that its ruling was confined to the unique
facts of that case, which the court lacked authority to review. Id. at 1012 (“[W]e note
that our scope of review is narrow in a case[ ] such as this, coming to us with
affirmed findings of fact . . . because the court is without power to review the
findings of fact if such findings are supported by evidence in the record.”).
Four facts not present in this case were critical to the Hofbauer court’s legal
analysis: (1) the parents had sought the opinions of numerous doctors before
settling on a course of treatment; (2) the nutritional treatment was being
supervised by a licensed physician, an indication that the treatment “ha[d] not been
totally rejected by all responsible medical authority”; (3) there was medical evidence
that the treatment was effectively controlling the child’s condition; and (4) the
parents testified that if their child’s condition deteriorated, they would consent to
the administration of conventional treatments. Id. at 1013. Critically, the Hofbauer
court found it “abundantly clear that this is not a case where the parents, for
religious reasons, refused necessary medical procedures for their child.” Id. at 1014.
The Hofbauer case therefore does not hold, as the plaintiffs argue, that their right to
make medical decisions for A.T. is absolute. Quite to the contrary, the case
acknowledges limitations on that right, and considers parental refusal to provide
necessary treatment to fall outside the bounds of constitutionally protected parental
Fourth and Fourteenth Amendments: Unlawful search
and seizure and interference in familial relations
The plaintiffs allege three incidents in the course of the DCFS investigation
that implicate their constitutional rights. First, they allege that certain of the Lurie
defendants, working together with DCFS, unlawfully detained A.T. at the hospital
by refusing to discharge him for 36 hours after he was fully recovered and medically
ready to go home. Second, they allege that the social worker defendants undertook
an unnecessarily extensive search of their children’s bodies at their home after
gaining entry only by threatening to remove both A.T. and his brother from the
plaintiffs’ custody. They further allege that these threats violated their
fundamental right of familial association. Finally, the plaintiffs allege that the
social worker investigators unlawfully detained, questioned, and physically
examined A.T. at school without parental knowledge or consent. In connection with
all of these incidents, the plaintiffs make an official-capacity claim against FormerDirector Sheldon, alleging that he was responsible for sanctioning policies and
setting priorities that permit “widespread” detentions and interrogations of these
types to occur.
The Incident at Lurie’s
Turning first to the claim that requiring A.T. to remain in the hospital for 36
hours after he was medically ready for discharge violated the Fourth Amendment,
the plaintiffs allege that on or around February 28, 2016, Dr. Lauren E. Marsillio
and John Doe 3 “accused plaintiffs of medical neglect,” and a call was made to
DCFS. R. 1 ¶ 68. They allege that John Doe 3 then took the plaintiffs into a
separate room and told Tyagi that if they tried to leave with A.T., a police officer
waiting in the lobby would be called up to speak with them. R. 148-1 at 4-5. The
hospital did not discharge A.T. for more than 36 hours after that, the plaintiffs
allege, despite the fact that the hospital and doctors had determined that A.T. had
recovered and was ready for discharge. Id. The plaintiffs allege they did not feel free
to leave during this time in light of the threat of police officer contact. Id.
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects against unreasonable searches and
seizures, shall not be violated.” “Because the basic purpose of the Fourth
Amendment is to safeguard the privacy and security of individuals against
arbitrary invasions by governmental officials, the amendment’s prohibition against
unreasonable searches and seizures protects against warrantless intrusions during
civil as well as criminal investigations by the government.” Heck, 327 F.3d at 509
(internal citations and quotation marks omitted). What constitutes “unreasonable”
under the Fourth Amendment “is not capable of precise definition or mechanical
application, and its proper application requires careful attention to the facts and
circumstances of each particular case.” Brokaw, 235 F.3d at 1010 (quoting Graham
v. Connor, 490 U.S. 386, 396 (1989)).
“A person has been seized within the meaning of the Fourth Amendment if,
in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” Id. (citing United States v.
Mendenhall, 446 U.S. 544, 554 (1980)). Based on Tyagi’s alleged conversation with
John Doe 3 and the alleged presence of a police officer on site, it was reasonable for
the plaintiffs to believe they and A.T. were not free to leave Lurie’s. Therefore, the
plaintiffs have plausibly alleged a seizure. Furthermore, it is plausible that it was
not reasonable for purposes of the Fourth Amendment to hold A.T. any longer than
The plaintiffs have not, however, met their burden of pleading “the ‘clearly
established rights’ that have been violated.” Magdziak v. Byrd, 1995 WL 704394, at
*6 (N.D. Ill. Nov. 29, 1995), aff'd, 96 F.3d 1045 (7th Cir. 1996) (quoting Alvarado v.
Picur, 859 F.2d 448, 452 (7th Cir.1988)) (dismissing § 1983 claims). The plaintiffs do
not address whether the right not to be held past medical necessity is clearly
established. Thus, at least as the record currently stands, plaintiffs have not
defeated John Doe 3’s or Dr. Marsillio’s qualified immunity defenses. Additionally,
the plaintiffs have not adequately alleged Dr. Marsillio’s personal involvement in
the alleged seizure; they merely allege that she was personally involved in the
medical neglect referral and in discharging A.T. And plaintiffs have not alleged that
John Doe 3 acted pursuant to a policy, custom, or practice of the corporate
defendants as required to hold the corporate defendants liable under § 1983. See
Shields, 746 F.3d at 795-96. The Court therefore dismisses the plaintiffs’ Fourth
Amendment claims with respect to the incident at Lurie’s.13
Plaintiffs also make a number of generalized allegations regarding the
removal of children from their parents’ custody and the alleged practice of “medical
kidnapping.” See, e.g., R. 155 (motion to intervene); R. 156 (motion to declare the
Adoption and Safe Families Act unconstitutional). But it is undisputed that A.T.
was never removed from the plaintiffs’ custody and the plaintiffs were never
prevented from seeing him at the hospital during his stay or from staying with him
overnight. And though A.T. was alleged to have been held in at Lurie’s for 36 hours
after being medically ready for discharge, he was not placed in state custody during
that time, enrolled in clinical trials, or forced to take experimental medications or
undergo experimental procedures without parental knowledge or consent.
“To meet the standing requirements of Article III, a plaintiff must allege
personal injury fairly traceable to the defendant’s allegedly unlawful conduct and
likely to be redressed by the requested relief.” Raines v. Byrd, 521 U.S. 811, 819
(1997) (emphasis in original) (internal quotations omitted) (quoting Allen v. Wright,
468 U.S. 737, 751 (1984)). The Supreme Court “has consistently stressed that a
plaintiff’s complaint must establish that he has a ‘personal stake’ in the alleged
dispute, and that the alleged injury suffered is particularized as to him.” Id. (citing
authority). Because it is undisputed that A.T. was never removed from the
plaintiffs’ custody, defendants’ motions to dismiss are granted with respect to any
The Incident at the Plaintiffs’ Home
Turning next to the search in the plaintiffs’ home, the plaintiffs allege that on
two different occasions, defendants Rubio and Burleson threatened to take A.T. and
his brother from their parents “unless [Rubio and Burleson] were allowed inside the
home immediately” to perform a “strip search.” R. 1 ¶ 185. The plaintiffs say they
consented to entry only because Rubio and Burleson threatened to take the children
if they did not consent. Id. Then, without parental consent, Rubio and Burleson
allegedly “pulled down the pants and underwear of” A.T. and his brother “and
inspected” their bodies. Id. at ¶ 186. The plaintiffs’ allegations regarding the
incident in their home raise two potential constitutional claims: a Fourth
Amendment claim regarding the search, and a Fourteenth Amendment substantive
due process claim regarding the threat of removal.
The Search. “When the Fourth Amendment was ratified, as now, to ‘search’
meant ‘[t]o look over or through for the purpose of finding something; to explore; to
examine by inspection.’” Heck, 327 F.3d at 509-10 (citing Kyllo v. United States, 533
U.S. 27, 33 n. 1 (2001) (quoting N. Webster, An American Dictionary of the English
Language 66 (1828) (reprint 6th ed. 1989))); Darryl H. v. Coler, 801 F.2d 893, 900
(7th Cir. 1986) (“A search within the meaning of the fourth amendment occurs when
the government intrudes upon an individual’s legitimate expectation of privacy.”).
generalized claims regarding removing children from their parents’ custody or the
alleged practice of “medical kidnapping.”
The search the plaintiffs allege plainly meets this definition. And the
plaintiffs’ allegations, if true, describe an unreasonable search. Requiring
children—especially those whose well-being is not in question like A.T.’s brother—
to pull down their underpants without parental consent and in the absence of
allegations such as spanking or sexual abuse is not reasonable. The plaintiffs have
thus pleaded a plausible Fourth Amendment claim based on the search at the
plaintiffs’ home. And they have adequately alleged Rubio’s and Burleson’s personal
involvement in that search.
Nor are Rubio and Burleson entitled to qualified immunity. The right for
children to be free from unduly invasive physical inspections on private property in
similar circumstances is clearly established. See Michael C. v. Gresbach, 526 F.3d
1008, 1017 (7th Cir. 2008) (“[W]e find that a reasonable child welfare worker would
have known that conducting a search of a child’s body under his clothes, on private
property, without consent or the presence of any other exception to the warrant
requirement of the Fourth Amendment, is in direction violation of the child’s
constitutional right to be free from unreasonable searches”); Franz v. Lytle, 997
F.2d 784, 792 (7th Cir. 1993) (no reasonable officer would believe that he could
visually and physically inspect two-year old child's vagina based on one complaint
that the child had a severe diaper rash).
The plaintiffs’ Fourth Amendment claim with respect to the search at the
plaintiffs’ home will proceed with respect to Rubio and Burleson in their individual
The Threat of Removal. Substantive due process “protects an individual
from the exercise of governmental power without a reasonable justification.” Belcher
v. Norton, 49 F.3d 742, 753 (7th Cir. 2007). “The Supreme Court has long recognized
as a component of substantive due process the right to family relations.” Brokaw,
235 F.3d at 1018. It is clearly established under Seventh Circuit law that undue
interference in the familial relationship violates the fundamental liberty interest of
parents in the care, custody and management of their children. See id. at 1018-19
(collecting authority on the contours of the constitutional right to familial relations).
Accordingly, the “threat to remove” minor children “from the custody of their
parents violate[s]” the parents’ “right to familial relations.” Heck, 327 F.3d at 524. A
violation occurs even if “defendants d[o] not make good on their threat.” Id.
Here, the plaintiffs have plausibly alleged that Rubio and Burleson
personally threatened to remove A.T. and his brother from their parents’ custody
and thus violated the plaintiffs’ substantive due process rights. And the right to be
free from such a threat is clearly established under Seventh Circuit law. As such,
Rubio and Burleson are not entitled to qualified immunity.
The plaintiffs’ Fourteenth Amendment substantive due process claim will
proceed with respect to Rubio and Burleson in their individual capacities.
The Incident at A.T.’s Public School
The final alleged investigation-related incident involved interviews with A.T.
at his public school by all three social worker defendants (Rubio, Stephens, and
Burleson) in March 2016 and May 2016. R. 1 ¶ 177. The plaintiffs allege that the
social worker defendants performed these interviews without their consent, and
that they involved 15-20 minutes of intrusive questions and an inspection of A.T.’s
body. Id. at ¶¶ 177-78. The plaintiffs allege that Chicago Public Schools and its
employees did not offer A.T. the opportunity to call his parents or tell him he was
free not to answer the questions. Id. at ¶¶ 179-80. The plaintiffs’ allegations
regarding the incident in their home raise two potential Fourth Amendment claims:
a claim regarding the interrogation and a claim regarding the search.
The Interrogation. In Heck, the Seventh Circuit held that warrantless
seizure of a student at a private school in the absence of a warrant, consent, or
exigent circumstances violated the Fourth Amendment. 327 F.3d at 517. In
reaching that decision, the Seventh Circuit expressly distinguished a private school
interrogation from an interrogation at a public school. Id. at 511-17. It explained
that “a lower standard of scrutiny applies to searches and seizures conducted by the
government on public school property.” Id. at 514.
In light of the distinction in Heck between public and private school, A.T.
likely had no reasonable expectation of privacy at his public school that would give
rise to a Fourth Amendment claim based on the interrogation alone. And even if he
did, Rubio, Stephens, and Burleson would have qualified immunity because any
such right is not clearly established under Seventh Circuit law. The plaintiffs’
Fourth Amendment claim with respect to the alleged interrogation at A.T.’s public
school is therefore dismissed.
The Search. The Seventh Circuit in Heck reaffirmed its prior holding in
Darryl H. that on public school property, it could “not ‘say that the Constitution
requires that a visual inspection of the body of a child who may have been the
victim of child abuse can only be undertaken when the standards of probable cause
or a warrant are met.’ Instead, . . . the constitutionality of these inspections should
be evaluated under the reasonableness test of the Fourth Amendment.” Id. at 51314 (quoting Darryl H., 801 F.2d at 902). Under the reasonableness test, the question
becomes whether “the government officials in question had ‘some definite and
articulable evidence giving rise to a reasonable suspicion that a child has been
abused or is in imminent danger of abuse.’” Id. at 515 (quoting Brokaw, 235 F.3d at
In Darryl H., the Seventh Circuit implied that a visual inspection of a minor
at a public school, if performed without the parents’ consent and without definite
and articulable evidence of abuse, might violate the Fourth Amendment. 801 F.2d
at 907. But the Darryl H. Court “expressly declined to rule on the constitutionality
of the examinations” in that case and “found that the constitutional rights and
issues involved were far from ‘clearly established.’” Lanstrom v. Illinois Dep’t of
Children & Fam. Servs., 892 F.2d 670, 676 (7th Cir. 1990) (discussing Darryl H.).
Here, the plaintiffs may very well have stated a Fourth Amendment claim
with respect to the visual inspection of A.T. at his public school. They plausibly
allege that the social worker defendants performed a visual inspection of A.T.’s body
without parental consent and with allegedly limited evidence giving rise to a
reasonable suspicion of imminent danger of abuse. But because (1) the Court in
Darryl H. expressly declined to rule on the constitutionality of the physical
inspections in that case, and (2) the reasonableness of such a search at public school
is not clearly established under Seventh Circuit law, the social worker defendants
have qualified immunity on that claim. The plaintiffs’ Fourth Amendment claim
with respect to the alleged physical examination at A.T.’s public school is therefore
Official Capacity Claims Against FormerDirector Sheldon (Claims 2 & 7)
In addition to individual-capacity claims against the DCFS defendants, the
plaintiffs make official-capacity claims against Former-Director Sheldon for
allegedly permitting widespread searches and seizures of minors to occur. The
DCFS defendants argue that these claims are barred by the Eleventh Amendment.
R. 119 at 14. As a general rule, the Eleventh Amendment bars federal suits against
state officials in their official capacities. Brokaw, 235 F.3d at 1009; see also Evans v.
Torres, 1999 WL 1010983, at *3 (N.D. Ill. Sept. 30, 1999) (noting that “DCFS is
treated the same as a State for the purposes of the Eleventh Amendment”). But
official-capacity suits against state officials seeking prospective, equitable relief are
not barred by the Eleventh Amendment. Williams v. Wisconsin, 336 F.3d 576, 580–
81 (7th Cir. 2003) (citing Ex parte Young, 209 U.S. 123 (1908)). Thus, to the extent
the plaintiffs’ official-capacity claims against Former-Director Sheldon seek
injunctive relief in the form of an order preventing future violations of their
constitutional rights (as they do, in part), they are not barred by the Eleventh
Amendment. Williams, 336 F.3d at 580–81.
Separate and apart from the application of the Eleventh Amendment,
however, a plaintiff’s claim for an injunctive relief must be plausible. Iqbal, 556 U.S.
at 678. And in this case, the plaintiffs’ allegations regarding Former-Director
Sheldon’s participation in creating a policy regarding unlawful searches and
seizures and threats of removal are far too conclusory to set forth a plausible
custom, policy, or practice. The plaintiffs allege that Former-Director Sheldon was
responsible for sanctioning policies and setting priorities that permit widespread
detentions and interrogations to occur. R. 1 ¶¶ 218-24. But they do not provide any
implemented these supposed priorities and sanctioned these policies. Id. ¶¶ 218-24,
255. Therefore, the official-capacity claims against Sheldon (Claims 2 & 7) seeking
prospective equitable relief are dismissed.
Sixth Amendment: Right to confront witnesses
The plaintiffs allege that by failing to compel the presence of subpoenaed
witnesses, Judge Djuristic denied them the opportunity to “confront and crossexamine adverse witnesses.” Citing to the rules governing appeals of child abuse
and neglect investigations, they also allege to have been entitled (and denied the
right) to confront the John Doe witness who made the DCFS referral in February
2016. They invoke the Confrontation Clause of the Sixth Amendment as the source
of these rights. The Confrontation Clause provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const., amend. VI.
The DCFS defendants argue that the plaintiffs are foreclosed from raising a
Sixth Amendment claim because they failed to exhaust administrative remedies.
But there is no exhaustion requirement under § 1983. Veterans Legal Defense Fund
v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003).
The DCFS defendants also argue that the Confrontation Clause applies by its
terms only to criminal proceedings. R. 119 at 8 (“No court has ever found that the
Sixth Amendment guarantees a right to cross examine witnesses in a civil
administrative review process.”). That position might be overly simplistic. See
Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016) (Sixth Amendment might apply in
immigration removal hearings).
In any event, even if the plaintiffs had a right to cross-examine witnesses at
the administrative hearing, Judge Djurisic is protected from liability by the doctrine
of judicial immunity. Brokaw, 235 F.3d at 1015 (“judges are not liable in civil
actions for their judicial acts unless they have acted in the clear absence of
jurisdiction”; indeed, “a judge will not be deprived of immunity even if the action
was in error, was done maliciously, was in excess of his authority, and even if his
exercise of authority is flawed by the commission of grave procedural errors”)
(internal citations omitted); Eades v. Sterlinske, 810 F.2d 723, 725-26 (7th Cir.
1987) (judicial immunity applies to Sixth Amendment violations in criminal
sentencing proceedings). Accordingly, the plaintiffs’ Sixth Amendment claim is
Fourteenth Amendment Procedural Due Process
The plaintiffs allege a variety of alleged procedural errors in the DCFS
investigation and administrative appeal, including use of the “credible evidence”
standard to indicate a finding of medical neglect, disregarding exculpatory evidence,
and deadline issues. To plead a procedural due process claim under § 1983, a
plaintiff “must sufficiently allege (1) that she had a cognizable liberty interest under
the Fourteenth Amendment; (2) that she was deprived of that liberty interest; (3)
and that the deprivation was without due process.” Mann v. Vogel, 707 F.3d 872,
877 (7th Cir. 2013). As set forth below, none of the plaintiffs’ alleged errors supports
a plausible procedural due process claim.
“Credible Evidence” Standard
The plaintiffs allege that “the use of the credible-evidence standard of proof to
support the indicated finding” of medical neglect violated their procedural due
process rights. R. 1 ¶¶ 117, 199. But “credible evidence” is the appropriate standard
of proof for pre-deprivation proceedings, including to support the indicated finding
necessary to place an individual on the SCR. E.g., Dupuy v. Samuels, 397 F.3d 493,
505-07 (7th Cir. 2005) (district court did not abuse discretion by permitting DCFS
“to retain the term ‘credible evidence’ in its articulation of the governing standard of
proof” “for the pre-indication stage of the investigation”). And Judge Djuristic
applied the appropriate, “preponderance of the evidence” standard in the post-
deprivation proceedings in this case. See id. at 507-08. Thus, the appropriate
standards were applied, and the use of a “credible evidence” standard to indicate a
report in pre-deprivation proceedings does not support a procedural due process
The plaintiffs allege that DCFS attorneys who represented the agency
presented false or fabricated evidence and suppressed exculpatory evidence. R. 1
¶¶ 149, 151. But the plaintiffs do not allege specifically what exculpatory evidence
was fabricated or suppressed. If they are referring to evidence about the efficacy of
the ketogenic diet, their claim is belied by the state’s stipulation at the
administrative hearing “that the Ketogenic Diet is a medically recognized and valid
form of treatment for some cases of Epilepsy to prevent seizure that may lead to
episodes of Status Epilepticus.” R. 125 at 5. At least as currently pleaded, the
plaintiffs fail to state a procedural due process claim with respect to the suppression
of exculpatory evidence.
Turning to the plaintiffs’ various and generalized allegations regarding the
violations of deadlines, as the Seventh Circuit has explained:
While a plaintiff is not required to exhaust state remedies to bring a
§ 1983 claim, this does not change the fact that no due process
violation has occurred when adequate state remedies exist. The whole
idea of a procedural due process claim is that the plaintiff is suing
because the state failed to provide adequate remedies. Therefore, we
do not require a plaintiff to pursue those remedies in order to
challenge their adequacy, but likewise we do not allow a plaintiff to
claim that she was denied due process just because she chose not to
pursue remedies that were adequate. Given the availability of state
remedies that have not been shown to be inadequate, plaintiffs have
no procedural due process claim.
Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003).
Here, Jagatia never appealed the ruling that she was not within the category
of persons entitled to expedited review. She therefore failed to take advantage of
“adequate state remedies,” and she has “no procedural due process claim.” See id.
Additionally, the facts pleaded in the plaintiffs’ complaint are too conclusory to
allege Judge Djuristic’s ruling was manifestly erroneous. Even if it was, Judge
Djurisic is protected from liability by the doctrine of judicial immunity. Brokaw, 235
F.3d at 1015.
It does not appear to the Court that any other deadlines were missed, but
even if they were, the relatively minor delays do not raise procedural due process
prosecutorial and witness misconduct are conclusory at best. Without more, the
attorney defendants are protected by prosecutorial immunity and the doctor
defendants are protected by witness immunity. See Ibitayo, 2013 WL 22765046, at
Fourteenth Amendment Substantive Due Process
The plaintiffs allege that in filing an indicated report with SCR that resulted
in their names being listed in a registry, defendants deprived them of their liberty
interest in pursuing the profession of their choosing. The plaintiffs do not allege
what specific positions they were terminated from or ineligible for, but instead state
generally that they have been prevented from holding jobs that require contact with
As explained above, substantive due process “protects an individual from the
exercise of governmental power without a reasonable justification.” Belcher, 49 F.3d
at 753. The right to pursue a chosen career is not a fundamental right; as such,
rational basis review applies. Hughes v. Jones, 40 F. Supp. 3d 969, 986-88 (N.D. Ill.
A plaintiff cannot state a substantive due process claim based on an SCR
registry listing where an unappealed administrative ruling held that the plaintiff
committed neglect, meaning that his or her name rightfully appears on the registry.
See id. at 984 (unlike procedural due process rights, substantive due process rights
depend on the merits of the claimant’s substantive assertions, and a plaintiff must
show that the denial of due process caused an injury); Lossman v. Pekarske, 707
F.2d 288, 291 (7th Cir. 1983) (same). Accordingly, the plaintiffs cannot state a
substantive due process claim based on the listing of their names on the SCR’s
The plaintiffs also assert that the SCR is unconstitutional. They state that
“[a] registry listing amounts to ‘life sentence’ of being labeled a child abuser that
adversely impacts employment and education, charity and child-rearing.” R. 139
¶ 6. They allege that the SCR is available to “public and private employers and
other organizations, even if there is no child connection to the work.” Id. ¶ 7; see
also id. ¶ 11.
These allegations are false. The Illinois Abused and Neglected Children
Reporting Act, 325 ILCS 5/11, makes clear that “[a]ll records concerning reports of
child abuse or neglect . . . shall be confidential and shall not be disclosed except as
specifically authorized by this Act or other applicable law.” 325 ILCS 5/11. Only
certain authorized entities and persons, such as the operator of a licensed child care
facility, are able to obtain this information. 325 ILCS 5/11.1(12), 5/11.1(14),
5/11.1(15). And far from amounting to a “life sentence,” an individual’s name
appears on the SER listing for five years only, and listed individuals have a right to
appeal. R. 154, Ex. B at pp. 371-81. The plaintiffs were told as much in writing on
July 4, 2016. Id.
For the same reason the plaintiffs fail to state a substantive due process
claim—i.e., because they never appealed the decision sustaining a finding of medical
neglect that justified the listing—they have not alleged that the SCR is
unconstitutional as applied to them. It necessarily follows that the plaintiffs cannot
make a viable constitutional challenge to the SCR on its face. Therefore, the
plaintiffs’ Motion to Declare the SCR Unconstitutional, R. 139, must be denied.
State Law Claims
The plaintiffs also assert three tort claims under Illinois law: intentional
infliction of emotional distress, negligent infliction of emotional distress, and
invasion of privacy. Defendants do not argue that the plaintiffs have inadequately
pleaded the elements of these claims. Defendants do, however, argue that the
plaintiffs’ state law claims should be dismissed under the Illinois Tort Immunity
“The Illinois Tort Immunity Act shields state government employees from
liability for tortious acts committed in the course of one’s government employment.”
Bell v. Marseilles Elementary Sch. Dist. #150, 2001 WL 818897, at *5 (N.D. Ill. Mar.
7, 2001). But willful and wanton acts are specifically excluded. 745 ILCS 10/2-202.
Willful and wanton acts are those “which . . . if not intentional, show an utter
indifference to or conscious disregard for the safety of others or their property.” 745
ILCS 10/1-210. The willful and wanton standard can be highly fact-dependent:
“Under the facts of one case, willful and wanton misconduct may be only degrees
more than ordinary negligence, while under the facts of another case, willful and
wanton acts may be only degrees less than intentional wrongdoing.” Ziarko v. Soo
Line R. Co., 641 N.E.2d 402, 406 (Ill. 1994).
Because negligence is by definition a lesser state of mind than willful and
wanton, “negligence claim[s are] barred by the Illinois Tort Immunity Act.”
Remblake v. Cty. of Will, 2010 WL 3732146, at *2 (N.D. Ill. Sept. 16, 2010) (quoting
Miller v. Womak, 2010 WL 2522994, at *1 (C.D. Ill. 2010)). Accordingly, the
plaintiffs’ negligent infliction of emotional distress claim is dismissed. See id.
(dismissing negligent infliction of emotional distress claim under Illinois Tort
Immunity Act); Cheatham v. City of Chicago, 2016 WL 6217091, at *2 (N.D. Ill. Oct.
25, 2016) (same).
The plaintiffs’ intentional infliction of emotional distress and invasion of
privacy claims, by contrast, require an intentional or reckless mental state and so
are not automatically barred by the Illinois Tort Immunity Act. Landstrom v. Ill.
Dep’t of Children & Family Serv., 699 F. Supp. 1270, 1281 (N.D. Ill. 1988) (elements
of intentional infliction of emotional distress claim include “intent by the defendant
to cause, or a reckless disregard of the probability of causing emotional distress”)
(quotation marks omitted); Busse v. Motorola, Inc., 813 N.E.2d 1013, 1017 (1st Dist.
2004) (intentionality is required for “invasion of privacy” tort under Illinois law).
Rather, the application of the Illinois Tort Immunity Act to these claims depends on
the specific facts asserted by the plaintiffs.
The plaintiffs incorporate and assert the same factual basis to support their
intentional infliction of emotional distress and invasion of privacy claims that they
use to support their § 1983 claims. R. 1 ¶¶ 225-29, 235-39. They also allege that
defendants acted intentionally and in an offensive manner showing a conscious
disregard for the safety of A.T. R. 1 ¶¶ 225-29, 235-39. These allegations, coupled
with the allegations underlying the plaintiffs’ surviving § 1983 claims (i.e., the
Fourth and Fourteenth Amendment claims regarding the incident at the plaintiffs’
home), plausibly allege that defendants Rubio and Burleson engaged in willful and
wanton conduct. E.g., Hill v. Miller, 878 F. Supp. 114, 117 (N.D. Ill. 1995) (“While it
is true that merely claiming that certain conduct was ‘willful and wanton’ is
insufficient to survive a dispositive motion, the facts alleged here, if proven, would
support a claim”) (internal citation omitted). Thus, to the extent the plaintiffs’
intentional infliction of emotional distress and invasion of privacy claims are coextensive with their surviving § 1983 claims against defendants Rubio and
Burleson, the intentional infliction of emotional distress and invasion of privacy
claims also survive. See, e.g., Landstrom, 699 F. Supp. at 1281-82 (intentional
infliction of emotional distress claim for invasive search of minor in DCFS
investigation survived motion to dismiss); Carlson ex rel. Stuczynski v. Bremen High
Sch. Dist. 228, 423 F. Supp. 2d 823, 830 (N.D. Ill. 2006) (invasion of privacy and
intentional infliction of emotional distress claims survived motion to dismiss based
on Illinois Tort Immunity Act).14
For the reasons set forth above, the following defendants are dismissed from
this case: Former-Director Sheldon in his individual and official capacities, Judge
Djurisic, Large, Pavelski, Lemon, Stephens, Epstein, Bicknese, Cirrillo, Mafee,
Marsillio, the John Doe defendants, the corporate defendants, and Lurie Hospital.
The following claims are dismissed: under § 1983, the First Amendment
claim, the Fourth Amendment claims arising from the incidents at Lurie Hospital
and at A.T.’s public school, the Sixth Amendment claim, and the Fourteenth
Amendment procedural and substantive due process claims; the negligent infliction
The Court’s ruling does not preclude the defendants from raising the
applicability of the Illinois Tort Immunity Act again once the facts are further
developed. The ultimate determination of whether conduct rises to the level of
willful or wanton and the Illinois Tort Immunity Act applies often is “a question of
fact” that “depends on the facts and circumstances” of a given case. Harris v.
Thompson, 976 N.E.2d 999, 1011 (Ill. 2012).
of emotional distress claim; any medical malpractice claim; and all equitable claims
unconstitutional policies are conclusory). The plaintiffs’ First and Fourteenth
Amendment right to choose mode of medical treatment claims, the Fourth
Amendment claim based on the incident at A.T.’s public school, the Sixth
Amendment claim, the Fourteenth Amendment substantive due process claim, the
negligent infliction of emotional distress claim, and claims related to “medical
kidnapping” are dismissed with prejudice. All other claims are dismissed without
prejudice. If the plaintiffs believe they can cure the defects identified in this opinion,
they may move to file an amended complaint. Any such motion should be filed
within 21 days of the date of this ruling and should attach the proposed amended
complaint and a memorandum of no more than five pages explaining how the new
complaint cures the defects.
The following claims survive defendants’ motions to dismiss: the plaintiffs’
Fourth and Fourteenth Amendment claims under § 1983 arising from the incidents
at the plaintiffs’ home against defendants Burleson and Rubio in their individual
capacities, and the plaintiffs’ intentional infliction of emotional distress and
invasion of privacy claims against Burleson and Rubio to the extent they are
coextensive with the remaining § 1983 claims.
In addition to the pending motions to dismiss (R. 115, R. 117), this Opinion
and Order also resolves a number of other motions pending in this case. The
plaintiffs’ motion for additional service of summons and complaint by alternative
means (R. 78) is denied as moot. The plaintiffs’ motions to file opposing memoranda
of law in connection with several of the defendants’ responses (R. 159) is granted.
The motion to intervene (R. 155) pertains to medical kidnapping and is dismissed
for lack of standing. The motion to declare the Adoption and Safe Families Act
unconstitutional (R. 156), related intervention motion (R. 155), and accompanying
declaration of Kathleen Clark (R. 186) are likewise dismissed for lack of standing.
The motion to declare Keppra dangerous (R. 164), related letter from Kathleen
Clark (R. 187), motion to appoint an expert (R. 167), and motion to order production
of medical records (R. 169) are stricken as contrary to this Court’s earlier ruling (R.
122). The motion to declare the DCFS practice of seizing, searching, and
interrogating children at public schools without parental consent and in the absence
of exigent circumstances unconstitutional (R. 177) is dismissed for the same reason
the Court has dismissed Claims 2 and 7 of the complaint. The “Motion to Order
Defendants George Sheldon and Deanna Large to remove Plaintiffs’ names from
Illinois SCR Register” (R. 95), the Lurie defendants’ motion to strike non-compliant
filings (R. 182), and the plaintiffs’ Motion to Declare the SCR Unconstitutional (R.
139) are all denied for the reasons set forth above. The DCFS defendants’ motion to
leave to file certain records under seal in conjunction with their response to the
plaintiffs’ Motion to Declare the SCR Unconstitutional (R. 152) is granted.
Honorable Thomas M. Durkin
United States District Judge
Dated: September 18, 2017
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