Munoz et al v. Bradbury et al

Filing 46

MEMORANDUM Opinion and Order; Defendants Morrissey and Hawley's motion to dismiss 24 is granted in part and denied in part. Defendant Jennifer Hawley is dismissed without prejudice. Plaintiffs' amended complaint must be filed by 6/15/20 22. Plaintiffs have sufficiently pleaded Morrissey's involvement in the alleged due process violation. Morrissey must answer the complaint by June 1, 2022. See the attached for details. Signed by the Honorable Iain D. Johnston on 5/6/2022: Mailed notice (yxp, )

Case: 3:21-cv-50231 Document #: 46 Filed: 05/06/22 Page 1 of 11 PageID #:231

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Cynthia Munoz, and Ismael Munoz,
Plaintiffs,

Case No. 3:21-cv-50231

v.

Honorable Iain D. Johnston

Tony Bradbury, Carissa Morrissey,
Doug Quinn, Jacob Maratos, Jennifer
Hawley, and Ben Fritz,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiffs Cynthia and Ismael Munoz brought this action under 42 U.S.C. §
1983 for purported violations of their constitutional rights under the Fourth and
Fourteenth Amendments. Plaintiffs sued City of Freeport employees Tony
Bradbury, Doug Quinn, Jacob Maratos, and Ben Fritz as defendants. Plaintiffs also
sued Illinois Department of Children and Family Services employees Carissa
Morrissey and Jennifer Hawley. The City of Freeport defendants answered
Plaintiffs’ complaint. Morrissey and Hawley move the Court to dismiss Plaintiffs’
claims against them. For the reasons set forth below, that motion [24] is granted in
part, without prejudice, and denied in part.
I.

Background
The following factual allegations are taken from Plaintiffs’ complaint. Dkt. 1.

At this stage, the Court must accept these allegations as true. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). On June 11, 2020, a crime was committed at Plaintiffs’ home
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in Freeport, Illinois. The complaint does not explain the nature of this crime or who
committed it. Nevertheless, the crime resulted in law enforcement obtaining a
warrant to search the home. In the intervening time between the commission of the
crime and issuance of the search warrant, Plaintiffs were instructed to leave the
home. The home was a crime scene. The next day, Detective Tony Bradbury
attempted to contact Plaintiffs because he wanted to speak with their children, who
were present when the crime occurred. He tried again three days later, on June 15,
2020.
After “the children were made unavailable,” Officer Jacob Maratos called the
Department of Children and Family Services (DCFS) hotline, which prompted an
investigation. Dkt. 1, at 7, ¶ 8. Plaintiffs allege that Maratos gave DCFS false and
misleading information, but they do not explain what that information was. That
same day, Carissa Morrissey, on orders from Jennifer Hawley, visited Plaintiffs’
home. Stating unlivable conditions, she told Plaintiffs to bring the children outside
and that they would be going to the DCFS office unless Plaintiffs had somewhere
else for them to go. Plaintiffs asked Morrissey to inspect the home for herself, but
she refused. Plaintiffs’ seven children were then placed in temporary foster care.
Morrissey explained that the Freeport police officers told her that the home
had been condemned. Plaintiffs protested that their home had never been
condemned. So, Plaintiffs and Morrissey agreed that Morrissey would set up an
inspection of the home to be performed by Ben Fritz, the city inspector. Morrissey
apparently knew him and could get the inspection done right away. Two days later,

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on June 17, 2020, Morrissey and Fritz appeared to perform the inspection, along
with Doug Quinn and Freeport police officers. They also carried boards in Fritz’s
truck to board up the home if necessary. The inspection lasted a little over five
minutes. After the inspection, Ben Fritz condemned the home.
II.

Analysis
Morrissey and Hawley move the Court to dismiss under Federal Rule of Civil

Procedure 12(b)(1) for lack or subject-matter jurisdiction and under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
A. Eleventh Amendment
Morrissey and Hawley argue that Plaintiffs’ claims against them are barred
by the Eleventh Amendment because Plaintiffs essentially seek monetary relief
against the State of Illinois. Dkt. 25, at 14. Plaintiffs respond by citing Chisholm v.
Georgia, 2 U.S. 419 (1793) for the proposition that such immunity does not exist.
But the Eleventh Amendment was passed specifically to overturn the Chisholm v.
Georgia. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1496 (2019) (“Congress and
the States accordingly acted swiftly to remedy the Court’s blunder by drafting and
ratifying the Eleventh Amendment.”). Thus, “the Constitution bars suits against
nonconsenting States in a wide range of cases.” Id.
When a plaintiff brings a suit against the State or its employees, “courts
should look to whether the sovereign is the real party in interest to determine
whether sovereign immunity bars the suit.” Lewis v. Clarke, 137 S. Ct. 1285, 1291
(2017). Under the Eleventh Amendment, Plaintiffs would be barred from seeking

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monetary relief against DCFS or its employees in their official capacities. Darryl H.
v. Coler, 801 F.2d 893, 906–07 (7th Cir. 1986). In Darryl H., the Seventh Circuit
dismissed the suit against the DCFS employees in their official capacities for lack of
jurisdiction because the Eleventh Amendment barred the claims. Id. at 907. The
individual capacity claims, however, did not meet the same fate because in an
official capacity suit, the plaintiff only nominally sues the named individual. Id. It
is, instead, effectively a suit against the sovereign. Lewis, 137 S. Ct. at 1292
(quoting Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)). Suits against
defendants in their individual capacities, however, seek to hold those defendants
liable for the personal actions done under color of state authority. Id.
In this case, Plaintiffs sued Morrissey and Hawley in their individual
capacities for their purported failure to conduct a reasonable investigation before
removing Plaintiffs’ seven children from the home. Thus, the Eleventh Amendment
does not bar Plaintiffs’ claims.
B. Issue preclusion and the Rooker-Feldman doctrine
Morrissey and Hawley next contend that Plaintiffs’ claims are barred by
issue preclusion and the Rooker-Feldman doctrine. Rooker-Feldman doctrine bars
federal courts from exercising jurisdiction over cases brought by state court losers to
challenge a state court judgment. Mains v. Citibank, N.A., 852 F.3d 669, 675 (7th
Cir. 2017). State court losers can’t essentially “appeal” the state court’s decision
through a separate federal action; instead, they must appeal through the state court
system and then on certiorari to the United States Supreme Court directly. Exxon

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Mobile Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005) (explaining that
only the Supreme Court has federal appellate jurisdiction over state court
judgments). But the mere existence of state proceedings does not invoke RookerFeldman, even if those proceedings call into question abstention doctrines or issue
preclusion. Id. at 292.
This case does not invoke Rooker-Feldman. Plaintiffs here have not filed suit
in federal court to undo a state court judgment. Rather, they seek monetary
damages for what they believe was an insufficient investigation in violation of their
due process rights under the Fourteenth Amendment. Although they have
explained the existence of a state child custody matter, Morrissey and Hawley have
not explained how Plaintiffs’ suit is an attack on the state court judgment itself.
Thus, they have failed to meet their burden on this issue.
Morrissey and Hawley also fail to explain why Plaintiffs are precluded from
litigating this issue. Issues litigated in state court are subjected to preclusion in
federal court once the state litigation is final. See In Re Emerald Casino, Inc., 867
F.3d 743, 759 (7th Cir. 2017). “Under Illinois law, issue preclusion applies if (1) the
issue decided in the prior case is identical to the issue in the current case, (2) there
was a final judgment on the merits in the prior case, and (3) the party against
whom issue preclusion is asserted was a party or in privity with a party to the prior
case.” Id. In this case, Morrissey and Hawley contend that this civil rights action
seeks to relitigate an issue that has already been decided in the state juvenile court.
Dkt. 25, at 7–8. “Plaintiffs, via counsel and with no objection, stipulated to the

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Petition, which stated that the children were in a DCFS safety plan and that their
home was condemned by the City of Freeport.” Id. at 8. Morrissey’s and Hawley’s
argument fails at the first step. They have not even attempted to argue that the
constitutional due process issue—the failure to reasonably investigate—was
litigated in the state juvenile court. Plaintiffs seek money damages for Morrissey
and Hawley’s actions on June 15 and 17, 2020 that allegedly deprived them of due
process. Without any indication whether that issue was litigated in a final state
proceeding, this Court cannot grant the motion on preclusion grounds.
C. Personal involvement in the alleged due process violation
To state a due process violation under 42 U.S.C. § 1983, plaintiffs must allege
(1) a cognizable liberty interest under the Fourteenth Amendment, (2) that the
defendant caused a deprivation of that interest, and (3) that the deprivation was
without due process. Mann v. Vogel, 707 F.3d 872, 877–78 (7th Cir. 2013). In this
case, Plaintiffs assert that Morrissey and Hawley deprived them of their
substantive right to familial association without due process. Hawley and Morrissey
do not contest that such a substantive right exists, nor could they. Troxel v.
Granville, 530 U.S. 57, 65 (2000) (“The liberty interest at issue in this case—the
interest of parents in the care, custody, and control of their children—is perhaps the
oldest of the fundamental liberty interests recognized by this Court.”). Likewise,
Morrissey and Hawley do not contend that Plaintiffs have failed to allege a
deprivation of that interest. Indeed, Plaintiffs have alleged that their seven children
were removed from their home. Rather, the pending motion to dismiss focuses on

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whether Plaintiffs have sufficiently alleged that Morrissey and Hawley caused the
deprivation to occur without due process.
Morrissey and Hawley contend that Plaintiffs individual capacity claims
should be dismissed for lack of personal involvement in the purported constitutional
injury. When bringing a suit under section 1983 against government officials,
plaintiffs may not rely on theories of respondeat superior. Flores v. City of S. Bend,
997 F.3d 725, 731 (7th Cir. 2021). Instead, plaintiffs must allege how each
defendant was personally involved in the claimed constitutional injury. Taylor v.
Ways, 999 F.3d 478, 493–94 (7th Cir. 2021). Thus, when suing a supervisor for a
subordinate’s constitutional violation, plaintiffs must allege that the supervisor
knew about the subordinate’s conduct and either (1) facilitated it, (2) approved it,
(3) condoned it, or (4) turned “a blind eye for fear of what they might see.” Id.
(quoting Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)).
First, Plaintiffs’ allegations regarding Jennifer Hawley are not sufficient to
plead any personal involvement. On the contrary, Plaintiffs’ complaint merely
alleges that Hawley was Morrissey’s supervisor. They have included no allegations
sufficient to explain how Hawley was personally involved in her subordinate’s
conduct. Thus, the Court must grant Hawley’s motion to dismiss without prejudice
for failure to state a claim against her.
Next, Plaintiffs allege that when Morrissey came to their home, they asked
her to come inside and see the home for herself because Morrissey had cited
unlivable conditions as the reason for the removal. They allege that she refused to

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perform the inspection, demanded the children come outside, and told Plaintiffs
that the children would be placed in a temporary home unless Plaintiffs had
somewhere else for the children to go. Plaintiffs also allege that Morrissey was
present for the follow-up inspection wherein Ben Fritz condemned the home. But
they do not allege any involvement by Morrissey in the decision to condemn the
home. Thus, Plaintiffs’ allegations of Morrissey’s personal involvement are limited
to her alleged failure to conduct a reasonable investigation before removing the
children from Plaintiffs’ home. Plaintiffs believe this failure constitutes a violation
of their due process rights under the Fourteenth Amendment.
Morrissey contends these allegations are not enough to plead that she was
personally involved in removing the children from the home because Plaintiffs
entered into a voluntary safety plan and the state juvenile court declared wardship
over the children, not Morrissey. But a motion to dismiss tests only the sufficiency
of the complaint, not the merits of the ultimate question. Gunn v. Cont’l Cas. Co.,
968 F.3d 802, 806 (7th Cir. 2020). And the existence and nature of a voluntary
safety plan lies outside the bounds of the complaint. Cole v. Milwaukee Area Tech.
College Dist., 634 F.3d 901, 903 (7th Cir. 2011) (“The consideration of a Rule
12(b)(6) motion is restricted to the pleadings, which consist here of the complaint,
any exhibits attached thereto, and the supporting briefs.”).
Furthermore, the argument misses the point. Plaintiffs do not challenge the
safety plan; they challenge the sufficiency of the investigation leading up to the
safety plan. Hayes v. Narang, No. 19-cv-03596, 2020 U.S. Dist. LEXIS 148748, at

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*11–12 (N.D. Ill. Aug. 18, 2020) (similarly noting that plaintiffs in that case
challenged whether defendants had “definite and articulable evidence” of abuse
based on an adequate investigation of the circumstances). And Morrissey has not
challenged the sufficiency of Plaintiffs allegation that she failed to perform an
investigation of Plaintiffs home before removing the children. And regardless,
Plaintiffs’ allegation that Morrissey failed to perform a reasonable investigation
before removing the children states a claim under the Due Process Clause of the
Fourteenth Amendment. Hayes, 2020 U.S. Dist. LEXIS 148748, at *13 (denying the
motion to dismiss because the plaintiffs had plausibly alleged a merely cursory
investigation).
D. Qualified immunity
Morrissey further moves for dismissal on the grounds that she is qualifiedly
immune from suit. Qualified immunity is designed to protect government officials
from monetary liability unless their conduct violated a plaintiff’s “clearly
established statutory or constitutional rights of which a reasonable person would
have been aware.” Hernandez v. Foster, 657 F.3d 463, 473 (7th Cir. 2011). This
presents a two-part inquiry: (1) whether the official violated a statutory or
constitutional right, and (2) whether that right was clearly established at the time
the official’s conduct occurred. Reed v. Palmer, 906 F.3d 540 546 (7th Cir. 2018).
When presented with a qualified immunity defense, the plaintiff bears the burden
of proving that the right was clearly established at the time that the defendant’s
conduct occurred. Hernandez, 657 F.3d at 473.

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Dismissal at the pleading stage based on qualified immunity is often
inappropriate because the factual record has yet to be developed. Reed, 906 F.3d at
548. If the allegations in the complaint show that the defendant is entitled to
qualified immunity, however, the court should grant the motion because the
Supreme Court has repeatedly “stressed the importance of resolving immunity
questions at the earliest stage possible in litigation.” Doe v. Arlington Heights, 782
F.3d 911, 915–16 (7th Cir. 2015). Although Plaintiffs have alleged a plausible claim
against Morrissey, the factual allegations do not paint a sufficient picture to allow
the Court to reasonably address the qualified immunity question without the aid of
fact discovery. Furthermore, Morrissey’s argument in favor of qualified immunity is
not well developed. It merely recites her belief that Plaintiffs failed to state a claim
and then repeats the contention that DCFS employees are statutorily required to
investigate allegations of child abuse. But Plaintiffs do not challenge Morrissey’s
need to investigate child abuse allegations. Rather, Plaintiffs challenge the
sufficiency of that investigation.
Thus, because the Court cannot now engage the qualified immunity question,
and because Morrissey has failed to adequately argue in favor of qualified
immunity, the Court denies her motion to dismiss.
III.

Conclusion

Therefore, the Court denies the motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1). Furthermore, the Court grants in part and denies in part the
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Defendant

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Jennifer Hawley is dismissed without prejudice because Plaintiffs have not
sufficiently pleaded her personal involvement in the alleged constitutional injury.
Plaintiffs are given leave to file an amended complaint to state a claim against
Hawley. The amended complaint must be filed by June 15, 2022. If no amended
complaint is filed by that date, the dismissal will convert into a dismissal with
prejudice. Plaintiffs have sufficiently pleaded Morrissey’s involvement in the alleged
due process violation, however, so her motion to dismiss is denied. Morrissey must
answer the complaint by June 1, 2022. The parties should actively engage in
discovery.
Date: May 6, 2022
___________________________
Honorable Iain D. Johnston
United States District Judge

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