Green v. Quick et al

Filing 64

ORDER: For the reasons set forth in the attached Memorandum and Order, the Defendants' Motion to Dismiss (Doc. 56 ) is hereby DENIED. Signed by Chief Judge Michael J. Reagan on 4/27/17. (rah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JADE V. GREEN,

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Plaintiff,
v.
CHRIS QUICK,
RUSSELL ADAMS,
JACK HOWSER, and
ANGELA HOWSER,
Defendants.

Case No. 3:16-cv-0863-MJR-DGW

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
I.

Introduction
This matter is now before the Court on Defendants Jack and Angela Howsers’

Motion to Dismiss (Doc. 56) seeking dismissal from the suit for lack of subject matter
jurisdiction.

The underlying dispute is a claim by Plaintiff, Jade Green, that the

Howsers conspired with Defendants Chris Quick and Russell Adams to deprive her of
custody of her child (Doc. 1). Plaintiff relies on 18 U.S.C. Section 1983 as a basis for
federal jurisdiction. The Court already denied Motions to Dismiss filed by Defendants
Quick and Adams (Docs. 30, 31), finding that they did not carry the burden of
establishing that they were entitled to qualified immunity for their actions (Doc. 43).
For reasons detailed below, this Court hereby denies the Howsers’ Motion to Dismiss

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for lack of subject matter jurisdiction or failure to state a claim because under
controlling circuit precedent the allegations in the complaint are sufficient to move
beyond a Rule 12(b)(1) or 12(b)(6) motion to dismiss.
II.

Facts
The facts set forth in this Court’s Order (Doc. 43) denying Defendants Quick and

Adams’ Motion to Dismiss are incorporated by reference.

In essence, Plaintiff’s

complaint alleges that the Howsers acted in conspiracy with Quick and Adams to
deprive her of custody of her child. Plaintiff alleges that the Howsers developed a plan
with Quick and Adams as an end-run around state court custody proceedings that were
proving unsuccessful as a mechanism for the Howsers to secure custody of Plaintiff’s
child.
III.

Legal Analysis

A motion to dismiss for lack of subject matter jurisdiction, brought pursuant to
Federal Rule of Civil Procedure 12(b)(1) requires the Court to assess the jurisdictional
basis for hearing a case. A challenge may be either factual or facial.
A factual challenge contends that there is in fact no subject matter jurisdiction,
even if the pleadings are formally sufficient. In reviewing a factual challenge,
the Court may look beyond the pleadings and view any evidence submitted
to determine if subject matter jurisdiction exists.
In contrast, a facial challenge argues that the plaintiff has not sufficiently
alleged a basis of subject matter jurisdiction. In reviewing a facial challenge,
the court must accept all well-pleaded factual allegations as true and draw all
reasonable inferences in favor of the plaintiff.

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Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (emphasis in original, internal
citations omitted). A 12(b)(1) motion may be properly construed as a facial challenge if
it alleges that plaintiffs lack sufficient factual allegations to establish standing, or if the
pleadings are otherwise somehow plainly deficient. See id.
This Court accepts all factual allegations as true when reviewing a 12(b)(6) motion to
dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007). At the motion to dismiss stage the
Court is evaluating the sufficiency of the complaint, not the merits of the case. Gibson v
City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To avoid dismissal for failure to
state a claim, a complaint must contain a short and plain statement of the claim
sufficient to show entitlement to relief and to notify the defendant of the allegations
made against him. FED. R. CIV. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 55557 (2007). In order to meet this standard, a complaint must describe the claims in
sufficient factual detail to suggest a right to relief beyond a speculative level. Id.;
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); EEOC v. Concentra Health Servs., 496 F.3d
773, 776 (7th Cir. 2007). A complaint need not contain detailed factual allegations, Scott
v. Chuhak & Tescon, P.C., 725 F.3d 772, 782 (7th Cir. 2013), but it must go beyond “mere
labels and conclusions” and contain “enough to raise the right to relief above the
speculative level,” G&S Holdings, LLC v. Cont’l Cas. Co., 697 F.3d 534, 537-38 (7th Cir.
2012). Put another way, to survive a motion to dismiss “the plaintiff must give enough
details about the subject-matter of the case to present a story that holds together [. . .]

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the court will ask itself could these things have happened, not did they happen.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
A conspiracy claim need not be pled with Federal Rule 9(b) particularity, but
conspiracy claims have historically been held to a higher pleading standard than others.
See Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009) (discussing the conspiracy
pleading standard in the context of an alleged conspiracy to deprive a parent of
custody of her children); Loubser v. Thacker, 440 F.3d 439, 442-43 (7th Cir. 2006)
(discussing the conspiracy pleading standard in the context of a Section 1983 claim).
The heightened standard requires the plaintiff to allege the parties, the general purpose,
and the approximate date of the conspiracy. Loubser, 440 F.3d at 443. The Seventh
Circuit has found a conspiracy claim to be sufficiently stated even where the complaint
was disjointed and the allegations of conspiracy were scattered throughout.

Id.

However, the Seventh Circuit has found that a general allegation of conspiracy against
various participants in child custody proceedings was insufficient where the plaintiff
simply alleged that a conspiracy existed without providing more specifics. Cooney, 583
F.3d at 971 (“The complaint in this case…is bereft of any suggestion, beyond a bare
conclusion, that the remaining defendants were leagued in a conspiracy with the
dismissed defendants. It is not enough that the complaint charges that ‘Bischoff and
Dr. Lyle Rossiter, with the aid of Judge Nordquist, Dan Cain, and Brian Klaung

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continued the ongoing violations of Plaintiff Deborah’s Constitutional rights.’ That
is too vague.”).
In Brokaw v. Mercer, the Seventh Circuit considered a case with striking factual
similarities to the case at bar where a child was suing local law enforcement, human
services officials, court officials, and private citizens for conspiring to remove him from
the custody of his parents. Brokaw v. Mercer Cnty., 235 F.3d 1000 (7th Cir. 2000). The
child relied on Section 1983, and specifically asserted theories for relief under the Fourth
Amendment, and based on substantive and procedural due process. Id. The Brokaw
Court noted that, “[w]hile a private citizen cannot ordinarily be held liable under
Section 1983 because that statute requires action under color of state law, if a private
citizen conspires with a state actor, then the private citizen is subject to Section 1983
liability.”

Id. at 1016.

Brokaw defined the following elements for a Section 1983

conspiracy claim: ”that (1) a state official and private individual(s) reached an
understanding to deprive the plaintiff of his constitutional rights, and (2) those
individual(s) were willful participants in joint activity with the State or its agents.” Id.
Stated another way, the Brokaw Court noted that allegations necessary to survive a
motion to dismiss are the essential who, what, when, why, and how. Id.
Here, the Howsers argue that the Court has no subject matter jurisdiction over
them because Plaintiff failed to adequately allege that they were acting under color of
state law, as is required for a typical § 1983 case. The Howsers do not distinguish

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whether this challenge is meant to be factual or facial, and the Plaintiff’s response is not
entirely clear on that either. The Court interprets the challenge as factual because the
Defendants are not asserting that Plaintiff simply failed to put forth facts supporting
jurisdiction, instead they appear to argue that the facts she did set forth do not sustain a
finding of jurisdiction.

Such a challenge is substantive, and warrants careful

consideration. Yet with careful consideration, the Court finds that this issue is easily
resolved by reference to Brokaw. See Brokaw, 235 F.3d at 1016.
In Brokaw the Seventh Circuit found that it was proper for a § 1983 claim to
proceed against private citizen defendants on a theory that the defendants conspired
with state actors. Plaintiff’s allegations are on all-fours with Brokaw because she alleged
that the Howsers conspired with Quick and Adams (a sheriff and a county attorney) to
deprive her of custody of her child. Plaintiff alleged that the deprivation of rights took
place in November 2014 in Lawrenceville, Illinois.

She further alleged that the

conspiracy arose to assist the Howsers in securing long-term custody of her child
because the Howsers were facing difficulty accomplishing that goal in state court. The
allegations are sufficient under the standard set forth in Brokaw to allow this case to
proceed beyond a motion to dismiss because conspiracy is a valid legal theory to
include private citizens in a § 1983 claim. What is more, Plaintiff’s allegations go into
detail about how (by arresting her and giving her child to the Howsers), why (to give
the Howsers long-term custody), when (November 2014) and other particulars about

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the alleged conspiracy, so the allegations are not too vague to imagine how jurisdiction
exists over the parties.
The Howsers also argue that Plaintiff has failed to state a claim because she has
not identified a plausible theory of relief, but the Court finds this argument fruitless in
light of Brokaw and other Supreme Court precedent acknowledging certain fundamental
rights to family unity. See e.g. Santosky v. Kramer, 455 U.S. 745, 753 (1982) (finding
that a New York state law setting a low standard of proof for termination of parental
rights hearings was infirm in light of the fundamental liberty interest at stake for a
parent concerned with the custody and care of a child); Prince v. Massachusetts, 321
U.S. 158, 166 (1944) (acknowledging that the private realm of family life has many
protections from intrusion by the state); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(recognizing the right of a parent to make care and custody decisions as perhaps the
oldest fundamental liberty interest recognized). Taking the allegations made in the
complaint as true, Plaintiff has identified enough factual information to proceed beyond
the Howsers’ motion to dismiss. As with the briefs on Defendants Quick and Adams’
motions to dismiss, here the parties again seem to be ships passing in the night—
focused excessively on certain aspects of the case like color of state law, or accurate
briefing while ignoring others, like the need to flesh out the conspiracy theory. In any
event, this Court finds the plain statement of the claim presented in the complaint is
sufficient to put the Howsers on notice of the allegations made against them such that

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they can develop their case as they see fit. Accordingly, the Defendants’ Motion to
Dismiss is hereby DENIED.
IT IS SO ORDERED.
DATED: April 27, 2017

s/ Michael J. Reagan
Michael J. Reagan
United States District Judge

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