Thornton et al v. Scan Inc et al

Filing 26

OPINION AND ORDER: GRANTING 22 MOTION Summary Ruling re 16 MOTION to Dismiss for Lack of Jurisdiction by Defendants Michael Lewandski, Tonya Reilley, Scan Inc, Rachel Tobin Smith. Defendants' Motion to Dismiss 16 is DENIED regarding Thornton's Section 1983 claims and is GRANTED regarding Thornton's requests for declaratory and injunctive relief. Signed by Chief Judge Philip P Simon on 3/12/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BRIAN ANTHONY THORNTON and
MINOR CHILD “JT,”
Plaintiffs,
v.
SCAN, INC., an Indiana organization,
et al.,
Defendants.

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CAUSE NO. 1:14-CV-178

OPINION AND ORDER
Before me is Defendants’ motion to dismiss (DE 16) requesting that I dismiss
Thornton’s complaint for various procedural and jurisdictional reasons. Also before me
is Defendants’ motion for a summary ruling (DE 22). For the reasons below,
Defendants’ motion for a summary ruling (DE 22) is GRANTED and their motion to
dismiss (DE 16) is GRANTED-IN-PART and DENIED-IN-PART.
BACKGROUND
As usual, I’ll start with the facts as alleged in the complaint, which I accept as
true at this point in the case. Brian Anthony Thornton, a pro se plaintiff, is the father of
a minor child, JT. Thornton and his wife are either divorced or in the process of
divorcing. As a condition of their custody arrangement, the court handling the

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Thornton’s divorce ordered that Thornton’s visits with his son be supervised by
Defendant SCAN, Inc.
Thornton hasn’t had very positive experiences at SCAN’s facilities. Thornton
alleges various run-ins with SCAN’s employees, who are listed as co-defendants. For
example, Thornton claims he was subjected to illegal searches or “frisks” upon entering
the premises, was not allowed to change his son’s diaper, was not allowed to pray with
his son, and was denied access to his son without cause. Thornton alleges each of these
occurred multiple times.
Thornton alleges that these actions violated his rights under the First, Second,
Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution. He also claims
that Defendant SCAN “was Ordered to act as the agency of Parenting Time on behalf of
the State of Indiana Government.” (DE 7 at 3.) Because of that, Thornton claims SCAN
was a state actor and that the complaint therefore states a proper claim under 42 U.S.C.
§ 1983.
The defendants claim that I do not have “jurisdiction” over these claims under
Section 1983 because SCAN was not a state actor. This is incorrect. Whether SCAN is
or is not a state actor is not a matter that divests me of jurisdiction. If SCAN is not a
state actor that would be grounds to dismiss for failure to state a claim under Rule
12(b)(6). But my “jurisdiction” to hear the matter is certainly not in question. In
addition, defendants further claim that Thornton doesn’t have standing to pursue his
declaratory and injunctive remedies against SCAN because there is no longer a case or
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controversy between him and SCAN now that SCAN is no longer responsible for
monitoring his supervised visitation. Defendants also want me to dismiss this matter
for various procedural deficiencies.
Thornton has not responded to Defendants’ motion to dismiss, even though the
time to do so has long since passed. Defendants request that I therefore summarily rule
on their motion to dismiss, absent Thornton’s response. That request will be
GRANTED. I’ll therefore take each of Defendants’ arguments in their motion to
dismiss in turn.
DISCUSSION
To survive a motion to dismiss under Rule 12(b), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). At this stage I must accept all allegations as true and draw all
reasonable inferences in the complainant’s favor, but I don’t need to accept threadbare
legal conclusions supported by mere conclusory statements. See id. at 678. So under
Iqbal, I must first identify allegations in the complaint that are not entitled to the
assumption of truth by, for example, disregarding legal conclusions. Id. Then I must
look at the remaining allegations to determine whether they plausibly suggest an
entitlement to relief. Id. Determining whether a complaint states a plausible claim for
relief requires me to draw on my judicial experience and common sense. Id. at 679.
And I must also bear in mind that “[a] document filed pro se is to be liberally construed,
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and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Procedural Defects
At the outset, Defendants request that I dismiss the complaint because it was not
executed under penalty of perjury as required by my previous order (DE 4) and it was
filed two days late, also in contravention of my colleague’s previous order (DE 6).
Although Thorton did not precisely follow my order, I am generally of the mind that
claims should be tackled on the merits rather than on procedural technicalities. This is
especially so when I am dealing with a pro se litigant. Erickson, 551 U.S. at 94. Since “it
is clear that the decision whether to apply the rule strictly or to overlook any
transgression is one left to the district court’s discretion,” and since Defendants have
shown no prejudice resulting from these transgressions, I’ll exercise my discretion to
overlook them. Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (quoting Little v. Cox's
Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)); Eubanks v. Norfolk S. Ry. Co., 875 F. Supp.
2d 893, 898 (N.D. Ind. 2012). In other words, I’m not going to dismiss the complaint on
these bases.
Section 1983 Claims
Section 1983 provides a cause of action for individuals whose constitutional
rights are denied to them “under color of any statute, ordinance, regulation, custom, or
usage, of any State.” 42 U.S.C. § 1983. The shorthand description of this is that a
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plaintiff must demonstrate that a defendant deprived him of a federal right while acting
under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970), abrogated on
other grounds. Section 1983 protects citizens from conduct by the government, but not
from conduct by private actors, no matter how outrageous the conduct might be.
Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th Cir.
2009).
But there’s an exception to this rule. A private entity can be found to have acted
under color of law if there is evidence of a concerted activity between a state actor and
that private entity such that the private parties’ “alleged infringement of federal rights
[is] fairly attributable to the state.” Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). This
requires “such a ‘close nexus between the State and the challenged action’ that the
challenged action ‘may be fairly treated as that of the State itself.’” Rodriguez v.
Plymouth Ambulance Service, 577 F.3d 816, 823 (7th Cir. 2009) (quoting Jackson v. Metro.
Edison Co., 419 U.S. 345, 351 (1974)). So in order for Thornton’s action to proceed, he
must plead facts showing that SCAN acted under color of state law in depriving him of
his constitutional rights.
The Supreme Court has set forth a number of tests to determine whether a
private party acted under color of state law. There’s the joint action test, see Dennis v.
Sparks, 449 U.S. 24, 27 (1980), the public function test, see West v. Adkins, 487 U.S. 42, 5556 (1988), the state compulsion test, see Adickes, 398 U.S. at 168, and the nexus test, see
Jackson, 419 U.S. at 351. Though these tests provide guidance, “the Supreme Court has
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emphasized repeatedly that courts must decide the state-action issue on a case-by-case
basis considering all of the circumstances.” Tarpley v. Keistler, 188 F.3d 788, 793 (7th Cir.
1999) (emphasis in original).
According to Thornton, Defendant SCAN, Inc. was “Ordered to act as the agency
of Parenting Time on behalf of the State of Indiana Government.” (DE 7 at 3.) At a
minimum, Thornton has therefore alleged that SCAN was an agent of the state. But
Defendants claim that isn’t good enough because Thornton needs to allege that the
government and SCAN actively conspired to deprive him of his rights. This stretches
the pleading requirement too far. It is surely the case that Thornton will ultimately
have to prove that SCAN was a state actor, whether he proceeds under a joint action
theory or otherwise. See Cunningham v. Southlake Center for Mental Health, 924 F.2d 106,
107-08 (7th Cir. 1991). It’s instructive that Cunningham is a case that proceeded to trial
and was dismissed only after the plaintiff failed to prove state action. But I can’t find
any authority indicating that he has to allege a conspiracy as this early stage. Simply
put, I don’t know at this stage whether SCAN is, in fact, an agent of the State of Indiana
such that it can be said to have acted under the color of state law, but that’s what
discovery is for. At this point, Thornton has alleged SCAN is the government’s agent
and I have to take that fact as true. Iqbal, 556 U.S. at 678. And I think it’s reasonable to

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think that the fact that the state court ordered SCAN’s participation may mean that
SCAN was acting under color of law.1
Defendants further argue that I should decline jurisdiction here because
Thornton’s claims relate to his divorce proceedings and are therefore subject to the
domestic relations exception to federal jurisdiction. (DE 17 at 3.) Essentially, what that
means is that I’m not supposed to adjudicate issues pertaining to someone’s divorce or
custody arrangement because those are state matters. Ankenbrandt v. Richards, 504 U.S.
689, 703 (1992). But that’s not what Thornton is asking me to do. He’s not asking that I
change anything that the state court has ordered, like the terms of his custody
arrangement. Instead, he’s claiming certain policies and procedures implemented by
SCAN have violated his constitutional rights. Cf. Jones v. Brennan, 465 F.3d 304 (7th Cir.
2006). His beef is not with the fact that SCAN has been ordered to oversee his visits
with his son. Instead, he is complaining about the manner in which SCAN is

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The defendants have not argued, and therefore I need not decide, whether SCAN would be
entitled to judicial immunity. If Thornton had brought this claim directly against the state court judge
who appointed SCAN, any such claim would have been dismissed on grounds of judicial immunity.
Because SCAN was acting at the behest of a state judicial officer they may also, by extension, be entitled
to judicial immunity. Courts have found that to be the case under similar circumstances. See e.g.
Millspaugh v. County Dept. of Pub. Welfare of Wabash, 937 F.2d 1172, 1176 (7th Cir. 1991) (social workers
entitled to absolute judicial immunity for submissions to the court, and qualified immunity for actions
relating to removal of children from parents’ home); Pelham v. Albright, No. 3:11cv99, 2012 WL 1600455,
*6-7 (N.D.Ind. May 4, 2012) (same); El-Shabazz v. Henry, No. 12Civ.5044, 2012 WL 5347824, at *5 (E.D.N.Y.
Oct. 29, 2012) (social worker placed in charge of monitoring supervised visitation between parent and
child entitled to absolute quasi-judicial immunity for actions in the scope of her court-ordered duties);
McKnight v. Middleton, 699 F.Supp.2d 507, 527-28 (E.D.N.Y. 2010) (same); Deluz v. The Law Office of
Frederick S. Cohen, No. CIV S-10-0804, 2011 WL 677914, at *6 (E.D.Cal. Feb. 17, 2011) (same and collecting
cases). But in the absence of briefing on the issue, I am reluctant to decide the issue sua sponte.

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undertaking that responsibility – a manner that he says is unconstitutional. Thornton
may therefore proceed on his Section 1983 claims against Defendants.
Declaratory or Injunctive Relief
Thornton asks that I declare various “statutes and protocols” enforced by SCAN
unconstitutional and that I enjoin SCAN from enforcing them. (DE 7 at 10.) To obtain a
declaratory judgment, Thornton must satisfy Article III of the U.S. Constitution’s
requirement of an actual “case-or-controversy.” 28 U.S.C. § 2201(a); MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 126 (2007). To do so, Thornton must show that he has
sustained an injury likely caused by the defendants that a declaratory judgment will
redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). That’s where
Thornton runs into a problem. According to Defendants, on September 19, 2014 (about
a month after he filed this complaint) the Allen Circuit Court ordered that SCAN be
removed as the Parenting Time Coordinator for Thornton’s visits with his son. (DE 17
at 5.) Although the state court’s recent order is a matter that is outside the four corners
of Thornton’s complaint, I can take judicial notice of public records in deciding motions
to dismiss. In re Salem, 465 F.3d 767, 771 (7th Cir. 2006); 4901 Corp. v. Town of Cicero, 220
F.3d 522, 527 (7th Cir. 2000). In light of the recent order from the state court removing
SCAN from Thornton’s case, declaring the various SCAN policies unconstitutional
won’t redress Thornton’s injury because SCAN won’t be applying its policies against
him anymore anyway. I therefore find that there is no actual case or controversy

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between Thornton and Defendants regarding Thornton’s declaratory claims, so I will
dismiss those claims.
The same goes for Thornton’s request for an injunction. To obtain an injunction,
Thornton must show, among other things, that an irreparable harm will result if the
injunction is not granted. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). But
now that SCAN is no longer involved in Thornton’s visits with his son, he’s not under
any danger of irreparable harm. Simply put, there’s nothing for me to enjoin. So I’ll
dismiss Thornton’s request for injunction, as well.

CONCLUSION
For the forgoing reasons, Defendants’ Motion for Summary Ruling (DE 22) is
GRANTED. Defendants’ Motion to Dismiss (DE 16) is DENIED regarding Thornton’s
Section 1983 claims and is GRANTED regarding Thornton’s requests for declaratory
and injunctive relief.
SO ORDERED.

ENTERED: March 12, 2015
s/Philip P. Simon
Chief Judge
United States District Court

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