Norman v. Departmen of Child Services et al

Filing 9

OPINION AND ORDER, denying 2 MOTION for Leave to Proceed in forma pauperis filed by LaSandra Norman. The Court declines to authorize the plaintiff to proceed with this lawsuit under the in forma pauperis statute. This action DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). ***Civil Case Terminated. Signed by Senior Judge James T Moody on 6/29/12. cc: pltf(kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LaSANDRA NORMAN,
Plaintiff,
v.
DEPARTMENT OF CHILD SERVICES,
Defendant.

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No. 2:12 CV 210 JM

OPINION and ORDER
LaSandra Norman, a pro se plaintiff, filed an amended complaint under 42 U.S.C.
§ 1983 and a motion for leave to proceed in forma pauperis. (DE # 2, 7.) The Court has an
obligation under 28 U.S.C. § 1915(e)(2)(B) to screen the complaint before service on the
defendant, and must dismiss the complaint if it is frivolous or malicious, fails to state a
claim for relief, or seeks monetary relief against a defendant who is immune from such
relief. In determining whether the complaint states a claim, the Court applies the same
standard as when addressing a motion to dismiss under FEDERAL RULE OF CIVIL
PROCEDURE 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To
survive dismissal under federal pleading standards,
[the] complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. 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.
Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). Thus, a “plaintiff must do better than putting a
few words on paper that, in the hands of an imaginative reader, might suggest that

something has happened to her that might be redressed by the law.” Swanson v. Citibank,
N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).
In evaluating whether a complaint is frivolous for purposes of the in forma
pauperis statute, the Court need not “accept without question the truth of the plaintiff’s
allegations.” Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). Instead, the statute “accords
judges not only the authority to dismiss a claim based on an undisputably meritless
legal theory, but also the unusual power to pierce the veil of the complaint’s factual
allegations and dismiss those claims whose factual contentions are clearly baseless.” See
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Here, Norman is suing the Indiana Department of Child Services (“DCS”),
claiming that her children were wrongfully removed from her home and placed in
foster care after her 15-year-old son told authorities she had physically abused him. She
claims that the allegations were false. She further claims that she has been made to
participate in “unhelpful” services in connection with a pending juvenile court case. She
seeks $25 million in damages and other relief.
The sole defendant named in the complaint is a state agency, which has
immunity from suit under the Eleventh Amendment. Seminole Tribe of Florida v. Florida,
517 U.S. 44, 54-55 (1996); Ryan v. Ill. Dep’t of Child. & Family Servs., 185 F.3d 751, 758 (7th
Cir. 1999). Without a valid waiver or a statute overriding sovereign immunity, the state
and its agencies cannot be sued in federal court. Ryan, 185 F.3d at 758. Norman has not
alleged, nor can it be plausibly inferred from the complaint, that the state has waived its
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immunity, and 42 U.S.C. § 1983 does not trump state immunity. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 67 (1989). Accordingly, this suit against DCS cannot proceed.
Even if Norman’s complaint could survive Eleventh Amendment immunity, it
would fail for other reasons. She states that there are felony criminal charges pending
against her pertaining to the child abuse allegations. (DE # 7 at 3.) Under Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), Norman cannot obtain an award of damages in
connection with a claim that would necessarily imply the invalidity of the pending
criminal charges. Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 898 n.8
(7th Cir. 2001) (“[W]e have interpreted Heck as barring damage claims which, if
successful, would necessarily imply the invalidity of a potential conviction on a
pending criminal charge.”); Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996) (“If [a claim
for civil damages] could proceed while criminal proceedings are ongoing, there would
be a potential for inconsistent determinations in the civil and criminal cases and the
criminal defendant would be able to collaterally attack the prosecution in a civil suit.”).
Norman cannot bring any such claim until the charges against her are dismissed or
“reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-7. To the extent
Norman seeks injunctive relief pertaining to the criminal case, such as dismissal of the
charges, that relief can only be sought in a habeas corpus proceeding. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973).
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Norman also appears to be seeking an order from this Court requiring her
children to be returned to her, contrary to the orders entered in the juvenile court case.
Although Norman remains free to pursue whatever remedies may be available to her
through the state appellate process, this Court has no authority to review or otherwise
alter the orders issued in the state case. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 284-85 (2005); In re Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001).
For these reasons, the Court declines to authorize the plaintiff to proceed with
this lawsuit under the in forma pauperis statute. The motion for leave to proceed in forma
pauperis (DE # 2) is DENIED and this action DISMISSED pursuant to 28 U.S.C.
§ 1915(e)(2)(B).
SO ORDERED.
Date: June 29, 2012
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT