Williams et al v. Indiana Department of Child Services

Filing 86

OPINION AND ORDER GRANTING 67 MOTION to Dismiss. The Court DISMISSES WITH PREJUDICE Counts IXI as to Defendant DCS; DISMISSES WITHOUT PREJUDICE Counts IVI, VIIIXI as to Defendant Dumas; DISMISSES WITHOUT PREJUDICE Counts IVI, VIIIXI as to Defendant Tinich; and DISMISSES WITH PREJUDICE Count VII as to Defendants Dumas and Tinich. The Plaintiffs' Second Amended Complaint [ECF No. 66] is thus DISMISSED. Signed by Chief Judge Theresa L Springmann on 7/9/19. (ksp)

`UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THOMAS WILLIAMS, et al.,
Plaintiffs,
v.

CAUSE NO.: 2:17-CV-164-TLS

INDIANA DEPARTMENT OF CHILD
SERVICES, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Defendants’, Indiana Department of Child Services
(“DCS”), Jeffrey Tinich, and Ellis Dumas, Motion to Dismiss [ECF No. 67] pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.

BACKGROUND
The Plaintiffs filed their Complaint [ECF No. 1] on April 12, 2017 and a First Amended
Complaint [ECF No. 33] on February 2, 2018. The Plaintiffs filed a Second Amended Complaint
[ECF No. 66] on May 29, 2018, which is now the operative Complaint in this case. The
Plaintiffs’ claims center around the removal and alleged subsequent abuse of their children while
in the care of DCS.
The Plaintiffs state that all the Plaintiffs are African-American. (Pls’. Compl. ¶ 30.) The
Plaintiffs allege that Defendant DCS removed the five minor Plaintiffs (the Williams children) in
December 2015, even though a family case manager with DCS indicated that no removal was
appropriate. (Id. ¶¶ 16–17, 36.) The Plaintiffs state that Defendant Jeffrey Tinich was the
assigned caseworker for the Williams children and their parents. (Id. ¶¶ 46–47.) The Plaintiffs

claim that Defendant Tinich failed to advise the juvenile court that no removal was appropriate.
(Id. ¶ 17.) The Plaintiffs allege that they were victims of disparate treatment because Tinich
acted pursuant to the customs and policies of DCS, which encourages removal of AfricanAmerican children from homes when removal is unnecessary. (Id. ¶¶ 21–23.) The Plaintiffs
allege that Defendant Ellis Dumas was the supervisor of Defendant Tinich, had a duty to
supervise him, and failed to do so. (Id. ¶¶ 37–40.)
The Williams children attended counseling sessions while in foster care. (Id. ¶ 50.) While
in counseling, the Williams’ daughter recanted the abuse allegation made against her mother. (Id.
¶¶ 56–57.) The Plaintiffs allege that the counseling services provider attempted to contact
Defendant Tinich regarding abuse and neglect concerns of a child in foster care and was unable
to do so, which prevented the parents from being informed (Id. ¶¶ 80–82, 127–129.) The
Plaintiffs claim that Defendant Tinich then removed the counseling services provider as a
provider for the children in retaliation. (Id. ¶¶ 60–62.) The Plaintiffs aver that the foster mother’s
son sexually assaulted one of the Williams children repeatedly in the month of December 2015,
in the presence of the other Williams children, who were themselves physically harmed,
emotionally abused, and/or verbally assaulted. (Id. ¶¶ 112–114.) The Plaintiffs allege neither
DCS nor Tinich informed the Williams parents of the child’s ensuing hospital visit (Id. ¶¶ 101–
105). The child who was sexually assaulted now has the need for 24 hour medical and
psychiatric care. (Id. ¶¶ 124–125.)
The Plaintiffs’ nine count Complaint against Defendants DCS, Tinich, and Dumas,
alleges both state and federal claims. Count I is a state-law “negligence per se” claim alleged
against all Defendants; Count II is a state-law negligence based on a failure to exercise
reasonable care against all Defendants; Count III is a state-law abuse of process and/or official

2

misconduct claim against all Defendants; Count IV is a federal claim pursuant to 42 U.S.C. §
1983 against all Defendants alleging a failure to train and supervise; Count V is a federal claim
pursuant to 42 U.S.C. § 1983 against all Defendants alleging violations of due process and equal
protection; Count VI is a state-law intentional infliction of emotional distress claim against all
Defendants; Count VII is a federal 42 U.S.C. § 1983 claim alleging that the Defendants violated
the Plaintiffs’ Fourth Amendment right to freedom from unreasonable search and seizure; Count
VIII is a federal conspiracy claim against all Defendants; and Count XI is a federal 42 U.S.C. §
1983 claim against all Defendants alleging violation of the Plaintiffs’ First Amendment right to
free speech. The Plaintiffs seek compensatory and punitive damages, future damages, damages
for pain and suffering, damages for rehabilitation maintenance, and attorney’s fees.
The Defendants filed a Motion to Dismiss [ECF No. 67] on June 12, 2018, the Plaintiffs
responded on June 26, 2018 [ECF No. 73], and the Defendants filed a reply on July 3, 2018
[ECF No. 78].

LEGAL STANDARD
Rule 12(b)(6) “challenges the viability of a complaint by arguing that it fails to state a
claim upon which relief may be granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732,
736 (7th Cir. 2014). The Court presumes that all well-pleaded allegations are true, views these
well-pleaded allegations in the light most favorable to the Plaintiffs, and accepts as true all
reasonable inferences that may be drawn from the allegations. Whirlpool Fin. Corp. v. GN
Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995). Surviving a Rule 12(b)(6) motion “requires
more than labels and conclusions . . . Factual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has

3

facial plausibility when the pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 556).

ANALYSIS
The Plaintiffs bring several federal claims against the Defendants, alleging that the
Defendants violated their First, Fourth, Sixth, and Fourteenth Amendment rights, due process
rights, equal protection rights, and committed conspiracy.

A.

Defendants’ Immunity Arguments
The Defendants allege that they are entitled to various forms of immunity and the

Plaintiffs are barred from asserting claims against them. The Defendants argue that the Eleventh
Amendment prohibits the Plaintiffs’ claims against Defendant DCS and that Defendants Dumas
and Tinich are entitled to quasi-judicial immunity. As these claims bar suit against these
Defendants, the Court will address them first.
1.

The Eleventh Amendment Bars Suits Against State Agencies
The Defendants argue that all claims under 42 U.S.C. § 1983 against DCS must be

dismissed because the Eleventh Amendment bars suits against state agencies. (Defs.’ Mem. in
Supp. of Mot. to Dismiss at 5, ECF No. 68.) In response, the Plaintiffs argue that DCS can be
held liable pursuant to Monell liability and that it has adequately stated a claim for relief under a
failure to train theory. (Pls.’ Mem. in Resp. at 10–12, ECF No. 74.)
The Plaintiffs attempt to evade the Defendants’ argument and claim that DCS can be held
liable pursuant to Monell liability, which holds that a municipality may be liable “when
execution of a government's policy or custom ... inflicts the injury.” Monell v. Dep't of Soc.

4

Servs. of the City of New York, 436 U.S. 658, 694 (1978). Monell’s reach however, is limited and
it does not apply to states, state agencies, or state departments. Joseph v. Bd. of Regents, 432
F.3d 746, 748-49 (7th Cir. 2005) (“The Supreme Court has been clear, however, that Monell’s
holding applies only to municipalities and not states or states’ departments.”). For the purposes
of Monell liability, DCS is a state agency and it is well-settled that the Eleventh Amendment
prohibits the Court from exercising jurisdiction over it. Rangel v. Reynolds, 607 F. Supp. 2d 911,
923 (N.D. Ind. 2009). The Eleventh Amendment is jurisdictional bar and it is irrelevant that the
Defendants filed a Motion to Dismiss pursuant to Rule 12(b)(6) rather than rule 12(b)(1).
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984) (holding that the
Eleventh Amendment “deprives federal courts of any jurisdiction to entertain” suits against the
states). Accordingly, the Plaintiffs’ claims against Defendant DCS are DISMISSED WITH
PREJUDICE due to lack of jurisdiction.
2.

The Defendant is not Entitled to Absolute Quasi-Judicial Immunity
The Defendants argue that they are entitled to quasi-judicial immunity for following the

court orders from the juvenile court that instructed them to remove the Williams children. The
Defendants maintain that any actions regarding the removal of the children and placement into
foster care were the result of following and complying with the court order. (Defs.’ Mem. in
Supp. at 9–10.) The Plaintiffs argue that neither Tinich nor Dumas qualify for quasi-judicial
immunity in this regard because they were incompetent. (Pls.’ Mem in Resp. at 17.)
The Seventh Circuit has found social workers are entitled to absolute and qualified
immunity in various situations. Brokaw v. Mercer Cnty., 235 F.3d 1000, 1023 (7th Cir. 2000)
(“[S]ocial workers and other state actors who cause a child's removal are entitled to qualified
immunity because the alleged constitutional violation will rarely—if ever—be clearly

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established”); Millspaugh v. Cnty. Dep't of Pub. Welfare of Wabash Cty., 937 F.2d 1172, 1176–
77(7th Cir. 1991) (“[S]ocial workers and like public officials are entitled to absolute immunity in
child custody cases on account of testimony and other steps taken to present the case for decision
by the court… Absolute immunity is appropriate when the social worker presents the case to a
court, which can protect parents against misuse of public position.”).
As the party who argues entitlement to quasi-judicial immunity, the Defendants have the
burden to prove such coverage is justified. Schneider v. Cnty. of Will, 366 F. App'x 683, 685 (7th
Cir. 2010) (citing Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993). Nonjudicial
actors who invoke the doctrine must demonstrate that a judge directly and explicitly ordered the
actions he or she undertook. Schneider, 366 F. App’x at 685.This is a heavy burden as “absolute
immunity from civil liability for damages is of a rare and exceptional character.” Finnegan v.
Myers, No. 3:08-CV-503, 2015 WL 5252433, at *26 (N.D. Ind. Sept. 8, 2015) (quoting
Auriemma v. Montgomery, 860 F.2d 273, 275 (7th Cir. 1988)). Indeed, most claims for qualified
immunity are too fact-intensive to be decided on a motion to dismiss. Tamayo v. Blagojevich,
526 F.3d 1074, 1090 (7th Cir. 2008).
In considering a Motion to Dismiss, the Court must presume that all well-pleaded
allegations are true. The Plaintiffs point out numerous allegations of reckless investigatory and
out of court actions, including Defendant Tinich’s incompetence, that may not be entitled to
absolute immunity. See Finnegan, 2015 WL 5252433 at *27 (collecting cases) (discussing cases
in which defendants were not entitled to immunity based upon out of court acts). It is possible,
accepting the Plaintiffs’ allegations as true, that the facts once uncovered “may turn out to be so
severe and obviously wrong that the defendants should have known they were violating [the
plaintiff’s] constitutional rights.” Brokaw, 235 F.3d at 1023. At this stage of the litigation, the

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Court lacks enough facts to determine whether Defendant Tinich’s actions are entitled to quasijudicial immunity. Accordingly, the Court cannot say that Defendant Tinich is entitled to quasijudicial immunity.

B.

Plaintiffs’ First, Fourth, and Fourteenth Amendment Claims
As the Court has dismissed the Plaintiffs’ federal claims against Defendant DCS for lack

of jurisdiction, the Court will only address the parties’ federal arguments in relation to
Defendants Tinich and Dumas. The Plaintiffs bring First, Fourth, and Fourteenth Amendment
claims against Defendants Tinich and Dumas pursuant to 42 U.S.C. § 1983. The Defendants
challenge the sufficiency of each of these claims and the Court will address them separately.
Section 1983 provides, in pertinent part:
“Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, 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 and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress…”
42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege “(1) that defendants
deprived him of a federal constitutional right; and (2) that the defendants acted under color of
state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).

3.

Plaintiffs’ First Amendment Claim (Count XI)
The Plaintiffs allege that their rights pursuant to the First Amendment were violated via

retaliation. Specifically, the Plaintiffs allege that the Defendants retaliated against them when
they removed Crown Counseling from the case after Janet Williams informed Tinich about her
concerns. The Defendants argue that the Plaintiffs fail to state a claim for retaliation as the
Plaintiffs’ complaint was not in the “public interest.” (Defs.’ Mem. in Supp. of Mot. to Dismiss
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at 23.) In response, the Plaintiffs argue that that it would be inappropriate for the Court to
dismiss the Plaintiffs’ First Amendment claim based upon the Defendants’ alleged affirmative
defense. (Pls.’ Mem. in Resp. at 24.)
The Plaintiffs misstate the Defendants’ argument. The Defendants do not allege that an
affirmative defense bars the Plaintiffs’ First Amendment claims. Rather, the Defendants
challenge the sufficiency of the Plaintiffs’ claims, which is proper for the Court to consider the
sufficiency of a First Amendment claim on a motion to dismiss. See, e.g., Oszust v. Town of St.
John, 212 F. Supp. 3d 770, 780 (N.D. Ind. 2016); Comer v. Hous. Auth. of City of Gary, Ind.,
615 F. Supp. 2d 785, 789 (N.D. Ind. 2009). Thus, the Defendants’ arguments challenging the
Plaintiffs’ First Amendment claims pursuant to Rule 12(b)(6) are appropriate for consideration.
“[T]he law is settled that as a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions ... for speaking out.” Hartman v.
Moore, 547 U.S. 250, 256 (2006) (citation omitted). To prevail on their Section 1983 retaliation
claim, the Plaintiffs’ must allege: (1) protected activity, (2) a deprivation that would likely deter
First Amendment activity in the future and (3) that the First Amendment activity was a
motivating factor in the defendants' decision to take the retaliatory action. Oszust, 212 F. Supp.
3d at 779–80 (N.D. Ind. 2016) (citing Novoselsky v. Brown, 822 F.3d 342, 354 (7th Cir. 2016).
The Court must determine whether the Plaintiffs’ speech is constitutionally protected,
which is a question of law, not fact. McArdle v. Peoria Sch. Dist. No. 150, 705 F.3d 751, 754
(7th Cir. 2013). “To make this determination, a court analyzes: (1) whether the plaintiff was
speaking ‘as a citizen’; (2) whether the plaintiff spoke on a ‘matter of public concern’; and (3)
whether balancing the plaintiff's interest, as a citizen, in commenting on the matter against the
state's interest, as an employer, in promoting effective and efficient public service weighs in

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favor of deeming the speech ‘protected.’” Ferguson v. Cowen, No. 3:11-CV-486 JVB, 2013 WL
5348479, at *6 (N.D. Ind. Sept. 23, 2013)
The Plaintiffs’ pleadings indicate that Janet Williams was concerned with only her own
children and the Complaint does not indicate how her concerns were a “matter of public
concern.” The Complaint’s references to alleged improprieties within Indiana DCS appear
wholly unconnected to the substance of Janet Williams’ conversation with Defendant Tinich.
The Plaintiffs pursued a personal “goal that had no broader application or ramification.” Shafer
v. City of Fort Wayne, 626 F. Supp. 1115, 1123 (N.D. Ind. 1986). The Plaintiffs fail to plead that
they spoke on a “matter of public concern” and did not plead that they engaged in protected
activity. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the Plaintiffs’ First
Amendment claims in Count IX against Defendants Dumas and Tinich.
4.

The Plaintiffs’ Failure to Supervise Claim Fails (Count IV)
The Plaintiffs bring a failure to supervise claim against Defendant Dumas pursuant to 42

U.S.C. § 1983. The Plaintiffs argue that Defendant Dumas acted with “deliberate indifference,”
was “reckless,” and “should have known” of Tinich’s alleged conduct. (Pls.’ Compl. ¶¶ 39, 49,
134.) The Plaintiffs allege that Dumas “had a duty to supervise Tinich,” and his failure to train
Defendant Tinich resulted in the deprivation of the Plaintiffs’ protected liberty and property
interests. (Id. at ¶¶ 131, 136.) The Defendant argues that the Plaintiffs’ claims against Defendant
Dumas for failure to train or supervise Tinich should be dismissed as the Plaintiffs failed to plead
that Dumas was aware or approved of Defendant Tinich’s conduct. (Defs.’ Mem. in Supp. at 5–
6.) The Plaintiffs rebut the Defendants’ argument with conclusory statements, such as “they are
improperly trained in how to provide relevant and truthful information to the court…” and “it is

9

not uncommon for DCS to have bad relations with the court due to case workers not having
proper training…” (Pls.’ Mem. in Resp. at 13–14.)
The Plaintiffs’ arguments in response are unpersuasive. There is no general respondeat
superior liability pursuant to § 1983. “For constitutional violations under § 1983…a government
official is only liable for his or her own misconduct.” Locke v. Haessig, 788 F.3d 662, 669 (7th
Cir. 2015). A government actor can be held liable for only his own misdeeds, not those of
anyone else. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). The Plaintiffs attempt to
mutate an underlying respondeat superior claim into a failure to train claim pursuant to § 1983,
however, “[a]n allegation of a ‘failure to train’ is available only in limited circumstances.”
Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993). “In order to
ensure that isolated instances of misconduct are not attributable to a generally adequate policy or
training program, we require a high degree of culpability [to avoid] creating de facto respondeat
superior liability.” Id. The Plaintiffs do not allege that Defendant Dumas was personally
involved in the decision to remove the Williams children or any action Defendant Tinich
undertook. As the Plaintiffs failed to allege that Defendant Dumas knew of or participated in the
alleged unconstitutional conduct as a result of some alleged failure to supervise or train, the
Court DISMISSES WITHOUT PREJUDICE Count IV against Defendant Dumas.
5.

Plaintiffs’ Fourth and Fourteenth Amendment Claims (Count VII)
The Plaintiffs also bring Fourth and Fourteenth Amendment claims against the

Defendants. The Plaintiffs allege that their Fourth Amendment rights were violated because they
were subject to unreasonable search and seizure due to the practice and custom of DCS to
remove African-American children from the care of their parents. (Pls.’ Resp. at 14.) The
Plaintiffs also bring Fourth Amendment claims on behalf of their children. The Plaintiffs also

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allege that the Defendants’ violated their due process and equal protection rights pursuant to the
Fourteenth Amendment.
The Fourth Amendment guarantees the “right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. Amend, IV.
A person has been “seized” for purposes of the Fourth Amendment “if, in view of all the
circumstances surrounding the incident, a reasonable person would have believed that he was not
free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). The Fourth Amendment
applies to DCS employees, such as Defendants Dumas and Tinich, who perform searches in
connection with their investigations. Doe v. Heck, 327 F.3d 492, 509 (7th Cir. 2003).
The Defendants argue that issue preclusion exists in the form of the juvenile court’s
probable cause finding. The Defendants argue that as the juvenile court found that probable
cause existed, and the Plaintiffs have not alleged in their Complaint that the initial hearing was
unfair or incomplete, issue preclusion applies. Thus, according to the Defendants, the Court
cannot reach the merits of the Plaintiffs’ Fourth and Fourteenth Amendment claims as they relate
to the removal of the children from their home as discussed in Counts V and VII. (Defs.’ Mem.
in Supp. at 8.)
It is well-settled that federal courts must afford full faith and credit to both criminal and
civil state court decisions. 28 U.S.C. § 1738. Issue preclusion is a form of claim preclusion, in
which “all matters that were or might have been litigated are deemed conclusively decided by the
judgment in the prior action.” Afolabi v. Atlantic Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173
(Ind. Ct. App. 2006). Indiana law governs the preclusive effect of state court judgments in
Section 1983 actions. Allen v. McCurry, 449 U.S. 90, 96 (1980). Four requirements must be met:
(1) a final judgment exists from a court of competent jurisdiction; (2) the issue was litigated; (3)

11

the party against whom estoppel is being asserted had a full and fair opportunity to litigate the
issue in question; and (4) it is not otherwise unfair to preclude relitigation. Hill v. Myszak, No.
2:10 CV 393, 2016 WL 1267757, at *2 (N.D. Ind. Mar. 30, 2016) (collecting cases).
“Federal courts must give state court judgments the same preclusive effect as would a
court in the rendering state.” Jensen v. Foley, 295 F.3d 745, 748 (7th Cir. 2002). In Indiana,
“issue preclusion bars subsequent litigation of the same fact or issue that was necessarily
adjudicated in a former suit.” Miller Brewing Co. v. Ind. Dep’t of State Revenue, 903 N.E.2d 64,
68 (Ind. 2009). The Plaintiffs argue that issue preclusion should not apply for three reasons: first,
the Complaint states that the juvenile court hearing was incomplete and unfair; second, an
attorney was not present; and third, a case worker provided erroneous information to the Court to
facilitate an emergency order. (Pls.’ Mem. in Resp. at 15–16.)
The Plaintiffs’ arguments are unpersuasive. The Plaintiffs challenge the removal of the
children, which was the focus of the hearing in juvenile court. The Plaintiffs were present for the
hearing and there are no allegations that they were restrained from providing any statements to
the juvenile court at the hearing. Once the juvenile court decided probable cause existed, the
Plaintiffs had the opportunity to appeal the juvenile court’s order. The juvenile court’s finding of
probable cause is entitled to preclusive effect and the Plaintiffs are not entitled to relitigate that
determination in this forum. See, e.g., Justice v. Justice, 303 F. Supp. 3d 923, 940 (S.D. Ind.
2018). Accordingly, the Plaintiffs’ Fourth and Fourteenth Amendment claims as they relate to
the removal of the Williams children in Count VII are DISMISSED WITH PREJUDICE based
on the doctrine of issue preclusion.
The Court has dispensed with the Plaintiffs’ illegal search and seizure claims as to the
Williams’ children, only the Williams’ parents claims for illegal search and seizure remain. The

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Plaintiffs argue that the Defendants’ violated their Fourth Amendment right to be free from
unreasonable search and seizure when the Defendants removed their children form their home.
The Defendants argue that the Plaintiffs were never seized for the purpose of the Fourth
Amendment. Further, the Defendants argue that the parents cannot assert Fourth Amendment
rights on behalf of their children.
Freedom from search and seizure is a personal right that may not be submitted on behalf
of others. Young v. Murphy, 90 F.3d 1225, 1236 (7th Cir. 1996). The Plaintiffs allege that their
children were seized, not that they themselves were seized also seized. As the Plaintiffs
themselves, “were not seized; thus, their claims are properly analyzed under substantive due
process.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 474 (7th Cir. 2011). The Court
thus DISMISSES WITHOUT PREJUDICE Plaintiffs’ Count VII
6.

Plaintiffs’ Substantive Due Process Arguments (Count V)
The Plaintiffs combine their due process and equal protection claims pursuant to the

Fourteenth Amendment in Count V of the Second Amended Complaint. As the Plaintiffs failed
to differentiate in the pleadings which claims were brought pursuant to which theory, the Court is
obligated to do so and will address them separately.
The right to familial relations is one of the “oldest of the fundamental liberty interest
recognized.” Brokaw, 235 F.3d at 1018. Parents have a liberty interest in familiar relations,
which includes the right to “establish a home and bring up children” and “to control the
education of their own.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923). This right is not absolute
and does not include the right to be free from child abuse investigations. Doe v. Heck, 327 F.3d
492, 520 (7th Cir. 2003), as amended on denial of reh'g (May 15, 2003) (citing Brown v.
Newberger, 291 F.3d 976, 983 (7th Cir. 2002).

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A caseworker does not violate a parent's substantive due process rights by removing a
child pursuant to a court order. East v. Lake Cty. Sheriff Dep't, No. 2:14-CV-058 PPS JEM, 2015
WL 5286920, at *6 (N.D. Ind. Sept. 9, 2015) (citing Doe, F.3d at 514). The Plaintiffs aver that
there was a court order that resulted in the removal of the Williams children. As such, any due
process claims relating to the removal of the Williams’ children pursuant to a court order is
inappropriate. Therefore, the Court DISMISSES WITHOUT PREJUDICE the Plaintiffs’ due
process claims against Defendants Dumas and Tinich.
7.

Plaintiffs’ Equal Protection Claims (Count V)
The Defendants also argue that the Plaintiffs’ Due Process Equal Protection claim must

be dismissed. The Defendants argue that the Plaintiffs have the burden of alleging and proving
purposeful discrimination because they are a member of a class. (Defs.’ Mem. in Supp. at 12.)
Individuals facing racial discrimination by a state actor, proscribed by the Equal
Protection Clause, may seek relief pursuant to 42 U.S.C. § 1983. “Local governments and their
officials may be held responsible under § 1983 only if the injury was caused by an official law,
custom, or policy.” Heck v. Dearborn Cnty. Jail, 972 F.2d 351 n. 1 (7th Cir. 1992) (citing Monell
v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). To demonstrate that a
municipal policy has violated her civil rights under section § 1983, the Plaintiffs must allege: (1)
the [municipality] had an express policy that, when enforced, causes a constitutional deprivation;
(2) the [municipality] had a widespread practice that, although not authorized by written law or
express municipal policy, is so permanent and well settled as to constitute a custom or usage
within the force of law; or (3) plaintiff’s constitutional injury was caused by a person with final
policymaking authority.” McCormick v. City of Chicago, 230 F.3d 319, 324 (7th Cir. 2000).

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The Plaintiffs’ Complaint fulfills the first two requirements. The Plaintiffs, however, fail
to plead any facts suggesting that either Defendants Dumas or Tinich were persons with final
policymaking authority regarding the removal of children. As such, the Plaintiffs have failed to
state a claim and the Court DISMISSES WITHOUT PREJUDICE the Plaintiffs’ equal protection
claim.
8.

Plaintiffs’ Conspiracy Claims (Count VIII)
The Plaintiffs allege that the Defendants action constituted a conspiracy. The Defendants

argue that the Plaintiffs’ conspiracy claims are barred due to the intra-corporate conspiracy
doctrine. (Defs.’ Mem. in Supp. at 13.)
The Court notes that the Plaintiffs do not bring their conspiracy claim pursuant to 42
U.S.C. § 1985. Rather, the Plaintiffs bring their conspiracy claim pursuant to 42 U.S.C. § 1983.
“[C]onspiracy is not an independent basis of liability in § 1983 actions.” Smith v. Gomez, 550
F.3d 613, 617 (7th Cir. 2008). To establish § 1983 liability under a conspiracy theory, a plaintiff
must demonstrate: (1) that a state official and one or more private individuals reached an
understanding to deprive the plaintiff of his constitutional rights; and (2) that those individuals
were willful participants in joint activity with the state actors. Williams v. Seniff, 342 F.3d 774,
785 (7th Cir. 2003).
The Plaintiffs fail to allege that a private individual deprived them of their constitutional
rights. Under the intra-corporate conspiracy doctrine, “a conspiracy cannot exist between
members of the same governmental entity nor between the entity and one of its employees.”
Apulonu v. McGowan, No. 03 C 4546, 2004 WL 2034084, at *7 (N.D. Ill. Aug.12, 2004). See
also Beese v. Todd, 35 Fed. Appx. 241, 243 (7th Cir. 2002). The Plaintiffs attempt to evade the
Defendants’ argument by arguing that they also bring claims against “unnamed John Does.”

15

(Pls.’ Mem. in Resp. at 20.) Mere suspicion that persons adverse to the plaintiff, who may or
may not be private citizens, have joined a conspiracy [i]s not enough” to survive a motion to
dismiss. Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009). The Plaintiffs’ conspiracy
allegations against John Does are bare and reveal mere suspicion. Accordingly, the Plaintiffs
have failed to state a claim and the Court DISMISSES WITHOUT PREJUDICE Count VIII of
the Plaintiffs’ Complaint.

C.

Plaintiffs’ State-Law Tort Claims (Counts I, II, III, VI)
The Plaintiffs’ state law tort claims remain. The Plaintiffs assert that the Court has

jurisdiction over their state-law tort claims pursuant to 28 U.S.C. §§ 1331 and 1343. Although
the Defendants argue that they are subject to immunity, the Court need not reach such arguments
for the simple reason that the Court lacks jurisdiction to hear the Plaintiffs’ state-law claims.
The Plaintiffs state that all parties are citizens of Indiana, so federal question jurisdiction
does not apply to their state-law claims. These claims do not arise under the Constitution, laws,
or treaties of the United States.” 28 U.S.C. § 1331. “It is long-settled law that a cause of action
arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal
law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. at 63. The Plaintiffs’ Complaint fails to do so.
The Plaintiffs also claim jurisdiction pursuant to 28 U.S.C. § 1343. Section 28 U.S.C. §
1343 provides that:

a) The district courts shall have original jurisdiction of any civil action
authorized by law to be commenced by any person:
(1) To recover damages for injury to his person or property, or because of
the deprivation of any right or privilege of a citizen of the United States,
by any act done in furtherance of any conspiracy mentioned in section
1985 of Title 42;

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(2) To recover damages from any person who fails to prevent or to aid in
preventing any wrongs mentioned in section 1985 of Title 42 which he
had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute,
ordinance, regulation, custom or usage, of any right, privilege or immunity
secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons within the
jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any
Act of Congress providing for the protection of civil rights, including the
right to vote.
As discussed above, the Plaintiffs do not assert a § 1985 conspiracy in their Complaint, as
required in § 1343(1) and (2). Finally, Section 1343(3) requires that the alleged deprivation of
rights be conducted “under color of any State law, statute, ordinance, regulation, custom or
usage.” This provision requires that the defendants have acted under color of state law, and this
Court has already determined that these Defendants did not act under color of state law.
Therefore, the Court lacks jurisdiction over the Plaintiffs’ state-law claims. The Court therefore
DISMISSES WITHOUT PREJUDICE.

CONCLUSION
Based on the foregoing the Court GRANTS the Defendants’ Motion to Dismiss [ECF No.
67] and therefore:
•

DISMISSES WITH PREJUDICE Counts I–XI as to Defendant DCS;

•

DISMISSES WITHOUT PREJUDICE Counts I–VI, VIII–XI as to Defendant Dumas;

•

DISMISSES WITHOUT PREJUDICE Counts I–VI, VIII–XI as to Defendant Tinich;
and

•

DISMISSES WITH PREJUDICE Count VII as to Defendants Dumas and Tinich.

The Plaintiffs’ Second Amended Complaint [ECF No. 66] is thus DISMISSED.

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SO ORDERED on July 9, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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