Finnegan et al v. Myers et al
Filing
152
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 121 Motion to Dismiss for Failure to State a Claim; motion is granted as to: Katelynn, Johnathon, and Tabitha's 1st amendment violation claims in Count 1; Count 3; the equal protection an d ADA claims in Count 4; and the request for injunctive relief which are DISMISSED WITH PREJUDICE; the motion is DENIED as to the remaining claims against the State Defendants; DENYING 134 Motion to Strike. Signed by Judge Rudy Lozano on 6/5/13. (smp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROMAN FINNEGAN, et al.,
)
)
)
)
)
)
)
)
)
Plaintiffs,
vs.
LAUREL MYERS, et al.,
Defendants.
NO. 3:08-CV-503
OPINION AND ORDER
This matter is before the Court on the: (1) State Defendants’
Motion to Dismiss First Amended Complaint, filed by Defendants,
James Payne, Laurel Myers, Regina McAninch, Tracy Salyers, Reba
James, and Jennifer McDonald (collectively “State Defendants”) on
September 6, 2012 (DE #121); and (2) State Defendants’ Motion to
Strike, filed by the State Defendants on October 22, 2012 (DE
#134).
For the reasons set forth below, the Motion to Dismiss (DE
#121) is GRANTED IN PART and DENIED IN PART.
as
to:
Katelynn,
Johnathon,
and
The motion is GRANTED
Tabitha’s
first
amendment
violation claims in Count 1; Count 3; the equal protection and ADA
claims in Count 4; and the request for injunctive relief, which are
DISMISSED WITH PREJUDICE. The motion is DENIED as to the remaining
claims
against
the
State
Defendants,
which
REMAIN
Additionally, the Motion to Strike (DE #134) is DENIED.
PENDING.
BACKGROUND
As this Court has stated before, the background of this case
is extensive.
Plaintiffs have sued multiple defendants, including
the instant Defendants, James Payne, Laurel Myers, Regina McAninch,
Tracy Salyers, Reba James, and Jennifer McDonald.
They filed an
amended complaint on June 20, 2012 (DE #91), adding Plaintiff
Johnathon Abair and Defendant Dr. John Cavanaugh.
The amended
complaint, pursuant to section 1983, alleges that the defendants
repeatedly and wrongfully claimed that Roman and Lynnette Finnegan
medically neglected or murdered Lynnette’s 14-year old daughter,
Jessica Salyers, despite the eventual conclusion that she died on
December 20, 2005, from a major prescription error combined with
congenital heart disease (post-Fontan) and a seizure disorder.
Plaintiffs
have
sued
several
defendants
including the aforementioned State Defendants.
in
this
case,
James Payne is the
Director of the Indiana Department of Child Services (DCS). (First
Amended Complaint “FAC” ¶ 9.) Laurel Myers was the Director of the
Pulaski County Department of Child Services during the period in
question.
(Id. ¶ 5.)
Regina McAninch is an investigator and
caseworker for the Pulaski County Department of Child Services.
(Id. ¶ 6.)
Tracy Salyers is a caseworker for the Pulaski County
Department of Child Services.
(Id. ¶ 7.)
Reba James is a Regional
Manager for the Indiana Department of Child Services.
(Id. ¶ 8.)
Jennifer McDonald is a detective for the Indiana State Police
2
(“ISP”) stationed in Lowell, Indiana.
(Id. ¶ 10.)
These State Defendants filed a motion to dismiss the first
amended complaint under Rule 12(b)(6) for failure to state a cause
on September 6, 2012 (DE #121).
The State Defendants contend
dismissal is appropriate for multiple defendants on the claims
enumerated in the first amended complaint. (See DE #121, pp. 1-6.)
Plaintiffs filed a response in opposition on October 4, 2012 (DE
#130). The State Defendants then filed a reply on October 22, 2012
(DE
#135),
thus
this
motion
is
fully
briefed
and
ripe
for
adjudication.
A motion to strike is also before this Court.
The State
Defendants moved to strike references to deposition testimony in
the Plaintiffs’ memorandum, reference to the state judicial review
administrative proceeding, and other allegations they claim are not
contained in the first amended complaint.
(DE #134.)
This motion
is also fully briefed and ripe for adjudication.
DISCUSSION
Under Rule 12(b)(6), the purpose of a motion to dismiss is to
test the legal sufficiency of the complaint, not to decide the
merits.
Triad Assocs., Inc. v. Chicago Housing Auth., 892 F.2d
583, 586 (7th Cir. 1989) (abrogated on different grounds).
In
determining the propriety of dismissal under Federal Rule of Civil
Procedure 12(b)(6), the court must accept all facts alleged in the
3
complaint as true and draw all reasonable inferences in the light
most favorable to the plaintiff.
Johnson v. Rivera, 272 F.3d 519,
520 (7th Cir. 2001).
A complaint need only state a federal claim and provide the
defendant with sufficient notice of the claim, including the
grounds upon which the claim rests.
Twombly,
550
U.S.
544,
555
Bell Atlantic Corp. v.
(2007).
However,
“the
factual
allegations in the complaint must be enough to raise a right to
relief above the speculative level.”
Nevada,
N.A.,
omitted).
507
F.3d
614,
618
Killingsworth v. HSBC Bank
(7th
Cir.
2007)
(quotation
“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, 566 U.S. 662, 678 (2009).
Motion to Strike
The State Defendants request that the Court strike: references
to deposition testimony, a judicial review opinion authored by
Judge Patrick B. Blankenship, Judge of the Pulaski Circuit Court
which was attached to Plaintiffs’ response (DE #130-2), and certain
details from the Plaintiffs’ response that the State Defendants
contend refer to information not in the complaint.
Those details
are:
1. The assertion that Regina McAninch woke up the Finnegans.
4
2.
The assertion that Mrs. Finnegan followed the Doctor’s
instructions while Jessica was ill.
3.
The assertion that Jennifer McDonald was a new police
detective and child advocate.
4.
The assertion that DCS bore the costs of the exhumation
and second autopsy.
5.
The assertion that the exhumation order and search
warrant for the house were based on false information
provided by Detective McDonald, stating that Detective
McDonald did not provide the Court with all of the
information available to her at that stage of her
investigation and that she should have known better
regarding matching the coffee table to an internal
injury.
6.
The assertion that McDonald destroyed her notes after
writing them up.
7.
The assertion that DCS knew that the Laskey report was
wrong at the time it substantiated death from physical
abuse and a health/life threatening environment for the
siblings, detailing that the substantiations occurred on
March 30 and that Dr. Laskey’s deposition testimony was
16 days later on April 16.
8.
The assertion that DCS workers Myers and McAninch were
asked to leave the autopsy and then continued to observe
through a glass window.
9.
The assertion that on May 3, 2007, DCS counsel told Dr.
Laskey that DCS could not prove its claims of physical
abuse.
10.
The assertions that Johnathon is a special education
student and that he was picked up from school by police
to be interviewed by Detective McDonald.
(DE #136, pp. 3-4.)
In response, Plaintiffs argue that most of
this information is in the first amended complaint, and even if it
is not, the Court may consider additional facts consistent with the
amended complaint.
(DE #137, p. 1.)
5
Additionally, Plaintiffs
believe that the Court may take judicial notice of the state court
decision.
A
motion
under
Rule
12(b)(6)
can
be
based
only
on
the
complaint itself, documents attached to the complaint, documents
that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice. Geinosky v.
City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012); see Fed. R.
Civ. P. 10(c). “A plaintiff, however, has much more flexibility in
opposing a Rule 12(b)(6) motion and in appealing a dismissal . . .
a party opposing a Rule 12(b)(6) motion may submit materials
outside the pleadings to illustrate the facts the party expects to
be able to prove.”
Id.; see also Early v. Bankers Life and Cas.
Co., 959 F.2d 75, 59 (7th Cir. 1992) (reversing dismissal finding
plaintiff is free to assert new facts in brief opposing motion to
dismiss); Roe v. Bridgestone Corp., 492 F.Supp.2d 988, 1007 (S.D.
Ind. 2007) (“Such documents are not evidence, but they provide a
way for a plaintiff to show a court that there is likely to be some
evidentiary weight behind the pleadings the court must evaluate.”).
In fact, the Seventh Circuit suggested that in the wake of turmoil
stirred
up
by
Iqbal
and
Twombly,
that
it
might
actually
be
“prudent” for a plaintiff to assert new facts in opposition to a
motion to dismiss for illustrative purposes.
Geinosky, 675 F.3d
743, 745 n.1. Additionally, it is recognized that a “complaint may
not be dismissed unless it is impossible to prevail under any set
6
of facts that could be proved consistent with the allegations . .
. That is why we have held that a plaintiff may supplement the
complaint
with
factual
narration
in
an
affidavit
or
brief.”
Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997)
(citations omitted).
Here, the Plaintiffs are clear that they did
not intend to convert the motion to dismiss to a motion for summary
judgment.
(DE # 137.)
Following the Seventh Circuit’s recognition in Geinosky that
plaintiffs may submit materials outside the pleadings to illustrate
the facts the party expects to be able to prove, this Court DENIES
the motion to strike the deposition testimony and the additional
details in Plaintiffs’ brief which are all consistent with the
amended complaint, and which simply illustrate to the Court the
facts Plaintiffs believe they will be able to prove.
With regard to the state court decision of Judge Blankenship
of the Pulaski County Superior Court, dated January 28, 2010, the
motion to strike will also be DENIED.
Judge Blankenship ordered
DCS to unsubstantiate all claims of abuse or neglect against the
Finnegans, and to remove the Finnegans from the child protection
index.
(DE #130-2, p. 71.)
He also found that DCS’s actions
arbitrarily and capriciously violated the family’s civil rights.
(Id., pp. 67-70.)
The first amended complaint refers in detail to
Judge Blankenship’s decision. (FAC ¶¶ 295-98.)
found:
7
As this Court has
A party opposing [a motion for judgment on the
pleadings] is free to oppose the motion by
suggesting in a brief the existence of facts that
are not inconsistent with the party’s allegations
in the pleadings.
There is no reason why the
opposing party cannot add rhetorical support for
such suggestions with some supporting documents indicating that there is a substantial basis for
the assertions . . . .
Marwil v. Farah, No. 1:03-cv-482-DFH, 2003 WL 23095657, at *2 (S.
D. Ind. Dec. 11, 2003) (citations omitted).
Moreover, “it is a
well-settled principle that the decision of another court or agency
. . . is a proper subject of judicial notice.”
Opoka v. I.N.S., 94
F.3d 392, 394 (7th Cir. 1996) (citations omitted).
The Court acknowledges that in a previous motion for judgment
on the pleadings, submitted by defendant, Dr. Laskey, the Court
denied
the
Defendants’
motion
for
leave
to
supplement
their
response with Judge Blankenship’s order, noting that it was “a
public
document
subject
to
judicial
notice,”
however,
the
“Plaintiffs have not established that this document is necessary
for resolution of their motion.”
(DE #61, p. 9.)
There is now a
different motion pending before this Court, and the Court concurs
with Plaintiffs that Judge Blankenship’s order arguably supports
Plaintiffs’ contention that their claims rise above the speculative
level and should survive a motion to dismiss. Therefore, the Court
takes
judicial
notice
of
Judge
Blankenship’s
order
(without
addressing the precedential value of the decision at this time).
8
Motion to Dismiss
Facts
The facts in this case have now been recited by this Court in
two previous orders. (See DE #61, pp. 10-15; DE #143, pp. 4-8.)
The Court will not rehash those facts again, but will note those
that are specific to this motion.
In September 2005, the school nurse at West Central Middle
School, where Jessica attended, filed a complaint with the Pulaski
County Department of Child Services (“DCS”) concerning Jessica’s
medical care.
(FAC ¶ 30.)
The report of McAninch, a DCS employee,
indicated that Lynnette was not cooperating with the school medical
safety plan, that Jessica probably needed another surgery, and that
Lynnette told them that Jessica had no insurance.
(Id. ¶ 31.)
This was incorrect, Jessica had health insurance and had already
had the surgery.
Id.
McAninch contacted Roman and Lynnette and
ordered them to attend a hearing on September 9, 2005, at DCS.
(Id. ¶ 32.)
Plaintiffs state in their brief that McAninch woke
them up with her call, accused them of not caring about Jessica,
and ignored their explanations.
(DE #130, p. 3.)
Roman Finnegan
wrote to his state legislature, Mary Kay Budack, and complained
about McAninch’s conduct and lack of sensitivity. (FAC ¶ 33.) The
state legislature forwarded the
letter to the Governor’s Office,
which sent it to DCS for a response by James Payne, the current
Director of DCS.
Id.
9
Lynnette and Roman attended the DCS meting, provided proof of
insurance, and reached an agreement about Jessica’s care.
35.)
(Id. ¶
At a September 15, 2005 doctor’s appointment with Dr.
Hurwitz, Jessica’s pediatric cardiologist found that DCS’ concerns
were unjustified, and assured Plaintiffs that Jessica was doing
well.
(Id. ¶ 37.)
On October 12, 2005, Plaintiffs took Jessica to the family
doctor for a blood test, and at this appointment Jessica’s doctor
accidentally increased her dosage of Warfarin and eliminated her
Dilantin, placing her at risk of death from internal bleeding
and/or seizure.
(FAC ¶¶ 39-40.) Jessica had vaccinations on
December 5, 2005, the same day that DCS substantiated medical
neglect,
stating
Lynnette
and
Roman
would
not
have
obtained
appropriate medical care for Jessica without DCS intervention.
(Id. ¶ 42.)
DCS provided a copy of the substantiated medical
neglect to the school, but not the Finnegans, and Plaintiffs allege
that if they had notified them, proper testing would have been
initiated and the prescription errors would have been caught prior
to Jessica’s death.
(Id. ¶ 45.)
From December 7 - 18, 2005, Jessica had symptoms including a
stomach ache and sore tongue, and she was taken to the doctor who
diagnosed the flu and thrush.
(Id. ¶¶ 46-47.)
On December 20,
2005, Lynnette found Jessica dead, lying face down by the side of
her bed.
(Id. ¶ 48.)
Lynnette started CPR and Roman took over
10
when Lynnette called 911.
Id.
The emergency personnel, and initial hospital investigators,
found Jessica’s death was related to her heart condition and
Warfarin, with no signs of abuse or neglect.
(Id. ¶ 49.)
At the
hospital, Dr. Klockow (the Jasper County Coroner), and Dr. Ahler
(the emergency room doctor and former Jasper County Coroner), found
no signs of abuse or neglect.
(Id. ¶ 51.)
Defendant McAninch and Mike Bardsley of the prosecutor’s
office interviewed Jessica’s siblings (Johnathon, age 17, Tabitha,
age 16, and Katelynn, age 9) and questioned them for approximately
6 hours.
(Id. ¶ 52.)
There were no indications of abuse, neglect,
or inappropriate discipline.
(Id. ¶ 53.)
DCS also questioned the
Finnegans, and when Lynnette tried to see her children (who had by
then
been
held
for
questioning
for
approximately
Defendant Salyers threatened her with arrest.
5
hours),
(Id. ¶ 54.)
The next day, on December 21, 2005, Dr. Cavanaugh (a forensic
pathologist retained by the Coroner), conducted an autopsy in which
he found no signs of abuse or neglect.
(Id. ¶ 55.)
He attributed
the death to blunt force injury of the head consistent with a fall
complicated by Warfarin, with the manner of death undetermined.
Id.
Dr. Cavanaugh did not mention a fracture in his preliminary
autopsy report; however, such was noted on his autopsy report dated
May 24, 2006.
Id.
Plaintiffs allege that McAninch and Myers then conducted their
11
own
investigation
pediatrician.
and
retained
(Id. ¶ 56.)
Dr.
Antoinette
Laskey,
a
On October 28, 2006, Dr. Laskey
authored a report stating that Jessica died from a fatal beating on
the day of her death, causing internal hemorrhages and skull
fracture.
(Id. ¶ 58.)
In reliance upon this opinion (which
Plaintiffs allege is uninformed, misleading, and “physiologically
impossible given the lack of bruising”) (DE #130, p. 6), DCS seized
Tabitha and Katelynn on November 1, 2005, “telling them that their
mother had beaten Jessica to death and placing them in a secret
out-of county location for questioning and ‘therapeutic’ foster
care.”
(FAC ¶ 64.)
Interviews and mental health evaluations did
not reveal any indication of abuse.
(Id. ¶ 64.)
In the meantime, with the assistance of other doctors, the
Finnegans discovered the prescription error, and on December 18,
2006, the Finnegans’ attorney provided the prescription records to
DCS
along
with
an
email
from
Dr.
Harold
Buttram,
a
family
practitioner, who advised, “it was glaringly apparent . . . that
Jessica died from a hemorrhagic [bleeding] disorder of some sort.”
(Id. ¶¶ 71-72.)
On January 15, 2007, Detective McDonald arranged for an order
to exhume Jessica’s body and search the Finnegans’ house.
(Id. ¶
73.) Plaintiffs allege that the search warrant was to find objects
that matched the shape of the internal hemorrhages and that
McDonald gave the Court false information in obtaining the order.
12
Id.
The January 25, 2007 exhumation and second autopsy determined
that the skull fracture was created at the first autopsy, and that
the subdural hemorrhage occurred before the morning of death,
consistent with the prescription errors.
(Id. ¶ 77.)
Four days
after the exhumation, Detective McDonald interrogated Johnathon, a
high school senior, for four hours, and falsely told him that his
mother was blaming Jessica’s death on him.
(Id. ¶¶ 79-81.)
When DCS and Detective McDonald refused to acknowledge the
prescription errors, the Finnegans provided DCS with volumes of
material in support.
Myers
sent
Roman
(Id. ¶ 85.)
and
Lynnette
In March 2007, McAninch and
substantiations
of
death
from
physical abuse (relying on Dr. Laskey’s opinion) and a health/life
threatening environment for the siblings.
(Id. ¶ 87.)
In her
April 16, 2007 deposition, Dr. Laskey testified she was not
qualified to determine the cause and manner of death, and admitted
that the hemorrhages were consistent with Warfarin.
(Id. ¶ 89.)
Plaintiffs allege that McDonald responded by writing up a
false account of the children’s interviews, and by providing a
probable cause affidavit that contained false reports, which was
used to obtain arrest warrants for the Finnegans.
After
his
arrest,
McDonald
interrogated
Roman
(Id. ¶¶ 91-94.)
Finnegan
and
repeatedly told him a blow to Jessica’s head caused her skull
fracture and death. (Id. ¶ 95.)
13
On May 25, 2007, DCS withdrew its initial CHINS petition and
filed a new one, alleging medical neglect and contending the other
children were still in serious danger of physical harm.
(Id. ¶
98.)
Plaintiffs allege that DCS and Detective McDonald had autopsy
slides, but from January 2007-June 2007, refused to provide the
Finnegans with them.
(Id. ¶ 104.)
The Finnegans finally got this
information in mid-June to mid-July from third parties, including
the prosecutor, through subpoenas and Brady requests, and the
slides showed the death was caused by prescription error, the
hemorrhages were from Warfarin, and the skull fracture was postmortem.
Id.
Shortly before the July 2007 fact finding hearing, Cavanaugh
told McAninch and DCS counsel the autopsy slides showed the bleeds
were old and he had omitted this information from his autopsy
report.
(Id. ¶¶ 245-46, 302.)
The fact finding hearing was
changed to a detention hearing. (Id. ¶ 111.)
Just before the
hearing, the Coroner ruled that Jessica died an accidental death
from the prescription errors, and that the skull fractures were
created at the first autopsy.
(Id. ¶ 113.)
At the July 18-19, 2007 hearing, DCS did not offer any
witnesses or evidence to support its claims, and the Court ordered
DCS to produce Tabitha, who testified she had never seen or been
subject to abuse or neglect.
(Id. ¶ 114.)
14
At McDonald’s urging,
the prosecutor was given 2 weeks to depose the girls, after which
they would return home.
Id.
no abuse.
DCS still refused to return the girls, so
(Id. ¶ 116.)
Again, the girls testified there was
the Finnegans filed a contempt motion - there, the Court ordered
DCS to return the girls immediately.
(Id. ¶¶ 121-24.)
On August 27, 2007, the prosecutor agreed she did not have
probable cause to pursue the criminal charges, and on September 7,
2007, the CHINS judge recused himself based upon ex parte contacts
with DCS and the prosecutor.
(Id. ¶¶ 127-28.)
On September 10,
2007, the prosecutor filed amended charges that Roman and Lynnette
knowingly
endangered
Jessica’s
emergency care for her.
only named witness.
Id.
health
(Id. ¶ 129.)
by
failing
to
provide
Detective McDonald was the
From August through November, 2007, DCS
made reunification difficult, and a counselor who reported to DCS
said “at times it seems that all of the services being offered only
serve to add to the chaos being felt emotionally by this family.”
(Id. ¶ 130.)
Ultimately, on October 24, 2007, the prosecutor moved to
dismiss Roman’s criminal charges, and on November 2, the prosecutor
moved to dismiss Lynnette’s charges.
(Id. ¶ 132.)
DCS finally
dismissed the CHINS petitions, but refused to amend the March 23
substantiations, including death from physical abuse. (Id. ¶ 134.)
On administrative review, Defendant, Reba James, did not allow
the Finnegans to present evidence or participate in the review.
15
(Id.
¶
135.)
James
substantiations
and
re-substantiated
added
two
all
additional
of
the
March
substantiations
(inappropriate discipline and death from medical neglect).
Id.
Plaintiffs claim her deposition testimony shows that she did not
read or consider the Coroner’s Verdict or any materials provided by
the Finnegans.
(DE #130, p. 10.)
For 2 and a half more years, Plaintiffs allege the DCS
Defendants continued to make the same false claims.
May
2010,
when
DCS
finally
withdrew
its
This ended in
appeal
of
Judge
Blankenship’s January 2010 ruling that DCS’ December 2005 and March
2007 substantiations were arbitrary and capricious.
In the present motion to dismiss, the State Defendants move to
dismiss the first amended complaint, claiming that: (1) they are
immune from suit under the 11th Amendment; (2) the complaint does
not state any constitutional claims; (3) they are entitled to
qualified immunity; (4) the Rooker-Feldman doctrine precludes suit;
(5) the Plaintiffs cannot obtain injunctive relief as this would
prevent DCS from performing its statutory obligations; and (6)
Johnathon has no cognizable claim.
(DE #126.)
response takes issue with these arguments.
Defendants also filed a reply.
(DE #130.)
Plaintiffs’
The State
(DE #135.)
The Question Of Whether All Counts Run Against All State Defendants
16
As
a
preliminary
matter,
this
Court
Plaintiffs’ first argument in their response.
must
address
the
In their motion to
dismiss, the State Defendants request that specific defendants be
dismissed from specific counts, seemingly based on whether each
defendant is mentioned by name in those counts.
2.)
(DE #126, pp. 1-
However, the State Defendants contend that the counts are
against all State Defendants.
(DE #130, pp. 14-15.)
It is true
that the actions are identified in the body of the complaint, and
before the “Legal Claims” section of the complaint, it states that
“Paragraphs 1-153 are incorporated by reference into each of the
following Counts” (FAC ¶ 154) and before the newly added legal
claims related to Defendant Dr. Cavanaugh and Plaintiff Johnathon
Abair, the complaint states that “Paragraphs 1-302 are incorporated
by reference into each of the following Counts.”
(FAC ¶ 303.)
The Seventh Circuit has addressed this point in a similar case
involving family rights:
At this point, we again must consider which
defendants are subject to suit for the alleged
violation. We need not dwell on each individual
defendant’s involvement, however, because, as
detailed above, [plaintiff] alleged that the
defendants conspired to violate his constitutional
rights - including his right to familial relations
- and he presented sufficient facts to support a
reasonable inference that each defendant . . .
joined the conspiracy, and thus was responsible for
causing the alleged substantive due process
violation.
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1009 (7th Cir. 2000). Here,
Plaintiffs have structured the first amended complaint to allege
17
that each Defendant is responsible for the acts of the conspiracy
that resulted in the deprivation of the Plaintiffs’ constitutional
rights.
Count 1 is entitled “Defendants’ actions violated the
plaintiffs’ 1st Amendment right to petition the government” (FAC ¶
154); Count 2 “Defendants’ actions violated the plaintiffs’ 4th
Amendment right to freedom from unreasonable search and seizure”
(FAC ¶ 155); Count 3 “Defendant’s actions violated the plaintiffs’
6th Amendment right to effective assistance of counsel” (FAC ¶
159); Count 4 “Defendants’ actions violated the plaintiffs’ 14th
Amendment right to procedural and substantive due process” (FAC ¶
161);
Count
5
“Defendants’
actions
constituted
a
broad-based
conspiracy to violate the plaintiffs’ civil rights” (FAC ¶ 164);
Counts 6 and 7 specifically deal with the newly added Defendant,
Dr. Cavanaugh; and Count 8 “Defendants’ actions violated Plaintiff
Johnathon Abair’s 1st Amendment right to petition the government,
4th
Amendment
right
to
freedom
from
unreasonable
search
and
seizure, and 14th Amendment right to procedural and substantive due
process, and constituted a broad-based conspiracy to violate his
civil rights (FAC ¶ 305).
As such, the first amended complaint
sufficiently notifies the State Defendants that each count runs
against each Defendant.
Whether Plaintiffs’ Claims Are Barred By The Eleventh Amendment
The State Defendants argue that Plaintiffs’ section 1983
18
claims are barred by Eleventh Amendment immunity.
Specifically,
they argue Defendants were sued in their official (not individual)
capacities:
[S]ince the State Defendants are being sued for
their actions taken during related criminal and
child protection investigations pursuant to their
positions with the Indiana State Police and the
Indiana
Department
of
Child
Services,
the
allegations in the Amended Complaint lead to a
conclusion that the State Defendants are sued in
their official capacities.
(DE #126, p. 12.)
Yes, such a suit would be barred against
Defendants in their “official capacity,” but as the Seventh Circuit
has recognized, “the ‘capacity’ in which litigation proceeds is
largely the plaintiff’s choice . . . [t]he plaintiff may plead a
claim either way . . . .”
Walker v. Rowe, 791 F.2d 507, 508 (7th
Cir.
can
1986).
A
claimant
impose
personal
liability
on
a
government official under section 1983 by demonstrating that the
official, acting under color of state law, caused the deprivation
of a federal right.
Kentucky v. Graham,
473 U.S. 159, 166 (1985).
“Under the law of the Seventh Circuit, when a complaint alleges the
tortious conduct of an individual acting under color of state law,
an individual capacity suit plainly lies, even if the plaintiff
failed to spell out the defendant’s capacity in the complaint.”
Severson v. Bd. of Trustees of Purdue Univ., 777 N.E.2d 1181, 1190
(Ind. Ct. App. 2002) (quoting Hill v. Shelander, 924 F.2d 1370,
1374 (7th Cir. 1991)).
Plaintiffs cite Crawford, arguing the first amended complaint
19
indicates that the State Defendants were sued in their official
capacity.
Crawford v. Cnty. of Muncie, 655 N.E.2d 614 (Ind. Ct.
App. 1995).
However, Crawford realized that “[o]ne indicia of the
capacity in which a government agent has been sued under § 1983 is
the language of the caption of the case . . . [and] [n]aming a
defendant by his position or office raises a presumption that he
has been sued in his official capacity.”
620.
Crawford, 655 N.E.2d at
Indeed, in Crawford, the defendants were referenced as
“police officer[s]” in the caption which was a “critical factor
upon which [the] Court focus[ed]” and thus a presumption arose that
the defendants were sued in their official capacities.
(Id. at
620-21.) In contrast, in this case, the State Defendants are
identified in the caption by only their names - there are no titles
or affiliations in the caption.
(FAC.)
Additionally, Crawford counsels to look at the allegations and
language used in the body of the complaint.
Id. at 620.
Here,
the complaint does identify the state entity with which each
defendant is affiliated, which is required under section 1983, and
alleges that: “[t]he defendants acted individually and jointly
under color of state law to deprive the plaintiffs of their civil
rights.
Because they acted knowingly, recklessly and in disregard
of well-established law, with no objectively reasonable basis for
their actions, they do not have qualified immunity . . . .”
¶ 13.)
(FAC
The Seventh Circuit has treated section 1983 suits as
20
individual
capacity
claims
when
defense of qualified immunity.
defendants
have
asserted
the
See Brokaw, 235 F.3d at 1009
(“Because the state defendants have treated [plaintiff’s] suit as
an individual capacity claim - as demonstrated by their assertion
of the defense of qualified immunity - we will too.”); Stevens v.
Umsted, 131 F.3d 697, 707 (7th Cir. 1997) (finding the assumption
that a suit against a government is assumed to be an official
capacity suit is negated if the parties have treated it as an
individual capacity suit by asserting the defense of qualified
immunity). Here, Plaintiffs raised qualified immunity in the first
amended complaint (¶ 13), and the State Defendants asserted it in
their
original
answer
and
motion,
negating
any
Plaintiffs sued them in their official capacities.
claim
that
(DE #25,
Defenses, pp. 52-54; DE #121 ¶ 13.)
Finally, the State Defendants assert that if retrospective
(monetary) relief is sought, then a state official is being sued in
his official capacity.
(DE #126, pp. 12-13.)
However, the case
they cite for this proposition, Severson v. Bd. of Trustees of
Purdue Univ., 777 N.E.2d 1181, 1188 (Ind. Ct. App. 2002), is not on
point, and merely addresses whether a state agency is a “person”
amendable to suit under section 1983.
Id. (“If a plaintiff
requests retrospective relief, then a state official sued in his
official capacity is also not a “person” under § 1983.”)
Here,
Plaintiffs have not sued a stage agency, but have instead stated
21
claims
against
the
individual
defendants
in
their
personal
capacities.
Count 1 - Violation of First Amendment Right To Petition The
Government
Count 1 of the Amended Complaint alleges that McAninch, Myers
and Payne retaliated against Plaintiffs for exercising their First
Amendment right to petition the Government for a redress of
grievances.
(FAC
¶¶
33-35,
142,
144,
146,
148,
155.)
Specifically, Roman Finnegan wrote to his state legislature, Mary
Kay Budack, and complained about McAninch’s conduct and lack of
sensitivity on the telephone.
(FAC ¶ 33.)
The state legislature
forwarded the letter to the Governor’s Office, which sent it to DCS
for a response by James Payne, Director of DCS.
Id.
Plaintiffs
allege the State Defendants retaliated by initiating a false
substantiation of medical neglect on December 5, 2005, followed by
a retaliatory investigation, illegal detention of the children, and
finding of abuse and neglect that were never supported by the
evidence.
(Id. ¶ 155.)
In his January 2010 decision, Judge Blankenship stated that
“DCS’ failure to follow up with Jessica’s parents or doctors
suggests that the December 5, 2005 substantiation was simply a
face-saving effort, possibly in retaliation for Mr. Finnegan’s
original complaint to his legislator.”
22
(DE #130-2, p. 59.)
The State Defendants cite Gunville v. Walker, 583 F.3d 979,
984 n. 1 (7th Cir. 2009), and Fairley v. Andrews, 578 F.3d 518 (7th
Cir. 2009), for the proposition that a “heightened measure of
causation”
is
applicable,
specifically,
that
Plaintiffs
must
establish “but-for causation” instead of merely establishing that
the speech was a motivating factor in Defendants’ decision to take
retaliatory actions. However, Gunville and Fairley both involve an
employment relationship, and were at the summary judgment stage the State Defendants have provided no legal support for the
argument that a heightened measure of causation would be applicable
during a motion to dismiss like this one.
Under the typical
“motivating factor” test, the allegations in the first amended
complaint are sufficient to withstand dismissal.
The State Defendants also claim that the speech must be a
matter of public interest, citing Connick v. Myers, 461 U.S. 138
(1983) (involving speech of an assistant district attorney), and
Pickering v. Board of Educ., 391 U.S. 563 (1968) (involving action
by
dismissed
teacher
against
board
of
education).
However,
Plaintiffs pinpoint how the Seventh Circuit looks at this specific
issue, in this exact context:
The public criticism of governmental policy and
those responsible for government operations is at
the very core of the constitutionally protected
free speech.
We think it plain that presenting
complaints to responsible government officials
about the conduct of their subordinates with whom
the complainer has had official dealings is
analogously central to the protections of the right
23
to petition. It matters not that the subject of the
grievance may not be political, in the sense of
raising public policy issues. . . . Indeed, the
fact that a grievance may not arouse sufficient
public concern to generate political support makes
the individualized exercise of the right to
petition all the more important.
Unless the
grievance embodies a violation of established and
judicially enforceable state or federal right,
individual petitioning may be the only available
means of seeking redress.
Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1342-43 (7th Cir. 1977)
(internal citations omitted).
The State Defendants also argue that no retaliatory motive is
suggested, and the timing of the complaint and alleged retaliation
is not sufficient.
(DE #126, pp. 14-15.)
However, as noted by
Plaintiffs, most of the cases cited by them were at the summary
judgment stage.
(DE #130, p. 18, n.4.)
At this stage in the
proceedings, when the Court must accept as true all well-pleaded
allegations and view them in the light most favorable to the nonmoving party, as well as accept as true all reasonable inferences
to be drawn from the allegations, the Court believes the first
amended complaint does contain allegations that “state a claim to
relief that is plausible on its face” and that the “factual
allegations [are] enough to raise a right to relief above the
speculative level.”
555.
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at
Facts have been alleged that would sufficiently let a fact
finder determine that the State Defendants retaliated within days
after Mr. Finnegan criticized them by providing false information
24
to the Central Office, which resulted in the December 5, 2005
substantiation of medical neglect.
This is sufficient at this
stage of the proceedings.
The one portion of this claim that does need to be dismissed
is the children’s assertion of a First Amendment claim.
Although
the Plaintiffs contend the damages to the children are “collateral”
to their parents, they cite to no case law, and this Court is not
aware
of
any,
supporting
such
a
claim.
As
such,
Katelynn,
Johnathon, and Tabitha’s first amendment violation claims in Count
1 are dismissed.
Count 2 - Violation of Fourth Amendment Rights
Count 2 of the first amended complaint states violations of
the
Fourth
Amendment
rights
for
the
following
alleged
unconstitutional searches or seizures: (1) the December 20, 2005
emergency detention and seizure of Jessica’s siblings without court
order; (2) the November 6, 2006 seizure of Tabitha and Katelynn;
(3) the exhumation of Jessica’s body on January 25, 2007 and the
search of the Finnegan home; (4) the April 23, 2007 arrests of Mr.
and Mrs. Finnegan; (5) the January 2007 interrogations of Johnathon
and Tabitha; and (6) the seizures of Tabitha and Katelynn pursuant
to the May 2007 Amended CHINS petition.
(FAC ¶¶ 156-58.)
The
State Defendants concede that the first four actions constituted
searches or seizures subject to Fourth Amendment constraints (DE
25
#126, p. 16), however, they claim they were reasonable in light of
the facts and circumstances of this case.
The State Defendants
urge the last two are not properly addressed in this motion.1
The
Court is careful to keep in mind the admonition that to state a
claim for relief, a complaint must contain factual allegations that
plausibly suggest an entitlement to relief, to a degree that rises
above the speculative level.
Iqbal, 556 U.S. at 677-80; Twombly,
550 U.S. at 555.
The Fourth Amendment states it is “the right of the people to
be secure in their person, houses, papers, and effects against
unreasonable searches and seizures[.]”
U.S. Const. Am. IV.
To
determine whether a cause of action has been stated, courts
determine whether the alleged conduct constituted a search or
seizure, and if so, whether it was unreasonable in light of the
facts.
A person has been “seized” for purposes of the Fourth
Amendment “if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not
free to leave.”
(1980).
United States v. Mendenhall, 446 U.S. 544, 554
“The test of reasonableness under the Fourth Amendment is
not capable of precise definition or mechanical application, and
1
As noted earlier in this decision, a party may assert new
facts in response to a motion to dismiss as long as they are
consistent with the complaint. See, e.g., Geinosky, 675 F.3d
743, 745 n.1. The facts of these alleged seizures are in the
first amended complaint, and will therefore also be considered by
the Court. (FAC ¶¶ 81, 98, 226.)
26
its proper application requires careful attention to the facts and
circumstances of each particular case.”
Brokaw, 235 F.3d at 1010
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
The parties exhaustively discuss each admitted search and
seizure, debating whether or not it was reasonable.
The State
Defendants rely on facts and arguments such as the removal of
Katelynn and Tabitha from the home was authorized by court order,
the search of the home was done after obtaining a search warrant,
the exhumation of Jessica was done with probable cause, and the
arrest of Roman and Lynnette were done pursuant to valid warrants.
(DE #126, pp. 17-19.)
However, this is a motion to dismiss - the
Court must accept as true all well- pleaded allegations and view
them in the light most favorable to the non-moving party, as well
as accept as true all reasonable inferences to be drawn from the
allegations.
The State Defendants have alleged: the December 20,
2005 seizures of the siblings and interrogations were done without
a court order, lasted six hours, and Mrs. Finnegan was told she
would be arrested if she attempted to see the children (FAC ¶ 54);
on November 1, 2006, Tabitha and Katelynn were seized from school
even though no affidavit, sworn testimony or other documents were
provided
to
the
Court
to
support
the
need
for
an
emergency
detention, and then DCS told the girls their mother had beaten
Jessica to death and placed them in an out-of-county location for
questioning and “therapeutic” foster care (Id. ¶¶ 64-65); the
27
exhumation of the body was based upon knowingly false information
that it was needed to determine the existence and cause of a skull
fracture
and
attempt
to
match
the
shape
of
objects
in
the
Finnegans’ home to the shape of an internal bleed in Jessica’s head
(Id. ¶¶ 70, 73-78); the April 2007 arrests of Lynnette and Roman
were based upon McDonald’s probable cause affidavit, which was
filled
with
false
information
(DE
¶¶
93-95);
Tabitha
was
interrogated after the exhumation and Johnathon was interrogated
for 6 hours when McDonald told him, falsely, that Jessica had been
murdered and his mother was accusing him (FAC ¶ 81); and the
amended CHINS petition eliminated the claims that the girls were in
danger,
but
instead
claimed
DCS
was
detaining
the
girls
as
witnesses against their parents, which was false because neither
child had disclosed abuse or neglect.
These
allegations
in
the
(Id. ¶¶ 98, 226.)
first
amended
complaint
are
sufficient to allege the State Defendants violated Plaintiffs’
Fourth Amendment rights. The Seventh Circuit established in Brokaw
that
under
allegations
severe
of
circumstances,
child
abuse
were
if
the
false
defendants
or
withheld
knew
the
material
information, but nonetheless caused or conspired to cause the
child’s removal from the home, they violated the Fourth Amendment.
Brokaw, 235 F.3d at 1012.
The Court did note:
Before closing the Fourth Amendment discussion, it
is important to reiterate two points. First, our
holding should not be read as creating a
constitutional claim any time a child is removed
28
from his home and a later investigation proves no
abuse occurred.
The alleged facts here go much
beyond that scenario, and our holding is limited to
the unique circumstances of this case. Second, it
is important to remember that this case is here on
12(b)(6) dismissal.
Further proceedings and
discovery may well narrow this case substantially,
but at this point the question is solely whether
[plaintiff] can succeed under any set of facts.
Brokaw, 235 F.3d at 1017 (emphasis added).
This case is one of
those rare instances, like Brokaw, which at this stage of the
proceedings,
Constitutional
has
successfully
rights
based
upon
alleged
the
a
deprivation
searches
and
of
seizures
associated with Plaintiffs’ children being removed from the home.
The allegations in the first amended complaint satisfy the burden
of alleging a violation of Plaintiffs’ 4th Amendment rights.
Count 3 - Sixth Amendment Right to Counsel
Plaintiffs have withdrawn their claim based upon violation of
the Sixth Amendment.
(DE #130, p. 26.)
As such, Count 3 is
dismissed.
Count 4 - Fourteenth Amendment Right to Substantive and Procedural
Due Process
Plaintiffs allege that Defendants Myers, McAninch, and Payne
deprived them of substantive due process by refusing to comply with
laws that protect “the constitutional rights to family relations,
including the parents’ right to raise their children and the
29
children’s right to be with their parents.”
(FAC ¶ 164.)
As this
Court has found in its previous order on Defendant Antoinette
Laskey’s motion for judgment on the pleadings (DE #61), and as
conceded by the State Defendants (DE #126, p. 22), due process does
encompass a parent’s liberty interest in familial relations.
See
Troxel v. Granville, 530 U.S. 57, 65 (2000) (collecting cases);
M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Brokaw, 235 F.3d at
1018 (reiterating “[t]he Supreme Court has long recognized as a
component
of
substantive
due
process
the
right
to
family
relations.”).
Plaintiffs have sufficiently alleged a violation of their 14th
Amendment
substantive
and
procedural
due
process
rights.
A
parent’s interest in the care and custody of her children, and the
children’s right to care and nurturing by their parents, is
protected by the 14th Amendment.
Compl. ¶¶ 162-64.
Troxel, 530 U.S. at 65; see
Although the Government has an interest in
protecting children from abuse, the State does not have an interest
in protecting children from their parents “unless it has some
definite and articulable evidence giving rise to a reasonable
suspicion that a child has been abused or is in imminent danger of
abuse.”
Brokaw, 235 F.3d at 1019 (citation omitted).
Here,
because Tabitha and Katelynn were removed from the house and
subjected to questioning for nine months, long after Plaintiffs
allege
there
was
no
evidence
of
30
abuse,
neglect,
or
danger,
Plaintiffs have stated a sufficient claim of violation of their
substantive due process rights.
Plaintiffs have also sufficiently stated a claim for violation
of procedural due process under the 14th Amendment.
“[N]o matter
how much process is required, at a minimum, it requires the
government officials not misrepresent the facts in order to obtain
the removal of a child from his parents.”
Brokaw, 235 F.3d at 1020
(citing Malik v. Arapahoe Cnty. Dep’t of Soc. Servs., 191 F.3d
1306, 1315 (10th Cir. 1999)). Plaintiffs have alleged that the
plaintiffs
“refuse[]d
acknowledge
basic
investigation;
to
address
medical
failing
the
precepts;
to
provide
medical
sabotaging
exculpatory
evidence
the
or
Coroner’s
information
or
information that was subpoenaed and/or properly requested under the
Indiana Rules of Trial Procedure; omitting exculpatory information
and
including
false
information
in
their
reports;
assessing
evidence in a biased and partial manner; and acting without
reasonable or probable cause and with deliberate indifference to
the
plaintiffs’
rights.”
(FAC
¶
163.)
These
are
sufficient
allegations to support a deprivation or procedural due process.
These
allegations
are
echoed
in
the
findings
of
Judge
Blankenship:
In addition to this obvious substantive problem,
the record contains reports of numerous procedural
irregularities . . . beginning with the six hour
detention of the children for questioning on the
day of Jessica’s death, and culminating in nine
months of detention in 2006-2007 that appeared to
31
be largely if not entirely designed to obtain
information from the children, rather than to
protect them. The Finnegans also state (and DCS
largely does not contest) that DCS did not provide
case plans in a timely manner, did not allow
Tabitha to participate in the CHINS proceedings,
denied relative placement for what appear to be
spurious reasons, failed to provide evidence to
support
the
amended
Petitions
or
continued
detention in May 2007, had at least one ex parte
contact with the Court in an effort to prevent
reunification, offered Tabitha college funding if
she would agree to remain in foster care rather
than return home, and generally made reunification
as difficult as possible . . . this pattern of
conduct not only constituted bad faith but deprived
the Finnegans of the due process of law guaranteed
by the U.S. and Indiana constitutions.
(DE #130-2, pp. 69-70.)
The
State
Defendants
argue
that
allegedly
ignoring
and
withholding exculpatory evidence cannot have interfered with the
Plaintiffs’ constitutional rights because “[t]he charges against
Plaintiffs were dismissed well before trial.”
(DE #126, p. 25.)
However, Plaintiffs have alleged plenty of prejudice including 9
months of detention and investigatory therapy for the children,
criminal charges against the parents, the loss of Mr. Finnegan’s
job, and the loss of their family house.
Count 4 - Equal Protection and ADA Claims
Plaintiffs allege that the State Defendants further deprived
them of their equal protection and due process rights by refusing
to comply with the applicable state and federal CHINS laws and
regulations, and by violating the American with Disabilities Act
32
(“ADA”)
which
required
defendants
accommodations to Lynnette.
to
provide
(FAC ¶ 164.)
appropriate
Plaintiffs allege
Lynnette is disabled - she suffers seizures with migraines, has
attended
special
social
security
payments, and has a learning (communications) disorder.
(FAC ¶¶
26-27, 164.)
education
classes,
received
Plaintiffs state that McAninch and Myers made fun of
Lynnette’s need to wear sunglasses due to her migraines and mocked
her spelling and communication difficulties.
(DE #130, p. 31.)
Additionally, McDonald taunted her for getting dressed up and made
her hop up the courthouse stairs in shackles.
The
directs
Equal
that
Protection
no
State
Clause
shall
of
“deny
the
to
Fourteenth
any
jurisdiction equal protection of the laws.”
XIV § 1.
Id.
person
Amendment
within
its
U.S. Const., Amend.
It has “been limited to instances of purposeful or
invidious discrimination rather than erroneous or even arbitrary
administration of state powers.
The gravamen of equal protection
lies not in the fact of deprivation of a right but in the invidious
classification
of
persons
aggrieved
by
the
state’s
action.”
Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970).
governmental
action
discriminates
on
the
basis
of
a
If the
suspect
classification, a reviewing court is to employ the strict scrutiny
analysis; however, “[i]f no suspect class or fundamental right is
involved . . . [courts] employ a rational test to determine whether
[action] is constitutional.”
Vision Church v. Village of Long
33
Grove, 468 F.3d 975, 1000-1001 (7th Cir. 2006) (quoting Eby-Brown
Co., LLC v. Wisconsin Dep’t of Agric., 295 F.3d 749, 754 (7th Cir.
2002) (internal quotation marks omitted)).
As the Seventh Circuit
has stated:
With due deference to the congressional approach to
legislation affecting the disabled, this Court
chooses to follow the lead of our fellow circuit
courts and the direction indicated by the Supreme
Court to conclude that the disabled are not a
suspect or quasi-suspect class.
Therefore, we
apply
rationality
review
to
claims
of
discrimination made by persons in this class.
United States v. Harris, 197 F.3d 870, 876 (7th Cir. 1999); see
also Board of Trustees Univ. of Alabama v. Garrett, 531 U.S. 356,
366
(2001)
subject
to
(discrimination
rational
against
relation
persons
scrutiny
under
with
disabilities
Equal
Protection
Clause).
Here, the Plaintiffs have not satisfied their burden of
alleging facts to support a reasonable inference that Lynnette’s
disabilities motivated the State Defendants’ actions.
While this
Court by no means condones the alleged actions, dismissal is
appropriate where there is no suspect classification, and no facts
to support a reasonable inference that Lynnette’s disabilities
motivated the Defendants’ actions.
Plaintiffs’ ADA claim fails as well. Even assuming, arguendo,
that Lynnette is a qualified individual, the Court must next turn
to
the
question
reasonable.
of
whether
the
requested
accommodation
was
This issue of “whether a requested accommodation is
34
reasonable or not is a highly fact-specific inquiry and requires
balancing the needs of the parties.”
Rauen v. U.S. Tobacco Mfg.
Ltd. P’ship, 319 F.3d 891, 896 (7th Cir. 2003) (quoting Oconomowoc
Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784
(7th Cir. 2002)).
Lynnette
requested
In this case, Plaintiffs fail to allege that
an
accommodation was needed.
accommodation(s),
or
what
specific
As such, Plaintiffs fail to state a
claim for violation of the ADA.
Count 5 - Conspiracy To Deprive Plaintiffs of Their Constitutional
Rights
Count 5 alleges that all defendants engaged in a conspiracy
and “repeatedly did whatever it took, including deliberate lies,
false arrests and concealment of critical information, to create a
case against the Finnegans, in the absence of rational belief or
probable cause.”
(FAC ¶ 165.)
The extensive first amended
complaint (consisting of 95 pages) identifies the members of the
conspiracy, identifies the dates of September 2005 through May
2010, and alleges a purpose of trying to deprive Plaintiffs of
their constitutional rights.
See,
e.g.,
Brokaw,
235
F.3d
At this stage, this is sufficient.
at
1016
(plaintiffs’
conspiracy
allegations under § 1983 were sufficient, and no more was required
at that stage of the proceedings, because they “alleged all of the
necessary facts: the who, what, when, why, and how.
No more is
required at this stage.”); Loubser v. Thacker, 440 F.3d 439, 443
35
(7th Cir. 2006) (to survive a motion to dismiss plaintiff must
allege “the parties, the general purpose, and the approximate date
of the conspiracy.”).
Although the State Defendants argue the Plaintiffs allege no
purpose for the conspiracy, the complaint specifically alleges that
the State Defendants, through lies and concealing information,
tried to “create a case against the Finnegans” in violation of
their
rights.
That
is
enough
detail
to
survive
dismissal.
Finally, the State Defendants complain that this constitutes an
“intracorporate conspiracy,” and “a conspiracy cannot exist solely
between members of the same entity.”
(DE #126, p. 30 (quoting
Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623 (7th
Cir. 1999).)
However, this argument is inapplicable because
Plaintiffs have specifically alleged a conspiracy between employees
of DCS, the Indiana State Police, Riley Children’s Hospital, and
Dr. John Cavanaugh.
(FAC ¶¶ 5-11, 305.)
Whether The State Defendants are Entitled to Immunity
The State Defendants urge that Myers, McAninch, Salyers and
James are entitled to “absolute immunity for most, if not all, of
the actions which form the basis of plaintiffs’ claims.” (DE #126,
p. 31.)
After scant analysis, and only citing general case law,
they conclude that “[g]iven the breadth of quasi-judicial immunity
afforded under federal and state law, Defendants Myers, McAninch,
36
Salyers, James and McDonald are absolutely immune from liability
for
any
claim
Complaint.”
arising
from
the
allegations
in
the
Amended
(DE #126, p. 32.)
Because it is a complete defense to liability, “[a]bsolute
immunity
from
civil
liability
for
damages
is
of
a
rare
and
exceptional character,” Auriemma v. Montgomery, 860 F.2d 273, 275
(7th Cir. 1988) (quotation omitted), and there is a presumption
against granting it to government officials.
978 F.2d 362, 365 (7th Cir. 1992).
Houston v. Partee,
The burden of establishing
absolute immunity rests on its proponent, who must show that
overriding
considerations
of
public
policy
require
that
the
defendant be exempt from personal liability for unlawful conduct.
Auriemma, 860 F.2d at 275; Walrath v. United States, 35 F.3d 277,
281 (7th Cir. 1994).
Here, the State Defendants fail to identify the actions for
which they seek absolute immunity.
They do claim that in the
context of the CHINS proceedings, the participants are entitled to
absolute immunity.
Indiana,
713
“[a]bsolute
N.E.2d
judicial
(DE #126, p. 32, citing H.B. v. State of
300,
302
(Ind.
immunity
Ct.
therefore
App.
1999)
extends
to
(stating
persons
performing tasks so integral or intertwined with the judicial
process that these persons are considered an arm of the judicial
officer who is immune.”).
The State Defendants concede that “the
DCS defendants are entitled to immunity for in-court testimony and
37
some aspects of court preparation,” yet those actions constitute a
small
part
of
the
actions
Constitutional rights.
Plaintiffs
allege
violated
their
(DE #130, p. 35.)
Plaintiffs point out that McAninch was the only DCS defendant
who testified in the CHINS proceedings, and she had a limited role.
Rather, when looking at the nature of the function performed by the
State Defendants, Plaintiffs point out their numerous allegations
of reckless investigatory and out of court actions including, but
not limited to: the December 5, 2005 substantiation of medical
neglect, the detention of the family on December 20, 2005, the
retention of an alleged unqualified pediatrician in October 2006 to
subvert the Coroner’s investigation, the seizure of the girls on
November 1, 2006 for investigative purposes, the placement of the
girls in a secret out-of-county location and refusal to consider
relative placement, the refusal to comply with the Coroner’s
subpoenas, the direction of 9 months of investigatory therapy
designed to recover memories, the failure to consider exculpatory
information, the refusal to provide case plans, reunification
services
and
substantiation
reasonable
of
death
visitation,
from
physical
the
March
23,
2007
abuse
for
Jessica
and
life/health endangering conditions for her siblings which was based
on false information and omitted exculpatory information (including
prescription errors and expert affidavits); the May 25 amendment of
the CHINS petition and continued detention of the girls; the
38
concealment of exculpatory information including information from
Dr. Cavanaugh on July 11; ex parte contact in which Myers provided
false information to the court on July 25; an offer of college
funding if Tabitha agreed to stay in foster care; the refusal to
return
the
girls
on
August
3,
as
ordered
by
the
court;
an
escalation of efforts to destroy the family after the girls’
return; and the confirmation of the substantiations and addition of
new substantiations on December 13, 2007.
(DE #130, pp. 35-36.)
These are all out of court acts to which the State Defendants are
not entitled immunity.
See, e.g., Brokaw, 235 F.3d at 1012 (if
defendants knew allegations of child neglect were false or withheld
material information but nonetheless caused the child’s removal
from the home, they violated the Fourth Amendment and absolute
immunity does not protect a social worker for her role in gathering
evidence or initiating the child’s removal); Millspaugh v. Cnty.
Dep’t Of Pub. Welfare of Wabash Cnty., 937 F.2d 1172, 1176 (7th
Cir.
1991)
(holding
“absolute
immunity
does
not
protect
the
gathering of evidence [by a social worker]”); Pelham v. Albright,
No. 3:11-cv-99, 2012 WL 1600455, at *7 (N.D. Ind. May 4, 2012)
(denying absolute immunity for investigatory actions).
As such,
the State Defendants have failed to satisfy the heavy burden that
they are entitled to absolute immunity.
If not absolute immunity, the State Defendants then claim they
are
entitled
to
qualified
immunity.
39
Under
the
doctrine
of
qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
“The contours of a clearly established right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.”
Sivard v. Pulaski Cnty., 17 F.3d 185,
189 (7th Cir. 1994) (quotation omitted).
This standard provides
ample protection “to all but the plainly incompetent or those who
knowingly violate the law.”
Millspaugh, 937 F.2d at 1176 (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Here,
reasonable,
the
State
and
thus
Defendants
as
state
claim
actors,
their
they
are
actions
were
entitled
to
qualified immunity. (DE #126, p. 34.) They cite Brokaw in support
of
their
argument,
yet
in
that
case
the
Seventh
Circuit
specifically denied the defendants’ motion to dismiss on the ground
that their acts were protected by qualified immunity, stating it
could not “conclude that the individual defendants [were] entitled
to qualified immunity because 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. The first amended complaint specifically
alleges that the State Defendants intentionally acted outside of
40
their statutory authority, presented false information to the
prosecutor
and
the
court,
wrongly
subjected
the
children
to
interrogations and wrongfully seized them from the home, and
engaged in a laundry list of other illegal actions. Certainly this
is sufficient at this stage of the proceedings.
See, e.g. Martin
v. Kim, No. 2:03-CV 536, 2005 WL 2293797, at *8 (N.D. Ind. Sept.
19, 2005) (denying motion to dismiss on ground of qualified
immunity as premature); Alvarado v. Litscher, 267 F.3d 648, 651
(7th Cir. 2001) (quotation omitted) (“Because an immunity defense
usually depends on the facts of the case, dismissal at the pleading
stage is inappropriate: The plaintiff is not required initially to
plea factual allegations that anticipate and overcome a defense of
qualified immunity.”).
As the Seventh Circuit has recently held:
[C]ourts should usually refrain from granting Rule
12(b)(6) motions on affirmative defenses.
Rule
12(b)(6) tests whether the complaint states a claim
for relief, and a plaintiff may state a claim even
though there is a defense to that claim. The mere
presence of a potential affirmative defense does
not render the claim for relief invalid. Further,
these defenses typically turn on facts not before
the court at that stage in the proceedings.
Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
Cir. 2012).
For this reason, dismissal is not appropriate at this
stage of the proceedings on the basis of the alleged defense of
immunity.
Applicability of the Rooker-Feldman Doctrine
41
The Rooker-Feldman doctrine precludes federal subject matter
jurisdiction when: (1) a losing party in state court files suit in
federal court complaining of an injury caused by the state court
judgment, and seeks review and rejection of that judgment; and (2)
the losing party files a federal claim after the state court
proceedings have ended.
See Holt v. Lake Cnty. Bd. Of Comm’rs, 408
F.3d 335, 336 (7th Cir. 2005); TruServ Corp. v. Flegles, Inc., 419
F.3d 584, 590 (7th Cir. 2005). The State Defendants’ argument that
this doctrine precludes the Plaintiffs from bringing their claims
in federal court is misguided -
rather, the Plaintiffs ultimately
prevailed in the underlying proceedings.
Thus, the doctrine is
inapplicable.
Request For Injunctive Relief
Plaintiffs have withdrawn their request for injunctive relief
as to the State Defendants making determinations on the cause and
manner of death.
Johnathon Abair’s Claims
The
State
Defendants
claim
that
Johnathon
Abair
has
no
cognizable claims in this action. This Court has already addressed
and rejected similar arguments in its order on Plaintiff’s motion
to amend/correct the complaint (DE #90), and the order overruling
objections to the Magistrate Judge’s order allowing the amendment
42
(DE #105).
No new case law or support has been provided by the
State Defendants.
Therefore, dismissal of Plaintiff Johnathon
Abair’s claims is inappropriate.
CONCLUSION
For the aforementioned reasons, the Motion to Dismiss (DE
#121) is GRANTED IN PART and DENIED IN PART.
as
to:
Katelynn,
Johnathon,
and
The motion is GRANTED
Tabitha’s
first
amendment
violation claims in Count 1; Count 3; the equal protection and ADA
claims in Count 4; and the request for injunctive relief, which are
DISMISSED WITH PREJUDICE. The motion is DENIED as to the remaining
claims
against
the
State
Defendants,
which
REMAIN
PENDING.
Additionally, the Motion to Strike (DE #134) is DENIED.
DATED: June 5, 2013
/s/ RUDY LOZANO, Judge
United States District Court
43
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