Fender et al v. Sailors et al

Filing 117

OPINION AND ORDER granting 72 Motion to Dismiss for Failure to State a Claim; granting 76 Motion to Dismiss for Failure to State a Claim; granting 85 Motion to Dismiss for Failure to State a Claim; granting 85 Motion to Dismiss for Lack o f Jurisdiction; granting 101 Motion to Dismiss for Failure to State a Claim. To the extent that Plaintiffs have attempted to allege any federal claims in the amended complaint, they are DISMISSED WITH PREJUDICE. Any potential state law claims are DISMISSED WITHOUT PREJUDICE. The clerk is DIRECTED to close this case. Signed by Judge Rudy Lozano on 3/29/16. (cc: Plaintiffs) (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WAYNE FENDER and
DONNA PULOUS,

)
)
)
Plaintiffs,
)
)
vs.
)
)
DCS, ASHLEY PETERS, SALLY
)
HERNANDEZ, SARAH SAILORS,
)
JUDGE KURTIS G. FOUTS, ANALEI )
WHITLOCK, SAMANTHA DAGENAIS, )
)
CHRISTIN BRAMLAGE,1 ABIGAIL
DIENER, THE STATE OF INDIANA, )
and PATRICK MANAHAN,
)
)
Defendants.
)

4:14-CV-024

OPINION AND ORDER
This matter is before the Court on the: (1) Motion to Dismiss
Amended Complaint by Defendant Abigail Diener, filed by defendant
Abigail Diener on June 10, 2015 (DE #72); (2) Defendant, Analei
Whitlock’s Motion to Dismiss Plaintiffs’ Complaint Filed on April
28, 2015, filed by defendant Analei Whitlock on June 12, 2015 (DE
#76); (3) State Defendants’ Motion to Dismiss Amended Complaint,
filed by defendants the State of Indiana, Indiana Department of
Child Services, Sally Hernandez, Sarah Sailors, Ashley Peters, and

1

Plaintiffs’ amended complaint lists the defendant as Kristin Bramlage,
but it is clear from other filings that the proper spelling is Christin and the
Court will refer to her as such throughout the order.

Judge Kurtis G. Fouts on June 19, 2015 (DE #85); and (4) Defendant
Patrick Manahan’s Motion to Dismiss Plaintiffs’ Amended Complaint,
filed by defendant Patrick Manahan on July 9, 2015 (DE #101).

For

the reasons set forth below, the motions to dismiss are GRANTED.
To the extent that Plaintiffs have attempted to allege any federal
claims in the amended complaint, they are DISMISSED WITH PREJUDICE.
Any potential state law claims are DISMISSED WITHOUT PREJUDICE.
The clerk is DIRECTED to close this case.

BACKGROUND
Pro

se

plaintiffs,

Wayne

Fender

and

Donna

Marie

Pulous

(collectively “Plaintiffs”), filed their original complaint in
cause number 4:14-CV-024 on March 10, 2014.

Although written on a

standard Complaint 42 U.S.C. section 1983 form, the form itself
only listed the alleged causes of action;2 the supporting facts and
“evidence”

were

additional pages.

incorporated

by

reference

over

sixty

plus

On May 5, 2014, several defendants, namely the

State of Indiana, the Indiana Department of Child Services (“DCS”),
Sarah Sailors, Sally Hernandez, Ashley Peters, and Judge Kurtis
Fouts, filed a motion to dismiss the complaint, arguing it was unintelligible and failed to state any claims for relief. On May 13,

2

The complaint listed defamation of character, discrimination, libel,
constitutional infringement, religious bias, perjury, filing false report, false
accusations, alternative healing bias, and family bias as supposed causes of
action.

2

2014, Plaintiffs filed a response in opposition to the motion to
dismiss and later filed a supplement to that response.

On August

7, 2014, Plaintiffs, along with an additional pro se plaintiff,
Heather Mock, filed another complaint, this time in cause number
4:14-CV-061.

That complaint, also written on a standard section

1983 form, added several new defendants to the list.

For the

causes of action section, Plaintiffs only stated that “we provided
paperwork that gives a clear-cut view of our evidence.”

That

attached paperwork spans the course of over one-hundred and seventy
pages.

Plaintiffs

later

filed

a

motion

to

supplement

that

complaint with another sixteen pages of single-spaced argument and
“evidence.”

On August 12, 2014, defendant Patrick Manahan filed a

motion for judgment on the pleadings in cause number 4:14-CV-024
for failure to state a claim, arguing that “it is difficult to
discern what the plaintiffs believe Patrick Manahan did wrong, much
less why he is a defendant here.”
On

September

22,

2014,

defendants,

Sarah

Sailors,

Sally

Hernandez, Ashley Peters, Kurtis Fouts, DCS, and the State of
Indiana, filed a motion to consolidate the two cases pursuant to
Federal Rule of Civil Procedure 42(a) and Local Rule Rule 42-2. On
October

21,

2014,

the

motion

to

consolidate

was

granted

by

Magistrate Judge John E. Martin, who stated that “the cases involve
common issues of law and fact relating to the removal of a child
from the care of [plaintiffs].

Trying the cases separately would

3

require duplication of efforts, both on behalf of the parties and
of the Court, and might result in inconsistent results.”

Judge

Martin directed that all future filings were to be made in cause
number

4:14-CV-024

only.

Prior

to

that

time,

however,

the

following filings were made in cause number 4:14-cv-061: (1) on
September 26, 2014, defendant, Analei Whitlock, filed a motion to
dismiss, arguing that plaintiffs’ complaint was “unintelligible”
and failed to state any valid claims; (2) on September 29, 2014,
defendants, Ashley Peters and the State of Indiana, filed a motion
to

dismiss

plaintiffs’

complaint

arguing

that

it

was

“un-

intelligible,” failed to state a claim for possible relief, and was
actually just an improper attempt to amend the original complaint
in cause number 4:14-CV-024; (3) on September 30, 2014, defendant,
Samantha Dagenais, filed a motion to dismiss or for a more definite
statement,

arguing

that

plaintiffs’

complaint

including

the

attached “evidence” was “so lengthy and incomprehensible” that it
failed to state any “coherent or intelligible” claims; (4) also on
September 30, 2014, defendant, Abigail Diener, filed a motion to
dismiss, arguing that plaintiffs’ complaint was “illogical,” devoid
of

any

factual

standards;

and

basis,
(5)

on

and

failed

October

6,

to

meet

2014,

federal

pleading

defendant,

Christin

Bramlage, filed a motion to dismiss, arguing that the complaint and
“evidence” together were “so lengthy and incomprehensible” that
they failed to contain any “coherent or intelligible” claims.

4

Plaintiffs filed responses to the motions, along with several
supplements and/or status updates, some of which were stricken by
Magistrate Martin for failure to comply with the Local Rules, and
none of which shed any real light on the nature of Plaintiffs’
claims.
On March 31, 2015, this Court struck both complaints, granted
Plaintiffs until May 7, 2015, to submit an amended complaint,
denied the motions to dismiss as moot, and directed the clerk to
close the case in cause number 4:14-CV-061.

In that opinion and

order, the Court set forth the standards for drafting federal
complaints and cautioned Plaintiffs that:
The amended complaint needs to contain a short
and plain statement of what happened to
plaintiffs to give rise to their claims. They
need to state when these events occurred and
clearly explain how each defendant was
involved with each claim that they are raising
against that defendant.
Additionally, the
complaint must contain sufficient factual
matter to “state a claim that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
“A claim has 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).
Legal conclusions can provide a
complaint’s framework, but unless well-pleaded
factual allegations move the claims from
conceivable
to
plausible,
they
are
insufficient to state a claim. Id. at 680.
“[C]ourts are not bound to accept as true a
legal
conclusion
couched
as
a
factual
allegation.” Twombly, 550 U.S. at 555, citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)
(quotation marks omitted). “[A] plaintiff’s
5

obligation to provide the grounds of his
entitlement to relief requires more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of
action will not do. Factual allegations must
be enough to raise a right to relief above the
speculative level, on the assumption that all
the allegations in the complaint are true
(even if doubtful in fact).” Id. (quotation
marks, citations and footnote omitted). “[I]n
considering
the
plaintiff’s
factual
allegations, courts should not accept as
adequate abstract recitations of the elements
of a cause of action or conclusory legal
statements.” Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009).
“[W]here the well-pleaded
facts do not permit the court to infer more
than the mere possibility of misconduct, the
complaint
has
alleged—but
it
has
not
shown—that
the
pleader
is
entitled
to
relief.’” Iqbal at 679 (quotation marks and
brackets omitted). Thus, “a plaintiff must do
better than putting a few words on paper that,
in the hands of an imaginative reader, might
suggest that something has happened to her
that might be redressed by the law.” Swanson
v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir.
2010) (emphasis in original).
However, the
plaintiffs should not resort to attaching
voluminous pages of documents or “evidence” in
place of the requirements stated above.
(DE #52.)
Plaintiffs3 filed their amended complaint on April 28, 2015.
(DE #53.)
1983

In the causes of action section of the 42 U.S.C. section

complaint

work/descriptions

form,

Plaintiffs

included.”

(Id.)

simply
The

state

attached

“paper
paperwork

includes roughly thirty (30) single-spaced typed pages plus several
additional pages of what appears to be a child’s coloring/activity

3

Heather Mock is not listed as a plaintiff in the amended complaint.

6

book.

(Id.)

The various defendants filed the instant motions to

dismiss throughout June and July of 2015.

Although Plaintiffs

filed numerous documents in the subsequent months, none of those
documents constituted a response to any of the motions to dismiss,
and they were stricken by Magistrate Judge Martin on August 21,
2015.

(DE #108.)

Thus, the motions to dismiss are ripe for

adjudication.

FACTS
It is clear from prior filings that this case stems from the
removal of Plaintiffs’ child,4 VDF, from their home by DCS after he
was determined to be a Child in Need of Services (“CHINS”), though
the amended complaint itself contains no specific references to the
removal or any other state court proceedings.

Plaintiffs purport

to bring their claims pursuant to 42 U.S.C. section 1983, and they
begin by asserting generally that they have been subjected to
“religious discrimination and bias” by all defendants because Wayne
Fender is Jewish.

(DE #53, p. 5.)

However, Plaintiffs state that

Mr. Fender has “been keeping [his] ‘true’ religious beliefs and
racial background secret for the last 18 years” and only “reconfirmed [his] faith and commitment to the Jewish Community on the
17th of April,” a mere eleven days before the amended complaint was

4

Wayne Fender is the biological father and Heather Mock is the biological
mother of VDF. Donna Pulous has been described as the child’s Godmother and
caregiver.

7

filed.

(Id.)

Although Mr. Fender claims that he left “clues” as

to his Jewish heritage for the defendants to discover, he admits
that no one ever assumed he was Jewish.

(Id.)

Plaintiffs assert

that one of the reasons the children were removed from the home by
DCS was because of their “differing religious views,” and Mr.
Fender attempts to clarify that assertion by stating, “I can never
accept any excuses for Indiana’s own Anti-Semetic (sic) policies.
Feeling it does not matter if I admitted to being a Jew or not.

It

can never be a (sic) excuse for discriminating against a family.”
(Id. at 6.)

Plaintiffs liken the situation to the “Racial codes

mandated by the Nazi Regime of Germany in the 1930s.”

(Id. at 7.)

The remaining pages of the amended complaint attempt to set
forth “charges” for each defendant as follows: (1) Abigail Diener:
guardian ad litem -- perjury on court documents and in court,
extreme malice, personal bias, familial bias, false allegations of
stalking and menacing, failure to understand a special needs child,
failure to inform a judge, and “collusion, conspiracy, holding a
child against their will, fraud by deception, misusing state and
local funds, failure to provide timely paperwork”; (2) Analei
Whitlock:

pediatric

nurse

practitioner

--

perjury

and

false

statements on court documents, “contradictive medical paperwork and
failure

to

obtain

critical

medical

information,”

giving

our

personal information, and “collusion, conspiracy, holding a child
against their will, fraud by deception, misusing state and local

8

funds, failure to provide timely paperwork”; (3) Ashley Peters: DCS
family case manager -- false accusations, failure to maintain
proper communication, failure to provide proper medical and other
paperwork, “condones bad parenting in the form of lying,” failure
to listen to parents, framing paperwork to favor DCS and their
case,

“failure

to

protect

a

child

in

peril,

collusion

and

conspiracy, knowledge of neglect and abuse, assault and battery on
a child, failure to report child abuse and take proper measures to
protect a child endangered, malfeasance and nonfeasance,” failure
to maintain familial relations, providing false testimony and
perjury,
“stalling

lying

about

tactics

reunification,”

medical

and

failure

appointments,

failure
to

to

inform

inform
a

discrimination,
what

judge,

and

to

do

to

“collusion,

conspiracy, holding a child against their will, fraud by deception,
misusing

state

and

local

funds,

failure

to

provide

timely

paperwork”; (4) DCS –- failure to train employees properly, failure
to

do

a

proper

religious

bias,

investigation
family

of

bias,

the

case,

alternative

“discrimination,
healing

bias,

incompetency, mismanaging case,” perjury, failure to inform a judge
and reckless child endangerment, failure to read court documents,
condoning child abuse and knowledge of unreported child abuse, and
“collusion, conspiracy, holding a child against their will, fraud
by deception, misusing state and local funds, failure to provide
timely paperwork, psychological terrorism”; (5) Judge Kurtis G.

9

Fouts -- judicial bias, “terroristic threat,” accusation of drugs,
discrimination,
improper

“illegally

public

conduct,

ordering

school

“constitutional

and

vaccinations,”

rights

violation,”

ordering dentistry, and judicial misconduct; (6) Christin Bramlage:
foster parent -– false statements and allegations, “child abuse as
witnessed by biological parents and Godmother,” improper conduct
with a child, failure to provide medical information to DCS,
failure to properly take care of a special needs child, “false
allegations

of

stalking

and

menacing

and

collusion,”

and

“collusion, conspiracy, holding a child against their will, fraud
by deception, misusing state and local funds, failure to provide
timely paperwork”; (7) Patrick Manahan: court appointed attorney
for

Wayne

collusion,

Fender

--

negligence,

fraud/constructive

mental

fraud,

anguish,

“malicious

deceit

and

prosecution

-

wrongfully charged (acted for some purpose other than aiding his
client),” mismanaging case, improperly preparing defendant for
case, improper public conduct, biased attitude toward client,
constitutional violation, failure to represent client fairly,
“nonfeasance

-

failure

to

act

that

results

in

injury,”

and

discrimination; (8) Sally Hernandez: DCS case manager -- false
reporting

and

perjury

on

court

documents,

coercion

of

false

statements, failure to provide evidence, accusations of severe
neglect without proper evidence, emotional and physical trauma to
a child, improper investigation of the facts, discrimination,

10

religious bias, mental anguish and suffering, slander and libel,
and “collusion, conspiracy, holding a child against their will,
fraud by deception, misusing state and local funds, failure to
provide timely paperwork”; (9) Samantha Dagenais: Bauer Caseworker
in

Monticello,

Indiana

--

failure

to

inform

parents

of

expectations, accusations or drug use, interference in progress,
incompetence in dealing with a special needs child, mismanaging
case,

“witnessed

child

abuse

and

did

not

report

it,”

and

“collusion, conspiracy, holding a child against their will, fraud
by deception, misusing state and local funds, failure to provide
timely paperwork”; (10) Sarah Sailors: DCS supervisor -- false
reporting and perjury on court documents, “making terroristic
threats,”

“broke

federal

law

against

discrimination

of

the

disabled,” improper conduction of an interview, failure to report
evidence,

libel

and

slander,

mental

anguish,

and

“collusion,

conspiracy, holding a child against their will, fraud by deception,
misusing

state

paperwork”;

and

and
(11)

local
the

funds,
State

of

failure
Indiana

to
–-

provide

timely

constitutional

violations, civil rights violations and discrimination, civil
rights violations and discrimination, and human rights violations.
(Id. at 10-33.)

The “examples” allegedly pertaining to each cause

of action contain a series of perceived wrongs set forth as a
stream of thoughts and opinions.

11

(Id.)

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for
failure to state a claim upon which relief can be granted.

“To

survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotations omitted); see also Ray v. City of
Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted)
(“While the federal pleading standard is quite forgiving . . . the
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”).

A

complaint should not be dismissed for failure to state a claim
“unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal
requires that a plaintiff plead content which allows this Court to
draw a reasonable inference that the defendant is liable for the
alleged misconduct.

556 U.S. at 678.

In ruling on a motion to dismiss brought pursuant to Federal
Rule

of

Civil

reasonable

Procedure

inferences

that

12(b)(6),
favor

the

the

court

must

plaintiff,

draw

all

construe

the

allegations of the complaint in the light most favorable to the

12

plaintiff,

and

accept

as

true

allegations in the complaint.
Regulation,

300

F.3d

750,

all

well-pleaded

a

motion

to

and

Thompson v. Ill. Dep't of Prof'l

753

(7th

Cir.

2002);

Silverstein, 939 F.2d 463, 466 (7th Cir. 1991).
withstand

facts

dismiss,

a

complaint

v.

In order to

must

“operative facts” upon which each claim is based.

Perkins

allege

the

Kyle v. Morton

High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,
967 F.2d 1166, 1168 (7th Cir. 1992).

A plaintiff is required to

include allegations in the complaint that “plausibly suggest that
the plaintiff has a right to relief, raising that possibility above
a ‘speculative level’” and, “if they do not, the plaintiff pleads
itself out of court.”

E.E.O.C. v. Concentra Health Servs., Inc.,

496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550
U.S. at 569 n. 14 (2007)).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks,

ellipsis, citations and footnote omitted). Thus, a “plaintiff must
do better than putting a few words on paper that, in the hands of
an imaginative reader, might suggest that something has happened to
her that might be redressed by the law.”

Swanson v. Citibank,

N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).
The Court notes that Plaintiffs are appearing pro se in this
matter. Generally, although “pro se litigants are masters of their
13

own complaints” and “[d]istrict judges have no obligation to act as
counsel or paralegal to pro se litigants,” Myles v. United States,
416 F.3d 551, 552 (7th Cir. 2005), a document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.

Erickson v. Pardus, 551 U.S. 89, 94

(2007). However, “on a motion to dismiss, courts are not bound to
accept as true a legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265,
286 (1986) (quotation marks omitted)). Even pro se plaintiffs must
“make their pleadings straightforward so that judges and adverse
parties need not try to fish a gold coin from a bucket of mud.”
United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374,
378 (7th Cir. 2003).

They must “be presented with sufficient

clarity to avoid requiring a district court or opposing party to
forever sift through its pages . . . .”
1434, 1436 (7th Cir. 1990).
8(a)(2)

requires

that

Jennings v. Emry, 910 F.2d

Federal Rule of Civil Procedure

complaints

contain

a

“short

and

plain

statement of the claim showing that the pleader is entitled to
relief.”

See Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20

F.3d 771, 775-76 (7th Cir. 1994) (“A complaint that is prolix
and/or confusing makes it difficult for the defendant to file a
responsive pleading and makes it difficult for the trial court to
conduct orderly litigation.”), and Jennings v. Emry, 910 F.2d 1434,
14

1436 (7th Cir. 1990) (a complaint “must be presented with clarity
sufficient to avoid requiring a district court or opposing party to
forever sift through its pages in search” of the plaintiff’s
claims).

In sum, Rule 8 requires a complaint to be presented with

“intelligibility sufficient for a court or opposing party to
understand whether a valid claim is alleged and [,] if so [,] what
it is.”

Vicom, 20 F.3d at 775.

Wordy, redundant, and seemingly

interminable complaints violate the letter and the spirit of Rule
8 and may be dismissed with leave to refile.

Id. at 776.

Plaintiffs’ complaint fails to meet these standards for the
same reasons discussed in this Court’s previous order.
#52.)

Despite

“charges”

their

pertaining

laborious
to

each

recitation

defendant,

of

(See DE

multiple

Plaintiffs

named

have

not

presented relevant facts in a manner that would intelligibly
connect any of the “examples” of alleged wrongdoings of the
defendants to recognizable civil causes of action.

Allegations of

unspecified grand conspiracies5 do not serve to bring the amended

5
Plaintiffs repeatedly assert that, on January 29, 2014, several of the
defendants “came into knowledge of VDF’s condition that he had the beginnings of
Asperger’s Syndrome and thereby conspired to keep this knowledge secret. To make
DCS case as severe neglect, [the various defendants] helped keep this information
from the family. We also believe to cover up this fact, DCS agents kept VDF long
enough for adoption by using suspicious stall tactics and urged or coerced
various service providers to stall the progress reports.” (See e.g. DE #53, p.
17.) “Although conspiracy is not something that Rule 9(b) of the Federal Rules
of Civil Procedure requires be proved with particularity, and so a plain and
short statement will do, it differs from other claims in having a degree of
vagueness that makes a bare claim of ‘conspiracy’ wholly uninformative to the
defendant. Federal pleading entitles a defendant to notice of the plaintiff’s
claim so that he can prepare responsive pleadings. That is why courts require
the plaintiff to allege the parties, the general purpose, and the approximate
date of the conspiracy.” Loubser v. Thacker, 440 F.3d 439, 442-43 (7th Cir.

15

complaint

within

the

federal

pleading

standards.

Although

Plaintiffs have provided many labels and conclusions, it is unclear
what is actually being alleged against each defendant. Neither the
Court nor the parties are required to sift through thirty single
spaced pages containing a litany of disjointed allegations to parse
a potentially valid claim from its contents.

See Jennings, 910

F.2d at 1436 (a complaint must be presented with intelligibility
and clarity “sufficient to avoid requiring a district court or
opposing party to forever sift through its pages in search of . .
. understanding” “whether a valid claim is alleged and if so what
it is.”); U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d
374, 378 (7th Cir. 2003) (“[A]lthough [f]at in a complaint can be
ignored,

dismissal

of

a

complaint

on

the

ground

that

it

is

unintelligible is unexceptionable.”) (internal quotation marks and
citations

omitted).

without-prejudice

Usually,

dismissal,

such
and

a

shortcomings
plaintiff

result
is

in

given

opportunity to amend the complaint to comply with Rule 8.

a
an

Here,

however, the Court has already granted Plaintiffs leave to amend,
and those deficiencies have not been cured.

Additionally, as will

2006) (internal citations omitted). What is impossible to decipher from the
rambling allegations of Plaintiffs’ amended complaint is the supposed purpose of
the conspiracy. In other words, the “why” recognized by the Seventh Circuit as
vital to establishing a conspiracy claim is missing here.
Brokaw v. Mercer
County, 235 F.3d 1000, 1016 (7th Cir. 2000) (a plaintiff must identify the “who,
what, when, why and how” of a conspiracy).
Plaintiffs’ vague references to
religious discrimination and bias at the beginning of the complaint, which are
untied to any specific “charges” described later, do not shed light on the
matter, as Plaintiffs have directly admitted that they have been keeping their
“true” religious beliefs and background a “secret” for the past eighteen years
and that the defendants never assumed Mr. Fender was Jewish.

16

be further described below, a failure to comply with Rule 8 is only
one

of

several

problems

with

the

amended

complaint.

Thus,

Plaintiffs’ attempted federal claims brought pursuant to 42 U.S.C.
section 1983 are dismissed with prejudice.

That said, the court

declines to exercise supplemental jurisdiction over any possible
state law claims that may exist, so they are dismissed without
prejudice.

See Hansen v. Bd. of Trustees of Hamilton S.E. Sch.

Corp., 551 F.3d 599, 607 (7th Cir. 2008).
As noted, a failure to comply with Rule 8 is only one of
several problems with the amended complaint.

For example, the

state defendants are correct in pointing out that, to the extent
that any claims can be discerned, the Eleventh Amendment bars suit
against the State of Indiana, DCS, and the state employees in their
official capacities.

The Eleventh Amendment provides that the

“[j]udicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.”
XI.

U.S. Const. amend.

As noted by the Seventh Circuit, “[i]f properly raised, the

amendment bars actions in federal court against a state, state
agencies, or state officials acting in their official capacities.”
Council 31 of the Am. Fedn. of State, Cnty. and Mun. Emps., AFL-CIO
v. Quinn, 680 F.3d 875, 881-82 (7th Cir. 2012) (citing Ind. Prot.
& Advocacy Servs. v. Ind. Family & Soc. Servs. Admin., 603 F.3d
17

365, 370 (7th Cir. 2010).

The state defendants have properly

raised the defense in their motion, and it is clearly applicable to
the case at bar.

The state itself is entitled to sovereign

immunity, and, because DCS is considered an agency of the state, it
too is entitled to such immunity.

See Holmes v. Marion Cnty. Off.

of Fam. and Children, 349 F.3d 914, 919 (7th Cir. 2003) (“[C]ounty
offices of family and children in Indiana now must be classified as
part of the state for purposes of the eleventh amendment.”). As to
the employees of DCS (namely Ashley Peters, Sally Hernandez, and
Sarah Sailors), the Court notes that Plaintiffs have failed to
specify the capacity in which they are being sued.

Thus, they are

deemed to have been sued in their official capacities and those
claims must be dismissed as barred by the Eleventh Amendment as
well.

See Stevens v. Umsted, 131 F.3d 697, 706-07 (7th Cir. 1997)

(“In the absence of any express statement that the parties are
being sued in their individual capacities, an allegation that the
defendants were acting under color of law generally is construed as
a suit against the defendants in their official capacities only.
It is well established, of course, that any claim for damages under
42

U.S.C.

§

1983

against

state

officials

in

their

official

capacities must be dismissed as barred by the Eleventh Amendment.”)
(internal quotation marks and citations omitted).6
6
None of the exceptions for enjoining prospective action
violate federal law described in Ex parte Young, 209 U.S. 123
applicable, as Plaintiffs have simply listed their requested
“monetary,” “all defendants federally prosecuted (criminal law) by

18

that would
(1908) are
relief as
the proper

Next, as to Judge Kurtis G. Fouts, the Court notes that under
the doctrine of judicial immunity, state judges are entitled to
absolute immunity from damages for judicial acts regarding matters
within the court’s jurisdiction.

Stump v. Sparkman, 435 U.S. 349,

356-57 (1978) (“A judge will not be deprived of immunity because
the action he took was in error, was done maliciously, or was in
excess of his authority, but rather he will be subject to liability
only

when

he

jurisdiction’”).

has

acted

in

the

‘clear

absence

of

all

A judge is absolutely immune for his judicial

acts even if his exercise of authority is flawed by the commission
of grave procedural errors.

Id. at 359; Dellenbach v. Letsinger,

889 F.2d 755, 759 (7th Cir. 1989).

There is no indication that any

of the allegedly wrongful acts attributed to Judge Fouts in the
amended complaint, whether they can be deciphered to state a claim
or not, were outside of the scope of his jurisdiction or were not
performed within his judicial capacity.

Accordingly, Judge Fouts

is entitled to judicial immunity against Plaintiffs’ claims.7

authorities,” and an apology to the family by all involved.
7

(DE #53, p. 3.)

The state defendants also advance an argument that the Court lacks
jurisdiction because the Rooker-Feldman doctrine precludes Plaintiffs’ claims.
However, the Seventh Circuit has emphasized that the doctrine is a narrow bar to
federal court jurisdiction with “extremely limited applicability.” TruServ Corp.
v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005). The court in TruServ held
that the doctrine is inapplicable unless the state court proceedings in question
have ended. Id. at 591. Here, Plaintiffs claims were filed in federal court
were filed before the underlying state court proceedings had ended.

19

Similarly, as to Abigail Diener, whom Plaintiffs describe as
the “guardian ad litem/children’s lawyer,”8 the concept of absolute
immunity applies as well.

The Seventh Circuit has described

guardians ad litem as “arms of the court” who, like judges, are
deserving of special protection. Cooney v. Rossiter, 583 F.3d 967,
970 (7th Cir. 2009). This is because “[e]xperts asked by the court
to advise on what disposition will serve the best interests of a
child in a custody proceeding need absolute immunity in order to be
able to fulfill their obligations without the worry of intimidation
and harassment from dissatisfied parents.”

Id.

Thus, “Guardians

ad litem and court-appointed experts, including psychiatrists, are
absolutely immune from liability for damages when they act at the
court’s direction.”

Id.

As with Judge Fouts, to the extent that

the actions of Abigail Diener can be parsed from the amended
complaint, there is no indication that she acted outside of her
court-appointed duties.

Thus, she is also entitled to absolute

immunity.
For the remaining defendants, Plaintiffs’ amended complaint
does not adequately allege that they were acting under color of
law.

To state a claim for relief under 42 U.S.C. section 1983, “a

plaintiff must allege the violation of a right secured by the

8
This is how Ms. Diener is described in the attached paperwork. (DE #53,
p. 10.) On the section 1983 complaint form itself, in the section asking for the
defendant’s name, job title/government agency, and work address, Plaintiffs
simply list Abigail Diener as “Lawyer GAL.” (Id. at 2.)

20

Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of
state law.”

West v. Atkins, 487 U.S. 42, 48 (1988).

“The

traditional definition of acting under color of state law requires
that the defendant . . . have exercised power possessed by virtue
of state law and made possible only because the wrongdoer is
clothed with the authority of state law.”
Plaintiffs

describe

Patrick

attorney for Wayne Fender.”9

Manahan

as

Id. at 49.
the

“court

Here,

appointed

As pointed out by Mr. Manahan, he

undertook the representation of Wayne Fender through his private
law practice, and there is no allegation that he is a government
employee.

Although Mr. Manahan was appointed by the Court, the

relationship between he and Mr. Fender was identical to that of any
other lawyer and client.
undertaken

the

That is because, “[o]nce a lawyer has

representation

of

an

accused,

the

duties

and

obligations are the same whether the lawyer is privately retained,
appointed, or serving in a legal aid or defender program.”
County v. Dodson, 454 U.S. 312, 318 (1981).

Polk

When such an attorney

performs the traditional functions as counsel to a defendant in a
proceeding, he does not do so acting under color of state law.
at 325.

Id.

See also Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir.

9
This is how Mr. Manahan is described in the attached paperwork. (DE
#53, p. 24.) On the section 1983 complaint form itself, in the section asking
for the defendant’s name, job title/government agency, and work address,
Plaintiffs simply list Patrick Manahan as “Lawyer.” (Id. at 2.)

21

1975)

(“It

is

established

that

a

private

attorney,

while

participating in the trial of private state court action, is not
acting under color of state law.”)

To the extent that the actions

of Mr. Manahan can be deciphered from the amended complaint, they
are consistent with that of a private attorney, and there is no
showing of state action required for a section 1983 claim.10

As to

Analei Whitlock, a “pediatric nurse practioner (sic),”11 Plaintiffs
fail to identify any state or local government agency that employed
her.

For the “charges” alleged, Plaintiffs list actions taken by

Ms. Whitlock with regard to VDF’s medical care and reporting and
assert that “DCS had made Ms. Whitlock seem as if she can doctor
the children.”

This allegation is insufficient to allege that she

acted under color of state law.

See Natl. Collegiate Athletic

Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988) (state action exists
when an individual exercises power as possessed by virtue of state
law and made possible only because they were clothed with that
authority); see also Rangel v. Reynolds, 607 F. Supp. 2d 911, 927

10

See Snipes v. Palmer, 186 Fed. Appx. 674 (7th Cir. 2006) (“Even though
attorneys are licensed and regulated under state law, they are private actors who
do not function under color of law unless they work in concert with government
officials to deprive persons of their constitutional rights.
While [the
plaintiff] alleges that [the defendant] conspired with this court and Illinois
prison officials, his complaint says nothing about the timing, scope, and terms
of the purported agreement and therefore does not satisfy the minimal
requirements of notice pleading.”) (internal citations omitted).
See also
footnote number five, supra.

11

This is how Ms. Whitlock is described in the attached paperwork. (DE
#53, p. 12.) On the section 1983 complaint form itself, in the section asking
for the defendant’s name, job title/government agency, and work address,
Plaintiffs simply list Analei Whitlock as “Nurse.” (Id. at 2.)

22

(N.D. Ind. 2009) (“a physician and a pediatric center were not
state actors even when they contracted with the state and received
compensation in return for reporting their findings to the state’s
Department of Children and Family Services and testifying at
criminal proceedings”) (citing Evans v. Torres, No. 94 C 1078, 1996
WL 5319, at *7 (N.D. Ill. Jan 4, 1996)).

Because it has not been

adequately alleged that Ms. Whitlock is a state actor, the only way
she could be held liable under section 1983 is if she acted in
concert with state actors.

Rangel, 607 F.Supp.2d at 927.

And, as

described above, Plaintiffs’ prolix and rambling allegations of
unspecified

conspiracies

Similarly,

as

to

do

Samantha

not

provide

Dagenias,

that

necessary

“Bauer

link.

Caseworker

in

Monticello, IN,”12 Plaintiffs fail to allege that she was employed
by the state of Indiana or any of its agencies.

They refer to her

counseling/treatment of VDF but do not describe how she acted as an
agent of the state or adequately allege that she and any other
state official jointly collaborated to deny Plaintiffs of any
constitutional rights. See Cunningham v. Southlake Ctr. For Mental
Health, Inc., 924 F.2d 106, 107-08 (7th Cir. 1991) (counselor
worked as a mental health professional for a company that was
contracted with the county jail to perform services to the inmates;

12

This is how Ms. Dagenias is described in the attached paperwork. (DE
#53, p. 28.) On the section 1983 complaint form itself, in the section asking
for the defendant’s name, job title/government agency, and work address,
Plaintiffs simply list Samantha Dagenias as “Caseworker.” (Id. at 2.)

23

the court held that the private company neither took joint action
under color of law nor acted pursuant to the state’s delegation of
authority).

Finally,

as

to

Christin

Bramlage,

the

“foster

parent,”13 of VDF, she is not alleged to be an employee of any state
or local agencies.

To the extent that any actions of Ms. Bramlage

can be deciphered in the amended complaint, they appear to center
around her treatment of VDF and alleged failure to supply DCS with
accurate or proper reports. However, “foster parents, even if paid
by the state, are not state agents for constitutional purposes.”
K.H. Through Murphy v. Morgan, 914 F.2d 846, 852 (7th Cir. 1990);
McCrum v. Elkhart Cnty. Dept. of Pub. Welfare, 806 F. Supp. 203,
208 (N.D. Ind. 1992) (“Nonetheless, the defendants must have acted
under color of state law to be liable under § 1983, and the court
does not believe that foster parents act under color of state
law.”). And, as previously stated, Plaintiffs’ prolix and rambling
allegations

of

necessary link.

unspecified
See e.g.

conspiracies

do

not

provide

that

Rangel, 607 F.Supp.2d at 927.

Given the shortcomings outlined above, and in light of the
fact that Plaintiffs have already been given an opportunity to
conform their complaint to federal pleading standards, the Court
finds that any further attempt to allow Plaintiffs to amend their

13

This is how Ms. Bramlage is described in the attached paperwork. (DE
#53, p. 22.) On the section 1983 complaint form itself, in the section asking
for the defendant’s name, job title/government agency, and work address,
Plaintiffs simply list Christin Bramlage as “Foster Parent.” (Id. at 2.)

24

complaint would be unwarranted and futile.

Barry Aviation Inc. v.

Land O'Lakes Municipal Airport Comm’n, 377 F.3d 682, 687 (7th Cir.
2004)(“Unless it is certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted, the district
court should grant leave to amend after granting a motion to
dismiss.”).

CONCLUSION
For the foregoing reasons, the Motion to Dismiss Amended
Complaint by Defendant Abigail Diener (DE #72); Defendant, Analei
Whitlock’s Motion to Dismiss Plaintiffs’ Complaint Filed on April
28, 2015 (DE #76); State Defendants’ Motion to Dismiss Amended
Complaint (DE #85); and Defendant Patrick Manahan’s Motion to
Dismiss Plaintiffs’ Amended Complaint (DE #101) are GRANTED.

To

the extent that Plaintiffs have attempted to allege any federal
claims in the amended complaint, they are DISMISSED WITH PREJUDICE.
Any potential state law claims are DISMISSED WITHOUT PREJUDICE.
The clerk is DIRECTED to close this case.

DATED: March 29, 2016

/s/Rudy Lozano, Judge
United States District Court

25