Xiong et al v. Wagner et al

Filing 51

ORDER signed by Judge J P Stadtmueller on 2/29/12 as follows: denying 31 plaintiffs' Motion for Partial Summary Judgment; granting 32 defendants' Motion for Summary Judgment; and, DISMISSING this action. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VASHIR J. XIONG, LIA Y. XIONG, and
R. THOR, a minor by his next friends,
Plaintiffs,

Case No. 11-CV-288-JPS

v.
MICHAEL WAGNER, DUTCH LEYDEL,
MARIE FROH, and DANIEL CHIAPPETTA,

ORDER
Defendants.

On November 21, 2011, plaintiffs Vashir J. Xiong, Lia Y. Xiong,
(collectively, “Xiongs”) and R. Thor (“Thor”) filed a Motion for Partial
Summary Judgment (Docket #31) requesting judgment on two of five claims
in their complaint. Defendants Michael Wagner (“Wagner”), Dutch Leydel
(“Leydel”), Marie Froh (“Froh”), and Daniel Chiappetta (“Chiappetta”)
subsequently filed a Motion for Summary Judgment (Docket #32) requesting
judgment on all claims. The court will deny the plaintiffs’ motion and grant
the defendants’ motion.
The defendants are employees of the Racine County Human Services
Department (“RCHSD”) involved to various degrees with a child welfare
case involving the Xiongs and the taking of their son Thor into protective
custody. Wagner is a caseworker for RCHSD who initiated the original
investigation and made the initial decision to place Thor in protective
custody.

Leydel was Wagner’s supervisor at the time.

Froh was a

caseworker for RCHSD who later worked on the case. Chiappetta was
Froh’s supervisor. The Xiongs have alleged various civil rights violations in
their handling of the child welfare case.

“The court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991).
“Material facts” are those under the applicable substantive law that “might
affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over
“material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. In other words, in
determining whether a genuine issue of material fact exists, the court must
construe all reasonable inferences in favor of the non-movant. Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th
Cir. 1983).
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4).

Page 2 of 23

However, where the non-moving party “fails to make a showing
sufficient to establish the existence of an element essential to that party's
case,” there is no genuine dispute as to any material fact because a complete
failure of proof “necessarily renders all other facts immaterial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
1.

Facts
The following material facts are undisputed, except as noted. Thor is

a minor child who suffers cerebral palsy, global development delay, speech
and cognitive impairments, and is wheelchair-bound. (Defs.’ Proposed
Findings of Fact [hereinafter DPFF] ¶ 1) (Docket #33). Thor has also been
known to be difficult and to hit himself. (Shaw Aff. Exs. M, N) (Docket #31-5).
On March 23, 2009, the RCHSD received an intake referral from Thor’s
school stating that he exhibited abnormal bruising on his arm and left side
near the hip/leg area. (DPFF ¶ 4).1 Thor stated he did not remember how he
got the bruises, while other reports from teachers noted that Thor had said
his mother and stepfather purposefully caused the bruising. (DPFF ¶¶ 4-5).2

1

The Xiongs “dispute” a number of the defendants’ proposed facts but,
where those disputes are in fact merely statements of additional information, not
an actual dispute with the proposed fact, the court deems them admitted for
purposes of summary judgment. The Xiongs had an opportunity to submit their
own proposed facts, and that is the appropriate place to make clear any supposed
factual omissions. Proposed findings of fact, and responses, are not the place for
argument.
2

The Xiongs dispute that Thor’s statements should be interpreted as having
alleged the bruises were caused “purposefully” on the basis that people normally
cannot understand what Thor is saying. The Xiongs do not dispute that Thor in fact
responded with answers of “mom” and “dad” when asked who caused the bruises.
The touchstone, as will be discussed, is not whether the reporting party properly
understood Thor, but what information the caseworker had when making the
removal decision.

Page 3 of 23

In response, Wagner responded to the referral and began an investigation on
March 24, 2009. (DPFF ¶ 6). Wagner spoke with Thor’s brother P.Y. at
school, who stated that Thor’s parents would typically hit Thor as
punishment, including the previous Sunday when Vashir Xiong allegedly
picked Thor up and threw him onto the floor. (DPFF ¶ 6).3 P.Y. also stated
that his family left Thor alone at home, specifically for Lia Xiong’s birthday
when the family waited until Thor’s evening aide had left, gave Thor some
juice, barricaded him in the living room with furniture, and left for dinner.
(DPFF ¶ 7).4 P.Y. also indicated the family would leave Thor home alone
when visiting a cousin’s house. (DPFF ¶ 8).
Wagner also interviewed Thor at school. (DPFF ¶ 9). Thor, through
interpretation, told Wagner that Vashir Xiong caused the bruising on his arm,
and that after purposefully kicking his sister, Vashir Xiong either hit or threw
him on the floor. (DPFF ¶ 9); (Shaw Aff. Ex. H at 5) (Docket #31-5). Thor also
confirmed that he was left home alone on his mother’s birthday, as well as
times prior. (DPFF ¶ 10). Wagner then interviewed Thor’s older sister D.T.
at school. (DPFF ¶ 11). D.T. confirmed that Thor was sometimes left home
alone and also corroborated P.Y.’s account of how Thor would be left in the

3

Here, as well as elsewhere, the Xiongs “dispute” this fact by essentially
arguing that the statements are from Wagner’s notes rather than, presumably, an
affidavit from P.Y., and that Wagner in turn wrote his notes “with a slant.” The
Xiongs offer no evidence to even begin to substantiate that Wagner’s notes were
written to be purposely misleading. Thus, the court ignores these supposed
“disputes” and will refrain from repeatedly pointing this out.
4

Again, the Xiongs dispute this fact but only by attempting to dispute the
accuracy of P.Y.’s statement, not the fact that P.Y. relayed this information to
Wagner. Again, the analysis here focuses on the information held by Wagner at the
time of decision, not whether the Xiongs in fact acted as P.Y. stated.

Page 4 of 23

living room. (DPFF ¶ 12). D.T. also corroborated P.Y.’s statement that this
was the case on Lia Xiong’s birthday. (DPFF ¶ 12).
Later in the afternoon on March 24, 2009, Wagner, along with
Caledonia Police Officers, visited the Xiongs’ home. (DPFF ¶ 13). Vashir
Xiong confirmed that they had left Thor home alone for approximately two
hours the evening of Lia Xiong’s birthday. (DPFF ¶ 14). He confirmed P.Y.’s
and D.T.’s statements regarding the method in which Thor was restricted to
the living room while they were gone. (DPFF ¶ 14). The Xiongs have
testified that as of March 24, 2009, it had not occurred to them anything bad
could happen while leaving Thor home alone. (DPFF ¶ 15). As a result of
the investigation and home visit, Wagner, with the help of officers, took Thor
into protective custody and removed him from the Xiong household, placing
him in a foster home. (DPFF ¶ 16).
After Thor’s original removal on March 24, 2009, a state judge issued
a probable cause order for Thor’s temporary removal on March 26, 2009.
(DPFF ¶¶ 25-29). In the intervening time, Lia and Vashir Xiong gave
videotaped interviews in which they stated they had previously left Thor
home alone approximately two or three times, possibly four, between
January 1, 2009 and March 24, 2009. (DPFF ¶¶ 17-19).5 Subsequently, on
March 25, 2009, Dr. George Milonas examined Thor’s bruises. (DPFF ¶ 24).
Dr. Milonas could not determine the cause of the bruising to a degree of

5

Despite the Xiongs’ protestations that they were essentially misunderstood
in these interviews, they were conducted by police officers and relied upon by
RCHSD; again, as discussed later, it is not important whether the information
supposedly provided by the Xiongs was correct, but whether, on the basis of the
police reports, a reasonable caseworker could have believed that probable cause or
reasonable suspicion still existed at all points before the probable cause hearing.

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medical certainty, but concluded, based upon his being left home alone, that
Thor’s case was “definitively a case of neglect.” (DPFF ¶ 24).
After removing Thor, Wagner placed him in the foster home of
Melinda Kasch. (DPFF ¶ 16). On March 27, 2009, Ms. Kasch told Wagner she
could no longer care for Thor. (DPFF ¶ 30). That same day, arrangements
were made for Becky Collins (“Collins”), one of Thor’s former teachers, to
apply for a foster care license and assume his care; Thor was moved into
Collins’ care that day. (DPFF ¶ 31). Collins had in fact taken Thor to a movie
with his parents’ permission in the past. (DPFF ¶ 31).
On May 4, 2009, Collins contacted Wagner and informed him that
Thor had been injured. (DPFF ¶ 33). According to Wagner’s case notes,
Collins told him that Thor had released the brake on his wheelchair, rolled
into the street, and fell over in his chair. (DPFF ¶ 33). As a result, Collins
took Thor to the emergency room where he received three stitches near his
right eye. (DPFF ¶ 33). Thor also suffered minor bruising. (Sosnay Decl. Ex.
C, at 16) (Docket #35-3). On May 5, 2009, Wagner went to Collins’ home to
inquire about the accident. (DPFF ¶ 35). According to Collins, she had been
cutting the grass and positioned Thor in the driveway facing the garage.
(DPFF ¶ 35). She told Wagner that her husband was also in the driveway
getting ready to go golfing. (DPFF ¶ 35). Collins stated that her husband
went inside for a short period and when he returned, Thor had rolled down
into the drainage system at the end of the driveway, in which there was a
metal pipe. (DPFF ¶ 35) (Sosnay Decl. Ex. C, at 14). In their response to the
defendants’ proposed facts, the Xiongs dispute only whether Thor released
the wheelchair brake on his own, or whether it was never set in the first

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place. They offer no evidentiary support for this, however, arguing only that
the Collinses were the only witnesses when Thor was injured.
Previously, Collins had informed Wagner that because of the difficulty
in caring for Thor, she would like to end his placement with her by June 3,
2009, which would see Thor through the school year. (Shaw Aff. Ex. S)
(Docket #31-5). Cindy and Jeb Lucht agreed to foster Thor after Collins, but
indicated they needed additional equipment prior to taking him. (DPFF
¶ 39). As a result, Wagner temporarily placed Thor in Lakeview Specialty
Hospital & Rehab (“Lakeview”) in Waterford, Wisconsin. (DPFF ¶ 39). Thor
was transferred to Lakeview on June 1, 2009. (DPFF ¶ 40). On June 19, 2009,
after the Xiongs’ attorney informed him, Wagner contacted Thor’s case
manager at Lakeview, Sue Weller (“Weller”), to inquire about an incident
involving Thor falling from his bed. (DPFF ¶ 42). Weller responded that she
was unaware of any accidents, but would check the logs. (DPFF ¶ 43).
Weller also noted that when Thor first arrived he had been placed in a bed
that did not lower all the way to the floor and that Thor “got out to the
floor.” (DPFF ¶ 43); (Sosnay Decl. Ex. C, at 4). She also indicated that mats
had been placed on the floor prior to him getting out in order to prevent him
from getting hurt. (Sosnay Decl. Ex. C, at 4).6 After checking the logs, Weller
contacted Wagner on July 6, 2009, and informed him that Thor had indeed
fallen from his bed on June 1, 2009, and hit his head. (DPFF ¶ 44). Staff

6

As is common by this point, the Xiongs dispute too whether the mats were
placed on the floor prior to Thor’s “getting out” of bed. Despite once more offering
no evidence to support their “dispute,” the case notes (here a direct copy of the
email from Weller) clearly read such that the mats were placed prior to this event.
(Sosnay Decl. Ex. C, at 4) (“I know the first night he had trouble sleeping as he was
given a hospital bed that didn’t lower all the way to the floor and he got out to the
floor. We had mats on the floor to prevent him getting hurt.”).

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responded, assessed Thor, and applied ice for a bump on the head. (DPFF
¶ 44). The staff performed neurological checks on Thor the rest of the
evening, and the next day, June 2, 2009, Dr. Majeed was called; he had no
new orders. (DPFF ¶ 44); (Sosnay Decl. Ex. C, at 3). Weller also noted two
other days on which Thor “flipped, slipped and rolled himself out of bed,”
but with no injury. (DPFF ¶ 44). Lakeview’s actual logs indicate that Thor
was also “placed back into his bed two times” on a third day. (Shaw Decl.
Ex. E) (Docket #43).7 That log does not indicate that Thor suffered any injury
either. (Shaw Decl. Ex. E). On August 7, 2009, Thor was transferred from
Lakeview to the Lucht’s foster home. (DPFF ¶ 47).
Prior to 2009, Wagner and the Xiongs had previous contact related to
Thor. Wagner was also involved in the Xiongs’ 2005 voluntary petition to the
state seeking protective services for Thor. (Pl.’s Proposed Findings of Fact
[hereinafter PPFF] ¶ 9) (Docket #37); (Marion Koller Shaw Aff. Ex. 1, at 3:254:4:13) (Docket #31-6). On March 22, 2005, roughly four years prior to the
instant events, Wagner wrote a letter to Lia Xiong that stated, inter alia, “I
received a message from your husband on 3/21/2005, and I could not
understand anything he said.” (PPFF ¶ 10). On April 6, 2005, Wagner wrote
a further letter to Lia Xiong stating, inter alia, “I returned your message, but
when I called back the person that answered the phone said I had called the
wrong number. I believe the person was your mother.” (PPFF ¶ 11). In an

7

The Xiongs, in pointing this out, also “dispute” Weller’s statement, arguing
that Thor had fallen six times, rather than “just three times as Weller implied.”
Weller in fact noted two additional days (three total) in which Thor had in some
fashion gotten himself out of bed, but never indicated how many total times he had
fallen. (Sosnay Decl. Ex. C, at 3). She only omitted the day on which Thor was
“placed back into his bed” twice.

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April 18, 2005 case note, Wagner wrote that he spoke by phone with Janet
Ovel (“Ovel”) at Family Support Service advising her of the Xiongs’
situation; Ovel told Wagner they would provide necessary service and “if
there is a problem with the parents following through she will notify
[RCHSD].” (Shaw Aff. Ex. L) (Docket #31-5); (see also Marion Koller Shaw
Aff. Ex. 1, at 11:23-12:15). The note continues, “[b]oth [Wagner and Ovel] feel
the family attempting to manipulate system via communication between
[RCHSD] and [Family Support].” (Shaw Aff. Ex. L).
2.

Discussion
The Xiongs allege five deprivations of their civil rights under 42 U.S.C.

§ 1983, which makes such deprivations actionable. They allege violation of
Thor’s Fourth Amendment right to be free from unreasonable seizure,8 the
Xiongs’ Fourteenth Amendment due process right to familial relations,
Thor’s Fourteenth Amendment right to bodily security and integrity, all
plaintiffs’ Fourteenth Amendment rights to equal protection, and that the
defendants conspired to deprive the plaintiffs of their equal protection rights.
The plaintiffs have moved for summary judgment only on the claims
regarding the Xiongs’ and Thor’s right to familial relations and Thor’s right
to bodily security and integrity. The defendants have moved for judgment
as to all claims. Because the defendants are entitled to qualified immunity on
most claims, and the Xiongs fail to offer sufficient evidence to establish a
genuine dispute on the others, the court will grant judgment to the
defendants on all claims.

8

Defendants point out, and plaintiffs later implicitly agree, that Thor’s claim,
though pled under the Fourteenth Amendment, is properly analyzed under the
Fourth Amendment.

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By statute, any person who “under color of law” deprives a citizen of
the United States of any right secured by the Constitution may be held civilly
liable to the injured party. 42 U.S.C. § 1983. However, qualified immunity
protects government actors from liability “where their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have been aware.” Hernandez ex rel. Hernandez v.
Foster, 657 F.3d 463, 473 (7th Cir. 2011). A court considers both: “(1) whether
the plaintiff’s allegations show that the defendant violated a constitutional
right, and (2) whether that right was ‘clearly established’ at the time of the
defendant’s conduct.” Id. Either prong may be analyzed first. Id. A right is
“clearly established” if “every reasonable official would have understood
that what he is doing violates that right.” Id. at 473-74. Thus, in analyzing
the second prong of immunity, the court looks not to satisfaction of the
underlying rule, but rather to whether a reasonable official in the same
position could have believed they satisfied the underlying rule. See Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (stating officials would be immune if “a
reasonable officer could have believed [Bryant’s arrest] to be lawful, in light
of clearly established law and the information the [arresting] officers
possessed”); see also Hernandez, 657 F.3d at 475 (stating standard as whether
a reasonable social worker could have believed removal of child from home
to be lawful). The touchstone is the reasonableness of the action, not whether
it was ultimately correct. Hunter, 502 U.S. at 228-29 (stating agents would be
entitled to immunity because decision was reasonable, even if it had
ultimately been mistaken). The determination of such reasonableness, and
thus immunity, is normally for the court, not the jury. Id. at 228. With these
rules in mind, the court proceeds to discuss each claim in turn.
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2.1

Thor’s Seizure

The court holds that, regardless of whether probable cause in fact
existed, all defendants are, or would be,9 protected by qualified immunity.
The Fourth Amendment prohibition on unreasonable seizures applies to the
removal of children from a home by child welfare workers. See Hernandez,
657 F.3d at 474. “[A] seizure is reasonable if it is pursuant to a court order,
if it is supported by probable cause, or if it is justified by exigent
circumstances, meaning that state officers ‘have reason to believe that life or
limb is in immediate jeopardy.’” Id. Probable cause, in the child welfare
context, asks whether a prudent caseworker, with the information known at
the time of action, could have believed the child “faced an immediate threat
of abuse based on those facts.” Id. at 475. “[S]ubjective beliefs are largely
irrelevant to the probable cause inquiry.” Siliven v. Ind. Dep’t of Child Servs.,
635 F.3d 921, 927 (7th Cir. 2011).
The cross-section of the qualified immunity analysis with the probable
cause standard required to effect a lawful protective removal of a child from
his or her home requires the court to examine whether a reasonable RCHSD
caseworker could have believed probable cause existed to remove Thor,
regardless of whether probable cause did in fact exist.

Despite the

protestations of the Xiongs as to the accuracy of statements made regarding
Thor’s treatment at home, given the information that was relayed to Wagner,
a reasonable caseworker certainly could have believed that he was in threat
of immediate abuse or neglect. Both Thor and his siblings told Wagner
9

There is an issue as to whether certain defendants could even be held liable
if qualified immunity did not apply. Because qualified immunity would apply in
the event of any actual violation, the court will not address the merits as to each
defendant.

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corroborative stories about Thor—a disabled child that cannot care for
himself—being left home alone without supervision multiple times. In fact,
the Xiongs’ statements corroborated this.

The children also described

physical abuse of Thor that made it appear regular and, therefore, an
ongoing and immediate threat.
The Xiongs make a series of arguments that never address the
standard in question. Variously, they argue that the removal of Thor was
itself unreasonable, but that question turns on whether probable cause
existed. The scope of inquiry, however, is only into whether a reasonable
caseworker could have believed that probable cause existed. The court has
concluded that was the case. The Xiongs also argue that no imminent danger
existed to justify removing Thor from the home. To the extent this argument
is aimed at the exigent circumstances justification for removal, the court has
not relied on that standard. To the extent it is aimed at the “immediate threat
of abuse” standard within probable cause, the court has already found a
reasonable caseworker could have believed an immediate threat existed. The
Xiongs argue that, though Thor had been left home on Lia Xiong’s birthday,
no injuries had occurred, and that, at the time of removal, Thor’s family was
at home. For one, a lack of injury on one occasion does not show a lack of
threat.10 For another, the then-current presence of Thor’s family does not
dissipate the threat of him being left home alone later, considering that it had
occurred in the past. Moreover, the Xiongs do not address the threat of
physical abuse.
10

That would be like arguing that a child’s failure to set a house on fire when
given matches in the past means that leaving matches out for a child to play with
is never an immediate threat of fire.

Page 12 of 23

The Xiongs also argue that the defendants could have secured an ex
parte order to remove Thor. But that was not required. As the Xiong’s cite
themselves, probable cause or exigent circumstances may also justify
removal when there is no warrant. The Xiongs also complain that no effort
was made to place Thor with other nearby family members, but that is
irrelevant in assessing whether a reasonable caseworker could have believed
probable cause existed for removal. It is similarly irrelevant that a state
judge may have found that the RCHSD failed to make reasonable effort to
prevent removal, (Sosnay Decl. Ex. F, at 1, 5) (Docket #35-15), and did find on
the record that the RCHSD failed to make reasonable effort to return Thor to
his home (Shaw Aff. Ex. D, at 50). The actual finding of reasonable efforts
after the fact does not bear upon whether, at the time, a reasonable
caseworker could have believed probable cause existed for removal, and a
failure to make reasonable effort to return Thor has absolutely no connection
to the original removal decision.
Finally, the Xiongs attempt to distinguish Hernandez by painting the
standard for qualified immunity as one in which the official must be
confused in the face of a complex law. That is not the standard. The
standard is whether a person could have reasonably believed probable cause
existed. Confusion of the type argued by the Xiongs may bear on such an
inquiry, but it is not required. The Xiongs also take issue with the fact that
Hernandez did not refer to neglect, but rather only abuse. But if neglect is
sufficient for removal, then probable cause applies equally. In fact, the
portion of Hernandez cited by the Xiongs for the proposition that neglect is
not a sufficient reason for removal is an incorrect reading. The court wrote
that the general danger of future neglect is insufficient; rather, the danger
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must be imminent. 657 F.3d at 486. The court has so found. And in any
event, the evidence of potential abuse as well was sufficient to support a
reasonable belief that probable cause for removal existed. The Xiongs also
make various arguments as to racial animus being the actual motivation
behind the removal decision, but probable cause, and thus the overlying
qualified immunity analysis, is an objective test.
As such, on the basis of the bruises, the statements made by Thor and
his siblings, and even some confirmation by the Xiongs themselves, the court
finds that a reasonable caseworker could have believed that probable cause
existed to remove Thor as of March 24, 2009. Nothing suggests that the
defendants should have reasonably known their conduct violated Thor’s
Fourth Amendment rights. Therefore, the defendants, to the extent they
could be otherwise held liable, are shielded by qualified immunity on this
claim.
2.2

Right to Familial Relations and Continued Withholding

Similarly, the defendants, to the extent they would otherwise be liable,
are shielded by qualified immunity from liability for the alleged violation of
the Fourteenth Amendment right to familial integrity. The Fourteenth
Amendment’s conception of liberty includes the right to associate with
relatives. Mayo v. Lane, 867 F.2d 374, 375 (7th Cir. 1989). Thus, substantive
due process includes the right to familial relations. Brokaw v. Mercer Cnty.,
235 F.3d 1000, 1018 (7th Cir. 2000). Balanced as that right is against the
interest of the state in protecting children, removal satisfies substantive due
process only where the state “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.” Id. at 1019. Reasonable suspicion “requires

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more than a hunch but less than probable cause.” Hernandez, 657 F.3d at 478.
Here, the cross-section of qualified immunity and substantive due process in
this context requires the court to determine whether a reasonable caseworker
could have held a reasonable suspicion of abuse or believed imminent
danger of abuse existed. As this standard is less than that of probable cause,
and having already found qualified immunity on that standard, the same
conclusion applies here.
However, in the case of continued withholding of a minor, where
probable cause or reasonable suspicion dissipate, continued withholding
becomes a constitutional violation. Id. at 480. Thus, the qualified immunity
analysis is likewise interested in whether a reasonable caseworker would
have understood that probable cause or reasonable suspicion had dissipated,
making their actions a constitutional violation. Id. Because a state judge
issued a probable cause order validating Thor’s temporary removal, the
analysis focuses on the time between initial removal and the court order
authorizing removal. In light of the Xiongs’ post-removal statements as to
leaving Thor home alone, as well as the medical report concluding Thor’s
was a case of neglect, the court concludes a reasonable caseworker could
have believed that probable cause or reasonable suspicion continued to exist
after Thor’s removal and prior to the probable cause hearing. None of these
subsequent events would have dissipated any reasonably held belief that
probable cause to remove Thor existed. The defendants are entitled to
qualified immunity.
2.3

Right to Bodily Security and Integrity

Similarly, qualified immunity shields the defendants from liability for
any potential violation of Thor’s right to bodily security and integrity. Here,
Page 15 of 23

the plaintiffs’ primary argument relates to whether Thor’s right was violated
at various times because of his placement in particular foster homes.
However, they also raise a claim for the first time on summary judgment
regarding the scope of Wagner’s physical examination of Thor prior to his
removal.
2.3.1

Foster Placements

The Fourteenth Amendment does not ordinarily require the state to
protect an individual from private injury; however, a duty arises where the
state creates or substantially contributes to creation of circumstances
rendering an individual more vulnerable to danger. Waubanascum v. Shawano
Cnty., 416 F.3d 658, 665 (7th Cir. 2005). This may occur where the state has
a “special relationship” with the individual, or where it affirmatively places
the individual in a position of danger. Id. Thus, in the context of foster care,
“a child has a constitutional right to be placed into a safe and secure foster
home.” Id. The measure of satisfaction is a modified deliberate indifference
standard. Id. at 666. The state violates this right only where it has “actual
knowledge or suspicion of the risk of harm the child may suffer while in
foster care.” Id. at 666-67. More specifically, the state is “liable only if [it]
violated ‘the right of a child in state custody not to be handed over by state
officers to a foster parent or other custodian…whom the state knows or suspects
to be a child abuser.’” Id. at 665 (quoting K.H. ex rel. Murphy v. Morgan, 914
F.2d 846, 852 (7th Cir. 1990)) (emphasis in original).
At issue here are the injuries allegedly suffered at two separate fostercare placements after Thor’s removal from the Xiongs’ household: with
Collins and with Lakeview. Nothing about the solitary incident with Collins,
even giving credence to the Xiongs’ unsupported assertion that Collins may
Page 16 of 23

never have set Thor’s wheelchair brakes at all, is enough that a reasonable
caseworker would have gained knowledge or suspicion of a risk of harm
from Thor’s continued placement with Collins. The Fourteenth Amendment
protects only from abuse or neglect. It does not contemplate protection from
accidents; if it did, no state foster placement would ever satisfy the
Constitution; children, simply put, are prone to accident. Even if Collins had
not set Thor’s wheelchair brake, the Xiongs point to no evidence to establish
it was purposefully done with the intent to harm Thor or with such disregard
as to rise to the level of abuse or neglect. Without any such showing, the
court simply cannot conclude that a reasonable caseworker would have
developed a suspicion that Collins was abusing or neglecting Thor, or would
abuse or neglect him, and that continuing his placement with her would
violate Thor’s right to bodily security and integrity.
As to Thor’s placement at Lakeview, again, none of the facts viewed
in the light most favorable to the plaintiffs establish that a reasonable
caseworker would have known or suspected that Lakeview abused or
neglected children.11 Wagner received one report from the Xiongs’ attorney
that Thor had fallen out of bed and injured himself. No one ever alleged his
injury was the result of abuse or neglect. After inquiring with Lakeview, the
evidence appeared to substantiate that Thor’s injuries were not caused
purposefully by Lakeview staff, unless everyone involved in Thor’s care was
orchestrating a coverup. Under these facts, a reasonable caseworker could

11

The Xiongs state that “Lakeview had previously been investigated by
RCHSD,” as if to imply that the department suspected it of child abuse or neglect,
but that fact is supported only by Leydel’s statement that the department does
investigate foster homes and that Lakeview had been investigated “when
warranted.” (Marion Koller Shaw Aff. Ex. 3, at 113:21-23) (Docket #31-6).

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have believed that leaving Thor at Lakeview was not a violation of his right
to bodily security and integrity. In other words, a reasonable caseworker
could be confronted with these facts without developing a suspicion that
Thor was being abused or neglected.
The Xiongs make a series of arguments that are often immaterial to the
analysis at hand, and ultimately express the belief that Thor’s foster
placements were at least as potentially dangerous as the situation from which
he was removed at the Xiongs’ household. Presumably, this argument
implies that if such was the case, the defendants should likewise have known
or suspected that Collins and Lakeview were child abusers. That argument
simply ignores the fact that the initial removal was based upon referrals
indicating active physical abuse and neglect, whereas the incidents at Collins’
foster home and Lakeview establish little more than the mere possibility that
Thor could have been abused or neglected, assuming everyone involved was
lying. This possibility was further set off by the knowledge that Thor is
difficult and has been known to hit himself. In sum, a reasonable caseworker
could have believed Thor’s placements with Collins and Lakeview were not
violative of his right to bodily security and integrity and, therefore, the
defendants are shielded by qualified immunity.
2.3.2

Examination of Thor’s Bruising

The Xiongs also challenge Wagner’s examination of Thor’s pubic area
when investigating the bruises to his arm and leg/hip. They argue that this
too violated Thor’s right to bodily security and integrity. Notice pleading
requires a complaint to “fairly notif[y] a defendant of matters sought to be
litigated.” Conner v. Ill. Dep’t of Natural Res., 413 F.3d 675, 679 (7th Cir. 2005).
Thus, it is well settled that the failure to plead a claim and to raise it for the

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first time on summary judgment constitutes a waiver. Abuelyaman v. Ill. State
Univ., No. 10-2926, 2011 WL 6188446, at *11 (7th Cir. Dec. 13, 2011)
(upholding district court’s rejection of new, fourth theory of discrimination
presented only in opposition to summary judgment); Andree v. Ashland Cnty.,
818 F.2d 1306, 1314 n.11 (7th Cir. 1987) (upholding exclusion of claim raised
for first time in opposition to summary judgment because “Plaintiffs’
complaint did not give fair warning of the theory”). The Xiongs made no
mention of this theory of Fourteenth Amendment violation at any point prior
to summary judgment, thereby depriving the defendants of fair notice.
While the Xiongs were not required to lay out every specific fact and legal
theory, the gravamen of both the complaint and amended complaint clearly
indicated only that Thor’s right to bodily security and integrity was violated
through his various foster placements after removal. (See, e.g., Am. Compl.
¶ 147) (Docket #10) (“Thor, while in foster care, was deprived of his
substantive due process right to personal security and bodily integrity”). To
hold that the amended complaint gave sufficient notice of a claim that
Wagner exceeded the scope of permissible examination, would be to hold
that merely alleging the violation of the Fourteenth Amendment gives
sufficient notice to a defendant of any possible violation conceivable under
the amendment. Even if the facts regarding examination were not learned
until after the amended complaint, the Xiongs made no further attempt to

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amend after commencing discovery. Thus, the court finds this theory of
violation waived and will not consider the merits.12
2.4

All Plaintiffs’ Rights to Equal Protection

Next, because the plaintiffs fail to offer sufficient evidence to establish
the existence of any racial animus, the defendants are also entitled to
judgment on the equal protection claim. To show violation of the Equal
Protection Clause of the Fourteenth Amendment, a plaintiff “must establish
that a state actor has treated him differently from persons of a different race
and that the actor did so purposefully.” Billings v. Madison Metro. Sch. Dist.,
259 F.3d 807, 812 (7th Cir. 2001).
Aside from the two letters and one case note from 2005, four years
prior to the removal events, the Xiongs otherwise rely on the earlier-recited
2009 facts to establish that Wagner held a racial animus against them because
of their Hmong ancestry, and that he treated the Xiongs disparately from
people of other races. The Xiongs’ argument thus appears to boil down to:
(1) Wagner was racially biased against the Xiongs; and (2a) Wagner acted on
this bias by violating the Xiongs’ and Thor’s Fourth and Fourteenth
Amendment rights already discussed above; or (2b) Wagner acted on this
bias by failing to take protective actions against Collins or Lakeview, thus
treating the plaintiffs disparately. First, even viewing the facts in the light
most favorable to the Xiongs, that is, drawing all reasonable inferences in their
favor, a reasonable jury could not find that Wagner held any racial animus

12

Even so, the court notes that the Xiongs provide only the barest legal
precedent to support the argument that Wagner committed a violation during his
examination and photographing, and the court would likely agree with the
defendants that the cited cases do not in fact support the argument under the
circumstances here.

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toward the Xiongs or Thor. Other than counsel’s hyperbolic story concocted
from the basis of two four-year-old letters and a case note, no reasonable
juror could view Wagner’s 2005 statements as indicating an “overtly rude”
and “racist attitude” on Wagner’s part. While inferences are certainly a
permissible way to establish such a bias, such an inference here would simply
be unreasonable.
As to the actions of Wagner throughout the removal and foster
placement, neither could a reasonable juror draw the inference of bias from
those events without more. For one, the court has found that a reasonable
caseworker could have believed that his or her actions in removing and
placing Thor in foster care did not violate either the Xiongs’ or Thor’s
constitutional rights. That conclusion alone forecloses a genuine dispute as
to racial animus. It would be unreasonable to infer unconstitutional motive
solely from activities that a reasonable person could have believed were
constitutional. The other possibility of showing a dispute as to Wagner’s
alleged animus is that he took the (otherwise reasonably-believed-to-be
constitutional) action against the Xiongs while failing to take the same action
against Collins or Lakeview. However, that would require the circumstances
between the Xiongs and Collins and Lakeview to be reasonably comparable.
They are not. As discussed earlier, Wagner acted to remove Thor upon direct
referrals

indicating

abuse

and neglect,

and corroboration

from

children—including Thor—living in the Xiong household, as well as the
Xiongs’ statements. The facts surrounding Thor’s injuries at Collins’ home
and at Lakeview involved only the possible inference of abuse if one
presumed that everyone involved was lying. There were no direct referrals
or corroborations sufficient to establish the same belief that abuse or neglect

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would occur as did for the Xiongs. The situations are not comparable, and
thus, Wagner’s different actions in two distinguishable scenarios does not
allow a reasonable inference of racial animus simply because the Xiongs are
Hmong and Collins and the Lakeview employees are not.13 Alternatively,
because the court already concluded that a reasonable person could have
believed that leaving Thor in either location was not a violation of his right
to bodily security and integrity, it would be unreasonable to infer racial
animus in leaving him there while having removed him from the Xiongs’
household. Thus, despite whether the Xiongs can even establish they were
in fact treated differently than (and unequally from) other citizens, they have
not offered sufficient evidence to establish a dispute as to whether any such
disparate treatment was done on the basis of their race. For that reason
alone, the plaintiffs’ claims under the equal protection doctrine fail.
2.5

Conspiracy to Violate Constitutional Rights

Finally, because the court finds the defendants are entitled to
summary judgment on the other alleged constitutional violations, they are
likewise entitled to judgment on the conspiracy claim. A party may recover
damages for injury or deprivation of equal protection of the laws when
committed by two or more persons conspiring with the purpose to so
deprive the plaintiff. 42 U.S.C. § 1985(3). This requires:
(1) the existence of a conspiracy, (2) a purpose of depriving a
person or class of persons of equal protection of the laws, (3) an
act in furtherance of the alleged conspiracy, and (4) an injury
to person or property or a deprivation of a right or privilege
granted to U.S. citizens.

13

Moreover, as the defendants point out, the Xiongs offer no evidence to
establish the ethnicity of the Lakeview employees caring for Thor.

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Brokaw, 235 F.3d at 1024. The purpose element requires showing a racial,
ethnic, or other class-based “invidiously discriminatory animus” behind the
action. Id. Because conspiracy requires an invidious class-based purpose of
depriving a person of equal protection, and because the Xiongs offered
insufficient evidence to support such a purpose, i.e., they cannot establish a
racial animus, the conspiracy claim necessarily falls along with the equal
protection claim. Thus, the court will grant the defendants judgment on this
claim as well.
Accordingly,
IT IS ORDERED that the plaintiffs’ Motion for Partial Summary
Judgment (Docket #31) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the defendants’ Motion for
Summary Judgment (Docket #32) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED.
The clerk of court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of February, 2012.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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