Nicolai v. State of Wisconsin et al
ORDER signed by Chief Judge Pamela Pepper on 7/15/2021. 5 Judge Joseph's report and recommendation ADOPTED IN PART. Defendants DCF Department of Children and Families and State of Wisconsin DISMISSED. Plaintiff to file amended complaint by end of day 8/20/2021; failure to file by deadline will result in dismissal. (cc: all counsel and mailed to Jamie Lynn Nicolai)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMIE LYNN NICOLAI,
Case No. 21-cv-414-pp
STATE OF WISCONSIN,
DCF DEPARTMENT OF CHILDREN AND FAMILIES,
and CPS—CHILDREN'S HOSPITAL,
ORDER ADOPTING IN PART RECOMMENDATION (DKT. NO. 5) AND
ALLOWING PLAINTIFF TO FILE AN AMENDED COMPLAINT
The plaintiff, who is representing herself without the assistance of a
lawyer, filed a complaint on April 1, 2021, after the defendants removed her
children from her custody and allegedly refused to return them to her custody
after she was released from prison. Dkt. No. 1. Magistrate Judge Nancy Joseph
granted the plaintiff’s motion for leave to proceed without prepaying the filing
fee, screened the complaint and issued a recommendation that this court
dismiss the complaint for lack of subject matter jurisdiction and/or failure to
state a claim. Dkt. No. 5. Fifteen days after Judge Joseph issued the
recommendation, the plaintiff filed her objection to the recommendation. Dkt.
Standard of Review
If a party properly objects to any portion of the recommendation, the
court must review those portions de novo. Fed. R. Civ. P. 72(b). Otherwise, the
court reviews the recommendation for clear error. Fed. R. Civ. P. 72(a); see
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The recommendation explained to the plaintiff that she had fourteen
days to file a written objection from the date of service of the recommendation
or order. The court received the plaintiff’s written objection on May 7, 2021, the
fifteenth day after Judge Joseph’s recommendation was docketed—arguably
within fourteen days from the date of service. The court will review the
objection under the de novo standard of review.
Complaint (Dkt. No. 1)
In her complaint, the plaintiff named the “State of Wisconsin, DCF—
Department of Children and Families and CPS—Children’s Hospital.” Dkt. No.
1. Her statement of claim consists of the following paragraph:
Letter of injustice and grievance to the U.S. Supreme Court district
1: Let it be known to all that I, Jamie Lynn Nicolai, explicitly reserves
all my rights pursuant to UCC 1-308 (which was formerly UCC 1207) Further let all be advised that all actions commenced against
me may be in violation of USC TITLE 18 > PART 1 > CHAPTER 13 >
242 Deprivation of rights under the color of law USC TITLE 18 >
PART 1 > CHAPTER 13 > 241 Conspiracy against rights (against
family members) wherefore all have been given proper and sufficient
legal notice and 4 pages of documentation as notice and notification
of reservation of rights UCC 1-308/1-207 as a public
communication to all including successors and assigns was certified
mailed on 3/5/2021. Certified mail receipt was mailed USPS as
follows: WI Attorney General Josh Kohl 70200640000040564291,
WI Governor Tony Evers 70200640000040564284, District Attorney
VP Philips Children’s Court 70200640000040564277, CPS
Children’s Hospital 70200640000040564260, DCF Department of
Children and Families 70200640000040564256.
Dkt. No. 1 at 3. The plaintiff seeks $100 million dollars “working in arbitrary
law against chapter 48 child and family law.” Id.
The plaintiff attached a five-page document to her complaint, which
includes her affidavit and copies of her certified mail receipts. Dkt. No. 1-1. The
affidavit, written in both the first person and third person, indicates that the
plaintiff is alleging that her children were taken from her during an illegal
search and seizure, because their mother—the plaintiff—had “open criminal
cases.” Dkt. No. 1-1 at 2, 3. The plaintiff says that the judge, Judge Grady, was
aware of that her children were taken, but removed herself because of “judicial
misconduct.” Id. According to the plaintiff, the defendants attempted to prove
that she was “non-compos mentis” but she has no mental or emotional health
issues and “has not been found incapable of representation of [herself] or [her]
children’s rights.” Id. She asserts that, in the past, her counsel has not
represented her rights or filed motions and she does not want to be represented
by the public defender. Id. The plaintiff claims she is a few credits shy of a
master’s degree from Mount Mary University. Id.
The plaintiff feels the whole process “has been fraud.” Id. While she
acknowledges receiving an apology from ADA William Pipp, she says that one
apology won’t “cut it.” Id. She wants the “Walls children placed with their
biological family.” Id. The plaintiff takes issue with the visitations allowed
under the order and CPS’s refusal to clear her residence for unsupervised
visits. Id. She adds that even though the children’s father is no longer
incarcerated, works full-time and completed the parenting, anger, drug and
behavior modification classes, he has been denied visits. Id. at 3. The plaintiff
insists the children want to be reunited with all the family members and that
the defendants’ actions are both illegal and cruel. Id.
The plaintiff remained incarcerated until February 9, 2021. Id. According
to the plaintiff, the custody proceedings had ten justices, removed the children
outside of the limits of the law and involved threats of bail jumping. Id.
Finally, the plaintiff has safety concerns regarding the children’s current
placement. Id. at 4. She says the children have medical issues that are not
being addressed and that the foster parent(s) are not taking one of the children
to see a therapist. Id. The social worker at Children’s Hospital, who is not
named as a defendant, has not responded to the plaintiff. Id. The plaintiff says
that CPS shows up to meetings with false documentation. Id. She alleges that
TPR and CPS involvement should be sealed, records removed, and the children
returned to their family. Id.
The certified mail receipts indicate that the plaintiff sent something to
the DCF Client Rights Specialist, the Attorney General, CPS Children’s Hospital
(Jamie Wertz) and Governor Evers on March 5, 2021. Id. at 5. The plaintiff filed
this case on April 1, 2021. Dkt. No. 1.
Recommendation (Dkt. No. 7)
Judge Joseph first explained that the sections of the code cited by the
plaintiff, 18 U.S.C. §§241 and 242, do not afford a private right of action. Dkt.
No. 5 at 3. She therefore construed the complaint as having been brought
under 42 U.S.C. §1983. Id. at 4.
Next, Judge Joseph focused on the three defendants that the plaintiff
had sued: (1) the State of Wisconsin; (2) the DCF-Department of Children and
Families; and (3) CPS-Children’s Hospital. As Judge Joseph explained, neither
the State of Wisconsin nor the Department of Children and Families are suable
entities under §1983. Id. at 4 (citing Thomas v. Illinois, 697 F.3d 612, 613 (7th
Cir. 2012); Bradley v. Wis. Dep’t of Child & Fams., 528 F. App’x 680, 681 (7th
Turning to the remaining defendant, Judge Joseph acknowledged that
CPS-Children’s Hospital appeared to be a “private partner agency providing
ongoing case management, foster parent licensing and intensive in-home
services to the Department of Children and Families’ Child Protective Services
unit.” Id. at 4. Judge Joseph explained that, while the plaintiff alleges that
CPS-Children’s Hospital made up false allegations and provided false
testimony, the plaintiff had not alleged that this defendant prevented her from
accessing the courts or challenging the termination of rights. Id. at 5.
To the extent the plaintiff was challenging the judgment of the state court
in her family court proceedings, Judge Joseph explained that the Rooker
Feldman doctrine prevents the district court from reviewing a state court
judgment Id. She explained that the plaintiff must appeal through the state
courts with the option of seeking certiorari review from the United States
Supreme Court. Id. at 6. Judge Joseph therefore recommended that this court
dismiss the case.
Objection (Dkt. No. 8)
The plaintiff filed an objection citing Article III of the Constitution and the
Fourteenth Amendment. Dkt. No. 8 at 1. She also cited Civil Local Rule 72(c)
(E.D. Wis.). Id. at 2. There is no Civil L.R. 72(c), but General L.R. 72(c) explains
that objections to a determination by the magistrate judge are governed by
Federal Rule of Civil Procedure 72. In any event, the following paragraph seems
to best summarize the basis for the plaintiff’s objection:
The State of Wisconsin is violating my rights and those of my family
members by allowing unlawful procedure to be assured upon me
outside the color of law. The courts have been proceeding in
Arbitrary Law outside of Civil Law procedure and Children and
Families Chapter 48. The violations have been in retaining and
kidnapping my children from their family members without cause.
There has been fraud submitted in the civil procedure. The motions
for sanctions against this institution are being ignored. There has
been unnecessary pain and suffering by the State of Wisconsin not
righting this wrong. That is occurring and without due process of
law as this is not a criminal case.
Dkt. No. 8 at 1-2.
The plaintiff’s objection does not address the problems Judge Joseph
identified in the complaint. It reiterates the allegations against the State of
Wisconsin that the plaintiff made in her complaint. The plaintiff cannot sue the
State of Wisconsin. The Eleventh Amendment of the United States Constitution
prohibits federal courts from hearing cases where the plaintiff seeks money
damages against a state without the state’s consent. Quern v. Jordan, 440 U.S.
332, 337 (1979). The State of Wisconsin has not consented to be sued.
Similarly, the Department of Children and Family Services, an agency of the
State of Wisconsin, is immune from suit under the Eleventh Amendment. See
Sanders v. Ind. Dep’t of Child Servs., 806 F. App’x 478, 480 (7th Cir. 2020)
(citing Will v. Dep’t of State Police, 491 U.S. 58, 70-71 (1989); Kolton v.
Frerichs, 869 F.3d 532, 535 (7th Cir. 2017)).
The remaining defendant, CPS–Children’s Hospital, is listed on the
website for Milwaukee County Child Protective Services under the heading
“Private Partner Agencies.” www.dcf.wisconsin.gov/mcps/contacts (last visited
July 14, 2021). Section 1983 authorizes suits against every “person” who,
under color of law, deprives another person of a right secured by the
Constitution or federal statute. 42 U.S.C. §1983. “[M]ost defendants under
§ 1983 are public employees, but private companies and their employees can
also act under color of state law and thus can be sued under § 1983.” Shields
v. Ill. Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014) (citations omitted).
Private action can become state action when (1) private actors conspire or are
jointly engaged with state actors to deprive a person of constitutional rights; (2)
the state compels the discriminatory action; (3) the state controls a nominally
private entity; (4) the state is entwined with the private entity’s management or
control; (5) the state delegates a public function to a private entity or there is
such a close nexus between the state and the challenged action that seemingly
private behavior reasonably may be treated as that of the state itself. Hallinan
v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir.
Neither Milwaukee County Protective Services nor Children’s Hospital is
a “person acting under color of law.” While CPS-Children’s Hospital may have
been acting under the direction of Milwaukee County Protective Services, the
only specific allegations about CPS—Children’s Hospital appear on page three
of the plaintiff’s affidavit. The plaintiff alleges that CPS—Children’s Hospital
has refused to clear her residence, that the family has tried to meet CPS’s
demands and that CPS—Children’s Hospital “removed and re-removed the
children” because the mother had open criminal cases and CPS—Children’s
Hospital made up false allegations in the court proceeding. Dkt. No. 1-1 at 3.
The plaintiff has a due process right, under Fourteenth Amendment, to
parent her biological children. See Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,
27 (1981). She may be deprived of that right if she is not afforded notice and an
opportunity to be heard at a meaningful time in a meaningful way. Id. The
termination or a right or removal of a child from a home requires a hearing and
an opportunity to participate in that hearing, Ellis v. Hamilton, 669 F.2d 510,
512 (7th Cir. 1982). The plaintiff has alleged that the proceedings involved ten
justices, that she was threatened with bail jumping and that the proceedings
didn’t fall under Chapter 48. She has not alleged, however, that CPS-Children’s
Hospital of Wisconsin prevented her from participating in the hearings.
The plaintiff makes a reference in the affidavit to “OCM of Children’s
Hospital Social Worker’s and supervisors” who have failed to respond “in mail
or a phone back.” Dkt. No. 1-1 at 4. She alleges that she has not been receiving
notification of care by anyone. Id. Neither of these allegations suggest that any
specific employee interfered with her procedural due process rights.
There is, however, another aspect of the due process clause that Judge
Joseph did not address. Families have a right to remain together without the
coercive interference of the government under the substantive component of
the Due Process Clause of the Fourteenth Amendment. Hernandez ex rel.
Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). “[T]he Supreme Court
has long recognized as a component of substantive due process the right to
familial relations.” Brokaw v. Mercer Cty., 235 F.3d 1000, 1018 (7th Cir. 2000).
The plaintiff admits in her complaint that she was incarcerated; however, she
also talks about manufactured claims regarding her mental health and the
continued separation from her children. The court cannot tell from the
allegations whether the plaintiff could state a substantive due process claim
under the Fourteenth Amendment. For that reason, the court will give the
plaintiff an opportunity to amend her complaint. See generally Tate v. SCR
Medical Transp., 809 F.3d 343, 346 (7th Cir. 2015) (“We’ve often said that
before dismissing a case under 28 U.S.C. § 1915(e)(2)(B)(ii) a judge should give
the litigant, especially a pro se litigant, an opportunity to amend his
Judge Joseph explained to the plaintiff that she cannot use this case to
overturn a state court judgment. The Rooker-Feldman doctrine precludes
federal district courts from adjudicating “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced.” Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 284 (2005). Another doctrine directs the district
court to abstain from exercising jurisdiction over federal claims that seek to
interfere with pending state court proceedings. Younger v. Harris, 401 U.S. 37
(1971). Again, the court cannot determine from the face of the complaint
whether either of these doctrines apply.
Finally, it’s not clear whether the plaintiff is attempting to assert claims
on behalf of her children. At the bottom of page three of her affidavit, the
plaintiff said that the “Walls Children want to see their family members in
person. The Walls Children want to be reunited with all their family members
as is required under Wisconsin Statue. This is illegal and cruel to all family
members.” Dkt. No. 1-1 at 3. The plaintiff cannot bring claims in federal court
on behalf of her children (or anyone else); an attorney would have to file
lawsuits on behalf of the children. See Foster v. Bd. of Educ. of City of Chi.,
611 F. App’x 874, 877 (7th Cir. 2015) (non-lawyer parent cannot represent her
The court will allow the plaintiff to amend her complaint to explain how,
if at all, CPS-Children’s Hospital interfered with her due process right to keep
her family together, and to explain whether she is asking this court to overturn
a ruling by any state court or to intercede in any state criminal proceeding. The
court reminds the plaintiff that the only defendant against whom she might
have a claim is CPS-Children’s Hospital. She should not name the State of
Wisconsin or the Department of Children and Family Services as defendants in
the amended complaint.
The court ADOPTS IN PART the recommendation of Judge Joseph and
DISMISSES the State of Wisconsin and Department of Children and Family
Services because the court lacks jurisdiction over these defendants. Dkt. No. 7.
The court ORDERS that by the end of the day on August 20, 2021, the
plaintiff must file an amended complaint clarifying her allegations against
“CPS—Children’s Hospital.” The plaintiff should identify any individual who
violated her due process rights, what that defendant or those defendants did to
violate her rights, when they did it, where it happened and why they did it (if
she knows). If the plaintiff does not file an amended complaint in time for the
court to receive it by the end of the day on August 20, 2021, the court will
dismiss the case without further notice or hearing.
Dated in Milwaukee, Wisconsin this 15th day of July, 2021.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
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