Cox et al v. The Medical College of Wisconsin Inc et al

Filing 67

ORDER signed by Judge J P Stadtmueller on 1/17/2023. 41 , 43 and 46 Defendants' Motions to Dismiss are GRANTED in part and DENIED in part. Counts IX and XI are DISMISSED without prejudice. Counts I, V, and XII are DISMISSED with prejudice. Plaintiffs may FILE a Second Amended Complaint by 2/16/2023 to address deficiencies as specified. 51 Defendants' Motion to Stay is DENIED as moot. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN COX and SARAH DOBROZSI,
Plaintiffs,
v.
THE MEDICAL COLLEGE OF
WISCONSIN INC., CHILDREN’S
HOSPITAL AND HEALTH SYSTEM
INC., CHILDREN’S HOSPITAL OF
WISCONSIN INC., RITA VENTURA,
HILARY PETSKA, LYNN SHEETS,
MICHAEL GUTZEIT, DEMETRA
PARR-NELSON, JESSICA BARBER,
AMY SCHERBARTH, STEPHANIE
JEWELL, LORRAINE HARTMANN,
MICHELLE URBAN, HEATHER
MILLER, and REBECCA CHAGALL,

Case No. 22-CV-553-JPS-JPS

ORDER

Defendants.

1.

INTRODUCTION
Plaintiffs John Cox (“Cox”) and Sarah Dobrozsi (“Dobrozsi”)

(jointly, “Plaintiffs”) filed an amended complaint in this action on July 18,
2022. ECF No. 37.1 On August 12, 2022, three groups of Defendants
submitted separate motions to dismiss. ECF Nos. 41, 43, 46. The Court refers
to the groups of Defendants as follows:
•

Jessica Barber (“Barber”), Rebecca Chagall (“Chagall”), Lorraine
Hartmann (“Hartmann”), Stephanie Jewell (“Jewell”), Heather

The amended complaint adds several Defendants and terminates several
others. The amended complaint, ECF No. 37, serves as the operative complaint in
this action.
1

Case 2:22-cv-00553-JPS Filed 01/17/23 Page 1 of 116 Document 67

Miller (“Miller”), Demetra Parr-Nelson (“Parr-Nelson”), Amy
Scherbarth

(“Scherbarth”),

and

Michelle

Urban

(“Urban”)

(collectively, the “CPS Defendants”)
•

Medical College of Wisconsin (“MCW”), Lynn Sheets (“Sheets”),
and Hillary Petska (“Petska”) (collectively, the “MCW Defendants”)

•

Children’s Hospital and Health System, Inc. (“CHHS”), Children’s
Hospital of Wisconsin, Inc. (“CHW”), Rita Ventura (“Ventura”), and
Michael

Gutzeit

(“Gutzeit”)

(collectively,

the

“Children’s

Defendants”)
As of October 14, 2022, and after extensions of time to respond and
reply, see text only orders on September 6, 2022; September 19, 2022; and
September 29, 2022, and an order granting a request to file an oversized
brief, see text only order on September 22, 2022, the motions to dismiss are
now fully briefed. ECF Nos. 42, 44, 47, 61, 63, 64, 66. On August 12, 2022,
Defendants also filed a joint motion to stay discovery, ECF No. 51, which is
now also fully briefed, ECF Nos. 52, 56, 57. For the reasons discussed herein,
the Court will grant in part and deny in part the motions to dismiss and
will deny as moot the motion to stay discovery.
2.

FACTUAL BACKGROUND2
Cox and Dobrozsi, spouses, are both medical doctors licensed to

practice by the State of Wisconsin. At the time of the relevant events,
Plaintiffs resided in Wauwatosa, Wisconsin, worked as physicians in
Wisconsin, and had two adopted children.
In 2019, Plaintiffs decided to adopt another child. That child is
referred to herein as L.G. In coordination with L.G.’s birth parents and a
As required at the motion to dismiss stage, the following facts are drawn
solely from the amended complaint, ECF No. 37. See ECF No. 10 at 2 (“[T]he Court
will consider only the facts as they are stated in the complaint; the parties should
omit a facts section from their briefing.”).
2

Page 2 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 2 of 116 Document 67

private adoption agency, Catholic Charities, prior to L.G.’s birth in April of
2019, Plaintiffs planned to adopt her. Plaintiffs entered into an agreement
with Catholic Charities and with L.G.’s birth parents to that effect. Under
that plan, Plaintiffs would become “pre-adoptive parents” immediately
following L.G.’s birth. That phrase represents a period prior to formal,
official adoption, required by Wisconsin law. Plaintiffs brought L.G. to their
home on April 11, 2019. During this pre-adoptive period, L.G. lived in
Plaintiff’s home.
On May 9, 2019, an incident occurred in Plaintiffs’ home, resulting
in injuries to L.G. That morning around 5 A.M., Cox was holding L.G. in his
arm while he read on his bed. Cox fell asleep while holding L.G. L.G. was
later determined to have resulting skin lesions on her arms as well as
having suffered a broken clavicle.
The same day as the incident, as well as several times in the
following days, L.G. was evaluated by medical professionals. In total, L.G.
was seen by three separate physicians, two of whom performed a physical
examination on L.G., obtained L.G.’s medical history, and reached a
diagnosis. L.G. was first taken to Dr. Pomeranz, the family’s pediatrician.
Dr. Pomeranz referred L.G. to be seen by another physician, Petska, who
specialized in cases of possible child abuse. This referral was standard
procedure. Dr. Pomeranz also referred L.G. to be seen by a pediatric
dermatologist. As a result of Dr. Pomeranz’s communication with Petska,
Dr. Pomeranz ordered imaging studies of L.G.’s clavicle and shoulder. Cox
was instructed to take L.G. to CHW3 for these imaging studies.

3

CHHW owns and operates CHW. ECF No. 37 at 4–5.

Page 3 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 3 of 116 Document 67

Dobrozsi brought L.G. to CHW. Dobrozsi was then informed by Dr.
Pomeranz that the plan had changed, and that Petska was requiring not just
imaging studies of the shoulder and clavicle, but a “full child abuse
screening workup, including full body skeletal survey, head Computed
Tomography (CT) scan, and blood work.” Upon learning this from Dr.
Pomeranz, Dobrozsi requested that Petska perform a full medical
evaluation and explain the next steps. Petska agreed and spoke with Cox
over the phone about how the incident occurred. Petska performed a full
medical evaluation and concluded that a head CT would not be needed at
that time, but that the blood work and skeletal survey would still be done.
Based on her medical evaluation and her phone conversation with Cox,
Petska concluded that the skin lesions on L.G.’s arms were not necessarily
indicative of abuse.
Having reached this conclusion, Petska told Dobrozsi that if Dr.
Pomeranz had not already called CPS to report possible abuse, Dr.
Pomeranz could wait to do so. Dobrozsi communicated this by text to Dr.
Pomeranz, but Dr. Pomeranz had already initiated the referral to CPS.
Petska continued with the medical evaluation, coordinating to
complete shoulder and clavicle x-rays, blood work, and a skeletal survey.
She thereafter permitted Dobrozsi to return home with L.G. The results of
this evaluation did not reveal any “definitive evidence” of child abuse, nor
did they necessarily indicate that Cox had intentionally harmed L.G. Petska
communicated this to Cox over the phone.
Thereafter, it was determined that Petska would recuse herself from
the care and treatment of L.G. based on a supposed conflict of interest. This
determination was reached because Petska and Plaintiffs worked for the
same hospital system. Accordingly, Petska and Sheets concluded that L.G.
Page 4 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 4 of 116 Document 67

should be evaluated by a different medical provider. According to
Plaintiffs, Petska retained obligations to ensure that L.G. would be seen by
a provider who could provide the same or a higher level of care and to
continue to care for L.G. until L.G. could be seen by a different provider.
Petska transferred care of L.G. from herself to nurse practitioner
Ventura, an employee of CHHS and/or CHW.4 Ventura was affiliated with
the Milwaukee Child Advocacy Center5 but was not herself a boardcertified child advocacy pediatrician. Following this referral to Ventura,
Petska called Plaintiffs to give them the results of the lab work that had been
ordered for L.G. Petska informed Plaintiffs that the results of the lab work
were “normal,” which was apparently an erroneous statement. Petska
instructed Plaintiffs to go to an outpatient clinic run and operated by CHW
and CHHS the following day. Petska did not, however, disclose to Plaintiffs
the identity of the medical provider to whom she had referred L.G. Petska
assured Plaintiffs that they would be able to have all their questions
answered at that clinic, including review of the lab work that had been
performed.
On May 9, 2019 (the day of the incident, and the day before the
medical evaluation by Ventura), CPS sent a social worker to Plaintiffs’
home to interview them and assess the home and L.G. The social worker
found no reason to intervene at that time.
On May 10, 2019, L.G. was scheduled to be seen by Ventura, as
instructed by Petska. That same morning, Barber, an employee of CPS,

As noted supra at n. 3, CHW is owned and operated by CHHW, and the
amended complaint does not make clear by which entity Ventura is employed.
4

The Milwaukee Child Advocacy Center is owned and operated by CHW.
ECF No. 37 at 5.
5

Page 5 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 5 of 116 Document 67

informed Plaintiffs that officials at CPS and CHW had determined that
Plaintiffs would not be allowed to attend that appointment. Plaintiffs did
not, at this time, know the identity of the medical professional into whose
care L.G. had been transferred, and Barber refused to provide Plaintiffs
with that information. According to Plaintiffs, their exclusion from L.G.’s
appointment at the outpatient clinic violated standard medical practice and
deviated from MCW and CPS’s policies and procedures. Plaintiffs allege
that they were disallowed from attending the appointment because of their
professions as physicians. Plaintiffs also allege that they were not afforded
the protections and rights they were entitled to as pre-adoptive parents
because Defendants considered that status as being less worthy of
protection.
Barber took L.G. to the appointment. Plaintiffs allowed Barber to
take L.G. without them because they believed they would be allowed to
participate in the appointment via telephone. Plaintiffs claim they were
fully authorized to participate in L.G.’s medical care by virtue of signed
consents from L.G.’s birth parents and Catholic Charities.
Plaintiffs requested to speak to the individual performing the
medical examination of L.G. at that appointment. Their request was denied,
and Ventura did not speak with them. Barber informed Plaintiffs that the
then-undisclosed medical provider had recommended a follow-up head CT
scan (commonly utilized in evaluations for possible child abuse) to be
completed that same day, but Barber provided no other details.
Ventura, unlike the physicians who evaluated L.G., concluded that
L.G.’s injuries resulted from abuse. According to Plaintiffs, Ventura, unlike
the evaluating physicians, did not conduct her examination pursuant to
standard medical procedures for evaluation of potential child abuse.
Page 6 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 6 of 116 Document 67

Ventura’s

evaluation,

according

to

Plaintiffs,

was

inappropriate,

incomplete, and flawed. Plaintiffs allege that Ventura’s examination of L.G.
violated the standard of care applicable to Ventura as a nurse practitioner,
clinical practice guidelines developed by Petska, the established standards
of care for evaluation of child maltreatment by the American Academy of
Pediatrics, and CHW’s own policies and procedures. She failed to
document a “complete and accurate patient history” and improperly
labeled marks on L.G.’s body. She took improper photographs which were
insufficient to document the alleged injuries. She misinterpreted
bloodwork, resulting in her ruling out “any possibility that L.G. suffered
from a bleeding disorder that would make her more susceptible to
bruising.” She also allegedly misinterpreted x-rays. Collectively, these
errors resulted in Ventura’s conclusion that all the marks on L.G.’s body
were bruises, all of which were intentionally caused, indicating abuse.
Ventura told Barber that L.G. was “covered in bruises from head to toe.”
In her documentation of her evaluation of L.G., Ventura wrote that
L.G.’s past medical and family history was limited because L.G. was
brought to the clinic by a CPS worker who did not have complete
information. She did not therein note that Defendants had prohibited
Plaintiffs from attending the appointment, nor did she document her
refusal to speak with Plaintiffs. According to Plaintiffs, her documentation
also utilized inflammatory and incorrect statements that went beyond the
scope of the evaluation she had performed. Ventura wrote that “[i]nfants
with unexplained bruising are at risk for more serious injury and/or death.
Failure to place this child in a safe environment increases the risk of further
harm.” Plaintiffs allege that this inappropriately implied that their home

Page 7 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 7 of 116 Document 67

was not a safe environment for L.G. CPS relied on Ventura’s documentation
in concluding that L.G. should be removed from Plaintiffs’ home.
According to Plaintiffs, MCW, CHW, and CHHS6 had policies
requiring that Ventura be supervised by a physician in certain situations,
including upon request of the parent or guardian. Sheets was Ventura’s
supervising physician, but Ventura was not supervised by Sheets or any
other physician during the appointment at issue. Ventura presented herself
to CPS personnel and police as “Dr. Ventura,” improperly suggesting that
she was a medical doctor within the context of the child abuse evaluation.
By failing to ensure that Ventura’s evaluation and conclusions were
supervised and corrected as necessary, Gutzeit (CHW’s Chief Medical
Officer and Vice President of Quality and Safety) and Sheets allegedly
violated the standards of care applicable to them.
Sometime after the appointment, Ventura concluded that L.G.’s
clavicle fracture could not have happened as a result of the accident
asserted by Cox. She made this conclusion without consulting an
orthopedic specialist and without consulting Cox about the incident in
which L.G. acquired the injuries.
Plaintiffs informed Dr. Pomeranz about the evaluation by Ventura.
Dr. Pomeranz expressed concern over the discrepancies between his own
examination of L.G.’s skin, the examination by Petska, and that of Ventura.
Dr. Pomeranz instructed Plaintiffs to consult a dermatologist.
At some point following Ventura’s evaluation, Ventura “called or
ordered someone to call” the police to investigate possible abuse. On the

The Court may hereafter refer to this group of Defendants as the “Entity
Defendants.”
6

Page 8 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 8 of 116 Document 67

afternoon of May 10, 2019, Dobrozsi was allowed to attend the follow-up
CT scan ordered by Ventura. The scan confirmed that L.G. had no bleeding
in her head. Police then arrived at that appointment and spoke with
Dobrozsi. An officer requested that Dobrozsi undress L.G. to show him the
bruises Ventura had identified. Dobrozsi did so and showed the officer
“three small bruises.” The officer noted that he had been informed that L.G.
was covered with bruises from “head to toe,” but that this did not appear
to be the case. The police found no evidence of abuse at that time.
Nevertheless, Barber informed Dobrozsi that, moving forward indefinitely,
Plaintiffs could not be around any of their children—including both L.G.
and Plaintiffs’ other two adopted children—without direct supervision.
Plaintiffs were made to submit to a “protection plan” pursuant to which
Dobrozsi’s parents were required to supervise Plaintiffs’ interactions with
the children.
The next day, May 11, 2019, Catholic Charities and L.G.’s birth
parents were informed of the incident and the subsequent events. On May
12, 2019, two social workers from Catholic Charities and L.G.’s birth parents
went to Plaintiffs’ home. At that time, they expressed continuing support
for Plaintiffs’ planned adoption of L.G.
Over the following months, Ventura’s evaluation of L.G. and her
diagnosis of abuse were reviewed by other, non-party medical
professionals. One, a child advocacy physician, concluded that Ventura’s
“initial impression of ‘contusions’ on L.G.’s body . . . was an inaccurate,
nonspecific, and inflammatory characterization . . . .” That physician
concluded that the available information, taken in the aggregate, did not
indicate that L.G. suffered child abuse. Additionally, an expert in pediatric
dermatology specializing in child abuse stated that none of the bruises
Page 9 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 9 of 116 Document 67

present on L.G. appeared typical of abuse and instead appeared consistent
with the accident asserted by Cox. The pediatric dermatologist concluded
that the remaining marks on L.G. were birthmarks. Moreover, four
pediatric hematologists concluded that Petska and Ventura failed to
appropriately interpret L.G.’s bloodwork and drew incorrect conclusions
about the nature of the bruising as a result.
Similarly, Dr. Pomeranz concluded that the clavicle fracture was
consistent with the mechanism of injury described by Cox. Two orthopedic
surgeons similarly validated that conclusion, as did two biomechanics
experts who created “independent recreations of the accident.”
On May 14, 2019, Plaintiffs went to CHW’s patient relations
department to file a grievance with CHW and CHHS. A CHW social worker
called the Milwaukee Child Advocacy Center at that time to “advocate for”
Ventura to take a medical and event history directly from Plaintiffs, but
Ventura again refused to speak directly with Plaintiffs. Ventura instead
instructed Cox to provide a written statement to CPS and the police for her
review. Cox did so within an hour, but Ventura completed her
documentation concluding L.G. had suffered abuse without considering
the additional history provided by Cox.
On May 15, 2019, Plaintiffs’ grievances were communicated to
Gutzeit by hospital personnel. On at least six separate occasions, Plaintiffs
expressed their concerns to one or more Defendants through formal
mechanisms, including in-person meetings on May 13, May 17, May 27, and
August 12; a written grievance filed on May 28; and a written grievance
appeal on July 2. In addressing the grievances, Sheets, Ventura, and Gutzeit
insisted that Plaintiffs’ status as physicians had no impact on the decisions
made regarding them.
Page 10 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 10 of 116 Document 67

On May 21, 2019, Plaintiffs met with Scherbarth, Jewell, Hartmann
and Miller at the offices of CPS. During this meeting, those Defendants
asked Plaintiffs about a bruise on L.G.’s foot. Miller refused to allow
Plaintiffs to see the photographs taken by Ventura at the medical
examination and refused to provide information about the evaluation.
These photographs were also withheld from L.G.’s medical record and
were made available only to providers affiliated with the Milwaukee Child
Advocacy Center and CPS.
On May 24, 2019, Scherbarth, at the direction of other Defendants,
went to Plaintiffs’ home and removed L.G. Scherbarth did so without a
court order and without the “consent of Plaintiffs or of L.G.’s birth parents.”
Scherbarth, and CPS generally, did so without having performed an
investigation into Plaintiffs’ history as parents. At the time of L.G.’s
removal from the home, Catholic Charities and L.G.’s birth parents
maintained their support of Plaintiffs’ planned adoption of L.G.
Dr. Pomeranz continued to express concern about discrepancies in
conclusions reached regarding L.G.’s injuries. Dr. Pomeranz informed CPS
of these concerns and opined that suspicions of child abuse were reached
in error. Pomeranz communicated this to CPS medical director Urban, who
told Dr. Pomeranz that she was “staying out of the case.”
Despite Dr. Pomeranz’s protestations, Plaintiffs were not able to
finalize their planned adoption of L.G. L.G. was permanently removed
from Plaintiffs’ home and Plaintiffs never became L.G.’s formal adoptive
parents. Plaintiffs allege that had the incident occurred mere months later,
following their formal adoption of L.G., the removal of L.G. from their
home could not have occurred without judicial oversight.

Page 11 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 11 of 116 Document 67

At some point after the removal of L.G. from Plaintiffs’ home,
Plaintiffs allege that Defendants came to realize that their conclusion of
abuse was reached in error. But rather than correct this erroneous
conclusion, they conspired to cover up the wrongdoing, to smear Plaintiffs’
reputations with continued insistence of child abuse, to influence the
outcome of the CPS investigation, and to convince law enforcement to bring
criminal child abuse charges against Cox. Dr. Pomeranz was told by MCW
that he was forbidden from continuing to advocate for L.G., and Sheets
spoke to the Chair of Dermatology to admonish the provision of a medical
opinion in the case that was favorable to Plaintiffs. Sheets also prevented
CPS from accessing Petska’s medical documentation because it did not
align with a conclusion of child abuse, and wrongly told investigators that
Cox had previously abused a different child.
In July 2019, Plaintiffs met with MCW legal counsel Jon Wertz
(“Wertz”). Wertz agreed with Plaintiffs that the withholding of the
photographs taken at Ventura’s appointment with L.G. was not appropriate
and deviated from hospital policy. He confirmed that the photos were
improperly omitted from L.G.’s medical record.
Later that month, Plaintiffs requested an ethics consult through
CHW’s standard process. A physician from the ethics committee initially
concluded that a review of the case was appropriate. However, two days
later, after having consulted with lawyers, that same physician concluded
that the ethics committee would not perform a review of the case because
there was an open CPS case against Plaintiffs. Plaintiffs did not believe this
to be a valid reason to refuse an ethics consult and were familiar with
situations where the ethics committee reviewed a case notwithstanding
CPS involvement.
Page 12 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 12 of 116 Document 67

Following the ethics committee’s refusal to perform an ethics
consult, several physicians from the ethics committee expressed to Gutzeit
that a full review should be undertaken. Nevertheless, Gutzeit insisted that
the ethics committee could not, and would not, perform a review.
Plaintiffs thereafter met with Dr. Margolis, Vice Chair of the
Department of Pediatrics. At this meeting, Dr. Margolis stated that the
unsupervised care provided by Ventura was inappropriate and that the
case needed a review. Dr. Margolis urged Plaintiffs to again advocate for a
review of the case by the ethics committee.
In August of 2019, Gutzeit offered Plaintiffs a meeting with CHW
leaders. At the meeting, Plaintiffs raised many issues including the
withholding of the photographs from Plaintiffs; the lack of transparency as
to whether Ventura had been supervised by a physician during the medical
examination of L.G. and if so, by whom; the use of note templates for
medical documentation which include inflammatory language; and the
treatment of Plaintiffs as pre-adoptive parents generally. CHW dismissed
the concerns and reiterated that no review would be undertaken. Gutzeit
maintained that Plaintiffs’ status as pre-adoptive parents justified their
exclusion from the medical evaluation of L.G.
In November of 2019, Cox provided twelve physician reports to CPS
pursuant to a formal review procedure established by state law to “further
support the treating physician assessments that L.G. had not been abused.”
According to Plaintiffs, state law required Chagall and other members of
the review panel to perform an independent evaluation of the evidence
provided to them. In violation of that requirement, Miller and Chagall sent
the reports provided by Cox to an outside consultant to attempt to discredit
the physicians supporting Cox’s position. This attempt to discredit Cox
Page 13 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 13 of 116 Document 67

apparently backfired, as the outside expert solicited by CPS confirmed that
Ventura had misinterpreted L.G.’s bloodwork.
As part of this review process, Plaintiffs claim that CPS was required
to provide their final determination within 10 days of the hearing held and
that CPS failed to do so. CPS in the meantime attempted to convince Cox to
drop his appeal of CPS’s findings, stating that he could “avoid criminal
prosecution” if he did so. Cox declined.
Also in November of 2019, Plaintiffs submitted a confidential,
internal report for peer review of the medical care provided by the
Milwaukee Child Advocacy Center, including by Sheets, Ventura, and
Petska. In retaliation for submitting this report, CHW retained outside
counsel to represent it against Plaintiffs.
Plaintiffs maintain that the Child Advocacy Program implemented
and maintained by MCW, CHW, and CHHS was designed to confirm
suspicions of child abuse rather than to accurately evaluate whether abuse
had occurred. Plaintiffs had raised issues about the Entity Defendants’
provision of medical care to foster children in the past, prior to L.G.’s birth.
Their advocacy as to those issues resulted in the Entity Defendants
announcing that they would perform a transparent review of the Child
Advocacy Program. An external review of the Child Advocacy Program
was performed in 2020. The external review identified systematic failures
in the program and confirmed a need for “improvement to meet the
standards applicable to child maltreatment medical evaluations.” To
respond to the program deficiencies identified in the external review,
MCW, CHW, and CHHS created a Child Maltreatment System
Improvement Team Charter composed of approximately 30 individuals
“charged with correcting” the deficient system.
Page 14 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 14 of 116 Document 67

In January of 2020, the CPS review committee finally concluded its
review process after having held a hearing in November. At that time, the
committee unanimously decided to clear the allegation of abuse against
Cox. However, it did not notify Cox of that decision at that time, and on
January 23, 2020, Cox was criminally charged for felony child abuse in
Milwaukee County. Shortly after the electronic filing of the criminal
complaint against Cox, Gutzeit notified hundreds of hospital personnel of
it by email. Cox did not receive notice of his successful appeal of CPS’s
findings until February 27, 2020. As a result of these circumstances
spanning several years, Plaintiffs suffered intense emotional distress. L.G.
never returned to the care of Plaintiffs and they never formally adopted her.
3.

MOTION TO DISMISS STANDARD
To survive a motion to dismiss under Rule 12(b)(6), “the complaint

must provide enough factual information to ‘state a claim to relief that is
plausible on its face’ and ‘raise a right to relief above the speculative level.’”
Cherry v. Husz, No. 14-CV-1539-JPS, 2015 U.S. Dist. LEXIS 97504, at *6 (E.D.
Wis. July 27, 2015) (internal citations omitted). A plausible claim is one with
“enough facts to raise a reasonable expectation that discovery will reveal
evidence supporting the plaintiff’s allegations.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007). “[C]ourts must accept a plaintiff’s factual
allegations as true, but some factual allegations will be so sketchy or
implausible that they fail to provide sufficient notice to defendants of the
plaintiff’s claim.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
On a motion to dismiss, the district court accepts as true the
plaintiff’s factual allegations. Harris v. Honey, No. 90-3037, 1991 U.S. App.
LEXIS 27193, at *5 (7th Cir. 1991) (internal citation omitted). “[A]ll such

Page 15 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 15 of 116 Document 67

facts, as well as the reasonable inferences that follow, are viewed in the light
most favorable to the plaintiff.” Teague v. United States Postal Serv., No. 94C-2152, 1997 U.S. Dist. LEXIS 20864, at *6 (N.D. Ill. Dec. 23, 1997) (internal
citation omitted). At the motion to dismiss stage, the Court does not ask
“did these things happen”; instead, “the proper question to ask is . . . ‘could
these things have happened.’” Olson v. Champaign County, 784 F.3d 1093,
1099 (7th Cir. 2015) (internal citations omitted). “[T]he court’s skepticism is
best reserved for later stages of the proceedings when the plaintiff’s case
can be rejected on evidentiary grounds.” Hartman v. Gilead Scis., Inc., 536
F.3d 1049, 1057 (9th Cir. 2008). That said, courts need not accept as true legal
conclusions or threadbare recitals of the elements of a cause of action,
unsupported by mere conclusory statements. Cherry, 2015 U.S. Dist. LEXIS
97504, at *7 (internal citation omitted).
4.

STATE CRIMINAL CASE
Various Defendants also move the Court to take judicial notice of

facts relating to the underlying state case against Cox. ECF No. 47 at 11.
Typically, when considering a motion to dismiss, the Court may consider
only the facts alleged in the complaint. Rosenblum v. Travelbyus.com Ltd., 299
F.3d 657, 661 (7th Cir. 2002). However, “a court may under some
circumstances take judicial notice of certain matters of public record not
contained within the complaint.” Stietz v. Frost, No. 19-cv-43-wmc, 2020
U.S. Dist. LEXIS 120491, at *3 (W.D. Wis. July 9, 2020) (internal citation
omitted). In particular, “a court may take judicial notice of an adjudicative
fact that is both not subject to reasonable dispute and either 1) generally
known within the territorial jurisdiction of the trial court or 2) capable of
accurate and ready determination by resort to sources whose accuracy

Page 16 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 16 of 116 Document 67

cannot reasonably be questioned.” Id. (cleaned up) (citing GE Cap. Corp. v.
Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir. 1997) (quoting Fed. R. Evid.
201(b)). “Because judicial notice ‘substitutes the acceptance of a universal
truth for the conventional method of introducing evidence,’ however, the
Seventh Circuit understandably advises courts to exercise caution in
employing this adjudicative device.” Stietz, 2020 U.S. Dist. LEXIS 120491, at
*3 (internal citation omitted).
The fact that Cox had a Milwaukee County criminal case instituted
against him in 2020 arising out of the incident with L.G. is not subject to
reasonable dispute and is capable of accurate determination by resort to the
Wisconsin Circuit Court Access site. See State v. Cox, Milwaukee Cnty.
Circuit

Court

Case

No.

2020CF000344,

available

at

https://wcca.wicourts.gov/caseDetail.html?caseNo=2020CF000344&county
No=40&index=0&mode=details (last visited Jan. 4, 2023). The items
appearing on that docket are official judicial notations, the accuracy of
which cannot be questioned. See Stietz, 2020 U.S. Dist. LEXIS 120491, at *3
(“Here, the existence of the previous case, its procedural history, and the
fact that [Plaintiff] pled no contest . . . are all facts that are not reasonably
disputed and ascertainable from a source whose accuracy cannot be
reasonably questioned.”).
Accordingly, the Court is “at liberty to take judicial notice of the
Plaintiff’s underlying state court criminal proceedings.” Wesley v.
Swearington, No. 19-1236, 2019 U.S. Dist. LEXIS 117912, at *3 (C.D. Ill. July
16, 2019) (internal citation omitted). The Court will take judicial notice of
the following, all of which is drawn from the Milwaukee County Circuit
Court docket cited previously. However, since at the motion to dismiss
stage the Court is obligated to draw all reasonable inferences in favor of
Page 17 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 17 of 116 Document 67

Plaintiffs, the judicial notice of Cox’s state criminal case will hold little, if
any, weight in the Court’s rulings. Only if the existence of the state criminal
case were to render Plaintiffs’ allegations implausible would it be material
at the motion to dismiss stage, and the Court does not believe that it does.
But for purposes of providing a complete background, and since the state
criminal case may prove relevant at a future stage in the proceedings, the
Court recounts the following:
In January of 2020, the Milwaukee County Circuit Court reviewed a
criminal complaint filed against Cox and “found probable cause to hold
[him] for further proceedings.” Cox was originally charged with “Physical
Abuse of a Child (Intentional Causation of Bodily Harm)” in violation of
Wis. Stat. § 948.03(2)(b).7 As part of the state case, Cox was ordered to have
no contact with L.G. The case was on track to proceed to trial, with a final
pretrial hearing scheduled for summer of 2021 and a Daubert hearing
scheduled for that fall. However, the parties reached a resolution in
advance of trial in the way of a Deferred Prosecution Agreement (“DPA”)
involving a reduced charge—negligent failure to provide necessary care to
a child under Wis. Stat. § 948.21(2). For clarity, the Court will also take
judicial notice of the definition of a DPA as codified at Wis. Stat. § 971.39.
“A deferred prosecution agreement . . . includes, but is not limited to,”
certain enumerated conditions, including the defendant’s admittance “in
writing, all of the elements of the crime charged” and the district attorney’s
ability to “resume prosecution upon the defendant’s failure to meet or
comply with” the DPA’s enumerated conditions.

7

This is conceded in Plaintiffs’ response. ECF No. 61 at 8.

Page 18 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 18 of 116 Document 67

A plea hearing was held on November 8, 2021, at which time Cox
entered a plea of no contest to the reduced charge. The Milwaukee County
Circuit Court found Cox guilty but withheld entry of judgment of
conviction. As part of the DPA, Cox participated in community service and
parenting class. On May 6, 2022, the Milwaukee County Circuit Court held
that Cox had complied with the DPA and dismissed the case with
prejudice.8
5.

ANALYSIS
5.1

42 U.S.C. § 1983
5.1.1

Requisite of State Action

Plaintiffs allege eight separate counts under 42 U.S.C. § 1983. ECF
No. 37 at 56–63 (Counts I—VIII). Plaintiffs allege that since their amended
complaint “plainly and repeatedly alleges a ‘meeting of the minds’ between
the state and non-state employee Defendants . . . they are all subject to
Defendants do not argue, and the Court does not find, that the hearing of
this case in federal court is barred by the Rooker-Feldman doctrine. “The RookerFeldman doctrine prevents lower federal courts from exercising jurisdiction over
cases brought by state court losers challenging state court judgments rendered
before the district court proceedings commenced.” Sykes v. Cook Cnty. Cir. Ct. Prob.
Div., 837 F.3d 736, 741 (7th Cir. 2016). Plaintiffs do not seek to challenge the
Milwaukee County case described herein. They do not contest the DPA to which
Cox was subject, nor do they contest the general facts upon which the reduced
charge of child neglect was based. ECF No. 61 at 5 (“[F]rom day 1, Plaintiffs’ [sic]
acknowledged that Dr. Cox made a mistake when he fell asleep with L.G., and that
she suffered minor accidental injuries as a result.”). To the contrary, Plaintiffs
describe Milwaukee County Circuit Court’s “disposition of the criminal charges”
as a “complete vindication of Plaintiffs’ position.” Id. at 5.
8

Cox’s participation in the DPA required Cox to agree to the elements of
child neglect having been met. See Wis. Stat. § 971.39. He does not now argue that
those elements were not, in fact, met. Moreover, no judgment of conviction was
ever entered in Cox’s Milwaukee County case and the case was dismissed with
prejudice. Accordingly, the Rooker-Feldman doctrine does not preclude this Court
from hearing this case.

Page 19 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 19 of 116 Document 67

liability under § 1983.” ECF No. 61 at 21 (internal citation omitted). The CPS
Defendants do not dispute that they are state actors subject to suit under §
1983. The MCW Defendants and Children’s Defendants, in contrast, argue
that they cannot be held liable under § 1983 because they are not “state
actors” who acted under color of state law. ECF Nos. 47 at 12–15, 42 at 2.
The Court addresses this dispute first before discussing the individual
counts brought under § 1983.
MCW itself is a non-stock, not-for-profit corporation. ECF No. 32 at
2. Petska and Sheets are physicians employed thereby. ECF No. 37 at 5–6.
Similarly, CHW is a subsidiary corporation of CHHS. ECF No. 30 at 2.
Ventura and Gutzeit are employed thereby. ECF No. 37 at 5–6. None of
these parties are clearly state actors. The Court will therefore discuss
whether the individual MCW Defendants and Children’s Defendants
(Sheets, Petska, Gutzeit, and Ventura) are properly considered state actors
for purposes of § 1983 at the pleading stage, infra Section 5.1.1.1, and same
for the Entity Defendants (MCW, CHHS, and CHW), infra Section 5.1.1.2.
5.1.1.1

The Individual
Defendants

MCW

and

Children’s

Private actors may be liable under § 1983 in some circumstances. “[I]f
a private citizen conspires with a state actor,” for example, “then the private
citizen is subject to Section 1983 liability.” Brokaw v. Mercer County, 235 F.3d
1000, 1016 (7th Cir. 2000). Private action can become state action when
“private actors conspire or are jointly engaged with state actors to deprive
a person of conditional rights.” Hallinan v. FOP, 570 F.3d 811, 815 (7th Cir.
2009) (internal citation omitted).
“Plaintiffs allege that [Sheets, Petska, Gutzeit, and Ventura]
conspired with the CPS Defendants (who are indisputably state actors) to
Page 20 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 20 of 116 Document 67

perpetuate the false allegations of abuse.” ECF No. 61 at 21. “To establish
§ 1983 liability through a conspiracy theory, a plaintiff must demonstrate
that: (1) a state official and private individual(s) reached an understanding
to deprive the plaintiff of his constitutional rights; and (2) those
individual(s) were willful participant[s] in joint activity with the State or its
agents.” Reynolds v. Jamison, 488 F.3d 756, 764 (7th Cir. 2007) (internal
citation omitted). However, “a bare allegation of a conspiracy between
private and state entities is insufficient to bring the private entity within the
scope of § 1983.” Xiong v. Fisher, 787 F.3d 389, 398 (7th Cir. 2015). “Vague
and conclusory allegations of the existence of a conspiracy are not enough
to sustain a plaintiff’s burden; a complaint must contain factual allegations
suggesting that the defendants reached a meeting of the minds” with
respect to violating the plaintiff’s constitutional rights. Mirbeau of Geneva
Lake, LLC v. City of Lake Geneva, 746 F. Supp. 2d 1000, 1008 (E.D. Wis. 2010)
(quoting Evers v. Reak, 21 Fed. App’x 447, 450 (7th Cir. 2001)).
The amended complaint is replete with allegations of conspiracy
among the individual MCW and Children’s Defendants and CPS, and the
Court is satisfied that at least some of those allegations are not “bare.” See
Xiong, 787 F.3d at 398. Plaintiffs allege that Sheets, Ventura, Gutzeit, and
Petska conspired with various of the CPS Defendants—state actors—to
ensure that Cox faced criminal child abuse charges, that L.G. was removed
from Plaintiffs’ home, that the “truth” of Ventura’s medical examination
was never acknowledged, and that Plaintiffs suffered for having expressed
criticism of the treatment to which they had been subject. ECF No. 37 at 36.
Plaintiffs allege that Defendants “acted in coordination” to oppose, ignore,
and discredit those with positions favorable to Plaintiffs, such as Dr.
Pomeranz. See id. They allege that Defendants collectively covered up
Page 21 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 21 of 116 Document 67

evidence that Ventura’s medical examination of L.G. was inappropriately
unsupervised such as by refusing to inform Plaintiffs of the nature of the
medical appointment and the name of who, if anyone, would be
supervising it. Id. at 14 and 31. They claim that Defendants further
conspired to cover up the fact that Ventura’s conclusions of child abuse
were not only unsupported by, but were in contradiction to, the medical
evidence. Id. at 31 (“CPS Defendants Perform an Incomplete and Biased
Investigation, Disregarding Overwhelming Evidence that the Abuse
Allegations Were False.”), 33–34, and 42. In order to keep these errors under
wraps, Plaintiffs allege that Defendants conspired to withhold information
from Plaintiffs and from L.G.’s record, such as the photos taken at L.G.’s
appointment. These photos were withheld from Plaintiffs but were made
available to CPS. Id. at 36–37.
Plaintiffs speak to the coordination between the non-state actor
Defendants and the CPS Defendants regarding disallowing Plaintiffs from
attending Ventura’s examination of L.G. Plaintiffs allege that this enabled
Ventura to misleadingly document that L.G.’s medical history was
“limited” because she was brought to the Child Advocacy Center merely
by a CPS worker. Plaintiffs allege that a CPS employee, Barber, stood by the
MCW Defendants by refusing to provide Ventura’s identity. Similarly,
Plaintiffs allege that Sheets, Ventura, and Gutzeit repeatedly declined to
identify which, if any, physician was charged with supervising Ventura’s
examination of L.G., instead giving vague responses. Plaintiffs allege that
Barber communicated with them on behalf of both CPS and the other
Defendants, and that in so doing she misled them about the medical
appointment. They allege that Barber, “acting at the direction of other

Page 22 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 22 of 116 Document 67

Defendants,” removed L.G. from the home.9 Id. at 23. Plaintiffs allege that
“one or more of the Defendants” contacted police to encourage an
investigation of Cox. Plaintiffs further allege that Miller and other
Defendants withheld the photographs of L.G. from Plaintiffs and from
L.G.’s medical folder to continue to obscure the flawed medical
examination. These are just some of the various facts relating to the
conspiracy alleged by Plaintiffs and indicating that the “alignment of the
child advocacy medical providers lies with the agencies investigating
abuse . . . .” Id. at 37.
The Court cannot conclude at this juncture that such allegations are
implausible. The Court is highly skeptical of the magnitude and depth of
such a conspiracy, but the Court is required at this stage to accept Plaintiffs’
well-pleaded factual allegations as true, and the Court cannot at this stage
conclude that they are utterly implausible. It is conceivable, as Plaintiffs
allege, that the medical professionals involved in the allegedly substandard
medical procedures and the CPS Defendants involved in the subsequent
investigation and removal of L.G. may have been motivated to “cover up”
their actions to protect their jobs and their reputations. See id. at 36. It is
similarly conceivable that, upon allegedly discovering that their actions
were not undertaken pursuant to their own policies and accepted standards
of the field, these Defendants may have essentially doubled down to take
the actions necessary to make Plaintiffs appear uncredible and to maintain
the erroneously-reached conclusion of abuse.

Elsewhere in the amended complaint, however, Plaintiffs allege that it was
Scherbarth, not Barber, who removed L.G. from the home at the direction of other
Defendants. ECF No. 37 at 32.
9

Page 23 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 23 of 116 Document 67

For purposes of the motion to dismiss stage, Plaintiffs have alleged
sufficient facts to support the conclusion that there was a “conspiracy, an
agreement on a joint course of action in which the private party and the
state have a common goal.” Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir.
1989). Accordingly, the Court is satisfied that Sheets, Gutzeit, and Ventura
may be subject to § 1983 liability.
As to Petska, however, the Court cannot so conclude. The amended
complaint does not allow for the reasonable inference that Petska
participated in an alleged conspiracy to deprive Plaintiffs of their
constitutional rights. To the contrary, Plaintiffs allege that it was Petska
who concluded that L.G.’s injuries were not necessarily indicative of abuse
and indicated to Cox that she thought everything would turn out okay for
his family, and Plaintiffs themselves allege that their exclusion from L.G.’s
appointment was contrary to Petska’s plan of care. Plaintiffs allege that
Petska wrongfully transferred care of L.G. to Ventura, but they do not
suggest that she did so intentionally—rather, Plaintiffs’ allegations suggest
that she did so negligently. However, merely because Plaintiffs have not
pleaded such factual allegations at to Petska does not necessarily mean that
“there are no [such] facts” in existence to support their claim. 3 MOORE’S
FEDERAL PRACTICE – CIVIL § 15.15. Accordingly, the Court is obliged to grant
Plaintiffs leave to file a second amended complaint to address the
deficiency noted here.
“The issue [at the pleading stage] is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to
support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated
on other grounds by Harlow v. Fitzgerald, 459 U.S. 800 (1982). If Plaintiffs
have no evidence in support of this alleged conspiracy, that will become
Page 24 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 24 of 116 Document 67

abundantly clear, and any § 1983 claims asserted against the MCW
Defendants and the Children’s Defendants will be appropriately dismissed.
But for the time being, Plaintiffs have alleged that Sheets, Gutzeit, and
Ventura worked collectively to smear Plaintiffs’ reputations, to cover up
Ventura’s flawed medical examination, to ensure that criminal charges
were brought against Cox, and to remove L.G. permanently from Plaintiffs’
home. Plaintiffs allege various facts to support these allegations, the
reasonable inferences of which also support them. The Court is satisfied at
this stage that these factual allegations, and the reasonable inferences
drawn from them, sufficiently allege a conspiracy between the CPS
Defendants and Sheets, Gutzeit, and Ventura.
5.1.1.2

The Entity Defendants

An additional discussion is necessary as to the Entity Defendants.
Can they, as private corporations, be held liable under § 1983? The Seventh
Circuit has held, albeit warily, that the answer is yes. “For purposes of
§ 1983, we have treated a private corporation acting under color of state law
as though it were a municipal entity.” Jackson v. Ill. Medi-Car, Inc., 300 F.3d
760, 766 n.6 (7th Cir. 2002). “The Supreme Court has not applied the Monell
standard to private corporations that act under color of state law, like prison
and jail health-care providers.” Hildreth v. Butler, 960 F.3d 420, 436 (7th Cir.
2020). Nevertheless, “[o]ur precedents have applied Monell to such private
corporations, though that doctrine has been questioned within the court
and the academy.” Id. (citing Shields v. Ill. Dep’t of Corr., 756 F.3d 782, 789–
90 (7th Cir. 2014)).
In sum, private entities such as MCW, CHHS, and CHW may be
subject to liability under § 1983 pursuant to the Monell standard.

Page 25 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 25 of 116 Document 67

Accordingly, in order to state a claim, as a general matter, against MCW,
CHHS, and CHW under § 1983, Plaintiffs must plead that those entities’
“polic[ies], practice[s], or custom[s], caused a constitutional violation.”
Maya v. Wexford Health Sources Inc., 17-cv-546-NJR, 2020 U.S. Dist. LEXIS
167073, at *44 (S.D. Ill. Sep. 14, 2020). Moreover, it will not suffice to allege
merely a theory of respondeat superior. Thomas v. U.S. Airways, No. 13-6121,
2014 U.S. Dist. LEXIS 65455, at *14 (E.D. Penn. May 13, 2014) (noting that a
private corporation cannot be held vicariously liable under § 1983 merely
by the actions of its employees); see also Revilla v. Glanz, 8 F. Supp. 3d 1336,
1340 (N.D. Okla. Mar. 25, 2014) (“[P]rivate corporations may not be held
liable under § 1983 based upon respondeat superior, but may only be held
liable where their policies caused a constitutional violation.”) (internal
citation omitted). Again, this requires Plaintiffs to “allege facts to show the
existence of a [CHW, CHHS, and MCW] policy or custom by which
[Plaintiffs were] denied a constitutional right and that there is a direct
causal link between the policy or custom and the injury alleged.” Revilla, 8
F. Supp. 3d at 1341 (internal citation omitted).
At times, Plaintiffs allege that it is the entity Defendants’ refusal to
adhere to their own policies and practices that caused the alleged
constitutional violations. For example, they state that the “Entity
Defendants’ policies and procedures” prohibit intimidation or retaliation
against those who make a report and that Defendant CHW intimidated and
retaliated against Plaintiffs in “direct violation of these policies and
procedures.” See ECF No. 37 at 44 (“In spite of these efforts and in violation
of the Entity Defendants’ policies and procedures, Defendants’ repeatedly
refused to take these concerns seriously, and repeatedly provided false
information to Plaintiffs . . . .”). Those allegations, even accepted as true,
Page 26 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 26 of 116 Document 67

would not appear to support Monell liability against the Entity Defendants
since they do not allege that it is the policies and procedures themselves
that caused the alleged constitutional violations. See Est. of Biegert by Biegert
v. Molitor, 968 F.3d 693, 698–99 (7th Cir. 2020) (noting that § 1983 makes
constitutional violations, but not violations of departmental regulations or
policies, actionable).
In contrast, however, Plaintiffs also repeatedly allege that these
Defendants’ policies and procedures were themselves flawed and
constitutionally violative. See, e.g., ECF No. 37 at 45 (“[W]hat happened to
L.G. and to Plaintiffs was a direct result of a broken system and of deeply
flawed, policies, practices and procedures maintained by the Entity
Defendants and which were known by them to taint their Child Advocacy
Program.”); id. at 46 (“The Entity Defendants maintained a deeply flawed
and biased system, the primary purpose of which is to confirm abuse, rather
than to investigate to determine the truth.”); id. at 47 (“Despite being placed
on notice of this and other important findings about gaps and flaws in the
Entity Defendants’ policies and procedures regarding the treatment of
children in out-of-home placement, the Entity Defendants’ [sic] failed to
improve those policies and procedures, resulting in the numerous failures
and errors with [sic] pervaded their treatment of L.G.”). The Court is
satisfied that these allegations sufficiently allege that the constitutional
violations alleged against MCW, CHHS, and CHW were caused by the
policies, procedures, and/or customs of those Defendants, as required to
invoke § 1983 liability against them pursuant to Monell.
And finally, the Court addresses the MCW Defendants’ scant
contention that application of the intracorporate immunity doctrine bars
this conclusion, at least as to them. The MCW Defendants write that “the
Page 27 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 27 of 116 Document 67

MCW Defendants’ discussions with each other would be protected under
the intracorporate immunity defense.” ECF No. 42 at 27. In support of this
contention, they cite only Copperweld Corp. v. Independence Tube Corp., 467
U.S. 752 (1984). There, the Supreme Court had granted certiorari on the
question of “whether a parent corporation and its wholly owned subsidiary
are legally capable of conspiring with each other under § 1 of the Sherman
Act.” Copperweld, 467 U.S. at 755. The MCW Defendants do not explain how
the Supreme Court’s resolution of that question extends to the distinct
circumstances here, outside of the antitrust context. In response, Plaintiffs
assert simply that there is no “validity to the arguments brought relating to
the intracorporate conspiracy doctrine, since Plaintiffs expressly allege that
the conspiracy encompassed employees of at least three different
corporations or agencies.” ECF No. 61 at 31.
The MCW Defendants’ single-sentence reference to this doctrine is
insufficient to raise the issue, and they have accordingly forfeited it. See
Shipley v. Chi. Bd. of Election Comm’rs, 947 F.3d 1056, 1063 (7th Cir. 2020)
(“Arguments that are underdeveloped, cursory, and lack supporting
authority are waived.”); Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 842
(7th Cir. 2010) (“We will not fill this void by crafting arguments and
performing the necessary legal research.”).
Having established that Plaintiffs’ second amended complaint
sufficiently invokes § 1983 liability against the MCW Defendants and the
Children’s Defendants, including both the named individuals and the
entities, the Court now proceeds to evaluating the specific claims pleaded
under § 1983.

Page 28 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 28 of 116 Document 67

5.1.2

Count I – Due Process

Plaintiffs allege Count I (§ 1983 Due Process claim) against all
Defendants. ECF No. 37 at 56. Plaintiffs write that “[a]s a result of their
status as L.G.’s pre-adoptive parents . . . , Plaintiffs had a liberty interest in
their existing and anticipated future familial relationship with L.G.” Id. at
57. As described in greater detail earlier in the amended complaint, “the
Individual Defendants, individually, jointly, and in conspiracy with one
another, as well as under color of law and within the scope of their
employment, acted to deprive Plaintiffs of their liberty interest in their
existing and anticipated future familial relationship with L.G.” Id. “As a
result of [this misconduct,] Plaintiffs were permanently deprived of their
familial relationship with L.G., and suffered great mental and emotional
anguish . . . .” Id.
To state a Fourteenth Amendment due process claim under § 1983,
Plaintiffs must allege (1) that they had a cognizable liberty interest under
the Fourteenth Amendment; (2) that they were deprived of that liberty
interest; and (3) that the deprivation was without due process. Mann v.
Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (internal citation omitted).
First, the Court must determine whether Plaintiffs have identified a
protected interest. Plaintiffs cite to the liberty interest in their “existing and
anticipated future familial relationship with L.G.” ECF No. 37 at 57.
Defendants argue that Plaintiffs cannot make out a viable due process claim
because L.G. was merely Plaintiffs’ foster child, and they her pre-adoptive
parents, rather than having completed a formal adoption. ECF No. 61 at 24.
The assertion of rights of association and companionship with one’s
children as liberty interests for purposes of due process is not novel. See,
e.g., Russ v. Watts, 190 F. Supp. 2d 1094, 1099 (N.D. Ill. 2002). The question
Page 29 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 29 of 116 Document 67

is whether recognition of such rights extends to those relationships that are
not only non-biological, but have also not yet reached the point of adoption.
The Seventh Circuit has recognized that a parent-child relationship need
not necessarily be biological to invoke a protectable liberty interest. See
Procopio v. Johnson, 994 F.2d 325, 328 (7th Cir. 1993). Indeed, the Supreme
Court in Smith v. Organization of Foster Families for Equality & Reform, 431
U.S. 816, 844 (1977) wrote that it could not “dismiss the foster family as a
mere collection of unrelated individuals” and acknowledged that the “basic
foundation of the family in our society . . . is of course not a matter of blood
relation.”10 But whether the recognition of that interest extends to the
context of foster relationships, and specifically to that of pre-adoptive
relationships, where the child has not yet been formally adopted by the
plaintiff-parents, remains unclear.
The question arose in this district in Thelen v. Catholic Social Services
several decades ago. 691 F. Supp. 1179 (E.D. Wis. 1988). Plaintiffs rely
heavily on this case. There, the plaintiffs sought adoption of a baby through
a private adoption agency. Id. at 1180. They welcomed a baby into their
home as pre-adoptive parents, until the private adoption agency became
aware of allegations of infidelity in the family. Id. Roughly three to four

Notwithstanding this acknowledgment, the Supreme Court did not, and
has not since, explicitly held that a foster family relationship creates a protected
liberty interest. The Court in Smith assumed only arguendo that it constituted a
protected liberty interest, but decided the case on other grounds. 431 U.S. at 847
(“[E]ven on the assumption that appellees have a protected ‘liberty interest,’ the
District Court erred in holding that the preremoval procedures presently
employed by the State are constitutionally defective.”). See also Thelen v. Catholic
Soc. Servs., 691 F. Supp. 1179, 1183–84 (E.D. Wis. 1988) (“In the Supreme Court case
of [Smith], the court discussed, but did not resolve, the issue of whether foster
parents had a constitutionally protected liberty interest in their relationship with
a foster child.”).
10

Page 30 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 30 of 116 Document 67

months into the 6-month waiting period, the adoption agency removed the
child from plaintiffs’ care. Id. at 1180–81. The pre-adoptive parents brought
suit after the state declined to administratively review the private adoption
agency’s removal decision. Id. at 1181. The plaintiffs’ due process claim
alleged that they were “deprived of their ‘fundamental and/or property
interest’ in the pre-adoptive family unit without due process of law.” Id. at
1182 (internal citation omitted).
In beginning its analysis, the court wrote that “the initial hurdle
which must be overcome by the [plaintiffs] is establishing that they have
been deprived of a constitutionally protected liberty or property interest.”
Id. at 1183. In analyzing whether plaintiffs had done so, the court noted that
“it is appropriate to ascertain from state law the expectations and
entitlements of the parties.” Id. at 1184; see also Lindley v. Sullivan, 889 F.2d
124, 130 (7th Cir. 1989) (noting that both foster parents’ rights and adoptive
parents’ rights are creatures of state law, historically governed by
legislative enactment).
Under Wisconsin law, proposed adoptive parents must satisfy
conditions of pre-adoption before they can petition for formal adoption.
Wis Stat. § 48.90 provides that “no petition for adoption may be filed unless
the child has been in the home of the petitioners for 6 months or more[,]”
unless certain circumstances are applicable. Following completion of the six
month pre-adoptive period, the pre-adoptive parents may file their petition
for

adoption.

Thelen,

691

F.

Supp.

at

1184.

An

investigation,

recommendation by the adoption agency, and hearing on the petition
follow. Id.
The court in Thelen distinguished the reasonable expectations and
entitlements of typical foster parents with those of pre-adoptive parents.
Page 31 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 31 of 116 Document 67

“Unlike the foster parents, the prospective adoptive parents cannot be said
to expect that their relationship with the child will be ended.” Id. “To the
contrary, the very motive of the prospective adoptive parents, as well as the
State, is to secure a life-long relationship between the adoptive parents and
the child.” Id. “[W]hile the State ultimately will decide whether the
prospective adoptive parents do gain legal custody of the child, it cannot
be said that the parents with whom the child has been placed have a
reasonable expectation under Wisconsin law that the relationship will
eventually be terminated.” Id. at 1185. Accordingly, the Court in Thelen
ultimately concluded that “the prospective adoptive couple has a limited,
but not wholly insignificant, constitutionally protected liberty interest in
their family unit during the initial six-month period that a child is placed in
their home.” Id.
Things do not end there, however. The question again arose in
Procopio several years later, albeit under Illinois law. There, the plaintiffs
were foster parents to a child for five years. Procopio, 994 F.2d at 326. The
foster parents intended to eventually adopt the child and had been led to
believe that “almost no significant barriers would prevent their adoption”
of the child. Id. at 326–27. The child’s birth parents, however, sought to
regain custody after the child had resided with plaintiffs all those years.
They successfully did so—the juvenile court returned the custody of the
child to her birth parents Id. The plaintiffs, as foster parents, sued, including
for violations of the Fourteenth Amendment Due Process Clause, just as the
plaintiffs had in Thelen. Id. Unlike in Thelen, however, the district court
dismissed the case, accepting the defendants’ contentions that the plaintiffs
failed to allege a cognizable liberty interest for purposes of due process
protection. Procopio v. Johnson, 785 F. Supp. 1317, 1319 (N.D. Ill. 1992).
Page 32 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 32 of 116 Document 67

The Seventh Circuit affirmed, acknowledging that while the
“Supreme Court has recognized that biological relationships are not the
‘exclusive determination of the existence of a family’ and that emotional
attachments play a role as well[,]” it has “stopped short of deciding that
foster family arrangements achieve the status of a liberty interest that states
cannot disrupt without due process.” Procopio, 994 F.2d at 328. The proper
means of determining the “scope of the liberty interest at stake,” the district
court wrote, and the Seventh Circuit confirmed, “is appropriately
ascertained from the parties’ expectations and entitlements as they are set
out in state law.” Id. The critical question is whether the applicable statutory
language “supports an expectancy of a permanent relationship” with the
foster child. Id. at 329. This analysis does not differ from that utilized in
Thelen, but it led the district court to a different outcome.
In Procopio, the applicable statutory language—from the Illinois
Juvenile Court Act of 1987, Ill. Rev. Stat. ch. 37, § 801-1 et seq.—provided
that where possible, a minor removed from his or her family should be
placed “in a family home so that he or she may become a member of the
family by legal adoption or otherwise.” Additionally, the plaintiffs
proffered, the Illinois Adoption Act indicated that foster parents were to be
“preferred above all others as the foster child’s permanent family.” Id. The
relevant provision provided that “the child’s legal guardian ‘shall give
preference and first consideration to [the foster parents’] application over
all applications for adoption of the child . . . .” Id. (internal citation omitted).
Despite this express statutory preference in the adoption process for
the foster parents who intended to permanently adopt the child, the
Seventh Circuit agreed with the district court that the statutory language
was insufficient to “create a liberty interest” in the relationship between
Page 33 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 33 of 116 Document 67

plaintiffs and the foster child. Id. at 328–29 (“Notwithstanding the
preference state law grants to foster families seeking to adopt their foster
children, this priority does not rise to the level of an entitlement or
expectancy.”).
The question arose again more recently, in 2014, again under Illinois
law. See Van Dyke v. Ill. Dep’t of Children & Fam. Servs., No. 13-C-5971, 2014
U.S. Dist. LEXIS 70222 (N.D. Ill. May 22, 2014). The facts of that case bear
some resemblance to those presently before the Court. Van Dyke involved a
child, K.C., who had been placed for fostering with the plaintiff, his
grandmother. Id. at *1. A defendant, Illinois Department of Children and
Family Services, removed K.C. from the plaintiff’s home based on
allegations of abuse. Id. The plaintiff had previously reported suspicions of
sexual abuse against K.C. by K.C.’s biological father, seeking an order from
the juvenile court terminating visitation between K.C. and his biological
father. Id. at *4. This defendant later removed K.C. from the plaintiff’s home,
in what the plaintiff alleged was retaliation for her report of sexual abuse.
Id. at *5. The defendant alleged that plaintiff had abused K.C. and
accordingly removed K.C. from the home. Id.
The plaintiff there alleged, inter alia, violation of her substantive due
process rights. Id. at *1. The defendants brought a motion to dismiss,
claiming that “Plaintiff has no impairment of a substantive due process
interest as K.C.’s former foster parent.” Id. at *9. The court agreed, following
Procopio, and granted the motion to dismiss. “Foster parents do not have
constitutional rights to a continued relationship with a foster child placed
in their home,” the court wrote. Id. at *10 (internal citation omitted). “[T]he
foster family’s existence is subject to the state’s determination that it should
continue, and Illinois law can create no expectancy of a constitutionally
Page 34 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 34 of 116 Document 67

protected liberty interest.” Id. at *9–10 (quoting Procopio, 994 F.2d at 330);
see also Dupuy v. Samuels, 397 F.3d 493, 513 (7th Cir. 2005) (“[F]oster parents
do not have a constitutionally protected interest in maintaining a
relationship with a specific foster child . . . . Illinois law confers no liberty
interest on foster parents to a relationship with a foster child or the
continued placement of certain children in their home, because the foster
family relationship is subject to the State’s determination that it should continue.”)
(citing Procopio, 994 F.2d at 330) (emphasis added)).
The plaintiff in Van Dyke argued that not only was she a foster parent,
she also was K.C.’s maternal grandmother, and that by virtue of that
additional relationship, she possessed “a liberty interest in a close familial
relationship with her grandson.” Id. at *10. The court didn’t bite, writing
that the plaintiff was still merely a “foster parent and a grandparent without
permanent custody rights . . . .” Id. at *11 (emphasis added). This suggests that
the addition of supporting factors (for example, a biological relationship
such as grandparent, or a particularly prolonged period of care in the foster
parents’ home) might not suffice to push a foster parent into territory
involving a protected liberty interest.
Plaintiffs do not address how Procopio implicates the validity of
Thelen and, accordingly, their reliance thereon. Procopio’s conclusion, and
Van Dyke’s following, call into question the continued validity of this
district’s decision in Thelen in 1988. Since Procopio was not decided pursuant
to Wisconsin law, the critical question is whether there are differences
between the statutory texts and factual contexts at issue in Thelen versus in
Procopio (and subsequently, Van Dyke) sufficient to support different
conclusions. Does an individual’s status as a pre-adoptive parent under
Wisconsin law, rather than as merely a temporary foster parent with no
Page 35 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 35 of 116 Document 67

intention of adoption, create a protectable liberty interest where one
otherwise does not exist? Because the applicable Wisconsin statutory
language similarly fails to support an entitlement to a permanent
relationship with the foster child, the Court concludes that it does not.
Accordingly, the Court holds that this district’s decision in Thelen has been
invalidated by the Seventh Circuit’s decision in Procopio.11 Therefore, Thelen
does not mandate the outcome in the present case.
As noted previously, under Wisconsin law, proposed adoptive
parents must satisfy various conditions of preadoption before they can
petition for formal adoption. Wis Stat. § 48.90 provides that “no petition for
adoption may be filed unless the child has been in the home of the
petitioners for 6 months or more[,]” unless certain circumstances are
applicable.12 But even where the child resides with the pre-adoptive parents
for that period, they still cannot file a petition for adoption “unless the
petitioners have complied with all applicable provisions of this chapter
relating to adoptive placements.” Wis. Stat. § 48.90(3). In other words,

The Tenth Circuit in Elwell v. Byers held that “while the typical foster care
arrangement generally does not create a liberty interest in familial association . . .
the [plaintiffs], who had cared for [the child] nearly his entire life and were on the
verge of adopting him, fall closer to the status of adoptive parents than in the
ordinary, temporary foster arrangement.” 699 F.3d 1208, 1217 (10th Cir. 2012).
Even if Elwell were mandatory authority, it would be clearly distinguishable here.
Where there the situation warranted recognition of a protected liberty interest in
part because the plaintiffs had cared for the child nearly his entire life (there, over
a year) and were “on the verge of adopting him,” id. at 1211–12, 1208, here
Plaintiffs had L.G. in their care for less than a month and were less than a month
into the required six-month waiting period before they could even file a petition
for adoption. ECF No. 37 at 9; Wis. Stat. § 48.90.
11

The parties do not argue that any of those enumerated circumstances, see
Wis. Stat. § 48.90(1), are applicable.
12

Page 36 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 36 of 116 Document 67

having begun the pre-adoptive waiting period is merely one step in a road
that continues for some time and which may be spotted with hurdles.
For example, § 48.84 provides that “[b]efore a child may be placed”
for adoption by a proposed adoptive parent, “the proposed adoptive parent
shall complete the preadoption preparation required under this section.”
Wis. Stat. § 48.84.13 Once the preadoption period is completed and the
petitioner

files

the

adoption

petition,

“an

investigation

and

recommendation is made by the agency involved and a hearing is
required.” Thelen, 691 F. Supp. at 1184 (citing Wis. Stat. §§ 48.81–48.91). At
that hearing, “the determination of adoption is made based on the best
interest of the child.” Id. (citing Wis. Stat. § 48.91(3)). If the adoption agency
is the legal guardian of the child, its recommendation is “presumed to be in
the best interest of the child unless the fair preponderance of the credible
evidence is to the contrary.” Wis. Stat. § 48.85. If the petition is denied, “the
child remains in the legal custody of the agency.” Thelen, 691 F. Supp. at
1184 (citing Wis. Stat. § 48.95).
These provisions all indicate that while the pre-adoptive parents
subject to them may legitimately hope and aspire to adopt the foster child
formally and permanently, and may expect based on their successful
completion of the 6-month waiting period that they will be successful in
achieving that outcome, they are far from having an entitlement to that
outcome. Plaintiffs acknowledge this. ECF No. 61 at 26 (“[Plaintiffs] were
not entitled to adopt L.G.”). Mere expectations unsupported by state law
are insufficient to give rise to a state-created liberty interest protected by
This section applies only to those proposed adoptive parents who have
not “previously adopted a child,” however—a group of which Plaintiffs are not a
part. See ECF No. 37 at 2 (noting that Plaintiffs have two adopted sons).
13

Page 37 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 37 of 116 Document 67

the Due Process Clause. Rodriguez v. McLoughlin, 214 F.3d 328, 338 (2d Cir.
2000).
Plaintiffs seem to argue that, as pre-adoptive parents, they have
some sort of statutorily elevated status in the adoption process. See id. at 35
(“L.G. was not a foster child, but a child as part of pre-adoptive status.”).
But the status of preadoption is not akin to a rubber stamp on a subsequent
adoption petition. It is instead a prerequisite to even filing a petition for
adoption in the first instance. Affixing the label of “pre-adoptive parents”
onto the situation does not change the fact that they remain under the
umbrella of fostering, an arrangement to which “the State is a party.” See
id.; see also generally Pierce County v. C.S., 877 N.W.2d 651, 2016 Wisc. App.
LEXIS 115 (Wis. Ct. App. 2016) (referring to pre-adoptive parents as foster
parents throughout); see also Katherine S. Wilson, Comment: Not Quite a
Family: the Second Circuit Decides Against Recognizing Procedural Due Process
Rights for a Pre-Adoptive Foster Family in Rodriguez v. McLoughlin, 67
Brooklyn L. Rev. 899, 909 (2002) (“The Kyees decision, however,
emphasized more strongly the Supreme Court’s statement that the foster
family is an ‘arrangement’ to which the State is a party.”) (citing Kyees v.
Cnty. Dep’t of Public Welfare, 600 F.2d 693, 698 (7th Cir. 1979)). Plaintiffs
emphasize a distinction between foster parents and pre-adoptive parents,
but the effect they attribute to it does not appear to be supported by law.
Procopio, 994 F.2d at 330 (“Despite the differing emphases on the possible
permanence of foster families, the state’s ultimate power to terminate those
arrangements—a power that both Illinois and Indiana have—is
dispositive.”) (emphasis added). Wisconsin, too, retains that power,
irrespective of a foster parent’s status as a pre-adoptive parent.

Page 38 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 38 of 116 Document 67

Even assuming arguendo that Plaintiffs’ argument as to an alleged
heightened position as pre-adoptive parents is true, that argument cannot
carry the day. That same argument was made by the foster parents and
accepted by the Seventh Circuit in Procopio, and it was still insufficient to
create a protectable liberty interest. Procopio, 994 F.2d at 328–29
(acknowledging express statutory preference for adoption placement with
foster parent, but nevertheless holding that this was insufficient to create a
liberty interest in the foster relationship). As under Illinois law in Procopio,
Wisconsin retains the ultimate say in whether the child may be adopted. See
Wis. Stat. § 48.95 (relating to denial of adoption petition). The pre-adoptive
family relationship, like the foster family relationship, is subject to the
State’s determination that it should continue. This factor is expressly
identified as “dispositive” in authority that is mandatory to this Court.
Procopio, 994 F.2d at 330.
Plaintiffs argue that absent Defendants’ conduct, “Plaintiffs would
have completed the 6 month period of waiting and would have been fit
parents for adoption, as they were already the adoptive parents of two
children and there was no reason not to complete the adoption.” ECF No.
61 at 35. But the Court is not persuaded that such a statement can be made
with such certainty where the state retains the ultimate discretion to grant
the adoption petition and thereby complete the adoption, and is
constrained by the best interest of the child irrespective of the completion
of the preadoption period. See Wis. Stats. §§ 48.91(3), 48.85. Plaintiffs also
argue that they were deprived of the “state law process, pursuant to which
if they followed the procedural requirements . . . they would obtain, as a
matter of right (“shall make an order”) an adoption order making L.G. part
of their family.” ECF No. 61 at 26 (quoting Wis. Stat. § 48.91). But “the fact
Page 39 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 39 of 116 Document 67

that a state has established procedures to be followed does not mean that it
has created a protectable liberty interest.” Rodriguez, 214 F.3d at 339.
Furthermore, Wisconsin law expressly states that the “rights”
associated with the “natural relation of child and parent” do not exist until
“[a]fter the order of adoption is entered.” Wis. Stat. § 48.92(1). See also Van
Dyke, 2014 U.S. Dist. LEXIS 70222, at *10–11 (noting explicitly, in holding
that foster relationship created no protected liberty interest, that plaintiff
there was a “foster parent and a grandparent without permanent custody
rights”). No reference is made in Wisconsin law to pre-adoptive parents
having any such rights, even in limited form, during the pre-adoptive
period.
The Court is obligated to follow the Seventh Circuit’s reasoning and
holding in Procopio. And because the Court finds that the status of a
temporary foster parent versus a pre-adoptive parent, and the respective
statutory language related to them, do not differ significantly enough to
warrant departure from Procopio’s reasoning and holding, the Court must
depart from this district’s previous holding in Thelen. The Court concludes
that the pre-adoptive parent’s relationship with the child under Wisconsin
law does not constitute a protectable liberty interest for purposes of
Fourteenth Amendment due process. Even accepting all of Plaintiffs’
factual allegations as true, the Court must dismiss their due process claim
for failure to state a claim. Furthermore, granting leave to amend to address
this issue would be futile because no further factual elaboration can remedy
the conclusion that Wisconsin law does not support an entitlement or
expectancy of a permanent relationship for foster and pre-adoptive parents.
See NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 310 (7th Cir. 2018)
(district court need not allow amendment if doing so would be futile).
Page 40 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 40 of 116 Document 67

Accordingly, the Court will grant Defendants’ motions to dismiss to the
extent that they seek dismissal of Count I for failure to state a claim.
5.1.3

Counts II & III – Equal Protection Based on Class
Membership

Plaintiffs separately allege equal protection violations by all
Defendants on the basis of two classes: (1) their status as pre-adoptive
parents, and (2) their status as physicians. ECF No. 37 at 57–58. Having
already established state action via the alleged conspiracy for purposes of
rendering Sheets, Gutzeit, Ventura, MCW, CHW, and CHHS vulnerable to
liability under § 1983, the Court addresses each equal protection claim in
turn.
5.1.3.1

Status as Pre-adoptive Parents

Plaintiffs first allege violations by all Defendants of the Equal
Protection Clause based on their status as “pre-adoptive parents.” Id. at 57.
They allege that Defendants treated Plaintiffs “less favorably, afforded
them fewer rights, privileges, and procedural protections, and acted in a
manner violative of Plaintiffs’ dignity and basic human and civil rights on
account of Plaintiffs’ employment status as pre-adoptive parents.” Id. at 57–
58. In so doing, Plaintiffs allege that Defendants acted with “discriminatory
animus towards Plaintiffs” because Defendants did not view their status as
pre-adoptive parents as “worthy of their care, attention or respect.” Id. at
58.

Further,

Plaintiffs

allege,

this

discriminatory

treatment

was

unsupported by any “rational basis.” Id.
“The Equal Protection Clause of the Fourteenth Amendment
prohibits intentional and arbitrary discrimination.” Dunnet Bay Constr. Co.
v. Borggren, 799 F.3d 676, 696 (7th Cir. 2015) (internal citation omitted), cert.
denied by Dunnet Bay Constr. Co. v. Blankenhorn, 2016 U.S. LEXIS 4864 (Oct.
Page 41 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 41 of 116 Document 67

3, 2016). “For an equal-protection claim based on class membership to
survive a motion to dismiss, a plaintiff must sufficiently allege that they
were treated differently by the government based on membership in a
protected class, and that the defendant acted with discriminatory intent.”
Doe v. Bd. of Educ., No. 19-C-00263, 2020 U.S. Dist. LEXIS 52156, at *18–19
(N.D. Ill. Mar. 24, 2020). Further, “[o]nly when the plaintiff in an equal
protection case is complaining of a form of discrimination that is suspect
because historically it was irrational or invidious is there a heavier burden
of justifying a difference in treatment than merely showing that it is
rational.” Irizarry v. Bd. of Educ., 251 F.3d 604, 610 (7th Cir. 2001). To put it
more simply, unless the alleged discriminatory treatment is based on a
suspect classification, that treatment need withstand only rational basis
review. Little Arm, Inc. v. Prosecutors: Adams, 13 F. Supp. 3d 893, 911 (S.D.
Ind. 2014).
Plaintiffs concede that no heightened review is warranted here and
that rational basis is the applicable standard. ECF No. 61 at 28. But they
characterize the issue not as
whether there could be a rational basis for some level of
disparate treatment between the class(es) to which Plaintiffs
belonged and other classes of people—that is to say, Plaintiffs
do not and need not allege that Defendants would lack a
rational basis for treating pre-adoptive parents differently in
any fashion from parents with full parental rights . . . . The
issue is, was there any rational basis for excluding Plaintiffs
completely from any participation in L.G.’s care, based on
[Plaintiffs’] status as pre-adoptive parents . . . .
Id. at 28–29.
Plaintiffs

have

sufficiently

alleged

that

some

Defendants

intentionally discriminated against them based on their status as pre-

Page 42 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 42 of 116 Document 67

adoptive parents. The gist of Plaintiffs’ equal protection claim based on
their status as pre-adoptive parents is that they were treated differently
than non-pre-adoptive parents (i.e., formal adoptive parents or biological
parents) because of discriminatory animus. The reasonable inferences of
their factual allegations are that if they had been formal adoptive parents,
rather than pre-adoptive parents, they would have been afforded more
respect and attention and would have been allowed to participate in L.G.’s
medical care, which would have allowed them to provide L.G.’s patient
history. See ECF No. 37 at 58 (“[T]he Individual Defendants acted with
discriminatory animus towards Plaintiffs on account of their status as preadoptive parents, a status which the Individual Defendants did not view as
worthy of their care, attention or respect.”) and at 41 (“Defendants’ attempt
to use Plaintiffs’ status as pre-adoptive foster parents as a legitimate
justification for excluding them from L.G.’s care was incorrect and
malicious, highlighting the persistent willingness of Defendants to
incorrectly, unethically, and illegally treat pre-adoptive foster parents with
less respect and consideration than they are entitled to by law.”)
(“Defendant Gutzeit stated that Plaintiffs’ status as foster parents justified
their exclusion from L.G.’s medical evaluation.”).
The Children’s Defendants argue that Plaintiffs have failed to state
an equal protection violation because “[a]ll it takes to defeat [an equal
protection] claim is a conceivable rational basis for the difference in
treatment.” ECF No. 47 at 21–22 (internal citation omitted). They argue that
on a motion to dismiss, a plaintiff must “allege facts sufficient to overcome
the presumption of rationality that applies to government classifications”
and that Plaintiffs have failed to do so. Id. at 22.

Page 43 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 43 of 116 Document 67

It is true that under rational basis review, a law is presumed
constitutional, and “a classification cannot run afoul of the Equal Protection
Clause if there is a rational relationship between the disparity of treatment
and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320
(1993). Application of this standard, however, is somewhat counterintuitive
at the motion to dismiss stage. In Wroblewski v. City of Washburn, 965 F.2d
452, 459 (7th Cir. 1992), the Seventh Circuit wrote that “[a] perplexing
situation is presented when the rational basis standard meets the standard
applied to a dismissal under Fed. R. Civ. P. 12(b)(6).” “The rational basis
standard requires the government to win if any set of facts reasonably may
be conceived to justify its classification; the Rule 12(b)(6) standard requires
the plaintiff to prevail if ‘relief could be granted under any set of facts that
could be proved consistent with the allegations.’” Id. (internal citation
omitted). In other words, the rational basis standard, which is deferential to
the defendant, intersects with the motion to dismiss standard, which is
deferential to the plaintiff. See Akbar v. Daley, No. 09-CV-1289, 2019 U.S.
Dist. LEXIS 85897, at *14–15 (N.D. Ill. Sep. 18, 2009). What is the outcome of
such an intersection?
“The rational basis standard, of course, cannot defeat the plaintiff’s
benefit of the broad Rule 12(b)(6) standard,” the court in Wroblewski wrote.
965 F.2d at 459. If it could, allegations of equal protection violations would
rarely, if ever, make it past the pleading stage. The way to proceed, the court
explained, was to “take as true all of the complaint’s allegations and
reasonable inferences that follow,” and apply the resulting “facts” in light
of the deferential rational basis standard. Id. at 460. “To survive a motion to
dismiss for failure to state a claim, a plaintiff must allege facts sufficient to
overcome the presumption of rationality that applies to government
Page 44 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 44 of 116 Document 67

classifications.” Id. In Wroblewski, the Seventh Circuit affirmed dismissal of
the plaintiff’s equal protection claim because “[a] rational basis for the
City’s policy toward Wroblewski [was] not only conceivable and plausible;
it [was] directly supported by the allegations in the complaint.” Id. That
being the case, “[t]he complaint’s conclusionary assertion that the policy
[was] ‘without rational basis’ [was] insufficient to overcome the
presumption of rationality coupled with the readily apparent justification
for the policy.” Id.
While it is true that Plaintiffs have made the “conclusionary
assertion” that Defendants’ actions lacked a rational basis, see ECF No. 37
at 58 (“There was no rational basis for the manner in which the Individual
Defendants treated Plaintiffs less favorably on account of their status as preadoptive parents”), that is not the full extent of their allegations on the issue.
For example, Plaintiffs argue that “it is not rational to have excluded
Plaintiffs from any involvement in L.G.’s care, because that deprived L.G.’s
caregivers from gathering any meaningful patient history.” ECF No. 61 at
29; see also ECF No. 37 at 40 (noting Plaintiffs’ concern regarding Ventura’s
refusal to speak with them to gain L.G.’s patient history and asserting a
national standard requiring gathering a child’s patient history from the
child’s caregivers) and at 17 (asserting that Ventura’s documentation in
L.G.’s medical record that L.G.’s medical history was limited because she
was brought in by a CPS worker was misleading due to Ventura’s exclusion
of Plaintiffs from the appointment). Indeed, since L.G. was taken to the
medical appointment at the Milwaukee Child Advocacy Center by a CPS
employee, and since Plaintiffs were disallowed from attending or
participating in any fashion, this enabled Ventura to record the arguably
misleading conclusion that no patient history for L.G. was available.
Page 45 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 45 of 116 Document 67

Plaintiffs additionally allege that Defendants’ decision to exclude them
from participating in L.G.’s medical care “violated standard medical
practice, and contravened the Entity Defendants’ policies and procedures.”
ECF No. 37 at 23. In light of all of this, Plaintiffs have alleged “facts
sufficient to overcome the presumption of rationality.” Wroblewski, 965 F.2d
at 460.
Furthermore, this situation is distinct because a rational basis is not
“directly supported by the allegations in the [amended] complaint.” See
Wroblewski, 965 F.2d at 460. Nothing in Plaintiffs’ amended complaint,
taking its factual allegations as true and making all reasonable inferences in
Plaintiffs’ favor, lends itself to a rational basis for excluding Plaintiffs from
the appointment based on their being pre-adoptive parents rather than
adoptive or biological parents. See Doe, 2020 U.S. Dist. LEXIS 52156, at *22
(“[E]ven with the applicable presumption of rationality, at this stage the
Court must still draw any plausible inferences in Plaintiffs’ favor . . . .”).
And “taking the Plaintiffs’ allegations as true, the Amended Complaint
does not reveal any conceivable rational basis” for the differential
treatment. Id. at *23.14

The Children’s Defendants write that “[o]ne can easily conceive of
rational reasons for treating” pre-adoptive parents differently from adoptive or
biological parents, and physician parents differently from parents of other
professions. ECF No. 47 at 22. They write that pre-adoptive parents have a “more
limited interest in their relationship” with the child and that it would accordingly
be rational for health care providers to grant them less information and access to
proceedings involving the child. Id. But the question is whether such alleged
rational reasons are conceivable and plausible in light of the Plaintiffs’ allegations.
See Wroblewski, 965 F.2d at 460. And here, where Plaintiffs allege that their
exclusion resulted in Defendants making medical conclusions without the benefit
of any patient history, they have rebutted the presumption of rationality, at least
for purposes of the pleading stage.
14

Page 46 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 46 of 116 Document 67

Accordingly, the Court is satisfied that Plaintiffs have satisfied their
burden at this stage, at least as to some Defendants. However, Plaintiffs
have asserted these equal protection claims against all named Defendants,
and the Court must address the fact that not all named Defendants
participated in any capacity in Plaintiffs’ exclusion from L.G.’s medical care
and the alleged differential treatment of Plaintiffs generally. For example,
the extent of Urban’s involvement in the case, according to Plaintiffs’ own
allegations, was to be informed by Dr. Pomeranz in August of 2019 of his
concerns regarding the medical treatment provided to L.G., at which time
Urban allegedly responded that she was staying out of the case. That
allegation does not indicate that Urban afforded differential treatment to
Plaintiffs based on discriminatory animus. Plaintiffs have therefore failed
to state equal protection claims against Urban.
Similarly, Plaintiffs assert equal protection claims against Petska, but
there are no allegations in the amended complaint suggesting that Petska
afforded differential treatment to Plaintiffs based on discriminatory
animus. To the contrary, it was Petska who concluded that L.G.’s injuries
were not necessarily indicative of abuse and indicated to Cox that she
thought everything would turn out okay for his family, and Plaintiffs
themselves allege that their exclusion from L.G.’s appointment was
contrary to Petska’s plan of care. Plaintiffs allege that Petska wrongfully
transferred care of L.G. to Ventura, but they do not suggest that she did so
out of discriminatory animus. Rather, the amended complaint seems to
suggest that Petska did so negligently. Therefore, even if Plaintiffs had
succeeded in alleging that Petska was vulnerable to suit under § 1983,
which the Court has concluded is not the case, see supra Section 5.1.1.1, their
equal protection claims against her would still fail.
Page 47 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 47 of 116 Document 67

The equal protection claims are also brought against Chagall, but the
extent of Chagall’s alleged participation was her presence at a meeting held
on November 14, 2019, at which time Chagall was “responsible for
overseeing the formal review process.” ECF No. 37 at 52. This was months
after Plaintiffs were excluded from L.G.’s appointment and were withheld
information relating thereto and the photos taken therein. The amended
complaint alleges that Chagall, in violation of requirements applicable to
her, sent medical reports provided by Cox to an outside consultant “in an
attempt to further discredit” the physicians who supported Plaintiffs. Id.
Plaintiffs allege that this was a “blatant and desperate abuse of the process
with the intent to perpetuate the false statement that Dr. Cox had abused
L.G. and further prevent the adoption of L.G.” Id. These allegations do not
suggest that Chagall undertook this alleged conduct with discriminatory
animus based on Plaintiffs’ membership in any particular class.
However, such deficiencies in pleading may be redressable by
amendment. “Courts should not dismiss the complaint unless it is beyond
a doubt that there are no facts to support relief.” 3 MOORE’S FEDERAL
PRACTICE

– CIVIL § 15.15. Merely because Plaintiffs have not pleaded such

factual allegations as to Urban, Petska, and Chagall does not necessarily
mean that “there are no [such] facts” in existence to support their claim. Id.
Accordingly, the Court is obliged to grant Plaintiffs leave to file a second
amended complaint to address the deficiencies noted here.15

Failure to properly submit a second amended complaint addressing these
deficiencies will result in dismissal without prejudice of Count II and III against
Urban, Petska, and Chagall for failure to state a claim. The same will be true for
any other deficient claim addressed in this Order for which the Court has granted
leave to amend.
15

Page 48 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 48 of 116 Document 67

A separate discussion is also needed as to the Entity Defendants. As
noted previously, in order to state a claim against them under § 1983,
Plaintiffs must plead that those entities’ “polic[ies], practice[s], or
custom[s], caused a constitutional violation.” Maya, 2020 U.S. Dist. LEXIS
167073, at *44. As noted previously, Plaintiffs at times plead the opposite of
what that standard requires. “This decision to bar Plaintiffs from attending
L.G.’s medical visit . . . deviated from the Entity Defendants’ policies and
procedures.” ECF No. 37 at 14; see also id. at 23 (“The decision to exclude
Plaintiffs from participating in L.G.’s medical care . . . contravened the
Entity Defendants’ policies and procedures.”). Plaintiffs have in those
instances pleaded that it was not the Entity Defendants’ policies,
procedures, or customs that caused the alleged equal protection violations
against them, but rather the Entity Defendants’ employees’ failure to follow
them. This is insufficient to establish § 1983 liability against the Entity
Defendants. See Thomas, 2014 U.S. Dist. LEXIS 65455, at *14 (a private
corporation cannot be held vicariously liable under § 1983 merely by the
actions of its employees).
At the same time, however, Plaintiffs have also pleaded that the
policies and procedures of the Entity Defendants were themselves
constitutionally violative and contributed to Plaintiffs’ injuries. ECF No. 37
at 45 (“[W]hat happened to L.G. and to Plaintiffs was a direct result of a
broken system and of deeply flawed, policies, practices and procedures
maintained by the Entity Defendants and which were known by them to
taint their Child Advocacy Program.”); id. at 47 (“Despite being placed on
notice of this and other important findings about gaps and flaws in the
Entity Defendants’ policies and procedures regarding the treatment of
children in out-of-home placement, the Entity Defendants’ [sic] failed to
Page 49 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 49 of 116 Document 67

improve those policies and procedures, resulting in the numerous failures
and errors with [sic] pervaded their treatment of L.G.”). Through these
latter allegations, Plaintiffs have sufficiently alleged that the Entity
Defendants’ “polic[ies], practice[s], or custom[s], caused” the equal
protection violations. Maya, 2020 U.S. Dist. LEXIS 167073, at *44.16
5.1.3.2

Status as Physicians

Plaintiffs additionally allege violations of their equal protection
rights by all Defendants based on Plaintiffs’ status as physicians. ECF No.
37 at 58. They allege that Defendants treated Plaintiffs “less favorably,
afforded them fewer rights, privileges, and procedural protections, and
acted in a manner violative of Plaintiffs’ dignity and basic human and civil
rights on account of Plaintiffs’ employment status as physicians.” Id.
The Court has already laid the foundation for discussion of this
claim. And as above, Plaintiffs have sufficiently alleged that at least some
Defendants intentionally discriminated against them based on their status
as physicians. See ECF No. 37 at 23 (“Without Plaintiffs [sic] knowledge,
Defendants, including Defendant Parr-Nelson, determined that Plaintiffs
would not be allowed to attend or participate in L.G.’s medical visit . . .
because Plaintiffs were physicians”); id. (“Defendant Parr-[N]elson wrote
an email to identify a social worker to bring the child to the visit, stating
that ‘[t]he adoptive parent is a children’s medical doctor and because of the
sensitive nature of this relationship/circumstance CAC requested that an
IAS bring the infant this morning without the foster parents.’”); id. at 25
This analysis and conclusion are equally applicable to Plaintiffs’
remaining § 1983 equal protection claims against the Entity Defendants—Count
III and IV. Accordingly, the Court will deny the motions to dismiss the equal
protection claims (Counts II, III, and IV) to the extent they are asserted against the
Entity Defendants.
16

Page 50 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 50 of 116 Document 67

(“Barber told Dr. Dobrozsi that she believed Plaintiffs had not been allowed
to participate in the examination because Plaintiffs were both physicians,
who would be able to ask informed questions and who had the knowledge
to be able to question the assessment made by the Child Advocacy Center
provider.”); id. at 30 (“Plaintiffs repeatedly questioned why they were not
allowed to participate in L.G.’s medical visit on May 10, 2019 due to their
status as physicians.”).
But again, the next question is whether Plaintiffs have “allege[d]
facts sufficient to overcome the presumption of rationality that applies to
government classifications.” Wroblewski, 965 F.2d at 460. The Court
concludes that they have.
Plaintiffs acknowledge the reasoning proffered by several
Defendants for the exclusion. The justification provided by Parr-Nelson for
excluding Plaintiffs from the appointment based on their status as
physicians was the “sensitive nature of the relationship/circumstance.” ECF
No. 37 at 23. According to Barber, it was because they would, as physicians,
be “able to question the assessment made.” Id. at 25. In other words,
Plaintiffs acknowledge that the disallowance of their attendance and
participation was made, at least ostensibly, for some articulable reason,
rather than arbitrarily. Even assuming arguendo that these justifications
constitute a rational basis “directly supported by the allegations in the
[amended] complaint,” see Wroblewski, 965 F.2d at 460, the Court is satisfied
that Plaintiffs have made sufficient allegations to rebut any presumption of
rationality for purposes of this stage.
Plaintiffs allege that the “decision to exclude Plaintiffs from
participating in L.G.’s medical care violated standard medical practice, and
contravened the Entity Defendants’ policies and procedures.” ECF No. 37
Page 51 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 51 of 116 Document 67

at 23. They allege that Sheets, Gutzeit, and Ventura erroneously insisted
that Plaintiffs’ employment as “pediatricians at MCW” and their
“membership on the CHW medical staff” had no impact on decisions
regarding their exclusion from L.G.’s appointment, and Plaintiffs
emphasize that these assertions contradict those made by Barber and ParrNelson. Id. at 30–31. Plaintiffs additionally allege that Gutzeit responded to
Plaintiffs’ concerns about Ventura’s refusal to allow their participation in
L.G.’s appointment by “falsely stating that this approach was required by
the national standards governing Child Advocacy Clinics,” when in fact
“the national standards state the exact opposite . . . .” Id. at 40. The Court is
satisfied for purposes of the motion to dismiss stage that these allegations
sufficiently rebut the presumption of rationality afforded to the alleged
classification. However, for the same reasons as noted regarding Plaintiffs’
status as pre-adoptive parents, Plaintiffs have failed to state equal
protection claims against Urban, Petska, and Chagall. Again, the Court is
obliged to grant leave to amend to attempt to address the deficiencies as to
those three Defendants.17
5.1.4

Count IV – Equal Protection – Class-of-One

Plaintiffs allege a class-of-one equal protection violation against
Sheets, Gutzeit, Scherbarth, Miller, Chagall, MCW, CHHS, and CHW.
Plaintiffs write that these Defendants “treated Plaintiffs less favorably and
afforded them fewer rights, privileges, and procedural protections than
similarly situated individuals were treated.” ECF No. 37 at 59.
The Equal Protection Clause protects persons “against purely
arbitrary government classifications, even when a classification consists of

17

See supra n. 15 and accompanying text.

Page 52 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 52 of 116 Document 67

singling out just one person for different treatment for arbitrary and
irrational purposes.” Geinosky v. City of Chicago, 675 F.3d 743, 747 (7th Cir.
2012). However, plaintiffs alleging class-of-one claims carry a heavy
burden. FKFJ, Inc. v. Village of Worth, 11 F.4th 574, 588 (7th Cir. 2021). “[A]
class-of-one claim requires the plaintiff to allege that (1) a state actor
intentionally treated them ‘differently than others similarly situated, and
(2) there is no rational basis for the difference in treatment.’” Doe, 2020 U.S.
Dist. LEXIS 52156, at *19. “A class-of-one claim need not allege
discrimination based on a suspect classification, but must allege that the
plaintiff was singled out arbitrarily, without rational basis, for unfair
treatment.” Abcarian v. McDonald, 617 F.3d 931, 938 (7th Cir. 2010).
“Normally, a class-of-one plaintiff will show an absence of rational
basis by identifying some comparator—that is, some similarly situated
person who was treated differently.” Fares Pawn, LLC v. Ind. Dep’t of Fin.
Insts., 755 F.3d 839, 845 (7th Cir. 2014). “To be similarly situated, a
comparator must be ‘identical or directly comparable’ to the plaintiff ‘in all
material respects.’” Miller v. City of Monona, 784 F.3d 1113, 1120 (7th Cir.
2015) (internal citation omitted); see also FKFJ, 11 F.4th at 588 (“To satisfy the
‘similarly situated’ element, [Plaintiffs and their] comparators must be
‘prima facie identical in all relevant respects or directly comparable . . . in all
material respects.’”) (internal citation omitted).
However, the Seventh Circuit has “confirmed that plaintiffs alleging
class-of-one equal protection claims do not need to identify specific
examples of similarly situated persons in their complaints.” Doe, 2020 U.S.
Dist. LEXIS 52156, at *21 (quoting Miller, 784 F.3d at 1120). In other words,
the “lack of a comparator” will not doom a Plaintiff’s claim at the motion to
dismiss stage. Miller, 784 F.3d at 1120; see also Geinosky, 675 F.3d at 748 n.3
Page 53 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 53 of 116 Document 67

(“Even in a case where a plaintiff would need to identify a similarly situated
person to prove his case, . . . we see no basis for requiring the plaintiff to
identify the person in the complaint.”).18
Plaintiffs have satisfied these requirements. They allege that these
Defendants acted with illegitimate animus towards Plaintiffs in preventing
them from attending L.G.’s appointment and participating in her care. ECF
No. 37 at 59–60. They allege that these Defendants, in conflict with their
employers’ policies and with standard practice, precluded Plaintiffs from
accessing the photos of L.G. taken by Ventura, id. at 37, from allowing
Plaintiffs to provide L.G.’s patient history, id., and from benefiting from an
ethics committee review, id. at 38. Plaintiffs allege that their request for an
ethics consult was initially denied “because there was an open CPS case
against Plaintiffs.” Id. at 38. But Plaintiffs allege further that they knew the
existence of an open CPS case was not a valid reason to refuse an ethics
consult and “Dobrozsi had personally been involved as an attending
physician in cases reviewed by the ethics committee where CPS was
involved with the family.” Id. “Additionally, a physician from the ethics
committee had been involved in a case where a family was reported to CPS
by CHW for abuse or neglect, and the ethics review found that CHW had
overstated concerns and was inappropriately targeting the child for
removal from their family.” Id. Accordingly, the MCW Defendants’

The Children’s Defendants cite FKFJ, 11 F.4th 574, in support of the
assertion that Plaintiffs’ class-of-one claim must be dismissed because Plaintiffs
have failed to identify a comparator that is "prima facie identical in all relevant
respects or directly comparable . . . in all material respects.” ECF No. 47 at 23
(quoting FKFJ, 11 F.4th at 588). But FKFJ was decided on at the summary judgment
stage and does not stand for the proposition that Plaintiffs must identify this
comparator in their complaint to survive dismissal.
18

Page 54 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 54 of 116 Document 67

assertion that Plaintiffs’ class-of-one claim should be dismissed because
“there is no allegation they were treated differently than others suspected
of abusing a child,” ECF No. 42 at 17, is incorrect.
Plaintiffs allege that they were irrationally and arbitrarily denied the
procedure to which they were entitled and which similarly situated families
were provided. They allege that they were intentionally treated differently
from other families being investigated by CPS on suspicion of child abuse
or neglect because of animus against them. This is sufficient at this stage in
the proceedings since Plaintiffs did “not need to identify specific examples
of similarly situated persons in their [amended complaint.]” Miller, 784 F.3d
at 1120 (quoting Capra v. Cook Cnty. Bd. of Review, 733 F.3d 705, 717 (7th Cir.
2013)).
Again, however, this claim is subject to the rational-basis
requirement, which “sets the legal bar low and simply requires ‘a rational
relationship between the disparity of treatment and some legitimate
governmental purpose.’” D.B. v. Kopp, 725 F.3d 681, 686 (7th Cir. 2013)
(internal citation omitted). “[E]ven at the pleadings stage, all it takes to
defeat a class-of-one claim is a conceivable rational basis for the difference in
treatment.” Doe, 2020 U.S. Dist. LEXIS 52156, at *22 (internal citation
omitted). As is the case for equal protection claims based on class
membership, to survive a Rule 12(b)(6) motion to dismiss on a class-of-one
claim, “a plaintiff must allege facts sufficient to overcome the presumption
of rationality that applies to government classifications,” Wroblewski, 965
F.2d at 460, and “allegations of animus” alone do not overcome this
presumption. Flying J, Inc. v. City of New Haven, 549 F.3d 538, 546 (7th Cir.
2008). See also Miller, 784 F.3d at 1121 (internal citation omitted) (“Even
under what we have referred to as ‘the least demanding standard’ . . .
Page 55 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 55 of 116 Document 67

plaintiffs must allege that state actors lacked a rational basis for singling
them out for intentionally discriminatory treatment.”). The Court is
satisfied at this stage that Plaintiffs have done so.
Plaintiffs argue that they “were prevented from participating in
L.G.’s care due to an illegitimate animus against them, and since they were
the best (if not only) source for an accurate patient history, there was no
rational basis to exclude them (at least not without reasonable efforts to
obtain the necessary information in some other fashion).” ECF No. 61 at 29.
As noted previously, Defendants’ exclusion of Plaintiffs from L.G.’s
medical care allowed Ventura to misleadingly document that L.G.’s
available medical history was limited because she was brought in by a CPS
worker rather than by her foster parents. ECF No. 37 at 17. In reality, the
availability of L.G.’s medical history was limited at the time of the
appointment because those with access to that history (and who were ready
and able to provide it) were excluded from the appointment.
Plaintiffs also alleged that the denial of their request for an ethics
review was irrational because it was done in contravention of not only the
Entity Defendants’ standard practice of performing an ethics consult
notwithstanding CPS’s involvement in the case, but also of the positions
taken by “three different physicians from the ethics committee . . . [who
stated] that the case and care provided needed a full review by physicians
and that the review needed to include Plaintiffs.” Id. at 38. And as noted
previously, Plaintiffs allege that their exclusion from L.G.’s care was not
consistent with national practice standards. Id. at 40. These allegations
sufficiently rebut the presumption of rationality applicable to the
differential treatment. Accordingly, to the extent the Defendants’ motions
sought dismissal of Count IV for failure to state a claim against Sheets,
Page 56 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 56 of 116 Document 67

Gutzeit, Scherbarth, Miller, and the Entity Defendants, the Court will deny
them.
5.1.5

Count V—Retaliation

Plaintiffs further assert liability against Sheets, Gutzeit, Scherbarth,
Miller, Chagall, MCW, CHW, and CHHS for retaliation pursuant to § 1983.
The Court has already concluded that, for purposes of the pleading stage,
Plaintiffs have sufficiently alleged that the non-state Defendants against
whom claims are brought pursuant to § 1983 constitute state-actors by
virtue of participation in a conspiracy with the CPS Defendants.
“[F]or retaliation of First Amendment right claims under [§ 1983], a
plaintiff must show that (1) she engaged in constitutionally protected
speech; (2) the defendants, as [state actors], engaged in adverse conduct
against her; and (3) the defendants were motivated, at least in part, by her
protected speech.” Bach v. Milwaukee Cnty. Cir. Ct., No. 13-CV-370, 2013 U.S.
Dist. LEXIS 129700, at *14 (E.D. Wis. Sep. 11, 2013) (citing Bivens v. Trent,
591 F.3d 555, 559 (7th Cir. 2010)). “’[A] campaign of petty harassment’ and
‘even minor forms of retaliation,’ ‘diminished responsibility, or false
accusations’ can be actionable under the First Amendment.” Power v.
Summers, 226 F.3d 815, 821 (7th Cir. 2000) (internal citation omitted).
Plaintiffs’ retaliation claim fails on the first element. Plaintiffs allege
that they engaged in constitutionally protected speech when they
advocated and petitioned “for the redress of their grievances” related to
Defendants’ alleged misconduct. ECF No. 37 at 60; see also id. at 36
(“Plaintiffs engaged in advocacy protected by the First Amendment to
rebut the spurious allegations of abuse . . . .”) and at 37 (“Plaintiffs requested
an ethics consult through the standard hospital process available to all
caregivers.”).
Page 57 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 57 of 116 Document 67

Specifically, Plaintiffs allege that they “brought their concerns about
the substandard medical care to one or more of the Defendants through
various formal mechanisms” on at least six occasions. Id. at 30. These
petitions for redress included various in-person meetings as well as written
petitions. Id. at 30 (“Several of the in-person meetings were attended by
hospital leadership, including Defendant Gutzeit, and resulted in written
responses from Defendants Sheets, Ventura, and Gutzeit.”), at 39 (“At this
meeting [in August 2019], Plaintiffs outlined a variety of issues with the
care L.G/ [sic] and their family had received.”), and at 43 (“In November
2019, Plaintiffs submitted a confidential, internal report for peer review of
troubling and substandard medical care provided by Members of the Child
Advocacy Department, including Defendants Sheets, Ventura and
Petska.”). Throughout their advocacy, Plaintiffs expressed a substantial
amount of criticism towards Defendants. Id. at 30. See also id. at 29 (“On May
14, 2019, Plaintiffs went to the hospital patient relations department to file
a grievance with Defendant CHW and CHHS complaining of the medical
examination performed by Defendant Ventura, including for her failure to
take a medical history and mechanism of injury from Dr. Cox.”).
Plaintiffs also demanded that they be provided information to which
they believed they were entitled. Id. at 29–30 (“Plaintiffs sought to find out
who performed any medical examination, what physician (if any) was
responsible for that examination, and what physician (if any) reviewed
Defendant Ventura’s findings.”) (“Plaintiffs repeatedly questioned why
they were not allowed to participate in L.G.’s medical visit on May 10, 2019
due to their status as physicians.”).
The MCW Defendants assert that the amended complaint presents
“no plausible allegation of activity protected under by [sic] the First
Page 58 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 58 of 116 Document 67

Amendment.” See ECF No. 63 at 8. However, they make no actual argument
as to why the activity described by Plaintiffs is not constitutionally
protected. Nor do Plaintiffs substantively address this contention. See ECF
No. 61 at 29 (asserting that the only challenge raised against the retaliation
claim involves causation and stating that “Defendants do not dispute that
Plaintiffs allege they engaged in First Amendment protected advocacy”).
While the Court at this stage must accept as true Plaintiffs’ well-pleaded
factual allegations, it need not accept as true their bare legal assertions, such
as that the above-described activity was “protected by the First
Amendment.” ECF No. 37 at 37.
In the Court’s view, the issue is that the amended complaint suggests
that Plaintiffs directed their grievances to the Entity Defendants and some
of their employees rather than to any government agency, and purely
private speech is not protected by the First Amendment. See Hughes v. Scott,
816 F.3d 955, 956 (7th Cir. 2016) (nonfrivolous grievances addressed to
government agency are protected by First Amendment); McCrary v. Knox
County, 200 F. Supp. 3d 782, 797 (S.D. Ind. 2016) (“A grievance filed to
further a purely private interest does not constitute protected speech, even
if the topic is potentially of interest to the public.”). The grievances
described appear to have been made pursuant to hospital procedures
regarding the Child Advocacy Department and those hospital staff working
within it. They were not made about or directed towards CPS.
Grievances relating to matters of public concern rather than to
purely private matters may receive First Amendment protection in some
circumstances, even where directed to private parties. See Connick v. Meyers,
461 U.S. 138, 145 (1983) (speech on public issues or matters of public concern
occupies the highest rung on the hierarchy of First Amendment values and
Page 59 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 59 of 116 Document 67

is entitled to special protection). “To involve a matter of public concern,
[Plaintiffs’] speech must ‘relate to any matter of political, social, or other
concern to the community.” Kreilkamp v. City of Watertown, No. 99-C-0586C, 2000 U.S. Dist. LEXIS 22578, at *26–27 (W.D. Wis. Nov. 27, 2000) (quoting
Connick, 461 U.S. at 146).
But it is not clear that Plaintiffs’ grievances (based on which they
were allegedly subject to retaliation) go beyond the sphere of their own
personal concerns as a matter of law. Their allegations indicate that their
grievances were expressed regarding the medical treatment their foster
child personally received “on behalf of L.G. and on behalf of themselves,”
ECF No. 37 at 44. Merely because an issue may be of interest to the public
does not make it one entitled to First Amendment protection. See Bivens v.
Trent, 591 F.3d 555, 560 (7th Cir. 2010); Marshall v. Porter Cnty. Plan Comm’n,
32 F.3d 1215, 1219 (7th Cir. 1994) (if speech concerns a matter of public
interest but the expression of it addresses only the personal effect on the
plaintiff, then the speech is not on a matter of public concern as a matter of
law). In Bivens, the Seventh Circuit noted that while “the public may have
been interested in Bivens’s grievance and may have benefitted from the
resolution he requested,” that was not sufficient to “raise the speech here to
the level of public concern.” 591 F.3d at 561. The same is true here.
Plaintiffs allege that three years prior to the incident with L.G., they
had advocated on behalf of “all children in out-of-home placement”
regarding the systematic failure “to understand medical consent outside of
the context of biological parenthood.” ECF No. 37 at 47. It could be argued
that Plaintiffs’ expression at that time was not limited to the issue’s
“personal effect” on Plaintiffs and therefore could be considered a matter
of public concern entitled to First Amendment protection. But Plaintiffs do
Page 60 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 60 of 116 Document 67

not allege that they were retaliated against starting in 2019 for that previous
advocacy. They allege that they were retaliated against because of the
grievances and criticism they expressed specifically relating to L.G.’s
treatment following her medical examination in May of 2019. Because the
expression they engaged in and for which they allege they were subject to
retaliation addressed “only the personal effect” of Defendants’ conduct on
Plaintiffs, it was not a matter of public concern as a matter of law. Plaintiffs
have accordingly failed to state a § 1983 retaliation claim.19
5.1.6

Count VI—Failure to Intervene

Plaintiffs additionally assert a § 1983 failure to intervene claim
against all Defendants. ECF No. 37 at 61. “[A plaintiff’s] § 1983 claim for
failure to intervene requires that she show that one or more of the
Defendants had a realistic opportunity to prevent another state actor from
committing a constitutional violation but failed to do so.” Scott v. Buncich,
No. 2:16-CV-114, 2016 U.S. Dist. LEXIS 130122, at *40 (N.D. Ind. Sept. 23,
2016) (citing Leaf v. Shelnutt, 400 F.3d 1070, 1093 (7th Cir. 2005)). This
requires alleging that the Defendants (1) knew, or had reason to know, that
a constitutional violation was committed; and (2) had a realistic
opportunity to prevent it. Gill v. City of Milwaukee, 850 F.3d 355, 342 (7th Cir.
2017); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). Additionally, “a claim
of failure to intervene requires plaintiff to show an underlying
constitutional violation.” Casciaro v. Allmen, No. 17-CV-50094, 2018 U.S.

The Court need not grant Plaintiffs leave to amend as to this Count
because no factual elaboration can remedy the fact that the advocacy engaged in
by Plaintiffs cannot support a claim of retaliation as a matter of law. See NewSpin
Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 310 (7th Cir. 2018) (district court need
not allow amendment if doing so would be futile).
19

Page 61 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 61 of 116 Document 67

Dist. LEXIS 143366, at *29 (N.D. Ill. Aug. 23, 2018) (citing Gill, 850 F.3d at
342). While failure to intervene claims arise most commonly in the context
of police officers, such claims may still be viable against non-police officers.
See Miller v. City of Chicago, No. 19-CV-4096, 2019 U.S. Dist. LEXIS 201381,
at *7 (N.D. Ill. Nov. 20, 2019) (citing Yang v. Hardin, 27 F.3d 282 (7th Cir.
1994)).
Plaintiffs have successfully stated a claim for an underlying
constitutional violation against at least some Defendants. See supra Sections
5.1.3.1, 5.1.3.2, and 5.1.4 (equal protection violations). The next question is
whether Defendants knew, or had reason to know, that such constitutional
violations were being committed.
Again, the equal protection violations are alleged to stem from
Plaintiffs’ exclusion from L.G.’s medical appointment and care generally.
Plaintiffs also allege generally as to their class-of-one claim that they were
treated “less favorably” and were “afforded . . . fewer rights, privileges, and
procedural protections” compared to similarly situated individuals. ECF
No. 37 at 57. Plaintiffs must allege, therefore, that each Defendant knew of
these alleged violations specifically and failed to intervene to prevent them.
Ventura knew, or had reason to know, that this allegedly
unconstitutional conduct was occurring because she was among those who
personally participated in excluding Plaintiffs from L.G.’s medical care. Id.
at 14 (“Ventura . . . refused to speak with Plaintiffs.”); (“Barber . . . told
[Plaintiffs] that they would not be able to participate at all in the medical
visit . . . .”). Ventura had a realistic opportunity to prevent the violations
from occurring because she could have kept Barber from excluding
Plaintiffs from L.G.’s care. And vice versa, Barber knew that Plaintiffs were
being excluded from L.G.’s care by Ventura and could have intervened.
Page 62 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 62 of 116 Document 67

Accordingly, Plaintiffs successfully stated failure to intervene claims
against Barber and Ventura.
Next, Chagall is personally mentioned in the amended complaint
only to the extent that she “was present at” and “was responsible for”
overseeing a formal review process meeting in November of 2019. Id. at 52.
There, Chagall and Miller are alleged to have “sent the medical reports
provided by Dr. Cox to an outside consultant in an attempt to further
discredit the now 15 physicians supporting Dr. Cox’s position that he had
an accident with L.G. . . . .” Id. Plaintiffs allege that this was done in violation
of both state law and CPS processes and that it was an abuse of process with
“the intent to perpetuate the false statement that Dr. Cox had abused L.G.
and further prevent the adoption of L.G.” Id. Since Chagall is alleged to
have participated along with other CPS employees in depriving Plaintiffs
of procedures afforded to others in their position pursuant to “CPS
processes and state law,” and since Chagall had a realistic opportunity to
prevent Miller from doing so, Plaintiffs have stated a claim of failure to
intervene against her.
Next, the amended complaint alleges that Hartmann and Jewell had
“supervisory authority over one or more of Defendants Barber and
Scherbarth.” Id. at 7. There is no indication, however, that either Hartmann
or Jewell—by virtue of possibly having supervisory authority over
Barber—were aware of Barber’s participation in Plaintiffs’ exclusion from
L.G.’s medical care. Plaintiffs make no allegation that Barber excluded
Plaintiffs from L.G.’s appointment at the behest of, or at least at the
knowledge of, Hartmann or Jewell.
Hartmann and Jewell are specifically implicated in the amended
complaint only in reference to their alleged participation in a meeting at the
Page 63 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 63 of 116 Document 67

offices of CPS on May 21, 2019. Id. at 31. At that meeting, Miller is alleged
to have withheld from Plaintiffs photos of L.G. taken by Ventura as well as
information about the medical examination generally. Id. This withholding
of information and of the photos taken of L.G. at her medical appointment
falls within Plaintiffs’ general claim of exclusion from L.G.’s medical care,
which forms the basis of their equal protection claims. It can therefore be
said that Hartmann and Jewell, by attending and participating in the
meeting at which the photos and information were withheld, knew that this
allegedly unconstitutional differential treatment was occurring and had an
opportunity to intervene to prevent their CPS colleagues from engaging in
such differential treatment. Plaintiffs have therefore successfully stated
failure to intervene claims against Hartmann and Jewell.
Next, the Court evaluates the claim as to Parr-Nelson. She is also
alleged to have supervisory authority over Barber and/or Scherbarth. Id. at
7. As was the case regarding Hartmann and Jewell, the amended complaint
makes no indication that Parr-Nelson, by virtue of possibly having
supervisory authority over Barber, was aware of Barber’s actions in
excluding Plaintiffs from L.G.’s medical care. However, unlike Hartmann
and Jewell, Parr-Nelson is specifically alleged to have been personally
involved in the determination that “Plaintiffs would not be allowed to
attend or participate in L.G.’s medical visit with the Child Advocacy Center
provider because Plaintiffs were physicians.” Id. at 23. Accordingly, ParrNelson was aware that the allegedly unconstitutional differential treatment
was occurring and could have intervened to prevent Barber or Ventura
from participating in it. Plaintiffs have succeeded in stating a claim for
failure to intervene against Parr-Nelson.

Page 64 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 64 of 116 Document 67

Next, the Court evaluates the claim as to Miller and Scherbarth. Both
are CPS employees but are not alleged to have had any supervisory
authority over any subordinates. Like Jewell and Hartmann, Miller and
Scherbarth are alleged to have participated in the May 21, 2019 meeting at
the offices of CPS. Id. at 31. Again, at that meeting Miller allegedly refused
to allow Plaintiffs to see the photos taken by Ventura, and also withheld
from Plaintiffs information about the medical evaluation. Id. By attending
and participating in the meeting at which the photos and information were
withheld, Plaintiffs have sufficiently alleged for purposes of this stage that
Miller and Scherbarth knew that this allegedly unconstitutional differential
treatment was occurring and had an opportunity to intervene to prevent
their CPS colleagues from engaging in such differential treatment. Plaintiffs
have stated a claim for failure to intervene against Miller and Scherbarth.
The amended complaint implicates Urban only to the extent that
Urban allegedly was notified by Dr. Pomeranz in August of 2019 of the
“serious issues with medical care provided to L.G., and with the erroneous
conclusions drawn in L.G.’s case.” Id. at 51. This was several months after
the appointment with Ventura from which Plaintiffs were excluded. Dr.
Pomeranz notified Urban of these issues because “as CPS medical director,
Urban had an obligation to provide review and oversight to the CPS
processes as they pertained to and interacted with medical care and
evaluations.” Id. The amended complaint further alleges that despite
Urban’s obligation to “provide review and oversight to the CPS processes,”
“Urban told Dr. Pomeranz that she was staying out of the case.” Id.
According to Plaintiffs’ own allegations, by the time Urban was
made aware of the issues surrounding L.G.’s medical care, it had been
several months since Plaintiffs were excluded from the appointment.
Page 65 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 65 of 116 Document 67

Similarly, the meeting at which various CPS employees continued to
deprive Plaintiffs of information relating to the appointment and of the
photos taken there, allegedly in violation of Plaintiffs’ constitutional rights,
occurred several months before the matter was brought to Urban’s
attention by Dr. Pomeranz. However, Urban was made aware of the issues
prior to November 14, 2019, at which time CPS undertook a “formal review
process dictated by state statute.” At that meeting, several CPS employees
are alleged to have continued to unconstitutionally deprive Plaintiffs of the
procedures to which they were entitled. See id. at 52 (“In direct violation of
[CPS processes and state law], Defendants Miller and Chagall sent the
medical report provided by Dr. Cox to an outside consultant in an attempt
to further discredit the now 15 physicians supporting Dr. Cox’s
position . . . .”). Since the amended complaint reasonably allows for the
inference that Urban had reason to know of the allegedly unconstitutional
conduct (by Dr. Pomeranz’s communication to her) at a time at which
Urban could realistically intervene to prevent its continuation, Plaintiffs
have stated a failure to intervene claim against her.
Next, the Court analyzes the claim as it is asserted against Sheets.
Sheets is alleged to have “directed one or more of her subordinates to
coordinate with CPS, to ensure that CPS employees would deny Plaintiffs
the right to be present for L.G.’s medical examination.” Id. at 22. Plaintiffs
allege that that exclusion violated their equal protection rights. They have
successfully alleged that Sheets knew of the allegedly unconstitutional
conduct and had a realistic opportunity to intervene to prevent it.
As to Gutzeit, the amended complaint alleges that “[d]espite the
overwhelming information available to” him about L.G.’s care, he
“continued to fail to provide truthful information to Plaintiffs,” and despite
Page 66 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 66 of 116 Document 67

the negative evaluation of the Child Advocacy Program managed in part
by Gutzeit, he and others failed to provide information of this negative
evaluation to “CPS, to police investigators, or to the office of the District
Attorney despite knowing that these offices rely heavily” on information
from the Child Advocacy Program. ECF No. 37 at 50. In spite of his alleged
knowledge of the flaws in the Child Advocacy Program which worked to
effect an alleged deprivation of Plaintiffs’ constitutional rights, Gutzeit
continued to affirmatively “express[] support for the Child Advocacy
Program” following the criminal prosecution of Cox. Id. at 54. The Court is
satisfied for purposes of this stage that Plaintiffs have sufficiently alleged
that Gutzeit knew or had reason to know of allegedly unconstitutional
differential treatment being afforded to pre-adoptive parents such as
themselves and had a realistic opportunity to intervene to prevent such
differential treatment.
As to Petska, the amended complaint alleges that she evaluated L.G.
on May 9, 2019 and concluded that her injuries were not necessarily
indicative of abuse. Id. at 11. Shortly thereafter, Petska recused herself from
the treatment of L.G. and transferred care of L.G. to Ventura. Id. at 12–13.
As a threshold matter, the Court has already concluded that Petska,
a private actor, may not be sued under § 1983. See supra Section 5.1.1.1.
Moreover, the amended complaint does not indicate that Petska had any
role in or awareness of Plaintiffs’ exclusion from L.G.’s appointment and
care. To the contrary, the amended complaint states that the “decision to
bar Plaintiffs from attending L.G.’s medical visit with Defendant Ventura
contradicted Defendant Petska’s plan of care . . . .” Id. at 14. It is not alleged
that Petska knew or had any reason to know that Plaintiffs were being
excluded from L.G.’s appointment with Ventura on May 10, 2019. Nor is it
Page 67 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 67 of 116 Document 67

alleged that Petska knew or had any reason to know that medical
information and photos from the appointment were subsequently withheld
from Plaintiffs. The amended complaint makes no indication that Petska
knew or had reason to know of the allegedly differential treatment being
afforded to Plaintiffs. Plaintiffs have failed to state a failure to intervene
claim against Petska. However, such a deficiency in pleading may be
redressable by amendment. “Courts should not dismiss the complaint
unless it is beyond a doubt that there are no facts to support relief.” 3
MOORE’S FEDERAL PRACTICE – CIVIL § 15.15. Merely because Plaintiffs have
not pleaded such factual allegations does not necessarily mean that “there
are no [such] facts” in existence to support their claim. Id. Accordingly, the
Court is obliged to grant Plaintiffs leave to file a second amended complaint
to address the deficiency as to Petska.
Next, the Court evaluates the failure to intervene claim as asserted
against MCW, CHW, and CHHS. “Although unlikely in practice, it is not
categorically impossible for a corporation to be responsible for a
constitutional tort under a failure-to-intervene theory.” See Miller, 2019 U.S.
Dist. LEXIS 201381, at *7.
As to the Entity Defendants, Plaintiffs allege that three years prior to
L.G. sustaining injuries, they put the Entity Defendants on notice of their
“failure to understand medical consent outside of the context of biological
parenthood.” ECF No. 37 at 47. This advocacy by Plaintiffs resulted in the
Entity Defendants creating a “50-person hospital committee tasked with
fixing this systematic failure.” Id. Plaintiffs allege that this served to put the
Entity Defendants on notice of “this and other important findings about
gaps and flaws in the Entity Defendants’ policies and procedures regarding
the treatment of children in out-of-home placement.” Id. Since Plaintiffs
Page 68 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 68 of 116 Document 67

allege that the Entity Defendants were put on notice of the differential
treatment of which they now complain, it can be said that those Defendants
knew, or at least had reason to know, that such allegedly unconstitutional
conduct was occurring within their facilities.
The Court is satisfied, at least for purposes of the pleading stage, that
Plaintiffs have sufficiently alleged that the Entity Defendants knew, or had
reason to know, that equal protection violations were being committed
within their facilities against non-biological families and failed to take
advantage of their opportunity to prevent them. See id. (alleging that
despite being on notice of these flaws in policies and procedures regarding
medical consent in the context of non-biological parenthood, the Entity
Defendants failed to improve those policies and procedures to prevent the
issues from occurring again). See also McCollough v. Hanley, No. 17-C-50116,
2018 U.S. Dist. LEXIS 121456, at *38–39 (N.D. Ill. July 20, 2018) (“While the
Court

understands

that

[defendants’]

position

is

that

no

such

[unconstitutional conduct] existed or that they had no knowledge of such
[unconstitutional conduct], those arguments will have to wait for summary
judgment proceedings or trial.”).
5.1.7

Count VII—Conspiracy

Plaintiffs further allege a § 1983 conspiracy claim against all
Defendants. “A § 1983 conspiracy claim requires both (1) an underlying
constitutional violation and (2) an agreement among the defendants to
inflict the unconstitutional harm.” Green v. Howser, 942 F.3d 772, 778 (7th
Cir. 2019); see also Gaylor v. Thompson, 939 F. Supp. 1363, 1375 (W.D. Wis.
1996) (noting that a § 1983 conspiracy claim ultimately requires proof of a
conspiracy by state actors to deprive a petitioner of a constitutional right)
(internal citation omitted). Without deprivation of an underlying
Page 69 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 69 of 116 Document 67

constitutional right, there can be no successful § 1983 conspiracy claim.
Gaylor, 939 F. Supp. at 1376. Moreover, “[t]o state a conspiracy claim,
plaintiffs must ‘allege the parties, the general purpose, and the approximate
date of the conspiracy.’” Dobbey v. Jeffreys, 417 F. Supp. 3d 1103, 1110 (N.D.
Ill. 2019) (quoting Loubser v. Thacker, 440 F.3d 439, 443 (7th Cir. 1006)).
The Court has already concluded that Plaintiffs have successfully
stated claims for equal protection violations, so the first element is met. The
second element, “an agreement among the defendants to inflict the
unconstitutional harm,” Green, 942 F.3d at 778, is also met for purposes of
the pleading stage. The Court has already discussed these allegations. The
parties against whom these allegations are made are all named Defendants.
The general purpose of the alleged conspiracy was to ensure that
Defendants’ wrongful conduct surrounding L.G.’s medical care and
Defendants’ wrongful allegations of child abuse were kept under wraps—
by discrediting Plaintiffs, intimidating Plaintiffs and those who agreed with
them, depriving Plaintiffs of appropriate administrative review, ensuring
criminal prosecution of Cox, and more. The approximate date of the
conspiracy, as alleged, is around May 10/11, 2019 through February of 2020.
Accordingly, Plaintiffs have successfully stated a § 1983 conspiracy claim.
5.1.8

Count VIII—Supervisory Liability

Supervisory liability under § 1983 is asserted against Sheets, Gutzeit,
Parr-Nelson, Urban, Miller, Chagall, Jewell, and Hartmann. ECF No. 37 at
63. Plaintiffs write that “[t]he constitutional injuries complained of herein
were proximately caused by a pattern and practice of misconduct, which
occurred with the knowledge and consent of those of the Individual
Defendants who acted in a supervisory capacity, such that these []
Defendants personally knew about, facilitated, approved, and condoned
Page 70 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 70 of 116 Document 67

this pattern and practice of misconduct, or at least recklessly caused the
alleged deprivation by their actions or by their deliberately indifferent
failure to act.” Id.
“The United States Supreme Court [has] expressly rejected respondeat
superior as a basis to attach supervisory liability under a § 1983 action.”
Mayes v. City of Hammond, 442 F. Supp. 2d 587, 634 (N.D. Ind. 2006) (citing
Monell v. Dep’t of Social Servs., 436 U.S. 658, 691–92 (1978)).
“Thus, basing a claim of supervisory liability merely on a supervisor’s right
to control employees is insufficient.” Id. Rather, “§ 1983 creates a cause of
action based upon personal liability and predicated upon fault. An
individual cannot be held liable in a § 1983 action unless he caused or
participated in [the] alleged constitutional deprivation.” Id. (quoting
Galdikas v. Fagan, 342 F.3d 684, 693 (7th Cir. 2003)).
“Proof that a supervisor was negligent or even grossly negligent in
failing to detect or prevent constitutional violations is insufficient: ‘The
supervisor must know about the conduct and facilitate it, condone it, or
turn a blind eye for fear of what they might see. They must act either
knowingly or with deliberate, reckless indifference.’” Id. (internal citation
omitted). “When a supervisor is on notice of a possible unconstitutional
policy or custom and fails to take corrective measures, for example, by . . .
affirmatively commanding employees to continue unconstitutional acts,
liability may attach.” Id. at 635. “However, isolated instances of
unconstitutional activity ordinarily are insufficient to establish a
supervisor’s policy or custom, or otherwise to show deliberate
indifference.” Id. “A failure to supervise does not hinge on actual notice of
prior violations by subordinates but supervisory liability may arise under
§ 1983 when the supervisor disregards known or ‘obvious’ risks of
Page 71 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 71 of 116 Document 67

constitutional violations that would flow from a lack of supervision.” Id.
Plaintiffs must allege that their injuries occurred at these named
Defendants’ “direction or with their knowledge and consent” and that these
Defendants acted “either knowingly or with deliberate, reckless
indifference.” Stockton v. Milwaukee County, 44 F.4th 605, 619 (7th Cir. 2022).
Plaintiffs must first allege that Sheets, Gutzeit, Parr-Nelson, Urban,
Miller, Chagall, Jewell, and Hartmann are supervisors or had supervisory
authority at the time of the alleged violations. As to some of these
Defendants, Plaintiffs have clearly done so. ECF No. 37 at 6 (“Sheets served
as Defendant Ventura’s supervising physician.”) (“Gutzeit served as Chief
Medical Officer of CHW and as its Vice President of Quality and Safety, and
accordingly was the physician responsible for ensuring the quality of the
care that was provided at Defendant CHW.”), at 6–7 (“Parr-Nelson, Jewell
and Hartmann had supervisory authority over one or more of Defendants
Barber and Scherbarth.”), and at 51 (“Urban, the CPS medical director . . .
violated her obligation to supervise and review the use of medical evidence
in CPS decision-making . . . .”).
As to Miller, however, there is no allegation that Miller was a
supervisor or had any supervisory authority at the time of the alleged
events. And as to Chagall, there are allegations that Chagall enjoyed
oversight responsibility, but not necessarily over subordinates. See id. at 52
(“Chagall . . . was responsible for overseeing the formal review process.”).
Accordingly, Plaintiffs have failed to state supervisory liability claims
against Miller and Chagall.
Plaintiffs must next show that the remaining Defendants—Sheets,
Gutzeit, Parr-Nelson, Jewell, Hartmann, and Urban—knew about the
allegedly

constitutionally

violative

conduct,

and

“facilitate[d]

it,

Page 72 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 72 of 116 Document 67

condone[d] it, or turn[ed] a blind eye for fear of what they might see . . . .
either knowingly or with deliberate, reckless indifference.” Mayes, 442 F.
Supp. 2d at 634.
As to Urban, Plaintiffs allege that “Dr. Pomeranz raised these issues
with Defendant Urban” in August of 2019 and that despite Urban’s
obligation to “provide review and oversight to the CPS processes,” “Urban
told Dr. Pomeranz that she was staying out of the case.” ECF No. 37 at 51.
Those are the extent of Plaintiffs’ specifical factual allegations as to Urban.20
These allegations suggest that Urban “turn[ed] a blind eye for fear of
what [she] might see.” Mayes, 442 F. Supp. 2d at 634. Plaintiffs have alleged
that Urban was put on notice of issues in the conduct of her subordinates
and simply chose to ignore them and not inquire further as to their
seriousness and extent. This goes beyond mere “dereliction of duty,” which
does not itself “constitute deliberate indifference” for purposes of
supervisory liability. Id. at 651. The Court is satisfied for purposes of this
stage that Plaintiffs have stated a supervisory liability claim against Urban.

Plaintiffs allege that three years prior to the incident with L.G., they had
advocated for CHW, MCW, and CHHS to create a hospital committee tasked with
fixing the “systematic failure” to “understand medical consent outside of the
context of biological parenthood." ECF No. 37 at 47. “Despite being placed on
notice of this and other important findings about gaps and flaws in the Entity
Defendants’ policies and procedures regarding the treatment of children in out-ofhome placement, the Entity Defendants’ [sic] failed to improve those policies and
procedures, resulting in the numerous failures and errors with [sic] pervaded their
treatment of L.G.” Id. It is not suggested that CPS generally, nor Urban specifically,
were part of this committee process three years prior to the incident with L.G.
Accordingly, these allegations regarding Plaintiffs’ putting the Entity Defendants
on notice of systematic flaws in their policies cannot transform Urban’s alleged
knowledge of an “isolated instance[]” of unconstitutional conduct into something
more. See Mayes, 442 F. Supp. 2d at 935.
20

Page 73 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 73 of 116 Document 67

Next, Parr-Nelson, Jewell, and Hartmann are alleged to have
“supervisory authority over one or more of Defendants Barber and
Scherbarth.” ECF No. 37 at 7. The question is whether Plaintiffs sufficiently
allege that those three Defendants were aware of Barber and/or
Scherbarth’s allegedly constitutionally violative conduct and “facilitate[d]
it, condone[d] it, or turn[ed] a blind eye for fear of what they might see . . . .
either knowingly or with deliberate, reckless indifference.” Mayes, 442 F.
Supp. 2d at 634.
Plaintiffs allege that Parr-Nelson “determined that Plaintiffs would
not be allowed to attend or participate in L.G.’s medical visit” and “wrote
an email to identify a social worker to bring the child to the visit, stating
that ‘[t]he adoptive parent is a children’s medical doctor and because of the
sensitive nature of this relationship/circumstance CAC requested that an
IAS bring the infant this morning without the foster parents.’” ECF No. 37
at 23. They allege that Parr-Nelson participated generally in the overall
conspiracy to deprive Plaintiffs of their rights and of L.G., but they do not
allege that Parr-Nelson facilitated, condoned, or turned a blind eye towards
the allegedly unconstitutional conduct of Barber and/or Scherbarth.21

Plaintiffs allege that on May 21, 2019, they met with various of the CPS
Defendants—Scherbarth, Jewell, Hartmann, and Miller—at the offices of CPS, but
there is no allegation that Parr-Nelson was involved with that meeting in any
capacity or even knew of it. ECF No. 37 at 31. Plaintiffs also allege that “Scherbarth
and additional CPS defendants took repeated actions to specifically prevent
Plaintiffs from completing their planned adoption of L.G.” Id. at 52. Again, it is not
clear that this allegation involved Parr-Nelson. The Court cannot assume, without
additional allegations, that merely because Parr-Nelson allegedly participated in
this overall conspiracy, she knew of unconstitutionally violative conduct
specifically undertaken by Barber and/or Scherbarth and allowed it to continue.
21

Page 74 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 74 of 116 Document 67

Accordingly, Plaintiffs have failed to state a supervisory liability claim
against Parr-Nelson.
As to Jewell and Hartmann, the amended complaint states that
Plaintiffs met them, along with Miller and Scherbarth, at the offices of CPS
on May 21, 2019. Id. at 31. During this meeting, “Defendants repeatedly
rebuffed Plaintiffs’ efforts to provide truthful information about the
circumstances of L.G.’s injury . . . .” Id. It is also alleged that at that time,
Miller withheld information and photos of L.G. from Plaintiffs, but it is not
alleged that Jewell or Hartmann had any supervisory authority over Miller.
Again, apart from general allegations about participation in the overall
conspiracy to deprive Plaintiffs of their rights, there are no further factual
allegations as to Jewell and Hartmann.
However, by alleging that Jewell and Hartmann participated along
with Scherbarth, their subordinate, at the May 21, 2019 meeting in which
they collectively continued to deprive Plaintiffs of information relating to
L.G.’s medical care and disregarded contrary medical evidence so as to
maintain Defendants’ wrongful reliance on Ventura’s medical conclusions,
Plaintiffs have sufficiently alleged that Jewell and Hartmann “facilitate[d]”
Scherbarth’s allegedly constitutionally violative conduct. See Mayes, 442 F.
Supp. 2d at 634. Accordingly, they have successfully stated a claim for §
1983 supervisory liability against those two Defendants.
Next, the Court evaluates Plaintiffs’ supervisory liability claim
against Sheets. Plaintiffs allege that Sheets was Ventura’s supervising
physician, ECF No. 37 at 19, but that Sheets did not actually supervise
Ventura during the medical exam of L.G., id. at 25. Plaintiffs have
sufficiently alleged that Sheets knew about Ventura’s allegedly

Page 75 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 75 of 116 Document 67

unconstitutional conduct, and “facilitate[d] it . . . . either knowingly or with
deliberate, reckless indifference.” Mayes, 442 F. Supp. 2d at 634.
Specifically, Plaintiffs allege the following. Sheets, following the
unsupervised medical examination of L.G., continued to deny Plaintiffs
appropriate administrative review and to deny that Plaintiffs’ status as
physicians had anything to do with their exclusion from the appointment.
ECF No. 37 at 30. Sheets “declined to name a physician responsible for the”
supervision of Ventura on May 10, 2019, further obscuring the wrongful
conduct that allegedly occurred at the appointment that day. Id. at 31.
Sheets further condoned Ventura’s wrongful conduct and facilitated the
narrative Ventura established by attempting to “silence any provider who
disagreed with Defendant Ventura’s medical evaluation, to tarnish Dr.
Cox’s reputation, and to attempt to influence the outcome of the ongoing
CPS investigation.” Id. at 41. To cover up Defendants’ conduct and ensure
that

the

erroneous

conclusions

Ventura

reached

would

remain

unimpeached, Sheets attempted to have a dermatologist who reached a
differing conclusion punished, spread Ventura’s conclusion that Cox had
abused L.G. to other hospital employees, told investigators that this was not
the first time Cox had abused a child, and kept CPS from accessing Petska’s
medical documentation (since Plaintiffs allege Petska agreed with them that
L.G. was not a victim of abuse). Id. at 41–42. Sheets engaged in all of this
behavior despite knowing that Ventura’s conclusions of abuse were
contrary to the medical evidence. Id. at 42. Plaintiffs have successfully stated
a claim for supervisory liability against Sheets.
The final Defendant against whom supervisory liability is asserted
is Gutzeit. The CHW Defendants argue that Gutzeit cannot be liable for
failure to supervise under § 1983 because Gutzeit did not become aware of
Page 76 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 76 of 116 Document 67

any of the allegedly unconstitutional activity until after it had concluded,
and “after the conduct at issue is completed, there is nothing the official can
do to stop it, so []he cannot be held liable.” ECF No. 47 at 26–27 (quoting
Phillips v. Mega Concrete Constr., LLC, No. 20-CV-658-JDP, 2022 U.S. Dist.
LEXIS 14808, at *21–22 (W.D. Wis. Jan. 27, 2022)). Plaintiffs’ contention that
Gutzeit “ratified, adopted, and endorsed [Ventura’s] false conclusions and
diagnosis of abuse” is, according to the CHW Defendants, insufficient to
establish supervisory liability. Id. at 26 (quoting ECF No. 37 at 25).
The allegations as to Gutzeit are that “[d]espite the overwhelming
information available to” him about L.G.’s care, he “continued to fail to
provide truthful information to Plaintiffs,” and despite the negative
evaluation of the Child Advocacy Program managed in part by Gutzeit, he
and others failed to provide information of this negative evaluation to
“CPS, to police investigators, or to the office of the District Attorney despite
knowing that these offices rely heavily” on information from the Child
Advocacy Program. ECF No. 37 at 50. In spite of his alleged knowledge of
the flaws in the Child Advocacy Program which worked to effect an alleged
deprivation of Plaintiffs’ constitutional rights, Gutzeit continued to
affirmatively “express[] support for the Child Advocacy Program”
following the criminal prosecution of Cox. Id. at 54. The Court is satisfied
that Plaintiffs have alleged that Gutzeit condoned the allegedly
unconstitutional

conduct

of

his

subordinates

and

facilitated

its

continuation. Accordingly, they have successfully stated a claim for
supervisory liability against Gutzeit.
As to Parr-Nelson, Miller, and Chagall, although the Court has
concluded that Plaintiffs’ amended complaint fails to state supervisory
claims against them, the Court is obliged to afford Plaintiffs leave to amend
Page 77 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 77 of 116 Document 67

their complaint to address these deficiencies. “Courts should not dismiss
the complaint unless it is beyond a doubt that there are no facts to support
relief.” 3 MOORE’S FEDERAL

PRACTICE

– CIVIL § 15.15. Merely because

Plaintiffs have not pleaded such factual allegations does not necessarily
mean that “there are no [such] facts” in existence to support their claim. Id.
5.2

COUNT X—CIVIL CONSPIRACY

Plaintiffs also attempt to plead a state law claim of civil conspiracy
against Defendants Ventura, Petska, Sheets, Gutzeit, CHW, MCW, and
CHHS.22 ECF No. 37 at 65.
As a threshold matter, Defendants argue that Plaintiffs’ state-law
claims

are

barred

by

the

application

of

Wisconsin’s

Worker’s

Compensation Act (“WCA”). ECF No. 42 at 21. This argument is applicable
to Plaintiffs’ claims for civil conspiracy, defamation, intentional infliction of
emotional distress, negligent infliction of emotional distress, and tortious
interference. Defendants write that the WCA provides the “exclusive
remedy for an employee who makes a claim against his or her employer,
and any other employee of the same employer.” Id. (citing Wis. Stat.
§ 102.03(2)). In response, Plaintiffs argue that their state law claims are not
barred by the WCA because that act applies only where the plaintiff was
“performing services ‘growing out of and incidental to . . . [his]
employment at the time of injury.’” ECF No. 61 at 33 (quoting Jenson v.
Although Plaintiffs failed to assert constitutional claims against CHW,
MCW, and CHHS, the Court is satisfied that it may exercise supplemental
jurisdiction over the related state-law claims asserted against these Defendants.
The Court must expressly acknowledge this because, while Plaintiffs assert federal
subject matter jurisdiction pursuant to both § 1331 and § 1332, it is not entirely
clear at this juncture that Plaintiffs actually have diversity jurisdiction. Their
amended complaint does not indicate the domiciles of the Individual Defendants,
and so the Court has no way of discerning if there is complete diversity.
22

Page 78 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 78 of 116 Document 67

Employers Mut. Cas. Co., 468 N.W.2d 1, 8 (Wis. 1991)). For the WCA’s
exclusive remedy provision to apply, Plaintiffs write, “only the injured
employee, and not the injuring coemployee need have been acting within
the scope of his or her employment at the time of the injury,” and “Plaintiff
was NOT acting within the scope of his employment at the time of his injury
related to any of his State law claims.” Id. at 33–34 (internal citation
omitted).
If Plaintiffs’ state-law claims are those for which “there is the right to
recovery under the WCA,” then Plaintiffs are constrained by the WCA’s
exclusivity and mandated procedures. See Jenson, 468 N.W.2d at 4.23 In order
for a plaintiff to have a right to recovery under the WCA, Wis. Stat. §
102.03(1)(c) of that act requires that “at the time of the injury, the employee
is performing service growing out of and incidental to his or her
employment.” Indeed, as Plaintiffs assert, “only the injured employee, and
not the injuring coemployee need have been acting within the scope of his
or her employment at the time of the injury” in order for the WCA to
provide the exclusive remedy. Jenson, 468 N.W.2d at 8 (quoting Rivera v.
Safford, 377 N.W.2d 187, 190 (Wis. 1985)).
In Jenson, the Wisconsin Supreme Court concluded that the
plaintiff’s state common law claims were, indeed, barred by the WCA’s
exclusive remedy provision because she incurred the alleged injuries while
“performing services ‘growing out of and incidental to . . . her
employment.’” Id. The plaintiff there was the “clerk-treasurer” of the
Village of Solon Springs. Id. at 2. The court noted that the “attacks upon her
The significance is that “recovery under the WCA is only in a scheduled
amount while the common law claim permits whatever recovery a jury may award
that is supported by the evidence.” Jenson, 468 N.W.2d at 5.
23

Page 79 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 79 of 116 Document 67

took place at village board meetings and in the confines of the village hall,
where both [plaintiff and defendant] worked.” Id. at 8. They occurred
immediately before, during, and immediately after the board meeting. Id.
“It would appear from a common sense point of view,” the court wrote,
“these were times when Jenson, by virtue of her duty to be at the board
meetings, was performing services growing out of and incidental to her
employment.” Id. Plaintiff was attacked “at work and in respect to her work
performance.” Id. See also Bostwick v. Watertown Unified Sch. Dist., No. 13-C1036, 2013 U.S. Dist. LEXIS 170827, at *6–7 (E.D. Wis. Dec. 4, 2013)
(“[§ 102.03’s] language—growing out of and incidental to employment—is
used interchangeably with the phrase ‘course of employment.’ . . . An injury
arises in the course of employment when it takes place within the period of
the employment at a place where the employee reasonably may be, and
while he or she is fulfilling his or her duties or engaged in doing something
thereto.”) (internal citation omitted).
The same is not true here, and the Court concurs with Plaintiffs’
assertion that at the time of the alleged injuries, Plaintiffs were not
“performing service growing out of and incidental to [their] employment.”
Wis. Stat. § 102.03(1)(c). Plaintiffs’ state common law claims—civil
conspiracy, intentional and negligent infliction of emotional distress,
defamation, and tortious interference—relate to their treatment as foster
parents of a child who was subject to Defendants’ care. Plaintiffs were not
acting within the scope of their employment as physicians at the time of
these injuries. While the injuries occurred in their place of work, Plaintiffs
were not there in their capacity as physicians, nor do the pleadings suggest
that they were on the clock. Unlike in Jenson, Plaintiffs had no “duty” to be

Page 80 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 80 of 116 Document 67

at the hospital at that time and were not performing any work-related
services. See Jenson, 468 N.W.2d at 8.
The MCW Defendants cite Becker v. Automatic Garage Door Co., 456
N.W.2d 888 (Wis. Ct. App. 1990) in support of their argument that WCA is
the exclusive remedy for Plaintiffs’ state law claims. There, the court held
that the plaintiff’s claim that she was defamed was barred by the exclusivity
provision of the WCA. Becker, 456 N.W.2d 891. The plaintiff claimed that
defendants stated that she was calling off sick from work “in order to stay
home” and cheat on her husband. Id. at 891–92. The court there did not,
however, analyze whether she incurred the alleged injury while performing
services growing out of and incidental to her employment as required for
the WCA to be the plaintiff’s exclusive remedy. The court stated simply that
her defamation claim was barred by the WCA’s “exclusivity provisions . . .
as recently interpreted by this court in Jenson . . . .” Id. at 892. The court did
not provide any further analysis on that issue. Because that case did not
evaluate whether the plaintiff’s injuries were incurred while the plaintiff
was performing service growing out of or incidental to her employment, an
express requisite for the WCA’s exclusivity provision to apply, it provides
little guidance to the Court.
The MCW Defendants also cite Wolf v. F&M Banks, 534 N.W.2d 877
(Wis. Ct. App. 1995). ECF No. 42 at 22. The court there wrote that “In Becker,
the court of appeals held that defamation claims by an employee against an
employer and its employees are preempted by the WCA.” Wolf, 534 N.W.2d
at 883. Again, the court did not there analyze whether the plaintiff’s injury
was incurred while the plaintiff was performing service growing out of or
incidental to her employment.

Page 81 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 81 of 116 Document 67

Wolf relied on Becker, and Becker ostensibly relied on Jenson. The
Wisconsin Supreme Court’s interpretation of the WCA’s exclusivity
provision in Jenson is what is controlling to this Court. Jenson explicitly
acknowledged the requirement that “[w]here, at the time of the injury, the
employee is performing service growing out of and incidental to his or her
employment” as required for “[l]iability under this chapter” to exist. Jenson,
468 N.W.2d at 8 (citing Wis. Stat. § 102.03(1)). Becker and Wolf made no
mention of that requirement. The Court concludes that Jenson and its
analysis of § 102.03(1) is controlling. And as noted above, it is the Court’s
opinion at this time that the present circumstances are materially
distinguishable from Jenson. Accordingly, the WCA does not bar Plaintiffs’
state common law claims.
Defendants similarly argue that Wis. Stat. Ch. 655 is the “exclusive
remedy for all medical malpractice claims” and that Plaintiffs do not have
standing thereunder. ECF No. 42 at 19–20; see also ECF No. 47 at 36 (“[T]o
the extent those [state-law claims] are founded in medical malpractice, they
fail because (1) Plaintiffs did not follow Wisconsin Statute Chapter 655’s
‘exclusive procedure and remedy for medical malpractice in Wisconsin,’ . . .
and (2) Plaintiffs lack standing to assert medical malpractice under Chapter
655 as pre-adoptive parents, see Wis. Stat. § 655.007”). Plaintiffs do not
address this contention.
“When applicable, ‘Chapter 655 constitutes the exclusive procedure
and remedy for medical malpractice in Wisconsin.’” Andruss v. Divine
Savior Healthcare Inc., 973 N.W.2d 435, ¶ 26 (Wis. 2022) (internal citation
omitted). Section 655.007 provides that “any patient or the patient’s
representative having a claim . . .[or] a derivative claim for injury or death
on account of malpractice is subject to this chapter.” No death is alleged
Page 82 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 82 of 116 Document 67

here, nor do Plaintiffs seek relief against Defendants for any physical injury
suffered by L.G., so the Court must analyze the scope of Chapter 655’s
applicability.
“While ‘malpractice’ is not defined within the statute, the term is
traditionally defined as ‘professional misconduct or unreasonable lack of
skill,’ or ‘failure of one rendering professional services to exercise that
degree of skill and learning commonly applied under all the circumstances
in the community by the average prudent reputable member of the
profession.’” McEvoy v. Grp. Health Coop., 507 N.W.2d 397, 406 (Wis. 1997)
(internal citation omitted). The court there held that “[C]h. 655 applies only
to negligent medical acts or decisions made in the course of rendering
professional medical care.” Id. (emphasis added). “To hold otherwise
would exceed the bounds of the chapter and would grant seeming
immunity from non-chp. 655 suits to those with a medical degree.” Id.
Therefore, “claims not based on malpractice, such as a bad faith tort action,
survive application of that chapter.” Id.
Most of Plaintiffs’ state law claims require intentional, rather than
merely negligent, conduct. Chapter 655 is therefore inapplicable to those
claims because they are not based on allegedly “negligent medical acts.” Id.
Plaintiffs’ negligent infliction of emotional distress (“NIED”) claim,
however, is grounded in allegations of negligent medical acts, and therefore
does require discussion within the context of Chapter 655.24

Ch. 655 usually encompasses claims for loss of consortium. See Phelps v.
Physicians Ins. Co. of Wis., Inc., 768 N.W.2d 615, ¶¶ 62–63. However, Plaintiffs’ loss
of consortium claim, Count XVI, arises out of their claim of defamation of Cox, not
out of their allegations of negligent medical acts, and therefore does not fall within
the umbrella of medical malpractice for purposes of Ch. 655 applicability. See
McEvoy, 507 N.W.2d at 406 (“[C]h. 655 applies only to negligent medical acts or
24

Page 83 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 83 of 116 Document 67

In Phelps v. Physicians Ins. Co. of Wis., Inc., 768 N.W.2d 615, ¶ 61 (Wis.
2009), the Wisconsin Supreme Court addressed “whether Wis. Stat. ch. 655
bars claims brought by a bystander who claims that an employee of a health
care provider, or the health care provider itself, negligently provided health
care services to a relative of the bystander that caused emotional distress to
the bystander.” The court noted that Chapter 655 refers to the “claims of
patients and the derivative claims of specified relatives.” Id. at ¶ 62 (internal
citation omitted) (emphasis added). Therefore, “a relative’s claim must be
derivative to fall within the scope of allowable medical malpractice
recovery . . . .” Id. (internal citation omitted).
The court explained that a bystander NIED claim is a “direct, not a
derivative, claim,” because such a claim “does not depend on the primary
tort victim’s ability to make the claim.” Id. at ¶ 63 (internal citation omitted).
Stated otherwise, “a derivative claim arises from the tort injury to another;
it does not have its own elements of proof that are distinct from the
negligence claim to which it attaches . . . . By contrast, a claim of bystander
emotional distress has elements that, while arising from the underlying
negligence, are distinct and subject to separate proof.” Id. The court
ultimately confirmed that “[b]ecause Chapter 655 exclusively governs all
claims arising out of medical malpractice [against health care providers and
their employees], and because the legislature did not include [bystander]
claims in Wis. Stat. §§ 655.005(1) or 655.007, . . . negligent infliction of
emotional distress claims arising out of medical malpractice are not
actionable under Wisconsin law." Id. at ¶ 65 (internal citation omitted).

decisions made in the course of rendering professional medical care.”). For the
Court’s discussion of Plaintiffs’ loss of consortium claim, see Section 5.6.

Page 84 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 84 of 116 Document 67

Plaintiffs, however, assert a direct NIED claim, not a bystander one.
But this difference, at least in the context of Ch. 655’s applicability, is
immaterial. Although Phelps specifically made reference to “the negligent
infliction of emotional distress to a bystander,” id. at ¶ 67, its reasoning
extends to direct NIED claims as well. Direct NIED claims, like bystander
NIED claims, have “elements that, while arising from the underlying
negligence, are distinct and subject to separate proof.” Id. at ¶ 63. Like
bystander NIED claims, then, direct NIED claims are not derivative and do
not “fall within the scope of allowable medical malpractice recovery” under
Chapter 655. Id. at ¶ 62 (internal citation omitted). Because Plaintiffs’ direct
NIED claim arises out of medical malpractice and is brought against a
hospital and hospital employees, it is “exclusively govern[ed]” by Chapter
655. See id. at ¶ 65. And since, like bystander NIED claims, Chapter 655
“does not permit such claims,” Plaintiffs’ direct NIED claim is not
recognized by Wisconsin law. See id. at ¶ 66. The Court must therefore grant
Defendants’ motions to dismiss to the extent they seek to dismiss Plaintiffs’
NIED claim for failure to state a claim.25
Having addressed Defendants’ argument regarding the WCA and
Chapter 655, the Court now proceeds to the merits of the civil conspiracy
claim. Under Wisconsin law, “[a] civil conspiracy is ‘a combination of two
or more persons by some concerted action to accomplish some unlawful
purpose or to accomplish by unlawful means some purpose not in itself

Since the Court has concluded that this claim is not actionable under
Wisconsin law, the Court need not address Defendants’ contention that Plaintiffs
do not have standing under Chapter 655 to bring it. Furthermore, the Court need
not grant leave to amend as to this Count as doing so would be futile. See NewSpin
Sports, LLC, 910 F.3d at 310 (district court need not allow amendment if doing so
would be futile).
25

Page 85 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 85 of 116 Document 67

unlawful.’” Fabick, Inc. v. FABCO Equip., Inc., No. 16-CV-172-WMC, 2017
U.S. Dist. LEXIS 87028, at *13 (W.D. Wis. June 7, 2017) (internal citation
omitted). “To state a cause of action for civil conspiracy, the complaint must
allege: (1) the formation and operation of the conspiracy; (2) the wrongful
act or acts done pursuant thereto; and (3) the damage resulting from such
act or acts.” Id. (quoting Onderdonk v. Lamb, 255 N.W.2d 507, 510 (Wis.
1977)). “The complaint must state what was done in the execution of the
conspiracy and that the purpose of the combination was accomplished.”
Onderdonk, 255 N.W.2d at 510 (internal citation omitted). The Court
concludes that these elements are met for purposes of the pleading stage.
As to the first element, the Court has already discussed Plaintiffs’
allegations regarding Defendants’ conspiracy to discredit Plaintiffs, foil the
planned adoption of L.G., and see to it that criminal child abuse charges
were brought against Cox—all based on an allegedly erroneous medical
examination and an extensive subsequent coverup. See supra Sections 5.1.1.1
and 5.1.1.2. Plaintiffs’ amended complaint sufficiently alleges the scope and
operation of the alleged conspiracy.
Similarly, the Court has already acknowledged the “wrongful act or
acts done pursuant” to the alleged conspiracy. Id.; Fabick, 2017 U.S. Dist.
LEXIS 87028, at *13. The amended complaint is replete with such alleged
acts. They include spreading the baseless claim that L.G. was covered in
bruises from head to toe, refusing to allow Plaintiffs into L.G.’s
appointment, refusing to disclose the photos of L.G. taken at the
appointment, attempting to intimidate Plaintiffs for expressing their
grievances,

attempting

to

intimidate

and

punish

those

medical

professionals whose conclusions aligned with those of Plaintiffs,
wrongfully informing others that Cox had abused another child, denying
Page 86 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 86 of 116 Document 67

Plaintiffs administrative review, extensively covering up Defendants’
errors upon discovering them, and more.
The Court must note, however, that the amended complaint does not
appear to implicate Petska in any of the above-listed alleged acts. To the
contrary, it was Petska who concluded that L.G.’s injuries were not
necessarily indicative of abuse and indicated to Cox that she thought
everything would turn out okay for his family, and Plaintiffs themselves
allege that their exclusion from L.G.’s appointment was contrary to Petska’s
plan of care. Plaintiffs allege that Petska wrongfully transferred care of L.G.
to Ventura, but they do not suggest that she did so intentionally—rather,
Plaintiffs’ allegations suggest that she did so negligently. The amended
complaint does not allege, not can the Court reasonably infer, that Petska
was involved in any conspiracy to injure Plaintiffs. However, merely
because Plaintiffs have not pleaded such factual allegations at to Petska
does not necessarily mean that “there are no [such] facts” in existence to
support their claim. 3 MOORE’S FEDERAL

PRACTICE

– CIVIL § 15.15.

Accordingly, the Court is obliged to grant Plaintiffs leave to file a second
amended complaint to address the deficiency noted here.
The Court continues to the third element as to the remaining
Defendants: that the amended complaint sufficiently alleges the “damage
resulting from such act or acts.” Fabick, 2017 U.S. Dist. LEXIS 87028, at *13.
In other words, that Plaintiffs have alleged that the conspiracy’s
“purpose . . . was accomplished.” Onderdonk, 255 N.W.2d at 510 (internal
citation omitted). Plaintiffs allege that as a result of these wrongful acts
orchestrated pursuant to Defendants’ conspiracy, they were unable to
complete their planned adoption of L.G., their reputations were tarnished,

Page 87 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 87 of 116 Document 67

Cox was subject to felony child abuse charges based on allegedly erroneous
medical conclusions, and they were humiliated.
The analysis does not end there, however. “Under Wisconsin law, a
claim for civil conspiracy also requires an underlying tort to be actionable.”
Fabick, 2017 U.S. Dist. LEXIS 87028, at *13. This is because in Wisconsin,
“there is no such thing as a civil action for conspiracy. There is an action for
damages caused by acts pursuant to a conspiracy but none for the
conspiracy alone.” Onderdonk, 255 N.W.2d at 509. “[I]t is not the conspiracy,
as such, that constitutes the cause of action, but the overt acts that result
from it. Thus, any concomitant damage to the plaintiffs stems from the acts
done in furtherance of the conspiracy, not from the conspiracy itself.” Id. at
510 (internal citation omitted). The question is therefore whether Plaintiffs
have sufficiently stated a claim (or claims) for an underlying tort. As the
Court will discuss further below, Plaintiffs have done so. Accordingly,
Plaintiffs have stated a claim for civil conspiracy against all those
Defendants against whom this claim was brought, except Petska.
5.3

COUNT
XIII—INTENTIONAL
EMOTIONAL DISTRESS

INFLICTION

OF

Plaintiffs additionally seek to recover for intentional infliction of
emotional distress (“IIED”) against Ventura, Sheets, Gutzeit, MCW, CHHS,
and CHW. ECF No. 37 at 69. To raise a claim for IIED under Wisconsin law,
a plaintiff must allege “(1) that the defendant’s conduct was intentioned to
cause emotional distress; (2) that the defendant’s conduct was extreme and
outrageous; (3) that the defendant’s conduct was a cause-in-fact of the
plaintiff’s emotional distress; and (4) that the plaintiff suffered an extreme
disabling emotional response to the defendant’s conduct.” Lenczner v. Fargo,

Page 88 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 88 of 116 Document 67

No. 14-cv-691-wmc, 2017 U.S. Dist. LEXIS 82713, at *7 (W.D. Wis. May 31,
2017).
The MCW Defendants allege that this claim fails because the
amended complaint fails to sufficiently allege that Defendants’ behavior
was “extreme and outrageous.” ECF No. 42 at 30. They cite Kennedy v.
Children’s Service Society, 17 F.3d 980 (7th Cir. 1994). There, the plaintiffs
sought to adopt a child but were hindered in doing so after Children’s
Services Society of Wisconsin (“CSS”) backed out because it believed the
plaintiffs were members of a cult. Kennedy, 17 F.3d at 982. That case
provides that “[e]xtreme or outrageous behavior means that ‘the average
member of the community must regard the defendant’s conduct in relation
to the plaintiff as being a complete denial of the plaintiff’s dignity as a
person.” Id. at 986–87 (internal citation omitted). It further provides that
“[t]his is a high standard, and Wisconsin courts have been reluctant to find
conduct sufficiently extreme to meet this test.” Id. at 987.
The MCW Defendants’ argument regarding whether Defendants’
conduct is truly “extreme or outrageous” is better suited for summary
judgment. Indeed, Kennedy—the case the MCW Defendants cite—was at the
summary judgment stage. Taking Plaintiffs’ well-pleaded factual
allegations as true, and drawing all reasonable inferences in their favor,
Plaintiffs have sufficiently alleged that the behaviors to which they were
subject were “extreme and outrageous.”
Kennedy did not stand for the proposition that IIED claims are
incognizable in the adoption context as a matter of law. Nor are the facts of
Kennedy so analogous as to be controlling here. In Kennedy, the Seventh
Circuit wrote that “CSS’s withdrawal from the adoption” or the statements
made about the suspected cult could not be considered extreme or
Page 89 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 89 of 116 Document 67

outrageous or “a complete denial of the plaintiff’s dignity.” Id. at 987.
Plaintiffs’ allegations, in contrast, go well beyond the mere failure of a
planned adoption and a few adverse comments. In addition to being
prevented from fulfilling an adoption as planned, Plaintiffs allege that
Defendants targeted them with a campaign of harassment, wrongfully
excluded them from L.G.’s care, tarnished their reputations (both personal
and professional), erroneously portrayed them as child abusers, ensured
that Cox was criminally charged based on a flawed medical examination,
wrongfully denied them timely administrative review, and more. While the
burden for showing extreme and outrageous conduct is a difficult one, the
Court cannot say at this time that Plaintiffs have failed to plead it.
There is a problem with this claim, however. Plaintiffs do not allege
that these Defendants’ conduct was “intentioned to cause emotional
distress.” Id. This element requires the plaintiff to show that “the purpose
of the conduct was to cause emotional distress.” Woltring v. Specialized Loan
Servicing LLC, 56 F. Supp. 3d 947, 952 (E.D. Wis. 2014) (internal citation
omitted). Plaintiffs allege that these Defendants’ actions “caus[ed] them
intense emotional distress,” but they do not allege that Defendants’ actions
were motivated by that purpose. Plaintiffs allege that Defendants used
Ventura’s erroneous conclusion of abuse to “begin an unprecedented
campaign of targeted harassment against Plaintiffs, tarnishing Plaintiffs’
personal reputations as loving parents and their professional reputations as
skilled and reliable medical caregivers,” ECF No. 37 at 3, but nowhere does
the amended complaint allege that Ventura, Sheets, Gutzeit, MCW, CHHS,
and CHW instituted such a campaign of harassment for the purpose of
inflicting emotional distress upon Plaintiffs. To the contrary, Plaintiffs’
amended complaint suggests that these Defendants participated in this
Page 90 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 90 of 116 Document 67

alleged conduct for the purpose of covering-up their own errors and
protecting their own professional reputations. See id. at 36 (“Rather than
admit the truth, in order to cover up and obscure the evidence of their
wrongdoing and of these violations, and in retaliation for Plaintiffs’
advocacy and criticism, Defendants conspired with one another to take
whatever steps were necessary to smear Plaintiffs’ reputations, to generate
false substantiation for the allegations of abuse, and to support the decision
to remove L.G. from Plaintiffs’ care . . . .”). Because they have not properly
alleged that Ventura, Sheets, Gutzeit, MCW, CHHS, and CHW engaged in
the alleged conduct for the purpose of inflicting emotional distress on
Plaintiffs, this claim fails.
However, such a deficiency in pleading may be redressable by
amendment. “Courts should not dismiss the complaint unless it is beyond
a doubt that there are no facts to support relief.” 3 MOORE’S FEDERAL
PRACTICE

– CIVIL § 15.15. Merely because Plaintiffs have not pleaded such

factual allegations does not necessarily mean that “there are no [such] facts”
in existence to support their claim. Id. Accordingly, the Court is obliged to
grant Plaintiffs leave to file a second amended complaint to address the
deficiency noted here.
5.4

COUNT XIV—TORTIOUS INTERFERENCE

Plaintiffs also attempt to raise a claim of tortious interference against
Ventura, Sheets, Gutzeit, MCW, CHHS, and CHW. ECF No. 37 at 70. They
allege that they had a “reasonable expectancy of entering into a valid
adoption with Catholic Charities and L.G.’s birth parents,” that the abovementioned Defendants were aware of that, and that those Defendants’
conduct “resulted in Plaintiffs [sic] inability to adopt L.G.” Id.

Page 91 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 91 of 116 Document 67

The elements of tortious interference under Wisconsin law are:
“(1) the plaintiff had a contract or prospective contractual relationship with
a third party; (2) the defendant interfered with the relationship; (3) the
interference was intentional; (4) a causal connection exists between the
interference and the damages; and (5) the defendant was not justified or
privileged to interfere.” Henson v. Stroede, 868 N.W.2d 198, ¶ 6 (Wis. Ct.
App. 2015) (quoting Brew City Redevelopment Grp., LLC v. Ferchill Grp., 724
N.W.2d 879, ¶ 37 n.9 (Wis. 2006).
The Children’s Defendants argue that this claim must fail because “a
claim for tortious interference requires interference with an existing or
prospective contractual relationship” and “[a]n adoption is not a contractual
relationship; it is a process governed by statute and subject to court
oversight and approval.” ECF No. 47 at 36; see also ECF No. 42 at 24. In
response, Plaintiffs do not dispute that “an adoption is ultimately
determined by a Wisconsin Family Court after a 6-month waiting
period . . . .” ECF No. 61 at 35. But, they argue, Defendants fail to
acknowledge that “Plaintiffs did have an agreement with Catholic Charities
and the birth parents to have custody of L.G.” Id. “[L.G.’s] birth mother still
had full legal rights as this was a private adoption, and there was an
agreement between the birth mother, Catholic Charities, and Plaintiffs to
take custody of her and maintain custody during the statutory waiting
period of 6 months.” Id. Indeed, the amended complaint provides that they
“entered into an agreement with L.G.’s birth parents and with the agency
supervising L.G.’s adoption for Plaintiffs to begin serving as pre-adoptive
foster parents to L.G. immediately following her birth . . . .” ECF No. 37 at
8.

Page 92 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 92 of 116 Document 67

The MCW Defendants write that “[t]here is no Wisconsin case that
acknowledges a claim for alleged interference with a couple’s hope to adopt
a child.” ECF No. 42 at 24. Indeed, the Court has found no case factually
analogous evaluated under Wisconsin law upon which it could determine
that such a claim is cognizable. Nor have Plaintiffs cited such a case. But the
lack of an analogous case is not necessarily dispositive. The elements of
tortious interference do not indicate that their application is limited strictly
to the “business contract” context. See ECF No. 42 at 24.
Wisconsin’s recognition of the tort of tortious interference is based
on its adoption of the Restatement (Second) of Torts § 766. Roeming v.
Peterson Builders, 545 N.W.2d 521, 1995 Wisc. App. LEXIS 1571, at *11 (Wis.
Ct. App. Dec. 27, 1995). Accordingly, the Court looks to that provision of
the Restatement (Second) of Torts to determine the scope of the tort. Section
766 of the Restatement (Second) of Torts provides that “[o]ne who
intentionally and improperly interferes with the performance of a contract
(except a contract to marry) between another and a third person by inducing
or otherwise causing the third person not to perform the contract, is subject
to liability to the other for the pecuniary loss resulting to the other from the
failure of the third person to perform the contract.” (emphasis added).
The language there explicitly excludes one context from the tort’s
applicability—that of marriage. The canon of construction expressio unius est
exclusion alterius provides that “to express or include one thing implies the
exclusion of the other.” United States v. Peralta-Espinoza, 413 F. Supp. 2d 972,
977 (E.D. Wis. 2006) (citing Dersch Energies v. Shell Oil Co., 314 F.3d 846, 861
n.15 (7th Cir. 2002)). In other words, if the drafters of the Restatement
(Second) of Torts intended to exclude from the tort’s applicability that
which arises from the adoption context—or even from the context of
Page 93 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 93 of 116 Document 67

domestic relations generally—the Court would assume that context would
be listed along with that of marriage. But since only “contract[s] to marry”
are listed as excluded in the Restatement’s language, the Court assumes
that that is the only context in which the tort cannot, as a matter of law,
apply. Indeed, the comments to § 766 confirm this conclusion. See
Restatement (Second) of Torts § 766, cmt. d (“[T]he rule stated in this
Section is applied to any type of contract, except a contract to marry.”)
(emphasis added). In sum, the Court has no reason before it to conclude
that tortious interference with a contract cannot be raised in the adoption
context as a matter of law.
The Court must also address the MCW Defendants’ argument that
Plaintiffs have failed to raise a tortious interference claim because “[t]here
is no causal connection between the MCW Defendants’ alleged conduct
and the state’s decision to remove L.G. from Plaintiffs’ home.” ECF No. 42
at 3, 25. The MCW Defendants state simply that the amended complaint
indicates that “the decision to remove L.G. from [Plaintiffs’] home was not
based on anything the MCW Defendants did.” Id. at 25. In response,
Plaintiffs argue that
[Defendants’] conduct must only be “a cause” of Plaintiff’s
inability to remain L.G.’s custodian during the adoption
process . . . . Ehlinger v. Sipes, 148 Wis. 2d 260, 265 (Ct. App.
1988) (“The causation inquiry is shaped by the substantial
factor test. Causation may be established if a party’s action
substantially causes the resulting harm; a party’s action need
not be the sole or primary factor before liability attaches.”). It
can be nothing more than disingenuous for MCW Defendants
to argue that their ongoing and continued support for an
inappropriate and incomplete evaluation by an unqualified
practitioner plus Dr. Sheets’ ongoing lies about Plaintiff Dr.
Cox having previously abused another child [] and her
repeated claims that Dr. Sheets knew Dr. Cox abused L.G. []
Page 94 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 94 of 116 Document 67

played no role in L.G. being removed from their custody and
their inability to pursue adoption upon completion of the 6
month waiting period.
ECF No. 61 at 36. The Court agrees that, taking Plaintiffs’ well-pleaded
factual allegations as true, it is false to assert that L.G.’s removal was not
based on “anything the MCW Defendants did.” ECF No. 42 at 25.
Having addressed that argument and having found it to be without
merit, the Court returns to the remaining elements of tortious interference.
Plaintiffs’ amended complaint must allege that “the plaintiff had a contract
or prospective contractual relationship with a third party.” Henson, 868
N.W.2d 198, ¶ 6.26 The Court is satisfied for purposes of the pleading stage
that Plaintiffs sufficiently allege that they had a contract with Catholic
Charities and with L.G.’s birth parents. See Stucchi USA, Inc. v. Hyquip, Inc.,
No. 09-CV-732, 2011 U.S. Dist. LEXIS 45600, at *23 (E.D. Wis. Apr. 20, 2011)
(requirement of existence of actual or prospective contract was met where
plaintiff had plausibly alleged that it had an “oral agreement”); ECF No. 37
at 8 (alleging that Plaintiffs entered into an “agreement” with Catholic
Charities and L.G.’s birth parents).

The MCW Defendants cite Shank v. William R. Hague, Inc., 192 F.3d 675
(7th Cir. 1999) both for their recitation of the elements of tortious interference as
well as for the definition of a contract. ECF No. 42 at 24–25. They rely on it in
support of their assertion that there “was no contract” here because a “legally
binding contract is one in which the parties manifested their intention to be bound
to an agreement, the terms of which are sufficiently certain and definite.” Id. at 25
(citing Shank, 192 F.3d at 685). Not for the first time in the briefing on these
motions, the Court is provided with no acknowledgement of the cited case’s
negative subsequent history. The parties are reminded that it is advisable to
acknowledge a case’s negative subsequent history, even if not relevant to the point
for which it is cited. See Bluebook Table 8 (“rev’d on other grounds”).
26

Page 95 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 95 of 116 Document 67

Plaintiffs’ amended complaint must further allege that the relevant
Defendants interfered with the contractual relationship and that the
interference was intentional. See Henson, 868 N.W.2d 198, ¶ 6. Moreover, a
claim for tortious interference with a contractual relationship requires the
plaintiff not merely to allege that the defendant intentionally undertook the
conduct that had the result of interfering with the contractual relationship,
but rather that the defendant “act[ed] with a purpose to interfere with
the . . . contract.” Foseid v. State Bank of Cross Plains, 541 N.W.2d 203, 209
(Wis. Ct. App. 1995). “If an actor lacks ‘the purpose to interfere’ then his or
her ‘conduct does not subject [him or her] to liability even if it has the
unintended effect of deterring [a third party] from dealing with the
[plaintiff].” Id. Necessarily, “[t]o be subject to liability [for tortious
interference with a contract], the actor must have knowledge of the contract
with which he is interfering and the fact that he is interfering with the
performance of the contract.” Restatement (Second) of Torts, § 766, cmt. i.
Interference with the contract need not be the defendant’s sole motivation.
Liability for tortious interference with a contract may attach “if the actor acts
for the primary purpose of interfering with the performance of the contract,
and also if he desires to interfere, even though he acts for some other
purpose in addition.” Id. at cmt. j.
The following portions of the amended complaint relate to these
elements. ECF No. 37 at 70 (“Defendants’ interfering acts were done
willfully, or with a wanton disregard for the rights of Plaintiffs”), at 42
(alleging that Sheets made “repeated statements” to hospital employees
that she was positive that Cox had abused L.G, while knowing such
statements were false; alleging that Sheets prevented CPS from accessing
Petska’s medical documentation and from speaking with her; and alleging
Page 96 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 96 of 116 Document 67

that Sheets provided knowingly false information to government
investigators to prejudice them against Cox), at 25 (alleging that Ventura
deliberately conducted a flawed medical evaluation of L.G.), at 45 (alleging
that the Child Advocacy Program built and maintained by the Entity
Defendants was deliberately designed to confirm abuse).
These allegations demonstrate that the interference was intentional,
but not necessarily that it was intentioned specifically towards interfering
with Plaintiffs’ agreement with L.G.’s birth parents and Catholic Charities.
Even if the Court were to conclude that these interfering acts were
intentioned at least in part towards interfering with the agreement, it is not
at all clear from the amended complaint that the relevant Defendants
“act[ed] for the primary purpose of interfering with the performance of the
contract.” Restatement (Second) of Torts, § 766, cmt. j (emphasis added).
Plaintiffs claim that Defendants were aware of the agreement, but the
amended complaint suggests that Defendants’ interfering acts were
premised, at least primarily, on other ends—such as protecting their own
reputations and professions.
However, the Restatement (Second) of Torts goes on to state that
liability for tortious interference
applies also to intentional interference . . . in which the actor
does not act for the purpose of interfering with the contract or
desire it but knows that the interference is certain or
substantially certain to occur as a result of his action. The rule
applies, in other words, to an interference that is incidental to
the actor’s independent purpose and desire but known to him
to be a necessary consequence of his action.
Id. Taking Plaintiffs’ well-pleaded factual allegations as true and drawing
reasonable inferences in their favor, Plaintiffs have satisfied this element of

Page 97 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 97 of 116 Document 67

tortious interference. Since Defendants were allegedly aware of the
agreement between Plaintiffs, L.G.’s birth parents, and Catholic Charities,
and since Defendants were motivated to ensure that CPS would investigate
Plaintiffs for suspected child abuse, the Court can reasonably infer that
those Defendants “kn[ew] that the interference [was] certain or
substantially certain to occur as a result of [their] action.” Id. That satisfies
Plaintiffs’ burden at the pleading stage as to this element of tortious
interference.
However, Plaintiffs do not clearly allege that Gutzeit, specifically,
interfered with the contractual relationship and that any such interference
was intentional. Gutzeit, according to the amended complaint, was the
“Chief Medical Officer of CHW and [] its Vice President of Quality and
Safety.” ECF No. 37 at 6. Plaintiffs’ allegations against Gutzeit appear to
revolve around his negligence in failing to ensure that L.G. received proper
care and that those employees interacting with her complied with
applicable procedures and policies. See id. at 21 (alleging that Gutzeit
violated the standard of care applicable to him by failing to ensure that
Ventura’s examination of L.G. was supervised and that her erroneous
conclusions were corrected), at 25 (alleging that Gutzeit failed to ensure that
L.G. was transferred into the care of a qualified medical professional). These
alleged failures do not suggest intentional behavior, and they accordingly
cannot support a tortious interference claim against Gutzeit.
Plaintiffs further allege that Gutzeit became more personally
involved when they brought their “grievance concerns” to him on “May 15,
2019.” Id. at 30. Plaintiffs allege that around that time, Gutzeit refused to
name the specific physician responsible for supervising Ventura during the
appointment and that Gutzeit informed Plaintiffs, allegedly erroneously,
Page 98 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 98 of 116 Document 67

that their status as physicians had no bearing on the treatment they’d
received. Id. at 30–31. It is not clear, however, how any of this alleged
conduct interfered with the agreement Plaintiffs had with L.G.’s birth
parents and Catholic Charities, and it is even less clear that this conduct
was intentioned towards that end. Plaintiffs later allege that Gutzeit refused
to allow the ethics committee to perform a review of the situation, but at
that point L.G. had already been removed from Plaintiffs’ home, id. at 32,
38–39, and their agreement with L.G.’s birth parents and with Catholic
Charities had already been interfered with. Accordingly, Plaintiffs have
failed to state a tortious interference claim against Gutzeit.
However, “[c]ourts should not dismiss the complaint unless it is
beyond a doubt that there are no facts to support relief.” 3 MOORE’S FEDERAL
PRACTICE—CIVIL § 15.15. Merely because Plaintiffs have failed to plead such
factual allegations as to Gutzeit does not mean that there are no such facts
in existence to support their claim. Accordingly, the Court is obliged to
grant Plaintiffs leave to file a second amended complaint to attempt to
address the deficiency noted here.
Lastly, the Court must evaluate whether Plaintiffs have sufficiently
alleged that Sheets, Ventura, CHW, MCW, and CHHS were “not justified
or privileged to interfere.” Henson, 868 N.W.2d 198, ¶ 6. “When the
interference is with a contract, an interference is more likely to be treated as
improper than in the case of interference with prospective dealings . . . .”
Restatement (Second) of Torts, § 766, cmt. b. Furthermore,
[i]f the actor is not acting criminally nor with fraud or violence
or other means wrongful in themselves but is endeavoring to
advance some interest of his own, the fact that he is aware that
he will cause interference with the plaintiff’s contract may be
regarded as such a minor and incidental consequence and so
Page 99 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 99 of 116 Document 67

far removed from the defendant’s objective that as against the
plaintiff the interference may be found to be not improper.
Id. at cmt. j. “The presence or absence of ill will toward the person harmed
may clarify the purposes of the actor’s conduct and may be, accordingly, an
important factor in determining whether the interference was improper.”
Id. at cmt. r.
Whether Defendants were not actually justified or privileged to
interfere is not the question here. The question is whether Plaintiffs
plausibly allege that those Defendants were not justified or privileged in
interfering. Taking Plaintiffs’ well-pleaded factual allegations as true and
drawing all reasonable inferences in their favor, the Court is satisfied that
Plaintiffs have so alleged. Plaintiffs allege that the relevant Defendants were
acting not only to advance some interest of their own, but also wrongfully
and with ill will against Plaintiffs. See id. at cmt. j. Plaintiffs have
accordingly stated a claim for tortious interference against Ventura, Sheets,
MCW, CHHS, and CHW.
5.5

COUNT XV—DEFAMATION AS TO COX

Plaintiffs additionally assert liability for defamation of Cox against
Sheets, Gutzeit, Ventura, MCW, CHW, and CHHS. ECF No. 37 at 71. They
allege that these Defendants “stated that Dr. Cox had abused his child,”
“published the statement that Dr. Cox had abused his child by conveying
that statement to one or more people,” and “adopted” that statement. Id.
To state a claim for defamation under Wisconsin law, “a plaintiff
must allege: 1) a false statement; 2) communicated by speech, conduct or in
writing to someone other than the person defamed; 3) that is unprivileged
and is defamatory.” Jackson v. Slome, No. 15-cv-771-pp, 2016 U.S. Dist.
LEXIS 2399, at *12 (E.D. Wis. Jan. 7, 2016) (internal citation omitted). “Under
Page 100 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 100 of 116 Document 67

Wisconsin law, a statement is defamatory ‘if it tends to harm the reputation
of another as to lower him in the estimation of the community or to deter
third persons from associating or dealing with him.’” Id. at *13 (internal
citation omitted). Furthermore, “[o]ne who repeats or otherwise
republishes defamatory matter is subject to liability as if he had originally
published it.” Hart v. Bennet, 672 N.W.2d 306, ¶ 25 (Wis. Ct. App. 2003)
(quoting Restatement (Second) of Torts § 578 (1977)).
The following allegations go to the first two elements—that the
relevant Defendants made a false statement communicated by speech,
conduct, or writing to someone other than Cox. Jackson, 2016 U.S. Dist.
LEXIS 2399, at *12. See ECF No. 37 at 45 (alleging that L.G.’s medical record
named Cox as L.G.’s abuser before L.G. was ever evaluated by Ventura), at
42 (“Sheets told investigators that Dr. Cox had previously abused a
different child.”) (“Sheets made repeated statements to different groups of
hospital employees that she was positive Dr. Cox had abused L.G.”), and at
19 (“Ventura falsely stated to Defendant Barber that L.G. was ‘covered in
bruises from head to toe.’”) (alleging that false information was provided
to CPS to convince CPS that Plaintiffs represented threats to L.G.’s safety).
These alleged statements are clearly defamatory as they paint Cox as a
repeat child abuser—a status that would no doubt “lower him in the
estimation of the community.” Jackson, 2016 U.S. Dist. LEXIS 2399, at *13.
The amended complaint contains no specific allegations regarding
defamatory statements made by Gutzeit, however. Plaintiffs allege
generally that the entire group of Defendants against whom the defamation
claim is asserted made or adopted such statements, but this bare allegation
is insufficient. Plaintiffs allege that Gutzeit “falsely stat[ed] that [their
exclusion from L.G.’s medical care] was required by the national standards
Page 101 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 101 of 116 Document 67

governing Child Advocacy Clinics,” but this and similar statements are not
defamatory. ECF No. 37 at 40.
Plaintiffs acknowledge this deficiency as to Gutzeit in their response.
There, they provide additional factual allegations as to Gutzeit discovered
“upon further investigation.” ECF No. 61 at 44. They argue that, in a
response to a motion to dismiss, they may “allege additional facts to be
considered when evaluating the sufficiency of the Complaint, so long as
they are consistent with the allegations in the Complaint.” Id. Those
additional facts are that Gutzeit participated in conversations and meetings
with Ventura and Sheets wherein they would “inform people in the
hospital of their erroneous conclusions.” Id.
Indeed, “facts alleged by a plaintiff in a brief in opposition to a
motion to dismiss ‘may be considered when evaluating the sufficiency of a
complaint so long as they are consistent of the allegations in the
complaint.’” Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015) (internal citation
omitted). It is true that the plaintiff there was pro se, but the Seventh
Circuit’s enunciation of the rule does not appear to be limited in application
to pro se plaintiffs. See Stamer v. Seas & Assocs., LLC, No. 15-CV-08277, 2017
U.S. Dist. LEXIS 5490, at *2 n.2 (N.D. Ill. Jan. 13, 2017) (applying this rule in
non-pro se context). Accordingly, the Court will consider these additional
factual allegations. In light of the supplemental facts—that Gutzeit, like
Ventura and Sheets, conveyed false conclusions of abuse about Cox to other
hospital staff—the Court is satisfied that Plaintiffs have sufficiently pleaded
that Gutzeit made defamatory statements.
However, the MCW Defendants argue that even if any such
defamatory statements were made by any of the Defendants against whom
this claim is asserted, they were “privileged as they were made related to
Page 102 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 102 of 116 Document 67

assessment, investigation and reporting of suspected child abuse.” ECF No.
42 at 3. “An otherwise defamatory statement is conditionally privileged if
it is made in furtherance of a common property, business or professional
interest.” Kennedy, 17 F.3d at 985. “There will be no liability if the defendant
‘correctly or reasonably . . . believes that there is information that another
sharing the common interest is entitled to know.” Id. (internal citation
omitted). The MCW Defendants, therefore, argue that any such statement
would have been privileged as it would have been made pursuant to “the
common interest of trying to protect L.G. from suspected child abuse.” ECF
No. 42 at 27.
But again, Kennedy was decided in the posture of summary
judgment. Importantly, at the motion to dismiss stage, the Court must take
Plaintiffs’ well-pleaded factual allegations as true, and Plaintiffs allege that
these defamatory statements were made not pursuant to the interest of
trying to protect L.G., but rather the interest of covering up Defendants’
own wrongdoing. “In a defamation action, a conditional privilege is an
affirmative defense . . . . The burden is on defendant[s], not plaintiffs, to
prove the communication was protected by privilege.” Embiata v. Marten
Transp. Ltd., 574 F. Supp. 2d 912, 919 (W.D. Wis. 2007). “[E]ven if [the Court
accept[s] defendant[s’] argument that the complaint alleges a conditional
privilege, the complaint also alleges that defendant[s] abused and therefore
forfeited its conditional privilege by reporting violations it knew to be
false.” Id. (quoting Zinda v. La. Pac. Corp., 440 N.W.2d 548, 553 (Wis. 1989)
(“[C]onditional privilege is not absolute and may be forfeited if the
privilege is abused . . . The privilege may be abused: (1) because of the
defendant’s knowledge or reckless disregard as to the falsity of the
defamatory matter . . . .”)). The Court is satisfied for purposes of the motion
Page 103 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 103 of 116 Document 67

to dismiss stage that Plaintiffs have alleged that the defamatory statements
were unprivileged and have accordingly stated a claim for defamation
against Cox by Sheets, Ventura, and Gutzeit.
And as to the Entity Defendants, they can only be found liable for
defamation through the actions of their agents. See Classon v. Shopko Stores,
Inc., 435 F. Supp. 1186, 1187 (E.D. Wis. 1977) (“[A] corporation can act only
through its employees and . . . the principles of agency must be utilized to
some extent to find liability on the corporation.”). Since Sheets, Ventura,
and Gutzeit are alleged to be “employee[s], agent[s], or apparent agent[s]
of MCW and/or or CHHS and/or CHW,” ECF No. 37 at 5–6, and since the
Court has concluded that Plaintiffs have successfully stated a claim for
defamation against those three individuals, the Court will decline to
dismiss this claim against the Entity Defendants for failure to state a claim.
5.6

COUNT XVI—DEFAMATION/LOSS OF CONSORTIUM

Plaintiffs further allege defamation / loss of consortium against
Ventura, Sheets, Gutzeit, MCW, CHW, and CHHS. ECF No. 37 at 72. They
allege that as a result of “the negligence suffered by Dr. Cox, Dr. Dobrozsi
has suffered an injury to her relationship, companionship and support.” Id.
“[T]he common-law right of spouses to bring an action for loss of
consortium compensates injuries to a spouse during the period of the
injured spouse’s disability.” Kottka v. PPG Indus., Inc., 388 N.W.2d 160, 169
(Wis. 1986). The concept involves “a broad range of elements such as love,
companionship, affection, society, sexual relations, and the right of support
or the performance of marital services, any one of which is sufficient to
constitute a cause of action.” Id. (internal citation omitted) (emphasis
omitted). “The claim for a loss of consortium is derivative, in the sense that
it does not arise unless the other spouse has sustained a personal injury.”
Page 104 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 104 of 116 Document 67

Muwonge v. Eisenberg, No. 07-C-0733, 2008 U.S. Dist. LEXIS 21880, at *6 (E.D.
Wis. Mar. 19, 2008).
“[T]he plaintiff must prove ‘[a] wrongful invasion, impairment, or
deprivation of any of these rights, resulting from a disabling injury to a
spouse.’” Id. at *5 (internal citation omitted). And although a claim for loss
of consortium is derivative, the plaintiff must still allege, “separately and
independently, that she personally suffered a loss of consortium.” Id. at *6.
The amended complaint is devoid of any specific allegation as to
Dobrozsi’s alleged loss of consortium, let alone loss of consortium
specifically stemming from the alleged defamation of her spouse, Cox. The
amended complaint provides only the bare allegations that Dobrozsi
suffered an “injury to her relationship, companionship and support” and
that as a result of the alleged defamation of Cox, Dobrozsi suffered “injury
of a personal and pecuniary nature.” ECF No. 37 at 72–73. The Court will
not speculate as to what this means. Plaintiffs have failed to state a claim
for loss of consortium.
However, such a deficiency in pleading may be redressable by
amendment. “Courts should not dismiss the complaint unless it is beyond
a doubt that there are no facts to support relief.” 3 MOORE’S FEDERAL
PRACTICE

– CIVIL § 15.15. Merely because Plaintiffs have not pleaded such

factual allegations does not necessarily mean that “there are no [such] facts”
in existence to support their claim. Id. Accordingly, the Court is obliged to
grant Plaintiffs leave to file a second amended complaint to address the
deficiency noted here.
5.7

COUNT XVII—INDEMNIFICATION

Lastly, Plaintiffs attempt to plead a claim for indemnification against
MCW, CHW, and CHHS. ECF No. 37 at 73. In their response in opposition,
Page 105 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 105 of 116 Document 67

Plaintiffs describe this claim as relating “to the obligation of Defendants’
employers to indemnify them in the event of an eventual judgment in
Plaintiffs’ favor on these claims.” ECF No. 61 at 45. Plaintiffs write further
that they “acknowledge [that] there is, at the moment, no judgment to
indemnify.” Id. They plead this claim in their amended complaint for the
purpose of “avoid[ing] any claims of surprise” on the part of Defendants
and to “place each of Defendants’ employers squarely on notice that
Plaintiffs intend to pursue indemnification of any such judgment at the
appropriate time.” Id.
The MCW Defendants argue that this claim should be dismissed
because “Wisconsin does not permit a claim for indemnification.” ECF No.
42 at 30. “A claim for indemnification can be raised by contract or equitable
principles, but is not a separate claim in Wisconsin.” Id.
This characterization does not appear to be entirely accurate.
Wisconsin courts recognize a “common law indemnification claim.” W.
Leather Lofts Condo. Ass’n v. Busalacchi, 788 N.W.2d 384, 2010 Wisc. App.
LEXIS 441, at *17 (Wis. Ct. App. June 15, 2010) (internal citation omitted);
see also Foss v. Madison Twentieth Century Theaters, 551 N.W.2d 862, 867 (Wis.
Ct. App. 1996) (“A common law claim for indemnification requires proof
that the plaintiff was compelled to pay damages for which the plaintiff had
no liability.”).
“A common law indemnification claim . . . requires proof [of] an
injustice.” Busalacchi, 2010 Wisc. App. LEXIS 441, at *17 (internal citation
omitted). “Specifically, to prevail on a claim for common law
indemnification, a plaintiff must prove that the relationship between the
parties is such that, either in law or in equity, there is an obligation on one
party to indemnify the other . . . .” Id. (internal citation omitted). Plaintiffs
Page 106 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 106 of 116 Document 67

allege that “[e]ach of the Entity Defendants are required by law, contract or
other obligation to pay any tort judgment for compensatory damages for
which their employees are liable within the scope of their employment
activities.” ECF No. 37 at 73. The Court is satisfied for purposes of the
pleading stage that Plaintiffs have sufficiently stated a claim for
indemnification against MCW, CHW, and CHHS.
5.8

IMMUNITY

Having determined that Plaintiffs have successfully stated claims
against at least some of the Defendants against whom those claims were
asserted, the Court now addresses many of the Defendants’ heavy reliance
on defenses of immunity. See Berman v. Young, 291 F.3d 976, 983 (7th Cir.
2002) (“The Supreme Court has counseled that the best framework for
analyzing a qualified immunity defense is to first determine if there has
been a constitutional violation and then to consider whether the
constitutional right at issue was clearly established at the time of the
violation.”). The Court must determine whether it is appropriate in this case
to substantively consider issues of immunity at the pleading stage.
Immunity, as a general matter, “typically depends on the facts of the
case, and therefore dismissal is often inappropriate at the pleading stage.”
Knowles v. Hudson, 2019 U.S. Dist. LEXIS 154884, at *7 (N.D. Ind. Sep. 11,
2019). (internal citation omitted). But like qualified immunity, absolute
immunity may be considered at the pleading stage in the limited
circumstance where “a defendant [shows] that she has ‘an airtight defense’
on the face of the complaint.” Paciorek v. Moss, 2021 U.S. Dist. LEXIS 150879,
at *3 (N.D. Ill. Aug. 11, 2021) (internal citation omitted) (dismissing suit at
pleading stage on basis of absolute immunity).

Page 107 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 107 of 116 Document 67

“[S]ocial workers are entitled to absolute prosecutorial immunity
when they initiate and aid the adjudication of child protective
proceedings.” Loertscher v. Anderson, No. 14-cv-870-jdp, 2016 U.S. Dist.
LEXIS 73548, at *12 (W.D. Wis. June 6, 2016) (citing Millspaugh v. Cnty. Dep’t
of Pub. Welfare, 937 F.2d 1172, 1175 (7th Cir. 1991)). “But absolute immunity
does not extend to social workers when they function as investigators.” Id.
“When performing acts in connection with that function, social workers are
akin to police officers, and they are protected in that capacity only by
qualified immunity.” Id.
“The ‘dividing line’ between absolute immunity and qualified
immunity ‘is whether the injury depends on the judicial decision.’” Id. at
*12–13 (quoting Millspaugh, 937 F.2d at 1175). “In other words, if the alleged
injury would not have occurred but for a judge’s decision . . . then the
prosecutor or other individual who induces the judge to act is entitled to
absolute immunity with respect to the inducing conduct.” Id. at *13.
Absolute prosecutorial immunity should not be afforded to the CPS
Defendants because the injuries Plaintiffs allege did not depend on a
”judge’s decision.” Id. To the contrary, Plaintiffs emphasize that many of
their injuries stem from actions taken without judicial oversight.
An issue of absolute immunity pursuant to statute is also raised. All
three groups of Defendants assert immunity pursuant to Wis. Stat.
§ 48.981(4). ECF Nos. 44 at 4, 47 at 32–33, and 42 at 17. That provision
provides immunity from suit against individuals who in good faith
participate in certain enumerated activities, such as making a report of child
abuse, performing or assisting with the medical examination of a child, or
otherwise providing assistance or information in connection with a child
abuse investigation. Wis. Stat. § 48.981(4). It provides further that “[f]or the
Page 108 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 108 of 116 Document 67

purpose of any proceeding, civil or criminal, the good faith of any person
reporting under this section shall be presumed.” Id. That presumption is,
however, still subject to rebuttal.
The Court need not ultimately consider whether the CPS Defendants
are immune from suit under Wisconsin law because Plaintiffs, in their
response to the motions to dismiss, agree to dismiss “their state law claims
for negligence (Count IX) or professional negligence (Count XI).” ECF No.
61 at 5, n.2.27 They write further that since “Count XI was the only state law
claim alleged against any of the CPS Defendants, their arguments under the
notice of claim statute and state law immunity are moot.” Id.
But other state-law claims are still alleged against non-CPS
Defendants—specifically Ventura, Petska, Sheets, Gutzeit, MCW, CHHS,
and CHW, and those Defendants assert statutory immunity under
§ 48.981(4) just as the CPS Defendants had. Accordingly, the Court must
still determine whether it is appropriate to consider the applicability of
statutory immunity as to those Defendants at this stage. The Court
concludes that it is. However, the Court believes that based on their wellpleaded allegations, Plaintiffs are entitled to an opportunity to rebut the
presumption of good faith imposed by § 48.981(4).
There is no question that § 48.981(4) is applicable to the non-CPS
Defendants listed above, all of whom are alleged to have participated in
The MCW Defendants also contend that Plaintiffs abandoned their claims
against Petska for failure to supervise (Count VIII). ECF No. 63 at 2 (citing ECF No
61 at 27) (noting that Plaintiff alleges supervisory liability “only against
Defendants Sheets, Gutzeit, Parr-Nelson, Urban, Miller, Chagall, Jewell, and
Hartmann”); see also ECF No. 63 at 3. This claim could not have been abandoned
because Plaintiffs do not assert Count VIII against Petska. ECF No. 37 at 63 (“Count
VIII: 42 U.S.C. § 1983 –Supervisory Liability—Against Defendants Sheets, Gutzeit,
Parr-Nelson, Urban, Miller, Chagall, Jewell, and Hartmann.”).
27

Page 109 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 109 of 116 Document 67

some form or another with the reporting, investigating, consulting, and
examining on suspicion of child abuse against L.G. The Court needs no
further allegations nor discovery to reach that conclusion. They are all,
therefore, entitled to a presumption of good faith. But the analysis does not
end there.
In Phillips v. Behnke, the Wisconsin Court of Appeals addressed the
plaintiffs’ contention that the defendants were not “entitled to immunity
under § 48.981(4) . . . because they . . . did not report the allegations in good
faith.” 531 N.W.2d 619, 622 (Wis. Ct. App. 1995). The court drew from
Black’s Law Dictionary for the definition of good faith: “An intangible and
abstract quality with no technical meaning or statutory definition, and it
encompasses, among other things, an honest belief, the absence of malice
and the absence of design to defraud or to seek an unconscionable
advantage . . . .” Id. at 624.
Similarly, in Whetter v. Brown County, on summary judgment, the
court wrote that “[t]o rebut the presumption [of good faith] in Wis. Stat.
§ 48.981, a plaintiff must demonstrate conscious or intentional wrongdoing,
such as a conscious violation of a statute.” 727 N.W.2d 375, 2006 Wisc. App.
LEXIS 1258, at *9 (Wis. Ct. App. Dec. 19, 2006). The court confirmed that
“negligence is not sufficient to defeat the presumption of good faith found
in Wis. Stat. § 48.981(4).” Id. at *11. “[A] showing of intentional or conscious
wrongdoing is required in order to rebut the presumption.” Id.
In Phillips, there were “no facts or allegations to suggest that the
respondents reported the allegations against [plaintiff] out of malice.” 531
N.W.2d at 624. The same is not true here, and accordingly, dismissing
Plaintiffs’ claims based on immunity under § 48.981(4) would be
inappropriate at this stage. Plaintiffs here expressly allege that Defendants’
Page 110 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 110 of 116 Document 67

actions related to reporting allegedly suspected child abuse were not
undertaken in good faith, and not merely out of negligence, but with malice
and with conscious disregard for Plaintiffs’ rights. ECF No. 37 at 44 (“All of
these steps taken by Defendants to frustrate Plaintiffs [sic] efforts to
advocate for themselves and their pre-adoptive child L.G. were taken with
malice against Plaintiffs, with the intention to protect the hospital child
advocacy program from responsibility or liability . . . , to protect
Defendants’ personal and professional reputations, and to avoid
accountability . . . .”) and at 52 (“These actions were taken with malice,
without regard for Plaintiffs [sic] rights, and in order to conceal their
misconduct and the misconduct of other Defendants with whom they
worked closely as part of the Child Advocacy Program.”). For purposes of
the pleading stage, they have sufficiently rebutted the presumption of good
faith inherent in § 48.981(4). Whether, on summary judgment, there will be
any showing of “evidence that [Defendants] made the report in bad faith,”
Phillips, 531 N.W.2d at 624, and whether there is any “evidence the
[Defendants] engaged in any conscious or intentional wrongdoing,”
Whetter, 2006 Wisc. App. LEXIS 1258, at *12–13, is altogether another story
and a question for another day.
Having evaluated the question of statutory immunity and having
determined that its ultimate effect on these proceedings cannot yet be
determined, the Court turns to evaluate Defendants’ arguments regarding
qualified immunity. See ECF Nos. 42 at 12, 47 at 29, and 44 at 5. “Qualified
immunity protects government officials from individual liability under
Section 1983 for actions taken while performing discretionary functions,
unless their conduct violates clearly established statutory or constitutional

Page 111 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 111 of 116 Document 67

rights of which a reasonable person would have known.” Brokaw v. Mercer
County, 235 F.3d 1000, 1022 (7th Cir. 2000).
“Rarely do we see qualified immunity awarded at the pleading
stage. The reason is because determinations of qualified immunity most
often depend on facts a plaintiff is not required to plead at the outset of
litigation to avoid dismissal.” Roldan v. Stroud, No. 21-2722, 2022 U.S. App.
LEXIS 29680, at *1 (7th Cir. Oct. 25, 2022). “[T]he plaintiff is not required
initially to plead factual allegations that anticipate and overcome a defense
of qualified immunity.” Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019)
(internal citation omitted).
“Our cases make clear that the motion-to-dismiss stage is rarely ‘the
most suitable procedural setting to determine whether an official is
qualifiedly immune.’” Roldan, 2022 U.S. App. LEXIS 29680, at *5 (quoting
Hanson v. LeVan, 967 F.3d 584, 589 (7th Cir. 2020)). “The facts essential to
this defense typically emerge during discovery, and so we most commonly
see qualified immunity invoked in a motion for summary judgment.” Id. at
*6. For these reasons, “a complaint is generally not dismissed under Rule
12(b)(6) on qualified immunity grounds.” Hardeman, 933 F.3d at 823
(internal citation omitted). This inevitably creates tension “at this stage of
litigation between developing the requisite facts for a well-informed
qualified immunity determination and preserving a government official’s
right to avoid the burdens of pretrial matters, including discovery.” Reed v.
Palmer, 906 F.3d 540, 548 (7th Cir. 2018).
Rolan, and the Seventh Circuit generally, have not set a bright line
prohibition against consideration of qualified immunity for purposes of a
motion to dismiss. Rather, the Seventh Circuit has instructed that issues of
qualified immunity should be decided at the pleading stage only in very
Page 112 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 112 of 116 Document 67

limited circumstances. In situations such as that in Roldan, where
“[d]iscovery is needed to shed light on” the applicability of the immunity
defense, dismissal of the suit based on qualified immunity at the pleading
stage is inappropriate. Roldan, 2022 U.S. App. LEXIS 29680, at *7. Where no
such discovery is needed, however, deciding a motion to dismiss on the
basis of qualified immunity may be appropriate. Tang v. Ill. Dep’t of Children
& Family Servs., No. 17-cv-05790, 2021 U.S. Dist. LEXIS 188947, at *17 (N.D.
Ill. Sep. 30, 2021) (“Although the Court ordinarily does not address
affirmative defenses in connection with a motion to dismiss, it can address
an affirmative defense if the complaint alleges all facts needed to satisfy that
defense.”). In such a case, the plaintiff may be said to have “plead itself out
of court by alleging (and thus admitting) the ingredients of a defense[.]”
Knowles, 2019 U.S. Dist. LEXIS 154884, at *7 (internal citation omitted).
The Children’s Defendants point out that because “the balance
between a child’s liberty interest in familial relations and a state’s interest
in protecting the child is nebulous at best, social workers and other state
actors who cause a child’s removal are entitled to qualified immunity
because the alleged constitutional violation will rarely—if ever—be clearly
established.” ECF No. 47 at 39 (quoting Berman v. Young, 291 F.3d 976, 984
(7th Cir. 2002)). But Berman decided that issue on summary judgment, not
on a motion to dismiss. Moreover, the court that originally enunciated the
language quoted by the Children’s Defendants went on to say that “[w]hile
we agree that that is generally the case, . . . , as noted above, some
governmental actions are so clearly beyond the pale that a reasonable
person should have known of their unconstitutionality even without a
closely analogous case.” Brokaw, 235 F.3d at 1023.

Page 113 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 113 of 116 Document 67

As noted above, disposing of a case or of individual claims therein
based on qualified immunity at the pleadings stage should be undertaken
in very limited circumstances, such as where no “[d]iscovery is needed to
shed light on” the applicability of the immunity defense. Roldan, 2022 U.S.
App. LEXIS 29680, at *7. The Court must therefore determine whether this
is such a case. Because the Court cannot say with confidence that it is, the
Court will decline to dispose of Plaintiffs’ case, or of discrete claims therein,
based on qualified immunity at this stage.28
Despite the exorbitant length of the amended complaint, the true
motives and precise contours of the participation of Defendants in the
alleged conduct remains unclear. Discovery and a better developed record
of the events would benefit both the parties and the Court, both as a general
matter and for purposes of determining the applicability of qualified
immunity. See Brokaw, 235 F.3d at 1023 (“[A]t this time, we cannot conclude
that the individual defendants are entitled to qualified immunity because
the facts once uncovered may turn out to be so severe and obviously wrong
that the defendants should have known they were violating [Plaintiffs’]
constitutional rights.”).
Plaintiffs additionally argue that CHW, CHHS, and MCW—as
corporations, see ECF Nos. 30 at 2, 32—are not entitled to the protections of

“Qualified immunity may be appropriate at the pleadings stage if ‘the
plaintiff asserts the violation of a broad constitutional right that has not been
articulated at the time the violation is alleged to have occurred.’” Jones v. Parker,
No. 1:19-cv-04625-TWP-DLP, 2021 U.S. Dist. LEXIS 41608, at *2 (S.D. Ind. Mar. 5,
2021) (quoting Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019)). Plaintiffs’
equal protection claims based on class membership perhaps may be characterized
as such. Even if they were so characterized, however, the Court is not confident
that Plaintiffs’ class-of-one equal protection claim would be similarly
characterized.
28

Page 114 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 114 of 116 Document 67

qualified immunity as a matter of law. The Children’s Defendants and
MCW Defendants do not substantively address that contention. In support
of their contention, Plaintiffs cite only Owen v. City of Independence, Missouri,
445 U.S. 622, 638 (1980). But that case is not on point. Owen held that
“municipalities have no immunity from damages liability flowing from
their constitutional violations . . . .” Id. at 657. The corporate defendants at
issue in this case, however—MCW, CHW, and CHHS—are private
corporations, not municipal corporations. In light of the scant argument on
the issue, the Court will decline to substantively address it at this time. The
Court declines to grant Defendants’ motions to dismiss on the basis of
qualified immunity, both as to the Individual Defendants and the Entity
Defendants.
6.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ motions to dismiss, ECF Nos. 41,

43, and 46, be and the same are hereby GRANTED in part and DENIED in
part in accordance with the terms of this Order;
IT IS FURTHER ORDERED that Count IX (Negligence) be and the
same is hereby DISMISSED without prejudice as to all those Defendants
against whom it was asserted;
IT IS FURTHER ORDERED that Count XI (Professional
Negligence) be and the same is hereby DISMISSED without prejudice as
to all those Defendants against whom it was asserted;
IT IS FURTHER ORDERED that Count I (42 U.S.C. § 1983 Due
Process) be and the same is hereby DISMISSED with prejudice as to all
those Defendants against whom it was asserted;

Page 115 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 115 of 116 Document 67

IT IS FURTHER ORDERED that Count V (42 U.S.C. § 1983 First
Amendment Retaliation) be and the same is hereby DISMISSED with
prejudice as to all those Defendants against whom it was asserted;
IT IS FURTHER ORDERED that Count XII (Negligent Infliction of
Emotional Distress) be and the same is hereby DISMISSED with prejudice
as to all those Defendants against whom it was asserted;
IT IS FURTHER ORDERED that Plaintiffs, should they choose to
address the deficiencies noted herein regarding those Counts for which the
Court has granted leave to amend (i.e., those for which amendment would
not be futile), shall FILE a second amended complaint by February 16, 2023;
and
IT IS FURTHER ORDERED that Defendants’ joint motion to stay
discovery, ECF No. 51, be and the same is hereby DENIED as moot.
Dated at Milwaukee, Wisconsin, this 17th day of January, 2023.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 116 of 116
Case 2:22-cv-00553-JPS Filed 01/17/23 Page 116 of 116 Document 67