Weston et al v. Amundsun et al

Filing 10

SCREENING ORDER re 9 Plaintiff's Amended Complaint signed by Judge J P Stadtmueller on 6/5/2024. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. The State of Wisconsin is DISMISSED from t his action. Plaintiff may PROCEED on Fourteenth Amendment substantive due process, Fourteenth Amendment procedural due process, Fourteenth Amendment equal protection, and First Amendment retaliation claims as specified. By 6/19/2024, Plaintiff to FILE a notice indicating whether he will obtain service on his own or if he desires service by USMS. See Order. (cc: all counsel, via mail to David Weston)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID WESTON,
Plaintiff,
Case No. 24-CV-385-JPS

v.
EMILIE AMUNDSUN, JOHN JANSEN,
RON ROGERS, BROCK ROBERTS,
PAMELA CONDOS, MICHELLE
LANG, ALESHA BRERETON, EMILY
GILBERT, ALICIA SHANNON, THE
WISCONSIN DEPARTMENT OF
CHILDREN AND FAMILIES, THE
KENOSHA COUNTY DIVISION OF
CHILDREN AND FAMILY SERVICES,
THE COUNTY AND THEREIN THE
CITY OF KENOSHA, and THE STATE
OF WISCONSIN,

ORDER

Defendants.

1.

PROCEDURAL HISTORY
In March 2024, Plaintiff David Weston (“Plaintiff”), proceeding pro

se, filed this action, together with a motion for leave to proceed in forma
pauperis. ECF Nos. 1, 3. In April 2024, the Court screened Plaintiff’s
complaint and identified four “significant pleading and jurisdictional
deficiencies.” ECF No. 8 at 2.
First, Plaintiff’s 127-page complaint, which was “unduly long,
rambling, repetitive, and difficult to parse,” ran afoul of Federal Rule of
Civil Procedure 8. Id. at 5. Second, Plaintiff attempted to proceed pro se on
behalf of his minor biological and stepchildren, which is not permitted

under the Federal Rules or this Circuit’s case law. Id. at 1, 6 (citing Fed. R.
Civ. P. 17(c) and E.T. by Thames v. Milwaukee Police Dep’t, No. 20-CV-170-PP,
2021 WL 1610103, at *3 (E.D. Wis. Apr. 26, 2021)). Third and fourth, the
Court viewed Plaintiff’s complaint, which sought to relitigate decisions
from state court Child in Need of Protection and/or Services (“CHIPS”)1
proceedings and reunite Plaintiff with his biological child and stepchild, as
jurisdictionally barred under either the Younger v. Harris, 401 U.S. 37 (1971)
doctrine or the Rooker-Feldman doctrine,2 as well as the domestic-relations
exception to federal jurisdiction. Id. at 4–7.
The Court granted Plaintiff leave to amend the complaint to attempt
to correct these shortcomings, noting that “[i]f an amended complaint is
received, it will become the operative complaint . . . and the Court will
screen it in accordance with 28 U.S.C. § 1915.” Id. at 2, 8. At that time, the
Court deferred ruling on Plaintiff’s motion for leave to proceed in forma
pauperis pending the filing of an amended complaint. Id. at 2.
Now before the Court is Plaintiff’s amended complaint. ECF No. 9.
The Court will proceed to address Plaintiff’s motion for leave to proceed in
forma pauperis and screen Plaintiff’s amended complaint.
2.

MOTION TO PROCEED IN FORMA PAUPERIS
A party proceeding pro se may submit a request to proceed without

prepaying the filing fees, otherwise known as a motion to proceed in forma

“When children come to court because a parent has hurt them or not taken
care of them, this is a CHIPS case. This stands [f]or ‘Child in Need of Protection
and/or Services.’” What is CHIPS?, available at https://perma.cc/H84S-9WZ5 (last
visited June 5, 2024).
1

See Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923) and D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462 (1983).
2

Page 2 of 21

pauperis. “The federal in forma pauperis statute, 28 U.S.C. § 1915,3 is
designed to ensure [that] indigent litigants have meaningful access to the
federal courts while at the same time prevent indigent litigants from filing
frivolous, malicious, or repetitive lawsuits.” Rodriguez v. Crim. Just. Facility
Safety Bldg., No. 23-CV-394, 2023 WL 3467565, at *1 (E.D. Wis. Apr. 7, 2023)
(citing Neitzke v. Williams, 490 U.S. 319, 324 (1989)), report and
recommendation adopted sub nom. Rodriguez v. Crim. Just. Facility, No. 23-CV394-PP, 2023 WL 3467507 (E.D. Wis. May 15, 2023).
To determine whether it may authorize a litigant to proceed in forma
pauperis, the Court engages in a two-part inquiry. It must examine whether
the litigant is able to pay the costs of commencing the action. 28 U.S.C.
§ 1915(a). The Court must also examine whether the action “is frivolous or
malicious,” “fails to state a claim on which relief may be granted,” or “seeks
monetary relief against a defendant who is immune from such relief”; if any
of these criteria applies, the Court “shall dismiss the case.” 28 U.S.C.
§ 1915(e)(2)(B)(i)–(iii). Likewise, “[i]f the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.
R. Civ. P. 12(h)(3).
It follows that a litigant whose complaint does not clear the
§ 1915(e)(2) threshold or does not plead claims within the Court’s subject
matter jurisdiction, and whose case cannot proceed as a result, necessarily
Although 28 U.S.C. § 1915(a) specifically references “prisoner” litigants, it
has been interpreted as providing authority for such requests by both prisoner and
non-prisoner pro se litigants alike. Floyd v. U.S. Postal Serv., 105 F.3d 274, 275–76
(6th Cir. 1997) (superseded by rule on other, inapplicable grounds); see also Mitchell
v. Farcass, 112 F.3d 1483, 1491 n.1 (11th Cir. 1997) (“Section 1915(e) applies to all [in
forma pauperis] litigants—prisoners who pay fees on an installment basis,
prisoners who pay nothing, and nonprisoners in both categories.”) (Lay, J.,
concurring).
3

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cannot reap the benefits of proceeding in forma pauperis. In other words,
although in forma pauperis status ought to be granted to those
impoverished litigants “who, within the District Court’s sound discretion,
would remain without legal remedy if such privilege were not afforded to
them,” Brewster v. N. Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972), a
pro se litigant’s financial status is only part of the picture in determining
whether the litigant’s case may proceed without payment of the filing fee.
Because the Court concludes infra Section 3.3 that Plaintiff pleads
claims within the Court’s subject matter jurisdiction, the Court proceeds to
address the merits of his motion for leave to proceed in forma pauperis.
Plaintiff avers that he is unemployed and unmarried and that he supports
one minor daughter. ECF No. 3 at 1. He earns approximately $1,400 per
month performing handyman services, and he receives approximately $350
per month in food share benefits. Id. at 2. His monthly expenses total
approximately $2,600. Id. at 2–3. He owns his car, which he estimates is
worth approximately $500. Id. at 3. He has a cash or checking, savings, or
other similar account with a total balance of $150. Id. Based on this
information, the Court is satisfied that Plaintiff is indigent, and it will
accordingly grant his motion for leave to proceed in forma pauperis.
3.

PLAINTIFF’S AMENDED COMPLAINT
3.1

Legal Standard

As the Court explained in its initial screening order, when a pro se
litigant seeks to proceed in forma pauperis, the Court must screen the
litigant’s complaint prior to service on defendants. The Court “shall dismiss
the case” if it finds any of the following: the action is frivolous or malicious,
the complaint fails to state a claim upon which relief may be granted, or the
complaint seeks monetary relief against a defendant who is immune from
Page 4 of 21

such relief, 28 U.S.C. § 1915(e)(2); or the case is outside of the Court’s subject
matter jurisdiction, Fed. R. Civ. P. 12(h).
A claim is legally frivolous when it “lacks an arguable basis either in
law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke,
490 U.S. at 325); see also Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997) (quoting Neitzke, 490 U.S. at 325). The Court may dismiss a
claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S.
at 327.
To state a claim, a complaint must provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). In other words, the complaint must give “fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). The allegations must “plausibly suggest that the plaintiff has a right
to relief, raising that possibility above a speculative level.” Kubiak v. City of
Chicago, 810 F.3d 476, 480 (7th Cir. 2016) (quoting EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). Plausibility requires “more
than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
In reviewing the complaint, the Court is required to “accept as true
all of the well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff.” Kubiak, 810 F.3d at 480–81 (citing Tamayo
v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)). However, the Court “need
not accept as true ‘legal conclusions, or threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.’” Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (citing Ashcroft, 556 U.S. at 678)
Page 5 of 21

(internal bracketing omitted). A court is obligated to give pro se litigants’
allegations a liberal construction. Kelsay v. Milwaukee Area Tech. Coll., 825 F.
Supp. 215, 217 (E.D. Wis. 1993) (citing Haines v. Kerner, 404 U.S. 519, 520–21
(1972)). Pro se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
3.2

Facts Pleaded in the Amended Complaint

In his amended complaint, Plaintiff names as defendants Emilie
Amundsun (“Amundsun”), John Jansen (“Jansen”), Ron Rogers (“Rogers”),
Brock Roberts (“Roberts”), Pamela Condos (“Condos”), Michelle Lang
(“Lang”), Alesha Brereton (“Brereton”), Emily Gilbert (“Gilbert”), Alicia
Shannon (“Shannon”), the Wisconsin Department of Children and Families
(“DCF”), the Kenosha County Division of Children and Family Services
(“KCDCFS”), the County and therein the City of Kenosha (“Kenosha
County and City”), and the State of Wisconsin (the “State”). ECF No. 9 at
1–7. Amundsun is the State Secretary of Affairs at DCF. Id. at 2. Jansen is
the Director of Affairs at DCF. Id. Rogers is the Director of Affairs at
KCDCFS. Id. at 3. Roberts, Condos, Lang, Brereton, Gilbert, and Shannon
are Caseworker Supervisors at KCDCFS. Id. at 3–5.4
Plaintiff pleads the following facts. On January 15, 2022, Plaintiff’s
biological child, T.W., was alleged to be drug positive at birth. Id. at 8.
T.W.’s condition was reported to KCDCFS. Id. at 8–9. Shannon and Gilbert,
under the supervision of Rogers, initiated a case with the “primary goal of
retaliating against” Plaintiff’s wife, E.W. Id. at 9. Plaintiff contends that he
is a pawn in this scheme and is and has always been innocent of child
Plaintiff, at times, conflates Roberts and Rogers. The Court refers to Rogers
when Plaintiff describes a supervisory role and Roberts when Plaintiff describes a
case supervisor role.
4

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neglect. Id. Nonetheless, he has “received no individualized assessment of
his ability to parent T.W. and enjoyed no due process protections under
Federal and State law prior to having T.W. removed from his care.” Id.
On January 19, 2022, Shannon, Gilbert, and Brock conspired to
“obtain[] a Protective Order to remove T.W. from her parent[s’] care.” Id. at
10. Five days later, Shannon filed an emergency ex parte removal request,
which the Kenosha County Family Court granted “despite the irregularities
and lack of probable cause with respect[] to the father’s rights.” Id. at 10–11.
On February 2, 2022, Shannon and Gilbert performed an emergency pickup of T.W. from the hospital. Id. at 11. They informed E.W. that a hearing
would take place the next day. Id. They did not inform Plaintiff, who
learned of the hearing from E.W. and attended the hearing. Id. At the
hearing, Plaintiff was not named as a respondent to any allegations of
neglect. Id. at 12. However, he was not permitted to participate at the
hearing, and a protective order was issued against E.W. Id. T.W. was placed
in foster care. Id. The court ordered KCDCFS to consider Plaintiff as a
relative placement resource, but KCDCFS made no “reasonable efforts” to
comply in the six months prior to the dispositional phase of the
proceedings. Id.
Plaintiff was not named as a respondent at two subsequent hearings,
but he did appear at one of them as “a petitioner to the allegations against
E.W.” Id. at 12–13. Thereafter, in April 2022, the State added Plaintiff’s name
to a permanency plan, “but afforded him no trial for dispute, therefore
never adjudicating him for neglect against T.W. under a protective custody
order.” Id. at 13. As a result, Plaintiff alleges that the case disposition order
that followed “is also null and void for lack of due process.” Id.

Page 7 of 21

In the interim, Brereton falsely alleged that Plaintiff failed to
maintain a suitable residence or care for T.W. due to homelessness. Id.
Plaintiff contends that this is demonstrably false because the Child Support
Administration had sent notices to his home address. Id. at 13–14. Plaintiff
denied Brereton’s allegation and requested a jury trial, for which he was
appointed an attorney. Id. at 14. However, he did not receive any notices of
the date and time of the hearings related to the jury trial, causing him to
miss a status hearing and have a finding of default entered against him. Id.
His attorney appeared at the status hearing but requested to withdraw;
Plaintiff was not given procedural warnings regarding proceeding without
an attorney and was “provided no opportunity to” find a new attorney. Id.
Plaintiff filed objections and motions to vacate and/or modify the placement
orders with the court, but the court denied these requests, reasoning that
Plaintiff should have known about his wife’s drug use during pregnancy.
Id. at 14–15. Plaintiff challenges the state court’s findings in the resulting
dispositional order, which indicate that the state court never found him to
be unfit to parent. Id. at 15.
Since these proceedings took place, Plaintiff has filed further
placement motions, which have been denied. Id. at 16. He has also contacted
Jansen and Amundsun through the DCF grievance procedure with
complaints against Brereton based on her discriminatory use of his
“homelessness prior to T.W.’s birth” in the state proceedings, and he has
contacted Condos, Lang, and Roberts through the KCDCFS grievance
procedure, who all treated him with deliberate indifference. Id. at 16, 19.
The DCF investigated Plaintiff’s complaints, but it did not allow him the
opportunity to participate in the grievance procedure or to dispute
responses given by Rogers with respect to Plaintiff’s complaints, nor did it
Page 8 of 21

afford Plaintiff “any reasonable ability for an appeal.” Id. at 16. Brereton,
under the authority of “supervisory officials,” retaliated against Plaintiff for
his complaints of discrimination by (1) submitting an altered and false
permanency plan, which had a “substantial influence” in prolonging
Plaintiff’s separation from T.W., (2) requesting more restrictive conditions
for Plaintiff, and (3) submitting the results of an investigation into evidence
with the court. Id. at 16–17. Plaintiff brought these issues to the court’s
attention, but he was afforded no notice. Id. Condos, Lang, and Roberts
have also since knowingly allowed falsified documents to be submitted to
the court, which were based on Brereton’s recommendations. Id. at 25.
Plaintiff pursues constitutional claims under the First, Fourth,
Thirteenth, and Fourteenth Amendments. Id. at 19. He pursues claims
against Amundsun and Jansen related to their handling of his grievances
through the DCF grievance procedure. Id. at 19, 22. He pursues claims
against Condos, Lang, and Roberts, as well as their supervisor, Rogers,
related to the KCDCFS grievance procedure and for allowing and
approving constitutional violations to occur by KCDCFS employees. Id. at
19–20, 22. He pursues claims against Shannon, Gilbert, and Brereton, as well
as their supervisor, Rogers, for initiating the state court legal proceedings
described above, as well as for their conduct throughout those proceedings,
including submission of allegedly false evidence to the court. Id. at 20–21,
22. He pursues a theory of liability under Monell v. Department of Social
Services of the City of New York, 436 U.S. 658 (1978) against DCF related to its
administration of an insufficient grievance procedure. Id. at 21–22. He also
pursues a Monell theory of liability against KCDCFS, ostensibly for
maintaining a policy of permitting constitutional violations to occur and for
also maintaining an insufficient grievance procedure. Id. at 6, 22. It appears
Page 9 of 21

that he attempts to pursue a Monell theory of liability related to KCDCFS’s
actions or inactions against Kenosha County and City as well. Id. at 3–5.
Finally, he pursues a claim against the State under Title VI of the Civil
Rights Act of 1871 and 1964, 42 U.S.C. § 2000d (“Title VI”). Id. at 6.
As relief, Plaintiff seeks, among other things, a declaratory judgment
that the state courts’ protective, placement, and dispositional orders are
void,

an

injunction

preventing

further

retaliatory

actions,

and

compensatory and punitive damages. Id. at 27–28.
3.3

Analysis5

Plaintiff’s amended complaint resolves the Court’s first two
concerns as set forth in its screening order. His pleading no longer runs
afoul of Rule 8, and Plaintiff has removed his minor biological child and
stepchild as plaintiffs. Plaintiff has also partially ameliorated the Court’s
concerns regarding the applicability of the Younger or Rooker-Feldman
doctrines, as well as the domestic-relations exception to federal jurisdiction.
The Court first addresses the applicability of Younger or RookerFeldman to Plaintiff’s claims against the KCDCFS Defendants, as Plaintiff’s
claims against these defendants largely relate to his desired relief of voiding
the underlying (and perhaps ongoing) state court protective, placement,
and dispositional orders and proceedings. It does not appear that the
(ostensibly confidential) state court proceedings that Plaintiff describes are
publicly available on the Wisconsin Circuit Court Access website. The

The Court will collectively refer to Defendants Amundsun, Jansen, and
DCF as the “DCF Defendants,” and Defendants Rogers, Roberts, Condos, Lang,
Brereton, Gilbert, Shannon, KCDCFS, and Kenosha County and City as the
“KCDCFS Defendants.”
5

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Court has located a child support case naming Plaintiff and E.W.,6 but
neither a search of Plaintiff’s nor E.W.’s names has turned up any other
relevant proceedings. Based on this, together with Plaintiff’s allegations in
the amended complaint, the Court is unable to glean exactly at what point,
or whether, Plaintiff even became a party in the underlying CHIPS or child
placement proceedings. The Younger and Rooker-Feldman abstention
doctrines “extend only to parties to ongoing state court litigation while
specifically leaving non-parties free to pursue their claims.” Allen v. Allen,
48 F.3d 259, 261 (7th Cir. 1995) (citing Leaf v. Sup. Ct. of Wis., 979 F.2d 589,
598 (7th Cir. 1992) and Lynk v. LaPorte Sup. Ct. No. 2, 789 F.2d 554 (7th Cir.
1986)). Thus, if Plaintiff was never a named party in the state cases, or if he
was only named in April 2022 with the permanency plan (after which he
claims to have requested a jury trial), these doctrines may not apply or have
only limited application.
Nonetheless, “the difficulty in applying Younger or Rooker–Feldman
abstention does not mean that [Plaintiff’s] suit is properly before this
Court.” Id. As in Allen, “[m]uch of [Plaintiff’s] complaint, particularly his
request for relief in the form of a declaration that [the protective, placement,
and dispositional orders of the state court are void], challenges the
underlying [protective, placement, and dispositional orders].” Id. “The
domestic relations exception to federal jurisdiction prevents the district
court from hearing such a claim.” Id. (citing Ankenbrandt v. Richards, 504 U.S.
689 (1992) and Alpern v. Lieb, 38 F.3d 933 (7th Cir. 1994)). In fact, courts
See In re: the Support or Maintenance of T.K.W., Kenosha Cnty. Case No.
2022FA000221,
available
at
https://wcca.wicourts.gov/caseDetail.html?caseNo=2022FA000221&countyNo=30
&index=0 (naming Plaintiff and Elizabeth Weston as parties) (last visited June 5,
2024).
6

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analyzing similar allegations to Plaintiff’s have held that they lack subject
matter jurisdiction over the associated claims due to the domestic-relations
exception. See, e.g., Bowersock v. Matherly, No. 23-1368-JES, 2023 WL
6847548, at *6 (C.D. Ill. Oct. 17, 2023) (dismissing case for lack of jurisdiction
where desired relief was return of children from foster placement after
allegedly false allegations of abuse and seizure because “the Court is barred
from providing Plaintiff’s requested relief due to the domestic-relations
exception”) (citing Mannix v. Machnik, VMK-05-7232, 2006 WL 566447, at *2
(N.D. Ill. Mar. 3, 2006)); Gmeiner v. Wienke, No. 22-C-1247, 2022 WL
14637242, at *1 (E.D. Wis. Oct. 25, 2022) (same).
However, the issue is not clear cut, particularly because Plaintiff’s
desired relief is not limited to voiding the state court orders. The Seventh
Circuit has analyzed claims like Plaintiff’s without raising the domesticrelations exception. See, e.g., Milchtein v. Milwaukee County, 42 F.4th 814 (7th
Cir. 2022); Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011);
Doe v. Heck, 327 F.3d 492 (7th Cir. 2003). Thus, the Court does not find it
prudent to dismiss these claims at the screening stage on the basis of the
domestic-relations exception without a response from the KCDCFS
Defendants regarding Plaintiff’s allegations as well as the applicability of
the domestic-relations exception. The KCDCFS Defendants may also be
able to shed light on whether Plaintiff was a party to the underlying state
court proceedings, thus implicating the Younger or Rooker-Feldman
abstention doctrines. Therefore, at this juncture, Plaintiff may proceed on
certain claims against the KCDCFS Defendants.
First, Plaintiff may proceed on both substantive and procedural due
process claims under the Fourteenth Amendment against the KCDCFS
Defendants. The right to familial relations is “a component of ‘substantive
Page 12 of 21

due process.’” Doe, 327 F.3d at 517 (quoting Meyer v. Nebraska, 262 U.S. 390,
399 (1923) and citing Troxel v. Granville, 530 U.S. 57, 65 (2000) and Brokaw v.
Mercer County, 235 F.3d 1000, 1018 (7th Cir. 2000)). “The right to familial
relations is not, however, absolute . . . . The liberty interest in familial
privacy and integrity is ‘limited by the compelling governmental interest in
the protection of children particularly where the children need to be
protected from their own parents.’” Id. at 520 (citing Berman v. Young, 291
F.3d 976, 983 (7th Cir. 2002) and quoting Brokaw, 235 F.3d at 1019). Thus,
courts must “weigh[] these competing interests,” considering “(1) the
nature of the privacy interest upon which the action taken by the State
intrudes; (2) the character of the intrusion that is complained of; (3) the
nature and immediacy of the governmental concern at issue; and (4) the
efficacy of the means employed by the government for meeting this
concern.” Id. (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654–60
(1995) and Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1058–59 (7th
Cir. 2000)).
At the screening stage, by pleading an intrusion by the KCDCFS
Defendants into his familial relation with T.W. that targeted Plaintiff,
Plaintiff has stated a substantive due process claim. Id. Plaintiff has also
pleaded that the deprivation took place without due process of law, which
states a procedural due process claim. Id. at 526 (“A procedural due process
claim involves a two-step inquiry: (1) whether the defendants deprived the
plaintiffs of a constitutionally protected liberty or property interest; and
(2) if so, whether that deprivation occurred without due process of law.”)
(citing Zinermon v. Burch, 494 U.S. 113, 125 (1990) and Doyle v. Camelot Care
Ctrs., Inc., 305 F.3d 603, 616 (7th Cir. 2002)). Plaintiff has properly implicated

Page 13 of 21

Monell as to KCDCFS and Kenosha City and County7 by alleging
maintenance of a policy or practice of permitting unconstitutional
intrusions into familial relations without due process of law, or deliberate
indifference to the same, and he has properly pleaded supervisory liability
and/or failure to intervene as to Rogers.8 To the extent that Plaintiff pleads
a separate component of his procedural due process claim, including under
Monell and supervisory theories of liability, against the KCDCFS
Defendants based on the insufficiency of their grievance procedure, that
claim also proceeds, and would appear to proceed independent of the effect
of Rooker-Feldman or Younger or the domestic-relations exception. ECF No.
9 at 22 (“There exists no suitable grievance procedure . . . in Kenosha
County.”).
Similarly, based on the well-pleaded allegations in the amended
complaint, the Court no longer has concerns regarding the implications of
Younger, Rooker-Feldman, or the domestic-relations exception as to the DCF
Defendants. The claims against the DCF Defendants relate entirely to the
DCF grievance procedure, not the state court CHIPS or placement
proceedings. Thus, for the same reasons that he states a procedural due
process claim against the KCDCFS Defendants, Plaintiff states a procedural
Plaintiff names all of the individual defendants in both their individual
and official capacities, ECF No. 9 at 2–6, but “[c]laims against municipal officials
in their official capacities are really claims against the municipality and are
‘redundant when the municipality is also named as a defendant.’” Castro v. Dart,
483 F. Supp. 3d 564, 577 (N.D. Ill. 2020) (citing Union Pac. R.R. Co. v. Village of S.
Barrington, 958 F. Supp. 1285, 1291 (N.D. Ill. 1997)). Thus, the Court omits the
individual defendants in their official capacities from its summary of the Monell
claims.
7

When applied to supervisors, failure to intervene “becomes a subset” of
supervisory liability. Reardon v. Schossow, 416 F. Supp. 3d 793, 807 (E.D. Wis. 2019)
(citing Odogba v. Wis. Dep’t of Justice, 22 F. Supp. 3d 895, 909 (E.D. Wis. 2014)).
8

Page 14 of 21

due process claim against Amundsun and Jansen and implicates Monell
based on the same as to DCF. Again, the right to familial relations is a
protected liberty interest, see Doe, 327 F.3d at 517, and Plaintiff asserts both
that the DCF Defendants did not afford him due process of law with their
grievance procedure and that they have a policy or practice of doing so, or
of exhibiting deliberate indifference to the same. However, Plaintiff has not
stated a substantive due process claim against the DCF Defendants because
he has not pleaded an intrusion by the DCF Defendants into his familial
relation with T.W. Id.
Plaintiff may also proceed on a class-based equal protection claim
under the Fourteenth Amendment against Brereton based on his
contentions that Brereton used his alleged homelessness to treat him less
favorably during the state court proceedings. “To state a class-based equal
protection claim, a plaintiff must plead that he or she was discriminated
against based on membership in a definable class, and that the state actor
acted with a ‘nefarious discriminatory purpose.’” Pinkston v. Bd. of Educ. of
City of Chicago, No. 19 CV 6477, 2023 WL 6392302, at *4 (N.D. Ill. Oct. 2, 2023)
(quoting D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 799 (7th Cir. 2015)).
The level of review applicable to Plaintiff’s proffered class is a matter to be
determined another day. For now, it suffices to say that he has stated the
claim.
As earlier noted, in addition to Fourteenth Amendment claims,
Plaintiff also pursues claims under the Fourth, Thirteenth, and First
Amendments. The Court takes up each in turn. First, Plaintiff may not
proceed on a Fourth Amendment claim because that claim would belong to
T.W., upon whose behalf Plaintiff may not appear pro se. The Seventh
Circuit has held with respect to similar allegations that the removed child
Page 15 of 21

could bring a Fourth Amendment claim “because it is premised on his
seizure.” Hernandez, 657 F.3d at 474. However, a parent’s claim “premised
on [a child’s] . . . removal” is “properly analyzed under substantive due
process” rather than the Fourth Amendment. Id. Next, Plaintiff may not
proceed on a Thirteenth Amendment claim because he has not alleged any
form of slavery or involuntary servitude. See Walker v. City of Aurora, No.
22-CV-2857, 2024 WL 1404381, at *6–7 (N.D. Ill. Feb. 20, 2024) (citing U.S.
Const. amend. XIII).
Nor may Plaintiff proceed on a First Amendment claim as premised
on familial association, as the First Amendment protects “expressive
association” rather than “intimate association.” Milchtein, 42 F.4th at 822
(quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984)). A claim
regarding the “custody and care of [a parent’s child] [is] better understood
under the rubric of substantive due process” rather than the First
Amendment. Id. (citing Sebesta v. Davis, 878 F.3d 226, 232–33 (7th Cir. 2017)).
However, Plaintiff has plausibly pleaded a First Amendment
retaliation claim against Brereton, including a supervisory theory of
liability and/or a failure to intervene theory of liability based on the same
as to Rogers. “[F]or retaliation of First Amendment right claims under 42
U.S.C. § 1983, a plaintiff must show that (1) []he engaged in constitutionally
protected speech; (2) the defendants, as public officials, engaged in adverse
conduct against h[im]; and (3) the defendants were motivated, at least in
part, by h[is] protected speech.” Bach v. Milwaukee Cnty. Cir. Ct., No. 13-CV370, 2013 WL 4876303, at *5 (E.D. Wis. Sept. 11, 2013), aff’d, 565 F. App’x 531
(7th Cir. 2014) (citing Bivens v. Trent, 591 F.3d 555, 559 (7th Cir. 2010)).
Plaintiff

pleads

that

he

submitted

complaints

about

Brereton’s

discriminatory use of his alleged homelessness in the state proceedings
Page 16 of 21

using the DCF grievance procedure and that, because of those complaints,
Brereton retaliated against him by, among other things, requesting more
restrictive conditions for him and submitting false information to the court.
He pleads that Brereton’s retaliation was known by “supervisory officials.”
ECF No. 9 at 16. He has thus stated a First Amendment retaliation claim
against her, and the Court gleans a supervisory theory of liability and/or a
failure to intervene theory of liability against Rogers, the named supervisor
defendant.
Based on the Court’s review of these analogous Seventh Circuit
cases, the Court discerns no other viable claims from Plaintiff’s wellpleaded allegations.
Finally, while Plaintiff attempts to implicate the State through Title
VI, his proffered protected class—homelessness—is not protected under
Title VI, and so the State’s sovereign immunity is not abrogated. ECF No. 9
at 6–7 (arguing that the State’s Eleventh Amendment immunity is
abrogated because Plaintiff sues under Title VI); id. at 16 (listing
homelessness as protected class); 42 U.S.C. § 2000d (“No person in the
United States shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.”). The Court deduces no covered protected class from Plaintiff’s
amended complaint. Thus, the Court will dismiss the State as a defendant
without prejudice. Parenthetically, to the extent that DCF is an arm of the
State, the issue of state sovereign immunity may yet arise anew as to the
constitutional claims once the DCF Defendants appear in this suit.

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4.

CONCLUSION
For the reasons stated herein, the Court grants Plaintiff’s motion to

proceed in forma pauperis. ECF No. 3. Plaintiff may proceed on certain
claims in his amended complaint, as construed by the Court in this Order.
Those claims are:
§

A Fourteenth Amendment substantive due process claim against the
KCDCFS Defendants, including (1) a Monell theory of liability based
on the same and (2) a supervisory liability theory and/or a failure to
intervene theory of liability based on the same against Rogers.

§

A Fourteenth Amendment procedural due process claim against the
KCDCFS Defendants, including (1) a Monell theory of liability based
on the same and (2) a supervisory liability theory and/or a failure to
intervene theory of liability based on the same against Rogers.

§

A Fourteenth Amendment procedural due process claim and a
Monell theory of liability based on the same against the DCF
Defendants.

§

A Fourteenth Amendment equal protection claim against Brereton.

§

A First Amendment retaliation claim against Brereton, including a
supervisory theory of liability and/or a failure to intervene theory of
liability based on the same against Rogers.

The Court will dismiss the State as a defendant from this action without
prejudice.
Plaintiff’s next step in this matter is to serve his complaint together
with summonses on the KCDCFS and the DCF Defendants. See generally
Fed. R. Civ. P. 4. Plaintiff may either request service on the KCDCFS and
the DCF Defendants by the U.S. Marshals or obtain service on the KCDCFS

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and the DCF Defendants on his own, using one of the methods described
in Federal Rule of Civil Procedure 4(d)–(e).
If Plaintiff chooses to obtain service on the KCDCFS and the DCF
Defendants on his own, he should simultaneously file a request for the
Clerk of the Court to issue service packets to him. There is no cost for the
Clerk of Court to issue service packets to Plaintiff. If Plaintiff hires a process
server to serve the KCDCFS and the DCF Defendants, he will be responsible
for that cost.
Alternatively, “at the plaintiff's request, the court may order that
service be made by a United States marshal or deputy marshal or by a
person specially appointed by the court.” Fed. R. Civ. P. 4(c)(3). Congress
requires the U.S. Marshals Service to charge a fee for making or attempting
such service. 28 U.S.C. § 1921(a). The current fee for service by mail is $8.00
per item mailed; for process served personally by the U.S. Marshals Service,
the fee is $65.00 per hour. The full fee schedule is provided at 28 C.F.R.
§§ 0.114(a)(2), (a)(3). Congress has not made any provision for these fees to
be waived either by the Court or by the U.S. Marshals Service.
Plaintiff must file a notice on or before June 19, 2024, indicating
whether he will obtain service on the KCDCFS and the DCF Defendants on
his own or if he desires service by the U.S. Marshals Service.
The Court warns Plaintiff that if he fails to comply with this or any
of the Court’s orders, his case will be dismissed without further notice
for failure to prosecute.
Accordingly,
IT IS ORDERED that Plaintiff David Weston’s motion to proceed in
forma pauperis, ECF No. 3, be and the same is hereby GRANTED;

Page 19 of 21

IT IS FURTHER ORDERED that the State of Wisconsin be and the
same is hereby DISMISSED without prejudice as a defendant in this
action; and
IT IS FURTHER ORDERED that, on or before June 19, 2024,
Plaintiff David Weston shall file a notice indicating whether he will obtain
service on Defendants Emilie Amundsun, John Jansen, Ron Rogers, Brock
Roberts, Pamela Condos, Michelle Lang, Alesha Brereton, Emily Gilbert,
Alicia Shannon, the Wisconsin Department of Children and Families, the
Kenosha County Division of Children and Family Services, and the County
and therein the City of Kenosha, on his own or if he desires service by the
U.S. Marshals Service.
Dated at Milwaukee, Wisconsin, this 5th day of June, 2024.
BY THE COURT:

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

Page 20 of 21

Plaintiff will be required to submit all correspondence and legal material
to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT WILL
BE RETURNED TO SENDER AND WILL NOT BE FILED IN THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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