Gilbank, Michelle et al v. Wood County DHS et al

Filing 138

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 135 Notice of Appeal (Attachments: # 1 12/15/2020 Order, # 2 12/10/2021 Order, # 3 Judgment, # 4 Docket Sheet) (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MICHELLE R. GILBANK and
T.E.H., a minor, by next friend and mother,
Michelle R. Gilbank,
Plaintiffs,
v.
WOOD COUNTY DEPARTMENT OF HUMAN
SERVICES, MARSHFIELD POLICE DEPARTMENT,
CHILDREN’S HOSPITAL OF WISCONSIN,
THERESA HEINZEN-JANZ, DEREK IVERSON,
MARY CHRISTENSEN, ANNE LACHAPELLE,
MARY SOLHEIM, GREGORY POTTER, NICHOLAS
BRAZEAU, JR., and DOES 1-10,

OPINION and ORDER
20-cv-601-jdp

Defendants.
Pro se plaintiff Michelle R. Gilbank filed this lawsuit against two government agencies,
a hospital, four social workers, a police detective, and two judges, contending that defendants
violated her and her minor daughter’s constitutional rights when T.E.H. was removed from her
custody for more than a year. Several motions are pending before the court.
First, the defendant judges (Gregory Potter and Nicolas Brazeau, Jr.) have filed motions
to dismiss on several grounds. Dkt. 4 and Dkt. 7. I will grant those motions because plaintiffs’
claims against the judges are barred by the Eleventh Amendment and the doctrine of judicial
immunity.
Second, the Wood County defendants (Wood County Department of Human Services
and social workers Theresa Heinzen-Janz, Mary Christensen, Anne La Chappelle, and Mary
Solheim) have filed a motion to dismiss some of plaintiffs’ claims. Dkt. 17. The Department
argues that it cannot be sued, and the individual defendants argue that plaintiffs’ conspiracy

claims under 42 U.S.C. § 1986 should be dismissed. Defendants’ arguments are persuasive, so
I will grant the motion.
Third, defendant Children’s Hospital of Wisconsin filed a motion to dismiss plaintiffs’
claims against it, arguing that plaintiffs’ allegations do not state any claim for relief against it.
Dkt. 19. I agree and will grant that motion as well.
Fourth, the Wood County defendants filed a motion to dismiss T.E.H.’s claims on the
ground that she is not represented by counsel or a guardian ad litem. Dkt. 31. Plaintiffs
responded to the motion by requesting that the court assist them in recruiting counsel or a
guardian ad litem to represent T.E.H. Dkt. 37. Gilbank also filed motion to be exempted from
paying PACER fees. Dkt. 16. For the reasons below, I will grant the county defendants’ motion
to dismiss T.E.H.’s claims without prejudice, and I will deny Gilbank’s motions without
prejudice.

ALLEGATIONS OF FACT
Gilbank alleged the following facts in her amended complaint, which I accept as true
for purposes of evaluating defendants’ motions to dismiss.
In June 2018, plaintiff Michelle Gilbank and her minor child, T.E.H., who was four
years old at the time, were living temporarily with T.E.H.’s father, Ian Hoyle. Hoyle had been
convicted of first-degree sexual assault of a six-year-old girl, and he was permitted to have only
supervised visits with T.E.H. Hoyle drank alcohol and used drugs on a regular basis, and
sometimes his behavior became inappropriate or dangerous, causing Gilbank and T.E.H. to
leave the residence frequently.

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On June 29, 2018, one of Hoyle’s neighbors reported to the police that Hoyle had been
yelling at Gilbank and T.E.H. and had locked them out. Defendant Theresa Heinzen-Janz, a
social worker from Wood County Human Services, and two officers from the Marshfield Police
Department came to Hoyle’s residence to perform a welfare check. Gilbank told Heinzen-Janz
and the officers that she and T.E.H. were safe at the moment because Hoyle was at work, but
that Gilbank needed help finding housing and accessing mental health care. Heinzen-Janz said
that she would return to see Gilbank on July 3. Before July 3, Heinzen-Janz and defendant
Derek Iverson, a detective from Marshfield Police Department, spoke with Hoyle about
Gilbank. Hoyle apparently reported that Gilbank had drug problems.
On July 3, Heinzen-Janz and Iverson went to see Gilbank at Hoyle’s residence. Iverson
asked Gilbank about her drug use. Gilbank stated that she had used street drugs in the past to
alleviate her PTSD symptoms. She also said that living with Hoyle made it hard to maintain
sobriety because he was always high or drunk. Iverson made Gilbank take a drug test, and
Heinzen-Janz forged Gilbank’s signature on a paper stating that the test was voluntary.
Heinzen-Janz and Iverson left, but they surveilled Gilbank over the next couple of weeks.
On July 26, Hoyle punched holes in the walls of his residence and ripped his phone in
half while yelling at Gilbank. Hoyle then called the police and asked them to remove Gilbank
from his residence. Defendant Iverson and defendant Doe 1, a social worker with Wood
County Department of Human Services, arrived at Hoyle’s residence. Hoyle left to go drink at
a bar. Iverson told Gilbank and T.E.H. to sleep in the garage that night to be safe. Gilbank
found out later that Iverson did not file a report of the incident.
A few weeks later, Gilbank woke up during the middle of the night because Hoyle was
attempting to remove her clothes. She fought him off and he left the room. The next morning,

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Gilbank found Hoyle in the living room, where he was unclothed and masturbating while
watching pornography on the television. T.E.H. was sitting next to him. Gilbank took T.E.H.
and left.
Three days later, on August 21, 2018, Gilbank told Hoyle that she and T.E.H. were
moving out and that she had an appointment for housing assistance that morning.
Unbeknownst to Gilbank, Hoyle then contacted defendants Heinzen-Janz, Iverson, and Anne
La Chappelle, another social worker with Wood County Department of Human Services, about
removing T.E.H. from Gilbank’s custody. Heinzen-Janz, Iverson, La Chappelle, and others
from Marshfield Police Department and Human Services planned to seize T.E.H. from
Gilbank. They did not obtain a warrant or talk to a judge about their plan.
After Gilbank and T.E.H. finished their housing appointment, a Marshfield police
officer stopped Gilbank in her car. The officer told Gilbank that her license had been suspended
for failure to pay a previous ticket. A K9 unit arrived, and Gilbank and T.E.H. were ordered to
leave the vehicle. Gilbank called Hoyle, Hoyle’s mother, and a friend, and asked them to pick
up T.E.H. at the traffic stop.
After receiving Gilbank’s call, Hoyle immediately went to his lawyer’s office and
directed his lawyer to file a motion for sole custody of T.E.H. and termination of his child
support obligations. The motion stated that Gilbank had been arrested for possession of
methamphetamine. The motion was filed before the search of Gilbank’s car was complete and
before she was arrested or charged.
Drugs and paraphernalia were found in Gilbank’s car. (Gilbank says that the items
belonged to Hoyle.) Gilbank was arrested and taken to Marshfield Police Department for
questioning by defendants Iverson and Heinzen-Janz. Gilbank stated that she did not know

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about any drugs in the vehicle and she asked for an attorney. Iverson declined to call an
attorney for Gilbank and continued to question her, stating that if she did not admit guilt and
cooperate, he would report that she was not cooperating with the “safety plan” and that she
was a danger to her child. Iverson also stated that he would recommend placement of T.E.H.
with Hoyle if she did not cooperate. Gilbank was not aware that there was a safety plan in
place. Later that day, she was notified that T.E.H. had been placed with Hoyle. She was also
told that she could not to contact T.E.H., that she could not return home, and that there would
be a hearing regarding custody within 48 hours.
Gilbank posted bail on August 22, and she returned to the courthouse on August 23 to
ask about the custody hearing. She was told that the hearing had taken place already, before
defendant Judge Gregory Potter. Heinzen-Janz and Iverson gave false testimony at the hearing
to justify the removal of T.E.H. without a warrant. Gilbank wrote to Judge Potter that she
contested T.E.H.’s placement with Hoyle. Potter then recused himself from the case, and the
case was transferred to defendant Judge Nicolas Brazeau, Jr. Gilbank filed motions requesting
that the hearing be reopened, but Judge Brazeau denied her motions.
On September 6, 2018, Gilbank was interviewed at Children’s Hospital of Wisconsin.
Gilbank was given a release form to sign, which stated that information about her visits with
T.E.H. would be released to Hoyle. Gilbank stated that she did not feel comfortable with Hoyle
having information about her because he had abused her. Hospital staff told Gilbank that if
she did not sign the release, she would not be able to see T.E.H.
On September 25, 2018, the court held an evidentiary hearing at which several
witnesses testified that Gilbank was a good mother to T.E.H. and that T.E.H. was healthy and
well cared for. Defendant Heinzen-Janz testified that because Gilbank had testified positive for

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drugs on July 3, 2018, Gilbank obviously had an addiction problem that was out of control.
Brazeau concluded that Gilbank was lying about her drug use, and he ordered that T.E.H.
remain with Hoyle, even though Hoyle admitted at the hearing that he had used drugs.
Gilbank was upset about T.E.H. being taken from her and told Human Services about
Hoyle’s drug and alcohol use and addictions, but defendant Mary Christensen, another social
worker with Wood County, told her that if she continued to complain that she would never
get T.E.H. back. Whenever Gilbank complained about what had happened, Christensen would
increase restrictions on Gilbank’s visits with T.E.H. Christensen, Heinzen-Janz, and Iverson
later shared Gilbank’s urine test results and mental health prescriptions with Hoyle.
In February 2020, Gilbank regained full custody of T.E.H. after Hoyle admitted that
he had been placing his fingers on T.E.H.’s vagina daily. T.E.H. received a sexual assault
examination, and both Gilbank and T.E.H. have experienced ongoing trauma as a result of the
incidents of the past two years.

OPINION
Gilbank has sued Wood County Department of Human Services, Marshfield Police
Department, Children’s Hospital of Wisconsin, Detective Derek Iverson, Judges Gregory
Potter and Nicholas Brazeau, Jr., and four social workers: Teresa Heinzen-Janz, Mary
Christensen, Anne La Chapelle, and Mary Solheim. She discusses several legal theories in her
complaint, including: interference with her and T.E.H.’s right to familial association; unlawful
seizure of T.E.H.; violation of Gilbank’s right to counsel and against self-incrimination; and
violation of Gilbank’s and T.E.H.’s due process rights.

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A. T.E.H.’s claims and Gilbank’s motion requesting assistance in recruiting counsel
T.E.H. is a minor, and minors can bring suit in federal court only through an appointed
representative, a guardian ad litem, or a next friend. Fed. R. Civ. P. 17(c). Gilbank has
identified herself as T.E.H.’s next friend, but a parent cannot sue as a next friend on behalf of
a minor child unless the parent is represented by counsel. See Elustra v. Mineo, 595 F.3d 699,
705 (7th Cir. 2010) (“[A] non-attorney parent must be represented by counsel in bringing an
action on behalf of his or her child.”) (citation omitted). Acknowledging this rule, Gilbank has
filed a motion requesting that the court recruit counsel to represent her or appoint a guardian
ad litem to represent T.E.H. I will deny Gilbank’s motion.
A pro se litigant does not have a right to counsel in a civil case, Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014), but a district court has discretion to assist pro se litigants in
finding a lawyer to represent them. Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007). A party
who wants assistance from the court in recruiting counsel must meet certain requirements.
Santiago v. Walls, 599 F.3d 749, 760–61 (7th Cir. 2010). First, she must show that she is unable
to afford counsel. Gilbank has not filed any financial information with the court, so I cannot
determine whether she is unable to afford counsel. I will attach to this order a financial affidavit
that Gilbank can submit to the court. (The court will also use the financial affidavit to
determine whether Gilbank can be exempt from paying PACER fees, as she has requested. Dkt.
16.)
Second, she must show that he made reasonable efforts on her own to find a lawyer to
represent her. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir. 1992). Gilbank has satisfied
this requirement by submitting letters from several lawyers who declined to represent her in
this case.

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Third, Gilbank must show that the legal and factual difficulty of the case exceeds her
ability to prosecute it. Pruitt, 503 F.3d at 654–55. The inquiry into a litigant’s abilities to
handle his own case is a practical one, made in light of “whatever relevant evidence” is available.
Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014). Courts generally consider the litigant’s
“literacy, communication skills, education level, and litigation experience in light of the
complexities of the case.” Pruitt, 503 F.3d at 655. “The question is not whether a lawyer would
present the case more effectively than the pro se plaintiff” but instead whether the pro se
litigant can “coherently present [her case] to the judge or jury” herself. Id. at 655. Almost all
of this court’s pro se litigants would benefit from the assistance of counsel, but there are not
enough lawyers willing to take these types of cases to give each plaintiff one. I must decide for
each case whether the particular plaintiff should be the beneficiary of the limited resources of
lawyers willing to respond to courts’ requests. McCaa v. Hamilton, 959 F.3d 842, 845 (7th Cir.
2020).
Gilbank’s filings in this case show that she is intelligent, articulate, and understands the
basic facts and legal theories applicable to her case. She has not identified any any reason why
this case would be too complex for her to handle on her own. She has requested counsel or a
guardian ad litem only so that she can bring claims on behalf of T.E.H. Although I am
sympathetic to Gilbank’s desire to bring claims on behalf of her minor daughter, I decline to
recruit counsel or a guardian ad litem for this purpose. The court has found that it is exceedingly
difficult to find counsel or guardians ad litem who are willing and able to accept civil rights
cases on a pro bono basis. This is particularly true if counsel would be required to handle the
case from start to finish, as would be required in this case, rather than for a limited purpose.

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In addition, this court generally does not attempt to recruit counsel until after a case
has survived the summary judgment stage, as it is difficult to find counsel willing to accept a
case that has undergone no merits review by the court. In this instance, some of Gilbank’s
claims concern custody and placement decisions taken by government officials, some of which
were approved by state court judges. Some of Gilbank’s claims may be barred by the RookerFeldman doctrine, the domestic relations doctrine, issue preclusion, or claim preclusion. See
Kowalski v. Boliker, 893 F.3d 987, 996 (7th Cir. 2018); Golden v. Helen Sigman & Assocs., Ltd.,
611 F.3d 356, 362 (7th Cir. 2010); Howell v. Dewey, 817 F. App’x 268, 270 (7th Cir. 2020);
Weinhaus v. Cohen, 773 F. App’x 314, 316 (7th Cir. 2019). I am not inclined to recruit counsel
until this case has undergone additional merits review at the summary judgment stage.
In sum, I have no reason to think that Gilbank cannot represent herself in this case,
and I decline to recruit counsel or a guardian ad litem so that T.E.H. may pursue claims.
Therefore, I will dismiss T.E.H.’s claims without prejudice. If Gilbank is able to find a guardian
ad litem or lawyer to represent T.E.H., she may ask that T.E.H.’s claims be reinstated.
B. Judge Potter and Judge Brazeau’s motion to dismiss
Gilbank contends that Judge Potter violated her due process rights by refusing to reopen
the initial custody hearing, by recusing himself, and by transferring Gilbank’s case to Judge
Brazeau. She contends that Judge Brazeau violated her due process rights by denying her
motion to reopen or to dismiss her criminal case and by continuing the orders regarding
T.E.H.’s placement with Hoyle and Gilbank’s contact with T.E.H.
Potter and Brazeau have moved for dismissal of the claims against them on the grounds
that the claims are barred by Eleventh Amendment sovereign immunity and judicial immunity.
I will grant their motions. If Gilbank is suing the judges in their official capacities, her claims

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are barred by the Eleventh Amendment. See Brokaw v. Mercer Cty., 235 F.3d 1000, 1009 (7th
Cir. 2000) (federal suits against state officials in their official capacities are barred by Eleventh
Amendment sovereign immunity). If Gilbank is suing the judges in their individual capacities,
her claims are barred by the doctrine of judicial immunity because Gilbank is complaining
about Potter’s and Brazeau’s judicial conduct. See Stump v. Sparkman, 435 U.S. 349, 359
(1978); Loubser v. Thacker, 440 F.3d 439, 442 (7th Cir. 2006) (judges have absolute immunity
for damages claims based on judicial conduct). Therefore, Gilbank’s claims against Potter and
Brazeau will be dismissed.
C. Wood County Defendants’ motion to dismiss (Wood County Department of Human
Services, Heinzen-Janz, Christensen, La Chappelle, and Mary Solheim)
Defendant Wood County Department of Human Services has moved to dismiss all
claims against it on the ground that it is not an entity that may be sued under § 1983. I will
grant that motion. State law determines whether a government entity may be sued. Fed. R.
Civ. P. 17(b). Under Wisconsin law, municipal departments and subdivisions are arms of the
municipality, and cannot be sued. See, e.g., Whiting v. Marathon Cty. Sheriff's Dep't, 382 F.3d
700, 704 (7th Cir. 2004) (sheriff's department is not a “legal entity separable from the county
government” and thus is not subject to suit under § 1983). Wood County Department of
Human Services is a department of Wood County, and it is not a separate entity that may be
sued.
The four Wood County social workers—Heinzen-Janz, Christensen, La Chappelle, and
Mary Solheim—have moved for dismissal of Gilbank’s conspiracy claims brought under 42
U.S.C. § 1986 on the ground that the claims are untimely. Section 1986 creates a cause of
action against individuals who conspire to interfere with a person’s civil rights. But § 1986 has

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a one-year statute of limitations. Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 700 (7th
Cir. 2005). The county defendants argue that Gilbank’s only conspiracy allegations are her
allegations regarding Heinzen-Janz’s and other social worker’s actions to remove T.E.H. from
Gilbank in August 2018. They argue that because Gilbank did not file this lawsuit until June
30, 2020, her § 1986 claims are untimely.
I agree with defendants. Although Gilbank alleges in her amended complaint that
T.E.H. was not returned to to her until February 2020, and that Wood County social workers
refused to help her between August 2019 and February 2020, her amended complaint includes
no allegations suggesting that the county defendants engaged in conspiratorial acts within the
year before she filed this lawsuit. Therefore, I will dismiss Gilbank’s conspiracy claims.
D. Children’s Hospital of Wisconsin’s motion to dismiss
Gilbank contends that Children’s Hospital of Wisconsin violated her constitutional
rights when it required her to sign a release authorizing T.E.H.’s father, Ian Hoyle, to receive
information about Gilbank’s visits with T.E.H. Gilbank says that the Children’s Hospital staff
told her that signing the release was optional, but that she would not get to T.E.H. if she did
not sign it. Children’s Hospital has moved to dismiss any claims against it on the ground that
Gilbank’s allegations do not state a federal claim upon which relief may be granted.
I will grant the motion. Gilbank’s allegations do not suggest that Children’s Hospital
was acting in a governmental capacity when it provided the release form to Gilbank, so Gilbank
cannot sue Children’s Hospital for constitutional violations under § 1983. And even if the
hospital was acting in a government capacity, Gilbank’s allegations do not suggest that the
hospital violated any of her constitutional rights. Nor has Gilbank articulated any
constitutional violation. Gilbank referred to HIPAA in her complaint, but individuals cannot

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sue to enforce their rights under the Health Insurance Portability and Accountability Act.
Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019). Gilbank also argues that
Children’s Hospital conspired to deprive her of her civil rights, in violation of 41 U.S.C. § 1986,
but her allegations do not support a conspiracy claim against the hospital. And as discussed
above, any conspiracy claims are untimely. Therefore, Gilbank’s claims against Children’s
Hospital will be dismissed.

ORDER
IT IS ORDERED that:
1. The motions to dismiss filed by defendants Nicholas Brazeau, Jr. and Gregory
Potter, Dkt. 4 and Dkt. 7, are GRANTED. Brazeau and Potter are DISMISSED
from this case.
2. The motion to dismiss filed by defendants Wood County Department of Human
Services, Mary Christensen, Theresa Heinzen-Janz, Anne La Chapelle, and Mary
Solheim, Dkt. 17 and Dkt. 31, are GRANTED. Wood County Department of
Human Services is DISMISSED from this case.
3.

The motion to dismiss filed by defendant Children’s Hospital of Wisconsin, Dkt.
19, is GRANTED. Children’s Hospital is DISMISSED from this case.

4. Plaintiff Michelle Rene Gilbank’s motion for an exemption from PACER fees, Dkt.
16, and motion for assistance in recruiting counsel or a guardian ad litem, Dkt. 37,
are DENIED without prejudice. The clerk of court shall provide a financial affidavit
form to Gilbank.
5.

T.E.H.’s claims are DISMISSED without prejudice.

Entered December 15, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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