No. 10-1364 IN THE UNITED STATES COURT OF APPEALS FOR …
Transcript of No. 10-1364 IN THE UNITED STATES COURT OF APPEALS FOR …
No. 10-1364
IN THEUNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
JAYMZ HERNANDEZ, by his parents and nextfriends Crystelle Hernandez and JoshuaHernandez; CRYSTELLE HERNANDEZ; andJOSHUA HERNANDEZ,
Plaintiffs-Appellants,
v.
LAKESHA FOSTER, DCFS Investigator, in herindividual capacity; PAMELA FOSTER-STITH,DCFS supervisor, in her individual capacity;and MICHAEL RUPPE, DCFS manager, in hisindividual capacity,
Defendants-Appellees.
))))))))))))))))
On Appeal from the UnitedStates District Court for theNorthern District of Illinois,Eastern Division
No. 09 C 2461
The HonorableSUZANNE B. CONLON,Judge Presiding.
BRIEF OF DEFENDANTS-APPELLEES
LISA MADIGAN Attorney General of Illinois
MICHAEL A. SCODRO Solicitor General
100 West Randolph Street 12th Floor
Chicago, Illinois 60601 (312) 814-3312
Attorneys for Defendants-Appellees.
MARY E. WELSHAssistant Attorney General100 West Randolph Street12th Floor Chicago, Illinois 60601(312) 814-2106
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TABLE OF CONTENTS
PAGE(S)
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Decision to Take the Child Into Temporary Protective Custody . . . . . . . . . . . . 5
The Temporary Custody Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
The Safety Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The Safety Plan Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Subsequent Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
I. Plaintiffs’ Statement of Facts and Related Argument Should Be Strickenfor Non-Compliance With Circuit Rule 28(c) . . . . . . . . . . . . . . . . . . . . . . . . 19
II. Summary Judgment Against Plaintiffs Should Be Affirmed inIts Entirety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. Defendants Are Entitled to Summary Judgment Whenever the Admissible Evidence Create No Genuine, Material Factual Dispute and They Are Entitled to Judgment asa Matter of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Plaintiffs’ Burden On Qualified Immunity Is A Heavy One . . . . . . . 21
C. Defendants Were Entitled to Judgment on Jaymz’s FourthAmendment Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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1. Plaintiffs Failed to Show That a Reasonable Jury Could FindThat Any Defendant Violated Jaymz’s Fourth AmendmentRights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Alternatively, Plaintiffs Failed to Show That Any Defendant IsNot Entitled to Qualified Immunity . . . . . . . . . . . . . . . . . . . . 28
D. Defendants Were Entitled to Judgment on the Substantive Due Process Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
1. Only Conduct that “Shocks the Conscience” Violates theGuarantee of Substantive Due Process . . . . . . . . . . . . . . . . . . 30
2. Plaintiffs Present No Evidence From Which a Reasonable JuryCould Find That Any Defendant “Shocked the Conscience” byTaking the Child Into Temporary Protective Custody . . . . . . 31
3. Plaintiffs Presented No Evidence From Which a ReasonableJury Could Find That Any Defendant “Shocked the Conscience”by Keeping Jaymz in Temporary Protective Custody for FewerThan 48 Hours Under the Circumstances Here . . . . . . . . . . . 33
4. Plaintiffs Failed to Present Evidence From Which a ReasonableJury Could Find That Foster “Shocked the Conscience” by“Coercing” The Parents’ Agreement to the Safety Plan . . . . . 38
E. Defendants Were Entitled to Judgment on Plaintiffs’ Procedural DueProcess Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
1. Procedural Unfairness Is Actionable Only If the ExistingProcedural Safeguards Shock the Universal Sense of Justice. .48
2. Plaintiffs Failed to Present Evidence from Which a ReasonableJury Could Find That Any Defendant Deprived Plaintiffs ofTheir Liberty Interest in Familial Relations Without the ProcessThat Was Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
3. Plaintiffs Failed to Present Evidence from Which a ReasonableJury Could Find That Any Defendant Deprived Them of TheirLiberty Interest in Familial Relations Without the Process ThatWas Due for the Safety Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 50
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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TABLE OF AUTHORITIES
Page(s)CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Boyd v. Owen, 481 F.3d 520 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Brousseau v. Haugen, 543 U.S. 194 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45
Casna v. City of Loves Park, 574 F.3d 420 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Chaklos v. Stevens, 560 F.3d 705 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Collins v. Seeman, 462 F.3d 757(7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36, 41
County of Sacramento v. Lewis, 523 U.S. 833 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31, 32, 48
Croft v. Westmoreland County Children & Youth Servs., 103 F.3d 1123 (3d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Darryl H. v. Coler, 801 F.2d 893 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
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Devenpeck v. Alford, 543 U.S. 146 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 44
Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Dupuy v. McEwen, 495 F.3d 807 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Dupuy v. Samuels, 465 F.3d 757 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Evans v. Richardson, 2010 WL 1194272 (N.D. Ill. March 19, 2010) . . . . . . . . . . . . . . . . . . . . . . 45-46
Florida v. Bostick, 501 U.S. 429 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 51
Garcia v. City of Chicago, 24 F.3d 966 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 37-38
Gerstein v. Pugh, 420 U.S. 103 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34, 42
Graham v. Connor, 490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Gramenos v. Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28
Gunville v. Walker, 583 F.3d 979 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Hanson v. Dane County, Wis., 608 F.3d 335 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d 644 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Jackson v. Parker, ___ F.3d ___, 2010 WL 4909459 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 27
Jensen v. Foley, 295 F.3d 745 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Khuans v. Sch. Dist. 110, 123 F.3d 1010 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45
Lossman v. Pekarske, 707 F.2d 288 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 49
Lynumn v. Illinois, 372 U.S. 528 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Mathews v. Eldridge, 424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50
Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Miller v. Amer. Family Mut. Ins. Co., 203 F.3d 997 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Palka v. Shelton, 623 F.3d 447 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 40
Pearson v. Callahan, 129 S. Ct. 808 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Prince v. Massachusetts, 321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Purtell v. Mason, 527 F.3d 615 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 45
Rogers v. Richmond, 365 U.S. 534 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Scott v. United States, 436 U.S. 128 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Shank v. William R. Hague, Inc., 192 F.3d 675 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Smith v. Williams-Ash, 520 F.3d 596 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SMS Demag Aktiengesellschaft v. Material Sciences Corp.,565 F.3d 365 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Sornberger v. City of Knoxville, Ill., 434 F.3d 1006 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44
Spano v. New York, 360 U.S. 315 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Terry v. Richardson, 346 F.3d 781 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41, 51-52
Tibbs v. City of Chicago, 469 F.3d 661 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Troxel v. Granville, 530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
United States v. Dabney, 498 F.3d 455 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
United States v. Hope, 906 F.2d 254 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
United States v. Messino, 871 F.Supp. 1035 (N.D. 26Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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United States v. Miller,450 F.3d 270 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Vaughn v. Ruoff, 253 F.3d 1124 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Wilkie v. Robbins, 551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40
Wilson v. Layne, 526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES
U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-29
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-52
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
7th Cir. R. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20
705 ILCS 405/2-9 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
“App” refers to Plaintiffs’ Short Appendix, and “SApp” refers to their1
Supplemental Appendix.
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JURISDICTIONAL STATEMENT
Plaintiffs’ Jurisdictional Statement is not complete and correct.
Plaintiffs Crystelle and Joshua Hernandez (together, the Parents) brought
this action, individually and as the next friend of their son Jaymz, against Andrew
Polovin and Defendants Lakesha Foster, Pamela Foster-Stith, and Michael Ruppe,
employees of the Illinois Department of Children and Family Services, seeking
damages for alleged violations of Plaintiffs’ rights under the First and Fourteenth
Amendments to the United States Constitution. Doc. 1 (SApp21-37). The district1
court had jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. § 1331.
The district court dismissed Jaymz’s Fourth Amendment claim against
Polovin for lack of personal involvement (Doc. 36 at 17 (SApp94), and the parties
later stipulated to the dismissal of all claims against Polovin (Doc. 74 (SApp175-
77)).
On January 19, 2010, summary judgment was entered against Plaintiffs
(Docs. 102 (App1-19), 101), and a Rule 58 judgment was entered the same day (Doc.
103 (App20)). Plaintiffs filed a notice of appeal on February 12, 2010. Doc. 106.
This Court therefore has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
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ISSUES PRESENTED
Whether Defendants were entitled to summary judgment, on the merits or on
qualified immunity grounds, on Plaintiffs’ claims that
1. each Defendant violated Jaymz’s Fourth Amendment rights, and the
Parents’ substantive due process rights, by taking him into temporary protective
custody.
2. each Defendant violated Plaintiffs’ substantive due process rights by
holding Jaymz in temporary protective custody for fewer than 48 hours.
3. Foster violated the Parents’ substantive due process rights by coercing
their agreement to the safety plan.
4. each Defendant violated Plaintiffs’ procedural due process rights by not
providing a hearing before or after (a) Jaymz was taken into temporary protective
custody and (b) presentation of the safety plan.
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STATEMENT OF THE CASE
Plaintiffs Crystelle and Joshua Hernandez (together, the Parents) brought
their 15-month-old son Jaymz to a hospital with a fractured arm. Based on another
unexplained bruise, inconsistencies between his injury and the Parents’ statements
that he could not climb, and conflicting statements about who was in the home at
the relevant time, a doctor and a nurse suspected abuse and called the Department
of Children and Family Services (the Department). Defendant Pamela Foster-Stith
interviewed the nurse and the doctor and assigned the investigation to Defendant
Lakesha Foster, who visited Plaintiffs’ home and saw Jaymz climbing. Foster-Stith
and Defendant Michael Ruppe, her supervisor, decided Jaymz should be taken into
temporary protective custody and stay Crystelle’s grandparents. The next day, two
other doctors who saw Jaymz did not suspect abuse, and the State’s Attorney
thought there were insufficient grounds to petition for wardship. Foster-Stith and
Ruppe decided to allow temporary custody to lapse, but before the 48-hour custody
period ended, Foster presented a safety plan to the Parents, which explicitly stated
it was voluntary and allowed them supervised contact with Jaymz, and said they
could not see him unless they signed it. They did, and the plan lasted eight days.
Plaintiffs brought this action, alleging that Defendants violated (1) Jaymz’s
Fourth Amendment rights, and the Parents’ substantive due process rights, by
taking and keeping him in temporary protective custody; (2) the Parents’
substantive due process rights, by coercing their agreement to the safety plan; and
(3) Plaintiffs’ procedural due process rights, by not providing hearings for protective
custody or the safety plan. The court entered summary judgment for Defendants.
On summary judgment, all genuine disputes of material fact are resolved,2
and all reasonable inferences from the evidence in the record are drawn, in thenonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). ThisStatement of Facts therefore resolves all genuine disputes of material fact, anddraws all reasonable inferences, in Plaintiffs’ favor. As explained in Part I of theArgument, Plaintiffs’ Statement of Facts should be stricken.
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STATEMENT OF FACTS
Factual Background2
On September 8, 2008, around 11:30 a.m., Plaintiffs Crystelle and Joshua
Hernandez (together, the Parents) brought their 15-month-old son, Plaintiff Jaymz
Hernandez, to Sherman Hospital, saying he had injured his right arm by falling out
of his crib. SApp702. Nurse Lisa Luebke (the Nurse) wrote in her report that
Crystelle said Jaymz “is not walking or climbing, but [she] doesn’t know how he fell
out of [his] crib,” which was in another room, with its siderails up and locked.
SApp705-06 (emphasis in original). The Parents also told Dr. Natalie Kostinsky
(the Doctor) that Jaymz was not walking or climbing. Doc. 82-10 at 7.
According to the medical notes, the Parents’ “[s]tory d[id]n’t sound correct,”
and around 12:30 p.m., the Nurse called the Department and reported the “story
inconsisten[cy].” SApp706. The Nurse and the Doctor suspected “there [wa]s a
possible endangering situation that happened” to Jaymz, and after the Doctor
reported her suspicions to the Department, it advised her to release him to the
Parents. SApp.377-81. The Doctor felt that Jaymz was not in “immediate danger”
and her “understanding [was] that it was not necessary” for her to take him into
temporary protective custody at that time, but the matter “need[ed] to be
investigated,” which the Department would do. SApp380-81. The Nurse told the
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Hotline that the Parents claimed Jaymz, who they said was not yet walking or
climbing, “somehow fell out of his crib,” but their “story d[id] not fit [his] fracture,”
and he had old bruises, of unknown origin. SApp566. The Nurse also said his arm
was fractured. Id.
The Doctor diagnosed Jaymz as having suffered a torus fracture of both
bones, which is an “incomplete” fracture, also called “buckling” or a “greenstick”
fracture, that occurs in children because their bones are not developed. SApp381-
83. This injury is common among children and could be sustained by a fall of a few
feet onto a tile floor covered by a carpet. SApp383-84.
According to the medical notes, after the Parents were notified of the report
to the Department, Crystelle said “Oh, [Jaymz] can walk” but again denied he could
climb. SApp706.
The Decision to Take Jaymz Into Temporary Protective Custody
Defendant Pamela Foster-Stith, a Department supervisor, interviewed the
Nurse and the Doctor by telephone before 1:00 p.m., taking contemporaneous notes.
Doc. 82-5 at 16; SApp620-21; SApp327. The Nurse told her “that the story the
family gave didn’t match the injury,” Crystelle said no one witnessed the incident,
and Joshua originally said he had been at work when the incident occurred but
later said he was at home. SApp620. The Doctor told Foster-Stith that Crystelle
said the crib contained nothing that Jaymz, who had been alone, could have stepped
up on and the Parents said they were both at home but also that only Crystelle was
there. SApp621. The Doctor said two things caused her to suspect abuse: (1) a
child Jaymz’s age and size being able to climb up a railing and fall out of a crib; and
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(2) the Parents’ inconsistency about who was at home. SApp621.
Foster-Stith drafted an action plan and, around 1:00 p.m., assigned
Defendant Lakesha Foster, a Department investigator, to the case. SApp334, 325,
336-37, 339; Doc. 82-5 at 18, 27. The plan stated that “[the Parents’] story do[es]
not fit [Jaymz’s] injury” and that he had older bruises from an unknown source.
SApp625. It also instructed Foster that this was an “[a]ction needed” case, which
meant that Jaymz needed to be seen immediately, and that she should see Jaymz at
home. Id.; Doc. 87-2 at 7-9. Among other things, it asked her to “[r]ule out
Protective custody and/or Safety Plan,” given the nature of his injury, and to “assess
for safety and risk.” SApp625; Doc. 82-5 at 34. At about 1:15 p.m., Foster-Stith met
with Defendant Michael Ruppe, the assistant regional administrator, to discuss the
matter, including the medical professionals’ suspicions of abuse and the
investigation’s next steps, including the need to rule out protective custody if the
circumstances permitted. SApp.337-38, 365, 628; Doc. 87-2 at 18; Doc. 82-5 at 38-
40. Foster-Stith talked again with the Nurse and the Doctor, and was informed
that Jaymz had a “buckle” fracture. SApp629; Doc. 82-5 at 42.
That afternoon, Foster visited Plaintiffs’ home, where Crystelle’s father and
step-mother also live. SApp271, 276, 631-34, 419. While Foster was there,
Crystelle’s step-mother arrived, said she was going to contact an attorney, and
began making telephone calls. Doc. 87-3 at 6.
Foster observed Jaymz walking and climbing, and she went to the basement
to see the crib, which had a pillow and other items in it; a throw rug was on the tile
floor next to the crib. SApp277, 270-72, 284, 631-34. Crystelle said that after
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returning from the hospital, she lowered the crib mattress to the lowest position.
SApp401. Foster also completed a home safety checklist and screenings for
substance abuse domestic violence. SApp291-93, 693-97, 683-88, 678-82.
Around 4:30 p.m., Foster called Foster-Stith, who told her Jaymz could climb,
described the crib conditions, and said the Parents “really didn’t know what
happened and [said] that the child must have . . . climbed up and f[allen] out [of] the
crib.” Doc. 82-5 at 44-46, 73; SApp284. They discussed implementing a safety plan,
given Jaymz’s age, his injury, and the medical professionals’ belief that the Parents’
story was inconsistent with that injury, but the Parents refused to have Jaymz stay
elsewhere or have someone else stay in the home. SApp340-42; Doc. 82-5 at 48, 72.
According to Crystelle, although Foster said there was no need to go further, Foster-
Stith replied that she needed to treat the matter just like every other protective
custody case. Doc. 87-4 at 8-9; SApp400.
About 15 minutes later, Foster-Stith met with Ruppe and advised him that
the Parents had no explanation for Jaymz’s fracture or eye bruising and that they
were unwilling to agree to a safety plan. SApp344-45. Given the conflicting
information about Jaymz’s mobility and about who was home when his injury
occurred, the medical professionals’ concern that the injury was not consistent with
the Parents’ explanation, and the Parents’ refusal to agree to a safety plan, Ruppe
believed Jaymz would be unsafe absent temporary protective custody, so he agreed
with Foster-Stith that Jaymz should be taken into temporary protective custody.
SApp367; Doc. 87-2 at 17, 19-21; Doc. 85-2 at 54-56. At that time, such decisions
were made by an investigator’s supervisor, upon consulting with a manager or
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administrator. Doc. 87-2 at 15-16; Doc. 82-5 at 55. Foster did not make the
decision. SApp285.
At 4:50 p.m., Foster-Stith called Foster and instructed her to take Jaymz into
protective custody and to ascertain if other family members, who had not been
present when the incident occurred, could take him. SApp346. She explained that
custody should be taken and someone else had to be found to keep Jaymz safe
during the investigation into what happened, because he had been injured in the
home and no one could tell a story consistent with his injury. SApp283.
Foster told Crystelle that Jaymz had to be taken into protective custody for
48 hours, during which Crystelle could not see him. SApp403. Crystelle did not
want him to go into foster care and asked if he could go to her grandparents, whom
Foster called and who agreed to keep him. SApp403-04. Foster explained to
Crystelle that protective custody would provide safety for Jaymz until the
investigation’s next step, and that there would be a court hearing if the State’s
Attorney filed a petition but, if not, protective custody would lapse and they would
be contacted. SApp 285-87. Foster also provided a notification of the investigation
and a brochure, adding that the Parents could have no contact with Jaymz while he
was out of the home. SApp287-88. The Notification explained the steps in the
investigation process. SApp731-38.
Foster again called Foster-Stith, who agreed to the placement (SApp403), and
obtained clearance for the placement (SApp635, 717). After first having Jaymz
examined by a physician for any medical restrictions on placement (SApp718),
Foster took him to Crystelle’s grandparents’ home, accompanied by Crystelle’s step-
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mother, who stayed there for “[a] couple of days.” SApp274-76; Doc. 87-4 at 14, 18.
The Temporary Protective Custody Period
On the morning of September 9, Foster spoke to the Nurse, who reiterated
that Crystelle said Jaymz could not walk or climb, which was inconsistent with her
story that he fell out of the crib. SApp636. The Nurse also told her Crystelle said
there was no blanket or pillow in the crib, “which again does not match” her story
about his having fallen from his crib. SApp636.
The same morning, Jaymz was taken to an orthopedist, who determined that
he needed a cast on his arm for three weeks; pursuant to Foster’s arrangements, the
Parents accompanied Jaymz there. SApp406, 413, 711. The orthopedist told Foster
that the injury “did not look like any abuse or neglect” and was “consistent with the
history of child falling from a crib . . . .” SApp640.
After receiving a fax from the Department, Cary Police Detective Susan Ellis
talked to Foster, who said that although the orthopedist believed the fracture was
consistent with falling from a crib, Foster-Stith had requested that Jaymz be placed
with his great-grandparents until a skeletal exam could be performed. SApp539-42.
The Parents and Crystelle’s grandmother took Jaymz to a hospital emergency
room for the full skeletal exam. SApp407, 413-14, 641, 729. The results of this test,
which is performed on children under two years of age and can be used to detect
bone fractures, and of the examining physician’s exam were unremarkable and not
indicative of abuse. SApp714-16, 438-40, 446. The examining physician testified
later, however, that one “red flag” for abuse is “injuries that don’t correlate well
with the story that was given.” SApp446. Foster told Cary Detective Ellis
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(SApp541), who requested Jaymz’s medical records, that the orthopedist and the
doctor who performed the skeletal exam thought that the fracture was consistent
with a fall (SApp428-29).
When Crystelle arrived back home that afternoon, three Cary police officers
(including Detective Ellis) were there; when they asked her what happened, she
said Jaymz fell out of the crib. SApp412-14. Crystelle’s father told the police that
Crystelle had placed him in the crib. SApp541.
Also that afternoon, McHenry County Assistant State’s Attorney Julia
Almeida, who was unaware that Jaymz had been taken into temporary protective
custody, told Foster that “there [wa]s not enough to file a petition” for adjudication
of wardship at that time, though Almeida agreed the investigation should be
completed. SApp460, 643-44. According to Almeida, whether to file a petition is
“an evolving decision as far as information coming in” during an investigation,
which “isn’t always in a nice clean fashion,” so when she says there is not sufficient
evidence to file a petition for adjudication of wardship, “the door isn’t shut . . . . ”
SApp469, 471; Doc. 87-7 at 5-6. Almeida also believes that “you don’t file a petition
after a Hot Line call is made” (SApp470), because sometimes false reports are made,
though it is possible to sustain custody when hotline information is confirmed by
additional information, such as medical records (Doc. 87-7 at 10-11). Foster-Stith e-
mailed Ruppe, telling him Almeida would come to the office that afternoon but,
according to Foster, thought there was insufficient evidence to file a petition for
wardship at that time. SApp296; Doc. 85-2 at 67-68; Doc. 82-12 at 1. Foster-Stith
later met with Foster and told her the State’s Attorney would not file a petition.
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Doc. 82-5 at 63-64.
Foster telephoned Crystelle to tell her that there would be no court hearing
and that protective custody would lapse. SApp416-17, 185, 298-99. Foster asked
about having a safety plan while the investigation continued, and Crystelle was
willing to meet to discuss it. SApp298-99. When Crystelle asked if Jaymz could
come home, Foster responded that more investigation was needed and that
everything had to stay as it was because the 48-hour temporary protective custody
period had not yet ended. SApp417-18.
Citing the “conflicting medical evidence” about the cause of Jaymz’s injury,
Foster requested a second opinion from the Multidisciplinary Pediatric Education
and Evaluation Consortium (MPEEC) (SApp727), which is a Department-funded
consortium of pediatricians who specialize in child abuse and (among other things)
resolve conflicting medical opinions about abuse (SApp496). It was “standard
[Department] procedure” to send a “broken bone case” to a specialist. SApp304.
The Safety Plan
Early in the morning on September 10, Foster-Stith and Ruppe agreed to
allow temporary protective custody to lapse, given the State’s Attorney’s concerns
about filing a petition for wardship, the results of the skeletal survey, and the
willingness of family members to assist in caring for Jaymz. SApp351, 646.
Because additional information was needed to rule out abuse as the cause of
Jaymz’s injury, however, they wanted to have a safety plan, under which he would
remain with his great-grandparents and the Parents would have supervised contact
with him. Doc. 82-5 at 79-80, 82-83, 85.
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Later that same morning, Foster went to Plaintiffs’ home and interviewed
Joshua, who said he had put Jaymz in the crib. SApp648.
Foster explained the terms of the safety plan to the Parents, noting that it
was voluntary. Doc. 87-3 at 10-13. Under the plan, Jaymz would remain with his
great-grandparents, where the Parents could have supervised contact with him, and
the plan would be renewed every five business days until it would terminate, based
on negative results from medical exams, including the skeletal exam and the
specialist’s review. Id.; SApp673-74. Foster also said that Jaymz could not come
home and that his great-grandmother had custody over him, but if they signed the
safety plan, they could stay with him; she also said they could not see him if they
did not sign it and that they had no parental rights. SApp420; Doc. 87-4 at 29; Doc.
87-3 at 8-9. Foster explained that not following the agreed safety plan could result
in protective custody for Jaymz. Doc. 87-3 at 13.
Asking no questions, the Parents signed the safety plan, which stated that
“we understand [the safety plan’s] contents and that it is voluntary and agree to
abide by the terms and conditions of the plan.” SApp674; Doc. 87-3 at 13. Crystelle
“didn’t really care” about going over the safety plan’s terms with Foster; she signed
it so that she could see Jaymz. Doc. 87-4 at 26, 29. Joshua never read the safety
plan; he signed it because his wife had already done so, and he “just went with it.”
SApp507-08. He believed that they did not have legal custody of Jaymz under the
safety plan because they could not be alone with him. SApp509.
Later that morning, Foster visited Jaymz, whose great-grandmother signed
the safety plan. SApp649, 674.
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The Safety Plan Period
While the safety plan was in effect, Crystelle stayed at her grandmother’s
home, in Jaymz’s room, and Joshua stayed there except on the three days he
worked every week. Doc. 87-4 at 18, 31; Doc. 87-5 at 8.
On September 11, Foster spoke to the MPEEC doctor, who had seen only the
medical notes and who stated that Jaymz’s injury was “a rare fracture in abuse [but
he was] not saying it doesn’t happen in abuse”; he requested copies of the X-rays
and also suggested a CT scan at Cook County Hospital SApp653. Foster made
several attempts to obtain the orthopedist’s written report and the skeletal films.
SApp651, 652, 654, 659.
On September 16, Crystelle (accompanied by her grandmother and Jaymz)
met with an attorney and told him about Jaymz’s injury and the safety plan, saying
the Department “ma[de her] go through a bunch of hoops to try and get him back
. . . .” SApp528, 390-91. The attorney, who usually advises people in this situation
to “cooperate, cooperate, cooperate [because i]t usually speeds things along. . . .
Your job is to do what you are asked,” “likely” gave her this advice. SApp536-37.
He saw her for five or ten minutes and said he did not think he could do anything
but would make a call and try to move things along. SApp530, 391. He left a
message at the number she gave him, “rais[ing] hell,” asking why Jaymz had not
been released to Crystelle, and saying “call me as soon as you can or else.”
SApp528-30, 536.
On September 17, Foster and Foster-Stith discussed the case, noting that the
safety plan needed to be updated; Foster also said the Parents were “somewhat
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resistant” and had hired an attorney. SApp308-09, 657; Doc. 82-5 at 89-90. Foster
left a message for the attorney, and when they spoke later that day, she told him
Jaymz’s X-rays had been sent to a forensic physician to determine if there was
evidence of prior breaks and a history of abuse. SApp533-34. The attorney
informed Crystelle that things were progressing. SApp535.
That evening, Foster visited Jaymz at Crystelle’s grandparents’ home.
SApp310, 658. The grandmother signed a second safety plan, with similar terms,
and the Parents signed it the next day. SApp675-76; Doc. 85-2 at 105.
Also on September 18, Foster-Stith, Foster, and Joe Becerra, a manager,
discussed whether to terminate the safety plan. SApp353-56, 321, 661; Doc. 85-2 at
96-99. Based on the three physicians’ view that Jaymz’s injury was consistent with
an accident, and noting the Parents’ attorney’s view that a safety plan was no
longer needed, they decided the safety plan could be terminated. SApp661, 312;
Doc. 85-2 at 100-01. That same day, Joshua signed a statement, agreeing to end it.
SApp677.
About a month after talking to the first attorney, Crystelle met with another
attorney, from the office of one of Plaintiffs’ current co-counsel. SApp392.
The Subsequent Investigation
Meanwhile, the investigation continued until all the medical records were
received. Doc. 85-2 at 104. On October 20, Foster conducted a final safety
assessment. SApp666-67. On November 3, she recommended that the abuse report
be “unfounded,” which meant that no credible evidence of abuse existed (325 ILCS
5/7.12, 5/3 (2008)), and Foster-Stith agreed; Becerra agreed on November 7.
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SApp669, 671.
The District Court Proceedings
In April 2009, Plaintiffs filed a three-count, unsworn complaint against
Foster, Foster-Stith, Ruppe, and a fourth Department employee (Andrew Polovin),
alleging violations of their First and Fourteenth Amendment rights and seeking
compensatory and punitive damages. Doc. 1 (SApp21-35). They claimed that (1)
taking Jaymz into temporary protective custody violated his Fourth Amendment
rights and the Parents’ substantive due process rights; (2) holding Jaymz in
temporary protective custody for fewer than two days violated Plaintiffs’
substantive due process rights; (3) Foster violated the Parents’ substantive due
process rights by coercing their agreement to the safety plan; and (4) Defendants
violated Plaintiffs’ procedural due process rights by not providing a hearing for
taking Jaymz into temporary protective custody or for offering the safety plan. Id.
Defendants moved to dismiss the complaint for failure to state a claim or,
alternatively, on qualified immunity grounds. Docs. 22, 23 (SApp38-56). Plaintiffs
responded (Doc.30 (SApp57-71)), and Defendants replied (Doc. 34 (SApp72-77)).
The district court granted the motion in part, dismissing Jaymz’s Fourth
Amendment claim as to Polovin for lack of personal involvement, and it denied the
rest of the motion without prejudice, noting the complaint’s “insufficient factual
detail” on the merits and that ”there are simply not enough facts to determine
whether qualified immunity applies.” Doc. 36 (SApp78-95). The parties later
stipulated to the dismissal of all claims against Polovin. Doc. 74 (SApp175-77).
Defendants answer the complaint. Docs. 43, 45, 47 (SApp96-174).
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Defendants moved for summary judgment. Docs. 75, 77 (SApp178-215), 82,
87. Plaintiffs responded, including a Statement of Additional Facts (Docs. 92, 93,
93-1, 93-2, 93-3 (SApp232-542)), and Defendants replied (Docs. 97, 99 (SApp543-
747)).
The district court granted Defendants’ motion and entered judgment against
Plaintiffs. Docs. 102 (App1-19), 101. The court rejected Jaymz’s Fourth
Amendment claim, on the ground that his seizure was reasonable based on the
information available to Defendants at the time, i.e., both the Doctor and the Nurse
found the Parents’ story of a fall from the crib inconsistent with their statements
that Jaymz could not walk or climb, the bruise over his eye was unexplained, and
there were inconsistencies in the Parents’ statements about who was home at the
relevant time. Doc. 102 at 10-11 (App10-11). Alternatively, Defendants were
entitled to qualified immunity because Plaintiffs failed to meet their burden of
showing that reasonable child welfare workers would agree that taking him into
protective custody was unconstitutional under these circumstances. Id. 11-12
(App11-12).
The district court also rejected Plaintiffs’ substantive due process claims. Id.
at 13-17 (App13-17). It found that (1) the Fourth Amendment, not the guarantee of
substantive due process, governed Jaymz’s initial removal; and (2) Plaintiffs failed
to meet their burden of showing that the Parents’ clearly established rights were
violated by placing him with his great-grandparents for fewer than 48 hours under
the circumstances known to Defendants at the time. Id. As for the Parents’
coercion claim, even if Foster told the Parents they could not see Jaymz if they did
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not sign it, Plaintiffs failed to show that Foster’s statements could reasonably be
construed as coercion in the context of the safety plan’s express language about its
voluntary nature and the consequences of noncompliance, and, in any event, they
failed to show that Defendants were not entitled to qualified immunity. Id.
Similarly, the district court rejected Plaintiffs’ procedural due process claims.
Id. at 17-20 (App17-20). It found that (1) Plaintiffs failed to show that, under the
circumstances, a court order was required to take Jaymz into temporary protective
custody; (2) the safety plan itself informed the Parents of the available procedures if
they chose not to participate; (3) the Parents failed to show that Defendants had a
constitutional obligation to provide them with more options or information,
especially given the limited extent of the safety plan’s intrusion into their familial
rights; and (4) the Parents requested no hearing. Id.
A Rule 58 judgment was entered the same day. Doc. 103 (App20).
Plaintiffs filed a timely notice of appeal. Doc. 106.
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SUMMARY OF ARGUMENT
Plaintiffs’ Statement of Facts and related sections in their Argument should
be stricken for their egregious non-compliance with Circuit Rule 28.
On the merits, the judgment should be affirmed in its entirety. Taking
Jaymz into temporary protective custody was eminently “reasonable” for Fourth
and Fourteenth Amendment purposes, given the facts Defendants knew: his age
and grave injury, two medical professionals’ suspicions of abuse, his unexplained
other bruising, the Parents’ inconsistent statements (and perhaps lies), and their
rejection of any safety plan. Plaintiffs have no separate substantive due process
claim for the under-48-hour custody period, but even if they did, neither the two
new, conflicting medical opinions nor the State’s Attorney’s decision not to file a
petition for wardship rendered continued custody “unreasonable.” The Parents’
substantive due process “coercion” claim also fails, for reasonable people would have
believed they were free to reject the safety plan under the circumstances, especially
its explicit wording about its voluntary nature and the lapse of protective custody
later that day. As for Plaintiffs’ procedural due process claims, Illinois law provided
all the process that was due, both for presenting the safety plan (even if agreement
had been coerced) and for taking Jaymz into temporary protective custody.
Alternatively, as to all these claims, Plaintiffs failed to demonstrate any
“clearly established” violation of the Fourth or Fourteenth Amendment. As this
Court has cautioned, the balance between a State’s compelling interest in protecting
children from abuse and family members’ liberty interest in familial relationships
usually “is nebulous at best,” so the law “rarely — if ever — [is] clearly established.”
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ARGUMENT
I. Plaintiffs’ Statement of Facts and Related Argument Should BeStricken for Non-Compliance With Circuit Rule 28(c).
Circuit Rule 28(c) mandates that a Statement of Facts be a “fair summary
without argument or comment. No fact shall be stated in this part of the brief
unless it is supported by a reference to the page or pages of the record or the
appendix where that fact appears.” Plaintiffs’ Statement of Facts violates this rule.
Plaintiffs’ Statement of Facts is rife with argument and comment. See, e.g.,
AT Brf. at 6 (the Department “never secured any information in support of a claim
of abuse above or beyond” the hotline information), 8 “[t]he principal reported
reason for a concern of possible abuse . . . dissipated as soon as Foster saw Jaymz
for herself”), 13 (“quid pro quo”), 14 (“minimal further investigative steps”).
Moreover, Plaintiffs rarely refer to “where that fact appears” in the record
evidence. Instead, they cite the complaint (Doc. 1 (SApp21-37)) and Defendants’
answers (SApp78-174)) – all of which are unsworn and thus (like hearsay) cannot be
considered on summary judgment (Collins v. Seeman, 462 F.3d 757, 760 n.1 (7th
Cir. 2006)) – as well as their response to Defendants’ Rule 56.1 statement (Doc. 93
at 1-21 (SApp232-253), Plaintiffs’ own Rule 56.1 statement (id. at 22-28 (SApp253-
59)), Defendants’ response thereto (Doc. 99 at 1-9 (SApp555-63)), and even the
district court’s decision (Doc. 102 (App1-19)), rather than evidence. Sometimes
Plaintiffs cite an entire page of those statements (see, e.g., AT Brf. at 13 (citing
SApp258)), and still other times they cite nothing at all (see, e.g., id. at 6, 8, 10, 13).
Lastly, Plaintiffs’ Statement of Facts omits significant facts unfavorable to
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them, so it is not a “fair summary.” For example, their quote from the safety plan
(AT Brf. at 13) omits its explicit language that agreement was “voluntary”
(SApp674). Among other omissions, they do not mention that the Parents had no
questions about the safety plan (Doc. 87-3 at 13), that Crystelle “didn’t really care”
about Foster’s explanation of its terms (Doc. 87-4 at 26), which included its
voluntariness, and that Joshua signed it without reading it (SApp507-08).
Accordingly, Plaintiffs’ Statement of Facts and related argument should be
stricken. See Casna v. City of Loves Park, 574 F.3d 420, 424 (7th Cir. 2009)
(striking “fact” section and all portions of argument that relied on unsupported
facts, and noting that to cite Rule 56.1 statements rather than evidence violates
Circuit Rule 28).
II. Summary Judgment Against Plaintiffs Should Be Affirmed in ItsEntirety.
A. Defendants Are Entitled to Summary Judgment Whenever theAdmissible Evidence Creates No Genuine, Material FactualDispute and They Are Entitled to Judgment as a Matter of Law.
Under the version of Rule 56 effective before December 1, 2010, summary
judgment was warranted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Factual disputes are
“genuine” only if the evidence is sufficient for a reasonable jury to return a verdict
for the nonmovant. Gunville v. Walker, 583 F.3d 979, 987 (7th Cir. 2009).
Similarly, factual disputes are “material” only if they “‘might affect the outcome of
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the suit under the governing law.’” Hoffman-Dombrowski v. Arlington Int’l
Racecourse, Inc., 254 F.3d 644, 650 (7th Cir. 2001) (quoting Liberty Lobby, 477 U.S.
at 248). And “the non-moving party is entitled to have only reasonable inferences
drawn in its favor.” SMS Demag Aktiengesellschaft v. Material Sciences Corp., 565
F.3d 365, 369 (7th Cir. 2009) (emphasis in original).
Summary judgment orders are reviewed de novo. Id. at 368. This Court may
affirm the judgment on any ground supported by the record, regardless of the
district court’s rationale. Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir.
2004).
B. Plaintiffs’ Burden On Qualified Immunity Is A Heavy One.
Even if Plaintiffs could show that genuine disputes about material facts bar
summary judgment on the merits (and they cannot), an official is entitled to
qualified immunity so long as there could be a reasonable, albeit mistaken, belief
about the legality of his conduct. Saucier v. Katz, 533 U.S. 194, 205-06 (2001).
Qualified immunity “applies regardless of whether the government official’s error is
a mistake of law, a mistake of fact, or a mistake based on mixed questions of law
and fact.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (internal quotation
marks omitted). The right asserted must have been “clearly established,” which
turns on the “objective legal reasonableness of the action” under contemporaneous
legal rules. Wilson v. Layne, 526 U.S. 603, 614 (1999) (internal quotation marks
omitted). A right is “clearly established” if the relevant right was sufficiently clear
in light of pre-existing law to have given “fair warning” that the conduct was
unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). To give “fair
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warning,” the right must have been defined at the appropriate level of specificity
given the context, not as a broad general proposition. Brousseau v. Haugen, 543
U.S. 194, 198 (2004).
Thus, “preexisting law must dictate, that is, truly compel, the conclusion for
every like-situated, reasonable government agent that what [he] is doing violates
federal law in the circumstances.” Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1019-
20 (7th Cir. 1997) (emphasis in original) (internal quotation marks and citations
omitted); Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008) (holding that if officers
of reasonable competence could disagree, immunity should be recognized). As the
Supreme Court has noted, “if officers of reasonable competence could disagree on
th[e issue of constitutionality], immunity should be recognized.” Malley v. Briggs,
475 U.S. 335, 341 (1986). Thus, when “fine line-drawing” is required due to “quirky
facts,” officials are entitled to qualified immunity. Chaklos v. Stevens, 560 F.3d
705, 708, 711 (7th Cir. 2009).
Application of these two sets of principles to the record here demonstrates
that judgment against Plaintiffs should be affirmed in its entirety, either on the
merits or on qualified immunity grounds.
C. Defendants Were Entitled to Judgment on Jaymz’s FourthAmendment Claim.
1. Plaintiffs Failed to Show That a Reasonable Jury CouldFind That Any Defendant Violated Jaymz’s FourthAmendment Rights.
The Fourth Amendment prohibits only “unreasonable” seizures (U.S. Const.
amend. IV), a standard that is not capable of precise definition or mechanical
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application and thus depends on the facts and circumstances of each case (Graham
v. Connor, 490 U.S. 386, 396 (1989)). For example, taking a child into protective
custody based on allegations of abuse is “reasonable” if (among other grounds)
“probable cause” exists to believe the child would be subject to abuse absent
removal. Brokaw v. Mercer County, 235 F.3d 1000, 1010 (7th Cir. 2000). Brokaw
held that taking two children into protective custody was “unreasonable” due to the
“unique” circumstances there: with no investigation, they were grabbed from their
home at night, by two men who refused to identify themselves, “in order to destroy
the family, based simply on the family’s religious beliefs.” Id. at 1017.
Recently, this Court explained that “probable cause just means a good reason
to act . . .; it does not mean certainty, or even more likely than not, that a crime has
been committed or a medical emergency is ongoing.” Hanson v. Dane County, Wis.,
608 F.3d 335, 338 (7th Cir. 2010) (holding that unanswered callback to interrupted
911 call provided probable cause to enter home, despite other benign possibilities);
see also Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2639 (2009)
(stating that “[p]robable cause exists where the facts and circumstances within [an
officer’s] knowledge and of which [he] had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed”) (internal quotation marks omitted,
alterations in original). Moreover, the Fourth Amendment contain no “least-
restrictive-alternative rule,” and a suspect’s obviously false statements, especially
coupled with lack of cooperation, support (rather than negate) the need for further
investigation. Hanson, 608 F.3d at 338.
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Here, Foster-Stith and Ruppe made the decision to take Jaymz into
temporary protective custody, and they alone had the authority to do so. Doc. 87-2
at 15-16; Doc. 82-5 at 55. Plaintiffs offer no authority for the notion that Foster,
who lacked that authority (SApp285) may be held liable for merely executing that
decision.
Moreover, although Plaintiffs insist repeatedly that Defendants “never had
more than a Hotline call,” which alone was insufficient for taking temporary
protective custody of Jaymz (see, e.g., AT Brf. at 26, 28), that call’s information had
been augmented by facts learned from Foster’s visit to Plaintiffs’ home and Foster-
Stith’s multiple telephone interviews with the Nurse and the Doctor. This
information, from identified and reliable sources, included the following:
(1) Jaymz’s serious injury;
(2) the Nurse and the Doctor suspected abuse because (a) the Parents did notknow how the injury occurred, (b) their statements — Jaymz could not climb andthere was nothing in his crib to climb on — were inconsistent with his injury, and(c) they gave conflicting stories about who was at home at the relevant time;
(3) Jaymz had additional bruising the Parents could not explain;
(4) during her home visit, Foster discovered that the Parents had lied aboutJaymz’s ability to climb and the contents of his crib, whose mattress Crystelle had lowered; and
(5) the Parents refused to consider a safety plan.
This was “some definite and articulable evidence giving rise to a reasonable
suspicion that [he] ha[d] been abused” (Brokaw, 235 F.3d at 1019), so it provided
“good reason” to believe that Jaymz had been abused and thus to take him into
temporary protective custody to prevent further abuse. To take Jaymz into
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temporary protective custody was “reasonable” under these circumstances.
Plaintiffs counter that three other facts the district court did not mention
that negated probable cause. They find significant that the Doctor herself did not
take temporary custody of Jaymz (AT Brf. at 25), yet they ignore that the
Department, which the Doctor understood would investigate her suspicions, advised
her to send him home (SApp377-81). Plaintiffs also stress that Foster-Stith learned
Jaymz’s injury was a “buckle” fracture (AT Brf. at 25; see SApp629), yet they point
to no evidence that she appreciated the meaning of this information, and the
evidence is to the contrary (Doc. 82-5 at 42). Plaintiffs’ third fact — Jaymz could
walk and climb, which Foster told Foster-Stith (AT Brf. at 25) — does not “refute
the doctor’s and nurse’s statements that Jaymz could neither walk nor talk” (id.).
Rather, it cuts against Plaintiffs, for these statement were made by the Parents,
and the Doctor and the Nurse merely relayed them. SApp705-06, 636. Moreover,
that Jaymz could walk and climb indicated that the Parents’ contrary statements to
the Doctor and the Nurse, which they do not deny making, were lies. This created
yet more cause for concern about abuse, not ”no cause,” as Plaintiffs argue (AT Brf.
at 26).
Significantly, moreover, Plaintiffs identify no evidence that Ruppe ever
learned Jaymz could climb. Likewise, their complaint that Foster-Stith
misrepresented a fact to Ruppe by telling him that the Parents had “no
explanation” for Jaymz’s injury (AT Brf. at 29 n.4; see SApp344-45) helps Ruppe. It
is uncontested that Crystelle told the Nurse she did not know how the injury
occurred (SApp705-06), which is little different from having “no explanation” for it.
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Ruppe cannot be held liable for making his decision without knowing these facts.
Plaintiffs raise several other points, none of which has merit, for there is no
dispute about what facts were known to each Defendant at the relevant time. For
example, Plaintiffs point out that Foster and Foster-Stith subjectively believed
there was insufficient evidence to take protective custody of Jaymz before Foster’s
home visit and that Foster told Foster-Stith “everything looks fine.” AT Brf. at 25-
26. But Jaymz was taken into protective custody after, not before, Foster’s visit,
which revealed additional information (the Parents’ apparent lies and their refusal
to enter a safety plan). And in any event, Plaintiffs’ own authority held that
“probable cause” is an objective standard of reasonableness. Scott v. United States,
436 U.S. 128, 137-38 (1978). Thus, any subjective beliefs were irrelevant.
Plaintiffs’ authorities on this point are unhelpful. Scott merely observed that
motives may bear on credibility concerning the information available to an officer
(id. at 139 n.13), whereas Plaintiffs identify no dispute about which facts were
available to each Defendant when Jaymz was taken into temporary protective
custody. Similarly, United States v. Messino, 871 F.Supp. 1035, 1039 (N.D. Ill.
1995), a “plain view” case, observed that this Court “has noted with less than
enthusiasm the possibility of such a subjective inquiry,” reserving it for “close cases”
in which “‘[t]he officer’s subjective reasons, or ‘motive’, for stopping the defendant
are relevant, if at all, only in establishing what facts the officer actually had
knowledge of at the time of the arrest’” (quoting United States v. Hope, 906 F.2d
254, 258 (7th Cir. 1990) (emphasis in Messino)). Indeed, this Court recently held
that the subjective reason for an arrest does not matter, so long as probable cause
-27-
exists, even for an entirely unrelated reason. Jackson v. Parker, ___ F.3d ___, ___,
2010 WL 4909459, *5 (7th Cir. 2010); see also Devenpeck v. Alford, 543 U.S. 146,
153-56 (2004).
Lastly, Plaintiffs rely on BeVier v. Hucal, 806 F.2d 123 (7th Cir. 1986), for
the proposition that a telephone call to the Nurse and Doctor, telling them that
Jaymz could climb, “might have cleared up” the inconsistency. AT Brf. at 27-28. As
explained above, however, Jaymz’s ability to climb created additional concerns, for
it indicated the Parents had lied. And BeVier is easily distinguished anyway: the
arrest of parents whose sunburnt, filthy, and listless children were sitting in the
sun on a hot day without having questioned anyone but the babysitter, was
“unreasonable” because “[r]easonable avenues of investigation must be pursued
especially when, as here, it is unclear whether a crime [of intent] had even taken
place.” 806 F.2d at 128. BeVier does not stand for the proposition that officials are
obliged to make every effort to ferret out exculpatory evidence before taking a child
into temporary protective custody. In fact, according to one of Plaintiffs’ own
authorities, “once police officers have discovered sufficient facts to establish
probable cause, they have no constitutional obligation to conduct any further
investigation in the hopes of uncovering potentially exculpatory evidence.” Garcia
v. City of Chicago, 24 F.3d 966, 970 (7th Cir. 1994) (internal quotation marks
omitted). Even if an investigation could be more thorough, “there is a gap, often a
wide one, between the wise and the [constitutionally] compulsory.” Gramenos v.
Jewel Companies, Inc., 797 F.2d 432, 441-42 (7th Cir. 1986) (observing that
“‘probable cause’ is not always the same thing as ‘reasonable’ conduct by the
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police”).
In sum, the district court correctly concluded that taking Jaymz into
temporary protective custody was “reasonable” under the facts any Defendant knew
late in the afternoon on September 8.
2. Alternatively, Plaintiffs Failed to Show That AnyDefendant Is Not Entitled to Qualified Immunity.
Even if taking Jaymz into protective custody was not “reasonable,”
Defendants were entitled to qualified immunity, as the district court concluded.
App11-12.
Plaintiffs rely on just three cases, stressing that the district court found them
sufficient to deny Defendants’ motion to dismiss. AT Brf. at 29-33 (citing SApp89-
90). But as the district court explained, “at the pleading stage, there [we]re simply
not enough facts to determine whether qualified immunity applie[d].” SApp90.
Discovery revealed additional facts that prevented these cases from providing “fair
warning,” with sufficient particularity, that any Defendant’s conduct was
“unreasonable.” Indeed, as Brokaw held, “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.” 235 F.3d at 1023.
Only one of Plaintiffs’ three authorities concerned a removal (Brokaw), and it
“is limited to the unique circumstances of th[at] case”: the plaintiff alleged he had
been removed from his home at night by unidentified officials simply to destroy his
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family due to their religious beliefs. 235 F.3d at 1017. And Doe v. Heck, 327 F.3d
492, 509-515 (7th Cir. 2003), merely held that interviewing a private grammar
school student about allegations of spanking by school staff was a “seizure” that was
“unreasonable” because it was conducted over two months after the initial report,
the principal objected and parents were not notified, and it was based on an
assumption parents were aware of the school’s disciplinary policy. Similarly,
Michael C. v. Gresbach, 526 F.3d 1008, 1014-16 (7th Cir. 2008), held only that
visual observation of private school students, under their clothing, while
investigating allegations of abuse was a “search” and that it was “unreasonable” to
construe the principal’s consent to interview the children as consent to examine
their bodies. None of these three cases gave any warning that taking Jaymz into
temporary protective custody and placing him with Crystelle’s grandparents, where
her step-mother was allowed to stay with him, is “unreasonable” when (1) two
medical professionals who examined Jaymz suspected abuse because the Parents’
statements did not correspond to the injury; (2) the Parents give conflicting stories
about who was in the home; (3) they could not explain other, older bruising; (4) they
appeared to have lied to the medical professionals about Jaymz’s ability to climb
and the presence of objects in the crib; and (5) they rejected any safety plan.
Plainly, Plaintiffs failed to meet their burden of demonstrating that any
Defendant, especially Ruppe and Foster, violated a clearly established Fourth
Amendment right.
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D. Defendants Were Entitled to Judgment on the Substantive DueProcess Claims.
The Parents argue that Defendants were not entitled to summary judgment
on their substantive due process claims that (1) Defendants took Jaymz into
protective custody without probable cause; (2) Defendants kept Jaymz in custody
after any probable cause “dissipated”; and (3) Foster coerced the Parents’ agreement
to the safety plan. AT Brf. at 33-44. Alternatively, they contend, no Defendant is
entitled to qualified immunity on these claims. Id. Plaintiffs are wrong.
1. Only Conduct that “Shocks the Conscience” Violates theGuarantee of Substantive Due Process.
The Fourteenth Amendment (U.S. Const. amend. XIV), which forbids
deprivations of protected interests without due process, has a substantive
component that protects against government interference with fundamental rights,
regardless of procedural fairness (County of Sacramento v. Lewis, 523 U.S. 833,
845-46 (1998)). It thus protects individuals from “the exercise of power without any
reasonable justification in the service of a legitimate governmental objective.” Id. at
845-46 (emphasis added, internal citations, quotation marks, and parentheticals
omitted). As Lewis stressed, “only the most egregious official conduct” is actionable
when the government performs in its executive (as opposed to legislative) capacity,
that is, “only when [the conduct] can properly be characterized as arbitrary, or
conscience shocking, in the constitutional sense,” though what is “conscience
shocking” varies with the context. Id. at 847; see, e.g., Palka v. Shelton, 623 F.3d
447, 453 (7th Cir. 2010) (upholding dismissal of substantive due process claim
concerning investigation that, although it subverted department rules, was not
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“conscience-shocking”). Thus, such claims require “an exact analysis of [the]
circumstances before any abuse of power is condemned as conscience shocking.”
Lewis, 523 U.S. at 850.
For substantive due process claims, mere negligence is not actionable, for
liability may be found “only at the ends of the tort law’s spectrum of culpability.”
Id. at 848-52 & n.12. And “a much higher standard of fault than deliberate
indifference has to be show” when balancing competing obligations or evaluating a
decision made in haste, under pressure, and without the luxury of a second chance.
Id. at 852-53 (internal quotation marks omitted). Thus, taking protective custody of
a child is actionable only if grossly negligent or arbitrary because, although officials
need not make split-second decisions, they do not have “the luxury of proceeding in
a deliberate fashion.” Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (3d Cir.
1999); see also Darryl H. v. Coler, 801 F.2d 893, 902 (7th Cir. 1986) (observing that
“time can be an important factor, especially if the child is still in a situation where
repetition of the alleged abuse is a possibility”).
As shown below, Plaintiffs failed to show that any Defendant’s conduct was
“conscience-shocking” under the circumstances or that any substantive due process
right Plaintiffs assert was “clearly established.”
2. Plaintiffs Presented No Evidence From Which aReasonable Jury Could Find That Any Defendant“Shocked the Conscience” by Taking Jaymz IntoTemporary Protective Custody, and Plaintiffs Failed toDefeat Qualified Immunity.
The Fourteenth Amendment’s substantive component protects the Parents’
rights to the companionship of their child and to make decisions about his custody,
All three Plaintiffs raised this claim (SApp34), but the district court3
properly found that Jaymz’s claim about being taken into protective custody fellunder the Fourth Amendment, not the Fourteenth (App14). But as Plaintiffs’ briefindicates, only Jaymz can assert that Fourth Amendment claim, so the districtcourt should have entertained the Parents’ mirror substantive due process claim. AT Brf. 33-34.
Although Plaintiffs apply the Fourth Amendment’s objective4
reasonableness standard, Lewis held that mere negligence is not actionable forsubstantive due process claims (523 U.S. at 848-52 & n.12) and Miller indicatesthat only “gross negligence or arbitrariness” is actionable for removals (174 F.3d at375-76). Because Plaintiffs cannot meet the lesser Fourth Amendment’s standard,they surely cannot not meet the Fourteenth Amendment’s greater one.
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care, and control. Troxel v. Granville, 530 U.S. 57, 65-66 (2000). These rights,3
however, are subject to the State’s “wide range of power for limiting parental
freedom and authority in things affecting the child’s welfare . . . .” Prince v.
Massachusetts, 321 U.S. 158, 167 (1944). This includes the State’s interest in
protecting children from abuse, especially from their parents, an interest that is
“unquestionably compelling” (Heck, 327 F.3d at 525) and “extraordinarily weighty”
(Darryl H., 801 F.2d at 902). This state interest allows removing children from the
home when there is “some definite and articulable evidence giving rise to a
reasonable suspicion that a child has been abused . . . .” Brokaw, 235 F.3d at 1019.
Plaintiffs seem to concede that if Defendants were entitled to summary
judgment on Jaymz’s Fourth Amendment claim, Defendants were entitled to
summary judgment on the Parent’s related claim, because the Fourth Amendment’s
“reasonableness” standard applies. AT Brf. at 34. Accordingly, for the same4
reasons that Defendants are entitled to judgment on Jaymz’s Fourth Amendment
claim (on the merits or on qualified immunity, as explained above), they also are
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entitled to judgment on the Parents’ mirror claim (on the merits or on qualified
immunity grounds): the facts each Defendant knew at the time gave them probable
cause to believe that Jaymz had been abused by the Parents or, alternatively,
Plaintiffs show no violation of a “clearly established” right. Indeed, as in Lossman
v. Pekarske, 707 F.2d 288, 292 (7th Cir. 1983), it would have been imprudent and
irresponsible not to have taken Jaymz into temporary protective custody under the
circumstances here.
3. Plaintiffs Presented No Evidence From Which a Reasonable Jury Could Find That Any Defendant “Shocked the Conscience” by Keeping Jaymz in Temporary Protective Custody for Fewer Than 48 Hours Under the Circumstances Here, and Plaintiffs Failed to Defeat Qualified Immunity.
Plaintiffs contend that they have a substantive due process claim concerning
the duration of Jaymz’s temporary protective custody, on which factual disputes
barred summary judgment for Defendants. AT Brf. at 34-38. Not so.
Plaintiffs first contend that the district court should not have granted
Defendants summary judgment on this claim because they did not address it in
their summary judgment motion. AT Brf. at 34-35, 36. But Defendants’ motion
sought judgment for the entire period of protective custody, not just for taking
Jaymz into custody. See, e.g., SApp182, 192. And although Defendants analyzed
this claim under the Fourth Amendment (id.), Plaintiffs apply the same
reasonableness standard (AT Brf. at 34), so it is not surprising that the district
court overlooked any forfeiture.
On the merits, Plaintiffs fare no better. In Gerstein v. Pugh, 420 U.S. 103
-34-
(1975), the Court held that a warrantless arrest (but with probable cause) and
consequent detention do not violate the Fourth Amendment so long as a “prompt”
judicial hearing is held to establish probable cause for further detention, and it
later held that a hearing conducted no more than 48 hours after arrest generally
satisfies Gerstein, though officials may prove that “practical realities” justify a later
hearing. County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Gerstein
and McLaughlin, which Plaintiffs ignore, establish that a warrantless arrest and
consequent detention generally form a single “seizure,” not two separate ones.
Indeed, two of Plaintiffs’ own authorities agree: (1) Garcia explicitly states that
“the seizure of a person ends after the Gerstein hearing” (24 F.3d at 971 n.6),
indicating that the seizure includes the entire pre-hearing detention; and (2)
Brokaw held that the child plaintiff could bring a substantive due process challenge
to a four-month foster care placement, in addition to his Fourth Amendment claim,
but only because the placement was the result of a hearing (235 F.3d at 1017-18 &
n.14). Plaintiffs offer no authority for the notion that Jaymz’s Fourth, and the
Parents’ Fourteenth, Amendment claims is limited to his removal and that they can
bring separate “duration of custody” claims.
Even if Plaintiffs could do so, the result would be the same. Jaymz was
taken into temporary custody at approximately 4:50 p.m. on September 8 and
remained in it (at his great-grandparents’ home, in accordance with Crystelle’s
request) until shortly after 10:00 a.m. on September 10, when the safety plan was
signed. SApp346, 420. Just as the seizure of Jaymz was “reasonable,” so too was
his 41-hour detention under Gerstein and McLaughlin and Brokaw (325 F.3d at
-35-
1010), which allow an initial detention of at least 48 hours if a warrantless seizure
was based on probable cause. At the very least, these opinions would entitle
Defendants to qualified immunity for such a claim.
Plaintiffs insist, however, that they can assert this as separate claim because
probable cause “evaporated” on September 9, citing (1) the orthopedist’s statement
to Foster that Jaymz’s injury “didn’t look like any abuse or neglect” and was
“consistent with the history of child falling from crib” (SApp640); (2) the “normal”
skeletal exam, which indicated “no clinical or radiographic signs of abuse” to the
examining physician and the radiologist (SApp443-46); and (3) the State’s
Attorney’s view that there was “not enough to file a petition” for adjudication of
wardship at that time (SApp643-44). AT Brf. at 35-36. These additional facts are
not disputed, of course, but as a matter of law, they cannot be said to have negated
the reasonableness of Jaymz’s removal.
For example, Plaintiffs point to nothing in the record indicating that the
orthopedist, the physician who performed the skeletal exam, the radiologist, or even
the State’s Attorney knew all the other facts Defendants knew: the unexplained
other bruising, the inconsistencies between the Parents’ statements and Jaymz’s
injury (which even the skeletal exam physician testified would be a “red flag” for
her (SApp446)) and about who was home at the relevant time, the Parents’
apparent lies about Jaymz’s ability to climb and what was in the crib, the Parents’
refusal of any safety plan, and so on. At most, this additional medical information
created a conflict with the existing medical evidence, and Foster ordered an expert
opinion to resolve that conflict. SApp727. And the Assistant State’s Attorney, who
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was not even aware that Jaymz had been taken into custody, testified that “the door
isn’t shut” about filing a petition at any particular time in an investigation, for the
decision is an “evolving” one. SApp460, 469-71; Doc. 87-7 at 5-6.
Lastly, although Plaintiffs find significant that Foster told Crystelle on
September 9 that temporary protective custody had already lapsed (AT Brf. at 36),
that “fact” was incorrect as a matter of law: temporary protective custody does not
lapse until 48 hours after removal, under McLaughlin’s 48-hour guideline and
Illinois law (705 ILCS 405/2-9 (2008)). Indeed, Foster-Stith and Rappe did not
decide to allow it to lapse until September 10, about two hours before Foster
presented the safety plan. SApp351, 646. In sum, no reasonable jury could find,
based on this additional information, that probable cause “evaporated” on
September 9 and thus that any Defendant violated the guarantee of substantive
due process by keeping Jaymz in temporary protective custody until around 10:00
a.m. on September 10.
Plaintiffs cite a single authority for the proposition that Defendants were not
entitled to judgment, on the merits or on qualified immunity grounds. AT Brf. at 36
(citing Miller v. Amer. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000)).
But Miller is an employment discrimination case, and the page Plaintiffs cite
concerns only the general summary judgment standard. They identify no genuine,
material factual dispute barring summary judgment (or qualified immunity) on this
claim. There is none.
Plaintiffs then cite three cases, arguing that they “clearly establish” the right
at issue. AT Brf. at 37-38. But none of them gave “fair warning” to officials in
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Defendants’ shoes that to keep Jaymz in temporary protective custody until the
morning of September 10 under the circumstances here was unconstitutional.
For example, Brokaw held only that the defendant officials were not entitled
to dismissal of any of the child plaintiff’s Fourth and Fourteenth Amendment
claims, including his months-long post-hearing detention, for the “unique”
allegations there stated such claims and, at the pleading stage, the court did “not
know enough facts to determine where along the continuum this case falls” because
“it is impossible to know which clearly established rules of law to consult unless you
know what is going on.” 235 F.3d at 1022-23. To thwart summary judgment on
this claim, Plaintiffs were obliged to present evidence from which a reasonable jury
could find that “what was going on” during protective custody of Jaymz violated
clearly established rights, and they did not.
Similarly, Sivard v. Pulaski County, 959 F.2d 662 (7th Cir. 1992), held only
that summary judgment was unwarranted on a Fourth Amendment claim based on
a 17-day unexplained delay for a Gerstein hearing and that certain unknowns
barred summary judgment on the plaintiff’s other claim concerning a nearly eight-
week delay for an extradition hearing. Id. at 666-69, 665-66. But it was “the sheer
length of Sivard’s preindictment detention” that allowed a jury to infer that the
defendant officials there knew it was unlawful (Tibbs v. City of Chicago, 469 F.3d
661, 665 (7th Cir. 2006)), and temporary protective custody of Jaymz lasted about
40 hours, not 17 days. Plaintiffs then misquote from Garcia (AT Brf. at 37) in a way
that is both wrong and misleading: Judge Cudahy stated that continued detention
“should” violate due process “when the sole basis for detention has evaporated,” but
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that quote appears in the dissenting portion of his partial concurrence and dissent.
24 F.3d at 975 (Cudahy, J., concurring in part and dissenting in part) (emphasis in
original). And anyway, there was more than one basis for keeping Jaymz in
custody, which did not “evaporate” on September 9.
In sum, Plaintiffs failed to show that any Defendant violated the guarantee
of substantive due process by keeping Jaymz in protective custody for about 40
hours under the circumstances, much less that any Defendant violated “clearly
established” law by doing so.
4. Plaintiffs Failed to Present Evidence From Which aReasonable Jury Could Find That Foster “Shocked theConscience” by “Coercing” The Parents’ Agreement tothe Initial Safety Plan, and Plaintiffs Failed to DefeatHer Qualified Immunity.
The district court ordered summary judgment against the Parents on their
claim that Foster unconstitutionally coerced their agreement to the initial safety
plan, reasoning that Foster’s statement — they could not see Jaymz if they did not
sign it — could not be reasonably construed as threats or coercion in light of the
safety plan’s explicit language concerning its voluntary nature and the possible
consequences of non-agreement. App15. Alternatively, the court found, Plaintiffs
failed to show that Foster violated a “clearly established” right. App15-17. The
district court was right.
As this Court has recognized, a safety plan itself “imposes no obligation on
anybody” and is “a sensible, perhaps indeed an unavoidable, partial solution to the
agonizingly difficult problem of balancing the right of parents to the custody and
control of their children with the children’s right to be protected against abuse and
-39-
neglect.” Dupuy v. Samuels, 465 F.3d 757, 761, 763 (7th Cir. 2006) (Dupuy I).
Even when the offer of a safety plan is accompanied by threats to remove a child
unless a parent agrees, Dupuy I held, “the decision to agree to a safety plan is
optional with the parents,” who may “thumb their nose[s] at the offer” if they
believe they will prevail at the temporary custody hearing (assuming one is held),
and if they do so, the Department can do nothing but proceed with the investigation
(unless it seeks and prevails at such hearing). Id. at 761.
Dupuy I explained that presenting this hard choice to a parent is not itself
unconstitutional coercion, which occurs only if agreement is obtained by illegal
means, such as misrepresentations or a threatened action the Department has no
legal right to take, e.g., a threat of removal without any objective evidentiary basis.
Id. at 762-63. And even absent that evidentiary basis, Dupuy I held, to offer a
safety plan is not unconstitutional duress, for parents have an effective legal
remedy, i.e., the temporary custody hearing that must occur within 48 hours of any
removal. Id. at 762. Dupuy I also found significant every safety plan’s explicit
language “inform[ing] the parents of the possibility that the child will be removed
— information that is in the nature of a truism,” for an ongoing investigation may
reveal new evidence justifying removal. Id. at 762-63 (emphasis in original).
Dupuy I’s reasoning — that to require a choice between two undesirable
options does not, standing alone, render the choice unconstitutionally involuntary
— is not limited to safety plans. For example, in Wilkie v. Robbins, 551 U.S. 537,
557-58 (2007), a property owner claimed that the government tried to force him into
agreeing to an easement (by, among other things, bringing criminal charges against
-40-
him), but this “hard bargaining” was merely “legitimate tactics designed to improve
the Government’s negotiating position,” for it had the authority to take these
actions (and had benefits to offer in exchange). See also id. at 562 (cautioned that
creating judicial standard to distinguish illegitimate pressure from legitimate hard
bargaining “would be endlessly knotty to work out”). More recently, Palka v.
Shelton, 623 F.3d 447, 453 (7th Cir. 2010), held that to require an employee to
choose between resigning and risking an unfavorable outcome from a disciplinary
hearing did not make his resignation involuntary. See also United States v. Miller,
450 F.3d 270, 272-73 (7th Cir. 2006) (holding that confession was not unlawfully
coerced, given lack of evidence that threat inaccurately stated what would have
occurred otherwise or that offered alternative was unconstitutional.
Yet another case Plaintiffs ignore is Terry v. Richardson, 346 F.3d 781 (7th
Cir. 2003), which is closely analogous. There, a jury found that an investigator
violated a noncustodial father’s substantive due process rights by telling him to
forgo visitation with his daughter during an investigation into allegations that he
sexually abused her, but this Court reversed, concluding that no reasonable person
would have left unquestioned the investigator’s authority to do so. Id. at 785-86.
These cases, especially Dupuy I and Terry, control here. Even assuming
Foster told the Parents they could not see Jaymz unless they signed the safety plan,
that he was in the custody of his great-grandmother, and that Crystelle had no
parental rights (AT Brf. at 39), these facts were true at that time, for the 48-hour
period of temporary custody had not yet lapsed. Moreover, it is undisputed that the
plan itself explicitly instructed the Parents that their agreement was voluntary
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(SApp674), Foster explained it was voluntary (Doc. 87-3 at 119), and Foster had
informed Crystelle the day before that the 48-hour temporary protective custody
was being allowed to lapse and there would be no hearing (SApp298-99).
Nevertheless, Joshua admits that he did not bother to read the plan (SApp507-08),
Crystelle “didn’t really care” about its terms (Doc. 87-4 at 26, 29), and neither of
them asked a single question before signing it (Doc. 87-3 at 119), e.g., whether
custody of Jaymz would revert to them automatically at the end of the 48-hour
custody period. Under these circumstances, reasonable people would feel free to
refuse and instead would follow the roadmap given in Terry and Dupuy I: question
Foster’s authority to limit contact with Jaymz going forward, knowing that
temporary protective custody would lapse in just a few hours and no hearing for
further custody would be conducted, and then “thumb their noses” at her and refuse
to sign.
Plaintiffs disagree. AT Brf. at 38-44. Their first error is that they argue
repeatedly for holding “defendants” liable on this claim (see, e.g., id. at 38, 42), yet
they point to no evidence that anyone but Foster was personally involved in the
“threats.” Next, they contend that a genuine issue of material fact exists about
whether the Parents’ agreement was coerced, apparently because they testified that
they subjectively felt coerced. Id. at 38-41. But whether coercion occurred is an
objective inquiry: whether a reasonable person would have felt free to refuse under
the circumstances. Florida v. Bostick, 501 U.S. 429, 435-38 (1991). Here, there is
no dispute about the circumstances surrounding presentation of the safety plan,
under which no reasonable person would have signed it or left Foster’s authority
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unquestioned.
The Parents also argue that the Investigator had “no legal authority” to say
they could not see Jaymz unless they signed the safety plan, once again citing
Foster’s knowledge of the conflicting medical evidence, of Jaymz’s ability to climb
(which indicated that the Parents had lied), and the State’s Attorney’s decision not
to file a petition for adjudication of wardship. AT Brf. at 38-39. Plaintiffs also cite
the Supervisor’s and the Administrator’s September 10 decision to allow custody to
lapse. Id. at 39. But as explained above, probable cause had not “evaporated” when
Foster presented the safety plan. Moreover, the 48-hour period of temporary
custody did not lapse as a matter of Illinois (or Fourth Amendment) law until about
4:50 that afternoon, and Jaymz could be held for up to 48 hours after being taken
into custody, under Gerstein, McLaughlin, Brokaw, and Illinois law. Thus, Foster
did have a legal right that morning to tell the Parents that, to see Jaymz at that
time, they had to sign the safety plan.
Next, Plaintiffs argue that the district court impermissibly resolved a factual
dispute about coercion and “disregard[ed]” or “ignored” Crystelle’s “unrefuted
testimony” that Foster said they could not see Jaymz unless they signed the safety
plan. AT Brf. at 39-40. In fact, the district court quoted that statement before
concluding, as a matter of law (versus fact), that it could not accept Plaintiffs’
unreasonable inference of coercion from that statement. App15 (citing Shank v.
William R. Hague, Inc., 192 F.3d 675, 683 (7th Cir. 1999)). Defendants do not
dispute (for purposes of summary judgment) Plaintiffs’ version of what Foster said,
so Plaintiffs can identify no factual dispute about coercion.
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Plaintiffs also contend that the district court “failed to recognize the
inherently coercive nature of threats concerning the custody of a parent’s children.”
AT Brf. at 40. But Dupuy I flatly rejected this argument, holding that threatening
to enforce legal rights is not itself “coercion,” which occurs only when the threats
are misrepresentations or involve other unlawful means. 465 F.3d at 762; see also
Dupuy v. McEwen, 495 F.3d 807, 808 (7th Cir. 2007) (Dupuy II). Other courts are
in accord. See, e.g., Smith v. Williams-Ash, 520 F.3d 596, 599-601 (6th Cir. 2008)
(affirming summary judgment for investigator who threatened to remove children
permanently if parents stopped cooperating in safety plan); United States v.
Patayan Soriano, 361 F.3d 494, 501-03 (9th Cir. 2003) (holding that mother’s
consent to search of hotel room was voluntary despite threats to take children if she
refused, given that (among other things) she was informed of her right to refuse).
The Parents then string-cite several cases in which a statement was or could
be construed as involuntary under the circumstances, each of which is factually
inapposite. AT Brf. at 40-41. In Vaughn v. Ruoff, 253 F.3d 1124, 1128-29 (8th Cir.
2001), a procedural due process case, a reasonable inference of coercion could be
drawn from the extreme circumstances: defendant social worker’s comments to a
“mildly retarded” mother, whose newborn had just been taken into custody, that her
children would not be returned unless she agreed to sterilization. In Sornberger v.
City of Knoxville, Ill., 434 F.3d 1006, 1023 (7th Cir. 2006), this Court denied
summary judgment due to factual disputes about whether and when the defendants
threatened to take children unless the plaintiff confessed. Here, no such factual
disputes exist.
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Sornberger string-cited the Parents’ other string-cites: Lynumn v. Illinois,
372 U.S. 528, 534 (1963) (holding that woman suspected of selling marijuana was
coerced by being told that unless she “cooperate[d],” she would be sent to jail for ten
years and state aid would be cut off for her small children, who would be placed in
foster care, all while encircled in her apartment by three police officers (who did not
have probable cause to arrest her) and the twice-convicted felon who had “set her
up”); Rogers v. Richmond, 365 U.S. 534, 544 (1961) (holding that whether confession
was admissible depended on whether officials’ conduct — i.e., threat to arrest wife
and children — overbore will to resist); Spano v. New York, 360 U.S. 315, 323
(1959) (holding that will was overborne by official pressure, fatigue, and sympathy
falsely aroused by childhood friend, after indictment, to confess). These
circumstances have no bearing here.
The Parents also rely on Heck (327 F.3d 492), which they say involves less
coercive circumstances than here, and Croft v. Westmoreland County Children &
Youth Servs., 103 F.3d 1123 (3d Cir. 1997), but their reliance is misplaced. As
Dupuy I explained, the defendants in Heck did not suspect the parents of abuse, so
they had no legal right to threaten removal of their child unless their attorney
called within 24 hours and arranged an interview with the child. 465 F.3d at 763.
Similarly inapposite is the “ultimatum” to the father in Croft — leave the home or
the child would be placed in foster care — which was based solely on “a six-fold
hearsay report by an anonymous informant” and thus could not support a
reasonable suspicion of abuse by the father. 103 F.3d at 1126. Here, by contrast,
the existing evidence — conflicting medical evidence, the Parents’ apparent lies, the
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other unexplained bruising, the Parents’ conflicting statements about who was
home and who put Jaymz in the crib — gave rise to a reasonable suspicion of abuse
that existed the morning of September 10. And it was not reasonable for the
Parents to sign the safety plan without reading it and without questioning Foster’s
authority, knowing that temporary custody would end within a few hours and no
hearing would be held.
The Parents also contest the district court’s conclusion that they failed to
show that Foster was not entitled to qualified immunity, contending that in light of
Dupuy I, a reasonable investigator would have known that a safety plan “was not
voluntary where it was obtained through duress, extortion, or other wrongful
means.” AT Brf. at 41-44. As Brousseau teaches, however, that broad general
proposition was not enough to give “fair warning.” 543 U.S. at 199. The Parents’
burden was to show that pre-existing law compelled the conclusion, for every
reasonable official in Foster’s shoes, that it “shocked the conscience” to tell the
Parents they could not see Jaymz, who still was in protective custody, if they did
not sign the safety plan (Khuans, 123 F.3d at 1019-20) and that officers of
reasonable competence would not disagree (Purtell, 527 F.3d at 621). The Parents
failed to satisfy this burden.
The Parents’ only authorities on qualified immunity are Dupuy I and an
unreported district court case, which post-dates the conduct at issue here by two
years. AT Brf. at 41-44 (citing Evans v. Richardson, 2010 WL 1194272 (N.D. Ill.
March 19, 2010)). As a district court case, Evans cannot “clearly establish” the law
for qualified immunity purposes. Boyd v. Owen, 481 F.3d 520, 527 (7th Cir. 2007).
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Evans also is easily distinguished: according to the allegations there, which the
court had to accept as true, the child was removed a week after her injury, based
solely on a hotline report of possible abuse (that all medical evidence, including the
examining physician, contradicted), so there was no probable cause to remove her,
but the parents nevertheless were told she would remain in custody (at an
undisclosed location) unless they agreed to a safety plan. 2010 WL 1194272 at *3.
As for Dupuy I, it did not “clearly inform[ Foster] that [her] conduct here was
illegal.” AT Brf. at 42-43. On the contrary, the very quotes the Parents use
undermine their argument: Dupuy I indicates that it is not unconstitutional to
offer a safety plan when, as here, there was still probable cause to suspect abuse,
Jaymz was still in protective custody, and the Parents had an effective legal remedy
against any threat of continued custody — a hearing within 48 hours of removal
(465 F.3d at 762) — but they present no evidence that Foster made such a threat.
Parents complain that the district court had found Dupuy I sufficient to
thwart qualified immunity at the pleading stage (AT Brf. at 43), but (as in Evans)
the only facts available then were the allegations in Plaintiffs’ one-sided complaint,
so (as in Brokaw) it simply was not possible then to know if qualified immunity
would be available. What discovery provided was additional facts about the
circumstances, which Plaintiffs’ complaint had omitted and which are dispositive
against them. As this Court has recognized, “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
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rarely — if ever — be clearly established.” Brokaw, 235 F.3d at 1023. Accordingly,
Foster is entitled to qualified immunity because the facts of this case place it at
least “in the center of the continuum where the two interests [in protecting children
and in family relationships] overlap . . . .” Id.
In sum, the safety plan explicitly stated that agreement was voluntary, and
no reasonable person would have left Foster’s authority unquestioned or would have
felt obliged to sign it under the circumstances here, when temporary custody was
about to end and no hearing would be held. Alternatively, not all reasonable
investigators would have agreed Foster’s conduct was unconstitutional.
E. Defendants Were Entitled to Judgment on Plaintiffs’Procedural Due Process Claims.
Plaintiffs alleged that their procedural due process rights were violated in
several ways — (1) lack of a hearing before (or after) Jaymz was removed; (2) lack of
a hearing before (or after) the safety plan was offered; (3) lack of notice about ways
to challenge the safety plan’s restrictions; and (4) lack of accurate information
regarding the investigation or their legal rights and remedies (SApp35-36) — but
their brief appears to address only the first two and thus forfeits the others. United
States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007). Without addressing the merits
of these claims, the district court correctly concluded that Plaintiffs failed to
demonstrate that Defendants violated any clearly established procedural right.
App17-19. Plaintiffs also failed to present evidence of a procedural due process
violation in the first place.
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1. Procedural Unfairness Is Actionable Only If the ExistingProcedural Safeguards Shock the Universal Sense ofJustice.
The Fourteenth Amendment’s procedural component requires that the
government provide “fundamental procedural fairness.” Lewis, 523 U.S. at 845-46.
Thus, a procedural due process claim is cognizable when the procedural safeguards
are so deficient that they “are shocking to the universal sense of justice.” Id. at 848-
50 (internal quotation marks omitted). How much “process” is “due” depends on the
nature of the private interests affected, the risk of erroneous deprivation coupled
with the probable value of additional procedural safeguards, and the importance of
the government’s interest, including the burden of adding more safeguards.
Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976). Plaintiffs failed to present
evidence of a procedural due process violation and, alternatively, of a “clearly
established” one.
2. Plaintiffs Failed to Present Evidence from Which aReasonable Jury Could Find That Any DefendantDeprived Plaintiffs of Their Liberty Interest in FamilialRelations Without the Process That Was Due, andPlaintiffs Failed to Defeat Qualified Immunity.
Plaintiffs contend due process required a pre-custody hearing (absent only
exigent circumstances), for which Brokaw provided fair warning. AT Brf. at 44.
But their bright-line rule ignores that the Fourteenth Amendment is a flexible
concept, which requires only that a hearing be held “at a meaningful time.”
Mathews, 424 U.S. at 333. It also overstates Brokaw, which held only that a pre-
deprivation hearing or exigent circumstances were required for removal because
(unlike here) removal was based on knowingly false statements and no
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investigation. 235 F.3d at 1021. And they do not mention that after Brokaw, this
Court held in Jensen v. Foley, 295 F.3d 745, 747 (7th Cir. 2002), that a hearing held
within two business days after removal is sufficient if there existed either exigent
circumstances or probable cause to believe a child would be subject to the danger of
abuse. They also ignore Lossman’s warning that “[w]hen a child’s safety is
threatened, that is justification enough for action first and hearing afterward.” 707
F.2d at 291.
Under the circumstances here, a pre-custody hearing was not required, for
(as explained above) the facts known to each Defendant on the afternoon of
September 8 (and again assuming that Foster may be held liable for just effecting
custody, for which Plaintiffs provide no authority) created probable cause to believe
that Jaymz had been abused and was in danger of further abuse. At the very least,
Defendants are entitled to qualified immunity, for Lossman and Jensen indicate
that no pre-custody hearing was required under the circumstances here and thus
provided no “fair warning” that these circumstances required such a hearing.
Judgment against Plaintiffs on this claim was warranted for yet another
reason. Lossman teaches that, in addition to demonstrating a hearing was
required, a plaintiff must establish injury, by “show[ing], with some degree of
probability, that such a hearing would have prevented the deprivation of which he
complains.” 707 F.2d at 291. Although Plaintiffs summarily state that a hearing
before or on the afternoon of September 8 “might have” prevented removal, and also
complain about the lack of a post-custody hearing (AT Brf. at 45 & n.7), they do not
(and cannot) point to any evidence from which a reasonable jury could conclude that
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such a hearing had any probability of preventing (or, later, reversing) the decision
to take Jaymz into temporary protective custody, given that probable cause existed
for removal even when the safety plan was offered on September 10, as explained
above.
Furthermore, although Plaintiffs appear to believe that each Defendant had
an individual constitutional obligation to provide a hearing, all of their quoted
authorities impose this burden on “the State” (see AT Brf. at 47), and Illinois
already provided plenty of process. In addition to the hearing within 48 hours of
removal, if Jaymz had remained in custody that long (705 ILCS 405/2-9 (2008)),
Plaintiffs could have filed an action for immediate declaratory or injunctive relief in
state court or a post-deprivation civil suit for damages. Indeed, Crystelle’s step-
mother started calling attorneys even before Jaymz was taken into custody. Doc.
87-3 at 6. Given all these existing procedural safeguards under Illinois law for an
erroneous custody decision, Mathews imposed no constitutional obligation on any
Defendant to provide yet another.
In sum, Plaintiffs failed to create a question of fact on the merits of this
claim, and even if they had, they failed to show that Defendants were not entitled to
qualified immunity under the circumstances.
3. Plaintiffs Failed to Present Evidence from Which aReasonable Jury Could Find That Any DefendantDeprived Them of Their Liberty Interest in FamilialRelations Without the Process That Was Due for theSafety Plan, and Plaintiffs Failed to Defeat QualifiedImmunity.
Plaintiffs’ only other procedural due process claim on appeal concerns the
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safety plan. AT Brf. at 46-48. As they admit (AT Brf. at 46), no hearing is required
for a voluntary safety plan, which is not a “deprivation” for Fourteenth Amendment
purposes. Dupuy I, 465 F.3d at 761-62. They again assert that voluntariness
cannot be determined as a matter of law, but they again identify no factual dispute
about coercion. AT Brf. at 46. Thus, the relevant question is one of law: would a
reasonable person have felt free to refuse the safety plan under the (undisputed)
facts here. Bostick, 501 U.S. at 435-38. Because the answer is yes, no hearing was
needed.
Plaintiffs contend that if their agreement was involuntary, their procedural
due process rights necessarily were violated as well, which they say Dupuy I held.
AT Brf. at 46. But Dupuy I found no deprivation, so it did not reach that second
step in the analysis; rather, it merely observed that “hearings are required for
deprivations ordered over objection” (465 F.3d at 761-62), without giving an
advisory opinion about what type of hearing would be required, or when.
In any event, that issue was resolved in Terry, which held that the father
was not entitled to a hearing before being ordered not to have contact with his child
and that Illinois law provided sufficient post-deprivation procedural avenues (listed
above) for guarding against any erroneous interference with his parental rights.
346 F.3d at 787. Terry held that the father could have refused to comply, which in
turn would have forced officials to initiate judicial proceedings to keep him away
(id.), which eviscerates the Parents’ speculation about “legal limbo” and successive
removals (AT Brf. at 47-48). Terry indicates that Plaintiffs had no constitutional
right to a pre-safety plan hearing, and Illinois law provided sufficient post-safety
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plan procedural safeguards. At the very least, Terry prevented Plaintiffs from
showing a clearly established right to additional process for the safety plan.
Plaintiffs insist they were entitled to a forum for complaints, and even a
neutral determination, about the safety plan, citing only Duchesne v. Sugarman,
566 F.2d 817 (2d Cir. 1977). AT Brf. at 47. But Duchesne held only that while
“extraordinary” circumstances had justified removal of children without a prior
hearing or consent, based solely the State’s “unilateral and untested evaluation of
the mother’s fitness as a parent,” habeas proceedings were constitutionally
inadequate for the subsequent 36-month separation under Mathews because “the
State” was obliged to initiate judicial review. 566 F.2d 827-28 & n.24 (analogizing
to Gerstein). Duchesne is completely inapposite under the circumstances here.
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CONCLUSION
For the reasons stated above, Defendants-Appellees respectfully request that
this Court affirm the judgment in its entirety.
December 17, 2010
Respectfully submitted,
LISA MADIGANAttorney General of Illinois
MICHAEL A. SCODROSolicitor General
100 West Randolph Street12th FloorChicago, IL 60601312/814-3312
Attorneys for Defendants-Appellees.
___________________________MARY E. WELSHAssistant Attorney General100 West Randolph Street12th FloorChicago, Illinois 60601312/814-2106
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION,TYPEFACE REQUIREMENTS, and TYPE STYLE REQUIREMENTS
The undersigned attorney hereby certifies that the attached brief complieswith
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________________________Mary E. Welsh
STATE OF ILLINOIS )) SS.
COUNTY OF COOK )
PROOF OF SERVICE
The undersigned being first duly sworn upon oath, deposes and states that
two (2) copies of the attached Brief of Defendants-Appellees (and, by agreement, an
electronic copy of same was e-mailed) were served upon each of the below-named
parties by depositing such copies, in the United States mail at 100 West Randolph
Street, Chicago, Illinois, in an envelope bearing sufficient postage, on December 17,
2010, by 5 p.m.
Julie A. BauerChaitnya MaddaliJoanna C. WadeE. Jason BurkeMichael BessWINSTON & STRAWN LLP35 W. Wacker DriveChicago, IL 60601
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SUBSCRIBED and SWORN to before methis 17th day of December, 2010.
___________________________________NOTARY PUBLIC