Griffin v. Poynter

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

SHEILA GRIFFIN, as Independent )

Administrator of the Estate of R.R., )

)

Plaintiff, )

)

v. ) Case No. 20-cv-1427-JES-JEH

)

MARY ANN POYNTER, et al., )

)

Defendants. )

ORDER AND OPINION

This matter is now before the Court on Defendants’ Motion (Doc. 26) to Dismiss,

Memorandum in Support (Doc. 27), and Plaintiff’s Response (Doc. 29). For the reasons set forth

below, Defendants’ Motion (Doc. 26) is denied.

BACKGROUND

The following facts are taken from Plaintiff’s Amended Complaint (Doc. 3), which the

Court accepts as true for the purposes of a motion to dismiss. Bible v. United Student Aid Funds,

Inc., 799 F.3d 633, 639 (7th Cir. 2015). Plaintiff, the appointed administrator of the estate of

R.R.,1 brought this action against multiple employees at the Illinois Department of Children and

Family Services (DCFS). Defendant Richard Roundtree was the father of R.R. Defendant

Cynthia Clay was Richard Roundtree’s girlfriend. Together, they resided with R.R. in McLean

County, Illinois. An Entry of Default was entered against Defendants Roundtree and Clay on

1 Pursuant to Fed. R. Civ. P. 5.2(a) and CDIL L.R. 5.11, the Court refers to the deceased minor by her initials, R.R.

For the sake of clarity, the Court disregards the distinction between the deceased minor and her estate, and

references both Griffin and R.R. as Plaintiff throughout this Opinion.

March 10, 2021; they are currently in custody and they have not participated in this litigation.2

See March 10, 2021 Text Order.

Summary of the Amended Complaint

On January 26, 2019, at the age of 9 years, R.R. was pronounced dead. She was abused

and tortured for years prior by both Roundtree and Clay before Clay took R.R.’s life. This

litigation was commenced by R.R.’s estate against individuals employed by DCFS who were

involved with investigating reports of abuse in the months and years prior to R.R.’s death.

Plaintiff brings multiple claims. In Count 1, she alleges the DCFS Defendants violated

her substantive due process rights under the 14th Amendment by falsifying reports of abuse,

concluding those reports were unfounded, and conducting sham investigations which

emboldened and encouraged Roundtree and Clay to continue abusing R.R. She further alleges

the DCFS Defendants committed tortious acts or treated R.R. differently from similarly situated

non-African American individuals because of her race. These are the claims which are the

subject of the instant Motion to Dismiss. See Doc. 26. The remaining claims in the Amended

Complaint include: In Counts 2 and 3, she alleges battery against Rountree as a survival action

(Count 2) and as a wrongful death claim (Count 3); Count 4 alleges assault against Roundtree;

Counts 5 and 6 sound in battery and wrongful death against Clay; and Count 7 alleges assault

against Clay.

R.R.’s Placement with Richard Roundtree

In September 2016, DCFS placed R.R. in the temporary custody of her father, Richard

Roundtree, who resided with Cynthia Clay. Clay had a history of child abuse before this time,

including a report from 2002 indicating Clay had inflicted cuts, welts, and bruises to a stepchild;

2 Also for the sake of clarity, the Court’s references to “Defendants” includes only the DCFS Defendants unless

otherwise noted.

reports in 2007 and 2012 alleging Clay inflicted cuts, welts, and bruises on a stepchild, a 2014

report alleging Clay neglected three of her biological children and two stepchildren so as to pose

a risk of harm to the children, and a 2016 report alleging Clay provided inadequate supervision

to two of her stepchildren.

Roundtree also had multiple interactions with DCFS prior to September 2016. In 2013,

he was reported to have tortured and provided inadequate supervision to a stepchild; in 2014 he

was reported to have subjected a stepchild to a risk of harm; in 2015 he was reported to have

subjected three stepchildren to a risk of harm by neglect; also in 2015, he was reported to have

subjected a stepchild to a risk of harm by neglect.

The September 2016 DCFS Investigation

On September 29, 2016, DCFS was contacted regarding an allegation of neglect of R.R.

and her brother arising out of an event resulting in the arrest of R.R.’s mother, Antionetta

Roundtree. Defendant Mary Ann Poynter, a Child Protection Specialist at DCFS, was assigned to

investigate the allegation of neglect, seek appropriate placement for R.R., and ensure that

Richard Roundtree was an appropriate custodial parent before placing R.R. in his custody.

Plaintiff alleges Poynter conducted a sham investigation, omitted information from her report,

and/or inserted false information in her report of her investigation. Plaintiff further alleges

Poynter knew or suspected R.R. was at risk for abuse while in the custody of Roundtree and Clay

and consciously ignored and failed to stop the abuse. Poynter conferred with her supervisor,

Defendant Ashley Deckert, who was a Public Service Administrator employed by DCFS. As a

Public Service Administrator, Defendant Deckert’s responsibilities included supervising and

reviewing Defendant Poynter’s work to ensure she had performed the investigation in

conformance with DCFS procedures, and to confirm the findings before R.R. was placed in the

custody of Richard Rountree. Plaintiff alleges Defendant Deckert knew or should have known

Defendant Poynter had conducted a sham investigation and/or falsified or omitted information

from her report, knew or suspected R.R. was at risk for abuse if placed in the custody of Richard

Roundtree and Cynthia Clay, and deliberately and with reckless indifference, approved,

authorized, directed, and/or otherwise condoned Poynter’s investigation.

The July 2017 DCFS Investigation

On July 24, 2017, R.R.’s mother contacted DCFS’s child abuse hotline and reported that

R.R. was being regularly whipped with a belt by Cynthia Clay. Defendant Johanna O’Brien, a

Child Protection Specialist employed by DCFS, was assigned to investigate the report. Plaintiff

makes allegations against Defendant O’Brien similar to those against Defendant Poynter: she

conducted a sham investigation, omitted information from her report, and/or inserted false

information in her report of her investigation. Plaintiff further alleges Poynter knew or suspected

R.R. was at risk for abuse while in the custody of Roundtree and Clay and consciously ignored

and failed to stop the abuse. On July 25, 2017, Defendant O’Brien categorized the hotline call as

unfounded, a characterization Plaintiff contends was false. O’Brien met and conferred with her

supervisor, Defendant Mark Delashmit, a DCFS Child Protection Supervisor, regarding her

findings before issuing a final investigative report and closing her investigation into the July

2017 hotline call.

Similar to Defendant Supervisor Deckert, Plaintiff alleges Delashmit’s responsibilities

included supervising and reviewing Defendant O’Brien’s work to ensure she had performed the

investigation in conformance with DCFS procedures, and to confirm the findings before a final

report and conclusion could be issued. Plaintiff alleges Delashmit conducted his own

investigation into the July 2017 hotline call and learned information that caused him to suspect

or know R.R. was at risk for abuse while in the custody of her father. As part of his investigation,

Plaintiff alleges Delashmit knew or should have known O’Brien had conducted a sham

investigation, and had included false information and/or omitted information from her report, and

yet with deliberate and reckless indifference and in disregard for his duties, he approved,

authorized, directed, or otherwise condoned the sham investigation and issuance of a final report

concluding the hotline call was unfounded. Plaintiff further alleges DCFS informed Rountree

and Clay of the investigation and the conclusion that the report was unfounded.

The April 2018 DCFS Investigation

On April 20, 2018, R.R.’s mother contacted the DCFS hotline to report observing R.R.

with multiple facial injuries, including a wound on the lip, bruises and swelling to one eye, a

gash over the other eye, and numerous scars over the neck. R.R.’s mother also reported that R.R.

was afraid of going home, and her belief that R.R. was being abused by Roundtree’s girlfriend.

Defendant Stafanie Moreau, a DCFS Child Protection Specialist, was assigned to investigate the

April 2018 hotline call. When Moreau arrived at R.R.’s school, she observed a scab over R.R.’s

eyebrow, a sore on her lip, and a broken tooth. Moreau interviewed Roundtree and Clay, who

provided conflicting stories regarding when and how R.R. sustained the injuries. Similar to the

allegations against Poynter and O’Brien, Plaintiff alleges Moreau conducted a sham

investigation, omitted information from her report, and/or inserted false information in her report

of her investigation. Plaintiff further alleges Moreau knew or suspected R.R. was at risk for

abuse while in the custody of Roundtree and Clay and consciously ignored and failed to stop the

abuse. On April 26, 2018, Plaintiff alleges Moreau falsely categorized the April 2018 hotline

allegations as unfounded. Pursuant to DCFS procedures, Defendant Moreau met and conferred

with her supervisor, Defendant and DCFS Child Protection Supervisor Mark Ohrwall.

Similar to Defendant Supervisors Delashmit and Deckert, Plaintiff alleges Defendant

Ohrwall’s responsibilities included supervising and reviewing Defendant Moreau’s work to

ensure she had performed the investigation in conformance with DCFS procedures, and to

confirm the findings before a final report and conclusion could be issued. On June 19, 2018,

Defendant Ohrwall knew or should have known Defendant Moreau had conducted a sham

investigation, and had included false information and/or omitted information from her report, and

yet with deliberate and reckless indifference and in disregard for his duties, he approved,

authorized, directed, or otherwise condoned the sham investigation and issuance of a final report

concluding the hotline call was unfounded. Plaintiff further alleges DCFS informed Rountree

and Clay of the investigation and the conclusion that the report was unfounded.

The December 2018 DCFS Investigation

On December 10, 2018, the nurse at R.R.’s school contacted the DCFS hotline to report

that R.R. came to school with visible cuts, bruises, welts, oral abrasions, and two black eyes at

various stages of healing after missing two days of school the week prior. Defendant Patricia

Shannon, a DCFS Child Protection Specialist, was assigned to investigate the December 2018

hotline call. The school nurse told Defendant Shannon that R.R. had other marks on her face not

consistent with an accidental trip, but rather evidence of child abuse. Shannon directed

Roundtree to take R.R. to the hospital so that an emergency doctor could opine on the cause of

the black eyes. Shannon later learned the doctor was unable to determine the cause of R.R.’s

injuries. Similar to the allegations against Poynter, O’Brien, and Moreau, Plaintiff alleges

Shannon conducted a sham investigation, omitted information from her report, and/or inserted

false information in her report of her investigation. Plaintiff further alleges Shannon knew or

suspected R.R. was at risk for abuse while in the custody of Roundtree and Clay and consciously

ignored and failed to stop the abuse. Further, Plaintiff alleges Shannon falsely categorized the

December 2018 hotline allegations as unfounded. Pursuant to DCFS procedures, Defendant

Shannon met and conferred with her supervisor, Defendant and DCFS Child Protection

Supervisor Daniel Norris.

Similar to Defendant Supervisors Delashmit, Deckert, and Ohrwall, Plaintiff alleges

Defendant Norris’s responsibilities included supervising and reviewing Defendant Shannon’s

work to ensure she had performed the investigation in conformance with DCFS procedures, and

to confirm the findings before a final report and conclusion could be issued. Plaintiff alleges

Defendant Norris knew or should have known Defendant Shannon had conducted a sham

investigation, omitted information from her report, and/or inserted false information in her report

of her investigation, and with deliberate and reckless indifference and in disregard for his duties,

approved, authorized, directed, and/or otherwise condoned Defendant Shannon’s conduct,

investigation, and issuance of a final report concluding the allegations of abuse were unfounded.

Once again, Roundtree and Clay were notified of the investigation and the conclusion that the

report was unfounded.

R.R.’s January 2019 Death

On January 26, 2019, R.R. was brought to OSF Saint Francis Medical Center. She was

unresponsive, presenting with a tense belly and a large bruise on her stomach area. Surgical

intervention was unsuccessful, and R.R. was pronounced dead in the early morning hours of

January 26, 2019. An autopsy was conducted wherein the coroner identified approximately 30

scars on R.R.’s back and torso, scars and abrasions to her face and neck, scarring on her upper

left thigh consistent with cigarette burns, and other bruising all over her body. The coroner

concluded R.R.’s cause of death was peritonitis due to a perforated ileum caused by blunt force

trauma to the abdomen. Roundtree was subsequently charged and pleaded guilty to endangering

the life of R.R. Clay was convicted by a jury for R.R.’s murder. Both are presently in the custody

of the Illinois Department of Corrections. R.R. is survived by her mother, Antionetta Roundtree,

and 4 siblings.

Allegations Related to DCFS

Although DCFS is not named as a defendant in this action, Plaintiff’s Amended

Complaint makes several allegations regarding DCFS. See Doc. 3 at 12–14. Specifically,

Plaintiff alleges DCFS has maintained a system that violates the 14th Amendment rights of

children, including the rights to life, liberty, pursuit of happiness and equal protection under the

laws, and particularly those rights of African American children like R.R., by the following

practices, policies, and customs:

(a) the failure to properly hire, train, supervise, discipline, transfer, monitor, counsel

and/or otherwise control DCFS investigators and supervisors who omit and/or

ignore evidence, falsify evidence, conduct sham investigations, and otherwise

create false investigative reports, wrongly categorizing reports of child abuse as

“Unfounded” despite knowledge and/or suspicion of abuse, and who treat African

American children differently than similarly situated non- African American

children;

(b) encouragement, incentives, and/or requirements that investigators and

supervisors set aside suspicion and/or knowledge of abuse, perform sham

investigations, include false information and/or omit information from

investigative reports, so to close cases quickly;

(c) the failure to properly investigate reports of abuse, to include false information

and/or omit information from investigative reports, and in particular concerning

African American children;

(d) a code of silence among DCFS Child Protection Specialists and Child Protection

Supervisors, amongst others, regarding sham investigations, falsified reports,

and/or disparate treatment of African American children within DCFS;

(e) the failure to properly discipline, monitor, counsel and otherwise control DCFS

investigators and supervisors who engage in sham investigations, omit and/or

falsify evidence in investigatory reports, and treat African American children

differently than similarly situated non- African American children who are subjects

of child abuse reports.

Doc. 3 at 12.

Further, Plaintiff’s Amended Complaint goes on to detail DCFS’s troubled history,

including summaries of findings by Illinois’ Office of Inspector General (OIG). Included in those

allegations are statistics from the OIG indicating that from July 1, 2018 to June 30, 2019, 123

children who had contact with DCFS died within 12 months. Of those 123 children, 47 of them

(or 38%) had cases in which DCFS deemed the report of abuse as unfounded. Similarly, in a

2019 report from OIG, it found 37 of the 98 children (37.8%) died within 12 months of contact

with DCFS in cases in which the report of abuse against the family member was deemed

unfounded. In the 2018 report, 33 of 108 child deaths (30.6%) occurred in cases where the report

of abuse against the family member had been deemed unfounded. Plaintiff goes on to detail

findings from the 2018 report which concluded systemic deficiencies within the DCFS system

contributed to fatal outcomes, largely due to dangerously high case loads creating incentives for

investigators to close cases. Lastly, Plaintiff references OIG’s 2019 report which acknowledged

that African American and Latino children experienced poorer outcomes than their White

counterparts in the Illinois child welfare system, and that such disparities were the result of

implicit racial bias and structural racism.

Substantive Due Process and Equal Protection

In Count 1 of her Amended Complaint, Plaintiff alleges the DCFS child protection

specialist and supervisor Defendants violated 42 U.S.C. § 1983 by way of the alleged conduct

described above. Doc. 3 at 14–16. Plaintiff alleges each DCFS Defendant emboldened and

encouraged R.R.’s abusers to punish, torture, and abuse R.R. to the point of death, ultimately

depriving R.R. of her constitutional right to life, liberty, property, and equal protection under the

law. Plaintiff alleges the DCFS investigators’ actions were intentional and done with knowledge

that R.R. was at risk of abuse from Roundtree and Clay. Plaintiff further alleges the DCFS

investigators treated R.R. differently than similarly situated non-African American children

because R.R. was African American.

Plaintiff alleges the DCFS supervisor Defendants knew of a pattern of misconduct by

DCFS child protection specialists and suspected or knew of a substantial risk that those DCFS

workers would violate the rights of R.R. and other children by deliberately, consciously, and/or

with reckless indifference, chose a course of action that allowed the abuses to continue, thereby

authorizing, approving, directing or otherwise condoning such violations. Plaintiff likewise

alleges the DCFS supervisor Defendants treated R.R. differently than similarly situated non-

African American children because R.R. was African American. Lastly, Plaintiff alleges

Defendants were the proximate and legal cause of her injuries, Defendants conspired together to

violate her constitutional rights, and that she and her next-of-kin suffered damages as a result.

LEGAL STANDARD

A motion to dismiss pursuant to Rule 12(b)(6) challenges whether a complaint

sufficiently states a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The

Court accepts well-pleaded allegations in a complaint as true and draws all permissible

inferences in favor of the plaintiff. See Bible, 799 F.3d at 639. To survive a motion to dismiss, the

complaint must describe the claim in sufficient detail to put defendants on notice as to the nature

of the claim and its bases, and it must plausibly suggest that the plaintiff has a right to relief. Bell

Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007). A complaint need not allege specific

facts, but it may not rest entirely on conclusory statements or empty recitations of the elements

of the cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations “must be

enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

However, “[a] claim must be plausible, but it need not supply the specifics required at the

summary-judgment stage.” Graham v. Bd. of Educ., 8 F.4th 625, 627 (7th Cir. 2021).

DISCUSSION

In their Memorandum in Support of their Motion to Dismiss, Defendants argue Plaintiff

has failed to state a claim under 42 U.S.C. § 1983 for a violation of her due process rights

because: (1) under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189

(1989), Plaintiff has failed to allege either a custodial relationship between the State and R.R.,

and (2) the state-created danger exception to DeShaney does not apply because (i) Plaintiff does

not allege Defendants created or increased a danger to R.R., (ii) Defendants’ investigations were

not the proximate cause of R.R.’s injuries, and (iii) Defendants’ conduct does not shock the

conscience. Doc. 27 at 4-12. Further, Defendants argue Plaintiff fails to allege an equal

protection claim based on race because she has failed to adequately allege personal involvement

of the named Defendants. Id. at 13-14. Penultimately, Defendants argue they are entitled to

qualified immunity. Id. at 14-15. Finally, Defendants claim the doctrine of respondeat superior

bars the claims against the supervisory DCFS Defendants. Id. at 15. Plaintiff has responded to

the arguments raised in Defendants’ Motion. See Doc. 29. This Order follows.

(1) DeShaney

Defendants’ principal argument relies on the Supreme Court’s decision in DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189 (1989). Doc. 27 at 4. Indeed,

the allegations in Plaintiff’s Amended Complaint are remarkably—and regrettably—similar to

the factual background in DeShaney. Chief Justice Rehnquist succinctly summarized the

underlying facts of DeShaney as follows:

Petitioner is a boy who was beaten and permanently injured by his father, with

whom he lived. Respondents are social workers and other local officials who

received complaints that petitioner was being abused by his father and had reason

to believe that this was the case, but nonetheless did not act to remove petitioner

from his father’s custody.

DeShaney, 489 U.S. at 191. At issue in DeShaney was “when, if ever, the failure of a state or

local governmental entity or its agents to provide an individual with adequate protective services

constitutes a violation of the individual’s due process rights[.]” Id. at 194. In answering that

question, the Supreme Court first noted the “Due Process Clauses generally confer no affirmative

right to governmental aid, even where such aid may be necessary to secure life, liberty, or

property interests of which the government itself may not deprive the individual.” Id. at 196

(citations omitted). However, “in certain limited circumstances the Constitution imposes upon

the State affirmative duties of care and protection with respect to particular individuals.” Id. at

198. First, “when the State takes a person into its custody and holds him there against his will,

the Constitution imposes upon it a corresponding duty to assume some responsibility for his

safety and general well-being.” Id. at 199–200 (citing Youngberg v. Romeo, 457 U.S. 307, 317

(1982)). This “affirmative duty to protect arises not from the State’s knowledge of the

individual’s predicament or from its expressions of intent to help him, but from the limitation

which it has imposed on his freedom to act on his own behalf.” Id. at 200. Thus, “[i]n the

substantive due process analysis, it is the State’s affirmative act of restraining the individual’s

freedom to act on his own behalf—through incarceration, institutionalization, or other similar

restraint of personal liberty—which is the ‘deprivation of liberty’ triggering the protections of the

Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by

other means.” Id.

Applying the above principles to the facts of DeShaney, the Supreme Court concluded:

The Estelle–Youngberg analysis simply has no applicability in the present case.

Petitioners concede that the harms Joshua suffered occurred not while he was in the

State’s custody, but while he was in the custody of his natural father, who was in

no sense a state actor. While the State may have been aware of the dangers that

Joshua faced in the free world, it played no part in their creation, nor did it do

anything to render him any more vulnerable to them. That the State once took

temporary custody of Joshua does not alter the analysis, for when it returned him

to his father’s custody, it placed him in no worse position than that in which he

would have been had it not acted at all; the State does not become the permanent

guarantor of an individual’s safety by having once offered him shelter. Under these

circumstances, the State had no constitutional duty to protect Joshua.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it

concededly played no part in creating, the State acquired a duty under state tort law

to provide him with adequate protection against that danger. But the claim here is

based on the Due Process Clause of the Fourteenth Amendment, which, as we have

said many times, does not transform every tort committed by a state actor into a

constitutional violation. A State may, through its courts and legislatures, impose

such affirmative duties of care and protection upon its agents as it wishes. But not

“all common-law duties owed by government actors were ... constitutionalized by

the Fourteenth Amendment.” Because, as explained above, the State had no

constitutional duty to protect Joshua against his father’s violence, its failure to do

so—though calamitous in hindsight—simply does not constitute a violation of the

Due Process Clause.

DeShaney, 489 U.S. at 201–02 (citations omitted). Thus, there are two exceptions to DeShaney’s

general rule: “(1) when the state has a ‘special relationship’ with the person such as ‘when it has

custody over a person, it must protect him because no alternate avenues of aid exist,’ and (2)

under the state-created danger exception, “liability exists when the state affirmatively places a

particular individual in a position of danger the individual would not otherwise have faced.” Doe

v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015) (citations omitted). Here, Plaintiff

argues her claims may proceed under the state-created danger exception to DeShaney, so the

Court will direct its focus to that exception. See Doc. 29 at 3.

(a) State-Created Danger

The state-created danger exception to DeShaney is narrow, and applies where the state

creates or increases a danger to an individual. Doe, 782 F.3d at 917 (citing Hernandez v. City of

Goshen, Ind., 324 F.3d 535, 538 (7th Cir. 2003); Sandage v. Bd. of Comm’rs, 548 F.3d 595, 598–

99 (7th Cir. 2008); Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012)). “When courts speak of

the state’s ‘increasing’ the danger of private violence, they mean the state did something that

turned a potential danger into an actual one, rather than that it just stood by and did nothing to

prevent private violence.” Id. (quoting Sandage, 548 F.3d at 600). The Seventh Circuit in Doe

then discussed prior cases where the state-created danger exception was at issue.

The “cases in which we have either found or suggested that liability attaches under

the ‘state-created danger’ exception are rare and often egregious.” Estate of Allen

v. City of Rockford, 349 F.3d 1015, 1022 (7th Cir. 2003). In White v. Rochford, 592

F.2d 381, 382 (7th Cir. 1979), for example, the police arrested a driver for drag

racing and left the children passengers stranded alone in the car on a busy highway

on a cold night. In Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993), we

concluded that police officers could be held liable under the state-created danger

exception where they arrested a sober driver and left behind an obviously drunk

passenger with the keys to the vehicle who later caused a collision, injuring the

plaintiffs. In Monfils, a police officer took responsibility for preventing release of a

tape recording of an informant’s anonymous tip but then went deer hunting instead

of taking standard steps to prevent the tape’s release despite knowing that the

release would place the informant in heightened danger, and the informant was

killed. Monfils, 165 F.3d at 520. And recently in Paine, the police arrested a woman

in a safe place and released her in a hazardous one while she was unable to protect

herself. 678 F.3d at 511. In each of these cases, the police encountered a potential

danger and turned it into an actual one. And in each of these cases, the plaintiff was

safe, or at least considerably safer, before the police acted than he or she was

thereafter.

In contrast, for example, in Windle v. City of Marion, 321 F.3d 658, 661–62 (7th

Cir. 2003), we held that a police officer’s failure to intervene to protect a student

despite knowledge that she was being sexually molested by a middle school teacher

did not increase the danger. For at least two months, police officers intercepted

telephone conversations between the student and teacher and learned that the

student was being molested by the teacher. Id. at 660. The officers had enough

information to conduct an investigation and intervene on the student’s behalf, but

they did nothing. Id. We held that the officers’ inaction did not create a danger, nor

did they do anything to make the danger to the student worse. Id. at 662. We

reasoned that “we ha[d] no way of knowing what would have occurred” had the

police actually done something, and that “the police might have failed at protecting

[the plaintiff].” Id. Had the police never been involved, the danger to the plaintiff

would have been the same or worse. Id. We noted that the plaintiff waived the

argument that, and we did not address whether, “a constitutional violation would

exist where one member of a law enforcement unit discouraged or prevented

another from protecting a victim.”

Doe, 782 F.3d at 917–18.

In Doe, the plaintiff was a minor female who was drinking vodka with three males. When

the apartment manager called police to report them, an officer responded to the scene where he

saw a very intoxicated Doe being held up by the males. The officer told the males to take Doe

home and let them leave the scene. He falsely reported to dispatch that the subjects were not

present when he arrived, and called off another officer. Doe was later sexually assaulted by one

of the males. Id. at 912. In finding the state-created danger did not apply to Doe’s case, the court

reasoned:

This case is not sufficiently similar to those cases in which we have applied the

state-created danger exception; it is more like Windle and cases in which the

exception was inapplicable. Del Boccio did not create the danger to Doe, nor did

he do anything to make the danger to her worse. When he left Doe with the three

young males, he left her just as he found her, “plac[ing] [her] in no worse position

than that in which [s]he would have been had [he] not acted at all.” DeShaney, 489

U.S. at 201, 109 S.Ct. 998. Not even the allegations that Del Boccio called off

Officer Spoerry (or falsely reported to dispatch that the subjects were gone) created

or increased the danger to Doe. Had Del Boccio had not called off Officer Spoerry

or falsely reported to dispatch, we have no way of knowing what would have

happened. Officer Spoerry might have failed at protecting Doe. See Windle, 321

F.3d at 662.

This contrasts with Ross v. United States, 910 F.2d 1422, 1424–25 (7th Cir. 1990),

where competent rescuers were on the scene with rescue equipment and ready to

begin their efforts to rescue a drowning boy when the police arrived and ordered

them to cease their efforts because county policy prohibited civilian rescue

attempts. A sheriff’s deputy advised the rescuers that he would arrest them upon

their entry into the water and even placed his boat so as to prevent their dive. Id. at

1425. About thirty minutes after the boy had fallen into the water, the authorized

divers arrived and pulled him out of the water. Id. He died the next day. Id. We held

that plaintiff sufficiently alleged a constitutional injury. Id. at 1433–34.

Significantly, in Ross the chances of a successful rescue were high, and there was

a direct connection between the deputy’s actions and the boy’s drowning. Here, we

can only speculate whether Del Boccio made Doe worse off, whether by calling off

Officer Spoerry or falsely reporting to dispatch.

This is not a case in which Doe was safe, or even considerably safer, before Del

Boccio acted. His alleged conduct did not turn a potential danger into an actual one;

Doe was in actual danger already. Therefore, Del Boccio had no constitutional duty

to protect her. But even if calling off Officer Spoerry violated Doe’s constitutional

rights, it was not clearly established and Del Boccio nonetheless would be entitled

to qualified immunity.

Doe, 782 F.3d at 918.

Against this backdrop, Defendants argue Plaintiff fails to state a claim under either

exception to DeShaney. First, it argues the State did not have a custodial relationship with R.R.

Doc. 27 at 7. Second, it argues the state-created danger exception does not apply because (i)

Plaintiff does not allege Defendants created or increased a danger to R.R., (ii) Defendants’

investigations were not the proximate cause of R.R.’s injuries, and (iii) Defendants’ conduct does

not shock the conscience. Doc. 27 at 4-12. In her Response, Plaintiff argues the Defendants did

play a part in the creation of the danger of abuse she faced and Defendants did render her more

vulnerable to that danger, and thus the state-created danger exception applies. Doc. 29 at 3.

In order to survive Defendants’ Motion to Dismiss, Plaintiff must allege three elements:

“(1) the government, by its affirmative acts, created or increased a danger to the plaintiff; (2) the

government’s failure to protect against the danger caused the plaintiff’s injury; and (3) the

conduct in question “shocks the conscience.” Est. of Her v. Hoeppner, 939 F.3d 872, 876 (7th

Cir. 2019), cert. denied, 140 S. Ct. 1121 (2020) (citing Flint v. City of Belvidere, 791 F.3d 764,

770 (7th Cir. 2015); King v. E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007); Slade

v. Bd. of Sch. Dirs. of Milwaukee, 702 F.3d 1027, 1033 (7th Cir. 2012). Here, Defendants discuss

case law in the circuit and argue this case is distinguishable from cases where the court found the

defendant changed a safe situation into a dangerous one, reasoning that in each of the other

cases, the plaintiff was safer before intervention by the police or state actor. Doc. 27 at 10. In her

Response, Plaintiff argues this case is not one where Defendants failed to act but rather one

where Defendants took active steps to falsify reports, falsely categorize allegations as unfounded,

and encouraged or emboldened Roundtree and Clay to continue the abuse. Doc. 29 at 6.

Although the allegations in Plaintiff’s Amended Complaint might lack sufficient

evidentiary support when considering the record at summary judgment, the Court must accept

the allegations in Plaintiff’s Amended Complaint as true for the purposes of deciding a motion to

dismiss. Bible v. United Student Aid Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). Under that

standard, Plaintiff has sufficiently alleged a procedural due process claim under the state-created

danger exception to DeShaney. First, Plaintiff has sufficiently alleged the DCFS Defendants’ acts

created or increased the risk of danger to R.R. These alleged acts included falsifying reports of

abuse, concluding those reports were unfounded, and conducting sham investigations which

emboldened and encouraged Roundtree and Clay to continue abusing R.R. See, e.g., Doc. 3 at 4–

6; Est. of Her, 939 F.3d at 876.

Second, Plaintiff has sufficiently alleged DCFS’s conduct increased risk of abuse and

caused R.R.’s death because Defendants emboldened and encouraged Roundtree and Clay to

continue the abuse by concluding the reports of abuse were unfounded and informing Clay and

Roundtree of those conclusions. Further, she alleges Roundtree and Clay’s access to children and

propensity toward child abuse were specific dangers known to Defendants. Est. of Her, 939 F.3d

at 876. Finally, accepting Plaintiff’s allegations as true, Plaintiff has sufficiently alleged conduct

which “shocks the conscience.” Id. at 876. Specifically, Plaintiff does not merely allege

Defendants acted negligently or carelessly, but rather alleges specific, deliberate conduct by each

Defendant indicating each Defendant knew of and deliberately chose a course of conduct

knowing it would result in harm or an increased risk of harm to R.R. See Doc. 29 at 8. In other

words, Plaintiff alleges the DCFS Defendants acted “with a mens rea akin to criminal

recklessness[.]” Est. of Her, 939 F.3d at 877. Whether Plaintiff can support these allegations with

sufficient evidence to survive summary judgment is a question left for another day. Defendant’s

Motion to Dismiss Plaintiff’s Amended Complaint is denied as is relates to Plaintiff’s substantive

due process claim.

(2) Equal Protection

Next, Defendants argue Plaintiff fails to state an equal protection claim based on race.

Doc. 27 at 13–15. In support of this argument, Defendant first posits that “the equal protection

clause should not be used as a means to avoid the DeShaney principle that there is no state

protection for acts carried out by a private actor.” Doc. 27 at 13 (citing Bond v. Atkinson, 728

F.3d 690, 691 (7th Cir. 2013)). But Defendants’ citation to Bond is puzzling—it says nothing

about prohibiting the use of equal protection claims when substantive due process claims would

be unavailing. Rather, the Court in Bond simply stated that “DeShaney observes that equal-

protection claims may succeed even when due-process theories fail” and thus “[a] state is not

obliged to protect residents from crime (that’s the holding of Castle Rock and DeShaney), but

when the state chooses to provide protective services it cannot protect men while failing to

protect women.” Bond, 728 F.3d at 691 (citations omitted). Here, Plaintiff has alleged

Defendants’ actions were caused, at least in part, because of R.R.’s race. Doc. 3 at 15.

Defendants also note that large portions of Plaintiff’s Amended Complaint focus on the

DCFS system in Illinois generally, and argue Plaintiff “failed to allege the personal involvement

of each Defendant.” Doc. 27 at 13. Defendants go on to argue Plaintiff has not plausibly alleged

intentional discrimination by Defendants because she “does not allege any conduct which

indicates that each individual Defendant’s actions violated Plaintiff’s equal protections rights or

that their actions were motivated by race.” Id. at 14. Plaintiff responds by referencing her

allegations of discriminatory motive and intent for each of the individual Defendants. In

addition, Plaintiff points to the policies, practices, and customs of DCFS including findings by

OIG of disparate treatment and DCFS’s public acknowledgement that minority children

experienced poorer outcomes than their White counterparts. Doc. 29 at 9.

The Court believes Plaintiff has sufficiently alleged an equal protection claim in her

Amended Complaint. Again, Plaintiff alleges specific, deliberate conduct by each Defendant

indicating each Defendant knew of and deliberately chose a course of conduct knowing it would

result in harm or an increased risk of harm to R.R. She then alleges Defendants did so, at least in

part, because of R.R.’s race. The allegations related to DCFS generally provide context to those

allegations and suggest Plaintiff will pursue a theory that the DCFS Defendants, faced with an

impossibly high case load, chose to protect non-minority children over or before protecting

minority children such as R.R. Thus, while Illinois might not have a duty to protect children

from abuse, when it chooses to provide protective services to children it cannot discriminate

based on race, sex, or religion when deciding whether a child is deserving of its protection. See

Bond, 728 F.3d at 691 (“A state is not obliged to protect residents from crime, but when the state

chooses to provide protective services it cannot protect men while failing to protect women. The

state must provide equal protection of the laws, without discriminating on account of race, sex,

religion, or other criteria the Constitution places off limits.”) (cleaned up). Accordingly, the

Court finds Plaintiff has sufficiently alleged an equal protection claim and denies this portion of

Defendants’ Motion to Dismiss.

(3) Qualified Immunity

Next, Defendants argue they are entitled to qualified immunity because they did not

violate Plaintiff’s clearly established constitutional rights. Doc. 27 at 14. “Qualified immunity

shields a government official from liability for damages when the official’s conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Doe, 782 F.3d at 915. Plaintiff has not identified any case factually similar to this

one that would have provided a reasonable DCFS employee with notice that he or she had a

constitutional duty to protect R.R. under the facts alleged in the Amended Complaint. See Doc.

29 at 10–12. However, Plaintiff argues no reasonable person in Defendants’ shoes, as DCFS

child protection specialists and supervisors, would think the law allowed them to falsify reports,

omit information, condone deliberate misconduct, label the allegations of abuse against R.R. as

unfounded despite their knowledge or suspicion of actual abuse, and to do these acts because

R.R. was African American. Doc. 29 at 11.

Accepting Plaintiff’s allegations as true and viewing them in the light most favorable to

her, she has alleged Defendants intentionally created or increased the danger of abuse to R.R. by

falsifying reports, condoning other DCFS workers’ misconduct, and falsely labeling the

allegations of abuse against R.R. as unfounded despite their knowledge to the contrary, and by

telling R.R.’s custodians of their findings, rendering R.R. more vulnerable to abuse. Assuming

Plaintiff is able to substantiate her claims over the course of discovery, the right to be free from

state-created dangers is sufficiently clear to put Defendants on notice that the Constitution

prohibited such conduct. See Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993) (“[P]laintiffs

such as the Reeds may state claims for civil rights violations if they allege state action that

creates, or substantially contributes to the creation of, a danger or renders citizens more

vulnerable to a danger that they otherwise would have been.”). Likewise, the right to equal

protection under the law is embodied in the 14th Amendment, and, as concluded above, while

Illinois might not have a duty to protect children from abuse, when it chooses to provide

protective services to children it cannot discriminate based on race, sex, or religion when

deciding whether a child is deserving of its protection. See Bond, 728 F.3d at 691. Thus, when

accepting Plaintiff’s allegations as true and viewing them in the light most favorable to her, the

Court cannot say at this juncture that Defendants are entitled to qualified immunity.

Determination of this issue necessarily depends on development of a factual record and is thus

ill-suited for resolution under Rule 12(b)(6). See Reed v. Palmer, 906 F.3d 540, 547 (7th Cir.

2018) (“The crucial question is whether the official acted reasonably in the particular

circumstances that he or she faced.”) (cleaned up, with emphasis original); see also id. at 548

(“Because a qualified immunity defense so closely depends ‘on the facts of the case,’ a

‘complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds.’ ”)

(citations omitted). Accordingly, the Court denies Defendants’ Motion to Dismiss as it relates to

qualified immunity.

(4) Respondeat Superior

Finally, Defendants move for dismissal of claims against Defendants Ohrwall and Norris.

Doc. 27 at 15. Defendants correctly state that liability under 42 U.S.C. § 1983 only extends to a

defendant’s personal acts or decisions. Id. (citing Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir.

2011)). The premise of Defendants’ argument is that Plaintiff fails to adequately allege the

personal involvement of supervisory Defendants Ohrwall and Norris. In her Response, Plaintiff

explains she does not seek recovery against Defendants Ohrwall and Norris based on a

respondeat superior theory of liability, but rather based on a theory of supervisor liability. Doc.

29 at 12 (citing Lanigan v. Vill. of E. Hazel Crest, Ill., 110 F.3d 467, 471 (7th Cir. 1997)).

“In order to be held liable under a theory of supervisor liability, the supervisors must

know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of

what they might see.” Jones v. City of Chi., 856 F.2d 985, 992–93 (7th Cir. 1988). Recall that

Plaintiff alleges Defendant Ohrwall knew or should have known Defendant Moreau had

conducted a sham investigation, and had included false information and/or omitted information

from her report, and yet with deliberate and reckless indifference and in disregard for his duties,

he approved, authorized, directed, or otherwise condoned the sham investigation and issuance of

a final report concluding the hotline call was unfounded. Similarly, Plaintiff alleges Defendant

Norris knew or should have known Defendant Shannon had conducted a sham investigation,

omitted information from her report, and/or inserted false information in her report of her

investigation, and with deliberate and reckless indifference and in disregard for his duties,

approved, authorized, directed, and/or otherwise condoned Defendant Shannon’s conduct,

investigation, and issuance of a final report concluding the allegations of abuse were unfounded.

Although these allegations are not very illuminating, they do allege the personal involvement of

supervisor Defendants Ohrwall and Norris. Accordingly, Defendants’ Motion to Dismiss is

denied as to this issue as well.

CONCLUSION

For the reasons set forth above, Defendants’ Motion (Doc. 26) to Dismiss is denied.

Signed on this 30th day of September, 2021.

s/ James. E. Shadid

James E. Shadid

United States District Judge