Van Dyke v. Illinois Department of Children and Family Services

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTEL VAN DYKE, )

)

Plaintiff, ) 13 C 5971

)

v. ) Judge John Z. Lee

)

LINDA FULTZ and )

MELISSA JOHNSON, individually )

and officially as employees of )

Lutheran Social Services of Illinois, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Christel Van Dyke is the maternal grandmother and former foster

parent of K.C., a minor. In 2013, employees from Lutheran Social Services of

Illinois (“LSSI”) and the Illinois Department of Children and Family Services

(“DCFS”) came to Plaintiff’s home and removed K.C. from the home.

Based upon these events, Plaintiff, now proceeding pro se, has sued

Defendants Linda Fultz and Melissa Johnson, two LSSI employees. Plaintiff brings

claims under 42 U.S.C. § 1983 for violations of the Fourth and First Amendments,

alleging that Defendants unreasonably entered her home to remove K.C. and

retaliated against her for exercising her right to free speech. Defendants have

moved for summary judgment. For the reasons stated herein, Defendants’ motion is

granted.

Factual Background1

Plaintiff is the former foster mother and maternal grandmother of a minor

named K.C. Defs.’ LR 56.1(a)(3) Stmt. ¶ 1, ECF No. 180. At the time of the events

in question, Defendant Fultz worked as a case worker for LSSI, id. ¶ 3, and

Defendant Johnson worked as a manager for LSSI, id. ¶ 4.

DCFS took protective custody of K.C. in November 2011, after K.C. became

the subject of juvenile court proceedings in the Circuit Court of Winnebago County,

Illinois. Id. ¶ 7. DCFS contracted with LSSI to provide child welfare services to

K.C. and his family. Id. ¶ 8. Accordingly, LSSI placed K.C. in foster care with

Plaintiff in December 2011. Id. ¶ 9. At that time, Plaintiff signed a Relative

Caregiver Placement Agreement, which forbade Plaintiff from, among other things,

allowing K.C.’s birth parents to reside in Plaintiff’s home without DCFS’s

knowledge and approval, or arranging medical treatment for K.C. without approval.

Id. ¶ 11. In January 2012, Plaintiff also signed the Foster Parent Placement

Agreement, which stated that LSSI reserved the right to remove K.C. from

Plaintiff’s home if it were deemed to be in the child’s best interests. Id. ¶ 12.

Plaintiff alleges that, during the time K.C. was under her foster care, he

reported to her that his biological father, R.C., was sexually abusing him during his

1 The following facts are undisputed except where noted. Any properly supported

facts that a party disputes without “providing specific references to the affidavits, parts of

the record, and other supporting materials relied upon,” see LR 56.1(b)(3)(B), is deemed

admitted. See Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d 707, 710 (7th

Cir. 2015).

court-ordered visitation hours. Id. ¶¶ 14–15; 4th Am. Compl. ¶ 13, ECF No. 115.

Plaintiff reported this alleged sexual abuse to Defendants, the DCFS child abuse

hotline, and the police. Defs.’ LR 56.1(a)(3) Stmt. ¶ 15. Plaintiff refused to permit

further required visits between K.C. and his father,2 but the juvenile court ordered

her to allow the visits to continue. Id. ¶ 16. Plaintiff then petitioned the juvenile

court to suspend R.C.’s visitation rights. Id. ¶ 17. Plaintiff failed to appear with

K.C. at the February 2013 hearing to address Plaintiff’s compliance with R.C.’s

visitation rights.3 Id. ¶ 18. Soon thereafter, Defendant Johnson determined to

remove K.C. from Plaintiff’s foster care. Id. ¶ 20.

Accordingly, on February 26, 2013, Fultz went to Plaintiff’s residence to

remove K.C. from Plaintiff’s care, and Plaintiff answered the door.4 Id. ¶¶ 26–27.

Whether Plaintiff then gave Fultz permission to enter her residence remains

unclear. Plaintiff suggests that she cracked the door open slightly and that Fultz

then pushed the door and entered without consent. Pl.’s Resp. Defs.’ LR 56.1(a)(3)

2 Plaintiff denies Defendants’ phrasing that she “refused to cooperate” with R.C.’s

visits, on the basis that she was “act[ing] to protect the child from harm.” Pl.’s Resp. Defs.’

LR 56.1(a)(3) Stmt. ¶ 16, ECF No. 198. Regardless of Plaintiff’s justification, she does not

deny that she denied R.C.’s visitation rights. See id.

3 An administrative law judge later reviewed Plaintiff’s allegations regarding K.C.’s

father and found them to be without merit and “misguided, vitriolic attempts to impede

[R.C.’s] service plan and the Juvenile Court’s reunification goal.” Defs.’ LR 56.1(a)(3) Stmt.

¶¶ 19, 38.

4 Fultz was also accompanied by Dawn Barnes, who worked as a child protection

investigator for DCFS. Defs.’ LR 56.1(a)(3) Stmt. ¶ 2. The Court previously granted

summary judgment to Defendant Barnes on all claims. See generally Van Dyke v. Barnes,

No. 13 C 5971, 2017 WL 1105390 (N.D. Ill. Mar. 24, 2017). Because Defendants’

statements of fact with regard to Barnes are not relevant to Plaintiff’s claims against

Defendants Johnson and Fultz, the Court has not included them in this factual summary.

Stmt. ¶ 27. Defendants deny that Fultz entered without consent. Defs.’ Resp. Pls.’

Stmt. ¶ 26, ECF No. 211.

At some point, two Tinley Park Police Department officers were called to the

scene. Defs.’ LR 56.1(a)(3) Stmt. ¶ 28. In their depositions, the officers stated that,

upon their arrival, Plaintiff did not complain of any unprofessional conduct on

Fultz’s part and that the officers did not see any signs of a forced entry into

Plaintiff’s apartment. Id. ¶¶ 30–32.

At some during Fultz’s visit to Plaintiff’s home, Fultz provided Plaintiff with

a notice of Change of Placement of K.C., id. ¶ 33, and Fultz eventually left

Plaintiff’s residence with K.C., id. ¶ 35.

Legal Standard

“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). To survive summary judgment, the

nonmovant must “do more than simply show that there is some metaphysical doubt

as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986), and instead must “establish some genuine issue for trial such

that a reasonable jury could return a verdict in her favor.” Gordon v. FedEx

Freight, Inc., 674 F.3d 769, 772–73 (7th Cir. 2012).

The evidence considered for summary judgment “must be admissible if

offered at trial, except that affidavits, depositions, and other written forms of

testimony can substitute for live testimony.” Malin v. Hospira, Inc., 762 F.3d 552,

554–55 (7th Cir. 2014). In reviewing a motion for summary judgment, the Court

gives the nonmovant “the benefit of conflicts in the evidence and reasonable

inferences that could be drawn from it.” Grochocinski v. Mayer Brown Rowe &

Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013).

Moreover, Rule 56 “requires the district court to grant a motion for summary

judgment after discovery ‘against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.’” Silverman v. Bd. of Educ. of City

of Chi., 637 F.3d 729, 743 (7th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)). The moving party has the initial burden of establishing that there

is no genuine issue of material fact. See Celotex, 477 U.S. at 322. Once the moving

party has sufficiently demonstrated the absence of a genuine issue of material fact,

the nonmoving party must then set forth specific facts showing there are disputed

material facts that must be decided at trial. See id. at 321–22.

Analysis

In her Fourth Amended Complaint, Plaintiff alleges that Fultz, under the

direction of Johnson, conducted an unreasonable search in violation of the Fourth

Amendment when she entered Plaintiff’s apartment to remove K.C. on February 26,

2013. Plaintiff also alleges that Defendants violated her First Amendment rights

by removing K.C. as a form of retaliation for Plaintiff making reports of sexual

abuse of K.C. by R.C. Defendants have moved for summary judgment with respect to

these claims. For the reasons explained below, Defendants’ motion for summary

judgment is granted.

I. Fourth Amendment Unreasonable Search Claim

In seeking summary judgment as to Plaintiff’s Fourth Amendment claim,

Defendants invoke the doctrine of qualified immunity. “[Q]ualified immunity

insulates government actors from liability for civil damages when their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have been aware.” Siliven v. Ind. Dep’t of Child Servs.,

635 F.3d 921, 925 (7th Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223, 231

(2009)). A defendant is not entitled to qualified immunity where (1) the defendant

violated the plaintiff’s statutory or constitutional rights and (2) the statutory or

constitutional right at issue was “clearly established” at the time of the defendant’s

conduct. Id. at 925–26 (citing Pearson, 555 U.S. at 230). “Courts are free ‘to

exercise their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.’” Id. at 926 (quoting Pearson, 555 U.S. at 236).

When a defendant claims qualified immunity, the plaintiff bears the burden

of proving that her allegedly violated constitutional right was “clearly established”

in a “particularized sense.” Lewis v. Downey, 581 F.3d 467, 478 (7th Cir. 2009);

Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 473 (7th Cir. 2011). To meet

this burden, the plaintiff must show that, “at the time of the challenged conduct, the

contours of a right [were] sufficiently clear that every reasonable official would have

understood that what he [was] doing violates that right.” Hernandez, 657 F.3d at

473–74 (internal quotation marks and alterations omitted). The plaintiff need not

present “a case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)).

In determining whether a right is clearly established, courts “look first to

controlling precedent on the issue from the Supreme Court and from this circuit.”

Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012) (citing Estate of

Escobedo v. Bender, 600 F.3d 770, 781 (7th Cir. 2010)). “If such precedent is

lacking, [courts] look to all relevant case law to determine whether there was such a

clear trend in the case law that we can say with fair assurance that the recognition

of the right by a controlling precedent was merely a question of time.” Id. (internal

quotation marks omitted); see also, e.g., Hernandez v. Cook Cty. Sheriff’s Office, No.

07 C 855, 2017 WL 4535982, at *7 (N.D. Ill. Sept. 25, 2017) (surveying other federal

circuit courts for authority where neither the Supreme Court nor the Seventh

Circuit had addressed the issue).

To determine whether a defendant acting without a warrant or probable

cause as to a crime has violated the Fourth Amendment’s unreasonable search

requirement, a court must determine that: (1) there was a “search” within the

meaning of the Fourth Amendment; (2) if so, the plaintiff had a reasonable

expectation of privacy, requiring the plaintiff to manifest a subjective expectation of

privacy that society is prepared to recognize as objectively reasonable; and (3) the

search was not subject to one of few, carefully delineated exceptions, including, for

example, consent and exigency. See Doe v. Heck, 327 F.3d 492, 509–11 (7th Cir.

2003).

Here, Defendants contend that the contours of the Fourth Amendment were

not sufficiently clear such that a reasonable social worker would have recognized

that he or she was engaging in an unreasonable search by entering, without a

warrant, a foster home to remove a child in the legal custody of the state. See Defs.’

Mem. Supp. at 8–10. Having reviewed the case law to determine whether the

contours of the right were clearly established at the time of the events in question,

it appears that the Fourth Circuit is the only federal court of appeals to have

considered the issue.

In Wildauer v. Frederick Cty., the Fourth Circuit held that the defendant

sheriffs who entered a foster home without a warrant to remove a foster child were

entitled to qualified immunity based on a lack of clearly established law to the

contrary, emphasizing that defendants’ visit was of a “non-criminal nature” and

stating that “defendants correctly understood that the [foster childrens’ biological]

parents had a right to retrieve their children.” 993 F.2d 369, 372–73 (4th Cir.

1993).

By contrast, the most pertinent cases in the Seventh Circuit are notably

distinguishable because they address unreasonable seizure claims in the context of

social workers removing children in their own parents’ legal custody, from their own

parents’ homes. In Brokaw v. Mercer County, for example, the court held that it

was clearly established that the government could not “use the government’s power

to cause . . . the unjustified removal of a six-year-old child from his parents in order

to destroy the family, based simply on the family’s religious beliefs.” 235 F.3d 1000,

1022 (7th Cir. 2000). The court stated that, “[i]n the context of removing a child

from his home and family, a seizure is reasonable [only] if it is pursuant to a court

order, if it is supported by probable cause, or if it is justified by exigent

circumstances, meaning that the state officers have reason to believe that life or

limb is in immediate jeopardy.” Id. at 1011.

Similarly, in Siliven v. Indiana Department of Child Services, the court held

that the probable-cause inquiry “focus[es] . . . on the facts and circumstances known

to defendants at the time they decided to remove [the child from his own parents],

and whether a prudent caseworker (meaning one of reasonable caution) could have

believed that [the child] faced an immediate threat of abuse based on those facts.”

635 F.3d 921, 927 (7th Cir. 2011). And, somewhat further afield, in Doe v. Heck, the

Seventh Circuit considered whether it was a search or seizure (and, if so, whether it

was unreasonable) for social workers and police officers to interview a child—who

was in the legal custody of his own parents—at a private grade school, for the

purpose of investigating child abuse. 327 F.3d at 509–17. The court found that the

child’s parents exhibited a subjective, objectively reasonable expectation of privacy

in placing their child in a private school and that the defendants had indeed

conducted a search and seizure. Id. at 510. Given the reasonable expectation of

privacy, the search conducted without a warrant (or pursuant to a carefully

delineated exception) was held unreasonable. Id. at 510–14.

By contrast to the cases addressing the removal of a child in his parents’

custody from his parents’ own home or the search and seizure of a child at a private

school where his parents had placed him, K.C. was in the state’s legal custody,

Plaintiff was acting as K.C.’s foster parent, and she had signed an agreement

acknowledging that Defendants had the right to remove K.C. from Plaintiff’s home,

Defs.’ LR 56.1(a)(3) Stmt. ¶ 12. Absent clearly established law to the contrary, a

LSSI social worker could reasonably have believed that Plaintiff had provided

consent for a social worker to enter the home to retrieve K.C, in exchange for

Plaintiff being permitted to keep her grandchild K.C. in her home. See Medlock v.

Trustees of Ind. Univ., 738 F.3d 867, 872 (7th Cir. 2013) (holding that parties may,

by contract, consent in advance to warrantless searches); United States v.

Schleining, 181 F. Supp. 3d 531, 538 (N.D. Ill. 2015) (stating that plaintiff’s contract

“voluntarily relinquished Fourth Amendment rights in exchange for a valuable . . .

opportunity”) (citing Medlock, 738 F.3d at 872). Alternatively, a reasonable social

worker may have believed that these facts indicated that Plaintiff did not possess a

reasonable expectation of privacy in her home that would preclude social workers

from entering the home to remove K.C., as they were authorized to do.

Accordingly, Defendants are entitled to qualified immunity with respect to

Plaintiff’s Fourth Amendment claim.

II. First Amendment Retaliation Claim

Plaintiff has also brought a First Amendment retaliation claim against

Defendants. To prevail on this claim, a plaintiff must establish that (1) she

“engaged in activity protected by the First Amendment”; (2) she “suffered a

deprivation that would likely deter First Amendment activity”; and (3) her First

Amendment activity was at least a “motivating factor” of the defendant’s allegedly

harmful conduct. Thayer v. Chiczewski, 705 F.3d 237, 251 (7th Cir. 2012). If a

plaintiff can make a showing that her First Amendment activity was a motivating

factor of the defendant’s conduct, then “the burden shifts to the defendant to show

that the harm would have occurred anyway . . . and thus that the violation had not

been a ‘but for’ cause of the harm.” Greene v. Doruff, 660 F.3d 975, 977 (7th Cir.

2011).

Plaintiff alleges that Defendants invaded her home and removed K.C. in

retaliation against Plaintiff for reporting R.C.’s suspected sexual abuse of K.C.,

speaking to a counselor about this sexual abuse, and petitioning the juvenile court

for redress. 4th Am. Compl. ¶¶ 40–51.

In their motion for summary judgment, Defendants do not dispute that

Plaintiff engaged in protected speech or that she suffered a deprivation likely to

deter protected speech. Defs.’ Mem. Supp. at 13–14. Accordingly, Defendants have

waived these arguments. See Young v. C.H. Robinson Worldwide, Inc., No. 06 C

1081, 2007 WL 4365334, at *5 (N.D. Ill. Dec. 11, 2007) (finding defendant waived

summary-judgment argument by failing to include it in opening brief).

Instead, Defendants’ sole argument is that they had independent grounds to

remove K.C. and, therefore, Plaintiff’s speech was not a motivating factor in their

actions. Defs.’ Mem. Supp. at 13; see Greene, 660 F.3d at 977. In support,

Defendants contend that Plaintiff violated the Foster Parent Placement and

Relative Caregiver Placement agreements in multiple ways. Id. These violations

included allowing K.C.’s mother, B.V.D., to reside in the foster home with K.C.,

refusing to allow K.C.’s father to visit K.C., taking K.C. to doctors without notice to

DCFS, and not bringing K.C. to required court hearings. Id.

For her part, Plaintiff does not dispute her failure to bring K.C. to some

hearings. Pl.’s Stmt. ¶ 7, ECF No. 198. Additionally, she does not dispute that she

refused to allow K.C.’s father to visit him, although she argues that this was

justified. See id. ¶¶ 5, 6, 8, 10; Defs.’ LR 56.1(a)(3) Stmt. ¶ 16, Pl.’s Resp. Defs.’

Stmt. ¶ 16. Moreover, Plaintiff does not deny that the decision to change K.C.’s

placement was based, at least in part, on Plaintiff’s refusal to make K.C. available

for parental visitations as required under the agreements. Defs.’ LR 56.1(a)(3)

Stmt. ¶ 20, Pl.’s Resp. Defs.’ Stmt. ¶ 20. And, while Plaintiff disputes Defendants’

assertion that she allowed K.C.’s mother to live with them, Plaintiff does not

dispute the fact that DCFS received a hotline call reporting that K.C.’s mother was

residing with them. Defs.’ LR 56.1(a)(3) Stmt. ¶¶ 21-22, Pl.’s Resp. Defs.’ Stmt. ¶¶

21-22.

On the other hand, Plaintiff simply relies on the fact that her phone calls and

court petitions took place prior to K.C.’s removal and asks the Court to speculate

that Defendants’ actions were motivated, in whole or in part, by them. But mere

timing is not enough. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 565 (7th Cir.

2015) (“[T]emporal proximity alone is rarely sufficient to establish causation.”)

(internal quotations omitted). And other than this, Plaintiff offers no facts from

which a reasonable jury could conclude that her protected activity is what caused

Defendants to act as they did. See, e.g., Schroeder v. Drankiewicz, 519 Fed. App’x

947, 950-51 (7th Cir. 2013) (upholding summary judgment as to retaliation claim

because plaintiffs causation theory was based on “inferences resting on

conjecture”); Chi. United Indus., Ltd. v. City of Chi., 685 F. Supp. 2d 791, 818 (N.D.

Ill. 2010) (finding plaintiff failed to defeat summary judgment where motivating-

factor argument was “mere speculation or conjecture”) (quoting Rockwell v.

Automation, Inc. v. Natl Union Fire Ins. Co. of Pittsburgh, 544 F.3d 752, 757 (7th

Cir. 2008)). Accordingly, Defendants’ motion for summary judgment as to Plaintiffs

First Amendment claim is granted.

Conclusion

For the reasons stated herein, Defendants’ motion for summary judgment [178]

is granted. Because no claims and no defendants remain, final judgment will be

entered for Defendants. This case is terminated.

IT IS SO ORDERED. ENTERED 3/29/18

JohnZ.Lee

United States District Judge

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