# Golbert v. Aurora Chicago Lakeshore Hospital LLC

> District Court, N.D. Illinois · March 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10144323

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10144323

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHARLES GOLBERT, Cook County
Public Guardian, on behalf of Trinity
B., Romeo S., Connor H., Jadiene T.,
Jymesha S., Tatyana H., and Jamya Case No. 19-cv-08257
B.,
Judge Mary M. Rowland
Plaintiffs,

v.

AURORA CHICAGO LAKESHORE
HOSPITAL, LLC, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Charles Golbert, acting on behalf of minors Trinity B., Romeo S., Connor
H., Jadiene T., Jymesha S., Tatyana H., and Jamya B., brings this action against the
Defendants alleging federal and state law violations arising from the children’s time
at Chicago Lakeshore Hospital. The defendants affiliated with the Illinois
Department of Children and Family Services (DCFS) move to dismiss the Amended
Complaint for failing to state a claim. For reasons stated herein, the DCFS
defendants’ Motion to Dismiss [163] is granted as to Count Two and denied as to all
other counts.
I. Background
The following factual allegations are taken from the Amended Complaint (Dkt.
135) and are accepted as true for the purposes of the motion to dismiss. See W. Bend
Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 2016).
A. The Lakeshore Allegations
Charles Golbert brings this suit against Aurora Chicago Lakeshore Hospital,
Lakeshore’s parent company Signature, several employees and executives of

Lakeshore, and several officers and employees of DCFS, in their personal capacity.
Golbert is the Cook County Public Guardian. Appointed by the Chief Judge of the
Cook County Circuit Court and the Presiding Judge of the Juvenile Justice and Child
Protection Division of the Circuit Court, he represents children who are subjects of
abuse, neglect, and dependency petitions filed in the juvenile court. Dkt. 135 ¶ 11. In
this case, he represents seven children who were in DCFS custody and were

involuntarily placed in the Chicago Lakeshore Hospital between 2017 and 2018. Id.
at ¶¶ 12-18, 66.
Chicago Lakeshore Hospital is an Illinois limited liability company located in
Chicago, where it also operates a “Children’s Pavilion.” Id. at ¶ 19. Lakeshore is in
turn owned by Signature, a Michigan limited liability company. Id. Along with
Lakeshore and Signature, Golbert lists ten other executives and employees of
Lakeshore as defendants. Id. at ¶¶ 23, 31-39. He also brings suit against nine officials

and employees of DCFS, the Illinois agency responsible for the care of children
dependent on the state. Id. at ¶¶ 21-22, 24-29, 30, 40.
Golbert’s allegations arise from the plaintiffs’ treatment while at Lakeshore’s
children’s hospital. DCFS is required to house children in the least restrictive setting
that is in the child’s best interest. Id. at ¶ 41. As part of this care, children sometimes
needed inpatient care at a psychiatric hospital. Id. at ¶ 42. Due to budget constraints,
DCFS had developed a bad reputation among Chicago-area hospitals for keeping
children in inpatient care for longer than medically beneficial and failing to promptly
pay hospitals for care provided. Id. at ¶ 47-48. As a result, most psychiatric hospitals

were hesitant to admit children in the care of DCFS. Id. at ¶ 49.
The one exception was Lakeshore. Due to its own financial pressures, it readily
accepted children in the care of DCFS. Id. at ¶ 62. As a result of Lakeshore’s limited
funds and aggressive management by Signature, its children’s psychiatric hospital
lacked the proper facilities and staff to safely operate. Id. at ¶¶ 51-58. Lakeshore had
a history of allegations of inadequate or dangerous care, including a 2011 report by

the Mental Health Policy Program of the University of Illinois at Chicago finding
patterns of sexual abuse. Id. at ¶¶ 119, 121. DCFS, however, was dependent on
Lakeshore because it was one of the few hospitals that would accept its children. Id.
at ¶ 64. As a result, DCFS wanted to ensure that Lakeshore remained in business
even if it did not provide adequate care. Id.
During their stay at Lakeshore, the plaintiffs were subjected to serious sexual,
physical, and emotional abuse. Id. at ¶ 67. DCFS was aware of serious complaints

against Lakeshore and worked to bury and discredit the allegations. Id. at ¶ 104. The
situation only changed in 2018 when the federal Department of Health and Human
Services surveyed Lakeshore to evaluate its compliance with Medicare regulations.
Id. at ¶ 114. The surveys found that Lakeshore’s administration of the children’s
hospital violated federal regulations and endangered patient health and safety. Id. at
¶ 115. As a result, the Department terminated its provider agreement with the
hospital, cutting off federal funding. Id. at ¶ 125. DCFS removed all the children in
its custody out of Lakeshore at around the same time. Id. at ¶ 125.
The abuse the children suffered at Lakeshore continues to cause them physical

and emotional pain. Id. at ¶ 130. Golbert filed the instant lawsuit on December 18,
2019 to recover for the damage caused.
B. The DCFS Defendants
The officers and employees of DCFS have jointly filed a motion to dismiss
Golbert’s Complaint as it applies to them. Golbert has brought suit against nine
people affiliated with DCFS, all in their individual capacities. Beverly Walker was

the acting director of DCFS from roughly June 26, 2017 to February 15, 2019. Id. at
¶ 21. George Sheldon, now represented by his estate, was the Department’s director
from February 2015 to June 25, 2017. Id. at ¶ 22. Neil Skene was Acting Director
Walker’s special assistant. Id. at ¶ 24. Michael Jones was the Senior Deputy Director
for Clinical and Child Services. Id. at ¶ 25. In that role, he was responsible for helping
to ensure that children in DCFS custody placed at institutions like Lakeshore were
given safe and appropriate care. Id. Tierney Stutz was a DCFS Area Administrator

who supervised DCFS’s investigative staff and reviewed that group’s investigations
and conclusions. Id. at ¶ 26. Beverly Mims was a DCFS supervisor of child protection
investigators, as was Marco Leandro and Denise Ellis. Id. at ¶¶ 27-29. Finally,
Brooke Sloan was a DCFS child protection investigator. Id. at ¶ 30.
The Complaint alleges that the DCFS leadership, Walker, Sheldon, Skene, Jones,
Stutz, Mims, and Leandro, knew about the sexual, physical, and emotional abuse
taking place at Lakeshore, and that they engaged in a cover-up to hide the
allegations. Id. at ¶ 103. By whitewashing Lakeshore’s failings, DCFS leadership
sought to ensure that the hospital would remain open and continue accepting DCFS

children. Id. They executed the cover-up by directing DCFS staff to conduct
inadequate investigations of complaints brought to the Department against
Lakeshore. Id.
In order to ensure their desired outcome, the DCFS defendants allegedly took
several steps. These included reassigning numerous investigations, including ones
where the investigator was planning to substantiate the allegations, to Sloan, who

then determined the allegations were unfounded. Id. at ¶ 111. Walker, Sheldon,
Skene, and Jones also instructed the DCFS supervisors and investigators, Stutz,
Mims, Leandro, Ellis, and Sloan, to improperly treat the lack of video evidence as a
factor against the abuse allegations. Id. at ¶ 107. This order validated Lakeshore and
Signature’s conscious decision to not fix malfunctioning surveillance cameras, allow
video evidence to be destroyed, and refuse to provide corroborating videos when
requested. Id. at ¶ 105-06. DCFS investigators and supervisors also improperly

credited the denials of Lakeshore while largely ignoring the plaintiffs’ consistent
statements. Id. at ¶ 110. These and other investigative decisions were inconsistent
with DCFS’s rules and regulations. Id. at ¶ 108. Nevertheless, Walker and Sheldon
approved of them because it allowed Lakeshore to remain open. Id. at ¶ 110. As a
result of this sustained cover-up, DCFS’s relationship with Lakeshore was extended
and the plaintiffs remained at or were committed to the hospital, exposing them to
abuse.
II. Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of the case.
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). “To survive a motion to
dismiss under Rule 12(b)(6), the complaint must provide enough factual information
to state a claim to relief that is plausible on its face and raise a right to relief above
the speculative level.” Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329,
333 (7th Cir. 2018) (quotations and citation omitted). See also Fed. R. Civ. P. 8(a)(2)

(requiring a complaint to contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”). A court deciding a Rule 12(b)(6) motion accepts
plaintiff’s well-pleaded factual allegations as true and draws all permissible
inferences in plaintiff’s favor. Fortres Grand Corp. v. Warner Bros. Entm't Inc., 763
F.3d 696, 700 (7th Cir. 2014). A plaintiff need not plead “detailed factual allegations”,
but “still must provide more than mere labels and conclusions or a formulaic
recitation of the elements of a cause of action for her complaint to be considered

adequate under Federal Rule of Civil Procedure 8.” Bell v. City of Chi., 835 F.3d 736,
738 (7th Cir. 2016) (citation and internal quotation marks omitted).
Dismissal for failure to state a claim is proper “when the allegations in a
complaint, however true, could not raise a claim of entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 558, 127 S. Ct. 1955, 1966 (2007). Deciding the
plausibility of the claim is “‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’” McCauley v. City of Chi., 671
F.3d 611, 616 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct.
1937, 1950 (2009)).

III. Analysis
In their Motion to Dismiss, the DCFS defendants argue that they are immune
from suit under several different theories and that Golbert has failed to state a claim
against them.
A. The Complaint Cannot Be Dismissed on Immunity Grounds
The suit is not barred by the Eleventh Amendment

The DCFS defendants argue that they are immunized by the Eleventh
Amendment. The Eleventh Amendment bars suits for damages against states in
federal court. Kentucky v. Graham, 473 U.S. 159, 169 (1985). This prohibition extends
to suits against public officials when sued in their official capacity, where a suit would
recover from the government entity. Id. at 166.
When an official is sued in their personal capacity, on the other hand, the plaintiff
seeks “to impose individual liability upon a government officer for actions taken

under color of state law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). When only the
individual, not the state, is potentially liable, the Eleventh Amendment presents no
obstacle to recovery. Id. at 30-31. The Eleventh Amendment does not prevent
recovery even if the state indemnifies its employees, meaning that damages will
ultimately be paid out of the state treasury. Stoner v. Wisconsin Dep't of Agric., Trade
& Consumer Prot., 50 F.3d 481, 482 (7th Cir. 1995).
In this case, Golbert has sued all the DCFS defendants in their personal capacity.
Should the defendants be found liable, they would be personally responsible for the
damages awarded. As a result, the Eleventh Amendment does not bar Golbert’s suit.

The defendants point out that a suit may, in reality, be against the state even
though the complaint names the officials in their personal capacity. Luder v. Endicott,
253 F.3d 1020, 1023 (7th Cir. 2001). A suit is functionally against the state “if the
judgment sought would expend itself on the public treasury or domain, or interfere
with the public administration, or if the effect of the judgment would be to restrain
the Government from acting, or to compel it to act” Id. (quoting Pennhurst State

School & Hospital v. Halderman, 465 U.S. 89, 101 n. 11 (1984).
Recovery in the instant case is sought against the individual defendants and, as
noted, indemnification is not enough to transform the nature of the suit.
Furthermore, the suit is for events that occurred between 2017 and 2018—it does not
seek to enjoin any current or future action, but rather to recover for past harm. As a
result, the real, substantial parties in this case are the individual DCFS defendants,
not the State of Illinois.

Dismissing on qualified immunity at this stage would be inappropriate
Next, the defendants argue that the suit should be dismissed based on qualified
immunity. “The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). A state official is protected by qualified immunity unless the plaintiff
can show “(1) that the official violated a statutory or constitutional right, and (2) that
the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011). Plaintiffs most commonly show that a right is
clearly established by identifying a “closely analogous case” that had found an
unlawful violation. Findlay v. Lendermon, 722 F.3d 895, 899 (7th Cir. 2013).
At the motion to dismiss stage, the Court must also consider that “a complaint is
generally not dismissed under Rule 12(b)(6) on qualified immunity grounds.”
Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). This is because “the plaintiff

is not required initially to plead factual allegations that anticipate and overcome a
defense of qualified immunity.” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th
Cir. 2000). While litigation should not be needlessly extended, when a case “would
greatly benefit from a more robust record” and qualified immunity “depends on
‘particular facts’” not yet established, declining to dismiss at the pleading stage is
appropriate. Reed v. Palmer, 906 F.3d 540, 553 (7th Cir. 2018).
In the present case, Golbert contends that the plaintiffs had a constitutional right

to safe conditions of confinement. Dkt. 135 ¶ 133. The Supreme Court has long
recognized that involuntarily committed individuals have such a right. See Youngberg
v. Romeo, 457 U.S. 307, 316 (1982). The DCFS defendants allegedly enacted a cover-
up of Lakeshore’s abuse, deliberately exposing the plaintiffs to the risk that they
would “suffer physical and severe emotional harm and would preclude them from
enjoying their right to reasonably safe conditions of confinement.” Dkt. 135 ¶ 136.
Golbert plainly alleges the violation of a clearly established right, albeit at a general
level.
While the Complaint puts the defendants on notice as to the allegations, it does

not detail the actions of individual defendants with the specificity needed to
productively compare with existing precedent. As a result, the Court cannot
determine whether each defendant’s actions had been “clearly established” as
unlawful. Golbert need not provide such detail to survive a motion to dismiss. See
Jacobs, 215 F.3d at 765 n.3. Consequently, whether the DCFS defendants are entitled
to qualified immunity is a question that “would greatly benefit from a more robust

record.” Discovery will allow for more detailed, fact-driven analysis. See Reed, 906
F.3d at 553. Defendants’ request to dismiss the Complaint on qualified immunity
grounds at this stage is denied.
Golbert’s allegations are not barred by public official immunity
The DCFS defendants finally argue that any state law claim is barred by the
common law doctrine of public official immunity. The doctrine “dictates that public
officials are immune from personal liability for their performance of discretionary

duties.” Currie v. Lao, 148 Ill. 2d 151, 166 (1992). For the immunity to apply, the state
official’s conduct must have been “discretionary, rather than ministerial, in nature.”
Michigan Ave. Nat. Bank v. Cty. of Cook, 191 Ill. 2d 493, 520 (2000). Even when
discretionary, immunity does not extend to “acts based on corrupt or malicious
motives or willful and wanton acts.” McKay v. Kusper, 252 Ill. App. 3d 450, 460 (1993).
Willful and wanton acts are adequately pled when the complaint alleges that “a
defendant committed acts with actual or deliberate intention to harm or with an utter
indifference or conscious disregard for the safety of others.” Id.
In Golbert’s Complaint, he describes a conscious practice by the DCFS defendants

to undermine investigations into Lakeshore. The leadership “knew about the sexual,
physical and emotional abuse” of the plaintiffs and “facilitated it, approved it and
condoned it by directing and/or allowing those they supervised to conduct improper
and inadequate investigations into the abuse with the goal of not being able to
substantiate the allegations.” Dkt. 135 ¶ 103. All the DCFS defendants allegedly took
conscious steps to accomplish this goal, including by reassigning investigations to

Sloan in order to “ensure there was consistency in the way in which DCFS determined
the allegations to be unfounded.” Id. at ¶ 104. This conscious undermining of
accountability, if substantiated, would clearly constitute “utter indifference or
conscious disregard for the safety” of the vulnerable children at Lakeshore. As a
result, even if their actions were discretionary, the DCFS defendants are not entitled
to public official immunity at this stage.
B. The Complaint Adequately Pleads the DCFS Defendants’ Personal
Involvement

Turning to the substance of the Complaint, the defendants argue that Golbert has
not adequately pled their personal involvement in the constitutional violations. It is
well established that “plaintiffs may not rely on ‘vague references to a group of
defendants’” when alleging responsibility for a harm. Engel v. Buchan, 710 F.3d 698,
710 (7th Cir. 2013) (quoting Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008)).
Instead, a § 1983 complaint must include “‘specific allegations tying the individual
defendants to the alleged unconstitutional conduct.’” Id. This is because “each
defendant is entitled to know what he or she did that is asserted to be wrongful. A
complaint based on a theory of collective responsibility must be dismissed.” Bank of

Am., N.A. v. Knight, 725 F.3d 815, 818 (7th Cir. 2013). The need for specificity means
that, for example, a blanket accusation that a large number of “defendants looted the
corporation” is not sufficient to state a claim. Id.
At the same time, a complaint need not individually describe the particular
actions of each defendant. Instead, the complaint should be read “sensibly and as a
whole” to determine whether there is “genuine uncertainty regarding who is

responsible for what.” Engel, 710 F.3d at 710. A complaint may allege that multiple
defendants acted “jointly,” so long as the accusation does not devolve into “vague
references” of collective responsibility. Id.
Here, there is no genuine uncertainty. Golbert’s Complaint alleges specific actions
taken by DCFS leadership, by certain investigation supervisors, and by the
investigator Sloan that violated the plaintiffs’ constitutional rights. For example,
Walker, Sheldon, Skene, and Jones, the leadership of DCFS, allegedly instructed

DCFS staff to put improper weight on the absence of video evidence when conducting
their investigations. Dkt. 135 ¶ 107. Meanwhile, Stutz, Mims, Leandro, Ellis, and
Sloan, the DCFS supervisors and investigator, allegedly violated department rules
and improperly discounted the consistent testimony of children at Lakeshore. Id. at
¶¶ 108, 110. While these allegations are not yet so developed as to allow for a
productive qualified immunity analysis, they are specific enough to put the
defendants on notice.
In arguing that the Complaint fails to show personal involvement, the DCFS

defendants analogize the instant case to Woods v. Maryville Acad., No. 17 C 8273,
2018 WL 6045219 (N.D. Ill. Nov. 19, 2018). But Woods is not applicable in this regard.
In that case, Woods was placed by DCFS in a residential facility with a history of
child abuse and he was subsequently abused there. Id. at *1. Woods sued, among
others, the director of DCFS for placing him at the facility. Id. at *4. However, his
claim failed because he did not allege that the director had any involvement in

Woods’s placement. Id. Indeed, his role as director meant that it was unlikely that he
would be aware of such relatively low-level decisions. Id. Golbert, in contrast, has
alleged specific actions taken by all the defendants. And while the allegations must
be proven, it is much more facially plausible that DCFS leadership would be taking
actions related to an important healthcare partner rather than an individual child’s
placement. Golbert has sufficiently pled the DCFS defendants’ personal involvement.
C. The Complaint States a Claim for Violations of the Fourteenth
Amendment

Count One alleges violations of the plaintiffs’ right to safe conditions of
confinement. The courts have long recognized that the Fourteenth Amendment
guarantees involuntarily-committed individuals a right to safe conditions of
confinement. See Youngberg v. Romeo, 457 U.S. 307, 315 (1982). The parties disagree
as to the appropriate standard for evaluating a safe-conditions claim. The plaintiffs
argue that the “professional judgment” standard applies here. If it does, liability
would be imposed if the DCFS defendants’ actions were “such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that
the person responsible actually did not base the decision on such a judgment.” Id. at

323. The defendants, meanwhile, argue that “whether such a professional judgment
was exercised is not the threshold determination.” J.H. ex rel. Higgin v. Johnson, 346
F.3d 788, 793 (7th Cir. 2003). Instead, liability turns on whether the defendants had
actual “[k]nowledge or suspicion” that the children were at risk of abuse. Id. The
Court need not choose between these tests now because, under either standard,
Golbert’s first count survives the Motion to Dismiss.

As discussed in the previous sections, Golbert alleges that the DCFS defendants
consciously engaged in a cover-up of Lakeshore’s history of abuse. Golbert states that
the DCFS defendants were actually aware of the sexual, physical, and emotional
abuse taking place at the hospital and purposefully buried the evidence, resulting in
the plaintiffs’ abuse at Lakeshore. Dkt. 135 ¶ 103. He also claims that the DCFS
supervisors and investigators intentionally disobeyed department regulations in
order to exonerate Lakeshore. Id. at § 108. As alleged, these actions were done with

actual knowledge of the ongoing abuse and were clearly not the product of
professional judgment.
The defendants emphasize that none of the DCFS defendants personally placed
the plaintiffs in the hospital. But while this is true, it is also irrelevant. By
undermining the investigations, the defendants ensured that the plaintiffs would
remain at Lakeshore, directly violating their right to safe conditions. Dismissal at
this stage is inappropriate.
D. Count Two Fails to State an Access-to-Court Claim

Golbert’s next claim is that the DCFS defendants violated the plaintiffs’
constitutional right to access the courts. A backward-looking access claim may arise
“‘where a plaintiff alleges an underlying claim cannot be tried, or be tried with all the
evidence, because official conduct caused the loss or inadequate resolution of that
claim.’” Harer v. Casey, 962 F.3d 299, 308 (7th Cir. 2020) (quoting Lynch v. Barrett,
703 F.3d 1153, 1157 (10th Cir. 2013)). In order “[t]o determine whether a plaintiff has

meaningful and effective access to court, we require the plaintiff to identify: (1) a
nonfrivolous, underlying claim; (2) the official acts frustrating the litigation; and (3)
a remedy that may be awarded as recompense but that is not otherwise available in
a suit or settlement.” Id. The third prong is particularly problematic when plaintiffs
bring an access-to-court claim based on lack of evidence alongside underlying claims.
This is because it is “just too early to say” whether remedy is not otherwise available.
Id. at 309 (quotation omitted). For this reason, “an access-to-court claim ordinarily

may not proceed at the same time and in the same case as a timely-filed underlying
claim.” Id.
In Harer, a couple alleged that their daughter’s murder by a police officer had been
covered up by the police department. Id. at 302. As a result of the cover-up, evidence
that would have been helpful in a lawsuit against the police officer and department
was not available. Id. at 308. The couple sued the officer and department for claims
including wrongful death, intentional infliction of emotional distress, and denial of
access to the court. Id. at 305. The Seventh Circuit dismissed the parents’ access-to-
court claim because “their underlying tort claims [were] timely, facially plausible, and

still pending.” Id. at 310. So long as “the ultimate resolution of their wrongful death
case in doubt, the Harers’ access-to-court claim is not ripe for judicial review.” Id. at
310-11. With the underlying claims still pending, the court could not “determine
whether the police cover-up thwarted the effectiveness of any potential remedies.” Id.
at 311.
Golbert argues that the plaintiffs have been denied access to the court because of

actions taken by the DCFS defendants to destroy or prevent the creation of video
evidence of abuse at Lakeshore. Harer is analogous to the instant case. Here too,
Golbert has “timely, facially plausible” claims for relief pending before the Court,
despite the lack of video evidence. As a result, he cannot show that no remedy is
otherwise available. Here, as in Harer, “[t]he filing of [the] case undermines the
argument that an individual lacks access to court.” Id. at 309.
Golbert attempts to distinguish Harer by pointing to dicta mentioning that the

parents could use discovery to find evidence that supports their case. See Id. He
contrasts this with the present case, where discovery will not uncover evidence
already destroyed or never created. But Harer’s discussion of discovery only serves to
point out that the plaintiffs may well find enough information to succeed at trial, not
that they have a right to any particular piece of evidence. And, of course, the same is
true here. Golbert will have access to discovery and, while he may not uncover video
evidence, the Court cannot determine that he has no recourse until it reaches a ruling
on the underlying claims. Count Two is dismissed.
E. The Complaint States a Failure to Intervene Claim

The DCFS defendants also move to dismiss the third claim—that they failed to
intervene to prevent the violation of the plaintiffs’ constitutional rights. Law
enforcement officers who fail to intervene may be liable under § 1983 when the officer
knew that “any constitutional violation has been committed by a law enforcement
official; and the officer had a realistic opportunity to intervene to prevent the harm
from occurring.” Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994). In this case, all the

DCFS defendants allegedly knew of the abuse taking place at Lakeshore. If they had
conducted proper investigations, they would have uncovered it and removed the
children from harm’s way. Instead, they covered it up.
The defendants argue that they did not have an opportunity to intervene because
they were investigating abuse that had already occurred. The investigations could
not have retroactively prevented the harm that prompted the first investigation. But
the Complaint alleges that abuse took place throughout and after of the course of the

investigations. While an accurate investigation could not have prevented the initial
harm reported, it would have prevented the subsequent abuse that the plaintiffs
suffered. This is enough to state a claim.
F. The Complaint States a Claim for Intentional Infliction of
Emotional Distress

Golbert also brings a state law claim for intentional infliction of emotional
distress. There are three elements to such a claim under Illinois law. “First, the
conduct involved must be truly extreme and outrageous. Second, the actor must . . .
know that there is at least a high probability that his conduct will cause severe
emotional distress. Third, the conduct must in fact cause severe emotional distress.”

McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E. 2d 806, 809 (1988). Contrary to the
defendants’ assertions, conspiring to hide Lakeshore’s ongoing abuse would clearly
be extreme and outrageous conduct. The defendants knew that children under the
care of DCFS resided at Lakeshore, and so they must have known that impeding the
investigation could result in the children’s severe emotional distress. And the
Complaint alleges that the children did, in fact, suffer emotional trauma. Dkt. 135 ¶

6. So, the Complaint satisfies all elements of the law, and the claim survives the
Motion to Dismiss.
G. The Complaint Adequately Pleads Conspiracy
The DCFS defendants also seek to dismiss Golbert’s federal and state law
conspiracy claims. To establish liability for a § 1983 conspiracy, “the plaintiff must
show that (1) the individuals reached an agreement to deprive him of his
constitutional rights, and (2) overt acts in furtherance actually deprived him of those

rights.” Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). Similarly, a state
law claim must allege “(1) a combination of two or more persons, (2) for the purpose
of accomplishing by some concerted action either an unlawful purpose or a lawful
purpose by unlawful means, (3) in the furtherance of which one of the conspirators
committed an overt tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317,
807 N.E.2d 461, 470 (2004).
In this case, Golbert has alleged a coordinated effort by the DCFS officials to cover
up abuse taking place at Lakeshore. This scheme had the effect of violating the
constitutional rights of the plaintiffs and inflicting intentional emotional distress
upon them. The defendants cite Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal
to argue these allegations lack specificity and so are “conclusory.” See 550 U.S. 544
(2007); 556 U.S. 662 (2009). But, as discussed in detail in this opinion, the
Complaint’s underlying counts are specific enough to survive the Motion to Dismiss.
The defendants do not offer any argument for why the conspiracy claims are
particularly deficient. They survive the Motion to Dismiss.
IV. Conclusion
For the stated reasons, the DCFS defendants’ Motion to Dismiss [163] is granted
as to Count Two and denied as to all other counts. The dismissal of Count Two is
without prejudice.

ENTER:

Dated: March 11, 2021 Mug Vf bt L/
“MARYM.ROWLAND
United States District Judge

19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144323. Public record. Not legal advice.