# Golbert v. Walker

> District Court, N.D. Illinois · March 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10144362

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** March 18, 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/10144362

## How later opinions describe it (automated extraction)

- holding that plaintiff was not “required to adjudicate his damage claims as part of a prior class action suit” where the prior suit sought declaratory and injunctive relief only

## 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 Stephen )
W., Carrion C., Careale C., Jamya B., )
Charlie W., Joshua F., Erica C., Alana )
M., and Johnnise W., and Named )
Plaintiffs SKYLAR L., ISAAC D., )
ARCHIE C., BURL F., STERLING B., )
AND TYRESE B., on behalf of )
themselves and a class of others )
similarly situated, )
)
Plaintiffs, )
) No. 18 C 8176
v. )
) Judge John Z. Lee
BEVERLY J. WALKER, THE ESTATE )
OF GEORGE SHELDON, CYNTHIA )
TATE, BOBBIE GREGG, ARTHUR )
BISHOP, THE ESTATE OF RICHARD H. )
CALICA, ERWIN MCEWEN, MICHAEL )
C. JONES, LAUREN WILLIAMS, LINDA )
STROUD, FELICIA GUEST, D. JEAN )
ORTEGA-PIRON, DEBRA DYER- )
WEBSTER, JANET AHERN, MARC D. )
SMITH, LISE T. SPACAPAN, DENISE )
GONZALES, DIXIE LEE PETERSON, )
AND THE ILLINOIS DEPARTMENT OF )
CHILDREN AND FAMILY SERVICES, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
Charles Golbert, the Acting Cook County Public Guardian, and Plaintiffs
Skylar L., Isaac D, Archie C., Burl F., Sterling B., and Tyrese B. (collectively,
“Plaintiffs”) have filed a four-count complaint on behalf of themselves and a
putative class of persons younger than twenty-one years of age, who allegedly were
detained by the Illinois Department of Children and Family Services (“DCFS”) in
psychiatric hospitals without legal basis. Plaintiffs bring Counts I and II under
42 U.S.C. § 1983 against eighteen directors and current and former employees of

DCFS (“the Individual Defendants”) for violating their rights under the
Fourteenth Amendment. In Counts III and IV, Plaintiffs claim that the Individual
Defendants as well as DCFS violated the Rehabilitation Act and the Americans
with Disabilities Act (“ADA”).
Defendants have moved to dismiss Plaintiffs’ complaint. For the reasons
stated herein, the motion is denied.
I. Background

A. Facts1
Every year, hundreds of children in the care of DCFS require a period of
psychiatric hospitalization to address acute psychiatric symptoms. Am. Compl. ¶¶
32, 114–15, ECF No. 92.2 Hospitalization is intended to stabilize the children,
develop treatment plans, manage medications, and address acute issues. Id.
¶ 161. Hospitalized children should be released once they are stabilized, id. ¶ 33,

because psychiatric hospitalization imposes “severe constraints on children’s
ability to maintain a healthy lifestyle”: for example, schooling is limited to no more
than one hour per day; recreational activities and time outdoors are either non-

1 The Court “accept[s] as true all well-pleaded facts alleged” in reviewing a motion to
dismiss. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
2 Children enter the care of DCFS after a court has determined that the child is abused,
neglected, or otherwise dependent on the State for care. See Am. Compl. ¶ 31.
existent or extremely curtailed; phone use is limited to five or ten minutes per day;
visits with family are short and usually cannot involve visits from siblings younger
than eighteen; and the children are not permitted to maintain contact with friends

and relatives using electronic devices. Id. ¶¶ 162–64. Psychiatric hospitalization
is typically medically necessary for less than two weeks. Id. ¶ 161.
Plaintiffs allege that they and the class of children they seek to represent
were hospitalized beyond medical necessity (“BMN”). Id. ¶ 2. In other words,
although Plaintiffs were cleared for discharge to a less-restrictive placement, they
continued to be held in locked psychiatric wards. Id. Plaintiffs assert that DCFS’s
practice of confining children BMN undermines or eliminates any stability that

they gained during their admission, id. ¶¶ 4, 167, and subjects them to a
dangerous environment where other patients may engage in physically or sexually
violent behavior, id. ¶ 165.
For example, Plaintiff Alana M. was placed in DCFS’s care when she was 13
years old. Her adoptive mother died, and her next-of-kin (her adoptive
grandmother) was too sick to care for Alana and, in fact, passed away shortly

thereafter. Id. ¶¶ 5, 21. When DCFS assumed temporary custody of Alana, she
was hospitalized for depression and suicidal ideation. Id. ¶ 21. Once Alana was
cleared for release, she was supposed to move in with her sister in Indiana. Id.
¶ 5. But by the time that placement was approved, Alana had been held BMN for
four and a half months, spending her fourteenth birthday in the psychiatric
hospital. Id. By that point, Alana’s doctors determined that her detention BMN
had caused her mental health to deteriorate again—so much so that she could no
longer go live with her sister. Id. ¶ 21. Instead, Alana was transferred to a
residential placement and finally a specialized foster home. Id.

Plaintiffs allege that Defendants have known since at least 1988 that DCFS
has maintained a “widespread and unnecessary practice” of holding certain
children BMN. Id. ¶ 6. Yet, Plaintiffs assert, despite having the ability and
responsibility to ensure that children medically cleared for discharge were
promptly placed in a less-restrictive setting, each Defendant failed to do anything
about the problem, thereby violating Plaintiffs’ constitutional rights and
Defendants’ obligations under the ADA and the Rehabilitation Act.

Plaintiffs divide Defendants into several groups based on their
responsibilities and authority:
• Current and former Directors or Acting Directors (collectively, the
“Director Defendants”), who were responsible for ensuring that
“all children in DCFS care or under its guardianship are safe,
appropriately placed, and receiv[ing] appropriate and timely care
and treatment.” Id. ¶ 40. The Director Defendants also “had the
legal authority to increase”—or to direct their subordinates to
increase—“the existing number of residential and other
placements, including but not limited to entering into contracts to
develop new placements, in order to provide safe and appropriate
placements for every child held beyond medical necessity in
psychiatric hospitals.” Id. ¶¶ 41–42.
• Associate Deputy Directors for Placement Resources (collectively,
the “ADDPR Defendants”), who “were responsible for supervising
DCFS’s Central Matching Unit and, in that capacity, for ensuring
that every child had a therapeutically appropriate placement upon
discharge from a psychiatric hospital.” Id. ¶ 51. The ADDPR
Defendants “had the legal authority to develop more placement
capacity in existing placements and develop new placement
resources, including residential placements, to ensure children did
not stay beyond medical necessity in psychiatric hospitals,” as well
as “the ability and authority to add DCFS supports to a placement,
such as a one-on-one aide or additional funding, to ensure the
child’s well-being and safety and to increase the likelihood that a
placement would be able to accept them.” Id. ¶¶ 49–50.
• The heads of DCFS’s Psychiatric Hospitalization Project
(collectively, the “PHP Defendants”), who were “responsible for
monitoring every child held BMN and ensuring that these children
were discharged from the hospital as soon as hospitalization was
no longer therapeutically necessary.” Id. ¶ 56. The PHP
Defendants further “had the responsibility and authority to
identify and remedy any non-compliance with DCFS procedures or
other systemic issues that were impeding the provision of
appropriate services to hospitalized children in DCFS care,
including the lack of proper or sufficient placements.” Id. ¶ 59.
• The DCFS Guardianship Administrators (collectively, the
“Guardianship Defendants”), who “were the court-appointed
temporary custodian[s] or guardian[s] for numerous children in
Illinois who were placed in the temporary care of DCFS” and “had
a statutory and court-ordered responsibility to those children to
find them a placement outside of their homes in the least
restrictive environment possible.” Id. ¶¶ 63–64. The
Guardianship Defendants “were granted broad powers and
authority over those children, including the powers to grant or
deny consent for medical and psychiatric treatment, educational
services, visitation and other daily needs.” Id. ¶ 64.
• DCFS itself, which was mandated under state law to “place each
of the children in its care in safe and adequate placements
consistent with each child’s health, safety and best interests.” Id.
¶ 30.
Plaintiffs assert that each Defendant knew “the severe risks posed to
children being held BMN” and was notified when children were being held BMN,
“but failed to provide appropriate placements for the children despite having the
responsibility and authority to do so.” Id. ¶¶ 125, 128.
B. Procedural History
1. The B.H. Consent Decree
The procedural history of this case is intertwined with that of another

federal case. See Entm’t USA, Inc. v. Cellular Connection, LLC, No. 1:18-CV-317-
HAB, 2019 WL 2138676, at *3 (N.D. Ind. May 16, 2019) (“A court may take judicial
notice of public court documents . . . without converting a motion to dismiss to a
motion for summary judgment.” (citing Henson v. CSC Credit Servs., 29 F.3d 280,
284 (7th Cir. 1994)). In 1988, a class of plaintiffs who “have or will be in the
custody of [DCFS], and who have or will be placed somewhere other than with
their parents,” sued DCFS seeking to enjoin practices that violated DCFS’s

“statutory and constitutional duties to protect children in state custody from
unwarranted intrusions on their emotional and physical well-being” and to require
DCFS to “provide safe and stable placements and minimally adequate medical
care” and other necessities for children in state custody. See Pls.’ Ex., 2d Am.
Compl., B.H. v. Johnson, 88 C 5599 (N.D. Ill. Oct. 10, 1989) (“B.H. Complaint”) at
¶¶ 1, 3, ECF No. 118-1. The parties in this case agree that Plaintiffs here are also

members of the B.H. class.
The B.H. court held that the plaintiffs’ complaint “stated a substantive due
process claim to be free from unreasonable and unnecessary intrusions upon their
physical and emotional well-being, while directly or indirectly in state custody,
and to be provided by the state with adequate [medical care and necessities].” B.H.
v. Johnson, 715 F. Supp. 1387, 1396 (N.D. Ill. 1989). After that decision, the
plaintiffs and DCFS entered into a consent decree (“the B.H. consent decree”). See
Defs.’ Ex., B.H. Consent Decree, ECF No 106-1 Pursuant to the B.H. consent
decree, DCFS committed to “provide[] children with at least minimally adequate

care,” which includes “provid[ing] that children will be timely and stably placed in
appropriate living arrangements” and “promptly identify[ing] and tak[ing] steps
within its power to achieve permanency for [children] in the least restrictive
setting possible.” Id. ¶¶ 4, 5(a), 5(b). The consent decree also states: “No child
will be psychiatrically hospitalized longer than is clinically necessary. Absence of
an appropriate placement shall not be deemed a basis for continuing a child’s
hospitalization.” Id. ¶ 34(c).

By its terms, the B.H. consent decree resolves “all claims, and only those
claims, for injunctive and declaratory relief actually set forth in the [B.H.]
Complaint.” Id. ¶ 74 (emphasis added). The B.H. Complaint’s prayer for relief
sought to “[e]xpressly reserve the right of all class members to bring separate
lawsuits for damages.” B.H. Complaint at 18.
2. Plaintiffs’ Action for Damages

Here, Plaintiffs bring Fourteenth Amendment claims under § 1983 against
each of the Individual Defendants (Counts I and II), as well as claims against all
Defendants, including DCFS, under Section 504 of the Rehabilitation Act (Count
III) and Title II of the ADA (Count IV). Plaintiffs seek damages—not injunctive
relief—on behalf of the following subset of the B.H. class: “All those who are or
were subjects of abuse, neglect, or dependency petitions filed in the Circuit Court
of Cook County, who have been placed in the care or under the guardianship of
DCFS at any time on or after March 4, 2008 and who were held in a hospital for
purposes of psychiatric treatment for at least a week beyond medical necessity and

who were 20 years old or younger.” Am. Compl. ¶ 173.
Plaintiffs filed their original complaint on December 13, 2018. See Compl.,
ECF No. 1. On Defendants’ motion, the Court dismissed that complaint without
prejudice after finding that it treated the Individual Defendants as an
“undifferentiated mass,” Golbert v. Walker, No. 18 C 8176, 2020 WL 1182670, at
*3 (N.D. Ill. Mar. 12, 2020) (cleaned up), and engaged in impermissible “group
pleading,” id. at *4.

Plaintiffs filed this amended complaint, and now Defendants move again to
dismiss the case pursuant to Rule 12(b)(6).3 See Defs.’ Mot. Dismiss, ECF No. 104.
II. Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint.
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). Under Rule 8(a)(2), a complaint must include “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

3 Defendants also moved to dismiss Plaintiffs’ claims against the Estate of George
Sheldon and the Estate of Richard Calica, two deceased former DCFS directors, pursuant to
Rule 12(b)(5) for insufficient service of process; however, that argument was mooted when
the Court granted Plaintiffs’ motion to substitute a special representative for those
Defendants under Illinois law. See 10/19/21 Minute Entry, ECF No. 128. The special
representatives indicated that they would seek to join the pending motion to dismiss briefing,
but they have not yet done so. See 12/18/20 Joint Status Report, ECF No. 135. To the extent
that the special representatives seek to dismiss the amended complaint on other grounds
after they have been served, the Court will address those arguments when and if they are
made.
P. 8(a)(2). This short and plain statement must “give the defendant fair notice of
what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Under federal notice pleading standards, a plaintiff’s

“[f]actual allegations must be enough to raise a right to relief above the speculative
level.” Id. Put differently, a “complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“In reviewing the sufficiency of a complaint under the plausibility standard,
[courts] accept the well-pleaded facts in the complaint as true.” Alam v. Miller
Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). At the same time, “allegations

in the form of legal conclusions are insufficient to survive a Rule 12(b)(6) motion.”
McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873, 885 (7th Cir. 2012) (citing
Iqbal, 556 U.S. at 678).
III. Analysis
Defendants assert that Plaintiffs’ § 1983 claims must be dismissed for a
variety of reasons: because Plaintiffs have failed to adequately allege each

Individual Defendant’s personal involvement under § 1983; because the Individual
Defendants are entitled to qualified immunity; and because Plaintiffs’ suit is
barred by the Eleventh Amendment or Younger abstention. Defendants also
contend that Plaintiffs have failed to state a claim under the ADA and the
Rehabilitation Act. And Defendants urge the Court to find that Plaintiffs’ entire
action is barred by res judicata.
A. Res Judicata
Because Defendants’ res judicata argument could potentially dispatch the
case, the Court will address it first. Defendants contend that Plaintiffs’ entire

action is precluded by the B.H. case. “In federal court, res judicata—or claim
preclusion—has three elements: (1) an identity of the parties or their privies in
the first and second lawsuits; (2) an identity of the cause of action; and (3) a final
judgment on the merits in the first suit.” Adams v. City of Indianapolis, 742 F.3d
720, 736 (7th Cir. 2014). There is an identity of the cause of action if “the claims
comprise the same core of operative facts.” Id.
Plaintiffs acknowledge that a consent decree constitutes a final judgment on

the merits, and that absent class members may be bound by a consent decree. See
Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990) (holding that consent decree
that is “continuing in nature . . . binds people who were not direct parties to it”);
Quincy Mall, Inc. v. Parisian, Inc., 27 F. App’x 631, 637 (7th Cir. 2001) (“It is
generally true . . . [that] a consent judgment does bar further litigation of the claim
presented because it constitutes a ‘judgment on the merits.’”). But they counter

that absent class members are not precluded from bringing subsequent suits for
damages where a consent decree only resolves claims for declaratory and
injunctive relief.4 See Martin, 917 F.2d at 339–40 (holding that where the prior
consent decree by its terms is limited to equitable claims, “the district court’s

4 On that note, Defendants cite two Illinois state cases that were deemed precluded by
the B.H. action, but both sought only injunctive relief. See Katherine M. v. Ryder, 627 N.E.2d
42 (Ill. App. Ct. 1993); In re M.K., 672 N.E.2d 271 (Ill. App. Ct. 1996).
dismissal of the [damages] claims because they were governed by [the consent
decree] was erroneous”); Crowder v. Lash, 687 F.2d 996, 1008 (7th Cir. 1982)
(holding that plaintiff was not “required to adjudicate his damage claims as part

of a prior class action suit” where the prior suit sought declaratory and injunctive
relief only); Charles Wright & Alan Miller, 18A Fed. Prac. & Proc. Juris. § 4455.2
& n.5 (3d ed., 2020 update) (collecting cases). Cf. Gates v. Towery, 456 F. Supp. 2d
953, 963 (N.D. Ill. 2006), aff’d sub nom. Gates v. City of Chi., 623 F.3d 389 (7th
Cir. 2010) (noting that a “consent decree resolving a class action suit in which the
class members sought principally declaratory or injunctive relief and in which any
claim for damages is merely incidental, will bind absent class members from

seeking different injunctive relief for the same claim,” but “[a]bsent class members
seeking non-incidental money damages may only be barred by res judicata if they
have been afforded notice and an opportunity to opt out as required by Rule
23(b)(3) and (c)(2)(B).”).5
The parties agree that by its terms, the B.H. Consent Decree addresses only
injunctive relief—not damages. See B.H. Consent Decree ¶ 74. And in their reply

brief, Defendants admit that the consent decree does not bar individual actions for
damages. That said, Defendants nevertheless claim that the B.H. Consent Decree
forecloses a class action seeking damages. But they cite no authority for this

5 To the extent that a lack of notice or opportunity to opt out are required in order to
avoid res judicata, Plaintiffs were not born when the operative B.H. consent decree was
entered in 1997. See Am. Compl. ¶ 173 (seeking to certify a class of plaintiffs who were
twenty years old or younger as of December 13, 2018).
proposition, and nothing in the consent decree supports it.6 Accordingly, the Court
concludes that res judicata does not bar Plaintiffs’ claims.
B. Section 1983 Claims (Counts I and II)

1. Personal Involvement
Plaintiffs have sued Defendants in their individual capacities. “[I]ndividual
liability under § 1983 requires ‘personal involvement in the alleged constitutional
deprivation.’” Minix v. Canarecci, 597 F.3d 824, 833 (7th Cir. 2010) (quoting
Palmer v. Marion Cty., 327 F.3d 588, 594 (7th Cir.2003)). As such, individuals in
supervisory positions are “responsible for their own acts but not for those of
subordinates, or for failing to ensure that subordinates carry out their tasks

correctly.” Horshaw v. Casper, 910 F.3d 1027, 1029–30 (7th Cir. 2018) (citing
Ashcroft, 556 U.S. at 676–77; Vance v. Rumsfeld, 701 F.3d 193, 203–05 (7th Cir.
2012) (en banc)). But even a supervisor may be held personally liable under § 1983
“if the conduct causing the constitutional deprivation occurs at his direction or
with his knowledge and consent.” Wilson v. Warren Cty., 830 F.3d 464, 469 (7th
Cir. 2016). In other words, an official who “knows about unconstitutional conduct

and facilitates, approves, condones, or turns a blind eye to it” will be considered
personally involved in the alleged constitutional deprivation. Perez v. Fenoglio,
792 F.3d 768, 781 (7th Cir. 2015) (cleaned up).

6 Whether a Rule 23(b)(3) class should be certified in this case is a question more
appropriately addressed when and if Plaintiffs move for class certification.
Defendants argue that “Plaintiffs’ claims of supervisory responsibility,
responsibility for ensuring that an action has taken place, monitoring activity, and
attending meetings are insufficient to create personal involvement or individual

liability.” Defs.’ Reply Supp. Mot. Dismiss (“Defs.’ Reply”) at 3, ECF No. 130. They
urge the Court to find that Plaintiffs’ allegations are akin to those in Olive v.
Wexford Corp., where the Seventh Circuit held in an unpublished opinion that
mere “knowledge of a subordinate’s misconduct is not enough” for supervisory
liability. 494 F. App’x 671, 673 (7th Cir. 2012) (citing Iqbal, 556 U.S. at 677).
As Plaintiffs see it, they are seeking to hold the Individual Defendants
accountable for their own conduct—not that of their subordinates. Plaintiffs allege

that each Defendant had an independent authority and responsibility to prevent
violations of Plaintiffs’ Fourteenth Amendment rights. Compared to their original
complaint, Plaintiffs’ amended complaint expands on the specific authority and job
duties of each group of Individual Defendants, which allegedly bestowed on each
of them the responsibility and power to remediate the BMN problem. See Am.
Compl. ¶¶ 36–69. Plaintiffs also specify the time period when each Individual

Defendant held each position, see id. ¶¶ 38, 48, 55, 62, and they identify which
Defendants were on notice that each Plaintiff was being held BMN, id. ¶¶ 13, 15–
28.7

7 Defendants complain that none of the Plaintiffs mention that Defendants Bishop
(Acting Director for two months), Peterson (Acting Director for one month), or Spacapan
(Acting Director for one month) were responsible for their BMN detentions. But given
Plaintiffs’ allegations that children were held BMN consistently and throughout the relevant
period, see, e.g., Am. Compl. ¶¶ 113, 115 (mentioning 75 children in 2014, 168 in 2015, and
800 total children from 2015 to 2017), as well as Plaintiffs’ descriptions of the knowledge and
In this way, Plaintiffs’ allegations more closely resemble those of the
plaintiff in Horshaw v. Casper, 910 F.3d 1027 (7th Cir. 2018). In Horshaw, the
prisoner-plaintiff alleged that he had written the warden a letter seeking the

warden’s protection from an imminent attack by a rival gang. Id. at 1028. The
Seventh Circuit held that if the warden “made important operational decisions
personally,” then he could be liable for failing to transfer the plaintiff to protective
custody prior to the attack. Id. at 1030. And the court noted that “whether a given
supervisor retained some operational responsibilities” to protect the plaintiff from
violations of his constitutional rights “is a question of fact.” Id. at 1029–30.
Similarly, here, Plaintiffs allege that Defendants personally failed to take steps

that were within their operational responsibilities and that would have prevented
the constitutional violations in question. As such, Plaintiffs have sufficiently
alleged personal involvement to survive a motion to dismiss.
2. Qualified Immunity
The Individual Defendants next argue that they are entitled to qualified
immunity. “The doctrine of qualified 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. Indiana Dep’t of Child Servs., 635 F.3d 921, 925 (7th Cir. 2011)
(citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). A qualified immunity claim

responsibilities of these individuals as to these issues, id. ¶¶ 40–43, the complaint states a
plausible claim for relief against these Defendant when read “sensibly and as a whole,” see
Engel v. Buchan, 710 F.3d 698, 710 (7th Cir. 2013).
presents two questions: “(1) whether the plaintiff's allegations make out a
deprivation of a constitutional right, and (2) whether the right at issue was clearly
established at the time of the defendant's alleged misconduct.” Id. at 925–26. A

court may address these questions in either order. Pearson, 555 U.S. at 236.
Defendants’ opening brief argues only (and in a mere five sentences) that
Plaintiffs failed at step one: they failed to allege personal involvement, ergo they
failed to allege a deprivation of a constitutional right. As discussed above,
however, Plaintiffs’ amended complaint clears this hurdle. And in any event, even
if the complaint failed to allege personal involvement, it would not follow that the
complaint fails to allege a constitutional deprivation, which is a distinct issue.

Defendants change tack in their reply brief, spending multiple pages
addressing the “clearly established” prong of qualified immunity. It is well
established that arguments raised for the first time in a reply brief are waived.
See, e.g., Wonsey v. City of Chi., 940 F.3d 394, 398 (7th Cir. 2019) (“[A]rguments
raised for the first time in a reply brief are waived”). Nonetheless, the Court will
take up the merits of Defendants’ argument because Plaintiffs adequately

addressed both elements of qualified immunity in their response brief. Cf. Kenya
v. Cty. of Kane, No. 16 C 4979, 2016 WL 7187264, at *3 (N.D. Ill. Dec. 12, 2016)
(noting that the reason arguments raised for the first time on reply are waived is
that the other party typically did not have an adequate opportunity to respond
(citing Edwards v. Honeywell, Inc., 960 F.2d 673, 674–75 (7th Cir. 1992))).
Defendants protest that “[e]ven if Plaintiffs’ substantive due process rights
were violated, the law was not so clearly established as to place the Defendants on
notice that their conduct in this case was unlawful.” Defs.’ Reply at 9–10. When

evaluating a defendant’s conduct in the context of a qualified immunity claim, “the
appropriate focus is ‘on the objective legal reasonableness of an official’s acts.
Where an official could be expected to know that certain conduct would violate
statutory or constitutional rights, he should be made to hesitate.’” Armstrong v.
Daily, 786 F.3d 529, 538 (7th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 819 (1982)). This analysis is objective; thus, “the defendants’ actual state of
mind or knowledge of the law is irrelevant to whether the asserted conduct would

have been legally reasonable.” Id.
Furthermore, “a complaint is generally not dismissed under Rule 12(b)(6)
on qualified immunity grounds. . . . [b]ecause an immunity defense usually
depends on the facts of the case.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.
2001); see also Jacobs v. City of Chi., 215 F.3d 758, 765 n.3 (7th Cir. 2000) (noting
that “a complaint may be dismissed under Rule 12(b)(6) on qualified immunity

grounds where the plaintiff asserts the violation of a broad constitutional right
that had not been articulated at the time the violation is alleged to have
occurred. . . . However, in many cases, the existence of qualified immunity will
depend on the particular facts of a given case.”) The assertion of qualified
immunity in a 12(b)(6) motion is especially tricky because a “plaintiff is not
required initially to plead factual allegations that anticipate and overcome a
defense of qualified immunity.” Jacobs, 215 F.3d at 765 n.3. When considering
qualified immunity at the motion to dismiss stage, the Court “consider[s] the facts,
including all reasonable inferences from them, in the light most favorable to the

nonmoving party.” Ewell v. Toney, 853 F.3d 911, 918–19 (7th Cir. 2017).
In this case, the B.H. court held in 1989 that the plaintiffs “stated a
substantive due process claim”—against the Director of DCFS in his official
capacity—“to be free from unreasonable and unnecessary intrusions upon their
physical and emotional well-being, while directly or indirectly in state custody.”
B.H. v. Johnson, 715 F. Supp. 1387, 1396 (N.D. Ill. 1989). And, in fact, the Seventh
Circuit has noted that “Youngberg v. Romeo made clear . . . that the Constitution

requires the responsible state officials to take steps to prevent children in state
institutions from deteriorating physically or psychologically.” K.H. ex rel. Murphy
v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) (citing Youngberg v. Romeo, 457 U.S.
307 (1982)).
Here, the Amended Complaint describes in detail how the practice of holding
children BMN unreasonably and unnecessarily intrudes on their physical and

emotional well-being. And for the past nearly thirty years, DCFS has operated
under the B.H. consent decree, which states that “[n]o child will be psychiatrically
hospitalized longer than is clinically necessary.” B.H. Consent Decree ¶ 34(c).
While it is true that a consent decree may impose remedies that “exceed what is
required to correct a constitutional violation,” Greene v. Cook Cty. Sheriff’s Off., 79
F. Supp. 3d 790, 816 (N.D. Ill. 2015), at this juncture, the complaint states facts
sufficient to find that Defendants should have known that their alleged conduct
was not “legally reasonable,” see Armstrong, 786 F.3d at 538. Thus, Defendants
are not entitled to qualified immunity at this stage.

3. Younger Abstention
Defendants next argue that the Court is required to abstain from
adjudicating this case because each Plaintiff “has (or had if they are no longer
youth in foster care) a case in juvenile court.” Defs.’ Mem. Supp. Mot. Dismiss
(“Defs.’ Mot. Dismiss”) at 12, ECF No. 106. The Supreme Court’s decision in
Younger v. Harris, 401 U.S. 37 (1971), and its progeny require federal courts to
abstain from hearing a case where there is a related “ongoing state proceeding

that is judicial in nature, involves important state interests, provides the plaintiff
an adequate opportunity to raise the federal claims, and no exceptional
circumstances exist.” Ewell, 853 F.3d at 916.
The Supreme Court has admonished judges that, ordinarily, “federal courts
are obliged to decide cases within the scope of federal jurisdiction,” and
“[a]bstention is not in order simply because a pending state-court proceeding

involves the same subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69,
72 (2013). The Supreme Court has further stressed that the “[c]ircumstances
fitting within the Younger doctrine . . . are ‘exceptional’” and include “‘state
criminal prosecutions,’ ‘civil enforcement proceedings,’ and ‘civil proceedings
involving certain orders that are uniquely in furtherance of the state courts’ ability
to perform their judicial functions.’” Id. at 73 (quoting New Orleans Pub. Serv.,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 367–68 (1989)).
Although neither party describes the nature of Plaintiffs’ state court cases

in detail, the complaint notes that Plaintiffs “are or were subjects of abuse, neglect,
or dependency petitions.” Am. Compl. ¶ 173. In other words, an adult, agency, or
other representative has filed a petition on behalf of each Plaintiff alleging “that
the minor is abused, neglected, or dependent [on the state for care]” and “that it is
in the best interests of the minor and of the public that he be adjudged a ward of
the court.” 705 Ill. Comp. Stat. 405/2-13. Plaintiffs argue that their cases in the
Child Protection Division of Cook County do not fall into one of the three

“exceptional” categories, and so Younger abstention is inappropriate—an assertion
that Defendants do not grapple with in their briefing.
But even if the state court cases do fall within one of the three exceptional
categories, Younger abstention is usually warranted where “federal constitutional
claims . . . call into question ongoing state proceedings.” FreeEats.com, Inc. v.
Indiana, 502 F.3d 590, 595 (7th Cir. 2007) (emphasis added); see also Forty One

News, Inc. v. Cty. of Lake, 491 F.3d 662, 665 (7th Cir. 2007) (“Younger abstention
is appropriate only when there is an action in state court against the federal
plaintiff.” (emphasis added)).
This is why abstention was appropriate in Milchtein v. Chisolm, cited by
Defendants. 880 F.3d 895 (7th Cir. 2018). In that case, the plaintiff parents
argued that Wisconsin’s court system “either discriminated against or failed to
accommodate their views of family organization and management in the Chabad
understanding of Orthodox Judaism” when the courts placed the plaintiffs’ eldest
two children in foster care. Id. at 897. Thus, the Milchtein plaintiffs were seeking

“federal intervention” that would go to the merits of a “pending . . . litigation
brought by the state to vindicate its policies.” Id. at 898. Not so in cases involving
a child’s treatment after being placed in DCFS’s care. See, e.g., K.H. 914 F.2d at
847–48 (permitting a child plaintiff’s § 1983 claim against DCFS employees based
on her placement with abusive foster parents to proceed despite a pending
juvenile-court proceeding).
Here, Plaintiffs do not challenge the merits of their underlying

proceedings—i.e., whether they should have been placed in DCFS care. Instead,
they claim that Defendants violated their rights after that custody decision was
made by the state court. Consequently, this case is not one of the few “exceptional”
cases where Younger abstention is appropriate.8
4. Eleventh Amendment
Additionally, Defendants argue that Plaintiffs’ suit, while nominally against

Defendants in their individual capacities, is “in practice and effect a suit against
the State of Illinois,” and so is barred by the Eleventh Amendment. Defs.’ Mot.
Dismiss at 13. “The general rule is that [lawsuits against state officials in their
individual capacity] are not barred by the [Eleventh Amendment], because the

8 The Court also notes that Younger abstention would not apply to the Plaintiffs whose
state court cases are no longer pending because there is no “ongoing state proceeding.” See
Ewell, 853 F.3d at 916.
plaintiff is seeking damages from individuals rather than from the state treasury.”
Luder v. Endicott, 253 F.3d 1020, 1022–23 (7th Cir. 2001). “The fact that the state
chooses to indemnify its employees who are sued in federal court is irrelevant” to

the Eleventh Amendment analysis. Id.
A suit is considered “against the sovereign 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. at 1023 (quoting Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984)). But “a suit
challenging the constitutionality of a state official’s action is not one against the

State.” Pennhurst, 465 U.S. at 102. This is because unconstitutional action “is
void and therefore does not impart to the officer any immunity from responsibility
to the supreme authority of the United States,” id. (cleaned up), and the official
“is subjected in his person to the consequences of his individual conduct,” Ex parte
Young, 209 U.S. 123, 160 (1908)).
As such, a § 1983 plaintiff has two options: “either sue the official in her

official capacity for injunctive relief or sue the official in her individual capacity
for money damages.” Woods v. Maryville Acad., No. 17 C 8273, 2018 WL 6045219,
at *4 (N.D. Ill. Nov. 19, 2018). Where a plaintiff “names each of the individual
defendants in their individual capacity[,] [s]uch a designation is strong evidence
that plaintiff does not seek recovery from the state treasury.” K.H., ex rel. Murphy
v. Morgan, No. 87 C 9833, 1989 WL 105279, at *5 (N.D. Ill. Sept. 8, 1989), aff’d in
part, remanded in part on other grounds, 914 F.2d 846 (7th Cir. 1990).
Defendants complain that Plaintiffs are raising claims that implicate

“systemic failures.” But Defendants do not explain precisely how that transforms
Plaintiffs’ suit into one against the state. It does not negate Defendants’ alleged
personal responsibility for their individual failures. And “Defendants have given
the Court no reason to believe that a judgment against [them] would necessarily
expend itself on Illinois’ treasury, interfere with the public administration, or
restrain Illinois from acting or compel it to act.” See Loizon v. Evans, No. 18 C
2759, 2020 WL 5253852, at *8 (N.D. Ill. Sept. 3, 2020). As such, Plaintiffs’ claims

are not barred by the Eleventh Amendment.
C. Rehabilitation Act and ADA Claims (Counts III and IV)
In addition to their § 1983 claims, Plaintiffs bring claims under the
Rehabilitation Act and the ADA against all Individual Defendants, as well as
DCFS itself.9 To state a claim under Title II of the ADA, a plaintiff must allege
(1) that “he is a qualified individual with a disability”; (2) that “he was denied the

9 There is no Eleventh Amendment problem that prevents Plaintiffs from suing a state
agency under the Rehabilitation Act or ADA. The Supreme Court has held that the sovereign
immunity of states has been abrogated by the ADA insofar as Plaintiffs allege conduct that
also violates the United States Constitution. See United States v. Georgia, 546 U.S. 151, 160
(2006) (Stevens, J., concurring) (“The Court holds that Title II of the Americans with
Disabilities Act of 1990 validly abrogates state sovereign immunity at least insofar as it
creates a private cause of action for damages against States for conduct that violates the
Constitution.” (citing id. at 159 (majority op.)). And “Illinois has waived its immunity from
suits for damages under the Rehabilitation Act as a condition of its receipt of federal funds.”
Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 672 (7th Cir. 2012); see also Am. Compl. ¶¶ 29, 198
(alleging that DCFS is a recipient of federal funds).
benefits of the services, programs, or activities of a public entity or otherwise
subjected to discrimination by such an entity”; and (3) “that the denial or
discrimination was by reason of his disability.” Wagoner v. Lemmon, 778 F.3d 586,

592 (7th Cir. 2015) (cleaned up). Plaintiffs’ Rehabilitation Act claim is
“functionally identical.” Id.
Defendants argue that Plaintiffs have failed to adequately plead the third
element.10 Defendants point out that when, as here, a plaintiff is seeking damages
as opposed to injunctive relief, the plaintiff must establish that the alleged
disability discrimination was intentional. See Lacy v. Cook Cty., 897 F.3d 847, 863
(7th Cir. 2018). A plaintiff “can establish intentional discrimination in a . . .

damage action [under the ADA or the Rehabilitation Act] by showing deliberate
indifference.” Id. The Seventh Circuit has adopted the two-part standard of
deliberate indifference used in the majority of circuits, which requires a plaintiff
to allege “both (1) ‘knowledge that a harm to a federally protected right is
substantially likely,’ and (2) ‘a failure to act upon that likelihood.’” Id. (quoting
S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)).

Plaintiffs have alleged in detail how Defendants knew that Plaintiffs were
being held BMN, see Am. Compl. ¶¶ 43, 44, 52, 57, 66; how Defendants knew that
holding children BMN created a substantial likelihood that their federally

10 In one sentence in their opening brief that is unsupported by authority, Defendants
assert that Plaintiffs also have failed to allege the second element. Defendants do not revisit
this argument in their reply. As such, the Court deems it waived. Schaefer v. Universal
Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) (“Perfunctory and undeveloped
arguments are waived, as are arguments unsupported by legal authority.”).
protected rights would be violated, see, e.g., id. (| 70-110, 128; and—as discussed
above—how Defendants each personally failed to act upon that likelihood, see, e.g.,
430, 41-42, 49-50, 59, 63-64. Thus, Plaintiffs have adequately alleged
intentional discrimination under the Rehabilitation Act and the ADA.
CONCLUSION
For the above-stated reasons, Defendants’ motion to dismiss is denied in its
entirety.

IT IS SO ORDERED. ENTERED: 3/18/21

JOHN Z. LEE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10144362. Public record. Not legal advice.