Munoz v. Bradbury

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Ismael Munoz and Cynthia Munoz,

Plaintiffs,

Case No. 3:21-cv-50231

v.

Honorable Iain D. Johnston

Tony Bradbury et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs Ismael and Cynthia Munoz (the Munozes) bring this action under

42 U.S.C. § 1983 alleging violations of their rights under the Fourteenth

Amendment. Before the Court are two motions for summary judgment: one by

Carissa Morrissey, an employee of Illinois’ Department of Children and Family

Services (DCFS); the other by police officers Tony Bradbury and Jacob Maratos and

building inspectors Doug Quinn and Ben Fritz, all employees of the City of

Freeport. For the following reasons, both motions are granted, and this case is

dismissed.

I. Background

The Munozes lived with their several minor children in Freeport, Illinois.

Dkt. 84 ¶ 1. On June 11, 2020, one of their children—then 17 years old—shot and

killed someone with whom he was “feud[ing]” on the front porch of their house while

many of the other, younger children were home. Id. ¶¶ 6, 12-13. Cynthia Munoz

returned home when she learned of the shooting and allowed Detective Tony

Bradbury and other police officers to do a protective sweep of the house but did not

allow a search; the police thus obtained a search warrant and returned to search

the house. Dkt. 73 ¶¶ 14-17.

On the morning of June 15, Bradbury left a voicemail with Cynthia Munoz

telling her that he wanted to interview the other children, to which she didn’t

respond; a little over an hour later, Detective Jacob Maratos made a report to the

DCFS child abuse hotline. Dkt. 84 ¶¶ 3-4. He reported the shooting as well as the

“atrocious living conditions” the police had seen while executing the search

warrant—undisputed aspects of which include that there were six inches of water in

the basement, with some sort of sludge resting on top; that between fifty and one-

hundred garbage bags sat outside; that the garage was falling in on itself; that

there was an extremely foul order that he suspected was evidence of mold; and that

various areas of the house were missing walls or floor boards. Id. ¶ 8. DCFS

immediately began an investigation and assigned the case to Carissa Morrissey. Id.

¶¶ 9-11. She spoke with Maratos and he recited to her what he had told the hotline.

See id. ¶¶ 13-15.

In the afternoon of June 15, Morrissey went to the Munozes’ house and met

with Ismael Munoz; she told him, without looking inside, that the Munozes would

need to agree to have their children stay elsewhere (an out-of-home “safety plan”)

because of the house’s condition, or she would take protective custody of them. Id.

¶¶ 20-21; Dkt. 96 ¶¶ 20-21. The Munozes agreed and arranged for the children to be

placed with family friends. Dkt. 84 ¶ 22. A written safety plan, which provided that

the children would remain outside of the house until it was cleaned and had

undergone certain repairs, and that the parents could only have supervised contact

with the children, was signed by the Munozes. Id. ¶ 30-32. While the safety plan

was in effect, the children were interviewed by DCFS. Id. ¶ 35-38.

On June 16, Morrissey spoke with Freeport City Inspector Ben Fritz, and told

him of the house’s “deplorable” condition. Id. ¶ 33. On June 17, the house was

inspected by Fritz and Code Enforcement Supervisor Doug Quinn; they condemned

it after their inspection for “electrical and sanitary concerns.” Dkt. 73 ¶ 22. On June

18, Morrissey met with the Munozes at their temporary residence and told them

that the safety plan was terminated and the children could return to their care.

Dkt. 84 ¶ 45. DCFS continued to investigate and eventually indicated findings of

child abuse against the Munozes. Id. ¶¶ 46-47. The Stephenson County State’s

Attorney filed petitions for adjudication of wardship and for orders of protection; on

July 7, 2020, the circuit court entered an order declaring a one-year supervisory

wardship over the children because the Munozes had stipulated to the facts

supporting the petition. See id. ¶¶ 48-51.

II. Legal standard

A. Summary judgment

A party is entitled to summary judgment when it demonstrates that there is

no genuine dispute as to any material fact and judgment is proper as a matter of

law. Fed R. Civ. P. 56. A fact is material when it could affect the outcome of the suit

under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986),

and a dispute is genuine when it could lead a reasonable jury to return a verdict in

favor of the non-moving party. Id. The Court must view the record in the light most

favorable to the non-moving party and draw all reasonable inferences—and only

reasonable inferences, MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins.,

994 F.3d 869, 876 (7th Cir. 2021)—in favor of the non-moving party. Anderson, 477

U.S. at 255; Smith v. Crounse Corp., 72 F.4th 799, 804 (7th Cir. 2023).

“It is a well-settled rule that a party opposing a summary judgment motion

must inform the trial judge of the reasons, legal or factual, why summary judgment

should not be entered.” Packer v. Trustees of Ind. Univ. Sch. of Med., 800 F.3d 843,

849 (7th Cir. 2015). “A district court may reasonably expect a party opposing

summary judgment to lay out its case thoroughly and include in its memorandum

cites to the specific parts of the record confirming that there are genuine disputes of

material fact which require the case to be tried.” Id. at 853. Any arguments not

made or so supported are forfeited. See id. at 849.

B. Local Rule 56.1

“On summary judgment, the Court limits its analysis of the facts to the

evidence that is presented in the parties’ Local Rule 56.1 statements.” Kirsch v.

Brightstar Corp., 78 F. Supp. 3d 676, 697 (N.D. Ill. 2015). Local Rule 56.1 requires a

party seeking summary judgment to file an accompanying statement of facts, with

numbered paragraphs and citations to the record supporting those facts. See LR

56.1(d). The opposing party must admit or controvert each fact in response; its

response “may not set forth any new facts, meaning facts that are not fairly

responsive to the asserted fact to which the response is made.” LR 56.1(e)(2). The

response also “may not assert legal arguments except to make an objection.” Id.

“District courts are ‘entitled to expect strict compliance’ with Rule 56.1, and

do not abuse their discretion when they opt to disregard facts presented in a

manner that does not follow the rule’s instructions.” Gbur v. City of Harvey, 835 F.

Supp. 2d 600, 606-07 (N.D. Ill. 2011); see also Waldridge v. Am. Hoechst Corp., 24

F.3d 918, 922 (7th Cir. 1994). Similarly, facts not included in the statement of facts

may be ignored. See Cichon v. Exelon Generation Co., 401 F.3d 803, 810 (7th Cir.

2005). The requirements of Local Rule 56.1 apply equally to pro se plaintiffs. See

Greer v. Bd. of Educ. of City of Chicago, 267 F.3d 723, 727 (7th Cir. 2001); Cady v.

Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow

rules of civil procedure.”).

III. Analysis

The Munozes failed to comply with Local Rule 56.1 in introducing new facts;

because they did not submit their own statement of material facts, the Court

confines its analysis to the defendants’ statements of fact, except insofar as they are

properly controverted by the Munozes with citations to the record.1

A. Section 1983

42 U.S.C. § 1983 provides a claim against any person who, under color of a

state’s “statute, ordinance, regulation, custom, or usage” deprives any person of a

1 During a prefiling summary judgment conference held on December 30, 2022, Local Rule

56.1 was “explained in detail” to the Munozes. Dkt. 69. Both Morrissey and the Freeport

defendants certify that they provided the required Local Rule 56.2 notice to the Munozes as

well. Dkts. 78, 85.

right secured by the federal Constitution. 42 U.S.C. § 1983. Liability must be based

on each defendant’s knowledge and actions, Kuhn v. Goodlow, 678 F.3d 552, 556

(7th Cir. 2012); Burks v. Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009), which may

include either direct participation in the “offending act,” acting or failing to act with

reckless disregard of someone’s constitutional rights when under a duty to

safeguard them, or allowing an offending act to occur with one’s knowledge or

consent. Childress v. Walker, 787 F.3d 433, 439-40 (7th Cir. 2015).

Under the doctrine of qualified immunity, when an official’s conduct does not

violate clearly established rights of which a reasonable person would have been

aware, that official is immune from suit. Pearson v. Callahan, 555 U.S. 223, 231

(2009). A court may conclude that qualified immunity applies without reaching the

underlying question of whether a right was violated if that right was not clearly

established at the time of its alleged violation. Id. at 242. A right is clearly

established if it would have been clear to a “reasonable officer” that his conduct was

unlawful “in the situation he confronted.” Ziglar v. Abbasi, 582 U.S. 120, 152 (2017).

This requires that “existing precedent” place the constitutional question “beyond

debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011).

B. The claim against Morrissey cannot proceed because she is

entitled to qualified immunity

The Munozes assert that Morrissey violated their due process rights2 because

she failed to inspect the home for herself and should have known that the reports

2 The Munozes make passing reference to the Fourth Amendment. The Court will not

address any Fourth Amendment claim because it is insufficiently developed, and thus

forfeited. See Packer, 800 F.3d at 849.

she received did not “correct[ly]” reflect the dangers faced by the children before she

told the Munozes that the children would be removed unless they agreed to a safety

plan, and because she obtained their agreement to the safety plan by coercion. Dkt.

98 ¶ 19. These essentially resolve into the same complaint: that at the time she

threatened removal of their children, she did not know as much as the Constitution

required before such a threat is licit. On the record before the Court, however, this

claim cannot proceed, for Morrissey is at least entitled to qualified immunity.

A substantive due process claim arises when a “fundamental right or liberty”

was infringed under color of state law in a fashion so “arbitrary and irrational” as to

“shock the conscience.” Nelson v. City of Chicago, 992 F.3d 599, 604 (7th Cir. 2021)

(cleaned up). There is a long-recognized fundamental right to freedom from “undue

interference with family relations” balanced against the state’s interest in

protecting children from harm; this requires that a child protective service worker

justify any infringing action—including merely initiating an investigation—by an

objective showing of “some definite and articulable evidence giving rise to a

reasonable suspicion that the child has been abused or is in imminent danger of

abuse.” Sebesta v. Davis, 878 F.3d 226, 232 (7th Cir. 2017).

Procedural due process protections are engaged only by “deprivations ordered

over objection,” not steps—like safety plans—“authorized by consent.” Id. at 761–62.

A safety plan is a form of “interim settlement agreement” that imposes “no

obligation on anybody.” Id. at 761. Although a safety plan procured voluntarily does

not implicate due process, obtaining consent to it through duress—that is, issuing

an ultimatum without the legal right to effect a removal—can unconstitutionally

infringe familial rights. Jerger v. Blaize, 41 F.4th 910, 915 (7th Cir. 2022).

No procedural due process claim can lie because there was no deprivation

effected without consent, but a claim of an infringement of family relations could if

Morrissey’s threat was arbitrary and irrational—that is, if she had no legal right to

make it because she did not have definite and articulable evidence giving rise to a

reasonable suspicion that the children were in imminent danger of abuse.3 Her

belief that the children were endangered, however, was certainly not groundless.

Maratos had reported the shooting and recounted in detail the “atrocious living

conditions” at the house to the DCFS hotline. Dkt. 84 ¶ 8. Morrissey later spoke

with Maratos, and he reiterated his concerns. Id. ¶¶ 13-15. The Munozes cite

nothing to suggest that she ought to have been suspicious of his account, and

nothing to show that her reasonable suspicion ought to have dissipated while the

safety plan was in place.

Regardless of whether Morrissey knew enough to justify her actions—and she

almost certainly did—she is entitled to qualified immunity. The Munozes bear the

burden of showing that she is not immune from suit because she violated a clearly

established constitutional right, Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir.

2017). Meaning, it must have been clear to her that her actions were unlawful in

3 Under Illinois law, if there is (1) “reason to believe that the child cannot be cared for at

home . . . without endangering the child's health or safety; and (2) there is not time to apply

for a court order . . . for temporary custody of the child,” the state can take the child into

“temporary protective custody” with a post-deprivation hearing to be held within 48 hours,

325 ILCS 5/5, without offending the requirements of due process. Dupuy v. Samuels, 465

F.3d 757, 760 (7th Cir. 2006).

the concrete situation with which she was confronted, Ziglar, 582 U.S. at 151—

namely, that she did not possess the requisite reasonable suspicion to investigate or

threaten to enforce what she took to be the state’s right to remove the children

without further investigation. See Dupuy, 465 F.3d at 762. Because they offer

nothing—let alone cases “on point or closely analogous,” Sebesta, 878 F.3d at 234—

Morrissey is entitled to qualified immunity.

One last issue: the Munozes assert that Morrissey told them that the house

had been condemned in explaining why an out-of-house safety plan was required,

which was not true. Dkt. 96 ¶ 21. Due process requires “at a minimum” that

government officials cannot intentionally “misrepresent the facts in order to obtain

the removal of a child from his parents.” Brokaw v. Mercer County, 235 F.3d 1000,

1020 (7th Cir. 2000); see also Xiong v. Wagner, 700 F.3d 282, 292 (7th Cir. 2012). In

the first place, however, there is no evidence that this was an intentional

misrepresentation; according to the Munozes, Morrissey said that the Freeport

Police Department had told her about the condemnation. Dkt. 96 ¶ 21. Even if it

were a misrepresentation, the Seventh Circuit has suggested that this language is

only applicable to the analysis of procedural due process claims, as opposed to the

substantive due process claim raised here, because it is irrelevant to the objective

inquiry into the existence of reasonable suspicion. Xiong, 700 F.3d at 292. Thus, she

remains entitled to qualified immunity.

C. The claims against Maratos and Bradbury cannot proceed because

they are entitled to qualified immunity

The Munozes argue that by waiting four days to call the DCFS hotline—in

spite of their duty under state law to report suspected violations immediately—and

by relaying “false information,” Maratos and Bradbury participated in the violation

of their familial rights. As a preliminary matter, it is dubious that they have

established Bradbury’s role beyond speculation. See Dkt. 94 passim. Even if

Bradbury were involved to the same extent as Maratos, however, he is equally

entitled to qualified immunity, so the point is moot.

As to their contention that Maratos offered false information to DCFS, the

only issue which approaches a proper dispute is whether the upstairs toilet was

functioning and filled with water; the picture the Munozes cite to show that it was,

contrary to Maratos’ report, is too blurry to conclude either way. Dkt. 99 Ex. F.

Even if it were clear, there is nothing else to suggest it is reasonable to infer that

Maratos intentionally misrepresented this to DCFS—he supplied ample evidence,

undisputed by the Munozes, to be confident that DCFS would find removal

necessary without embellishing his report. And to the extent that it could be

described as a misrepresentation, it fails for the same reason as the allegation

against Morrissey, as does any allegation that he misrepresented whether the house

had already been condemned. All other purported disputes are either improperly

supported, immaterial, or both.4

4 For instance, the Munozes contend that the pictures don’t accurately represent the house

as it was before the search warrant was executed. Dkt. 93 at ¶¶ 28-29. This vague

assertion, is, in the first place, not enough to create a genuine dispute of material fact. See

Their second argument—that Maratos violated state law because he did not

immediately report his concerns to DCFS, and only did so to secure interviews with

the children—fails to state a violation of clearly established law. A violation of state

law does not “clearly establish a violation of a constitutional right as required for a

§ 1983 action.” Stevens v. Umsted, 131 F.3d 697, 707 (7th Cir. 1997); Sebesta v.

Davis, 878 F.3d 226, 235 (7th Cir. 2017). And insofar as the “definite and articulable

evidence” inquiry incorporates the principles of probable cause, the ulterior motives

of the police are irrelevant—if the facts known to them objectively met the relevant

standard, the inquiry ceases. Whren v. United States, 517 U.S. 806, 812 (1996). The

Court need not determine that he actually met the standard, however, because the

Munozes have failed to produce a case showing that his conduct violated a clearly

established right. Thus, he—and Bradbury, to the extent he could be said to have

participated in Maratos’ actions—are entitled to qualified immunity.

D. The claims against Quinn and Fritz cannot proceed because they

are at least entitled to qualified immunity

Finally, the Munozes argue that Quinn and Fritz violated their procedural

due process rights because they prejudged the merits of the inspection, having

already decided that the house would be condemned before seeing it, and

misrepresented their findings to support condemnation. Dkt. 94 ¶ 53. They cite no

Daugherty v. Page, 906 F.3d 606, 611 (7th Cir. 2018). Even if the premise that the house

was in better shape before the police entered were accepted, the execution of a search

warrant would inevitably require disturbing the house to some degree. The Munozes raise

no Fourth Amendment claim regarding the unreasonableness of the search. It simply

strains credulity to draw the inference that the police created as much disarray as is

evident unless the house were already in deep disrepair; such an inference is “blatantly

contradicted” by the photographs in the record. Scott v. Harris, 550 U.S. 372, 380 (2007).

evidence consistent with Local Rule 56.1 to support these claims, or any cases

clearly establishing a relevant right, so they fail. See Dkts. 93, 94.

IV. Conclusion

For the foregoing reasons, the motions for summary judgment are granted,

and this action is terminated.

Date: January 12, 2024 SS.

Honorable Iain D. Johnston

United States District Judge

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