Mosher v. Austin

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

BROOKE L. MOSHER, )

)

Plaintiff, )

)

vs. ) Case No. 23-CV-1808-SMY

)

JACQUELYN AUSTIN, and JENNIFER )

CLAYTON, )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Pending before the Court are Plaintiff Brooke L. Mosher’s Motion for Leave to Proceed in

forma pauperis (Doc. 3) and Motion for Recruitment of Counsel (Doc. 4). For the following

reasons, the motions are DENIED, and this matter shall be DISMISSED.

Background

In July 2022, investigators from the Illinois Department of Children and Family Services

(DCFS), Jacquelyn Austin and Jennifer Clayton, allegedly removed Mosher’s son, C.J., from her

custody. C.J. has remained with social workers and foster parents since that time, with Mosher

being permitted some visits. Mosher alleges that, by removing her son, Defendants Austin and

Clayton violated her constitutional rights under the Fourth, Fifth, and Fourteenth Amendments

(Doc. 2).

This is not Mosher’s first lawsuit against these two defendants. On February 13, 2023,

Mosher filed a similar lawsuit against Defendants Austin and Clayton. Mosher v. Department of

Children and Family Services, et al, 23-cv-463-SMY (Doc. 3) (S.D. Ill. Feb. 13, 2023). Following

a threshold screening of the Complaint, the undersigned dismissed that case without prejudice on

March 6, 2023, for failure to state a claim because Mosher had impermissibly sued these officials

in their official capacities. Mosher v. Department of Children and Family Services, et al, 23-cv-

463-SMY (Doc. 9) (S.D. Ill. Mar. 6, 2023). Mosher then filed the instant lawsuit on May 30, 2023.

Mosher makes the following allegations in her Complaint (Doc. 2): Mosher’s son, C.J.,

was staying in Troy, Illinois with Mosher’s in-laws. On or about July 1, 2022, Defendant Austin

arrived at the residence and threatened to call the police if Mosher did not hand over her son to be

placed into protective custody. Defendant Austin stated that his living condition in Troy was

hazardous with drugs “being produced in the residence” (Doc. 2-2, p. 2).

On July 8, 2022, Mosher underwent a negative drug test. On July 12, 2022, Mosher met

Defendants Austin and Clayton and signed a “Consent to Medical Treatment” for her son, who

had been transferred to the custody of his new foster parents, the Smiths. On July 14, 2022,

Defendants told Mosher that she had to submit to a hair follicle drug test in order to regain custody

of her son. Mosher refused to do so without a signed document from Defendants that formally

requested a test. Defendants became enraged and accused her of not following a “family plan”

and hung up the phone.

On July 15, 2022, Defendant Clayton stated in a DCFS investigative report that C.J. had

been placed in protective custody as a result of a lack of medical attention. Mosher disputes this

reasoning as she had previously scheduled C.J. for a medical appointment for July 19, 2022.

On July 28, 2022, a court held a temporary custody hearing and neither Mosher nor C.J.’s

biological father appeared due to their incarcerations. At another hearing that Mosher could not

attend as a result of incarceration, Defendant Austin lied to the court and said that Mosher had

given permission for C.J. to be placed with a social worker.

From September 1, 2022 to the present, Mosher has only had 8 visitations with her son and

has yet to “see any made up visits which [were] ordered by the judge.” As a result of Mosher’s

loss of custody of her son, she has suffered intense emotional anguish and economic losses such

as no longer qualifying for SNAP benefits.

Discussion

Motion for Recruitment of Counsel (Doc. 4)

Mosher requests that this Court appoint her counsel as the law is “very complex” (Doc. 4,

p. 2). Litigants do not have a constitutional or statutory right to counsel. Pruitt v. Mote, 503 F.3d

647, 649 (7th Cir. 2007). That said, under 28 U.S.C. § 1915(e)(1), the Court has discretion to

recruit counsel to represent indigent litigants in appropriate cases. Johnson v. Doughty, 433 F.3d

1001, 1006 (7th Cir. 2006). When deciding whether to recruit counsel for an indigent litigant, the

Court considers (1) whether the indigent litigant has made reasonable attempts to secure counsel

on his own, and, if so, (2) whether the difficulty of the case exceeds the litigant’s capacity as a

layperson to coherently present it. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing

Pruitt, 503 F.3d at 655).

Here, Mosher states that she has contacted “73 attorneys” who have refused her case (Doc.

4, p. 1). However, she specifies that the case has already proceeded since July of 2022 and she

needs an attorney to present her evidence, which leads this Court to understand that her motion is

directed at finding counsel for her state court proceedings to regain custody of her son and not this

civil rights action. (Id.) As this Court has no authority to appoint her counsel for a state court

matter, this motion will be DENIED.

Motion for Leave to Proceed in forma pauperis (Doc. 3)

Under 28 U.S.C. § 1915, an indigent party may commence a federal court action without

paying required costs and fees upon submission of an affidavit asserting the inability “to pay such

fees or give security therefor” and stating, “the nature of the action, defense or appeal and the

affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). The Court is

satisfied from Mosher’s Affidavit that she is indigent and cannot pay the $400.00 filing fee at this

time.

Additionally, § 1915(e)(2) requires careful threshold scrutiny of a Complaint filed by a

plaintiff seeking to proceed IFP. Thus, the Court may dismiss a case if it determines the action is

clearly frivolous or malicious, fails to state a claim, or is a claim for money damages against an

immune defendant. 28 U.S.C. § 1915(e)(2)(B); see also Hoskins v. Poelstra, 320 F.3d 761, 763

(7th Cir. 2003).

Mosher notes that there is a pending Juvenile Court removal proceeding in Madison County

and requests that this Court dismiss it (Doc. 2, p. 5). The Rooker-Feldman doctrine generally

prohibits federal courts from considering claims seeking review of state court judgments. Long v.

Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). This jurisdictional bar applies to claims

“actually raised before the state court” and to claims that are “inextricably intertwined with state

court determinations.” Id. Given that Mosher’s claim that she should have her son returned to her

was either raised in the Juvenile Court, before the DCFS state agency, or are “inextricably

intertwined” with such state determinations, her Complaint herein fails to state a claim on that

basis. Similarly, Defendants Austin and Clayton are afforded absolute immunity from any actions

they took in presenting the removal case to a Juvenile Court, like allegedly accusing Mosher of

child endangerment at a hearing on July 28, 2022. Millspaugh v. Cty. Dep't of Pub. Welfare of

Wabash Cty., 937 F.2d 1172, 1176 (7th Cir. 1991) (“[S]ocial workers and like public officials are

entitled to absolute immunity in child custody cases on account of testimony and other steps taken

to present the case for decision by the [juvenile] court”).

The only potential claims arise from how Defendants investigated and pursued the removal

proceedings in Mosher’s case. There is authority for such lawsuits against DCFS workers in their

individual capacities if they violated Mosher’s right to be free of unreasonable searches and

seizures under the Fourth Amendment when removing C.J. or her right to familial relations as

guaranteed by the Fourteenth Amendment. Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463,

474-475 (7th Cir. 2011) (removal of a child may be a seizure under the Fourth Amendment);

Brokaw v. Mercer Cty., 235 F.3d 1000, 1018 (7th Cir. 2000) (discussing procedural and

substantive due process with respect to the right to familial integrity). However, as was true with

her Complaint in 23-cv-463, Mosher insists on suing both Defendants in their “official” capacities.

As such, her suit operates as a claim against the State of Illinois. Hafer v. Melo, 502 U.S. 21, 24

(1991) (“Suits against state officials in their official capacity . . . should be treated as suits against

the State”). Federal suits against state officials in their official capacities are barred by the

Eleventh Amendment and must be dismissed. Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th

Cir. 1997). Accordingly, this lawsuit will be dismissed.

Conclusion

For the foregoing reasons, Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc.

3) and Motion for Recruitment of Counsel (Doc. 4) are DENIED. The Complaint (Doc. 2) is

DISMISSED without prejudice for failure to state a claim upon which relief may be granted.

See 28 U.S.C. § 1915(e)(2)(B).

Should Plaintiff wish to proceed with this case once again despite this dismissal without

prejudice, she must: (1) renew her Motion for Leave to Proceed in forma pauperis or prepay the

full $400.00 filing fee for this action no later than July 5, 2023; and (2) file an Amended Complaint

in this case by the same date. Failure to do so shall result in dismissal of this action with prejudice

for failure to comply with a court order and/or for failure to prosecute these claims. Fed. R. Civ.

P. 41(b); Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466

(7th Cir. 1994).

Plaintiff is further advised that, if she chooses to submit an amended complaint, the Court

will not accept piecemeal amendments. An amended complaint supersedes and replaces the

original complaint and renders the original void. Flannery v. Recording Indus. Ass’n of Am., 354

F.3d 632, 638 n.1 (7th Cir. 2004). Therefore, the Amended Complaint must stand on its own,

without reference to any previous pleading or her previous lawsuit under docket number 23-cv-

463. Mosher must also re-file any exhibits she wishes the Court to consider. The Amended

Complaint will be subject to review under 28 U.S.C. § 1915(e)(2), and no service will be ordered

until review is completed.

IT IS SO ORDERED.

DATED: June 14, 2023 Aint ele

STACI M. YANDLE

United States District Judge

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