# Mosher v. Austin

> District Court, S.D. Illinois · June 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10156475

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** June 14, 2023
- **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/10156475

## How later opinions describe it (automated extraction)

- discussing procedural and substantive due process with respect to the right to familial integrity

## Opinion text

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

Page 6 of 6

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156475. Public record. Not legal advice.