BOSTON v. INDIANA DEPARTMENT OF CHILD SERVICES

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

CIERA BOSTON, )

A. T., )

A. T., )

R. T., )

)

Plaintiffs, )

)

v. ) No. 1:19-cv-03279-JRS-MPB

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, )

KENDRA GUINAN, )

LAURA BOWKER, )

)

Defendants. )

Order on Motion for Summary Judgment (ECF No. 35)

Plaintiff Ciera Boston, on her behalf and as a next friend of her children, brings

this action under 42 U.S.C. § 1983 alleging that Defendants Indiana Department of

Child Services ("DCS"), Kendra Guinan, and Laura Bowker (collectively, "Defend-

ants") violated her due process rights by removing her children from her custody.

Boston also brings various state-law claims. Defendants move for summary judg-

ment. (ECF No. 35.) Defendants' motion is fully briefed and ripe for decision. Having

carefully considered the motion, response, reply, evidence, and applicable law, the

Court concludes that the motion should be granted for the following reasons.

I. Background

On September 18, 2017, Boston gave birth to R.T. at St. Francis Hospital in Indi-

anapolis, Indiana. (Ex. B, ECF No. 35-2.) On September 22, 2017, Traci Schank, a

social worker at St. Francis Hospital, called the DCS Abuse or Neglect Hotline ("Hot-

line") to report that R.T.'s umbilical cord blood tested positive for cocaine at birth.

(Id.; Ex. D, ECF No. 35-4.) Schank reported to the Hotline that the hospital tested

R.T.'s umbilical cord blood because Boston had previously tested positive on April 11,

2017, during a urine drug screen. (ECF No. 35-2 at 2.) Additionally, Schank reported

to the Hotline that Boston did not have a car seat, crib, or anything else for R.T. (Id.)

Boston told Schank that her previous positive drug screen result was due to a false

positive, and that she did not have any items for R.T. because she was moving and

had bed bugs. (Id.) Boston also denied ever using cocaine. (Id.) Later that day, R.T.

was medically cleared and scheduled for discharge, and the hospital provided Boston

with a "pack and play, car seat, wipes, and clothing." (Id.)

After Schank's report to the Hotline, her report was recommended for assessment,

and DCS assigned Family Case Manager Kendra Guinan to assess the case. (Guinan

Decl. ¶ 11, Ex. A, ECF No. 35-1.) Guinan arrived at the hospital that same day and

met with Schank. (Id. ¶ 14.) Schank showed Guinan the umbilical cord blood test

results and confirmed the information she previously reported to the Hotline.

(Id. ¶ 14; Ex. C, ECF No. 35-3.) Additionally, Schank told Guinan that the water at

Boston's residence was going to be "turned off in the family home soon," and that

Boston had no childcare plan in place, as Boston's other two children were, at that

time, staying in the hospital room. (Ex. C., ECF No. 35-3 at 2.)

During her visit, Guinan also met with Boston and informed her that R.T.'s posi-

tive umbilical cord blood test result was the reason for the assessment and offered

Boston an oral fluids drug screen, which she denied. (Id.; Guinan Decl. ¶ 18.) Boston

informed Guinan that she had a previous DCS case where she tested positive for co-

caine, but indicated that the test was either wrong, tampered with, or was a false

positive. (Guinan Decl. ¶¶ 17, 22; Ex. C at 2.) On September 17, 2017, Boston had

tested negative during a urine drug screen. (ECF No. 35-2 at 2.) Boston also stated

that she believed the positive umbilical cord blood test result must be related to the

previous false-positive DCS test and that she was "advised in the past [by her attor-

ney] not to sign anything or take any drug screens from DCS." (Ex. C at 2.)

A nurse at the hospital informed Guinan that a positive umbilical cord drug test

for drugs could indicate the use of drugs as far as twenty weeks prior to the test.1

(Guinan Decl. ¶ 20; ECF No. 41 at 4.) Based on the information Guinan gathered

during her assessment, she made the decision, after speaking to her DCS advisor, to

remove Boston's custody of her children2 and temporarily place the children, pending

a detention hearing, with Boston's sister. (Guinan Decl. ¶ 31; Ex. C at 2; ECF No. 41

at 5.)

Guinan provided Boston with a copy of an advisement of rights form, showing

Boston's right to a detention hearing within forty-eight hours. (Guinan Decl. ¶¶ 32–

33; Ex. G., ECF No. 35-7.) Guinan's DCS supervisor emailed several DCS employees

to initiate the children in need of services ("CHINS") proceeding in the Johnson

1 Subsequent to the filing of the CHINS petition, Guinan learned that the positive drug test

from Boston's previous DCS case occurred on April 4, 2017, outside of the twenty-week look-

back window of the umbilical cord blood test. (Guinan Decl. ¶ 28–30; Ex. E, ECF No. 35-5.)

2 During Guinan's assessment, Boston's two other children were not present at the hospital;

they were instead with Boston's friend. (Ex. C, ECF No. 35-3.)

County, Circuit Court, Juvenile and Family Court Division ("Juvenile Court"). (Ex.

H, ECF No. 35-8.) That email also asked DCS staff attorney Laura Bowker to obtain

a hearing with the Juvenile Court, (id.; see also Ex. J, ECF No. 35-10), which Bowker

did shortly thereafter, (Ex. J, ¶¶ 6–7, ECF No. 10). Bowker subsequently notified the

Juvenile Court of the filing of the Report of Preliminary Inquiry. (Id. ¶ 8; see also Ex.

I at 1.) The CHINS petition was eventually filed by DCS attorney Grace Chimples,

and Boston's detention hearing was set for September 26, 2017, at the Juvenile Court.

(Ex. J, ¶¶ 9–10, ECF No. 35-10; Ex. I, ECF No. 35-9 at 2.) At the conclusion of the

hearing, the Juvenile Court found that there was insufficient evidence to authorize

the finding of a CHINS case because there was "not enough evidence to cement that

there [was] recent drug use." (Ex. K at 9:14–19:19, ECF No. 35-11.)

Boston asserts that Defendants violated her substantive due process rights, alleg-

ing violations of her right to familial relations. She brings these claims under 42

U.S.C. § 1983 and the Indiana Tort Claims Act ("ITCA"). Boston additionally alleges

that Defendants are liable for intentional and negligent infliction of emotional dis-

tress. Defendants move for summary judgment.

II. Legal Standard

Rule 56(a) provides that "[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion

for summary judgment, the district court "must construe all the facts and reasonable

inferences in the light most favorable to the nonmoving party," Monroe v. Ind. Dep't

of Transp., 871 F.3d 495, 503 (7th Cir. 2017), but the district court must also view the

evidence "through the prism of the substantive evidentiary burden," Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 254 (1986). Where the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party," summary judgment

should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986).

III. Discussion

Defendant argues that summary judgment is warranted in this case because

(1) R.T., A.T., and A.T. do not state any claims for relief; (2) Defendant Bowker is

absolutely immune from suit; (3) DCS is immune from suit under the Eleventh

Amendment and the Indiana Tort Claims Act; (4) the removal of Boston's children

was supported by reasonable suspicion of imminent harm; (5) Defendants Guinan

and Bowker are entitled to qualified immunity and immunity under the Indiana Tort

Claims Act; (6) and the Defendants' conduct does not support an intentional or negli-

gent infliction of emotional distress claim.

As a preliminary matter, Boston concedes that R.T., A.T., and A.T. do not state

claims for relief. (ECF No. 41 at 6, 10.) Moreover, Boston concedes that Bowker is

immune from suit. (Id. at 6.) Therefore, to the extent the Complaint alleges any

claims by R.T., A.T., and A.T., those claims are dismissed with prejudice. Defend-

ants' Motion for Summary Judgment is also granted as it relates to all claims against

Bowker. The Court addresses Boston's remaining claims in turn.

A. DCS is Not a "Person" Subject to Suit Under 42 U.S.C. § 1983

Defendants argue that the Eleventh Amendment bars Boston's claims against

DCS because DCS has not consented to this Court's jurisdiction or waived its immun-

ity. Boston, however, argues that, even though DCS has not consented to this Court's

jurisdiction, DCS availed themselves to this Court's jurisdiction by seeking removal

to this Court.

The Eleventh Amendment "grants states immunity from private suits in federal

court without their consent." Nuñez v. Ind. Dept. of Child Servs., 817 F.3d 1042, 1044

(7th Cir. 2016). Indeed, absent a state's consent, a valid Congressional override, or

waiver, suits against state agencies are barred by the Eleventh Amendment. See Ind.

Prot. & Advoc. Servs. v. Ind. Fam. & Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir.

2010); see also Hetherington v. Dep't of Child Servs., No. 2:11-cv-62, 2012 WL 523712,

at *3 (N.D. Ind. Feb. 14, 2012). However, a state may waive its immunity by removing

claims to federal court. Bd. of Regents of U. of Wisc. Sys. v. Phoenix Intern. Software,

Inc., 653 F.3d 448, 461 (7th Cir. 2011).

Here, by removing this case to federal court, DCS waived its immunity. Never-

theless, Boston's claims against DCS fail because DCS is not a "person" subject to suit

under § 1983. See Lapides v. Bd. of Regents of the U. Sys. of Ga., 535 U.S. 613, 617

(2002) (stating that even though defendants removed the §1983 claim to federal court,

that claim could not go forward "because a state is not a 'person' for the purposes of

§ 1983"). "Every person who, under the color of . . . [law] subjects, or causes to be

subjected, any citizen of the United States . . .to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law." 42 U.S.C. § 1983. States, however, are not "persons"

liable for money damages under § 1983. Will v. Mich. Dep't of Soc. Servs., 491 U.S.

58, 64 (1989). Because DCS is considered an arm of the state of Indiana, it is not

considered a "person" under § 1983. See Will, 491 U.S. at 70; see also Wagoner v.

Lemmon, 778 F.3d 586, 592 (7th Cir. 2015); Lamaster v. Ind. Dep't of Child Servs.,

No. 4:18-cv-00029, 2019 WL 1282043, at *5 (S.D. Ind. Mar. 20, 2019) (citing Nuñez,

817 F.3d at 1044). Similarly, to the extent Boston alleged claims against the rest of

the Defendants in their official capacities, they too are not considered "persons" under

§ 1983. See Will, 491 U.S. at 71. Therefore, Defendants' Motion for Summary Judg-

ment is granted as it relates to Boston's due process claims against DCS.

B. Guinan's Immunity from Suit

Although Guinan is a person subject to suit under § 1983, Defendants argue that

Guinan is immune from suit under the doctrine of qualified immunity. Family case

managers are entitled to qualified immunity when taking initial custody of children

from their parents. Millspaugh v. Cnty. Dep't of Pub. Welfare of Wabash Cnty., 937

F.2d 1172, 1176 (7th Cir. 1991). "The doctrine of qualified immunity protects govern-

ment 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)). "In general, once the defendants raise the

qualified immunity defense, the plaintiff must show two things: first, that there has

been a violation of one or more of her federal constitutional rights, and second, that

the constitutional standards at issue were clearly established at the time of the al-

leged violation." Figgs v. Dawson, 829 F.3d 895, 906 (7th Cir. 2016) (quoting Camp-

bell v. Peters, 256 F.3d 695, 699 (7th Cir. 2001)).

1. The Right to Familial Relations

Boston first asserts that her right to family relations was violated. Families have

a right to remain together without the coercive interference of the government under

the substantive component of the Due Process Clause of the Fourteenth Amendment.

Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). Indeed,

"the Supreme Court has long recognized as a component of substantive due process

the right to familial relations." Brokaw v. Mercer Cnty., 235 F.3d 1000, 1018 (7th Cir.

2000). The fundamental right to familial relations is not absolute, but "must be bal-

anced against the state's interest in protecting children from abuse." Foster, 657 F.3d

at 478 (quoting Siliven v. Ind. Dep't of Child Servs., 635 F.3d 921, 928 (7th Cir. 2011)).

"To achieve the proper balance, caseworkers must have 'some definite and articu-

lable evidence giving rise to a reasonable suspicion' of past or imminent danger of

abuse before they may take a child into protective custody." Id. (quoting Brokaw, 235

F.3d at 1019). "A reasonable suspicion requires more than a hunch but less than

probable cause and 'considerably less than a preponderance of the evidence.'" United

States v. Oglesby, 597 F.3d 891, 894 (7th Cir. 2010) (quoting Jewett v. Anders, 521

F.3d 818, 823 (7th Cir. 2008)). Moreover, "[d]etermining whether a [caseworker] had

reasonable suspicion is assessed considering the totality of the circumstances and

'common-sensical judgments and inferences about human behavior.'" Id. (quoting

United States v. Baskin, 401 F.3d 788, 791 (7th Cir. 2005)).

Defendants assert that the facts known to Guinan at the time of the removal show

that she had reasonable suspicion to believe that the children were in imminent dan-

ger of abuse or neglect. Defendants specifically allege that:

Guinan made her decision to remove the children from Boston’s custody

because of the positive umbilical cord blood test, the lack of parental

cooperation by Boston and [A.T.'s father], the fact that the water was

going to be shut off to Boston's home, the fact that Boston lacked the

basic necessities to care for her newborn before the hospital provided

those supplies, and her knowledge of DCS's previous involvement with

the family.

(ECF No. 36 at 4.) Boston argues, however, that Guinan's "suspicion was not reason-

able as Guinan ignored various pieces of information that was [sic] presented to her[,]

. . . [and] the DCS investigation here ignored several key pieces of information." (ECF

No. 41 at 9.) For example, Boston asserts that Guinan ignored the "September 17,

2017 negative drug test and the fact that R.T. was 'medically good,'" and that Guinan

did not investigate "whether the lack of water would be a short-term issue." (Id.)

Simply, Boston asserts that Guinan's decision was based on not more than a

hunch. The Court disagrees with Boston for two reasons. First, construing all facts

and reasonable inferences in the light most favorable to Boston, the totality of the

circumstances show that Guinan had reasonable suspicion. R.T.'s birth sparked a

call to the Hotline because his umbilical cord blood tested positive for cocaine. While

this would seem to be reasonable suspicion enough, there is more. After a formal

report was made to the Hotline and Guinan was assigned the case, she went to the

hospital to investigate. The undisputed facts show that R.T.'s umbilical cord tested

positive for cocaine; that the water at Boston's residence would soon be shut off; that

Boston did not have a car seat or other necessary items with her, so the hospital

provided her those items; that Boston's other two minor children were at that hospital

against hospital policy, until both children eventually went to stay with one of Bos-

ton's friends; that Boston had previous involvement with DCS for a positive, albeit

disputed drug test result; and that R.T. was scheduled to be released from the hospi-

tal that day despite the apparent inability to provide a safe home at that time.

Based on those undisputed facts, and Guinan's "common-sensical judgments,"

Baskin, 401 F.3d at 791, Guinan had more than a hunch; indeed, she met at least the

low bar required by the reasonable suspicion standard. Boston's argument that

Guinan "ignored various pieces of information," is irrelevant because those facts do

not offset the undisputed facts Guinan relied on—those facts are not outcome deter-

minative, see Harper v. Vigilant Ins. Co., 433 F.3d 709, 713 (7th Cir. 2009). On the

contrary, requiring Guinan to further investigate would be to suppose that Guinan

was required to meet a tougher standard than the reasonable suspicion standard.

Boston also argues that certain facts, which Guinan relied on to make her removal

decision, did not create imminent harm, (see, e.g., ECF No. 41 at 8 ("A lack of clothes,

wipes, car seat, and crib at the hospital does not create imminent harm").) However,

Boston's reliance on certain individual facts to show that Guinan did not have rea-

sonable suspicion of imminent harm is misguided, since "[d]etermining whether a

[caseworker] had reasonable suspicion is assessed considering the totality of the cir-

cumstances . . . ." Baskin, 401 F.3d at 791 (emphasis added).

Second, Boston inappropriately relies on certain facts to allege that Guinan did

not have reasonable suspicion. For example, Boston states a reason for why her water

bill was not paid and why she did not have items with her at the hospital. (ECF No.

41 at 3–4.) But her reliance on those facts is inapt because those facts came to light

at Boston's detention hearing, after Guinan made the decision to remove Boston's

children from her custody, and "[i]n the context of removing a child without a court

order, the 'focus is on the facts and circumstances known to defendants at the time

they decided to remove [the child] . . . .'" VanWinkle v. Nichols, No. 1:15-cv-01082,

2017 WL 4224767, at *19 (S.D. Ind. Sept. 22, 2017) (quoting Hernandez, 657 F.3d at

475) (emphasis added). Even if these facts had been known to Guinan at the time

though, such additional facts are irrelevant because, as previously noted, additional

mitigating facts do not offset the undisputed sufficient facts Guinan relied on includ-

ing at least the positive umbilical cord test. Here, the undisputed facts known to

Guinan when she decided to remove Boston's children led her to believe removal was

warranted, and the Court finds that a prudent caseworker, on those facts, could have

believed R.T. faced immediate harm. Therefore, Boston has not met her burden show-

ing that her right to familial relations was violated. This failure is enough to defeat

her claim.

2. Clearly Established Constitutional Standards

Even if Boston could show that her right to familial relations was violated, she

fails to show "that the constitutional standards at issue were clearly established at

the time of the alleged violation." Figgs v. Dawson, 829 F.3d at 906 (quoting Campbell

v. Peters, 256 F.3d at 699). The Seventh Circuit has noted that, usually, "because the

balance between a child's liberty interest in familial relations and a state's interest

in protecting the child is nebulous at best, social workers and other state actors who

cause a child's removal are entitled to qualified immunity because the alleged consti-

tutional violation will rarely—if ever—be clearly established." Brokaw, 235 F.3d at

1022. "Social workers often act on limited information; those who tarry, or resolve

all doubts in favor of the parents, chance enduring damage to the children. Immunity

helps social workers put their private interests aside and concentrate on the welfare

of children." Millspaugh, 937 F.2d at 1176–77.

Ordinarily, "[t]o prove the presence of a clearly established constitutional right,

the plaintiff must point to closely analogous cases decided prior to the defendants'

challenged actions." Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991) (inter-

nal quotation marks omitted). "The law is 'clearly established' when 'various courts

have agreed that certain conduct is a constitutional violation under facts not distin-

guishable in a fair way from the facts presented in the case at hand.'" Figgs, 829 F.3d

at 905 (quoting Campbell v. Peters, 256 F.3d 695, 701 (7th Cir. 2001)). It is not nec-

essary, however, for the plaintiff to "point to an identical case." Reed v. Palmer, 906

F.3d 540, 547 (7th Cir. 2018). Courts "look first to controlling Supreme Court prece-

dent and our own circuit decisions on the issue." Id. (quoting Jacobs v. City of Chicago,

215 F.3d 758, 767 (7th Cir. 2000)). "If no controlling precedent exists, courts 'broaden

[their] survey to include all relevant caselaw in order to determine whether there was

such a clear trend in the caselaw that we can say with fair assurance that the recog-

nition of the right by a controlling precedent was merely a question of time.'" Id.

(quoting Jacobs, 215 F.3d at 767).

Alternatively, "'[i]n some rare cases, where the constitutional violation is patently

obvious, the plaintiffs may not be required to present the court with any analogous

cases." Id. (quoting Jacobs, 215 F.3d at 767); see also Brokaw, 235 F.3d at 1022.

"Instead, plaintiffs can demonstrate clearly established law by proving the defend-

ant's conduct was so egregious and unreasonable that . . . no reasonable [official] could

have thought he was acting lawfully.'" Reed, 906 F.3d at 547 (quoting Abbott v. San-

gamon Cnty., 705 F.3d 706, 724 (7th Cir. 2013)). Therefore, "[c]ases claiming govern-

mental interference with the right of family integrity are properly analyzed by plac-

ing them, on a case by case basis, along a continuum between the state's clear interest

in protecting children and a family's clear interest in privacy." Brokaw, 235 F.3d at

1022 (quoting Morris v. Dearborne, 181 F.3d 657, 671 (7th Cir. 1999)).

Boston argues that Finnegan v. Myers, No. 3:08-cv-503, 2015 WL 5252433, at *1

(N.D. Ind. Sept. 8, 2015), is analogous to prove the presence of a clearly established

constitutional right in this case. Defendants reply that Finnegan, a district court

case without precedential effect, is not analogous. The Court disagrees with Boston

because Finnegan is not closely analogous to this case. Finnegan's facts are complex

and involve DCS removing the plaintiff's children after one of plaintiff's daughters

tragically died. Id. at *6–11. In Finnegan, there were also multiple investigations,

hearings, and civil and criminal actions, not to mention the children were removed

for a lengthy period. Id. Here, the facts are not analogous. Boston also asserts that

Guinan ignored pieces of information provided to her, like the investigators in Finne-

gan. But the information that Guinan allegedly ignored,3 here, is far from analogous

to the information that the investigators ignored in Finnegan. For example, in Fin-

negan, the defendants allegedly consistently ignored exculpatory evidence and went

so far as to deliberately withhold it from the plaintiff, the Coroner, and the courts

during the post-deprivation process. Id. at *22. Here, no such analogous information

was ignored. And, in any event, a lone district court case does not make a right clearly

established for qualified-immunity purposes.

Although Boston does not point to a closely analogous case, she can still prove the

presence of a "clearly established constitutional right by showing that the violation

was so obvious that a reasonable person would have known of the unconstitutionality

of the conduct at issue." Brokaw, 235 F.3d at 1022. Defendants argue that Boston

fails in this respect because Boston does not "refute much of the evidence Guinan

used to make her removal decision, but instead argues that Guinan should have con-

sidered other information or conducted further investigation to arrive at a different

3 The Court reiterates that much of the information Boston claims Guinan ignored came to

light during the detention hearing and was not known to Guinan at the time she made her

decision to remove R.T., A.T., and A.T. Also, that information does not undermine the con-

clusion the decision here met the reasonable suspicion standard.

conclusion . . . ." (ECF No. 42 at 4.) The Court agrees with Defendants. Indeed,

construing all facts and reasonable inferences in the light most favorable to Boston,

she simply fails to show that Guinan's "conduct was so egregious and unreasonable

that . . . no reasonable [official] could have thought he was acting lawfully.'" Reed,

906 F.3d at 547 (quoting Abbott, 705 F.3d at 724).

Guinan is entitled to qualified immunity because Boston has not met her burden

of showing either that there has been a violation of her right to familial relations or

that the constitutional standards at issue were clearly established at the time of the

alleged violation. See Figgs, 829 F.3d at 906. Therefore, Defendants' Motion for Sum-

mary Judgment is granted as it relates to Boston's substantive due process claims

against Guinan.

C. Absolute Immunity

Boston's Complaint alleges that Guinan "knew or should have known that the

evidence in her possession was insufficient to file a CHINS petition." (Compl. ¶ 33,

ECF No. 1-1.) However, Guinan did not file the CHINS petition; DCS attorney Grace

Chimples did, and she did so at the direction of Guinan's DCS supervisor. So, Guinan

was at least twice removed from the filing of the petition. But even if Guinan had

filed the CHINS petition in this case, or perhaps misinformed her supervisor, Guinan

would nonetheless be subject to absolute immunity, see infra.

In her response, Boston for the first time also alleges that Guinan omitted, mis-

characterized, and provided false information to the Juvenile Court. (ECF No. 40 at

10.) Boston asserts that because Guinan "knew" that she had basic necessities in her

possession, that the lack of running water at Boston's residence was temporary, and

that she had a negative urine test, the manner in which Guinan reported these issues

to the trial court was "misconduct." (Id.) Furthermore, Boston argues that "Guinan

manipulated the information presented to the DCS Attorney and the Court when she

neglected to include important information and assert that Boston did not have a car

seat or crib and that parental cooperation was lacking." (Id.)

Boston's arguments, however, are unavailing. Not only was it DCS Attorney

Chimples that signed and filed the CHINS Petition, which was also signed by Guin-

an's supervisor rather than by Guinan, but Boston does not point to any evidence to

show that Guinan manipulated the information presented to the DCS Attorney or the

Court. In fact, the CHINS Petition alleged, in relevant part, that:

The family was the subject of a previous . . . CHINS case from March

2017 until June 2017, filed due to concerns for [sic] substance abuse and

domestic violence in the home. The child [RT] tested positive for cocaine

at birth. At the time of [RT's] birth, parents stated to hospital staff that

they lacked appropriate items for the newborn. Parents also stated that

the water at their residence was about to shut off. Ms. Boston acknowl-

edged that she had tested positive for cocaine in a previous DCS CHINS

case, but denied any cocaine use and offered multiple explanations for

how she and the child would have tested positive, including possibly us-

ing someones toothbrush who had used cocaine, accidentally touching

cocaine, and falsification of the test results. . . . Additionally, between

February 2017 and May 2017 there were six (6) police runs to the home

with concerns for domestic violence, most of which occurred while the

previous CHINS case was open.

(CHINS Petition at 2, ECF No. 35-9.) The facts alleged in the petition are consistent

with Guinan's investigation and report and have not been disputed. Further, Boston

does not point to any evidence—e.g., no affidavit, no ruling from the Juvenile Court,

etc.—to show that Guinan omitted, mischaracterized, or provided false information

to the Juvenile Court. Indeed, based on the undisputed facts, there is no evidence

from which the Court could make a reasonable inference that Guinan omitted, mis-

characterized, or provided false information to the Juvenile Court. Finally, the Ju-

venile Court did not find that Guinan provided false information. Instead, the Juve-

nile Court ruled in Boston's favor based on the "insufficiency" of the evidence.

Yet, even if Guinan had attempted to mislead the Juvenile Court, she would be

entitled to absolute immunity for acts taken during the initiation of child-welfare

court proceedings. In Millspaugh, the plaintiffs alleged that a social worker caused

the plaintiffs a deprivation of their children by improperly making arguments to the

court, furnishing or withholding evidence. 937 F.2d at 1175. The Seventh Circuit

found that, even assuming the social worker "acted out of improper motives and mis-

led the court," she was entitled to absolute immunity. Id. Indeed, the court held

"that social 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 court." Id. at 1176.

Here, because the submission of the CHINS petition was done to ask a judicial

offer to take judicial action, if Guinan did submit the CHINS petition to the court,

that act would be subject to absolute immunity. Furthermore, even if Guinan had

omitted, mischaracterized, and provided false information to the Juvenile Court, she

would be entitled to absolute immunity.

D. State-Law Claims

Having dismissed all federal claims on the merits, and there being no indication

of diversity jurisdiction at least because the parties are not diverse, 28 U.S.C.

§ 1332(a), the Court could choose not to exercise its discretion to retain jurisdiction

over the remaining state law claims. 28 U.S.C. § 1367. However, the facts and pos-

ture of this case, along with notions of judicial economy counsel for the Court to exer-

cise its jurisdiction here. See Williams Elecs. Games, Inc. v. Garrity, 479 F.3d 904,

907 (7th Cir. 2007) ("Jurisdiction over supplemental claims should be retained even

though the federal claims have dropped out: where the statute of limitations would

bar the refiling of the supplemental claims in state court . . . ; where substantial fed-

eral judicial resources have already been expended on the resolution of the supple-

mental claims; and where it is obvious how the claims should be decided.").

Defendants assert that (1) DCS is entitled to immunity under the ITCA, (2) that

Guinan is immune from suit under the ITCA for acts performed in the scope of her

official duties, (3) that Defendants' conduct does not support an intentional infliction

of emotional distress claim, and (4) the Defendants' conduct does not support a neg-

ligent infliction of emotional distress claim. The Court addresses these in turn.

1. DCS is Entitled to Immunity Under the ITCA

DCS contends that it is immune under the ITCA, codified in Indiana Code § 34-

13-3-3(6). Under the ITCA, a "governmental entity or an employee acting within the

scope of the employee's employment is not liable if a loss results from . . . [t]he initi-

ation of a judicial . . . proceeding." Ind. Code § 34-13-3-3(6). Section "34-13-3-3(6)

protects state officials and employees from suits brought by those who were the sub-

ject of or experienced a loss from a civil or criminal adjudication." F.D. v. Ind. Dep't

of Child Servs., 1 N.E.3d 131, 137 (Ind. 2013). "A judicial proceeding in the context

of governmental immunity has been defined as a proceeding for the purpose of ob-

taining such remedy as the law allows." Ind. Dep't of Fin. Insts. v. Worthington

Bancshares, Inc., 728 N.E.2d 899, 902 (Ind. Ct. App. 2000) (internal quotations omit-

ted).

Defendants further assert that if a party's action is taken leading to a judicial

proceeding, the underlying conduct is immune under the ITCA. Defendants point to

two cases to back their point. First, in Worthington, after an audit found substantial

losses, the defendant took action to close the plaintiff's bank. 728 N.E.2d at 901. The

plaintiff sued the defendants for damages arising from its action to close the bank,

and the defendants moved for summary judgment, alleging judicial or administrative

proceeding immunity. Id. The Indiana Court of Appeals held that the defendant's

actions of placing the bank in receivership were entitled to immunity. Id. Next, in

Hedges v. Rawley, 419 N.E.2d 224, 225–26 (Ind. Ct. App. 1981), the plaintiff, a super-

intendent at a municipal sewage treatment plant, suspended two of his employees

pending a police investigation. The court again concluded the ITCA granted the as-

sistant superintendent immunity because he participated in the initiation of a judi-

cial proceeding. See id. at 228.

Given the holdings in Worthington and Hedges, that immunity extends to the con-

duct that occurred before the initiation of judicial proceedings, Defendants contend

DCS is entitled to immunity. In response, Boston argues that DCS is not immune

from suit under the ITCA because the actions of Guinan were "not within the scope

of any appropriate official duties." (ECF No. 41 at 11.)

"To be within the scope of employment, conduct must be of the same general na-

ture as that authorized, or incidental to the conduct authorized." Celebration Fire-

works, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000) (citing Restatement (Second)

Agency § 229 (1958)). "[T]o be incidental, however, [an act] must be one which is

subordinate to or pertinent to an act which the servant is employed to perform." Id.

(citing Restatement (Second) Agency § 229 cmt. b). Even tortious, malicious, or crim-

inal acts may fall within the scope of employment." See Burton v. Benner, 140 N.E.3d

848, 853 (Ind. 2020).

Here, Boston again alleges without support that Guinan's actions were not in the

scope of employment because Guinan omitted, mischaracterized, and provided false

information to the Juvenile Court. As the Court found above, Boston does not point

to any evidence to show that Guinan omitted, mischaracterized, or provided false in-

formation to the Juvenile Court. Therefore, Boston's argument fails because Guinan

actions leading to the initiation of a judicial proceeding were within the scope of her

employment. And even if Guinan had omitted, mischaracterized, or provided false

information to the Juvenile Court, her actions would still have been within the scope

of employment. See Ball v. Jones, 52 N.E.3d 813, 820–21 (Ind. Ct. App. 2016) (hold-

ing, on appeal of a summary judgment ruling, that a police officer's action of falsifying

a probable cause affidavit "was incidental to the conduct authorized" by his employer

and "to an appreciable extent to further his employer's business" such that the officer

was within the scope of employment and cloaked with immunity).

Moreover, even if Guinan's actions were outside the scope of her employment, Bos-

ton has argued her way out of court. Under the doctrine of respondeat superior, an

employer is only liable for damages "for the wrongful acts of its employees which are

committed within the scope of employment." Knighten v. E. Chi. Housing Auth., 45

N.E.3d 788, 792 (Ind. 2015) (quoting Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148

(Ind. 1999) (emphasis added). Here, if Guinan's acts were outside the scope of her

employment, DCS cannot be held liable. Boston's Claims against DCS therefore fail,

and Defendants' Motion for Summary Judgment is granted as it relates to Boston's

state-law claims against DCS.

2. Guinan is Entitled to Immunity Under the ITCA

Boston alleges that her rights were violated when Guinan removed her children

as part of Guinan's initial CHINS assessment made at the hospital. (Compl. ¶ 31–

32, ECF No. 1-1.) Defendants argue that Guinan's removal of Boston's children was

in the scope of her employment, and, therefore, Guinan is entitled to immunity under

the ITCA. Defendants have the better argument.

The ITCA "governs lawsuits against political subdivisions and their employees."

Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003) (citing Ind. Code § 34-13-3 1

et seq.). "The statute sets forth certain parameters to determine liability for negligent

acts or omissions on the part of government employees and 'provides substantial im-

munity for conduct within the scope of the employee's employment.'" Burton v. Ben-

ner, 140 N.E.3d 848, 852 (Ind. 2020) (quoting Bushong, 790 N.E.2d at 472). "The

purpose of immunity is to ensure that public employees can exercise their independ-

ent judgment necessary to carry out their duties without threat of harassment by

litigation or threats of litigation over decisions made within the scope of their em-

ployment." Celebration Fireworks, 727 N.E.2d at 452 (citation omitted).

Here, Guinan's actions were clearly in the scope of her employment. A complaint

to the DCS Abuse or Neglect Hotline was recommended for assessment and assigned

to Guinan. After being assigned the case, Guinan went to St. Francis Hospital to

meet with Ms. Schank and Boston. After her assessment, Guinan made the determi-

nation that Boston's children should be removed. All of Guinan's actions were done

during her official duties with the state of Indiana—during the scope of her employ-

ment. Because Boston's claims against Guinan are for actions Guinan took during

the scope of her employment, those claims are barred under the ITCA. See Ind. Code

34-13-3-5(b).

Furthermore, Boston's remaining and already refuted argument, that Guinan pro-

vided misinformation to the DCS attorney and the Juvenile Court was not in the

scope of her official duties, is inapt. Indeed, the Court previously found, see supra

Section D.1, that, even taking Boston's allegations as true (that Guinan falsified in-

formation in the CHINS petition), Guinan was acting within the scope of her employ-

ment. See Ball, 52 N.E.3d at 820–21. Furthermore, Boston does not present any

evidence, provide any argument, or point to any case law to support the bald assertion

that Guinan's acts were "clearly outside the scope of [her] employment." Ind. Code §

34-13-3-5(c)(2). Thus, Guinan is entitled to immunity under the ITCA.

3. Intentional Infliction of Emotional Distress

The tort of intentional infliction of emotional distress ("IIED") "arises when a de-

fendant: (1) engages in 'extreme and outrageous' conduct that (2) intentionally or

recklessly (3) causes (4) severe emotional distress to another." Creel v. I.C.E. & As-

socs., Inc., 771 N.E.2d 1276, 1282 (Ind. Ct. App. 2020) (quoting Bradley v. Hall, 720

N.E.2d 747, 752 (Ind. Ct. App. 1999)). "The requirements to prove this tort are 'rig-

orous,' id. (quoting Ledbetter v. Ross, 725 N.E.2d 120, 124 (Ind. Ct. App. 2000)), and

"the conduct at issue must exceed all bounds usually tolerated by a decent society and

cause mental distress of a very serious kind," id. That is, "[l]iability has been found

only where the conduct has been so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community. Id. (quoting Restatement (Second) of

Torts §46)).

Here, Boston provides a few arguments to support her claim of IIED, none of which

are compelling. Boston essentially argues that Guinan's alleged actions, providing

false information, mischaracterizing events, and initiating a CHINS action against

parents that may be struggling financially, allegations which the Court has found to

be unsupported, absolutely shock the conscience. Boston provides no additional sup-

port for her assertions. The Court finds that Guinan's conduct was not so outrageous

in character that it could be considered "utterly intolerable in a civilized community."

Creel, 771 N.E.2d at 1282; see also Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F.

Supp.2d 942, 957 (S.D. Ind. 2007). But even if Guinan's conduct met that rigid stand-

ard and proved the "extreme and outrageous" element of an IIED claim, Boston fails

to prove any of the additional elements of IIED; most importantly Boston cannot

prove intent. See id. ("The intent to harm emotionally constitutes the basis of this

tort.") Indeed, construing all facts and reasonable inferences in the light most favor-

able to Boston, she cannot show that Guinan intended to cause emotional harm to

Boston. Therefore, Defendants' Motion for Summary Judgment is granted as it re-

lates to Boston's claim of IIED.

4.Negligent Infliction of Emotional Distress

Boston's claim of negligent infliction of emotional distress ("NIED") meets a simi-

lar fate as her IIED claim. An NIED claim can arise from (1) a physical "injury"; (2)

a physical "impact," which requires some type of physical contact but no injury, such

as being involved in a car accident; or (3) being a bystander to the death or severe

injury of a loved one. See Smith v. Toney, 862 N.E.2d 656, 658 (Ind. 2007). Boston

was not physically injured and did not suffer a physical impact. She instead alleges

that she experienced "physical involvement by being physically separated from her

children." (ECF No. 41 at 12.) "Physical involvement" does not rise to the level of a

physical injury or impact. Spangler v. Bechtel, 958 N.E.2d 458, 465 (Ind. 2011) (stat-

ing that under the modified impact rule, recovery is permitted "so long as the plaintiff

personally sustained a physical impact, in addition to emotional distress damages")

(emphasis added). Therefore, the only theory of NIED that Boston can assert given

the facts of this case is the bystander theory. The Court, in determining as a matter

of law whether to preclude liability for bystander recovery for NIED, considers (1) the

severity of the victim's injury, (2) the relationship of the plaintiff to the victim, and

(3) circumstances surrounding the plaintiff's discovery of the victim's injury. See id.

at 660. Boston's claim fails because, construing all facts and reasonable inferences

in the light most favorable to her, she does not allege, and the evidence does not show,

that any of her children were injured during the removal process. Therefore, Defend-

ants' Motion for Summary Judgment is granted as it relates to Boston's NIED claim.

E. Remaining Issues

Boston's Complaint states the words "procedural due process,"(Compl. ¶ 30, ECF

No. 1-1), but it does not appear that Boston has pursued or otherwise made out a

claim for procedural due process against Defendants. Indeed, Boston has abandoned

any potential procedural due process claim, see Palmer v. Marion Cnty., 327 F.3d 588,

597–98 (7th Cir. 2003), because she fails to address any such claim in her statement

of claims, (ECF No. 33), or in her response to Defendants' motion for summary judg-

ment, (ECF No. 41). In short, to the extent she makes any allegations of a procedural

due process violation, it does not appear that she states a claim.

Likewise, Boston's nebulous claim that Defendants violated her due process rights

by inferring drug use meets a similar fate. To the extent Boston is alleging a proce-

dural due process claim, she failed to address any such claim in her response, (see

ECF No. 41), thereby abandoning any such claim, see id.

IV. Conclusion

For the above reasons, Defendants' Motion for Summary Judgment (ECF No. 35)

is granted. All claims against Defendant Bowker, including malicious prosecution,

are dismissed with prejudice because Boston concedes Bowker is immune from

suit. All claims against Defendant Indiana Department of Child Services, including

abuse of process, are dismissed with prejudice because DCS is not a "person" un-

der § 1983 and is immune under the Indiana Tort Claims Act. All claims against

Defendant Guinan, in her official capacity, are dismissed with prejudice because

Guinan is shielded by absolute immunity, qualified immunity, and the ITCA. And,

Plaintiff's claims of intentional infliction of emotional distress and negligent infliction

of emotional distress are dismissed with prejudice because Plaintiff has not met

her burden of proof on either claim. Judgment will issue under separate order.

SO ORDERED.

—?

Date: 3/2/2021

JAMES R. SWEENEY II, JUDGE

United States District Court

Southern District of Indiana

26

Distribution:

Brandon Carothers

INDIANA ATTORNEY GENERAL

bcarothers@atg.in.gov

Robert E. Shive

EMSWILLER WILLIAM NOLAND & CLARKE

rshive@ewnc-law.com

Jordan Michael Stover

INDIANA ATTORNEY GENERAL

jordan.stover@atg.in.gov

DawnMarie White

EMSWILLER WILLIAM NOLAND & CLARKE

dmwhite@ewnc-law.com