RIDENER v. INDIANA DEPARTMENT OF CHILD SERVICES

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

LISA MAUREEN RIDENER, )

DARWIN RIDENER, )

)

Plaintiffs, )

)

v. ) No. 4:21-cv-00074-KMB-TWP

)

INDIANA DEPARTMENT OF CHILD )

SERVICES, )

TERRY STIGDON, )

MICHELLE RUSSELL, )

KELSEY SMITH, )

KELSEY BARRETT, )

WHITNEY MCKAY, )

)

Defendants. )

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Presently pending before the Court is Defendants' Motion for Summary Judgment. [Dkt.

81.] Defendants—Michelle Adams (f/k/a Michelle Russell), Kelsey Smitha, Kelsey Barrett, and

Whitney McKay—are Indiana Department of Child Services ("DCS") employees who Plaintiffs

Lisa and Darwin Ridener (the "Rideners") allege unlawfully removed their adoptive children (the

"Children") from the Rideners' care in March 2020. [Dkts. 21; 68.] In their Second Amended

Complaint, [dkt. 21], the Rideners alleged various federal constitutional violations pursuant to 42

U.S.C. § 1983, but only the Rideners' Fourth Amendment claim survived the Motion for Judgment

on the Pleadings previously filed by the Defendants, [dkt. 56]. Accordingly, the Rideners' only

remaining cause of action in this case is their Fourth Amendment unreasonable seizure claim

against Defendants Adams, Smitha, Barrett, and McKay. [Dkt. 68.] Defendants have asked the

Court to enter summary judgment in their favor on that claim, and for the reasons detailed below,

the Court grants the pending motion. [Dkt. 81.]

I. APPLICABLE STANDARD

A motion for summary judgment asks the court to find that a trial is unnecessary because

there is no genuine dispute as to any material fact, and instead, the movant is entitled to judgment

as a matter of law. See Fed. R. Civ. P 56(a). On summary judgment, a party must show what

evidence it has that would convince a trier of fact to accept its version of the events. Johnson v.

Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). "Summary judgment is not a time to be

coy." King v. Ford Motor Co., 872 F.3d 833, 840 (7th Cir. 2017) (quoting Sommerfield v. City of

Chicago, 863 F.3d 645, 649 (7th Cir. 2017)). Rather, at the summary judgment stage, "[t]he parties

are required to put their evidentiary cards on the table." Sommerfield, 863 F.3d at 649.

The moving party is entitled to summary judgment if no reasonable factfinder could return

a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The trial

court views the record in the light most favorable to the non-moving party and draws all reasonable

inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.

2008). It cannot weigh evidence or make credibility determinations on summary judgment

because those tasks are left to the factfinder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630

(7th Cir. 2011).

Each fact asserted in support of or in opposition to a motion for summary judgment must

be supported by "a citation to a discovery response, a deposition, an affidavit, or other admissible

evidence." S.D. Ind. L.R. 56-1(e). And each "citation must refer to a page or paragraph number

or otherwise similarly specify where the relevant information can be found in the supporting

evidence." Id. The Court need only consider the cited materials and need not "scour the record"

for evidence that is potentially relevant. Grant v. Trustees of Ind. Univ., 870 F.3d 562, 572-73

(7th Cir. 2017) (quotations omitted); see also Fed. R. Civ. P. 56(c)(3); S.D. Ind. L.R. 56-1(h).

Where a party fails to properly support an assertion of fact or fails to properly address another

party's assertion of fact, the court may consider the fact undisputed for purposes of the summary

judgment motion. Fed. R. Civ. P 56(e)(2).

In deciding a motion for summary judgment, the court need only consider disputed facts

that are material to the decision. A disputed fact is material if it might affect the outcome of the

suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In

other words, while there may be facts that are in dispute, summary judgment is appropriate if those

facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.

2005). Factual disputes that are irrelevant to the legal question will not be considered. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

II. RELEVANT BACKGROUND

The following factual background is set forth pursuant to the standard explained above.

The facts stated herein are not necessarily objectively true, but as the summary judgment standard

requires, the undisputed facts and the disputed evidence are presented in the light most favorable

to the Rideners because they are "the party against whom the motion under consideration is made."

Premcor USA, Inc. v. Am. Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

The Rideners were the adoptive parents of five children: E.A.R., J.S.R., J.T.R., E.G.R.,

and J.A.R. [Dkt. 82-1 at 4.] Two foster children also lived with the Rideners during the relevant

time. [Id. at 11.] On March 14, 2020, DCS received a report alleging that the Children were

victims of neglect and that E.A.R. was a victim of physical abuse. [Dkt. 82-3 at 5.] The report

source indicated that Lisa was the perpetrator of such abuse and that "things [were] really bad" at

the Rideners' home. [Id.] Defendant Barrett, who was a Family Case Manager for DCS, was

assigned to investigate the allegations against the Rideners later that day. [Id.] After having Lisa

sign a consent form that authorized DCS to interview all five of the Children, [dkts. 81-7; 81-5 at

27-28], Barrett proceeded to interview the Children, Lisa, and one of the foster children living with

the Rideners regarding the abuse allegations, [dkt. 82-3 at 5]. Based on information she obtained

through these interviews—including Lisa's own statements that she had screamed at and used

physical discipline on the Children—Barrett then scheduled emergency interviews of the five

Children and the two foster children to be conducted later that evening at the Southeastern Indiana

Child Advocacy Center ("CAC"). [Id.] During the CAC interviews, some of the Children and the

two foster children disclosed abuse by Lisa. [Id.] J.A.R. was also observed with a mark/scar on

the back of his head. [Dkt. 82-4 at 2.]

In light of the evidence obtained through her investigation, Barrett recommended that the

Children be removed from the Rideners' care. [Dkts. 82-1 at 7-8, 15-17.] Defendant Smitha, who

was Barrett's supervisor, signed off on Barrett's findings and recommendation. [Dkts. 82-1 at 7-8,

15-17.] At around 10:37 P.M. on March 14, 2020, Supervisor Wahl, who was the on-call

supervisor, contacted the Switzerland County Circuit Court judge by phone to obtain an order to

remove the Children. [Dkts. 81-5 at 30-31; 81-8 at ¶¶ 6, 15; 82-3 at 6.] Supervisor Wahl informed

the judge of the evidence DCS had gathered to substantiate abuse and neglect findings, the judge

provided verbal authorization over the phone for removal, and the Children were removed from

the Rideners' care. [Dkts. 81-8 at ¶¶ 16-18; 81-5 at 31.]

Meanwhile, the Indiana State Police ("ISP") had begun investigating whether to bring

criminal charges against the Rideners. [See dkt. 82-5.] ISP Officers Sergeant K. Main and

Detective V. Patton were present at the CAC interviews on the night of March 14, 2020, and on

March 16, 2020, Detective Patton and Sergeant Baxter, who was the Investigation Supervisor for

the Versailles District Office of ISP, spoke with Lisa at her home. [Id. at 2, 4-5; Dkt. 81-9 at 7.]

After speaking with Lisa, Detective Patton and Sergeant Baxter met with the Switzerland County

Prosecutor to discuss the findings from their investigation. [Dkt. 82-5 at 6.] Ultimately, the

Prosecutor determined not to criminally charge Lisa. [Id.]

On March 17, 2020, DCS filed its Preliminary Inquiry1 and requested that the Switzerland

Circuit Court grant DCS leave to file a petition alleging that the Children were Children in Need

of Services ("CHINS"). [Dkt. 82-1 at 2.] Having considered the Preliminary Inquiry, the

Switzerland Circuit Court found that there was probable cause to believe that the Children were

CHINS and therefore authorized DCS to files its CHINS petition. [Dkt. 82-6.] A hearing was

held later that day, and the Switzerland Circuit Court found that probable cause existed for DCS's

continued detention of the Children. [Dkt. 82-7 at 9-10.] The judge ordered that the Children

remain in the Rideners' home but in the supervised care of their adult sister, Paige Ridener, and

that the Rideners be excluded from the home. [Id. at 7-9.] DCS did not inform the Switzerland

Circuit Court in its Preliminary Inquiry or during the hearing that law enforcement had declined

to bring criminal charges against Lisa. [Dkts. 82-1; 82-7.]

On March 28, 2020, while the Children were in Paige's care, a fire broke out at the Rideners'

home. [Dkt. 81-10 at 15.] Tragically, the Children and Paige all died in the fire. [Id. at 15, 19.]

After an investigation, the Indiana State Fire Marshal was unable to determine the cause of the

fire. [Id. at 20.]

III. ANALYSIS

In support of their Motion for Summary Judgment, Defendants make five arguments: (1)

that the Rideners cannot assert a Fourth Amendment claim individually because they were not

1 A Preliminary Inquiry is a written report that summarizes all information that has been gathered

during an investigation and the reasons why DCS is requesting that detention be upheld. [Dkt. 81-

2 at 9-10.]

seized; (2) that the Children's Fourth Amendment claim did not survive their deaths; (3) that

Defendants did not violate the Fourth Amendment; (4) that Defendants Adams and McKay were

not sufficiently involved in the removal of the Children to be held liable under the Fourth

Amendment;2 and (5) that Defendants are entitled to qualified immunity. The Court will address

the issues and arguments as necessary to resolve the pending motion.

A. The Rideners do not claim that they were seized and therefore only assert a Fourth

Amendment claim for the seizure of the Children.

As an initial matter, Defendants argue that the Rideners cannot assert a Fourth Amendment

claim on behalf of themselves because they were never seized. [Dkt. 83 at 16.] Rather, Defendants

contend that the Rideners' Fourth Amendment claim stems solely from the seizure of the Children.

[Id.] Thus, Defendants take the position that any Fourth Amendment claim the Rideners "assert

individually must be dismissed." [Id.]

The Rideners do not specifically respond to Defendants' argument that they were not seized

or respond in any way to Defendants' position that they cannot assert a Fourth Amendment claim

on behalf of themselves.

The Supreme Court has explained that "Fourth Amendment rights are personal rights

which, like some other constitutional rights, may not be vicariously asserted." Alderman v. U.S.,

394 U.S. 165, 174 (1969). The Rideners claim that the Children were unreasonably seized, but

they do not claim that they themselves were ever seized. This is understandable, given that no

2 The Court notes that, while the Rideners assert their Fourth Amendment unreasonable seizure

claim against Adams, Smitha, Barrett, and McKay, it is not clear how Defendants Adams and

McKay were personally involved in the removal of the Children. Defendants argue that Adams

and McKay were not sufficiently involved in the removal to be held liable. Nevertheless, because

the Court finds that summary judgment is appropriate as to all Defendants on other grounds, the

Court need not consider the individual roles that Adams and McKay may have played in the

removal regardless of whether they were sufficiently involved to be liable under § 1983.

evidence has been submitted in connection with the pending motion to indicate that the Rideners

themselves were ever seized. Thus, the Court finds that the Rideners have not brought a Fourth

Amendment claim on behalf of themselves, and the Fourth Amendment claim at issue herein stems

solely from the seizure of the Children and has been brought by the Rideners on behalf of the

Children.

B. The Rideners' Fourth Amendment unreasonable seizure claim did not survive the

Children's deaths.

Defendants argue that the Rideners' Fourth Amendment unreasonable seizure claim on

behalf of the Children did not survive the Children's deaths. [Dkt. 83 at 16.] According to

Defendants, 42 U.S.C. § 1983 is silent on the issue of whether a particular claim survives death,

but 42 U.S.C. § 1988 directs courts to look to the most analogous state law claim to determine

survivability. [Id. at 17.] They claim that the Seventh Circuit Court of Appeals has held that a

Fourth Amendment unreasonable seizure claim is most analogous to the common law tort of false

imprisonment. [Id. at 16-17 (citing in Bentz v. City of Kendallville, 577 F.3d 776 (7th Cir. 2009)).]

Defendants assert that under Indiana law, false imprisonment claims do not survive the death of

the individual seized. [Id.] Therefore, Defendants argue that the Fourth Amendment claim did

not survive the Children's deaths and fails as a matter of law. [Id.]

The Rideners respond that the Fourth Amendment claim did survive because the Children's

deaths were allegedly related to and/or arising out of the unreasonable seizure claim. [Dkt. 89 at

5.] The Rideners contend that in Bentz, the Seventh Circuit held that courts should apply Indiana's

survival statute unless it is inconsistent with federal policy to do so. [Id. at 6.] The Rideners

concede that the Fourth Amendment unreasonable seizure claim here is comparable to Indiana's

false imprisonment statute, such that under Indiana law a false imprisonment claim generally

extinguishes upon death. [Id.] But the Rideners claim that their Fourth Amendment claim falls

under an exception to this rule because it allegedly was Defendants' unreasonable seizure of the

Children that led to their deaths. [Id.] The Rideners point the Court to a different case by the

Seventh Circuit Court of Appeals that they assert "allows a remedy in situations where application

of a state's survival statute would leave the plaintiff without a remedy if a deceased could have

sought redress had he survived the wrongdoing which gave rise to a constitutional claim, and the

wrongdoing led to his death." [Id. at 7 (citing Green v. Carlson, 581 F.2d 669 (7th Cir. 1978)).]

In reply, Defendants argue that the Rideners' discussion of the survival issue is

underdeveloped. [Dkt. 91 at 2.] To Defendants, however, it appears that the Rideners argue that

application of Indiana's survival statute would be inconsistent with the purpose of § 1983, in which

case the state law must be disregarded in favor of federal common law. [Id.] Defendants claim

that this argument fails for two reasons: (1) Defendants' actions here did not cause the death of the

Children, unlike the state action in Green that directly caused the death at issue in that case; and

(2) federal policy as to the Fourth Amendment claim is consistent with Indiana's policy as to false

imprisonment claims. [Id.]

1. The Rideners' Fourth Amendment unreasonable seizure claim is most analogous to

the Indiana tort of false imprisonment, which does not survive death.

The Court agrees with Defendants that the Fourth Amendment unreasonable seizure claim

did not survive the Children's deaths. In Bentz, the plaintiff brought a Fourth Amendment claim

under § 1983 against police officers who entered his home without a warrant, arrested him, and

searched his home for potential domestic violence victims. Bentz, 577 F.3d at 777. The district

court granted summary judgment in favor of the police officers, and the plaintiff appealed the

decision. Id. But while the appeal was pending, the plaintiff "passed away from causes unrelated

to the lawsuit." Id. The defendant moved to dismiss the appeal, "arguing that [the plaintiff's]

claims did not survive his death." Id. at 778. The Seventh Circuit agreed and held that the

plaintiff's Fourth Amendment unreasonable seizure claim ended with his death. Id. at 780-81.

Bentz explained that § 1983 "is silent on the issue of survival, so 42 U.S.C. § 1988 directs

us to look to the most closely analogous state law to determine survivability." Id. (internal

quotation marks omitted). "When analyzing the survivability of § 1983 claims, we therefore apply

the state survival statute unless it is inconsistent with federal policy." Id. To succeed on an

unreasonable seizure claim, Bentz explained that the plaintiff's representative would need to show

"that the government's conduct constituted a seizure and that the seizure was unreasonable," and

that "[u]nder the Fourth Amendment, a person has been seized only if, in view of all circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave."

Id. at 779 (internal quotation marks omitted). Bentz concluded that "[t]he standards for false

imprisonment in Indiana are remarkably similar":

Under Indiana law, false imprisonment is defined as the unlawful restraint upon

one's freedom of movement or the deprivation of one's liberty without consent. As

with the Fourth Amendment, where the police arrest a suspect without probable

cause, they can be held liable for false imprisonment. In other words, a plaintiff

may establish both a § 1983 claim and an Indiana false imprisonment claim where

his freedom of movement was limited or restrained in some way without probable

cause. The elements of the causes of action are nearly identical, and [plaintiff]

could have framed his claim in terms of the Indiana tort of false imprisonment,

federal law, or both.

Id. at 779-80 (internal quotation marks and citations omitted). Thus, Bentz concludes that "Indiana

law establishes that [a] § 1983 claim for unreasonable seizure is analogous to an Indiana tort claim

for false imprisonment, which does not survive a decedent's death." Id. at 780; see Ind. Code §

34-9-3-1(a)(4) ("If an individual who is entitled … in a cause of action dies, the cause of action

survives and may be brought by … the representative of the deceased party except actions for …

false imprisonment.") (emphasis added).

While Bentz concerned a Fourth Amendment unreasonable seizure claim against police

officers and not DCS employees, the Seventh Circuit has considered the Fourth Amendment's

prohibition on unreasonable seizures in the child removal context. Like in the arrest context, the

Fourth Amendment inquiry in the child removal context turns on whether a seizure occurred and

whether the seizure was reasonable. See Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463,

474-75 (7th Cir. 2011) (finding that "[r]emoving [a child] from his home and parents and taking

him into protective custody qualifies as a seizure" and that "[i]n the context of removing a child

from his home and family, a seizure is reasonable if it is pursuant to a court order, if it is supported

by probable cause, or if it is justified by exigent circumstances"). Therefore, because the Fourth

Amendment analysis in the child removal context is the same as in the arrest context, Bentz is

instructive here, and the Court must conclude that the elements of a Fourth Amendment

unreasonable seizure claim in the child removal context are analogous to the Indiana tort of false

imprisonment.

In sum, Seventh Circuit precedent is clear that the Fourth Amendment unreasonable seizure

claim here is most analogous to the Indiana tort of false imprisonment, which does not survive a

decedent's death pursuant to Indiana law. Ind. Code § 34-9-3-1(a)(4). Accordingly, the Court

must conclude that the Fourth Amendment unreasonable seizure claim that the Rideners bring on

behalf of the Children—the only remaining pending claim in this lawsuit—extinguished upon the

death of the Children. See also Camm v. Clemons, 544 F.Supp.3d 847, 855 (7th Cir. 2021) (finding

that the plaintiff's "claim for unlawful arrest and detention because of lack of probable cause under

the Fourth Amendment clearly is analogous to the Indiana tort of false imprisonment" and "that

claims for false imprisonment … abate upon a party's death").

2. Application of Indiana's survival statute is not inconsistent with the policies

underlying § 1983.

Although the Rideners concede that the Fourth Amendment unreasonable seizure claim is

comparable to Indiana's false imprisonment statute and that such claims do not survive death, [dkt.

89 at 6], they nevertheless contend that this claim survived because DCS's allegedly unreasonable

seizure led to the Children's deaths. The Rideners cite Seventh Circuit precedent that they contend

supports their argument. [Dkt. 89 at 6 (citing Green, 581 F.2d at 675).]

At the outset, it is important to note that the Rideners' unreasonable seizure claim focuses

on the Defendants' initial seizure, questioning, and subsequent removal of the Children, not on

their deaths. Nevertheless, after reviewing Green, the Court concludes that the facts of that case

are not analogous to the Rideners' case, and Green does not change the clear directive provided by

Bentz as detailed above. The decedent at issue in Green died directly from improper medical care

provided by prison medical staff. See 581 F.2d at 671 (explaining that decedent suffered an asthma

attack, a medical training assistant administered two injections of a drug contraindicated for

asthma attacks, and decedent suffered a respiratory arrest 30 minutes after the injections and was

pronounced dead after being transported to a hospital). The Seventh Circuit held that "whenever

the relevant state survival statute would abate a [federal] action brought against defendants whose

conduct results in death, the federal common law allows survival of the action." Id. at 675

(emphasis added).

While the facts of this case are undeniably tragic, it is undisputed that the Children died

from a fire of unknown origin two weeks after a report of abuse and neglect led to Defendants

becoming involved with the Rideners and the Children being removed from the Rideners' care and

placed with their adult sister, Paige. The Rideners suggest that Defendants' actions "led to the

deaths" of the Children because Paige had two prior alcohol-related offenses and DCS allegedly

did not follow its typical waiver process related to that during a hearing. [Dkt. 89 at 5, 7.] But the

Rideners cannot allege that Defendants' actions caused the deaths of the Children, given the

circumstances surrounding their deaths and the completely speculative nature of any connection

the Rideners try to make between that and the Defendants' conduct. In fact, the evidence indicates

that the Rideners consented to having the Children placed with Paige. [See dkt. 82-7 at 7-8

("[DCS] has been able to work with the Rideners in reaching an agreement that the [C]hildren

would stay in the house with Lisa's adult daughter."); dkt. 81-5 at 31-32 (Barrett explaining that

the Rideners consented to placement with Paige because she "received [Paige's] name from Lisa

Ridener herself to explore and potentially be a placement").] But the deaths of the Children two

weeks later were neither the Rideners' fault nor the Defendants' fault—rather, the evidence before

the Court shows that their tragic and untimely deaths were the result of a fire of unknown origin

for which neither the Defendants nor the Rideners were responsible.

For all of these reasons, the Court finds Green distinguishable and not instructive in this

case. Because the Children's deaths were "not caused by the deprivation of rights for which [the

Rideners] sued under § 1983," the Court concludes that the policies underlying § 1983 are not

frustrated by applying Indiana's survival statute herein. Robertson v. Wegmann, 436 U.S. 584, 594

(1978). "A state statute cannot be considered 'inconsistent' with federal law merely because the

statute causes the plaintiff to lose the litigation." Id. at 593. Rather, courts must consider in each

case "whether application of state law would be inconsistent with the federal policy underlying the

cause of action under consideration." Id. at 590. "The policies underlying § 1983 include

compensation of persons injured by deprivation of federal rights and prevention of abuses of power

by those acting under color of state law." Id. at 590-91.

First, as to compensation, § 1983 seeks to compensate those injured by the alleged

deprivation, not survivors such as the Rideners. See id. at 592 (finding that "[t]he goal of

compensating those injured by a deprivation of rights provides no basis for requiring compensation

of one who is merely suing as the executor of the deceased's estate"). Second, as to the prevention

of abuses of power, most causes of action do not abate upon death under Indiana's survival statute,

so the abatement of limited causes of action does not "adversely affect § 1983's role in preventing

official illegality, at least in situations in which there is no claim that the illegality caused the

plaintiff's death." Id.; see also Ind. Code § 34-9-3-1 (stating that all causes of action, except for

six enumerated causes of action, survive death and may be brought by the representative of the

deceased party). Put another way, state officials that consider engaging in "illegal activity must

always be prepared to face the prospect of a § 1983 action being filed against [them]." 436 U.S.

at 592. But even state officials "aware of the intricacies of [Indiana] survivorship law would hardly

be influenced in [their] behavior by its provisions." Id. For these reasons, the Court concludes

that application of Indiana's survival statute in this case does not hinder the general policy behind

§ 1983 of preventing abuses of power.3

The facts of this case are undeniably tragic. However, based on binding precedent, the

Court must conclude that the Fourth Amendment unreasonable seizure claim at issue is analogous

to the Indiana tort of false imprisonment, which undisputedly did not survive the Children's death.

Moreover, because application of Indiana's survival statute is not inconsistent with federal policy

as detailed herein, the Court concludes that the Defendants are entitled to judgment as a matter of

law on the Rideners' sole remaining claim in this litigation.

3 The Court notes that, in their Statement of Claims, the Rideners identify three theories of liability

with respect to their Fourth Amendment unreasonable seizure claim: (1) Barrett took the Children

into custody for interrogation; (2) the Children were removed from the care of the Rideners by

judicial deception; and (3) Defendants kept the Children separated from the Rideners until the

incident that claimed their lives. [Dkt. 68 at 5.] Because all three theories hinge on whether

Defendants' actions were supported by probable cause, and because each is a Fourth Amendment

unreasonable seizure claim, all three theories of liability fail as a matter of law for the reasons

stated herein.

C. Even if the Fourth Amendment unreasonable seizure claim had survived the

Children's deaths, Defendants would be entitled to qualified immunity.

While the Court has already concluded that the Defendants are entitled to judgment as a

matter of law on the Rideners' sole remaining claim, it will also analyze the Parties' arguments

regarding qualified immunity out of an abundance of caution.

It is undisputed that the Defendants are state actors and, as such, they argue that they are

entitled to qualified immunity from Fourth Amendment claims where they reasonably could have

believed removal to be lawful. [Dkt. 83 at 32.] They contend that a reasonable caseworker could

have believed that the removals here were lawful because the Children were detained by a court

order, and the totality of the evidence indicated that probable cause existed to support the removals.

[Id.]

The Rideners respond that qualified immunity does not apply here because Defendants'

conduct violated clearly established rights. [Dkt. 89 at 11.] They contend that it is well-settled

that a state actor violates the Fourth Amendment if he or she knowingly, intentionally, or with

reckless disregard for the truth makes false statements or withholds material information to

establish probable cause for a seizure. [Id. at 12.] Here, the Rideners claim that DCS omitted

material facts when seeking a judicial order for the Children's removal—specifically, that Barrett

allegedly made affirmative misrepresentations and omitted material facts from the Preliminary

Inquiry form and that DCS allegedly omitted material facts when it sought a waiver regarding the

Children's placement with Paige. [Id. at 1-4.] Thus, the Rideners conclude that a reasonable

caseworker would have known that such conduct violated the Children's rights. [Id.]

In reply, Defendants reiterate that a reasonable caseworker could have believed that

probable cause existed for the removal based on the evidence discovered during the DCS

investigation. [Dkt. 91 at 14-15.] Defendants also emphasize that the plaintiff bears the burden

of demonstrating the violation of a clearly established right, and the Rideners do not cite specific

caselaw with similar facts showing that Defendants violated the Children's clearly established

rights. [Id.] Instead, Defendants argue that the Rideners describe Fourth Amendment rights at a

high level of generality, which is insufficient in the qualified immunity context. [Id.]

"The doctrine of qualified immunity protects government 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). State actors "are entitled to qualified immunity under § 1983 unless (1) they violated a

federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly

established at the time." Pierner-Lytge v. Hobbs, 60 F.4th 1039, 1044 (7th Cir. 2023). "If either

inquiry is answered in the negative, the defendant official is entitled to summary judgment." Gibbs

v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (emphasis omitted). Courts may "exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand." Pearson, 555 U.S. at

236.

"To counter the defense of qualified immunity, a plaintiff must show that the constitutional

right at issue was clearly established at the time of the alleged violation." Greene v. Teslik, 2023

WL 2320767, at *3 (7th Cir. Mar. 2, 2023) (internal quotations and citation omitted). In order for

a right to be clearly established, "existing precedent must have placed the statutory or constitutional

question beyond debate." Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). "The precedent must be

clear enough that every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply." District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). While a

plaintiff "need not produce a case directly on point, … the 'legal principle [must] clearly prohibit

the [official's] conduct in the particular circumstances before him." Pierner-Lytge, 60 F.4th at

1044 (quoting Wesby, 138 S. Ct. at 690). The clearly established law "must share specific details

with the facts of the case at hand." Doxtator v. O'Brien, 39 F.4th 852, 863 (7th Cir. 2022). A

plaintiff cannot escape the application of qualified immunity by defining in a general manner the

constitutional right that she claims was violated. See City of Escondido, Cal. v. Emmons, 139 S.

Ct. 500, 503 (2019). As the Seventh Circuit has explained, defeating qualified immunity "sounds

like a high bar because it is—qualified immunity protects 'all but the plainly incompetent or those

who knowingly violate the law.'" Lopez v. Sheriff of Cook Cnty., F.3d 981, 988 (7th Cir. 2021)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In the child removal context, the Seventh Circuit has explained that when deciding a case

based on qualified immunity, courts "need not determine whether probable cause in fact existed at

the time of [a] removal decision." Xiong v. Wagner, 700 F.3d 282, 290 (7th Cir. 2012). Instead,

courts "may rule on qualified immunity grounds that a reasonable caseworker could have believed

that probable cause existed and accordingly wouldn't have understood [her] actions to violate a

constitutional right." Id. (emphasis in original). Therefore, "as long as [DCS] workers could have

believed [the Children's removal] to be lawful, in light of clearly established law and the

information [they] possessed, [D]efendants are entitled to qualified immunity." Id. (internal

quotation marks and citation omitted).

The Rideners cite three main cases in support of their argument that the Children's

constitutional rights were clearly established and that a reasonable DCS caseworker would have

known that making false representations or withholding material information to obtain removal

violated the Children's constitutional rights. [Dkt. 89 at 11-12.] In Brokaw v. Mercer County, the

Seventh Circuit Court of Appeals "note[d] that to the extent the defendants knew the allegations

of child neglect were false, or withheld material information, and nonetheless caused, or conspired

to cause, [a child's] removal from his home, they violated the Fourth Amendment." 235 F.3d 1000,

1012 (7th Cir. 2000). Likewise, in Brokaw v. Weaver, the Seventh Circuit Court of Appeals

explained "that if 'the finding of probable cause is based on the defendant's intentional

misrepresentation or concealment of material facts, the plaintiff may be able to proceed with a

Fourth Amendment claim challenging the reasonableness of the'" seizure. 305 F.3d 660, 670 (7th

Cir. 2002) (quoting Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989)). And finally,

in Rainsberger v. Brenner, the Seventh Circuit Court of Appeals found that "[a]n officer similarly

violates the Fourth Amendment if he intentionally or recklessly withholds material information

from a probable cause affidavit." 913 F.3d 640 (7th Cir. 2019) (citing Whitlock v. Brown, 596

F.3d 406, 410-11 (7th Cir. 2010)).

While the Court acknowledges that intentional misrepresentations and the withholding of

material facts in the context of a child's removal from the home certainly could give rise to a Fourth

Amendment claim, the cases cited by the Rideners do not help them overcome the Defendants'

qualified immunity defense given the facts at issue in this case. As detailed more below, the cited

cases are not factually analogous to the present situation and do not demonstrate that the

Defendants' specific conduct constituted the withholding or misrepresentation of material

information such that probable cause was not present for the removal of the Children or qualified

immunity does not apply. See Pierner-Lytge, 60 F.4th at 1044 (quoting Wesby, 138 S. Ct. at 690)

(explaining that while a plaintiff "need not produce a case directly on point, … the 'legal principle

[must] clearly prohibit the [official's] conduct in the particular circumstances before him");

Doxtator, 39 F.4th at 863 (explaining that the clearly established law "must share specific details

with the facts of the case at hand"). At bottom, the Rideners do not cite any evidence to negate the

fact that a reasonable caseworker could have believed that there was probable cause for the

Children's removal from the Rideners' care based on the undisputed facts known at the time of

removal which supported probable cause for that removal.

The Rideners identify several facts that they claim constitute material disputes, all of which

relate to evidence that Defendants allegedly withheld or misrepresented: (1) that DCS sought

telephonic authorization for removal from the Switzerland County Circuit Court before it

completed interviews of all the Children, such that the judge was allegedly not informed of certain

statements made after that point that contradicted the abuse claims; (2) that DCS did not inform

the juvenile court of the subsequent decision not to criminally charge the Rideners; (3) that DCS

did not specifically inform the Switzerland Circuit Court about Paige's criminal history; and (4)

that DCS did not specifically inform the Switzerland Circuit Court about the Children's alleged

mental deficits and previous unsubstantiated allegations of abuse against the Rideners, and Barrett

made misrepresentations about the two videos on which the allegations of abuse were based. [Dkt.

89 at 1-5.]

Importantly, the Rideners expressly acknowledge in their response brief that the Children

disclosed abuse at the hands of Lisa. [See dkt. 89 at 1.] This evidence, which the Rideners do not

challenge, is sufficient for a finding that a reasonable caseworker could have found probable cause

for removal. See Fed. R. Civ. P 56(e)(2) (where a party fails to properly address another party's

assertion of fact, the Court may consider the fact undisputed for purposes of the summary judgment

motion). Moreover, the record shows that there was a significant amount of additional evidence.

DCS conducted interviews with the Children and two foster children after receiving reports of

neglect and abuse in the Rideners' home, and several disclosures made during these interviews

confirmed improper discipline, neglect, and physical abuse in the Rideners' home. [See dkt. 82-3

at 5.] Lisa admitted to yelling at and using physical discipline on the Children, and one child

disclosed that Lisa had threatened to hit him if he to spoke with anyone about a prior injury

allegedly caused by Lisa. [Id.; Dkt. 82-3 at 6.] DCS observed and documented a mark/scar on

J.A.R., which corroborated reports of physical abuse. [Dkt. 82-4 at 2.] Based on all of this

evidence, a reasonable caseworker certainly could have believed that there was probable cause for

removal. Defendants also could have reasonably believed that their actions did not violate the

Fourth Amendment because Lisa consented to having DCS interview the Children, [dkts. 81-7;

81-5 at 27-28]; DCS received a verbal order from the Switzerland Circuit Court for the initial

removal of the Children, [dkts. 81-5 at 31; 81-8 at ¶¶ 16-18]; and the Switzerland Circuit Court

subsequently found probable cause for the continued detention of the Children. [Dkt. 82-7 at 9-

10.]

After a thorough analysis of all the evidence, the Court cannot conclude that the assertions

made by the Rideners regarding alleged misstatements or omissions, even if accepted as true,

would change the outcome of this case because a reasonable caseworker still could have believed

that there was probable cause for removal based on the totality of evidence available to DCS. See

Hampton, 561 F.3d at 713 (finding that a fact is material if it might affect the outcome of the suit);

Harper, 433 F.3d at 525 (explaining that while facts might be in dispute, summary judgment is

appropriate if those facts are not outcome determinative). Accordingly, Defendants reasonably

could have believed that the removal was lawful, and they are entitled to qualified immunity.

IV. CONCLUSION

While the facts of this case are undeniably tragic and while the Court recognizes the

tremendous loss that the Rideners have experienced, the law requires the Court to conclude that

the Defendants are entitled to judgment as a matter of law on the Rideners' sole remaining claim

in this litigation. For the reasons stated herein, the Court GRANTS Defendants’ Motion for

Summary Judgment. [Dkt. 81.] Final judgment shall enter accordingly.

SO ORDERED.

Date: 8/21/2023 Bobbie Pann

Kellie M. Barr

United States Magistrate Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email

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