The opinion
Huesday, a¥ seplember, 2UL5 □□□□ |
Clerk, U.S. District Court, IL
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD DREW, as Independent )
Administrator of the Estate of H.D., a minor, )
now deceased, )
Plaintiff, )
)
v. ) Case No. 24-cv-3292
)
NANCY COLLINS, et al., )
Defendants. )
OPINION
COLLEEN R. LAWLESS, United States District Judge:
Before the Court is the Motion of Defendants Nancy Collins, Lindia Holmes,
Jessica Hendrick, and William Hedger to Dismiss Plaintiff's Complaint. (Doc. 40).
Defendants Kemmerer Village, Inc., Kristie Hebenstreit, and Chris Brizendine also filed
a Motion to Dismiss or for a more Definite Statement. (Doc. 15).
I. PARTIES AND CLAIMS
H.D. was born in 2019 and tragically died on October 21, 2022, at the age of 3 years
old. Plaintiff Richard Drew is the Independent Administrator of the Estate of H.D. (Doc.
1 at { 2). At all relevant times, Defendant Nancy D. Collins was a Child Welfare Specialist
employed by the Illinois Department of Children and Family Services (“DCFS”) and held
a Child Welfare Employee License (“CWEL”) issued by the State of Illinois. (Id. at 3).
Defendant Lindia A. Holmes was a Public Service Administrator employed by DCFS and
duly licensed by the State of Illinois with a CWEL. (Id. at { 4). Defendant William Hedger
was a Child Protection Specialist employed by DCFS and duly licensed by the State with
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a CWEL. (Id. at { 5). Defendant Jessica Hendrick was a Child Protection Advanced
Specialist employed by DCFS and duly licensed by the State with a CWEL. (Id. at { 6).
The Court will refer collectively to the aforementioned Defendants as. “DCFS
Defendants.”
Defendant Kemmerer Village is an Illinois corporation with its principal office in
Taylorville, Illinois, and does business as Kemmerer Village Community Services, where
it provides foster care and other services in Christian County, Illinois. (Id. at J 8).
Defendant Kristie Hebenstreit was a caseworker and Defendant Chris Brizendine was a
caseworker supervisor employed by Kemmerer Village at all relevant times. (Id. at {{ 9-
10). The Court will collectively refer to these defendants as the Kemmerer Village
Defendants. Kemmerer Village Defendants acted under color of law pursuant to a
contract with DCFS or otherwise were allowed by DCFS to conduct and participate in
investigations of child abuse or neglect. (Id. at 9 19, 203).
Defendant Christopher Gunn was the biological father of H.D. and Defendant
Ashley Bottoms a/k/a Ashley Gunn was the wife of Christopher Gunn and lived in the
same residence as Christopher Gunn and H.D. Ashley was the daytime caretaker to H.D.
(Id. at 9] 11-12).
Plaintiff alleges each Defendant knew or suspected that H.D. was at risk of
physical abuse and serious neglect while in the custody of his father and stepmother. (Id.
at § 17). DCFS Defendants knew or suspected Ashley Bottoms had six prior reports of
abuse or neglect, including physical abuse of children. Specifically, prior to October 20,
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2022, the DCFS Defendants and Kemmerer Village Defendants knew Bottoms had
physically abused H.D. prior to killing him. (Id. at { 18).
Count I of Plaintiff’s Complaint alleges Fourteenth Amendment violations against
the DCFS Defendants under 42 U.S.C. § 1983. Count II asserts Fourteenth Amendment
violations against the Kemmerer Village Defendants under § 1983. Counts III through
XXI consist of state law claims asserted against the various Defendants.
II. FACTUAL ALLEGATIONS
On or about April 6, 2022, H.D.’s mother and father were both found to be unfit
and unable to care for, protect, train, educate, supervise, or discipline the minor so that
the placement of the minor with either biological parent was determined to be contrary
to the health, safety, and best interests of the child. (Id. at { 26).On or about April 6, 2022,
DCFS took protective custody and made H.D. a ward of the court. (Id. at § 27). H.D. was
placed in the care and custody of his maternal uncle, Kiel Quigley, under whose care H.D.
thrived. (Id. at 28).
On or about April 25, 2022, Kemmerer Village Defendants recommended H.D. be
removed from the care and custody of Kiel Quigley and be placed with Defendants Gunn
and Bottoms. (Id. at § 29). Thereafter, on or about August 20, 2022, DCFS removed H.D.
from placement with Quigley and placed H.D. in the temporary custody and care of
Gunn and Bottoms. (Id. at 30). Plaintiff alleges that prior to August 20, 2022, Defendant
Bottoms had a history of child abuse that was known or should have been known to DCFS
Defendants and Kemmerer Village Defendants. Plaintiff cites six different reports of
abuse involving Bottoms between June of 2018 and December of 2019. (Id. at § 31).
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Furthermore, Bottoms had other prior involvement with DCFS when one of her children
was born with methamphetamine in her system. (Id. at { 32). Plaintiff alleges it was
known to and/or suspected by the DCFS Defendants and Kemmerer Village Defendants,
through prior reports, observation, and investigation of reports of child abuse, that
Bottoms posed a real and immediate threat to the safety and welfare of the minor. (Id. at
4 33).
At all relevant times, Christopher Gunn had a history of dangerous drug use and
reported child abuse that was known to and/or suspected by all Defendants to pose a
real and immediate threat to the safety and welfare of the minor. (Id. at § 34). Plaintiff
alleges that, following the placement with Defendants Gunn and Bottoms on or about
August 20, 2022, and prior to H.D.’s death, multiple reports were made concerning the
safety and suspected abuse of H.D. while in the custody of Gunn and Bottoms but he
remained in their custody. (Id. at J 35-36).
Defendants Hebenstreit and Brizendine were assigned to investigate and make
recommendations as to the safety, custody, and care of H.D. (Id. at { 37). Plaintiff alleges
Hebenstreit conducted a sham investigation, omitted information from her report,
inserted false information in her report of her investigation, and otherwise created an
inaccurate report. (Id. at { 38). In supervising and reviewing Hebenstreit’s work,
Brizendine and Hebenstreit conferred and conspired in their sham investigation and/or
creation of a false and inaccurate report. (Id. at J 39-40). Both Defendants knew or
suspected Bottoms posed a threat to the safety and security of H.D., based in part on prior
reports concerning her actions and the safety of children. (Id. at { 41). On September 20,
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2022, Hebenstreit prepared a permanency hearing report, which was reviewed and
approved by Brizendine. According to Plaintiff, the report purposefully omitted
information regarding Bottoms, the knowledge or suspicion of the danger she posed to
H.D., and inserted false information in his report of the investigation. (Id. at J 42).
Defendants Collins and Holmes were assigned to oversee the DCFS case involving
the safety, custody, and care of H.D. (Id. at { 43). They knew Bottoms was the live-in
paramour of Gunn and knew or suspected Bottoms posed a threat to the safety and
security of H.D., based in part on the many prior reports concerning her and the safety of
children. (Id. at § 44). Plaintiff alleges Collins conducted a sham investigation, omitted
information from her report, or inserted false information in her report of her
investigation, or otherwise created an inaccurate report. (Id. at { 45). In supervising and
reviewing Collins’s work in conformance with DCFS procedures, Holmes and Collins
conferred and conspired in their sham investigation and creation of a false and inaccurate
report. (Id. at {§ 46-47). Despite their knowledge or suspicion of the harm posed to H.D.’s
safety if removed from his uncle’s custody and placed with Gunn and Bottoms, Collins
and Holmes consciously ignored and failed to stop the removal of H.D. from the safety
of his uncle’s custody and the placement of H.D. with Gunn and Bottoms. (Id. at 48).
On or about October 14, 2022, DCFS was contacted regarding an allegation of
abuse of H.D. by Bottoms. The child was observed with new injuries that were not present
the day before, to include: a “goose egg” on his forehead, a bruise over his eye, a bruise
near his sternum, a bruise on his shin, a scratch near his ear, a bruise near his jaw, and
scratches to his lower back. When asked if Bottoms had hit him, H.D. nodded his head
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while crying and said he did not want to go home. (Id. at § 49). The same day, Defendant
Hedger was assigned to investigate the allegation of abuse to ensure Gunn and Bottoms
were the appropriate custodial parents of H.D. (Id. at J 50). Plaintiff alleges Hedger
conducted a sham investigation, wherein he purposefully omitted information from his
report or inserted false information. (Id. at { 51). Even though Hedger knew or suspected
H.D. was at risk for abuse while in the custody of Gunn and Bottoms, he consciously
ignored and failed to stop the placement of H.D. with them. (Id. at § 52). In supervising
and reviewing Hedger’s work in conformance with DCFS procedures, Hendrick and
Hedger conferred and conspired in their sham investigation and creation of a false and
inaccurate report. (Id. at {] 53-54).
On or about October 14, 2022, Hebenstreit spoke with Hedger and Hendrick
regarding H.D.’s court-ordered placement and noted previous instances where H.D.
presented with bruising. (Id. at 55). Even though Hebenstreit knew or suspected H.D.
was at risk for abuse while in the custody of Gunn and Bottoms, he consciously ignored
and failed to stop the placement of H.D. with Gunn and Bottoms. (Id. at 56). Even
though Hendrick knew or suspected that Hedger had conducted a sham investigation
and created a false and inaccurate report and that H.D. was at a risk for abuse if placed
in the custody of Gunn and Bottoms, Hendrick nevertheless approved, authorized, and
directed the placement of H.D. in the custody of Gunn. (Id. at J 57).
On October 14, 2022, in response to the allegation of abuse of H.D. by Bottoms,
Hedger directed H.D.’s father to take him to the hospital for an evaluation by an
emergency room doctor on the causes of H.D.’s injuries, which included a bloody fat lip,
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bruising on his forehead, left eye, left shin, and a scratch near his left ear. (Id. at 58).
Hedger was told the doctor who examined H.D. on that date was unable to determine
the cause of H.D.’s injuries and could not rule out abuse. (Id. at 4 59). Nonetheless,
Hedger returned H.D. to the custody of Gunn and Bottoms. (Id. at § 60).
On October 20, 2022, H.D. was brought to OSF Saint Francis Medical Center. Upon
his arrival, H.D. was noted to be in full cardiac arrest. First responders intubated H.D.
and administered CPR for approximately 25 minutes. Hospital staff attempted to
resuscitate H.D. for approximately 41 minutes. (Id. at § 61). H.D. was pronounced dead
at 5:40 p.m. on October 20, 2022. (Id. at 62). An autopsy of H.D.’s body found blunt force
injuries of the head and upper body, multiple hemorrhages, a cerebral contusion, and
contusions of the neck, chest, back, and extremities. (Id. at ] 63). The autopsy concluded
that H.D.’s cause of death was the result of blunt force injuries of the head. (Id. at § 64).
On April 13, 2023, Ashley Bottoms pled guilty to involuntary manslaughter of
H.D. Bottoms was sentenced to 11 years in prison in July of 2023. (Id. at { 65). Plaintiff
contends that, as a direct and proximate result of the acts or omissions of DCFS
Defendants and Kemmerer Village Defendants, Ashley Bottoms killed H.D. on October
20, 2022, by violently pushing or throwing the minor from the couch, causing him to
strike his head on a piece of furniture, which resulted in his death. (Id. at ¥ 68).
Ill. DISCUSSION
DCFS Defendants’ Motion to Dismiss seeks dismissal of the § 1983 claims against
the individual Defendants under the Supreme Court's ruling in DeShaney v. Winnebago
Cnty. Dep’t of Social Servs., 489 U.S. 189 (1989), wherein the Court concluded, generally,
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that “a State’s failure to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197. Additionally, even if
Plaintiff's claims are not barred by DeShaney, DCFS Defendants contend they are entitled
to qualified immunity. In response, Plaintiff argues the state-created danger exception to
DeShaney applies and Defendants are not entitled to qualified immunity.
A. Legal Standard
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See
Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 458 (7th Cir. 2007). When considering a
motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most
favorable to the plaintiff, accepting all well-pleaded allegations as true and construing all
reasonable inferences in plaintiff's favor. Id. To state a claim for relief, a plaintiff need
only provide a short and plain statement of the claim showing she is entitled to relief and
giving defendants fair notice of the claims. Maddox v. Love, 655 F.3d 709, 718 (7th Cir.
2011). However, the complaint must set forth facts that plausibly demonstrate a claim for
relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). A plausible claim is one that
alleges factual content from which the court can reasonably infer that defendants are
liable for the misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely
reciting the elements of a cause of action or supporting claims with conclusory statements
is insufficient to state a claim. See id. The complaint must do more than assert a right to
relief that is “speculative.” See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
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B. DeShaney v. Winnebago County Dep't of Social Services
In DeShaney, the Supreme Court considered whether social workers and other
local officials deprived the plaintiff of his liberty in violation of the Due Process Clause
when they had reason to believe he was being abused by his father but did not act to
remove him from his father’s custody. DeShaney, 489 U.S. at 191. The plaintiff, who was
a toddler when the authorities first learned he might be a victim of abuse, was beaten and
permanently injured by his father. Id. Upon first learning of the accusations of abuse,
social services officials interviewed the father, who denied the allegations, and the
officials did not pursue the matter. Id. at 192. One year later, the child was admitted to
the hospital with multiple bruises and abrasions. Id. After the examining physician
notified social services of the suspected abuse, the juvenile court placed the plaintiff in
the temporary custody of the hospital. Id. Three days later, an ad hoc “Child Protection
Team” consisting of social workers and other officials considered the plaintiff's situation
and determined there was insufficient evidence of child abuse to maintain custody of
him. Id. The team recommended several measures to protect plaintiff, which included
enrolling him in a preschool program and providing his father with counseling services.
Id. Plaintiff's father entered into a voluntary agreement with social services wherein he
promised to cooperate in achieving the goals. Id.
Based on the team’s recommendation, the juvenile court dismissed the child
protection case and returned plaintiff to his father’s custody. Id. The following month,
emergency room personnel informed the social worker handling plaintiff's case that
plaintiff had once again been treated for suspicious injuries. Id. The caseworker
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determined there was no basis to take action. Id. During the following six months, the
caseworker made monthly visits to plaintiff's home, wherein she observed a number of
suspicious injuries on plaintiff's head. Id. at 192-93. While the caseworker recorded these
incidents in her files and noted her continuing suspicions that the child was being
physically abused, she did nothing else. Id. at 193. Soon thereafter, the emergency room
notified social services that plaintiff had once again been treated for injuries believed to
be caused by child abuse. Id. On the caseworker’s following two visits to the DeShaney
home, she was told the child was too ill to see her. Id. The social services department took
no action. Id.
A few months later, the plaintiff's father beat the 4-year-old so severely that he fell
into a life-threatening coma. Id. Plaintiff underwent emergency brain surgery, which
revealed a series of hemorrhages caused by traumatic head injuries that were inflicted
over a lengthy period. Id. Plaintiff suffered brain damage so severe that he likely would
never be able to live independently. Id. Plaintiff's father was convicted of child abuse. Id.
The minor child and his mother brought suit asserting the defendants “had
deprived Joshua of his liberty without due process of law, in violation of his rights under
the Fourteenth Amendment, by failing to intervene to protect him against a risk of
violence at his father’s hands of which they knew or should have known.” Id. In
considering the plaintiff's due process claim, the Supreme Court first observed that
“nothing in the language of the Due Process Clause itself requires the State to protect the
life, liberty, and property of its citizens against invasion by private actors.” Id. at 195. The
language of the Due Process Clause limits the State’s power to act and does not guarantee
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certain minimal levels of safety and security. Id. While the language prohibits the State
from violating certain rights without “due process of law,” it does not extend “to impose
an affirmative obligation on the State to ensure that those interests do not come to harm
through other means.” Id.
The Court further noted that history does not support such an expansive reading
of the Due Process Clause. Id. “Its purpose was to protect the people from the State, not
to ensure that the State protected them from each other.” Id. at 196. The “democratic
political processes” determine the government's obligation when it comes to protecting
people from each other. Id. “As a general matter, then, we conclude that a State’s failure
to protect an individual against private violence simply does not constitute a violation of
the Due Process Clause.” Id. at 197.
The Court then considered the plaintiff's argument that, even if the Due Process
Clause imposes no affirmative obligation on the State to protect the public, such a duty
may arise out of certain “special relationships” created or assumed by the State as to
particular individuals. Id. While the “Constitution imposes upon the State affirmative
duties of care and protection with respect to particular individuals,” such as
* “incarcerated prisoners” and “involuntarily committed mental patients,” the Court
concluded it imposed no such obligation on the State as to the plaintiff. Id. at 197-98. The
Court observed:
While the State may have been aware of the dangers that Joshua faced in
the free world, it played no part in their creation, nor did it do anything to
render him any more vulnerable to them. That the State once took
temporary custody of Joshua does not alter the analysis, for when it
returned him to his father’s custody, it placed him in no worse position than
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that in which he would have been had it not acted at all; the State does not
become the permanent guarantor of an individual’s safety by having once
offered him shelter. Under these circumstances, the State had no
constitutional duty to protect Joshua.
Id, at 201. The Due Process Clause “does not transform every tort committed by a state
actor into a constitutional violation.” Id. at 202. Even though the State’s failure to protect
plaintiff from his father’s violence is “calamitous in hindsight,” it had no constitutional
duty to do so. Id.
The DCFS Defendants contend DeShaney compels the outcome in this case because
the facts here are materially indistinguishable from those in DeShaney. They allege neither
the “special relationship” exception nor the “state-created danger” exception applies.
Plaintiff asserts the state-created danger exception applies and the motion to dismiss
should be denied on that basis.
C. State-Created Danger
The Seventh Circuit has explained that the exception under DeShaney for state-
created dangers is a narrow one. See First Midwest Bank Guardian of Estate of LaPorta v. City
of Chicago, 988 F.3d 978, 988 (7th Cir. 2021). It applies when the state creates or increases
a danger to a person. Doe v. Village of Arlington, 782 F.3d 911, 917 (7th Cir. 2015). “When
courts speak of the state’s increasing the danger of private violence, they mean the state
did something that turned a potential danger into an actual one, rather than just stood by
and did nothing to prevent private violence.” Id. (internal quotation marks and citation
omitted). This exception, which applies when the state “affirmatively places a particular
individual in a position of danger the individual would not otherwise have faced,” is
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understood to derive from the language in DeShaney that, “although the county and its
social workers may have been aware of the dangers the child faced in his father’s home,
they played no part in the creation of those dangers.” First Midwest Bank, 988 F.3d at 988.
(internal quotation marks and citations omitted). This exception “arises only by
implication from a brief observation in the Court’s opinion.” Id. at 988. The Justices
“hinted that the Constitution might support liability when a state has a duty that ‘arises
not from the State’s knowledge of the individual’s predicament or from its expressions
of intent to help him, but from the limitation which it has imposed on his freedom to act
on his own behalf.’”” Weiland v. Loomis, 938 F.3d 917, 921 (7th Cir. 2019) (quoting DeShaney,
489 U.S. at 200).
For the exception to apply, the plaintiff “must show that the state affirmatively
placed him in a position of danger and that the state’s failure to protect him from that
danger was the proximate cause of his injury.” First Midwest Bank, 988 F.3d at 988. To
meet the proximate-cause requirement, “the state-created danger must entail a
foreseeable type of risk to a foreseeable class of persons.” Id. at 988-89. “A generalized
risk of indefinite duration and degree is insufficient.” Id. at 989. Given that the right to
protection against state-created danger is derived from the substantive component of the
Due Process Clause, “the state’s failure to protect the plaintiff must shock the conscience.”
Id. Only “the most egregious official conduct” will meet this threshold. Id.
The Seventh Circuit has also noted “the state-created danger exception” does not
tell a public employee what to do, or avoid, in particular situations. See Weiland, 938 F.3d
at 919, It is a principle of liability and not a doctrine concerning primary conduct. Id. The
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court in Weiland described the facts in DeShaney and observed: “No one could have
doubted that the child-welfare officials’ decision increased Joshua’s danger, compared
with his safety in the hospital —indeed, that increase was the foundation of his claim for
damages — but the Supreme Court nonetheless held that the Due Process Clause of the
Fourteenth Amendment does not require a state to protect its residents from private
violence.” Id. Courts cannot create an “exception” to DeShaney that contradicts this
principle and, therefore, the “state-created danger exception” cannot be treated “as a rule
of primary conduct forbidding any acts of public officials that increase private dangers.”
Id. Courts should be cognizant of not reaching a result that would have justified liability
in DeShaney. Id. at 921.
Furthermore, the Cout finds Plaintiff's conclusory allegations regarding a sham
investigation, falsified reports, and omission of information from their reports do not
constitute well-pleaded facts; without more, they are unactionable legal conclusions.
Wright v. Shumate, 2024 WL 689990, at *4 (N.D. Ill. Feb. 20, 2024); Gatz v. Fabian, 2025 WL
327934, at *13 (N.D. Ill. Jan. 29, 2025) (“Indeed, claims of falsified reports and omitted
facts, without allegations of what Defendants falsified or omitted from the reports, are
conclusory.”) (internal quotation marks and citation omitted).
DeShaney and this case both involve unspeakable tragedies which likely could
have been avoided if certain individuals had acted when warning signs emerged.
However, there were arguably more warning signs in DeShaney than there were here as
to H.D. DeShaney included the following signs of abuse: (1) before the juvenile court
returned the plaintiff to his father’s custody, a physician notified social services of
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suspected abuse; (2) emergency room personnel informed the social worker that plaintiff
had been treated for suspicious injuries; (3) the caseworker observed a number of
suspicious injuries on plaintiff's head during home visits; (4) emergency room workers
again notified social services that plaintiff had been treated for injuries believed to have
been caused by child abuse; and (5) on two home visits, the caseworker was told plaintiff
was too ill to see her. See DeShaney, 489 U.S. at 192-93. Despite all these warning signs, the
social services department took no action. Id. at 193.
Plaintiff attempts to distinguish this case from DeShaney by noting H.D. was
placed in the care and custody of his uncle, Kiel Quigley, before being removed to the
custody of Gunn and Bottoms. Plaintiff does not say how that is different from the
plaintiff in DeShaney being removed from the temporary custody of the hospital. Both
Joshua DeShaney and H.D. were removed from the custody of non-abusive guardians
and placed in the custody of abusive guardians. In both cases, there were signs that abuse
was occurring. However, DeShaney tells us “the State does not become the permanent
guarantor of an individual’s safety by having once offered him shelter.” DeShaney, 489
US. at 201.
As for H.D., Plaintiff claims there were numerous warning signs that Gunn and
Bottoms were unfit parents prior to H.D.’s placement with them, including five different
reports of abuse involving Bottoms in the four years prior to H.D.’s placement. However,
the Complaint indicates the five prior reports of alleged child abuse by Bottoms were
deemed to be unfounded. Plaintiff cites the October 14, 2022 allegation of abuse that was
referred to DCFS after H.D. was observed with scratching and bruising on his forehead,
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sternum, shin, ear, jaw, and lower back. H.D. also informed DCFS workers that Bottoms
had hit him. Plaintiff alleges the DCFS Defendants were aware of previous instances
when H.D. presented with bruising. In response to the October 14 incident, Defendant
Hedger directed H.D.’s father to take H.D. to the hospital in order for an emergency room
doctor to determine the causes of H.D.’s injuries. The doctor was unable to determine the
cause of H.D.’s injuries but could not rule out abuse. Six days later, H.D died after
sustaining blunt force injuries to the head.
In DeShaney, there was no liability even after a physician informed social workers
of suspected abuse and after emergency room personnel notified social workers on
multiple occasions of suspected injuries due to child abuse. The caseworker also observed
suspicious injuries on the plaintiff on one occasion and was unable to see him on two
occasions because he was “too ill.” Here, H.D. was observed with multiple injuries less
than a week before he died but, even then, the doctor could not definitively determine
the cause of his injuries.
As previously noted, the facts suggesting abuse that were known to caseworkers
in DeShaney were arguably more egregious than those known to caseworkers in this case.
At the very least, it is difficult to distinguish which case had more indicators of child
abuse. If there was no liability in DeShaney, there can be no liability here. See, e.g., Weiland,
938 F.3d at 921 (“Every once in a while, a court should step back and ask whether local
jurisprudence matches the instructions from higher authority. If taken literally, the
approach that Johnson [v. Rimmer, 926 F.3d 695 (7th Cir. 2019)] attributes to King [v. East
St. Louis School Dist., 496 F.3d 812 (7th Cir. 2007)] would have justified liability in
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DeShaney.”), At most, it could be said that defendants in DeShaney and Defendants here
did nothing upon observing signs of child abuse. However, that is not enough to trigger
the “narrow” DeShaney state-created dangers exception. “A plaintiff must show that the
state affirmatively placed him in a position of danger.” First Midwest Bank, 988 F.3d at
988. Both H.D. and Joshua DeShaney were already in positions of danger. Based on the
reasoning of DeShaney, the Court dismisses the § 1983 claims against the DCFS
Defendants.
D. Qualified Immunity
Having determined that the § 1983 claims are subject to dismissal under DeShaney,
the Court is not required to address DCFS Defendants’ request for the claims to be
dismissed on qualified immunity grounds. The Court will simply note that it appears
qualified immunity would apply in this case. Plaintiff does not cite a single analogous
case which suggests the DCFS Defendants violated a clearly established constitutional
right. In fact, the most analogous case to the present case is DeShaney, which would
suggest to Defendants they were not violating a clearly established constitutional right.
Therefore, even if Plaintiff's § 1983 claims were not already subject to dismissal, the
claims would be barred by qualified immunity.1
1 Plaintiff claims it is premature to address qualified immunity at the pleading stage. However,
determining whether defendants are entitled to qualified immunity at this stage is consistent
with the Supreme Court's directive to resolve immunity issues at the earliest possible time
“because qualified immunity protects government officials from both litigation and liability.”
Sabo v. Erickson, 128 F.4% 836, 842-43 (7th Cir. 2025)
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E. Motion to Dismiss of Kemmerer Village Defendants
Defendants Kemmerer Village, Inc., Kristie Hebenstreit, and Chris Brizendine
have filed a Motion to Dismiss or for a more Definite Statement. The Kemmerer Village
individual Defendants seek dismissal of the § 1983 claims in Count II because Plaintiff
failed to allege Defendants proximately caused a deprivation of H.D.’s constitutional
rights. In seeking dismissal, the Kemmerer Village Defendants rely on DeShaney to argue
the alleged conduct of the Kemmerer Village Defendants did not create or increase a
danger to H.D. such that it had an affirmative duty to protect him. For the reasons noted
in addressing the DCFS Defendants’ Motion, the Court dismisses the § 1983 claims as to
the Kemmerer Village Defendants. Those claims would also be subject to dismissal on
qualified immunity grounds for the reasons previously noted.
IV. CONCLUSION
For all of these reasons, the Court concludes Plaintiff is unable to state a plausible
claim based on the state-created danger exception to DeShaney and, even if he could,
Defendants would be entitled to qualified immunity on the § 1983 claims. Because the
Court finds that amendment of the complaint as to the § 1983 claims would be futile,
those claims will be dismissed with prejudice. The dismissal of the federal claims does
not mean that Plaintiff does not have viable state tort law claims. The normal practice
within the Seventh Circuit is that, if all federal claims are dismissed before trial, the
district court should relinquish jurisdiction over any supplemental state law claims “in
order to minimize federal judicial intrusion into matters of purely state law.” Burritt v.
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Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015); see also 28 U.S.C. Sec 1367(c)(3). The Court finds
no basis to depart from that general practice.
Therefore, the Motion to Dismiss of Defendants Nancy Collins, Lindia Holmes,
Jessica Hendrick, and William Hedger [Doc. 40] is GRANTED as to Count I. The Motion
to Dismiss of Defendants Kemmerer Village Inc., Kristie Hebenstreit, and Chris
Brizendine [Doc. 15] is GRANTED as to Count II. Counts I and II are Dismissed with
Prejudice. The Court relinquishes jurisdiction over Counts III-XXI. Those counts are
Dismissed without Prejudice. The Crossclaim for Contribution [Doc. 61] filed by
Defendants Kemmerer Village, Hebenstreit, and Brizendine against the remaining
Defendants is also Dismissed without Prejudice. The Clerk is Directed to terminate as
moot Plaintiffs Motion to Compel [Doc. 62], Defendants Collins, Hedger, Hendrick, and
Holmes’s Motion to Dismiss Crossclaim [Doc. 69], and Defendant Christopher Gunn’s
Motion to Dismiss Crossclaim [Doc. 76]. Upon entry of judgment, the Clerk will terminate
this case.
ENTER: September 30, 2025
SOLLEEN R. LAWLESS
er S DISTRICT JUDGE
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