D.B. Ex Rel. Kurtis B. v. Kopp

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2818

D.B., by his next friend KURTIS B.,

JENNIFER B., and KURTIS B.,

Plaintiffs-Appellants,

v.

JAMES KOPP, JAN MORAVITS, GRANT

COUNTY, and GRANT COUNTY

DEPARTMENT OF SOCIAL SERVICES,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 11-cv-773-bbc— Barbara B. Crabb, Judge.

ARGUED DECEMBER 5, 2012—DECIDED AUGUST 2, 2013

Before MANION and SYKES, Circuit Judges, and DARROW ,

District Judge.*

*

The Honorable Sara L. Darrow, United States District Court for the

Central District of Illinois, sitting by designation.

2 No. 12-2818

SYKES, Circuit Judge. In September 2010 three young

children—six-year-old D.B. and five-year-old twins C.C. and

her brother W.C.—were “playing doctor” in D.B.’s backyard in

Lancaster, Wisconsin. The twins’ mother walked in on this

activity and interpreted D.B.’s conduct as a sexual assault of

her daughter C.C. She reported the boy’s behavior to the Grant

County Department of Social Services. The Sheriff’s Depart-

ment also stepped in to respond.

An aggressive investigation ensued, and the Grant County

District Attorney eventually filed a petition in circuit court

alleging that D.B. had committed a first-degree sexual assault

and was in need of public protection or services. The petition

was never adjudicated; the case was closed by a consent

decree. D.B.’s parents then filed this civil-rights suit on behalf

of themselves and their son alleging that Grant County officials

overzealously investigated and maliciously prosecuted D.B. for

sexual assault. The complaint asserted claims against the

investigators, the district attorney, and Grant County for

multiple federal constitutional violations and several state-law

torts. The district court dismissed the complaint for failure to

state a claim.

On appeal the plaintiffs narrow their focus to just two

claims: a “class of one” equal-protection claim against the

investigators and a related Monell claim against Grant County.1

As to these claims, the complaint alleges that the twins en-

gaged in the same behavior as D.B., but he alone was subjected

to intense scrutiny, investigation, and unjustifiable court action.

1

See Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978).

No. 12-2818 3

D.B. was singled out, the complaint alleges, because the twins’

father is a “high-ranking local political figure.” The district

court discerned a rational basis for the difference in treatment

and dismissed the claim.

We affirm. Allegations of improper subjective motive are

not enough to state a class-of-one equal-protection claim. The

complaint must allege sufficient facts to plausibly show that

the plaintiff was treated differently from others similarly

situated and that the discriminatory treatment was wholly

arbitrary and irrational. Here, the complaint alleges an im-

proper subjective purpose—political favoritism—but it also

discloses an objective rational basis for the disparate treatment.

The twins’ mother witnessed D.B.’s conduct and reported it.

On the other hand, there was no adult witness to the twins’

behavior; they simply admitted to participating in the “doctor”

game in the “same manner” as D.B. It’s rational to credit a

concrete report from an adult eyewitness and discount the

generalized admission of a five-year-old. This rational explana-

tion for the difference in treatment defeats the claim.

I. Background

We take the following facts from the complaint, accept

them as true, and draw reasonable inferences in the plaintiffs’

favor. See McReynolds v. Merrill Lynch & Co., Inc., 694 F.3d 873,

879 (7th Cir. 2012). In September 2010 six-year-old D.B. had just

concluded extensive medical testing for digestive problems,

which included rectal examinations and enemas. On the

afternoon of September 12, D.B. and five-year-old twins C.C.

and W.C. were in D.B.’s backyard playing “doctor.” More

4 No. 12-2818

specifically, they were playing “butt doctor,” apparently

prompted by D.B.’s recent medical experience.

During the “game,” D.B. touched C.C.’s bare buttock,

although the exact nature of the touching is disputed. D.B. said

he touched C.C.’s bare buttock with his finger. The twins’

mother thought she saw something different. She walked in on

the children, saw the “doctor” game in progress, and “inter-

preted what she saw as D.B. inserting his finger into C.C.’s

anus.” She reported the incident to her sister-in-law, who

happened to be the regional supervisor in charge of the state

agency that administers family and children’s services. The

sister-in-law in turn notified Jan Moravits, an intake coordina-

tor for the Grant County Department of Social Services.

Because the twins’ father was a public official in Lancaster, the

local police department declined involvement and referred the

matter to the Grant County Sheriff’s Department.

The Sheriff’s Department assigned Deputy James Kopp to

investigate, and he and Moravits commenced a “biased” and

“haphazard” investigation designed to “embarrass and

humiliate six-year-old D.B.” and subject “D.B. and his family

[to] … public negative stigma.” D.B.’s parents retained counsel

and forwarded reports and records from D.B.’s doctor, daycare

provider, and therapist to the Department of Social Services.

An investigator initially concluded that D.B.’s behavior was

not cause for intervention, but Moravits overrode that decision

and insisted on pursuing the investigation further. Meanwhile,

Kopp interviewed the twins, who said they had “touched D.B.

in the same manner for which D.B. was being investigated.”

No. 12-2818 5

D.B.’s parents were summoned to a meeting with Moravits.

They pointed to the reports from D.B.’s doctor, daycare

provider, and therapist in an effort to show that there was no

cause for concern. Moravits “disregarded” these records and

said that if D.B. was not prepared to “admit his crime,” then

“there was no reason to have this meeting.” She dismissed

D.B.’s parents, telling them to “go home and rethink about

bringing D.B. in to her to admit his crimes.” She also threat-

ened “to have their children removed if they did not give in to

her demands.”

D.B.’s parents did not bring their son in to “admit his

crimes.” Moravits referred the incident to Grant County

District Attorney Lisa Riniker as a case of first-degree sexual

assault. Moravits also “made an effort to have D.B. register [as

a sex offender] when he turns eighteen.” Kopp continued to

investigate, looking for additional witnesses. He “came up

with a former babysitter” who “told a story about D.B. making

sexual contact with her.” Kopp “cherry-picked” the sitter’s

story, “ignor[ed] contradictory testimony,” and sent a report

to Moravits and Riniker recounting the sitter’s allegations and

concluding that D.B. had committed a fourth-degree sexual

assault against the babysitter. Kopp also visited D.B.’s school

seeking information about the boy. Although the twins had

admitted to Kopp that they had engaged in the same conduct

as D.B., neither Kopp nor Moravits investigated them.

Based on this investigation, District Attorney Riniker filed

a petition in Grant County Circuit Court alleging that D.B.

committed a first-degree sexual assault of a child and was in

6 No. 12-2818

need of protection or services.2 See WIS . STAT . §§ 938.13(12)

(governing petitions for child protection or services),

948.02(1)(b) (defining the crime of first-degree sexual assault of

a child). A petition of this sort initiates an elaborate court

process that leads to a range of available dispositional reme-

dies from counseling to agency supervision to removal of the

child from the parents’ home. See id. § 938.345. The petition at

issue here was never adjudicated; D.B.’s parents resolved it

pursuant to a consent decree, and the case has since been

dismissed.3 See id. § 938.32.

2

The complaint and the plaintiffs’ brief repeatedly state that the district

attorney “charged” D.B. with first-degree sexual assault. In Wisconsin (and,

we assume, everywhere else), a six-year-old child cannot be charged or

convicted of a crime; nor can a six-year-old be found delinquent for having

violated a criminal statute. See W IS . S TAT . § 938.02(3m) (the term “delin-

quent” in Chapter 938 refers to a juvenile 10 years of age or older who has

violated any state or federal criminal law). At oral argument plaintiffs’

counsel acknowledged that the district attorney did not file a criminal

“charge” but rather a petition alleging that D.B. was a child in need of

public protection or services because he had committed a delinquent act. See

id. § 938.13(12) (authorizing the court to adjudicate a child in need of public

protection or services if “[t]he juvenile is under 10 years of age and has

committed a delinquent act”).

Proceedings under Chapter 938 of the Wisconsin Statutes are not

criminal proceedings. A dispositional order entered on a Chapter 938

petition— whether adjudicating a juvenile delinquency or ordering

protection or services— “is not a conviction of a crime.” Id. § 938.35(1).

3

A second petition alleging that D.B. committed disorderly conduct, see id.

§ 947.01(1), was also dismissed pursuant to this consent decree. The second

petition was based on the babysitter’s allegations.

No. 12-2818 7

D.B. and his parents then filed this civil-rights suit against

Kopp, Moravits, Riniker, Grant County, and the Grant County

Department of Social Services. (The county defendants are the

same for purposes of this suit, so we will not distinguish them

further.) The complaint alleged that the individual defendants

are liable under 42 U.S.C. § 1983 for various federal constitu-

tional violations—deprivation of equal protection, procedural

due process, and substantive due process; unlawful seizure;

and infliction of cruel and unusual punishment—and also that

they committed several state-law torts. The Monell claim

against the County alleged that the constitutional violations

were caused by official county policy or practice. The com-

plaint sought $2 million in compensatory damages and an

award of punitive damages.

The defendants moved to dismiss for failure to state a

claim. See FED . R. CIV . P. 12(b)(6). The district court granted the

motion but permitted the plaintiffs to file an amended com-

plaint. They did so, and again the defendants moved to

dismiss. The district court granted the motion and entered final

judgment, holding that Riniker had absolute prosecutorial

immunity and that the complaint failed to state a claim for any

constitutional violation. The court also dismissed the state-law

claims against the County with prejudice and relinquished

supplemental jurisdiction over the state-law claims against

Kopp and Moravits. This appeal followed.

II. Analysis

D.B. and his parents challenge only the dismissal of their

equal-protection claim against Kopp and Moravits and the

8 No. 12-2818

related Monell claim against Grant County. To survive a

motion to dismiss under Rule 12(b)(6), a complaint must “state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibil-

ity when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). We review a Rule 12(b)(6) dismissal de novo.

See St. John’s United Church of Christ v. City of Chicago, 502 F.3d

616, 625 (7th Cir. 2007).

The complaint alleges that Kopp and Moravits violated

D.B.’s rights under the Equal Protection Clause of the Four-

teenth Amendment by subjecting him to a heavy-handed and

unjustified investigation while letting the twins off scot-free

even though they engaged in the same behavior. The plaintiffs

also claim that Grant County is on the hook for damages under

Monell because county policy caused the constitutional

violation. See Teesdale v. City of Chicago, 690 F.3d 829, 833 (7th

Cir. 2012) (“To establish municipal liability [under § 1983 and

Monell], a plaintiff must show the existence of an official policy

or other governmental custom that not only causes but is the

moving force behind the deprivation of constitutional rights.”

(internal quotation marks omitted)).

Both claims rely on “class of one” equal-protection doctrine,

which recognizes that the Equal Protection Clause may “give[]

rise to a cause of action on behalf of a ‘class of one’ where the

plaintiff d[oes] not allege membership in a class or group” if

the plaintiff can show “that she has been intentionally treated

differently from others similarly situated and that there is no

No. 12-2818 9

rational basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).

Stated differently, Olech holds that the Equal Protection Clause

“protect[s] individuals against purely arbitrary government

classifications, even when a classification consists of singling

out just one person for different treatment for arbitrary and

irrational purposes.” Geinosky v. City of Chicago, 675 F.3d 743,

747 (7th Cir. 2012). The Supreme Court restated this under-

standing of class-of-one theory in Engquist v. Oregon Depart-

ment of Agriculture, 553 U.S. 591, 601 (2008), although there the

Court barred class-of-one claims in the context of public

employment, id. at 605.

Since Olech, however, we have had some difficulty arriving

at a stable legal standard for adjudicating class-of-one claims.

See Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 889 (7th Cir.

2012) (en banc) (per curiam). The disagreement in Del Marcelle

centered on the role of illegitimate motive or improper purpose

in class-of-one litigation. The court split three ways. Some

members of the court thought the plaintiff should be required

to plead and prove that the disparate treatment was motivated

by personal ill will or other illegitimate purpose; that is, a

purpose unrelated to public duty. See id. (Posner, J.) (plurality

opinion) (writing for four members of the court). Others

expressed the view that personal animus or other improper

motive is not an element of the claim but just one way to prove

that the defendant’s action lacked a rational basis. See id. at

913–14 (Wood, J., dissenting) (writing for five members of the

court). One member of the court concluded that motive or

intent “has no role at all” in class-of-one litigation. See id. at 900

(Easterbrook, C.J., concurring in the judgment).

10 No. 12-2818

The “motive” complication is not present here. The com-

plaint clearly alleges that D.B. was subjected to an overbearing

investigation and unjustified court proceedings based on

improper political favoritism: The investigators were biased

against him and favored the twins because the twins’ father

was a “high-ranking” local public official. So whether im-

proper motive is a required element or an optional method of

proof, the complaint adequately pleads it and is not legally

insufficient on that basis.

The remaining elements of the claim are those announced

by the Supreme Court in Olech, which were reiterated in

Engquist and as far as we know remain uncontroversial: A

class-of-one plaintiff must plead and prove that he was

“ ‘intentionally treated differently from others similarly situ-

ated and that there is no rational basis for the difference in

treatment.’ ” Engquist, 553 U.S. at 601 (quoting Olech, 528 U.S.

at 564). The rational-basis requirement sets the legal bar low

and simply requires “a rational relationship between the

disparity of treatment and some legitimate governmental

purpose.” Srail v. Village of Lisle, Ill., 588 F.3d 940, 946 (7th Cir.

2009) (internal quotation marks omitted). The burden is on the

challenger “to eliminate any reasonably conceivable state of

facts that could provide a rational basis for the classification.”

Id. at 946–47 (internal quotation marks omitted); see also Bd. of

Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001)

(explaining that “the burden is upon the challenging party to

negative any reasonably conceivable state of facts that could

provide a rational basis for the classification” (internal quota-

tion marks omitted)).

No. 12-2818 11

“[A] ‘perplexing situation’ … arises when a lawsuit chal-

lenging a government action subject only to rational basis

review is evaluated under the deferential standard of a

Rule 12(b)(6) motion to dismiss.” Flying J Inc. v. City of New

Haven, 549 F.3d 538, 546 (7th Cir. 2008) (quoting Wroblewski v.

City of Washburn, 965 F.2d 452, 459 (7th Cir. 1992)). A class-of-

one plaintiff must anticipate this dilemma. “[T]o get past a

Rule 12(b)(6) motion to dismiss on a class of one equal protec-

tion claim, ‘a plaintiff must allege facts sufficient to overcome

the presumption of rationality that applies to government

classifications.’ ” Id. (quoting Wroblewski, 965 F.2d at 460).

Whether or not bad motive is required, it is clear that an

allegation of improper motive does not necessarily overcome

the presumption of rationality and permit the case to move

forward. To the contrary, “a given action can have a rational

basis and be a perfectly logical action for a government entity

to take even if there are facts casting it as one taken out of

animosity.” Flying J Inc., 549 F.3d at 547. So the proper question

here is this: Does the complaint reveal a rational basis for treat-

ing D.B. differently notwithstanding the investigators’ political

motivation? It does. Accordingly, the plaintiffs have pleaded

themselves out of court. See Jackson v. Marion County, 66 F.3d

151, 153–54 (7th Cir. 1995) (“[A] plaintiff can plead himself out

of court by alleging facts which show that he has no claim,

even though he was not required to allege those facts. Allega-

tions in a complaint are binding admissions, and admissions

can of course admit the admitter to the exit from the federal

courthouse.” (citations omitted)).

12 No. 12-2818

The complaint alleges that the twins’ mother witnessed

D.B.’s conduct, interpreted it as a sexual assault of her daugh-

ter, and reported the incident to Grant County authorities. In

contrast, no adult witnessed the twins’ conduct; the complaint

alleges only that C.C. and W.C. admitted to Kopp that they

“touched D.B. in the same manner for which D.B. was being

investigated.” Together these allegations suggest an objectively

rational basis to investigate D.B. and not the twins, even if the

investigators were subjectively motivated by a desire to protect

or curry favor with the twins’ father. It’s rational to follow up

on a report from an adult eyewitness while declining to open

an investigation based on an undifferentiated admission from

a five-year-old child.

Of course, political connections may also plausibly explain

why D.B. was targeted for investigation and the twins were

not. But the test for rationality does not ask whether the benign

justification was the actual justification. All it takes to defeat the

plaintiffs’ claim is a conceivable rational basis for the difference

in treatment. See, e.g., Heller v. Doe, 509 U.S. 312, 320 (1993)

(explaining that a classification “must be upheld against [an]

equal protection challenge if there is any reasonably conceiv-

able state of facts that could provide a rational basis for the

classification” (internal quotation marks omitted)); Srail,

588 F.3d at 946–47 (explaining that “any rational basis will

suffice, even one that was not articulated at the time the

disparate treatment occurred”). The allegations in the com-

plaint suggest a rational reason to investigate D.B. and not the

twins.

No. 12-2818 13

We are not suggesting that this was a well-administered

investigation, or a wise exercise of prosecutorial discretion, for

that matter. Our decision today should not be understood as

an endorsement of this use of state power, which strikes us

(assuming the allegations are true) as a troubling overreaction

to a situation that could and should have been handled

informally. It’s easy to understand why the twins’ mother

would be alarmed and upset, but it’s also reasonable to expect

that the response by Grant County officials would be measured

and proportionate. As the district court aptly put it, accusing

a six-year-old boy of first-degree sexual assault shows “poor

judgment at best.” But poor judgment does not violate the

Constitution.

Accordingly, the complaint fails to state an equal-protection

claim against Kopp and Moravits. With that conclusion, the

Monell claim against Grant County necessarily fails. See Palka

v. Shelton, 623 F.3d 447, 455 (7th Cir. 2010) (“[B]ecause [the]

complaint fails to state a claim for any constitutional violation,

the … County cannot be held liable [under Monell] … .”).

AFFIRMED .