Brokaw, C.A. v. Mercer County

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-1131

C.A. Brokaw,

Plaintiff-Appellant,

v.

Mercer County, James Brokaw,

Weir Brokaw, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 97 C 4011--Joe Billy McDade, Chief Judge.

Argued September 16, 1999--Decided December 19, 2000

Before Ripple, Manion, and Diane P. Wood, Circuit

Judges.

Manion, Circuit Judge. In July 1983, when he was

six years old, C.A. Brokaw and his three-year-old

sister were forcibly removed from their parents’

home in Mercer County, Illinois. After he turned

eighteen, C.A. filed suit against his grandfather

and aunt, who he contends conspired with his

uncle, a Deputy Sheriff of Mercer County, to

violate his constitutional rights. C.A. also sued

the social worker and other officers involved in

removing him from his home, along with the state

judge who presided over various hearings.

Additionally, the suit named Mercer County and

the State of Illinois (although the State of

Illinois is no longer a party to the case). After

allowing C.A. to amend his pro se complaint, the

district court dismissed the complaint for

failure to state a claim. Brokaw appeals. We

reverse as to all defendants except the presiding

judge and Probation Officer Hansen.

I. Factual Background

Because this case comes to us from a 12(b)(6)

dismissal, we assume that the facts alleged in

the complaint are true, and read those facts, and

all reasonable inferences flowing from those

facts, in the light most favorable to C.A.

Bethlehem Steel Corp. v. Bush, 918 F.2d 1323,

1326 (7th Cir. 1990). In determining whether C.A.

failed to state a claim, we also consider any

additional consistent facts presented by C.A. on

appeal. Albiero v. City of Kankakee, 122 F.3d

417, 419 (7th Cir. 1997). With this in mind, we

go back in time to 1983.

In early July of that year, the plaintiff’s

father, Dennis Brokaw, who had recently been

released from the hospital and who was still

recuperating, was invited by his sister, Karen

Weaver, and their father, Weir Brokaw, to Weir’s

home. The invitation specifically excluded

Dennis’ wife, Bonnie, and their children, the

plaintiff C.A. and C.A.’s sister. As it turned

out, they were excluded because Karen and Weir

were attempting to convince Dennis to leave his

family. During the next few days, Weir and Karen

brought intense pressure on Dennis to leave his

family and to obtain a divorce because they

objected to Dennis and his family’s religious

beliefs and practices. Dennis refused. Soon

thereafter, on the evening of July 5, 1983, there

was a confrontation between C.A.’s parents and

Weir Brokaw and Karen Weaver, during which C.A.’s

parents expressed their "vehement repugnance" of

Weir and Karen’s attempts to split the family

apart.

The next morning Weir and Karen, along with

James Brokaw (Weir’s son and Dennis and Karen’s

brother and, significantly, a Deputy Sheriff for

Mercer County) conspired in a plan to end the

marriage. Together, in response to the previous

evening’s confrontation and because they

disagreed with Dennis and Bonnie’s religious

beliefs, James, Karen and Weir decided to file

"baseless and scurrilous"/1 claims of child

neglect. They believed that this would cause C.A.

and his sister to be removed from their parents’

home, and in turn prompt Dennis to divorce his

wife and leave his family. To further this plan,

they enlisted the help of the Sheriff of Mercer

County, Marvin Thirtyacre, and "fabricated

concerns about the welfare of Plaintiff and his

sister."

At about noon that same day (July 6, 1983),

Sheriff Thirtyacre contacted Penny Ingersoll, who

was a caseworker for the Department of Children

and Family Services, and arranged a meeting for

later in the afternoon. Thirtyacre, Weir, James

and Karen met with Ingersoll briefly outside the

courthouse in Aledo, Illinois, and a few minutes

later Judge Susan Gende joined them. During this

meeting, Thirtyacre, Weir, James and Karen

allegedly made allegations of child neglect to

cause the DCFS to remove C.A. and his sister from

their home.

According to C.A., although Judge Susan Gende

attended this meeting, she did not issue a court

order concerning the children’s custody.

Nonetheless, at dusk that evening, two men walked

into C.A.’s home, grabbed C.A. and his three-

year-old sister, and carried the crying children

out of their home. C.A.’s parents chased the

intruders while repeatedly demanding that they

identify themselves and explain what was

happening. The men refused, one shouting: "We

don’t have to tell you a damn thing!" C.A.

believed he was being kidnaped and was going to

be killed. His parents also believed that their

children had been kidnaped, and they called the

police. (They later learned that their children

were removed based on the alleged child neglect.)

The strangers, who were later identified as

Deputy Sheriff Jonathon Weakley and Probation

Officer James Bartelt, drove C.A. and his sister

to a lane that led into a cornfield, where they

were met by Deputy Sheriff James Brokaw and

Sheriff Martin Thirtyacre. While it is unclear

from the record, it appears that from there the

children were taken to a foster home where they

spent the night.

The next day Sheriff Thirtyacre filed a petition

for adjudication of wardship, and the children

were ordered to remain in foster care. About one

week later, on July 13, 1983, Probation Officer

Vickie Hansen picked up C.A. from the foster home

and drove him to a courthouse. At the courthouse,

Judge Gende and several other of the defendants

questioned C.A. about the alleged abuse, and

according to C.A., he "was frightened and coerced

into answering questions, [and] Defendants

attempted to make him say derogatory statements

about his parents."

About three weeks later, Judge Gende began

presiding over an adjudication hearing. The

hearing was continued until August 3, 1983, at

which time Judge Gende ordered C.A. and his

sister wards of the state, in part based on a

social study prepared by Probation Officer James

Bartelt. C.A. contends that the report contained

false information, and that his parents were

denied the opportunity to disprove those

allegations because they were not given access to

the report until after the hearing and after the

court had already made C.A. a ward of the state.

After her ruling, Judge Gende allegedly

threatened the parents’ attorney that if the

children’s parents appealed her decision of

wardship, she would personally see to it that

they would not see their children until they were

adults, but that if they did not appeal, she

would be more inclined to allow the children to

return home someday.

It is unclear what, if any, investigation took

place or what facts came to light, but on October

28, 1983, almost four months after they were

first removed from their home, Judge Gende

entered an order permitting C.A. and his sister

to return home, finding insufficient evidence

that they needed protection. However, it was not

until July of 1984--after C.A.’s parents

dismissed a federal lawsuit they had filed

concerning their children’s custody-- that Judge

Gende dismissed the order of wardship.

In February 1997, after he had reached the age

of majority, C.A. filed a pro se complaint in

federal court against Mercer County; Marvin

Thirtyacre, the Mercer County Sheriff; James

Brokaw, a Mercer County Deputy Sheriff; Weir

Brokaw, his paternal grandfather; Karen Weaver,

his paternal aunt; the State of Illinois; Penny

Ingersoll, a caseworker for the Illinois

Department of Children and Family Services; Steve

Dickens, a caseworker for the Illinois Department

of Children and Family Services; Susan Gende, a

state judge in the 14th Judicial Circuit of

Illinois; James Bartelt, the Director of the

Mercer County Probation Department; Jonathon

Weakley, a Mercer County Deputy Sheriff; and

Vickie Hansen, a Mercer County Probation Officer.

The district court, thinking this late-filed

complaint was barred by the statute of

limitations, ordered C.A. to show cause why the

complaint should not be dismissed. C.A. responded

by citing Illinois’ tolling statute, which

provides that the statute of limitations does not

begin to run on a minor’s claim until he reaches

the age of eighteen. 735 ILSC 5/13-211. The

district court then struck the complaint,

ordering C.A. to file an amended complaint

specifying the legal basis on which it was

brought. C.A. complied with the order, and filed

an amended complaint under 42 U.S.C. sec. 1983,

alleging claims under the First, Fourth, Fifth,

Eighth, Ninth, Tenth, and Fourteenth Amendments.

C.A. also alleged state law claims of intentional

infliction of emotional distress and false

imprisonment.

All of the defendants, except Thirtyacre,

appeared and filed motions to dismiss. The

district court dismissed the federal claims

against all of the defendants, including

Thirtyacre, for failure to state a claim, or

based on sovereign, absolute, or qualified

immunity. The district court further stated that

because it had dismissed all of C.A.’s federal

claims, it was dismissing his state law claims as

well. C.A. moved for leave to file an amended

complaint, which the district court denied. C.A.

appeals./2

II. Analysis

On appeal, C.A. contends that the defendants

violated and conspired to violate 42 U.S.C.

sec.sec. 1983, 1985(3), by depriving him of

certain constitutional rights, and that he is

entitled to attorney’s fees under Section 1988.

We first consider the Section 1983 claim.

A. Section 1983

In order to state a claim under Section 1983, a

plaintiff must allege that the defendants

deprived him of a right secured by the

Constitution or laws of the United States, and

that the defendants acted under color of state

law. Starnes v. Capital Cities Media, Inc., 39

F.3d 1394, 1396 (7th Cir. 1994). In this case,

C.A. alleged that the defendants violated, and

conspired to violate, his constitutional rights

under the First, Fourth, Fifth, Eighth, Ninth,

Tenth, and Fourteenth Amendments. On appeal,

however, C.A. presents arguments based on only

three constitutional theories: first, he contends

that the defendants violated his Fourth Amendment

rights by forcibly removing him from his home

without cause; second, he asserts that the

defendants violated his substantive due process

right to familial relations; and third, C.A.

argues that the defendants violated his right to

procedural due process by denying him fair and

constitutionally adequate process both before and

after his removal. We consider each theory below,

keeping in mind that dismissal is appropriate

only if C.A. is unable to present any set of

facts consistent with the complaint which would

entitle him to recover. Crenshaw v. Baynerd, 180

F.3d 866, 868 (7th Cir. 1999).

Initially we need to clear up the issue of

Eleventh Amendment immunity. On appeal, the

Illinois Attorney General’s office argues that

the claims against Judge Susan Gende and

Probation Officers James Bartelt and Vickie

Hansen are barred by the Eleventh Amendment to

the extent that C.A. is suing those defendants in

their official capacities. Federal suits against

state officials in their official capacities are

barred by the Eleventh Amendment, Gossmeyer v.

McDonald, 128 F.3d 481, 487 (7th Cir. 1997), but

on appeal C.A. contends that we should construe

his claims against Gende, Bartelt and Hansen as

individual capacity claims. Because the state

defendants have treated C.A.’s suit as an

individual capacity claim--as demonstrated by

their assertion of the defense of qualified

immunity--we will too. Stevens v. Umsted, 131

F.3d 697, 707 (7th Cir. 1997) (explaining that

while a suit against a government official will

be assumed an official capacity suit, that

assumption is negated if the parties have treated

it as an individual capacity suit by asserting

the defense of qualified immunity). An individual

capacity suit is not barred by the Eleventh

Amendment, so C.A.’s individual capacity claims

against Judge Gende and Probation Officers

Bartelt and Hansen remain. Gossmeyer, 128 F.3d at

487./3 That said, we move on to the three legal

theories presented, beginning with the Fourth

Amendment.

1. Fourth Amendment

The Fourth Amendment, incorporated by the

Fourteenth Amendment, provides that "[t]he right

of the people to be secure in their persons,

houses, papers, and effects against unreasonable

searches and seizures, shall not be violated, . .

." U.S. Const., amend. IV. C.A. contends that the

defendants violated, and conspired to violate,

his Fourth Amendment rights when they forcibly

removed him from his home on July 6, 1983.

To determine whether C.A. stated a cause of

action under the Fourth Amendment, we must

determine whether the defendants’ alleged conduct

constituted a seizure and if so, whether the

seizure was unreasonable in light of the factual

allegations./4 Donovan v. City of Milwaukee, 17

F.3d 944, 948 (7th Cir. 1994). "[A] person has

been ’seized’ within the meaning of the Fourth

Amendment . . . if, in view of all of the

circumstances surrounding the incident, a

reasonable person would have believed that he was

not free to leave." United States v. Mendenhall,

446 U.S. 544, 554 (1980). In this case, C.A.

claims that he was physically carried out of his

home, placed in a car, and driven away from his

family. Under these circumstances, a reasonable

person would believe that he was not free to

leave, and thus a "seizure" occurred within the

meaning of the Fourth Amendment.

"Of course, . . . seizure alone is not enough

for sec. 1983 liability; the seizure must be

unreasonable." Donovan, 17 F.3d at 949 (internal

quotations omitted). However, "[t]he test of

reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical

application," and "its proper application

requires careful attention to the facts and

circumstances of each particular case." Graham v.

Connor, 490 U.S. 386, 396 (1989). Accordingly, we

must consider C.A.’s allegations in light of the

specific circumstances at issue, namely the

removal of a child from his home based on

allegations of child neglect.

In 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, meaning that state officers "’have

reason to believe that life or limb is in

immediate jeopardy.’"/5 Tenenbaum, 193 F.3d at

605 (quoting Good v. Dauphin County Social

Services for Children and Youth, 891 F.2d 1087,

1094 (3d Cir. 1989)). See, e.g., Tenenbaum, 193

F.3d at 603-05 (analyzing child’s removal as a

seizure under the Fourth Amendment, and

considering whether a court order, probable cause

or exigent circumstances justified the child’s

removal); Wooley v. City of Baton Rouge, 211 F.3d

913, 925-26 (5th Cir. 2000) (noting that a

warrant, probable cause, or a reasonable belief

that a child is in imminent harm is necessary to

justify a seizure of a child under the Fourth

Amendment); J.B. v. Washington County, 127 F.3d

919, 929 (10th Cir. 1997) (applying probable

cause standard to removal of child); Wallis v.

Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)

("state may not remove children from their

parents’ custody without a court order unless

there is specific, articulable evidence that

provides reasonable cause to believe that a child

is in imminent danger of abuse"). Cf. Landstrom

v. Illinois Dept. of Children and Family Serv.,

892 F.2d 670, 676 (7th Cir. 1990) (search or

seizure of child by DCFS must be "reasonable,"

but that does not necessarily require probable

cause or warrant); Darryl H. v. Coler, 801 F.2d

893, 902 (7th Cir. 1986) (accord). Of course,

even then the manner in which the seizure is

carried out must be reasonable. Tennessee v.

Garner, 471 U.S. 1, 8 (1985) ("reasonableness

depends on not only when a seizure is made, but

also how it is carried out").

In light of these general principles and C.A.’s

allegations, we consider the reasonableness of

C.A.’s seizure. First, C.A. contends that he was

removed from his home without a court order

authorizing his seizure, and that it was not

until the next day that a petition for

adjudication of wardship was filed with the

court. Assuming these facts are true, C.A.’s

seizure cannot be justified by a court-ordered

pickup. That still leaves the possibility that

C.A.’s removal was justified by probable cause or

exigent circumstances. See supra at 10. However,

all we know at this stage is that C.A.’s aunt,

grandfather, and uncle (who, remember, as a

deputy sheriff is a state actor) told the DCFS

and the Sheriff’s office something which set in

motion C.A.’s removal that same evening, and that

the removal occurred without any further

investigation into the allegations of child

neglect--not even a home visit, or a conversation

with C.A. While in rare circumstances allegations

of neglect may be so credible and severe that

they justify a pre-investigation and pre-hearing

removal, without knowing the details of the

alleged neglect, under the alleged facts before

us, we cannot conclude that exigent circumstances

justified C.A.’s removal. See, Darryl H., 801

F.2d at 903 n.8 (not every report of child

neglect constitutes exigent circumstances). See

also, Wooley, 211 F.3d at 926 (statements made to

police casting doubt on mother’s fitness

insufficient to create reasonable belief that the

child was in danger of imminent harm so as to

justify removal, especially in light of the

child’s apparent safety at his home); Wallis v.

Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000)

("[T]he police cannot seize children suspected of

being abused or neglected unless reasonable

avenues of investigation are first pursued,

particularly where it is not clear that a crime

has been--or will be--committed."); id. ("Whether

a reasonable avenue of investigation exists,

however, depends in part upon the time element

and nature of the allegations."); Croft v.

Westmoreland County Children and Youth Serv., 103

F.3d 1123, 1127 (3d Cir. 1997) (allegations of

neglect insufficient to establish as a matter of

law that caseworker had reasonable grounds to

believe that a child was in imminent danger so as

to justify removal without court order). Nor can

we conclude that the unspecified allegations of

neglect against C.A.’s parents established

probable cause justifying C.A.’s removal. Because

the allegations fail to establish the

reasonableness of C.A.’s seizure as a matter of

law, we must conclude at this juncture that C.A.

has stated a claim under the Fourth Amendment.

Even if a court order directed C.A.’s removal,

or exigent circumstances or probable cause

justified C.A.’s seizure, the manner in which the

defendants seized C.A. may still make his seizure

unreasonable. As the Supreme Court stated in

Tennessee v. Garner, 471 U.S. 1, 8 (1985), the

Fourth Amendment’s guarantee of reasonableness

"depends on not only how a seizure is made, but

also how it is carried out." More recently, the

Court explained in Graham v. Connor, 490 U.S.

386, 397 (1989), that the manner in which a

seizure occurs must be analyzed under the Fourth

Amendment’s objective reasonableness standard.

Applying the objective reasonableness standard

here, we conclude that C.A. has stated a Fourth

Amendment claim premised on the manner in which

the defendants allegedly seized him--dressing in

plain clothes, driving an unmarked car, entering

his home in the evening without knocking or

identifying themselves, and then refusing to do

so when asked. Most significantly, they abruptly

removed the screaming children from the home

without explanation. In effect they acted like

kidnappers rather than law enforcement officers.

Cf. Yates v. City of Cleveland, 941 F.2d 444, 447

(6th Cir. 1991) (it was not objectively

reasonable for a police officer to enter the dark

hallway in the entrance of a private residence at

2:45 a.m. without identifying himself as a police

officer, without shining a flashlight, and

without wearing his hat); Jacobs v. City of

Chicago, 215 F.3d 758, 770 n.5 (7th Cir. 2000)

(complaint stated a cause of action under the

Fourth Amendment where allegations failed to

justify a "no-knock" entry of plaintiff’s

apartment by breaking through door).

Finally, we note 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, C.A.’s

removal from his home, they violated the Fourth

Amendment. Malik v. Arapahoe County Dept. of

Social Services, 191 F.3d 1306, 1315 (10th Cir.

1999) (government officials’ procurement of a

court order to remove children based on

information they knew was founded on distortion,

misrepresentation and omission, violated the

Fourth Amendment).

Up to this point, we have treated the defendants

together, questioning only whether C.A. stated a

Fourth Amendment claim. However, we cannot stop

there because "[t]o establish personal liability

in a sec. 1983 action, the plaintiff must show

that the government officer caused the

deprivation of a federal right." Luck v.

Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999)

(internal quotation omitted). Thus, we must

determine which of the defendants caused--and are

therefore liable for--any alleged Fourth

Amendment violations.

An official causes a constitutional violation if

he sets in motion a series of events that

defendant knew or reasonably should have known

would cause others to deprive plaintiff of

constitutional rights. Morris v. Dearborne, 181

F.3d 657, 672 (5th Cir. 1999). Therefore, "[a]n

official satisfies the personal responsibility

required of sec. 1983 if she acts or fails to act

with a deliberate or reckless disregard of

plaintiff’s constitutional rights, or if the

conduct causing the constitutional deprivation

occurs at her direction or with her knowledge or

consent." Smith v. Rowe, 761 F.2d 360, 369 (7th

Cir. 1985) (internal quotation omitted).

Against this backdrop, we consider each

defendant’s participation in the seizure of C.A.

The easiest case concerns Probation Officer

Bartelt and Deputy Sheriff Jonathon Weakley,/6

who C.A. contends physically removed him and his

sister from their home. Because these two

defendants actually seized C.A., the Fourth

Amendment claims against them are clearly proper.

Also straightforward is the claim against Deputy

Sheriff James Brokaw, who joined in the seizure

of the children at the cornfield where C.A. was

taken immediately after he was snatched from his

home. Because he also participated in the

seizure, the Fourth Amendment claim against him

stands as well./7

The claim against Sheriff Thirtyacre is a little

more complicated, not because of the seizure

issue--he was also involved at the cornfield--but

because in his complaint C.A. alleged that Marvin

Thirtyacre "was acting in his official capacity

under color of state law." Thus, C.A.’s suit is

not really against Thirtyacre, but against the

governmental entity he represents, which in this

case is the Mercer County Sheriff’s Office.

Franklin v. Zaruba, 150 F.3d 682, 684 n.2 (7th

Cir. 1998). However, the Mercer County Sheriff’s

Office is not automatically liable for the acts

of its employees. Luck, 168 F.3d at 325.

Therefore, we must determine whether the Mercer

County Sheriff’s Office--as opposed to Thirtyacre

personally--caused C.A.’s constitutional

deprivation.

A municipality violates the Constitution when it

has an unconstitutional custom or policy. Id. A

"custom" or "policy" can take one of three forms:

(1) an express policy that, when enforced, causes

a constitutional deprivation; (2) a widespread

practice that, although not authorized by written

law or express municipal policy, is so permanent

and well settled as to constitute a "custom or

usage" with the force of law; or (3) an

allegation that the constitutional injury was

caused by a person with final policy-making

authority. McTigue v. City of Chicago, 60 F.3d

381, 382 (7th Cir. 1995). In this case, C.A.

contends that the Sheriff of Mercer County

participated in his unconstitutional seizure,

along with two other Deputy Sheriffs. We have

previously held that a sheriff in Illinois has

"final policy-making authority," Ryan v. County

of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995),

and that a "custom or policy" may be established

by "an allegation that the constitutional injury

was caused by a person with ’final policymaking authority.’"

McTigue, 60 F.3d at 382. See also, Baxter by

Baxter v. Vigo County Sch. Corp., 26 F.3d 728,

735 (7th Cir. 1994) ("It is true that a single

act or decision of a final policymaker can

establish municipal policy."). Therefore, C.A.’s

allegations that Sheriff Thirtyacre participated

in his seizure are sufficient at this stage for

C.A. to state a claim against the Mercer County

Sheriff Department./8

To further complicate matters, C.A. also sued

Mercer County, alleging that the defendants’

actions were consistent with the policy, custom,

and usage of Mercer County, and that therefore

Mercer County is also liable under Section 1983

for the alleged Fourth Amendment violations. This

complicates things because it is unclear whether

the Sheriff and the Deputy Sheriffs involved in

C.A.’s seizure were acting on behalf of Mercer

County and/or the Mercer County Sheriff’s Office.

We have struggled with the appropriate defendant

in such a case, see Ryan v. County of DuPage, 45

F.3d 1090 (7th Cir. 1995); Franklin v. Zaruba,

150 F.3d 682 (7th Cir. 1998); DeGenova v. Sheriff

of DuPage County, 209 F.3d 973 (7th Cir. 2000),

and unfortunately are unaided by the

defendants./9 Because at this stage (based on

C.A.’s allegations) we cannot determine on whose

behalf the Sheriff and Deputies were acting, we

remand the claims against Mercer County and the

Mercer County Sheriff’s Office for the district

court to further consider which entity is the

appropriate defendant.

Next we consider defendant Penny Ingersoll, who

was a DCFS caseworker involved in C.A.’s removal.

While Penny was not present during the actual

seizure of C.A., the allegations read in the

light most favorable to C.A. indicate that she

directed those who removed the children to do so.

That is enough to affix liability. Ryan v. Mary

Immaculate Queen Ctr., 188 F.3d 857, 859 (7th

Cir. 1999) (holding that allegations that a

supervisor directed the unconstitutional search

is enough to affix liability). See also, Morris,

181 F.3d at 672 (defendant who was moving force

behind the removal of children was responsible

for causing allegedly unconstitutional removal).

Ingersoll responds by arguing that she acted

only after having received three complaints of

alleged neglect, and that she did not have a

constitutional obligation to investigate those

complaints. However, that argument begs the

question of whether the complaints she received

were legally sufficient to justify the immediate

pre-hearing removal of C.A. We do not know the

nature of the allegations of child neglect,

whether or not the allegations of neglect could

be easily verified or negated, or whether the

alleged neglect created an imminent risk to the

children. Without knowing these details, we

cannot conclude at the pleadings stage that

Ingersoll could reasonably believe that an

immediate pre-investigation, pre-hearing removal

of C.A. was reasonable./10

While C.A. presented sufficient facts to create

an inference that Ingersoll caused his alleged

constitutional deprivation, he did not do so for

Probation Officer Vicki Hansen. In his complaint,

C.A. merely alleged that Probation Officer Hansen

conspired with the other defendants to violate

his constitutional rights. That allegation,

however, is insufficient to put Hansen on notice

of the gravamen of C.A.’s complaint. And while

the federal rules of notice pleading do not

require the plaintiff to allege all of the

relevant facts, "[f]or fair notice to be given, a

complaint must at least include the operative

facts upon which a plaintiff bases his claim."

Kyle v. Morton High. Sch., 144 F.3d 448, 455 (7th

Cir. 1998). C.A.’s sole allegation that Hansen

conspired with the other defendants is

insufficient to put her on notice of C.A.’s

complaint against her. While C.A.’s allegations

against the other defendants were also meager,

they were sufficient to meet the minimal notice

pleading standards. Moreover, C.A. presented

numerous additional consistent facts on appeal

concerning the other defendants’ involvement in

his seizure, and showing their responsibility for

his allegedly unconstitutional seizure. But all

C.A. adds on appeal to Hansen is that she was

present during a conference in which C.A. was

questioned by Judge Gende and several of the

other defendants./11 Hansen’s mere presence at

this conference is insufficient to create a

reasonable inference that Hansen had a meeting of

the minds with the other defendants to remove him

from his parents based on false claims of child

neglect. Kumil v. Racine County, Wis., 946 F.2d

1574, 1580 (7th Cir. 1991) (allegations of

conspiracy "must be further supported by some

factual allegations suggesting ’meeting of the

minds’"). Therefore, even considering the facts

added on appeal by C.A., he still fails to state

a claim against Hansen.

That leaves Judge Gende. The district court

dismissed C.A.’s claims against Judge Gende based

on absolute judicial immunity. This common law

doctrine shields judges from civil liability for

their judicial actions. Tucker v. Outwater, 118

F.3d 930, 932 (2d Cir. 1997). The principle of

judicial immunity recognizes that "[a]lthough

unfairness and injustice to a litigant may result

on occasion, it is a general principle of the

highest importance to the proper administration

of justice that a judicial officer, in exercising

the authority vested in him, shall be free to act

upon his own convictions, without apprehension of

personal consequences to himself." Mireles v.

Waco, 502 U.S. 9, 10 (1991). Thus, judges are not

liable in civil actions for their judicial acts

unless they have acted in the clear absence of

jurisdiction. Stump v. Sparkman, 435 U.S. 349,

356-57 (1978). Moreover, a judge will not be

deprived of immunity even if the action was in

error, was done maliciously, was in excess of his

authority, id., and even if his exercise of

authority is flawed by the commission of grave

procedural errors. Id. at 359.

C.A. attempts to overcome judicial immunity by

arguing that Judge Gende’s actions were

extrajudicial and thus beyond the protection of

judicial immunity, relying on Buckley v.

Fitzsimmons, 509 U.S. 259 (1993). In Buckley, the

Supreme Court held that when a prosecutor

performs investigative--as opposed to judicial--

functions, he is acting extrajudicially and thus

is not entitled to absolute judicial immunity.

Id. at 273. C.A. attempts to cast Judge Gende’s

involvement in his removal in a similar light.

First, he points to Judge Gende’s participation

in the initial meeting with Sheriff Thirtyacre,

Weir, Karen and DCFS Agent Ingersoll outside the

Aledo courthouse, claiming that at this point she

was not acting as a judge, but rather as a social

worker. Next, he cites Judge Gende’s questioning

of him on July 13 to show that she was acting

outside her judicial role. However, under

Illinois law, a judge may partake in an informal

conference in child custody matters, Ill. Rev.

Stat. Ch. 37, para. 703-8 et seq. (1983), and

therefore we cannot conclude Judge Gende was

acting in the clear absence of jurisdiction by

participating in these conferences. See, e.g.,

J.R. v. Washington County, 127 F.3d 919, 925

(10th Cir. 1997) (judge did not abandon impartial

judicial role by having ex parte communication

with social worker); Newman v. State of Ind., 129

F.3d 937, 941 (7th Cir. 1997) (holding that judge

acted within the outer bounds of his jurisdiction

when he ordered parents to remain in courtroom

pending the removal of their children from their

home); Dellenbach v. Letsinger, 889 F.2d 755, 761

(7th Cir. 1989) (telephone call from trial judge

to appellate judge was judicial act not outside

scope of immunity). Nor do C.A.’s allegations

that Judge Gende joined the conspiracy alter the

outcome. See John v. Barron, 897 F.2d 1387, 1393

(7th Cir. 1990) (mere allegations of conspiracy

insufficient to overcome judicial immunity).

Accordingly, she is absolutely immune from suit.

Still remaining are C.A.’s claims against Weir

Brokaw and Karen Weaver for conspiracy to violate

his Fourth Amendment rights. While a private

citizen cannot ordinarily be held liable under

Section 1983 because that statute requires action

under color of state law, if a private citizen

conspires with a state actor, then the private

citizen is subject to Section 1983 liability.

Bowman v. City of Franklin, 980 F.2d 1104, 1107

(7th Cir. 1992). "To establish Section 1983

liability through a conspiracy theory, a

plaintiff must demonstrate that: (1) a state

official and private individual(s) reached an

understanding to deprive the plaintiff of his

constitutional rights, and (2) those

individual(s) were willful participants in joint

activity with the State or its agents." Fries v.

Helsper, 146 F.3d 452, 457 (7th Cir. 1998)

(internal quotation and citations omitted).

In this case, C.A. alleged just such a

conspiracy between Weir and Karen, and Deputy

Sheriff James Brokaw. Specifically, C.A. asserted

that Weir and Karen conspired with James, who was

a deputy sheriff, in July 1983 to file false

allegations of child neglect in order to cause

the DCFS to remove C.A. from his home and to

thereby cause C.A.’s parents to divorce, because

of the religious beliefs and practices of C.A.’s

family./12 While Weir and Karen claim that

C.A.’s allegations are too vague to withstand

dismissal under 12(b)(6), C.A. has alleged all of

the necessary facts: the who, what, when, why,

and how. No more is required at this stage.

Weir and Karen also argue that merely filing a

report of child neglect with a state actor, even

if false, is insufficient to create liability

under Section 1983. We have no qualms with Weir

and Karen’s proposition. But as summarized above,

C.A. alleged much more. In short, C.A. alleged

facts supporting the reasonable inference that an

agreement existed between Weir and Karen and a

Deputy Sheriff, i.e. James, to deprive C.A. of

his constitutional rights, and that these

defendants then jointly acted in furtherance of

this conspiracy by reporting the false neglect

charges to DCFS Agent Ingersoll, and this set in

motion C.A.’s seizure.

Weir and Karen respond by citing cases which

hold that a private citizen is not liable under

Section 1983 for reporting crimes to the police,

or urging the government to prosecute criminal

offenses. Flagg Bros., Inc. v. Brooks, 436 U.S.

149 (1978); Gramenos v. Jewel Comp., Inc., 797

F.2d 432 (7th Cir. 1986); Butler v. Goldblatt

Bros., Inc., 589 F.2d 323 (7th Cir. 1978). But

those cases are distinguishable because they did

not involve an alleged agreement between the

police and the private citizens; rather, the

private individuals acted independently from the

government in making the police reports. Here, on

the other hand, C.A. alleged facts creating a

reasonable inference that Weir and Karen

conspired with state actors to cause his removal.

If true, Weir and Karen are subject to Section

1983 liability.

Alternatively, Weir and Karen seek cover in the

various proceedings instituted as a result of

their complaint: a formal petition for

adjudication of wardship, a court hearing,

investigatory conferences held by the DCFS,

adjudication of wardship by the court, and a

dispositional hearing by the court, seemingly

arguing that because a court determined that C.A.

should remain in foster care, that demonstrates

that their complaints of neglect were justified.

But, assuming that Weir, Karen and Deputy Sheriff

James Brokaw knew the allegations of child

neglect were false, then these proceedings

actually weaken their case because that means

they succeeded in the earlier stages of their

conspiracy--they created upheaval in C.A.’s

family by having him removed from his home and by

subjecting his family to governmental

interference. Moreover, as we have held in the

criminal context, "[i]f police officers have been

instrumental in the plaintiff’s continued

confinement or prosecution, they cannot escape

liability by pointing to the decisions of

prosecutors or grand jurors or magistrates to

confine or prosecute him." Jones v. City of

Chicago, 856 F.2d 985, 994 (7th Cir. 1988).

Similarly, Weir and Karen cannot escape the

consequences of their (alleged) actions based on

the unwitting decisions of the various judges

involved. See Morris v. Dearborne, 181 F.3d 657,

672-73 (5th Cir. 1999) (plaintiff stated a

constitutional claim against a teacher who

allegedly created false evidence of sexual abuse,

notwithstanding the fact that welfare officials

and state judge independently evaluated

allegations of sexual abuse and ordered child

removed from home)./13

Weir and Karen also seek refuge in public

policy, arguing that a person who reports child

abuse should not be subjected to a civil rights

action for the act of reporting. We have no

qualms with that proposition, but as noted above

this case involves a different situation: C.A.

claims that the defendants knew the allegations

were false and that they conspired with a family

member who was a Deputy Sheriff. In fact, it is

reasonable to infer that Weir and Karen were able

to pull off their plan to have C.A. removed only

because they had a relative in a position of

governmental authority; in any other

circumstance, it seems reasonable to believe that

the government would investigate the complaint

before bursting into C.A.’s home and snatching

him from his family. It is a rare situation

indeed where family members will be conspiring

with another family member who is a state actor,

and thus the parade of horribles that Karen and

Weir march out in the form of "public policy"

will seldom, if ever, come to pass.

Before closing the Fourth Amendment discussion,

it is important to reiterate two points. First,

our holding should not be read as creating a

constitutional claim any time a child is removed

from his home and a later investigation proves no

abuse occurred. The alleged facts here go much

beyond that scenario, and our holding is limited

to the unique circumstances of this case. Second,

it is important to remember that this case is

here on 12(b)(6) dismissal. Further proceedings

and discovery may well narrow this case

substantially, but at this point the question is

solely whether C.A. can succeed under any set of

facts. Gregory v. Nunn, 895 F.2d 413, 414 (7th

Cir. 1990). Because there are several factual

scenarios under which C.A. could prevail,

dismissal of his Fourth Amendment claim at this

time would be inappropriate.

2. Substantive Due Process--Familial

Relations

In addition to suing under the Fourth Amendment,

C.A. presents a substantive due process claim. To

the extent that this claim is premised on his

seizure from his home, however, it cannot succeed

because, as the Supreme Court has recently

reiterated, substantive due process should not be

called upon when a specific constitutional

provision protects the right allegedly infringed

upon. United States v. Lanier, 520 U.S. 259, 272

n.7 (1997) ("[I]f a constitutional claim is

covered by a specific constitutional provision,

such as the Fourth or Eighth Amendment, the claim

must be analyzed under the standard appropriate

to that specific provision, not under the rubric

of substantive due process."). As to C.A.’s

initial removal, the Fourth Amendment

specifically addresses that seizure, and thus his

claim should be considered under the Fourth

Amendment, not under the rubric of substantive

due process.

However, C.A. also asserts that his

constitutional rights were violated during the

entire (near) four-month period of government-

forced separation from his parents. This forced

separation implicates substantive due process, or

more specifically C.A.’s constitutional right to

familial relations./14

The Supreme Court has long recognized as a

component of substantive due process the right to

familial relations. See Prince v. Massachusetts,

321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262

U.S. 390, 399 (1923); Santosky v. Kramer, 455

U.S. 745, 753 (1982) (there is "a fundamental

liberty interest of natural parents in the care,

custody, and management of their child."). See

also, Wallis v. Spencer, 202 F.3d 1126, 1136 (9th

Cir. 2000) ("Parents and children have a well-

elaborated constitutional right to live together

without governmental interference."); Croft v.

Westmoreland County Children and Youth Services,

103 F.3d 1123, 1125 (3d Cir. 1997) ("We recognize

the constitutionally protected liberty interests

that parents have in the custody, care and

management of their children."). See generally

Troxel v. Granville, 120 S.Ct. 2054 (2000). The

Due Process Clause "includes a substantive

component that provides heightened protection

against government interference with certain

fundamental rights and liberty interests." Id. at

2060. These decisions recognize that the right of

a man and woman to marry, and to bear and raise

their children is the most fundamental of all

rights--the foundation of not just this country,

but of all civilization. Wisconsin v. Yoder, 406

U.S. 205, 232 (1972) ("The history and culture of

Western civilization reflect a strong tradition

of parental concern for the nurture and

upbringing of their children."); id., ("This

primary role of the parents in the upbringing of

their children is now established beyond debate

as an enduring American tradition."); Moore v.

City of East Cleveland, Ohio, 431 U.S. 494, 503

(1977) ("[T]he institute of the family is deeply

rooted in this Nation’s history and tradition.").

Equally fundamental is the substantive due

process right of a child to be raised and

nurtured by his parents. See Santosky v. Kramer,

455 U.S. 745, 760 (1982) ("[U]ntil the state

proves parental unfitness, the child and his

parents share a vital interest in preventing

erroneous termination of the natural

relationship.") (emphasis added); J.B. v.

Washington County, 127 F.3d 919, 925 (10th Cir.

1997) ("We recognize that the forced separation

of parent from child, even for a short time,

represents a serious infringement upon both the

parents’ and child’s rights.") (internal

quotations omitted); Wooley v. City of Baton

Rouge, 211 F.3d 913, 923 (5th Cir. 2000) ("a

child’s right to family integrity is concomitant

to that of a parent")./15 Thus, substantive due

process provides the appropriate vehicle for

evaluating the constitutionality of the nearly

four-month government-forced separation of C.A.

from his parents. See, e.g., J.B. v. Washington

County, 127 F.3d 919, 927 (10th Cir. 1997) ("[I]t

is evident that there was interference with

plaintiffs’ rights of familial association

because L.B. was physically removed from her home

and from her parents for a period of almost 18

hours, which included an overnight stay in a pre-

arranged shelter home."); Croft, 103 F.3d at 1125

("The due process clause of the Fourteenth

Amendment prohibits the government from

interfering in the familial relationship unless

the government adheres to the requirements of

procedural and substantive due process.").

However, like Fourth Amendment rights, the

constitutional right to familial integrity is not

absolute. See Weller v. Department of Soc. Serv.,

901 F.2d 387, 392 (4th Cir. 1990) ("Substantive

due process does not categorically bar the

government from altering parental custody

rights."). "Indeed, this liberty interest in

familial integrity is limited by the compelling

governmental interest in the protection of

children particularly where the children need to

be protected from their own parents." Croft, 103

F.3d at 1125. Thus, a balance must be reached

between the fundamental right to the family unit

and the state’s interest in protecting children

from abuse, especially in cases where children

are removed from their homes. Miller v. City of

Philadelphia, 174 F.3d 368, 373 (3d Cir. 1999)

(the fundamental interest in the familial

relationship must be balanced against the state’s

interest in protecting children suspected of

being abused). The balance here, however, is no

different than that developed in the Fourth

Amendment context. Darryl H. v. Coler, 801 F.2d

893, 901 n.7 (7th Cir. 1986). See also, Wallis v.

Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000)

("the same legal standard applies in evaluating

Fourth and Fourteenth Amendment claims for the

removal of children"). In balancing these

competing interests, courts have recognized that

a state has no interest in protecting children

from their parents unless it has some definite

and articulable evidence giving rise to a

reasonable suspicion that a child has been abused

or is in imminent danger of abuse. Croft, 103

F.3d at 1126. But in this case and at this stage,

we lack sufficient factual details from which we

can decide whether the government was justified

in interfering with C.A.’s familial relations.

Therefore, for the same reasons that C.A.’s

Fourth Amendment claim survives, his substantive

due process claim covering the approximately

four-month time period during which C.A. was

separated from his parents, does as well.

At this point, we again must consider which

defendants are subject to suit for the alleged

violation. We need not dwell on each individual

defendant’s involvement, however, because, as

detailed above, C.A. alleged that the defendants

conspired to violate his constitutional rights--

including his right to familial relations--and he

presented sufficient facts to support a

reasonable inference that each defendant (other

than Hansen) joined the conspiracy, and thus was

responsible for causing the alleged substantive

due process violation. For the reasons discussed

above in the context of the Fourth Amendment

claim, Judge Gende is entitled to absolute

immunity.

3. Procedural Due Process

C.A. also alleges a procedural due process

claim, asserting that the government infringed on

his liberty interest in familial relations

without a pre-deprivation hearing, and that

following his removal, the post-deprivation

hearings lacked a semblance of due process. In

contrast to substantive due process claims, "[i]n

procedural due process claims, the deprivation by

state action of a constitutionally protected

interest in ’life, liberty, or property’ is not

in itself unconstitutional; what is

unconstitutional is the deprivation of such an

interest without due process of law."/16 Doe by

Nelson v. Milwaukee County, 903 F.2d 499, 502

(7th Cir. 1990). Thus, a procedural due process

claim involves a two-part analysis: First, we

determine whether the defendants deprived the

plaintiff of a protected liberty or property

interest, and if so, then we assess what process

was due. Hamlin v. Vaudenberg, 95 F.3d 580, 584

(7th Cir. 1996).

In this case, C.A. alleged a liberty interest in

his familial relations. This is a protected

liberty interest. Santosky, 455 U.S. at 753;

Stanley v. Illinois, 405 U.S. 645, 651-52 (1972).

See also, Doe, 903 F.2d at 504 n.9. Thus, we must

consider what process was due. Hamlin, 95 F.3d at

583. The Supreme Court has said that parental

rights cannot be denied without an "opportunity

for them to be heard at a meaningful time and in

a meaningful manner." Mathews v. Eldridge, 424

U.S. 319, 333 (1976) (internal quotations

omitted). Similarly, a child’s right to be

nurtured by his parents cannot be denied without

an opportunity to be heard in a meaningful way.

What exactly this means is less clear, as the

amount of process due varies with the particular

situation--it is a "flexible" concept. Id. at

334.

However, no matter how much process is required,

at a minimum it requires that government

officials not misrepresent the facts in order to

obtain the removal of a child from his parents.

Malik v. Arapahoe County Dept. of Social Serv.,

191 F.3d 1306, 1315 (10th Cir. 1999) ("An ex

parte hearing based on misrepresentation and

omission does not constitute notice and an

opportunity to be heard."). Minimally, it also

means that governmental officials will not remove

a child from his home without an investigation

and pre-deprivation hearing resulting in a court

order of removal, absent exigent circumstances.

Hollingsworth v. Hill, 110 F.3d 733, 739 (10th

Cir. 1997) ("Removal of children from the custody

of their parents requires predeprivation notice

and a hearing except for extraordinary situations

where some valid governmental interest is at

stake that justified postponing the hearing until

after the event."); Malik, 191 F.3d at 1315 (a

parent has a liberty interest in familial

association and privacy that--absent

extraordinary circumstances--cannot be violated

without adequate pre-deprivation procedures). Cf.

Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.

1983) ("When a child’s safety is threatened, that

is justification enough for action first and

hearing afterward."); Jordan by Jordan v.

Jackson, 15 F.3d 333, 346 (4th Cir. 1994)

("[O]nly where a child’s life is in imminent

danger or where there is immediate danger of

severe or irreparable injury to the child’s

health (and prior judicial authorization is not

immediately obtainable) may an official summarily

assume custody of a child from his parents.").

Because C.A. claims that he was removed based on

knowingly false statements of child neglect, and

that the defendants removed him from his home

without an investigation, a pre-deprivation

hearing, or exigent circumstances, he has stated

a procedural due process claim as well.

Perhaps the facts as developed on remand will

demonstrate that a pre-deprivation hearing was

not constitutionally required because emergency

action was required to avert imminent harm to

C.A. Donald v. Polk County, 836 F.2d 376, 380

(7th Cir. 1988) ("In an emergency situation the

government may take away liberty with post-

deprivation hearing."). Nevertheless, "the

constitutional requirements of notice and an

opportunity to be heard are not eliminated, but

merely postponed." Weller, 901 F.2d at 393

(internal quotations omitted). Thus, due process

guarantees that the post-deprivation judicial

review of a child’s removal be prompt and fair.

See, e.g., Campbell v. Burt, 141 F.3d 927, 929

(9th Cir. 1998) (procedural due process

guarantees prompt and adequate post-deprivation

judicial review in child custody case); Jordan by

Jordan, 15 F.3d at 343 ("[I]t is well-settled

that the requirements of process may be delayed

where emergency action is necessary to avert

imminent harm to a child provided that adequate

post-deprivation process to ratify the emergency

action is promptly accorded.").

In this case, C.A. presents several facts

calling into question the constitutional adequacy

of the post-deprivation hearing: He contends that

the defendants filed or conspired to file false

statements with the court. He also contends that

the social study prepared concerning C.A. and his

sister was not provided to his parents prior to

the custody hearing, and that the court relied in

part on this study to order him a ward of the

state; he asserts that the study included false

information. Together, these allegations are

sufficient to state a procedural due process

claim based on the post-deprivation process

afforded C.A. See, e.g., Morrison v. Jones, 607

F.2d 1269, 1276 (9th Cir. 1979) (dismissal of

procedural due process claim improper where

mother alleged child was removed without adequate

post-deprivation hearing)./17 Cf., Schacht v.

Wisconsin Dept. of Corrections, 175 F.3d 497, 503

(7th Cir. 1999) ("We agree that sham procedures

do not satisfy due process and that, for purposes

of something like Rule 12(b)(6), [plaintiff]

stated a claim."). Moreover, because of the

alleged constitutional defects of the post-

deprivation hearing, at this stage we cannot

conclude that the post-deprivation hearings

eliminated any procedural due process claim based

on C.A.’s pre-deprivation removal. Compare with

Lossman v. Pekarske, 707 F.2d 288 (7th Cir.

1983), and Donald v. Polk County, 836 F.2d 376,

380 (7th Cir. 1988) (holding that post-

deprivation hearing establishing probable cause

of abuse prevented due process claim for lack of

pre-deprivation hearing).

Again the question remains as to which

defendants are liable for any procedural due

process violation. The defendants who allegedly

made the false statements, Deputy Sheriff James

Brokaw, Weir Brokaw and Karen Weaver, are

appropriate defendants. C.A. alleged that the

other defendants conspired with those state

actors (and except as to Probation Officer

Hansen, gave sufficient details of their role in

the conspiracy to create liability), and thus,

the remaining defendants (other than Probation

Officer Hansen, and Judge Gende--who is entitled

to absolute judicial immunity) are likewise

appropriate defendants for this claim as well.

B. Qualified Immunity

Next we consider whether the individual

defendants are entitled to qualified

immunity./18 Qualified immunity protects

government officials from individual liability

under Section 1983 for actions taken while

performing discretionary functions, unless their

conduct violates clearly established statutory or

constitutional rights of which a reasonable

person would have known. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Thus, before liability

will attach, "[t]he contours of the right must be

sufficiently clear that a reasonable official

would understand that what he is doing violates

that right." Anderson v. Creighton, 483 U.S. 635,

640 (1987).

The defendants argue that it was not clearly

established in June 1983 that their actions

violated C.A.’s constitutional rights, noting

that C.A. failed to cite to closely analogous

cases clearly establishing his constitutional

rights. However, a plaintiff need not always

identify a closely analogous case; rather, he can

establish a clearly established constitutional

right by showing that the violation was so

obvious that a reasonable person would have known

of the unconstitutionality of the conduct at

issue. Thus, binding precedent is not necessary

to clearly establish a right. Rakovich v. Wade,

850 F.2d 1180, 1209 (7th Cir. 1988). In fact, in

the most extreme cases, an analogous case might

never arise because "the existence of the right

was so clear, as a matter of the wording of a

constitutional or statutory provision or

decisions in other circuits or in the state

courts, that no one thought it worthwhile to

litigate the issue." Burgess v. Lowery, 201 F.3d

942, 945 (7th Cir. 2000). See, e.g., K.H. Through

Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.

1990) (An easy or obvious case of deprivation

that has no precedent does not mean that

"officials would be immune from damages liability

because no previous case had found liability in

those circumstances.").

As alleged, this case fits that principle to a

T. The defendants’ alleged conduct in this case

is so severe that a reasonable person would have

understood that he was violating C.A.’s

constitutional rights. Specifically, a reasonable

person would have known that it was

unconstitutional to use the government’s power to

cause, or conspire to cause, the unjustified

removal of a six-year-old child from his parents

in order to destroy the family, based simply on

the family’s religious beliefs. Cf. Morris v.

Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) ("It

is beyond purview that any rational teacher could

believe that governmental destruction of a family

based on fabricated evidence is constitutionally

allowed."); id. at 672 (making knowingly false

statements of child neglect violates clearly

established constitutional right to familial

relations); Malik, 191 F.3d at 1316 ("[I]t is

clearly established law that government

official’s procurement through distortion,

misrepresentation and omission of a court order

to seize a child is a violation of the Fourth

Amendment.") (internal quotation omitted).

Moreover, even if the individual defendants did

not know the allegations of neglect were false,

qualified immunity may still not protect them

because, depending on the nature of the claims of

neglect, it may well be that a reasonable law

enforcement official would recognize that C.A.’s

pre-hearing, pre-investigation seizure violated

the Fourth Amendment. See, e.g., Good, 891 F.2d

at 1094-95 (denying defendants’ claim of

qualified immunity because a reasonable person

should have known that warrantless search was

unconstitutional given that allegations of

neglect would not cause a reasonable person to

believe the child was in imminent danger of

serious bodily injury); Franz v. Lytle, 997 F.2d

784, 791-92 (10th Cir. 1993) (no reasonable

officer would believe that he could visually and

physically inspect two-year old child’s vagina

based on one complaint that the child had a

severe diaper rash). Therefore, while the facts

ultimately may not support these claims, at this

stage we must reject the defendants’ qualified

immunity defense.

In closing our discussion of qualified immunity,

we note that several circuit courts have

concluded that because the balance between a

child’s liberty interest in familial relations

and a state’s interest in protecting the child is

nebulous at best, social workers and other state

actors who cause a child’s removal are entitled

to qualified immunity because the alleged

constitutional violation will rarely--if ever--be

clearly established. See, e.g., Kiser v. Garrett,

67 F.3d 1166, 1169-74 (5th Cir. 1995); Hodorowski

v. Ray, 844 F.2d 1210, 1216-17 (5th Cir. 1988);

Tenenbaum v. Williams, 193 F.3d 581, 595-96 (2d

Cir. 1999); Doe v. State of Louisiana, 2 F.3d

1412, 1416-21 (5th Cir. 1993); Frazier v. Bailey,

957 F.2d 920, 929-31 (1st Cir. 1992). While we

agree that that is generally the case, see e.g.,

Landstrom v. Illinois Dept. of Children and

Family Serv., 892 F.2d 670, 674-78 (7th Cir.

1990); Darryl H. v. Coler, 801 F.2d 893, 907-08

(7th Cir. 1986), as noted above, some

governmental actions are so clearly beyond the

pale that a reasonable person should have known

of their unconstitutionality even without a

closely analogous case. Thus,

[c]ases claiming governmental interference with

the right of family integrity are properly

analyzed by placing them, on a case by case

basis, along a continuum between the state’s

clear interest in protecting children and a

family’s clear interest in privacy. When the

facts of a case place it in the center of the

continuum where the two interests overlap and

create a tension, the right to family integrity

may properly be characterized as nebulous, and

thus a defendant may claim the protection of

qualified immunity. However, when the facts of a

case place it squarely on the end of the

continuum where the state’s interest is

negligible and where the family privacy right is

well developed in jurisprudence from this circuit

and the Supreme Court, a defendant’s defense of

qualified immunity, based on a claim that the

right to family integrity was not clearly

established, will fail.

Morris, 181 F.3d at 671.

Here we do not know enough facts to determine

where along the continuum this case falls. And

given the role of specific facts, "[i]t is

impossible to know which clearly established

rules of law to consult unless you know what is

going on." Elliott v. Thomas, 937 F.2d 338, 342

(7th Cir. 1991). Accordingly, at this time, we

cannot conclude that the individual defendants

are entitled to qualified immunity because the

facts once uncovered may turn out to be so severe

and obviously wrong that the defendants should

have known they were violating C.A.’s

constitutional rights. See, e.g., Good, 891 F.2d

1087.

C. Section 1985(3)

C.A. also seeks recovery under Section

1985(3)./19 Section 1985(3) provides in

relevant part: "If two or more persons in any

state or Territory conspire . . . for the purpose

of depriving either directly or indirectly, any

person or class of persons of the equal

protection of the laws . . . the party so injured

or deprived may have an action for the recovery

of damages occasioned by such injury or

deprivation, against any one or more of the

conspirators." 42 U.S.C. sec. 1985(3). "A

plaintiff raising a claim under sec. 1985(3) must

allege (1) the existence of a conspiracy, (2) a

purpose of depriving a person or class of persons

of equal protection of the laws, (3) an act in

furtherance of the alleged conspiracy, and (4) an

injury to person or property or a deprivation of

a right or privilege granted to U.S. citizens."

Majeske v. Fraternal Order of Police, Local Lodge

No. 7, 94 F.3d 307, 311 (7th Cir. 1996).

To establish that the purpose of the conspiracy

is to "deprive a person or class of persons of

equal protection of the laws," the plaintiff must

allege "some racial, or perhaps otherwise class-

based invidiously discriminatory animus behind

the conspirators’ action." Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). This court

has clarified that otherwise "class-based

invidiously discriminatory animus" includes

"conspiracies to discriminate against persons

based on sex, religion, ethnicity or political

loyalty." Volk v. Coler, 845 F.2d 1422, 1434 (7th

Cir. 1988).

C.A. alleged sufficient facts to support a claim

under Section 1985(3): He alleged a conspiracy

(and as discussed in the context of Section 1983,

he did so with sufficient factual detail), and

several acts in furtherance of the alleged

conspiracy. He also alleged that the conspirators

had an invidious animus--religion. As a result of

this conspiracy, C.A. alleged that he was injured

in that his Fourth Amendment and Due Process

rights were violated. While Due Process rights

and Fourth Amendment rights are not protected

against private conspiracies under Section

1985(3),/20 in this case C.A. alleged that the

conspiracy included state actors and that the

alleged conspiracy was aimed at influencing state

activity--the court proceeding in his custody

case. Therefore, C.A. has sufficiently alleged "a

deprivation of a right or privilege granted to

U.S. citizens." See, e.g., United Brotherhood of

Carpenters and Joiners of America, Local 610,

AFL-CIO v. Scott, 463 U.S. 825, 830 (1983).

Accordingly, C.A.’s allegations are sufficient to

state a claim under Section 1985(3) as well.

D. Disqualification

One issue remains. Before the district court,

C.A. moved to disqualify Judge McDade arguing

that he has demonstrated bias and created an

appearance of partiality through his handling of

C.A.’s complaint. Specifically, C.A. complains

that Judge McDade demonstrated an alliance with

the defendants by issuing a Rule to Show Cause as

to why C.A.’s complaint was not barred by the

statute of limitations. C.A. asserts that because

the statute of limitations is a waivable

affirmative defense, the district court could not

raise it sua sponte. C.A. also contends that the

district court demonstrated partiality by sua

sponte waiving the local rule requiring the

defendants to file a memorandum of law in

response to the motion to dismiss; by failing to

give him the benefit of Rule 6(e) which allowed

him three additional days to respond to the

defendants’ motion to dismiss because it was

served by mail; by sua sponte dismissing the

complaint against Sheriff Thirtyacre; and by

refusing to accept as true his allegations that

Judge Susan Gende acted in a dual role of

investigator and judge. C.A. argues that

cumulatively these rulings indicate that Judge

McDade assumed an advocacy role on behalf of the

defendants requiring his disqualification under

28 U.S.C. sec. 455(a) and (b)(1), and 28 U.S.C.

sec. 144.

Section 455(a) requires a federal judge to

"disqualify himself in any proceeding in which

his impartiality might reasonably be questioned,"

and section 455(b)(1) provides that a judge shall

disqualify himself if he "has a personal bias or

prejudice concerning a party." C.A. seeks Judge

McDade’s recusal under both sections. However, we

have held that "the denial of a request that the

judge recuse himself under section 455(a) must be

appealed immediately by application for writ of

mandamus, or it is waived." United States v.

Horton, 98 F.3d 313, 316 (7th Cir. 1996). Because

C.A. did not petition for mandamus, "this Court

cannot review [the district court’s] disposition

of the Section 455(a) motion." Durhan v.

Neopolitan, 875 F.2d 91, 96-97 (7th Cir. 1989).

"It is less clear under our case law whether we

may review a refusal to recuse under section

455(b) when the argument is raised for the first

time on appeal." United States v. Smith, 210 F.3d

760, 764 (7th Cir. 2000).We need not decide

whether a claim for recusal under Section 455(b)

can be raised on direct appeal rather than

mandamus, however, because we conclude that under

Section 455(b), Judge McDade was not required to

recuse.

"In determining whether a judge must disqualify

himself under 28 U.S.C. sec. 455(b)(1), the

question is whether a reasonable person would be

convinced the judge was biased." Hook v. McDade,

89 F.3d 350, 355 (7th Cir. 1996) (internal

quotation omitted). Recusal under Section 455

(b)(1) "is required only if actual bias or

prejudice is proved by compelling evidence." Id.

Moreover, as the Supreme Court has made clear,

"judicial rulings alone almost never constitute a

valid basis for a bias or partiality motion."

Liteky v. United States, 510 U.S. 540, 555

(1994). Against this backdrop, we must conclude

that a reasonable person would not reasonably

believe that the district court was biased or

prejudiced against C.A. because the only evidence

of bias C.A. presents consists of judicial

rulings. Moreover, those rulings do not

demonstrate evidence of personal animosity or

malice, which is necessary to succeed on a

Section 455(b)(1) motion. Hook, 89 F.3d at 355

("bias or prejudice from which the law of recusal

protects a party must be grounded in some

personal animus or malice that the judge harbors

against him, . . ."). Therefore, the district

court did not err in refusing to recuse under

Section 455(b)(1).

C.A. also asserts that the district court was

required to recuse under 28 U.S.C. sec. 144 which

provides in pertinent part:

Whenever a party to any proceeding in a district

court makes and files a timely and sufficient

affidavit that the judge before whom the matter

is pending has a personal bias or prejudice

either against him or in favor of any adverse

party, such judge shall proceed no further

therein, but another judge shall be assigned to

hear such proceeding.

28 U.S.C. sec. 144.

Because the phrase "personal bias or prejudice"

found in Section 144 mirrors the language of

Section 455(b), our analysis under Section 144 is

identical. United States v. Balistrieri, 779 F.2d

1191, 1202 (7th Cir. 1985) ("[W]e shall view

judicial interpretations of ’personal bias or

prejudice’ under sec. 144 as equally applicable

to sec. 455(b)(1)."). Therefore, for the same

reasons that recusal was not required under

Section 455(a), it was not required under Section

144./21

III. Conclusion

Dismissal pursuant to 12(b)(6) is appropriate

only if the plaintiff could not possibly succeed

under any set of facts. Reading the facts in the

light most favorable to C.A., he may be able to

succeed on his Fourth Amendment and Due Process

claims under both Sections 1983 and 1985 against

all of the defendants except Probation Officer

Hansen and Judge Gende. Therefore, we reverse the

district court, except as to these defendants.

Having dismissed the federal claims, the district

court also dismissed C.A.’s supplemental state

law claims of intentional infliction of emotional

distress and false imprisonment. Because the

federal claims were improperly dismissed, we also

reverse the dismissal of the supplemental claims.

This case is REMANDED for further consideration

consistent with this opinion.

/1 While the complaint does not explicitly state

that these defendants knew the allegations of

child neglect were false, that is the reasonable

implication of "baseless," and the parties on

appeal seem to assume that is what C.A. meant

when he alleged in his pro se complaint

"baseless." Therefore, for purposes of 12(b)(6),

we will analyze the constitutional claims

assuming that Weir, James and Karen knew the

allegations of child neglect were false.

/2 C.A. does not appeal the dismissal of his claims

against the State of Illinois or defendant Steve

Dickens.

/3 The Attorney General maintains that probation

officers are entitled to Eleventh Amendment

immunity because they are state officers, as

demonstrated by the fact that they serve in the

state court system and are considered judicial

employees in Illinois. 730 ILCS 110/9b(3) (1996).

Of course, the question is whether, in this case,

the probation officers were acting on behalf of

the state or a local subdivision of the state.

See, e.g., McMillian v. Monroe County, Ala., 520

U.S. 781 (1997) (establishing an analytical

framework for determining whether a state actor

is acting on behalf of the state, and thus

entitled to Eleventh Amendment immunity, or a

county or local municipality, and thus not so

entitled). But we need not decide that issue

because, as noted above, C.A. asserts that he is

suing those defendants in their individual

capacities, and thus the Eleventh Amendment is

not implicated.

/4 In denying C.A.’s motion to amend his complaint,

the district court stated that it is not "fair to

characterize the plaintiff’s removal from his

family home as an ’arrest.’" However, the Fourth

Amendment extends beyond criminal "arrests" to

civil "seizures," Wooley v. City of Baton Rouge,

211 F.3d 913, 925 (5th Cir. 2000), including a

child’s removal by social workers. Id. See also,

Tenenbaum v. Williams, 193 F.3d 581, 601-06 (2d

Cir. 1999) (analyzing seizure of a child by the

State during an abuse investigation under the

Fourth Amendment); J.B. v. Washington County, 127

F.3d 919, 928-31 (10th Cir. 1997) (county

officials’ temporary removal of child is a

seizure implicating the Fourth Amendment); Wallis

v. Spencer, 202 F.3d 1126, 1137 n. 8 (9th Cir.

2000) (removal of children should be assessed

under the Fourth Amendment). Cf. Darryl H. v.

Coler, 801 F.2d 893, 900 (7th Cir. 1986)

(analyzing visual inspection of child in neglect

investigation under reasonableness standard of

the Fourth Amendment).

/5 In his brief on appeal, C.A. also argues that

because the standards for seizing a child under

the Fourth Amendment differ from those applicable

to an arrest of an adult, his seizure violates

the Equal Protection Clause of the Constitution.

The Fourth Amendment, however, requires a seizure

to be "reasonable" and "reasonableness" depends

upon the surrounding circumstances, including

whether the seizure is of a child for protective

purposes. The fact that the standard may differ

does not implicate the Equal Protection Clause.

/6 C.A. did not allege in his pro se amended

complaint that Weakley removed him from his home,

but he presents this additional fact in his brief

on appeal. He also sought leave to amend his

complaint against Weakley to correct this

oversight, but the district court denied his

motion. Because this fact is consistent with the

other allegations against Weakley, and for the

sake of judicial economy, we will consider it on

appeal, rather than reversing the district

court’s decision denying C.A. leave to amend his

complaint--a decision premised on the district

court’s incorrect belief that the Fourth

Amendment did not apply to C.A.’s seizure.

/7 It is unclear whether C.A. intended to sue

Weakley and Brokaw in their individual or

official capacities. However, in their motions to

dismiss, Weakley and Brokaw both seem to have

treated C.A.’s pro se complaint as alleging

individual capacity claims. Additionally, C.A.’s

pro se complaint indicates that he intended to

sue Weakley and Brokaw in their individual

capacities because the complaint does not allege

they were acting in their "official capacity," as

it does in the count against Sheriff Thirtyacre.

Therefore, for purposes of appeal, we will

consider C.A.’s claims against Weakley and Brokaw

as individual capacity claims. See, e.g., Stevens

v. Umsted, 131 F.3d 697, 707 (7th Cir. 1997)

(while a suit against a government official will

be assumed an official capacity suit, that

assumption may be overcome if the parties treat

it as an individual capacity suit).

/8 While Sheriff Thirtyacre was served, he did not

respond to the lawsuit. It is unclear from the

record whether Thirtyacre is still the Sheriff of

Mercer County, and whether or not service of

Thirtyacre sufficed for purposes of the Mercer

County Sheriff’s Office. We leave this issue for

remand.

/9 The Mercer County Sheriff’s Department never

responded to C.A.’s complaint, see supra at 14-15

n.7, and while Mercer County originally filed a

brief on appeal, it was stricken following our

appointment of counsel to represent C.A. and the

filing of a new brief on C.A.’s behalf, and

Mercer County never filed an amended brief.

Therefore, we lack the benefit of its input.

/10 On appeal, Ingersoll does not argue that she is

entitled to absolute immunity. Nor would absolute

immunity protect Ingersoll for her role in

initiating C.A.’s removal, or in gathering

evidence. See Millspaugh v. County Dept. of Pub.

Welfare of Wabash County, 937 F.2d 1172, 1175

(7th Cir. 1991) (social worker is not entitled to

absolute immunity for actions taken in applying

for a court order to remove children or for steps

taken to gather evidence). However, absolute

immunity would protect Ingersoll for her

involvement in the judicial process. Id. See

also, K.H. through Murphy v. Morgan, 914 F.2d

846, 853 (7th Cir. 1990).

/11 In his complaint, C.A. alleged that Ingersoll,

Bartelt, Thirtyacre, and Gende attended the

investigatory conference. In his brief on appeal,

C.A. states that Hansen was also present.

/12 In his complaint, C.A. asserted that the

defendants violated his First Amendment rights,

probably because of the defendants’ alleged anti-

religious motivation for seeking his removal.

However, on appeal, C.A. does not argues this

theory, so we need not consider whether

defendants’ alleged motive creates a First

Amendment claim as well.

/13 While we have held that a post-deprivation

hearing which results in a judicial determination

that a child’s removal is justified would prevent

a due process claim based on the lack of a pre-

deprivation hearing, see, e.g., Lossman v.

Pekarske, 707 F.2d 288 (7th Cir. 1983); Donald v.

Polk County, 836 F.2d 376, 380 (7th Cir. 1988),

those cases are distinguishable because they did

not involve allegations that the defendants

intentionally presented the court with false

claims of neglect. Compare with, Morris v.

Dearborne, 181 F.3d 657, 673 (5th Cir. 1999).

/14 This assumes of course that C.A.’s four-month

"separation period" is not a "seizure" within the

meaning of the Fourth Amendment. In the criminal

context, this court has rejected the concept of a

"continuing seizure," holding instead that

following a Gerstein probable cause hearing, the

Fourth Amendment no longer applies, but that

substantive due process addresses the post-

probable cause detention. Wilkins v. May, 872

F.2d 190, 194 (7th Cir. 1989). See, e.g., Reed v.

City of Chicago, 77 F.3d 1049, 1051-52 (7th Cir.

1996) (summarizing the constitutional approach

applied in the sequence from arrest to post-

conviction confinement). But in Albright v.

Oliver, 510 U.S. 266 (1994), the Supreme Court

held that an action for malicious prosecution

cannot be based on substantive due process. This

has led us to question the continued validity of

Wilkins. Reed, 77 F.3d 1052 (noting that the

analysis enunciated in Wilkins may not have

survived Albright). However, we need not revisit

Wilkins today because C.A. has a substantive due

process right beyond that rejected in Albright--

namely the right to familial relations--and

whether we analyze C.A.’s claim under the Fourth

Amendment or substantive due process, the result

is the same. See infra at 27-28.

/15 But see Lossman v. Pekarske, 707 F.2d 288, 290

(7th Cir. 1983) (questioning whether a child has

a liberty interest given that a child is always

subject to someone’s custody).

/16 It is possible to state both a procedural and

substantive due process claim. Cf. Owen v. Lash,

682 F.2d 648, 652 n.4 (7th Cir. 1982) (holding

that "[a] single act of depriving a citizen of

his right to correspond may simultaneously

constitute a violation of substantive

constitutional right and of the right to

procedural due process"). Therefore, the

defendants’ actions toward C.A. may

simultaneously constitute a violation of his

substantive due process rights (if his removal

was not justified by a sufficiently compelling

governmental interest) and his right to

procedural due process (if the manner in which

the deprivation occurred violates procedural

norms). See, e.g., Croft, 103 F.3d at 1125 ("The

Due Process Clause of the Fourteenth Amendment

prohibits the government from interfering in

familial relationships unless the government

adheres to the requisites of procedural and

substantive due process.").

/17 C.A. also contends that his procedural due

process rights were violated because he was

questioned without the benefit of a guardian ad

litem or an attorney. At this stage, and based on

the sparse factual allegations, we cannot

evaluate the constitutional impact of any

questioning done outside the presence of his

parents and without the benefit of someone

representing C.A.’s interests. This issue should

be considered on remand following further

development of the factual record.

/18 Qualified immunity is a defense available only to

individual defendants; it does not apply to the

Mercer County Sheriff’s Department or Mercer

County. See, e.g., Tenenbaum, 193 F.3d at 597

("While the individual defendants are entitled to

qualified immunity, the City is not.") (citing

Owen v. City of Independence, Mo., 445 U.S. 622,

657 (1980)).

/19 In his pro se complaint, C.A. cited only to

Section 1983, but the district court considered

his complaint under Sections 1983 and 1985(3),

and on appeal C.A. contends that his suit is

brought under both sections. As we have explained

before, notice pleading requires the plaintiff to

allege just enough to put the defendant on notice

of facts providing a right to recovery and not to

cite to the appropriate statute creating that

right. Bartholet v. Reishauer A.G. (Zurich), 953

F.2d 1073, 1078 (7th Cir. 1992) ("Instead of

asking whether the complaint points to the

appropriate statute, a court should ask whether

relief is possible under any set of facts that

could be established consistent with the

allegations."). Therefore, even though C.A. did

not cite Section 1985(3), we must nonetheless

consider whether C.A. alleged facts sufficient to

sustain a claim under Section 1985(3).

/20 While Section 1985(3) extends to private

conspiracies, for a private conspiracy to be

actionable it must affect the "Thirteenth

Amendment right to be free from involuntary

servitude, and, in the same Thirteenth Amendment

context, the right of interstate travel." Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263,

278 (1993).

/21 C.A. requests that this case be reassigned on

remand. We see no reason to do so.