Lia Xiong v. Michael Wagner

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1737

V ASHIR J. X IONG, L IA Y. X IONG, and

R. T HOR, a minor by his next friends,

Plaintiffs-Appellants,

v.

M ICHAEL W AGNER, D UTCH L EYDEL,

M ARIE F ROH, and D ANIEL C HIAPPETTA,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 11-CV-288-JPS—J.P. Stadtmueller, Judge.

A RGUED S EPTEMBER 12, 2012—D ECIDED O CTOBER 19, 2012

Before F LAUM, W OOD , and H AMILTON, Circuit Judges.

F LAUM, Circuit Judge. Racine County Human Services

Department caseworker Michael Wagner removed Thor,

a 12-year-old child, from his parents’ home and placed

him into protective custody. Thor suffers from cerebral

palsy, global developmental delay, and is confined to a

2 No. 12-1737

wheelchair. Wagner commenced an investigation after

receiving a referral from personnel at Thor’s middle

school that had observed bruising on his arm and leg.

Thor’s mother and stepfather, Lia and Vashir Xiong, and

Thor sued caseworker Michael Wagner, Dutch Leydel

(Wagner’s supervisor), Marie Froh (another caseworker

who later worked on the case), and Daniel Chiapetta

(Froh’s supervisor), alleging violations of their constitu-

tional rights under 42 U.S.C. § 1983 and 42 U.S.C. § 1985.

The district court granted summary judgment to defen-

dants on qualified immunity grounds and because plain-

tiffs had failed to establish sufficient evidence of racial

animus. For the following reasons, we affirm the holding

of summary judgment in favor of the defendants on

all counts.

I. Background

Thor is a wheelchair-bound 12-year-old afflicted with

cerebral palsy and global developmental delay. He has

a limited capacity for speech and maintains a cognitive

level of approximately a second or third grader. Thor,

his mother, and stepfather are all of Hmong ancestry.

Upon observing abnormal bruising on Thor’s arm and

upper leg, Thor’s school contacted Racine County

Human Services Department (“RCHSD”) through a

physical abuse referral. Defendant Wagner, an RCHSD

investigative caseworker, commenced an investigation

in response to the referral on March 24, 2009. When

asked by school employees, Thor replied that he did not

know how he received the bruises on certain occasions,

No. 12-1737 3

whereas on other occasions he indicated that his mother

and stepfather had caused the bruising.

Wagner interviewed Thor’s 8-year-old brother, P.Y., at

school, who stated that Thor’s parents had hit Thor as

punishment, describing an occasion when Vashir Xiong

(“Vashir”) allegedly threw him onto the floor. P.Y. also

stated that his parents had left Thor home alone at least

on the occasion of Lia Xiong’s (“Lia”) birthday, for ap-

proximately two hours, in an area of their home which

they enclosed by erecting a sort of furniture blockade.

Wagner also interviewed Thor’s sister, D.T., at school, who

confirmed that Thor was sometimes left at home alone

in an enclosed area, specifically on the occasion of Lia’s

birthday. D.T. also corroborated the method used to

confine Thor to a specific area to prevent him from

leaving the living room.

Wagner also interviewed Thor at his school. Through

interpretation, Thor said that he had been left alone on

his mother’s birthday and on other occasions. He also

stated that his stepfather had caused the bruising on

his arm and that as punishment on one occasion his

stepfather had picked him up and thrown him. Wagner

also examined Thor, including his naked pubic area and

took pictures of Thor while undressed. He turned the

camera over to school personnel.

On the afternoon of March 24, 2009, Wagner entered

the Xiongs’ home, accompanied by Caledonia Police

Department officers, acting with the authorization of his

supervisor Dutch Leydel. Vashir acknowledged that

Thor had been left alone at home in the aforemen-

4 No. 12-1737

tioned enclosed area on the occasion of Lia’s birthday. It

apparently had not occurred to either Vashir or Lia that

Thor might be endangered at home alone. Wagner re-

moved Thor from his home and placed him in protective

custody with a foster parent, Melinda Kasch.

On March 25, 2009, Dr. George Milonas examined

Thor. Dr. Milonas was unable to determine the cause of

Thor’s bruising to a degree of medical certainty. He noted,

however, that this case was definitively one of neglect

based on the fact that Thor’s parents had left him at

home alone despite the fact that he required constant

supervision.

On March 26, 2009, Racine County Judge Stephan

Simanek issued a probable cause order for Thor’s tempo-

rary removal and continued foster care placement. The

probable cause order was based in part on videotaped

interviews conducted by Officer Lisa Seils, in which

Lia and Vashir admitted to having left Thor at

home alone potentially as many as four times between

January 1, 2009 and March 24, 2009.

On March 27, 2009, Melinda Kasch indicated that

she no longer was capable of caring for Thor. Arrange-

ments were made for Becky Collins, one of Thor’s former

teachers, to apply for a foster care license and assume

Thor’s care. On May 4, 2009, Collins informed Wagner

that Thor had fallen out of his wheelchair and injured

himself, requiring three stitches in his head. Wagner

went to Collins’ home to investigate the accident on

May 5, 2009. He learned that Thor had rolled down

the driveway into the drainage system at the end of the

No. 12-1737 5

driveway while Collins’ husband had gone inside for a

short period of time, leaving Thor unattended. The Xiongs

dispute whether Thor himself released the wheelchair

brake or whether it was never set in the first place.

After Collins indicated that she wished to end

Thor’s placement with her by June 3, 2009, Thor was

temporarily placed at Lakeview Specialty Hospital &

Rehab (“Lakeview”) on June 1, 2009. On June 19, 2009, the

Xiongs’ attorney informed Wagner that an accident

involving Thor had occurred at Lakeview. While at first

Sue Weller, Thor’s case manager at Lakeview, stated

that she was unaware of any accidents, she later

informed Wagner that Thor had in fact fallen from his

bed on June 1, 2009, and hit his head. Staff responded to

the incident, applied ice to the injury, and performed

neurological checks throughout the rest of the evening

and following day. Lakeview staff put in place protective

mats on the floor surrounding Thor’s bed to prevent

further injuries. Weller also relayed to Wagner that on

two additional days Thor had rolled himself out of bed,

though Lakeview’s logs indicated that he did not

suffer any injuries. On August 7, 2009, Thor was trans-

ferred from Lakeview to foster care at the home of

Cindy and Jeb Lucht.

Wagner also interacted with the Xiongs regarding Thor’s

care prior to 2009. Specifically, he was involved in the

Xiongs’ voluntary petition to the state seeking protec-

tive services for Thor in 2005. On March 22, 2005, Wagner

wrote a letter to Lia stating that he had received a

message from her husband on March 21, 2005, but could

6 No. 12-1737

not understand what he said. On April 6, 2005, Wagner

wrote an additional letter to Lia stating that he returned

her message, but when he called back the person

that answered the phone said he had called the wrong

number.

Finally, in an April 18, 2005 case note, Wagner in-

dicated that he communicated by phone with Janet

Ovel at Family Support Service regarding the Xiongs’ case.

Ovel told Wagner that Family Support Service would

provide the Xiongs with necessary services and that if

there was a problem with the parents following through

she would notify RCHSD. The note also stated that

both Wagner and Ovel felt the family was attempting

to manipulate the system via communications between

RCHSD and Family Support Service.

The Xiongs filed suit against Wagner, Dutch Leydel,

Marie Froh, and Daniel Chiapetta in the United States

District Court for the Eastern District of Wiscon-

sin. They alleged that Thor’s placement into, and de-

fendants’ subsequent failure to remove him from, pro-

tective custody in private foster homes and at Lakeview

constituted five deprivations of their civil rights under

42 U.S.C. § 1983 and § 1985. Specifically, they alleged

violations of all plaintiffs’ Fourteenth Amendment due

process rights to familial relations, Thor’s Fourteenth

Amendment right to bodily security and integrity,

all plaintiffs’ Fourteenth Amendment equal protection

rights, and that the defendants conspired to deprive

the plaintiffs of their Fourteenth Amendment equal

protections rights.

No. 12-1737 7

On November 21, 2011, the Xiongs filed a motion

for partial summary judgment as to their claims

regarding the Xiongs’ and Thor’s right to familial

relations and Thor’s right to bodily security and integ-

rity. On December 1, 2011, defendants filed a motion

for summary judgment requesting judgment as to all

claims. On February 29, 2012, the district court granted

defendants’ motion for summary judgment on all claims.

Judge Stadtmueller ruled that qualified immunity pre-

cluded liability for all claims stemming from Thor’s

removal as well as his continued placement in protective

custody. The district court also determined that there was

insufficient evidence to establish that racial animus had

motivated the defendants’ actions and accordingly dis-

missed plaintiffs’ equal protection and conspiracy

claims. On March 28, 2012, plaintiffs filed a timely notice

of appeal.

II. Discussion

This court’s review of the district court’s grant of sum-

mary judgment is de novo. Raymond v. Ameritech Corp.,

442 F.3d 600, 608 (7th Cir. 2006). Summary judgment is

appropriate if “the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Facts are viewed in the light most favorable to the

nonmovants, drawing all reasonable inferences in their

favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). To

survive a motion for summary judgment, the nonmovants

“must make a showing sufficient to establish each

8 No. 12-1737

essential element of their cause of action for which they

will bear the burden of persuasion at trial.” Billings v.

Madison, 259 F.3d 807, 812 (7th Cir. 2001). Our review

of qualified immunity determinations is also de novo.

Siliven v. Ind. Dep’t of Child Servs., 635 F.3d 921, 925 (7th

Cir. 2011).

Any person who “under the color of law” deprives a

person of a right secured by the Constitution may be

held civilly liable. 42 U.S.C. § 1983. However, “where

their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have been aware,” qualified immunity

shields government actors from liability for civil dam-

ages. Siliven, 635 F.3d at 925 (citing Pearson v. Cal-

lahan, 555 U.S. 223, 129 (2009)). In determining

whether qualified immunity applies, “a court considers

(1) whether the plaintiff’s allegations show that the defen-

dant violated a constitutional right, and (2) whether

that right was ‘clearly established’ at the time of the

defendant’s conduct.” Hernandez ex rel. Hernandez v.

Foster, 657 F.3d 463, 473 (7th Cir. 2011) (citation omitted).

The court may analyze either prong first, in its discretion.

Id. “A right is clearly established ‘when, at the time of

the challenged conduct, [t]he contours of [a] right [are]

sufficiently clear’ that ‘every reasonable official would

have understood that what he is doing violates that

right.’ ” Id. at 473-74 (quoting Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011)). The plaintiffs need not identify a

specific case directly on point, but “existing precedent

must have placed the statutory or constitutional ques-

tion beyond debate.” Id. at 474 (citation omitted).

No. 12-1737 9

A. Thor’s Seizure

Plaintiffs first contend that the removal of Thor from

their home constitutes a violation of their constitutional

rights. Plaintiffs insist that they have not pled a Fourth

Amendment claim surrounding Thor’s initial removal,

but rather that their claims relating to Thor’s seizure

are properly analyzed under the Fourteenth Amend-

ment. However, in Hernandez, a case involving similar

allegations of constitutional violations surrounding

the removal of a child by social welfare workers, we

clarified that where the child himself brings a claim re-

garding his initial removal, the Fourth Amendment

provides the proper analytical framework. 657 F.3d at

474 (“[The child’s] claim arising from his initial removal

is properly analyzed under the Fourth Amendment

because it is premised on his seizure and does not

coincide with sufficiently separate conduct involving

his relationship with his parents.”). We explained that

“[s]ubstantive due process may not be called upon when

a specific constitutional provision [i.e., the Fourth Amend-

ment] protects the right allegedly infringed upon.” Id.

(citation omitted). Accordingly, plaintiff Thor’s constitu-

tional claim regarding his initial seizure is properly

analyzed under the Fourth Amendment.

The Fourth Amendment’s proscription of unreasonable

seizures applies in the context of the removal of a child

from a home by social welfare workers. See id. at 475.

“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

10 No. 12-1737

officers ‘have reason to believe that life or limb is in

immediate jeopardy.’ ” Id. at 474 (citation omitted). Thor’s

removal from his home and placement into protective

custody constitutes a seizure. Id. (“Removing [the

child] from his home and parents and taking him into

protective custody qualifies as a seizure.”). Wagner’s

removal of Thor was not pursuant to a court order or

justified by exigent circumstances and therefore must

have been supported by probable cause in order to

qualify as reasonable.

The probable cause inquiry is an objective one,

focused on the facts known to defendants at the time

the removal decision was made and upon whether a

“prudent caseworker (meaning one of reasonable cau-

tion) could have believed that [the child] faced an im-

mediate threat of abuse based on those facts.” Id. at 475

(quoting Brokaw v. Mercer Cnty., 235 F.3d 1000, 1010

(7th Cir. 2000)). We need not determine whether

probable cause in fact existed at the time of Wagner’s

removal decision. Rather, we may rule on qualified im-

munity grounds that a reasonable caseworker could

have believed that probable cause existed and accordingly

wouldn’t have understood his actions to violate a con-

stitutional right. Id. Thus, as long as RCHSD workers

“could have believed [Thor’s removal] to be lawful, in

light of clearly established law and the information

[they] possessed,” defendants are entitled to qualified

immunity. Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227

(1991)).

Defendants could have reasonably believed that

probable cause existed in this case. In addition to the

No. 12-1737 11

referral Wagner received from Thor’s school on March 24,

2009, RCHSD’s file included two earlier reports from

March 10, 2005 and January 30, 2009 similarly re-

counting incidents suggestive of abuse or neglect. Before

removing Thor, Wagner conducted a thorough inves-

tigation, interviewing teachers at Thor’s school, two

of Thor’s siblings, and Thor himself. The bruising

on Thor’s arm and leg, coupled with the corroborated

revelations that Thor had been left at home alone for

hours at a time and had been thrown onto the ground

all suggest that “a prudent caseworker . . . could have

believed that [the child] faced an immediate threat

of abuse.” Id. While the Xiongs dispute the accuracy of

the statements made to Wagner during his interviews

with Thor and his siblings, the relevant inquiry is

whether the information actually provided to Wagner

at the time was sufficient to trigger a reasonable case-

worker’s belief that Thor was in imminent danger. We

find that this standard is met here.

The Xiongs argue, among other things, that Hernandez

is distinguishable from the present case because it con-

cerned a case of alleged child abuse (there, the child

suffered a broken arm), id. at 468, rather than a situation

of neglect. While Thor’s case was ultimately pursued

by RCHSD as one of child neglect rather than abuse, the

facts available to Wagner at the time of the removal

decision did not clearly indicate that this case was ex-

clusively one of neglect. Wagner initially received a

physical abuse intake referral from Thor’s teachers,

personally observed bruising on Thor’s arm and leg, and

received information from Thor and his sibling that

12 No. 12-1737

Thor had been thrown onto the ground by his stepfather

as punishment in the past. Further, a licensed physician

could not determine the source of Thor’s bruising to a

degree of medical certainty. Thus, this case was not

clearly characterized as one of neglect at the outset.

Regardless, the district court properly explained

that where neglect, like abuse, provides sufficient

grounds for removal, the probable cause analysis is

equally applicable in that context. Indeed, in Brokaw, we

applied the probable cause inquiry in a case asserting

various § 1983 claims surrounding a situation of alleged

child neglect. 235 F.3d at 1011. Thus, because defendants

could have reasonably believed that probable cause

existed sufficient to justify Thor’s seizure—and accord-

ingly would not have understood their actions to

violate clearly established law—qualified immunity

shields them from any alleged liability stemming from

Thor’s initial removal. We therefore affirm the grant

of summary judgment in defendants’ favor on this claim.

B. Right to Familial Relations and Continued With-

holding

Plaintiffs also allege that their forced separation from

Thor violated their Fourteenth Amendment right to

familial relations.1 This court has recognized that the

1

Plaintiffs disavow the notion that their substantive due

process claim is based solely on Thor’s initial removal, empha-

(continued...)

No. 12-1737 13

Fourteenth Amendment includes the right to associate

with relatives, Mayo v. Lane, 867 F.2d 374, 375 (7th Cir.

1989), and therefore that substantive due process

includes the right to familial integrity. Brokaw, 235 F.3d

at 1018.

However, like the Fourth Amendment, the Fourteenth

Amendment right to familial integrity is not absolute. Id.

at 1019. Rather, “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.”

Id. Caseworkers achieve the proper balance where they

have “ ‘some definite and articulable evidence giving rise

to a reasonable suspicion’ of past or imminent danger

of abuse before they . . . take a child into protective cus-

tody.” Hernandez, 657 F.3d at 478 (quoting Brokaw, 235

F.3d at 1019). To qualify as a “reasonable suspicion,”

caseworkers must have “more than a hunch but less

than probable cause.” Id. (quoting Siliven, 635 F.3d at 928).

We have already established that a reasonable case-

worker could have believed that probable cause existed

1

(...continued)

sizing that the court should assess their entire period of separa-

tion from Thor in the aggregate. If Lia and Vashir had ad-

vanced a claim based solely on Thor’s initial removal, the

result would be identical to that of Thor’s Fourth Amendment

claim: Parents’ substantive due process claims “stand or fall

with [the child’s] Fourth Amendment claim premised on his

removal.” Hernandez, 657 F.3d. at 478.

14 No. 12-1737

sufficient to justify the initial decision to remove Thor.

Thus, the less demanding standard of “reasonable suspi-

cion” is met with respect to Wagner’s initial decision

to remove Thor from the Xiongs’ residence.

However, the continued withholding of a minor may

constitute a constitutional violation where probable

cause or reasonable suspicion dissipates. See id. at 480.

While Lia and Vashir Xiongs’ claim surrounding their

continuing separation from Thor is properly analyzed

under the Fourteenth Amendment, Brokaw, 235 F.3d at

1019 (“substantive due process provides the appropriate

vehicle for evaluating the constitutionality of the nearly

four-month government-forced separation of [the child]

from his parents.”);2 see also Hernandez, 657 F.3d at 480

(“[The child’s parents] were not seized; their continued

withholding claims are properly analyzed under sub-

stantive due process.”), Thor’s continued withholding

claim is properly analyzed under a Fourth Amendment

framework. Id. (“Other than the passage of time, the

harm [the child] complains of is no different than the

harm he alleges was caused by his initial removal . . .

Therefore [the child’s] continued withholding claim is

analyzed under the Fourth Amendment.”). Thus, while

reasonable suspicion provides the standard under which

2

We acknowledged in Brokaw, however, that allegations of

constitutional violations surrounding the initial removal of a

child “should be considered under the Fourth Amendment,

not under the rubric of substantive due process.” 235 F.3d.

at 1018.

No. 12-1737 15

Lia and Vashir’s continuing separation claim must be

analyzed, probable cause again provides the applicable

standard with respect to Thor’s continued separation

claim.

It is undisputed that on March 26, 2009, Judge Simanek

ruled that probable cause justified Thor’s continued

placement in protective custody. Accordingly, the rele-

vant inquiry is whether any reasonable caseworker

would have been required to believe that reasonable

suspicion or probable cause dissipated between March 24,

2009, when Wagner removed Thor, and March 26, 2009,

when Judge Simanek’s ruling was issued.

There is no evidence that probable cause or reasonable

suspicion dissipated during the brief period in question.

During that period, Dr. Milonas’s medical examination

of Thor confirmed that the present case was definitively

one of at least neglect. Plaintiffs argue that Dr. Milonas’s

report also found that Thor may have injured himself

by thrashing, ruling out abuse. However, the report did

not remove concerns about abuse or neglect. Dr. Milonas

stated that he could not identify the source of Thor’s

bruising to a degree of medical certainty. A reasonable

caseworker reading his opinion would not have been

required to conclude that reasonable suspicion or

probable cause dissipated based on his inconclusive

statement. Further, during this period Lia and Vashir

indicated in taped interviews with Officer Seils that

they had in fact left Thor at home alone on multiple

occasions. These revelations tend to bolster, rather

than undermine, defendants’ belief that Thor was in

16 No. 12-1737

danger at that time. It therefore remained reasonable

for Wagner to believe that reasonable suspicion and

probable cause had not dissipated and to keep Thor

in protective custody.

Plaintiffs argue that Judge Simanek’s probable cause

ruling was based on improper information. Specifically,

they contend that Thor had only been left alone for

two hours on the occasion of Lia’s birthday, rather than

several hours, as Judge Simanek suggested in his order.

To this end, plaintiffs quote language from Brokaw in-

dicating that due process “at a minimum . . . requires

that government officials not misrepresent facts in order

to obtain the removal of a child from his parents.” 235

F.3d at 1020. First, we made these statements in Brokaw

in the context of analyzing a procedural due process

claim, rather than a substantive due process claim (at

issue here). Id. Second, Wagner did not make any misrep-

resentations or knowingly false statements of the

sort alleged in Brokaw. See id. at 1021. The fact that he

failed to interrupt Judge Simanek to correct a word

choice does not violate plaintiffs’ substantive due

process rights. In any event, this argument does not

provide any evidence relevant under the applicable

standard of whether a reasonable caseworker would

have believed that reasonable suspicion or probable

cause dissipated.

Finally, the Xiongs suggest that defendants violated

their familial integrity rights by failing to make rea-

sonable efforts to prevent Thor’s removal, by making no

effort to place Thor with local relatives, and by failing to

No. 12-1737 17

make reasonable efforts to reunify the Xiong family.

However, these arguments do not address the relevant

standard of whether a reasonable caseworker could

have believed that probable cause existed to justify

Thor’s removal in the first place or whether probable

cause or reasonable suspicion dissipated during the

period in question. Defendants are entitled to qualified

immunity for any alleged violation of plaintiffs’ right to

familial relations, and therefore summary judgment in

their favor is appropriate.

C. Right to Bodily Security and Integrity

Plaintiffs next argue that defendants violated Thor’s

Fourteenth Amendment right to bodily security and

integrity. The Fourteenth Amendment guarantees that “a

child has a constitutional right to be placed into a safe

and secure foster home.” Waubanascum v. Shawano Cnty.,

416 F.3d 658, 665 (7th Cir. 2005). However, state actors

are liable for breaching this right only if they violate

“the right of a child in state custody not to be handed

over by state officers to a foster parent or other

custodian . . . whom the state knows or suspects to be a child

abuser.” Id. (quoting K.H. ex rel. Murphy v. Morgan, 914

F.2d 846, 852 (7th Cir. 1990) (emphasis in original)).

For purposes of our qualified immunity analysis, liability

turns upon whether a reasonable caseworker would

have “actual knowledge or suspicion of the risk of harm

the child may suffer while in foster care.” Id. at 666-67;

see also J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 795 (7th

Cir. 2003) (“[L]iability will only arise if the state actor

18 No. 12-1737

knows or suspects that the agency or foster parents with

whom a child is placed are likely to abuse the child.”).

We have described this standard as one of modified

deliberate indifference. Waubanascum, 416 F.3d at 666.

i. Foster Placements

Plaintiffs first allege that defendants’ failure to remove

Thor from foster care with Collins violated his right to

bodily security and integrity under the Fourteenth Amend-

ment. To support this claim, they point to the May 4,

2009 incident in which Thor’s wheelchair rolled down

the Collins’ driveway while in their care. Thor was in

fact left unattended for a brief period of time and did

suffer an injury requiring stitches.

However, the facts viewed even in the light most favor-

able to plaintiffs clearly indicate that Thor’s fall was

the result of an accident, rather than abuse or neglect.

Even if Collins or her husband had failed to set Thor’s

wheelchair brake (as opposed to Thor himself having

released it, a point that the parties dispute), the Xiongs

point to no evidence suggesting abusive intent or

disregard sufficient to rise to the level of neglect on

Collins’ part. Collins promptly responded to the

incident, brought Thor to the emergency room, and

informed Wagner of what had occurred. Wagner per-

formed an investigation the following day. In light of

these facts, a reasonable caseworker would not have

developed a suspicion or have any actual knowledge

that Collins had abused or neglected Thor, or would do

so in the future.

No. 12-1737 19

The Xiongs next allege that defendants’ failure to

remove Thor from foster care at Lakeview violated his

right to bodily security and integrity. To this end, they

identify the repeated instances of Thor falling or rolling

out of bed during his time there, sustaining minor

injuries on one occasion. The Xiongs argue that these

instances constitute evidence which would place a rea-

sonable caseworker on notice of a pattern of neglect in

the facility.

The daily Lakeview logs indicate that Thor fell from

his bed on three different days (June 1, June 3, and June 11,

2009). The record also indicates, however, that the

Lakeview staff adopted various appropriate measures

to promptly respond to these incidents. Following Thor’s

June 1, 2009 fall, the only fall resulting in injury, Thor

was quickly treated and staff performed follow-up neuro-

logical checks throughout the rest of the evening and

following day. Lakeview staff also placed protective

mats around his bed to provide cushioning in the event

of another fall. Upon learning of the June 1, 2009

incident, Wagner contacted Weller at Lakeview to in-

quire. Weller ultimately relayed the above informa-

tion regarding Thor’s fall and treatment, and she

described the precautions taken to prevent further in-

juries. At Lakeview, Thor was at all times under the

care of licensed physicians who took protective mea-

sures to ensure his safety and responded promptly to

all incidents. Armed with these facts, a reasonable case-

worker would not have actual knowledge or a suspicion

that Thor was being abused or neglected at Lakeview.

Contrary to plaintiffs’ assertion, Wagner’s awareness

20 No. 12-1737

that Thor suffered injuries while in foster placement at

Lakeview does not compel the conclusion that a rea-

sonable caseworker would know or suspect that Thor

was likely to be neglected in that facility. Indeed, the

facts surrounding the incident at Lakeview, like those

surrounding the circumstances at Collins’ home, indicate

a contrary finding: that the injuries were the result of

accidents. Defendants are entitled to qualified immunity

for any alleged breach of Thor’s right to bodily security

and integrity based on the decision to continue his place-

ment with Collins and at Lakeview.

ii. Right to Individualized Treatment

Plaintiffs next allege that defendants violated Thor’s

right to bodily integrity by failing to provide him with

appropriate individualized treatment. Specifically, the

Xiongs argue that defendants’ failure to obtain coun-

seling services for Thor after he had suicidal ideation

violated his Fourteenth Amendment rights. “When a

state assumes the place of a juvenile’s parents, it

assumes as well the parental duties, and its treatment of

its juveniles should, so far as can be reasonably required,

be what proper parental care would provide.” Nelson v.

Heyne, 491 F.2d 352, 360 (7th Cir. 1974). Accordingly, the

Fourteenth Amendment “right to treatment” includes

the “right to minimum acceptable standards of care and

treatment for juveniles and the right to individualized

care and treatment.” Id.

In their amended complaint, plaintiffs advanced the

general claim that defendants failed to comply with

No. 12-1737 21

their obligation to provide adequate medical care to

Thor during custody. Defendants argue that any right to

individualized treatment claim was not properly pled,

contending that the thrust of plaintiffs’ bodily security

and integrity claim concerned defendants’ failure to re-

move Thor from his placements with Collins and at

Lakeview, rather than the failure to provide medical care.

In fact, plaintiffs did not mention the Fourteenth Amend-

ment right to individualized treatment until their

motion for partial summary judgment. In Abuelyaman v.

Ill. State Univ., 667 F.3d 800 (7th Cir. 2011), this court

upheld the district court’s rejection of a new, fourth

theory of discrimination presented for the first time in

opposition to summary judgment. Id. at 806; see also

Andree v. Ashland Cnty., 818 F.2d 1306, 1314 n.11 (7th

Cir. 1987) (upholding the district court’s rejection of a

theory raised for the first time in opposition to sum-

mary judgment because their “complaint did not give

fair warning of the theory”). Plaintiffs’ generalized asser-

tion that defendants were obligated to provide Thor

with adequate medical care may not have given de-

fendants fair warning of this particular theory of relief.

However, even assuming that plaintiffs’ passing men-

tion of the right to adequate medical care provided de-

fendants with sufficient notice of the claim concerning

Thor’s right to individualized treatment, this claim

does not prevail on the merits.

In Nelson, the primary case relied upon by plaintiffs, we

determined that juveniles placed in a correctional

facility have a substantive due process right to individual-

ized treatment. Id. at 360. We found that the state had

22 No. 12-1737

violated this right by substituting a behavioral classifica-

tion system, which classified juveniles based on their

behavior and personality types, for individual treatment

and attention. Id. In that case, “the record show[ed]

very little individual treatment programmed, much

less implemented.” Id.

In the present case, by contrast, the record reveals

substantial evidence that Thor received individualized

care from licensed physicians. Thor received numerous

physical therapy sessions, occupational therapy sessions,

speech improvement sessions, and professional evalua-

tions while at Lakeview. Doctors at Lakeview were

aware of Thor’s depressive thoughts and elected in

their discretion not to provide counseling. Further, de-

fendants were aware that the Lakeview staff took

prompt action in response to the accidents Thor suffered

as a result of falling out of bed. It cannot be said that

defendants’ conduct, in failing to direct Lakeview to

provide Thor with counseling, “violated ‘clearly estab-

lished’ constitutional rights [here, failure to provide

individualized treatment] of which a reasonable person

would have known.” K.H, 914 F.2d at 855 (quotation

omitted). Accordingly, to the extent the claim was

properly pled, defendants are entitled to qualified im-

munity for any alleged breach of Thor’s right to indi-

vidualized treatment.

iii. Examination of Thor’s Bruising

Plaintiffs also argue that Wagner’s examination of Thor’s

pubic area for bruising violated Thor’s right to bodily

security and integrity. The district court determined that

No. 12-1737 23

this argument had been waived, finding that plaintiffs

deprived defendants of fair notice by failing to mention

this theory of recovery at any stage prior to summary

judgment. On appeal, the plaintiffs have not articulated

any argument challenging the district court’s finding of

waiver. The Xiongs suggest only that Wagner’s examina-

tion of Thor violated his Fourteenth Amendment rights

and reference the relevant facts, without addressing the

district court’s conclusion regarding the adequacy of

their pleadings. Because plaintiffs have not advanced

an argument on appeal challenging the district court’s

finding of waiver, their argument concerning the exam-

ination of Thor’s bruising is waived on appeal. See, e.g.,

Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir.

2012) (“[E]ven arguments that have been raised may

still be waived on appeal if they are underdeveloped,

conclusory, or unsupported by law.”).

D. All Plaintiffs’ Rights to Equal Protection

The Xiongs next argue that defendants violated their

Fourteenth Amendment equal protection rights by

treating them adversely on the basis of their Hmong

ancestry. It is clearly established that such racial or

ethnic discrimination would violate the Equal Protection

Clause; however, defendants are entitled to summary

judgment on the merits of these claims. To establish a

violation of the Fourteenth Amendment’s Equal Protec-

tion Clause, a plaintiff must demonstrate that a “state

actor has treated him differently from persons of a dif-

ferent race and that the actor did so purposefully.” Billings,

24 No. 12-1737

259 F.3d at 812. If the Xiongs “do not produce evidence

sufficient to sustain a jury verdict in their favor, we

shall affirm the district court’s grant of the defendants’

motion for summary judgment.” Id.

Plaintiffs have not produced evidence sufficient to

meet this standard. The Xiongs’ basic argument is that

Wagner harbored racial animus toward them dating

back to 2005 and that this animus motivated all of Wag-

ner’s subsequent adverse decisions affecting their family.

As evidence of racial animus, the Xiongs identify

Wagner’s 2005 case note stating that the family was

attempting to manipulate the system and his 2009 com-

munication to Weller indicating that he was not sure if

the parents were being truthful regarding the first

incident of Thor falling out of bed at Lakeview. The

Xiongs assert that such animus resulted in, among

other things, Wagner’s failure to correct Judge Simanek’s

statement that Thor was left alone for “several hours,” his

failure to direct doctors to provide Thor with coun-

seling services at Lakeview, and his search of Thor’s

pubic area for bruising.

While reasonable inferences must be drawn in the

Xiongs’ favor, “[e]ven on summary judgment, district

courts are not required to draw every requested

inference; they must only draw reasonable ones that are

supported by the record.” Omnicare, Inc. v. UnitedHealth

Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011). Based on the

record available, no reasonable juror could infer that

Wagner’s statements demonstrate the existence of racial

animus toward the Xiongs. No reference whatsoever to

No. 12-1737 25

the Xiongs’ racial background is contained in Wagner’s

aforementioned case note or communication to Weller,

nor could a reasonable juror conclude that these state-

ments reflect any sort of discreet racial undercurrent.

Without more, the mere fact that the aforementioned

events took place and that the involved caseworkers

were not of Hmong ancestry does not amount to

evidence “sufficient to sustain a jury verdict” in the

Xiongs’ favor as to their equal protection claim. Billings,

259 F.3d at 812.

Plaintiffs next argue that defendants applied unequal

standards to similarly situated individuals. Specifically,

they point to the fact that Thor suffered bruising while

in foster placement with Collins and at Lakeview that

was not investigated in the same fashion as the bruises

that Thor manifested while living with the Xiongs. They

attribute this disparate treatment to their Hmong ances-

try. But as the district court explained, for this claim to

prevail, the disparate treatment would have to be in

response to reasonably comparable circumstances. Wag-

ner’s investigation of the Xiongs was in response to

a physical abuse referral from Thor’s school that was

corroborated by information relayed by members of the

Xiong family signaling neglect and possible abuse. No

formal physical abuse referrals were filed concerning

the injuries Thor suffered while in foster care, nor did

Wagner’s inquiries surrounding these incidents reveal

corroborated information indicating neglect of the sort

disclosed by Thor and his siblings.

Indeed, Wagner’s inquiries revealed that the circum-

stances surrounding the incidents of bruising Thor

26 No. 12-1737

suffered while in foster care were entirely distinct from

the situation at the Xiongs. Collins herself contacted

Wagner following Thor’s injury to inform him of what

had occurred. In that instance, Thor was left unattended

in his wheelchair for only a brief period while Collins’

husband went into the house, as compared to the hours-

long period during which Thor was left at home

alone by the Xiongs. At Lakeview, Thor was monitored

by professional physicians who provided him with in-

dividual treatment and took protective measures

in response to his having rolled out of bed. The corrobo-

rated information Wagner received suggesting that

Thor had been deliberately thrown onto the floor by

his stepfather at the Xiongs’ home thus stands in stark

contrast to the care Thor received at Lakeview. It is there-

fore clear that Wagner had “race-neutral reasons” for

making different decisions relating to appropriate investi-

gatory measures in each circumstance. See id. at 813. No

genuine dispute exists as to whether a “a state actor

has treated [plaintiffs] differently from persons of a

different race and that the state actor did so purpose-

fully,” id. at 812, and we therefore affirm the district

court’s grant of summary judgment in defendants’ favor

on this claim.

E. Conspiracy to Violate Constitutional Rights

Finally, plaintiffs argue that defendants conspired to

violate their equal protection rights under the Fourteenth

Amendment. A party may recover damages if two or

more persons conspire for the purpose of depriving the

No. 12-1737 27

plaintiff of the equal protection of the laws. 42 U.S.C.

§ 1985(3). To recover under § 1985(3), a party must estab-

lish:

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

depriving a person or class of persons of equal pro-

tection 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.

Brokaw, 235 F.3d at 1024. To establish “purpose” under

prong two, a plaintiff must demonstrate racial, ethnic, or

other class-based “invidiously discriminatory animus

behind the conspirators’ actions.” Id. As discussed, plain-

tiffs have not made a showing sufficient to establish the

existence of racial animus on the part of defendants.

Accordingly, plaintiffs’ conspiracy claim falls with

their equal protection claim, and summary judgment in

defendants’ favor is appropriate.

III. Conclusion

For the foregoing reasons, we A FFIRM the district court’s

grant of summary judgment for the defendants on

all counts.

10-19-12