UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CYNTHIA M. HERNDON, )

)

Plaintiff, )

)

v. ) No. 3:15 CV 587

)

SOUTH BEND SCHOOL ) 

 CORPORATION, et al., ) 

)

Defendants. )

OPINION AND ORDER

Cynthia Herndon, a pro se plaintiff, has filed a complaint (DE # 1) seeking relief

under 42 U.S.C. § 1983 along with a Motion for Leave to Proceed In Forma Pauperis (DE

# 2). Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court screened the complaint and

explained why it believed that the complaint failed to state a claim upon which relief

could be granted. (DE # 7.) Provided with the court’s reasoning, plaintiff was ordered to

show cause why the complaint should not be dismissed. (Id.) 

Plaintiff has responded by filing an amended complaint (DE # 8.) Plaintiff’s

original complaint named three defendants, South Bend Community School

Corporation (“SBCSC”), Saint Joseph County, Indiana (“County”) and Pat Herndon.

(DE # 1 at 2.) In addition to SBCSC and the County, Herndon’s amended complaint

adds three defendants; Indiana Department of Child Services (“DCS”), Judge James N.

Fox, and McKinley Elementary School Principal Darice Austin-Philips (“the Principal”).

(DE # 8.) The amended complaint no longer lists Pat Herndon in the caption as a

defendant. However, plaintiff does include a brief allegation against her in the body of
her complaint. (DE # 8 at 5.) The court will begin by addressing the adequacy of

plaintiff’s claims against the three original defendants before moving on to the added

defendants of the amended complaint. 

In order for plaintiff to state a claim against SBCSC, she must meet the municipal

liability standards set forth in Monell v. Dep’t of Soc. Servs. of the City of New York, 436

U.S. 658 (1978). As the court stated in its previous order, plaintiff’s original complaint

was “devoid of any allegations as to whether and official SBCSC policy or custom

caused and was a ‘moving force’ in the injury she allege[d]. Furthermore, there are no

allegations that this injury was caused or ratified by an SBCSC agent with final

policymaking authority.” (DE # 7 at 3-4.) Her amended complaint suffers the very same

defects. Again she fails to allege any SBCSC policy or custom that caused the alleged

injury. The only difference is that she has identified the Principal as an SBCSC

employee. However, under Indiana law, it is the school board, and not the principal

that has final policymaking authority. Harless by Harless v. Darr, 937 F. Supp 1339, 1349

(S.D. Ind. 1996) (citing Partee v. Metro. Sch. Dist. of Washington Tp., 954F.2d 454 (7th Cir.

1992)); Oliver by Hines v. McClung, 919 F. Supp. 1206, 1216 (S.D. Ind. 1995). So here

again, she has failed to state a claim against SBCSC. 

Plaintiff’s claims against the County also fail. The extent of her claims against the

County all relate to the actions of County Probate Court Judge Fox. However, judges of

Indiana’s county courts are officers of the state judicial system. Woods v. City of Michigan

City, Ind., 940 F.2d 275, 279 (7th Cir. 1991). As such Judge Fox’s actions are not

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attributable to the county, and plaintiff has otherwise failed to make any allegations

that give rise to liability under the Monell standard. Therefore her claims against the

County are also dismissed. 

The final original defendant is plaintiff’s daughter, Pat Herndon. The court

previously explained that plaintiff’s original complaint failed to state a claim because it

did not sufficiently allege that Pat Herndon, a private actor, was involved in a

conspiracy with any state actor. (DE # 7 at 5-6.) In the amended complaint, the sole

allegation as to Pat Herndon is a confusing passage that seems to allege that DCS

conspired to seize plaintiff’s son “on Hearsay [sic] from MRS [sic] Austin Phillips and

my daughter Pat Herndon who is a grantled [sic] Child [sic] with personal family

issues.” (DE # 8 at 5.) Pat Herndon is not listed as a defendant in the caption, so it is

unclear whether plaintiff wishes to pursue this claim. In either case, this vague and

conclusory allegation fails to remedy any of the problems that the court identified in the

original complaint and her claims against Pat Herndon are also dismissed. 

Plaintiff’s amended complaint adds Judge James N. Fox as a defendant in his

individual capacity. The court has already explained that “[a] judge has absolute

immunity for any judicial actions unless the judge acted in the absence of all

jurisdiction.” Polzin v. Gage, 626 F.3d 834, 838 (7th Cir. 2011). Nevertheless, plaintiff has

responded by adding the judge as a defendant and asserting that the judge and “the

probate court of St. Joseph County lacked jurisdiction to litigate all matters.” (DE # 8 at

5.) This is apparently based upon the wholly unsupported theory that her currently

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pending civil rights action against DCS (See Herndon v. Indiana Dept. of Child Svcs., et al.,

Case No. 3:15-cv-96) divested the state court of jurisdiction over her case concerning 

the termination of her parental rights. That is simply not the case, and she has failed to

raise any claim that defeats the absolute judicial immunity of defendant Judge Fox. 

Plaintiff’s allegations against the Prinicpal are that she called DCS to detain

plaintiff’s son for a period of four hours and also that she called police to the school to

“arrest” him “without probable cause.” (DE # 8 at 4.) This happened, plaintiff alleges,

despite the fact that her son was not neglected and did not show any sign of abuse. (Id.)

 To begin with, it is necessary to clarify the party in interest for the claims

presented against the Principal. While litigants in federal court have a statutory right to

proceed pro se and Rule 17(c) allows a guardian to sue on behalf of a minor, a

nonlawyer parent may not proceed pro se on behalf of a child under Rule 17(c).

McPhearson v. School Dist. No. 186, 32 Fed. App’x 769, 770 (7th Cir. 2002); Smith ex rel.

Smith v. Smith, 49 Fed. App’x 618, 620 (7th. Cir. 2002); Fed. R. Civ P. 17(c). As such, the

court need not address whether the complaint states a claim that plaintiff’s son was

unlawfully detained and falsely arrested. Rather, the court will only address the

adequacy of the claims insofar as they allege violations of plaintiff’s parental rights. 

Parents have a substantive due process right to care for and raise their children.

Brokaw v. Mercer Cty., 235 F.3d 1000, 1018 (7th Cir. 2000). However the right is not

absolute: a parent’s familial interest must be balanced with the state’s interest in

protecting children from parental abuse. See id. at 1019. A parent also has a procedural

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due process right which, at minimum requires that “government officials not

misrepresent the facts in order to obtain removal of a child from his parents” Id. at 1020. 

The court accepts as true that plaintiff’s son was removed from her custody.

However, plaintiff’s allegations do not give rise to a due process violation. Her

allegations do not attribute any falsehood or misrepresentation on the part of the

Principal that was instrumental in causing DCS or law enforcement to take custody of

her son. At most she offers bare assertions that her son was neither neglected nor

showed signs of abuse and that the parties involved acted “without probable cause.”

Quite simply she has failed to plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Therefore her claims against the Principal fail as well. 

Lastly, plaintiff has added DCS as a defendant in her amended complaint.

Plaintiff has previously filed a case against DCS that is currently pending before the

court. See Herndon v. Indiana Dept. of Child Svcs, et al., Case No. 3:15-cv-96. That case,

filed on March 3, 2015, involves the same events and raises the same claims as plaintiff’s

present case. Given that the claims, parties and available relief are generally the same in

both cases, the court will exercise its discretion to dismiss these claims against DCS as

duplicative of the prior suit. Sterlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.

1993). 

For the foregoing reasons, this case is DISMISSED pursuant to 28 U.S.C

§ 1915(e)(2)(B). The motion for leave to proceed in forma pauperis (DE # 2) and all other

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motions are DENIED AS MOOT.

 

SO ORDERED.

Date: July 8, 2016

 s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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