16 Statute of Limitations

Defendants first argue that Plaintiffs’ cause of action under § 1983 accrued at the
time of the original barring order in June 1995, and is therefore time barred by the two-
year statute of limitations. The Court disagrees.

Plaintiffs’ complaint alleges a continuing violation of their constitutional rights.
While the Circuit Court may have issued its original barring order over two years ago, it ©
did not cover an infinite period. Plaintiffs allege that subsequent orders prolonged the
alleged violation of constitutional rights. Each such order marks a “fresh” deprivation of
rights. See Heard v. Sheahan, 253 F.3d 316, 318 (7" Cir. 2001); Palmer v. Board of
Educ., 46 F.3d 682, 686 (7" Cir. 1995).

Furthermore, according to the complaint, Defendants Thomas and Smith did not
become involved in the matter until 2001 and 2002 respectively. (R. 1-1, Complaint {]
22, 83.) Although they acted pursuant to court orders traceable back to the 1995 barring
order, it would be nonsensical to hold that actionable conduct by these individuals was
time-barred in 1997 before Plaintiffs could even predict their involvement, let alone their
use of allegedly constitutionally questionable means to enforce the order.

Il. Rooker-Feldman

Defendants next argue that the Rooker-Feldman doctrine deprives the Court of
subject matter jurisdiction. They point to Seventh Circuit precedent holding that review
of juvenile court orders lies outside the jurisdiction of the federal district courts. See
Jensen v. Foley, 295 F.3d 745, 748 (7" Cir. 2002). Under Seventh Circuit precedent not
cited by either party, however, the allegations against Defendants Thomas and Smith fall

outside the scope of the juvenile court’s order, and are not barred by Rooker-Feldman.



County, 235 F.3d 1000, 1014 n.10 (7" Cir. 2000) (“absolute immunity would protect
[social worker] for her involvement in the judicial process.”)

B Frances Thomas

Count Three alleges that Defendant Thomas violated Plaintiffs’ Fourth
Amendment right to be free from unreasonable searches and seizures. Plaintiffs allege
that Thomas conducted unreasonable searches of their home when she made numerous
unannounced visits early on weekday momings, and insisted on seeing the children
during these visits in the bathroom and their bedrooms while they were “in various states
of undress.”

“{G]overnment officials performing discretionary functions are shielded from
liability for civil damages unless their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have known.” Landstrom v. IIL.
Dep't of Children & Family Servs., 892 F.2d 670, 675 (7" Cir. 1990). See also Doe v.
Heck, 327 F.3d 492, 515 (7" Cir. 2003). For a constitutional right to be “clearly
established,” its contours “must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Jd. (citations and quotations
omitted). In order to survive a defense motion to dismiss on qualified immunity
grounds, Plaintiff “must show (1) that she has asserted a violation of a constitutional or
Statutory right, and (2) that the applicable legal standards were clearly established at the
time the defendants acted.” Harrell v. Cook, 169 F.3d 428, 431 (7 Cir. 1999). “This is
not to say that an official action is protected by qualified immunity unless the very action

in question has previously been held unlawful, but it is to say that in the light of pre-


Plaintiff has alleged misconduct by the agents enforcing the court order. Count
Three complains of searches conducted by Defendant Thomas in the early momings. It
further alleges intrusion, among other places, into the children’, 's ‘bathroom while the
children were undressed in preparation for’ school. Plaintiffs complain that these
intrusions have caused psychological i injury to the children. The alleged misconduct by
Thomas is separate and distinct fiom the matter considered by the juvenile court. The
juvenile court’s inquiry wa limited to abuse and neglect by ve Tbitayo. Rooker-
Feldman, therefore, does not deprive this Court of. jurisdiction over + Count Three.

Count Six alleges that Defendant Smith prepared a report containing factual errors
and omissions about the Ibitayo family. The complaint charges Smith with not only
gross negligence, but also intentional misrepresentation. These allegations are directly
analogous to those in Brokaw. Although Defendants point out that Plaintiffs could have
sought leave to appeal the protective order against Mr. Ibitayo, that appeal would not
have addressed whether Smith’s actions were constitutional, but rather, whether Mr.
Tbitayo was indeed a risk to the children. Following the framework established above,
Rooker-Feldman does not bar jurisdiction over Count Six.

Ill, Issue Preclusion

Brokaw also resolves whether issue preclusion bars Counts Three and Six. Where
a state court has previously decided an issue such as probable cause, the Court should not
upset that decision. See Jensen, 295 F.3d at 748-49, But if the issues decided in the prior
adjudication are not identical, then, under Illinois law, collateral estoppel does not apply.
Brokaw, 305 F.3d at 669 (citing Kalush v. Deluxe Corp., 171 F.3d 489, 493 (7 Cir.

1999)).


The Rooker-Feldman doctrine recognizes that this Court lacks appellate
jurisdiction over state courts. See Verizon Md., Inc. v. Public Service Comm’n of Md.,
535 US. 635, 644 n.3, 122 S. Ct. 1753, 1759 n.3, 152 L. Bd. 2d 871 (2003). It “rests on
the principle that district courts have only original jurisdiction; the full appellate
jurisdiction over judgments of state cous in civil cases lies in the Supreme Court of the
United States... .” GASH Assocs. v. Village of Rosi Lnont, 995 F.2d 726, 728 (7" Cir.
1993). The doctrine applies both to claims adjudicated in state court as well as claims
that are “inextricably intertwined” with a state court judgment. See Lewis v. Andersen,
308 F.3d 768, 772 (7" Cir. 2002). Litigants should bring claims of injuries inflicted as a
result of state court orders in the state courts. Jensen v. Foley, 295 F.3d 745, 747-48 (*
Cir. 2001).

The Seventh Circuit delineated a clear limit to the Rooker-Feldman doctrine in
Brokaw v. Weaver, 305 F.3d 660 (* Cir. 2002). As stated in Brokaw, “an issue cannot
be inextricably intertwined with a state court judgment if the plaintiff did not have a
reasonable opportunity to raise the issue in state court proceedings.” Id. at 668 (quoting
Long v. Shorebank Dev. Corp., 182 F.3d 548, 558 (7 Cir. 1999) (internal quotations
omitted). In Brokaw, the Seventh Circuit found that the plaintiff lacked a reasonable
opportunity in prior juvenile court proceedings to raise claims against DCFS officials for
misconduct because the juvenile court was limited under 705 ILCS 405/2-18 to consider
“only the question of whether the minor is abused, neglected, or dependent.” Brokaw,
305 F.3d at 668. The applicable statutory language appears unchanged today. Brokaw
constrains the application of the Rooker-Feldman doctrine in the context of juvenile court

orders.



Although absolute immunity for the conduct alleged in Count Three by Defendant
Thomas appears more questionable, qualified immunity protects her alleged conduct.
A. Jo Anne Smith

Absolute immunity is available to protect the quasi-judicial acts of prosecutors
and witnesses where an injury caused by their actions arises not from their conduct alone,
but from a judicial decision. Millspaugh v. County Dep’t of Pub. Welfare of Wabash
County, 937 F.2d 1172, 1175 (7" Cir. 1991), Absolute immunity protects social workers
in presenting evidence to the juvenile court. Id. The Seventh Circuit has held “that the
dividing line between absolute and qualified immunity is whether the injury depends on
the judicial decision. If there would be no loss but for the judge’s acts, then the
prosecutor or witness who induces the judge to act has absolute immunity.” Jd.

Plaintiffs allege that Defendant Smith violated their due process right to care for
and raise their children. Plaintiffs allege that Defendant Smith prepared a clinical review
of the Plaintiffs’ family that was “rife with factual errors and/or omissions” for
submission to the juvenile court. (R. 1-1, 4 84). Plaintiffs further allege that the report
“had a direct adverse affect on the presiding juvenile court’s determination to continue
and extend the order” preventing Plaintiff Steven Ibitayo from residing with his family.
(Id.) The alleged misrepresentations in the report prepared by Smith, standing alone, lack
consequential harm. It is only their use by the juvenile court in rendering its decision that
gives rise to the alleged injury of Plaintiffs. Consequently, Smith’s actions are absolutely
immune, and the Court dismisses Count Six. See Id. at 1176 (“{S]ocial workers . . . are
entitled to absolute immunity in child custody cases on account of testimony and other

steps taken to present the case for decision by the court.”). See also Brokaw v. Mercer


> Mite Order Porm (06°97) : a

United States District Court, Northern District of Illinois

Nemestawirtieie | Amy J St. Eve Sg ue
CASE NUMBER 03 C 3362 DATE Nov. 194, 2003
CASE Ibitayo, et al vs. McDonald, et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

ql)

MOTION:

DOCKET ENTRY:

(ly oO Filed motion of [ use listing in “Motion” box above.]

Q) a Brief in support of motion due

(3) Oo Answer brief to motion due__. Reply to answer briefdue__.

(4) im Ruling/Hearingon___setfor___at

(5) ia} Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) oa Pretrial conference{held/continued to] [set for/re-setfor]on___—ssetfor_—— at,

(7) a Trial[set for/re-set for]on__—__—at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto_ at

(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (Local Rule 41.1 CIFRCP41(a)(1) ( FRCP41(a\(2).

ao [Other docket entry} Enter Memorandum Opinion and Order. Defendant Thomas and Smith’s

motion to dismiss is granted.

ahh’

i | [For further detail see order attached to the original minute order.)

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone,

oY | Docketing to mail notices.
Mail AO 450 form. eee
Copy to judge/magistrate judge.
/ courtroom
TH deputy’s
initials

Date/time recgived in
= central Clerk’s Office



was not residing in the home or having unsupervised visits with his minor children.
Given the court order, Plaintiffs have failed to state a violation of their Fourth
Amendment rights.

Plaintiffs fail carry their burden of alleging a sufficient legal basis for finding
Thomas’s alleged conduct outside the bounds of clearly established Constitutional law.
In addition to alleging a substantive Constitutional violation as a matter of law, the
Plaintiffs must also establish that Thomas was unreasonable in believing that her alleged
actions — here unreasonable searches — were constitutional. Erwin y. Daley, 92 F.3d 521,
525 (7TM Cir. 1996). Plaintiffs have not established that such an alleged violation was
well-developed at the time of Defendant Thomas’s visits to the home to place her on
notice that such visits were unlawful. Brokaw v. Mercer County, 235 F.3d at 1023.
Plaintiffs fail to cite any specific case law where a child protective services agent was
found in violation of the Fourth Amendment for inspecting a home in the early moming
or for inspecting the children’s physical condition when undressed. As such, it was
reasonable for Defendant Thomas to believe that her conduct was permissible. That

conduct is therefore protected by qualified immunity.

> Defendant Thomas argues that she is entitled to absolute immunity for her actions
pursuant to the Ninth Circuit’s opinion in Coverdell v. Department of Social and Health
Services, 834 F.2d 758, 765 (9" Cir. 1987). In Coverdell, the Ninth Circuit extended
absolute immunity to child protective services workers carrying out a court order. The
court noted, however, that there was no allegation of improper action against the worker
in that case. Jd. The Court declines to extend the Coverdell opinion to this case.

ll



existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635,
640, 107 S. Ct. 3034, 97 L. Ed, 2d 523 (1987) (citations omitted).

Plaintiffs first claim that the Court should not address the question of qualified
immunity on a motion to dismiss. Admittedly, some tension exists concerning the proper
stage at which qualified immunity should be granted. See, e.g., Manos v. Ciara, 162 F.
Supp. 2d. 979, 995 (N.D. Ill. 2001) (quoting Judge Easterbrook’s partial dissent in Jacobs
v. City of Chicago, 215 F.3d 758, 775 (7" Cir. 2000)). Qualified immunity remains as a
basis on which to grant a motion to dismiss. See, ¢.g., Kitzman-Kelley, on behalf of
Kitzman-Kelley v. Warner, 203 F.3d 454, 456-57 (7 Cir. 2000); Gossmeyer v.
McDonald, 128 F.3d 481, 495 (7" Cir. 1997); Lanigan v. Vill. of East Hazel Crest, Ill.,
110 F.3d 467, 471 (Ch Cir. 1997) (“{Ql]ualified immunity may be raised in a motion to
dismiss, but at that stage, we consider only the facts in the complaint which we are
obligated to accept as true.”). Deciding qualified immunity on a motion to dismiss
protects public officers from the menace of unwarranted discovery. Delaying resolution
of the defense until trial would undermine this function needlessly where disputed facts
will not be dispositive. See Landstrom, 892 F.2d at 674 (7 Cir. 1990).

The Seventh Circuit has clearly stated that the safeguards of the Fourth
Amendment apply to child welfare workers. See Heck, 327 F.3d at 509; Brokaw v.
Mercer County, 235 F.3d at 1010 n. 4. If a social worker carries out a search pursuant to
a court order, there is no violation of the Fourth Amendment. See Brokaw v. Mercer
County, 235 F.3d at 1019. Here, Plaintiffs’ allegations relate to Defendant Thomas’s
actions in carrying out the court’s September 1995 order that a DCFS worker make

unannounced regular visits to the Ibitayo household to ensure that Plaintiff Steven Ibitayo

10



Taking the facts as alleged by Plaintiff as true, the state court never considered the
constitutionality of Thomas’s searches. Even Defendants do not allege that the juvenile
court ever considered the constitutionality of Thomas’s conduct. The juvenile court’s
determination of whether or not the minor was abused or neglected did not necessarily
include consideration of whether the constitutional rights of the family or children were
violated by the conduct of DCFS. Accordingly, Count Three is not precluded by the state
court decision.

Similarly, the state court did not address the “integrity of the evidence” produced
by Smith in support of the barring order. That is the issue underlying Count Six. Brokaw
specifically recognizes a distinction between the weight of evidence and its integrity.
Brokaw, 305 F.3d at 670. Where a plaintiff alleged a conspiracy to fabricate evidence of
neglect, the Seventh Circuit held that the juvenile-court finding that the evidence was
sufficient to provide probable cause for removal did not bar subsequent consideration of
whether the evidence was wrongfully fabricated. Id. In the current case, the state court’s
proceeding addressed only the “sufficiency” of Smith’s report to support the probable
cause finding necessary to continue the barring order and monitoring. The court did not
address whether the report contained intentional misrepresentations. Accordingly, the
State court did not decide the issues underlying Count Six. Count Six, therefore, is not
barred by issue preclusion.

IV. Defendants’ Immunity From Suit
Defendants raise immunity as their final ground for dismissal. Defendant Smith

is protected by absolute immunity for the quasi-judicial conduct alleged in Count Six.


To challenge the enforcement of this order, Plaintiffs commenced this suit in May
2003. They specifically complain of the extended eight-year period of family separation,
as well as the alleged effects of continued DCFS intrusions into the home — including
observation of the Ibitayo children while undressed in the bathroom preparing for school,
interrogations of the children allegedly resulting in emotional distress, and the persistent
threats of removal. (/d. | 73.)

LEGAL STANDARDS

A Rule 12(b) motion to dismiss tests the sufficiency of the complaint. Gibson v.
City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Dismissal is proper only if “it is
clear that no relief could be granted under any set of facts that could be proved consistent
with the allegations.” Hishon y. King & Spaulding, 467 U.S. 69, 73, 104 S. Ct. 2229,
2232, 81 L. Ed. 3d 59 (1984). The Court must accept all factual allegations in the
complaint as true, and draw all reasonable inference on the plaintiff's behalf. Jang v.
A.M. Miller and Assocs., 122 F.3d 480, 483 (7th Cir. 1997).

ANALYSIS

Defendants Thomas and Smith filed their motion to dismiss only with respect to
Counts Three and Six of the complaint. These counts seek damages pursuant to 42
U.S.C. § 1983 for alleged Fourth Amendment violations in connection with Defendants
Thomas’s and Smith’s monitoring of the Ibitayo family and reporting to the Juvenile
Court. Defendants seek to dismiss the complaint in the basis of the lapse of the period of
limitations, the Rooker-Feldman doctrine, issue preclusion, and absolute and qualified

immunity.



by Mr. Ibitayo against her to DCFS. (R. 1-1, Complaint | 37.) Defendant DCFS
Investigator Taylor “indicated” the report,” and pursuant to that report, the Circuit Court
of Cook County — Juvenile Division ordered Mr. Ibitayo to cease cohabitation with his
wife and children. (Jd. {{ 38-40.) The court also barred any unsupervised visits with his
three children, as well as his step-daughter. (/d. | 40.) The order appears to have been
first entered in June 1995. At the time, Mr. Ibitayo’s step-daughter had already moved
out of the family’s residence. (Jd. { 27.) Subsequent to the initial barring order, the
Juvenile court heard evidence on the matter, and in September 1995, Judge Brodhay
declined to lift the barring order and instead entered an order requiring the Ibitayo family
to submit to a series of counseling sessions. (Jd. {{| 42-47.) The order also required
DCFS to monitor the family’s compliance with the barring order. (Jd. 4 47.) For the next
eight years to the present day, the Ibitayo family was subject to home monitoring by the
two named DCFS investigators, Taylor and Pugh. (Jd. | 56.) Caseworker Thomas
allegedly visited the Ibitayo home on several occasions in the early morming and
observed the children while dressing and bathing. (Jd. | 53.) Thomas and social worker
Smith filed reports for use by the Cook County Juvenile Court. (Jd. 4] 73, 84.)

The Cook County Juvenile Court has renewed the barring order without
modification, the most recent order being August 28, 2003. (R. 6-1, Def. Mem. p.4.)
The orders have required Mr. Ibitayo to continuously reside apart from his wife and

children for the past eight years. (R. 1-1, Complaint { 56.)

‘The remaining defendants — Naomi Taylor and Pamela Pugh — are DCFS investigators, sued in their
individual capacities. There is no evidence that Plaintiff has served either of these individual Defendants,
and neither Defendant has filed an appearance in the case.

? Reports of child abuse are “indicated,” in the language of DCFR regulations, when supported by credible
evidence. (R. 1-1 Complaint { 33.)



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN IBITAYO, et. al., )
)

Plaintiff, ) 03 C 3362
)
v. )
)
JESS MCDONALD, Director and/or )
Acting Director of the Illinois Department )
Of Children and Family Services, et. al., )
)
Defendants. )

MEMORANDUM ORDER AND OPINION
AMY J. ST. EVE, District Judge:

Plaintiffs Steven Ibitayo and his wife Melinda Ibitayo filed suit on their own
behalf and on behalf of their three minor children as parents and next friends against the
Director of the Illinois Department of Children and Family Services (“DCFS”) in his
official capacity. Also named in their individual capacities were various participants in
that agency’s handling of matters concerning juvenile cases 95-3232, 95-3233, 95-3234,
and 95-3235. Plaintiffs expressly alleged deprivation of their Fourth Amendment rights.
Two of the individual defendants, Frances Thomas, a DCFS caseworker, and Jo Anne
Smith, a social worker, now move to dismiss the complaints against them.' For the
reasons stated herein, the Court grants the motion.

BACKGROUND
Plaintiffs’ interactions with DCFS commenced in February 1995, when Mr.

Ibitayo’s step-daughter, a non-party to this action, reported an alleged incident of abuse



CONCLUSION
For the reasons stated above, Counts Three and Six of the complaint are
dismissed.

Dated: November 19, 2003 ENTERED:

AMYJ.S ee
United States District Court Judge

12