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RUBACHA BY RUBACHA v. COLER

April 15, 1985

MARIA RUBACHA, BY HER PARENT AND NEXT FRIEND, JANINA RUBACHA, PLAINTIFF,
v.
GREGORY L. COLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Maria Rubacha ("Maria"), a mentally retarded minor, sues Department of Children and Family Services ("DCFS") Director Gregory Coler and other DCFS officials and employees under both 42 U.S.C. § 1988 ("Section 1983") and Illinois common and statutory law, based on injuries Maria sustained when she was beaten by other minor residents of DCFS-operated Dickens Shelter. Defendants now move to dismiss under Fed.R.Civ.P. ("Rule") 12(b)(1)*fn1 and 12(b)(6). For the reasons stated in this memorandum opinion and order, their motion is denied.

Facts*fn2

Before September 1983*fn3 Maria lived with her mother Janina Rubacha ("Janina") in Illinois, though Maria's father lived in Poland. When he died in September, Janina traveled to Poland for the funeral, leaving Maria in the care of a relative. During Janina's absence Maria became sick and the relative took her to a doctor, who thought Maria was not being cared for properly and notified DCFS. On September 13 the Cook County Circuit Court's Juvenile Division granted DCFS's petition that Maria be placed in temporary custody at DCFS's Dickens Shelter for lack of parental care.

DCFS has adopted a policy under which children in DCFS custody for that reason are housed in the same facilities as children in DCFS custody due to misbehavior (Complaint ¶ 14). Maria was housed in an area of Dickens Shelter that contained five or more girls, some of whom were there because of misbehavior involving violence (id. ¶¶ 16, 17). On October 3 some of those other children attacked and beat Maria severely, inflicting multiple and severe bruises (id. ¶ 21).

Maria alleges DCFS knew or should have known the other children had previously committed acts of violence and posed a danger to Maria, who could not take care of herself (id. ¶¶ 15, 17). She charges defendants exhibited a deliberate and reckless disregard for her safety by:

    1. failing to segregate children in custody for
  misbehavior from other children; and
    2. failing adequately to protect Maria after
  she had been placed in an area with
  violence-prone children.

Complaint Count I charges defendants' conduct breached Section 1983 by infringing on Maria's First, Fifth, Eighth and Fourteenth Amendment rights.*fn4 Count II charges their conduct constituted negligence and gross negligence under Illinois common law and also violated the Illinois Juvenile Court Act (the "Act"), Ill.Rev.Stat. Ch. 37, ¶ 701-2(1). Defendants move to dismiss on three grounds:

    1. Maria has not stated a claim under Section
  1983.
    2. All her claims are barred by sovereign
  immunity.
    3. Defendants' qualified immunity shields them
  from suit.

Defendants alternatively move for abstention because of the sensitive local concerns in Illinois' operation of ...


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