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RUBACHA BY RUBACHA v. COLER
April 15, 1985
MARIA RUBACHA, BY HER PARENT AND NEXT FRIEND, JANINA RUBACHA, PLAINTIFF,
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.
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).
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
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
2. All her claims are barred by sovereign
3. Defendants' qualified immunity shields them
Defendants alternatively move for abstention because of the
sensitive local concerns in Illinois' operation of ...
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