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ALBER v. ILLINOIS DEPT. OF MENTAL HEALTH & DEVELOP

March 3, 1992

LYNNE ALBER, HERMAN ALBER, AMY ALBER, RON ALBER, CAMERON ALBER and JOSHUA ALBER, Plaintiffs,
v.
ILLINOIS DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, WILLIAM MURPHY, GLENN J. GRZONKA, REGINALD RICHARDSON, RALPH TRAVIS, PROTECTION & ADVOCACY, INC., ZENA NAIDITCH, MICHAEL RICHARDSON, NATIONAL HERITAGE, INC., CHARLES A. OSBORN, JR., HERLINDA MARTINEZ MONACO, NATIONAL HERITAGE REALTY, INC. and MARY ANN GUTTMAN, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 This case raises challenging questions about the rights of a non-biological "family" to claim rights of family association under the United States Constitution. After this Court assumed responsibility for the case by random reassignment last November upon the retirement of its former colleague Honorable Nicholas Bua, its examination of the court file revealed four fully-briefed motions to dismiss. For the reasons stated in this memorandum opinion and order:

 1. the motion of defendants Protection & Advocacy, Inc. and Michael Richardson is granted in part and denied in part;

 2. the motion of defendant Zena Naiditch is granted in part and denied in part;

 3. the motion of defendants National Heritage, Inc. and Charles Osborn, Jr. is granted; and

 4. the motion of defendant National Heritage Realty, Inc. is granted in part and denied in part.

 Procedural Background: Loss of Jurisdiction?

 This action began on June 29, 1990 when Lynne Alber, Herman Alber, Amy Alber, Ron Alber, Cameron Alber and Joshua Alber (collectively "Albers," while each is referred to individually by his or her first name) sued a variety of defendants in the Circuit Court of Cook County, Illinois. Albers claimed that various acts of the defendants violated their federal constitutional rights as protected by 42 U.S.C. § 1983 ("Section 1983"). They also asserted many violations of state law.

 On November 1, 1990 defendants removed the case to this District Court pursuant to 28 U.S.C. § 1441(b), *fn1" which permits the removal of "any civil case of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution. . . ." Original district court jurisdiction existed because by definition a Section 1983 claim invokes a constitutional "claim or right." Removal of the state-law claims as well was permissible under the doctrine of pendent jurisdiction because those claims arose out of a "common nucleus of operative fact" ( United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)), judicial economy is promoted by a single resolution of all the claims, and there appears to be no possibility of prejudice to any party from the exercise of federal jurisdiction over the state claims. *fn2"

 Yet on November 28, 1990 Judge Bua remanded the case to state court via a minute order that did not explain the legal basis for the remand. This District Court's records do not reflect that a certified copy of the remand order was ever sent to the state court. On December 19 defendants filed a petition in the Court of Appeals seeking a writ of mandamus that would vacate Judge Bua's order. On January 2, 1991 (before the Court of Appeals had acted) Judge Bua issued a new minute order in which he vacated his first order and reasserted jurisdiction over the case. Consequently the Court of Appeals later dismissed the petition for mandamus as moot.

 Judge Bua's second order represented a legal rarity--a district judge sua sponte reasserting jurisdiction over a case that in theory had departed to another court. Given this Court's independent obligation to ensure that federal jurisdiction is proper regardless of the route by which a case reaches its calendar, that second order bears brief scrutiny and discussion.

 Orders of remand issued pursuant to Section 1447(c) are not reviewable or appealable, while orders of remand that purport to rest on some other legal basis--and that are hence wholly lacking in authority--may in fact be reviewed or appealed ( Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346-52, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976)). In his second order Judge Bua explained that he had issued the first order because state courts have concurrent jurisdiction over Section 1983 cases, a ground not specified as a basis for remand in Section 1447(c). Citing Thermtron, Judge Bua therefore deemed his first order as open to correction.

 In cases where the remand order has relied on Section 1447(c), the district judge lacks any power whatever over a case once the remand order has been entered and a certified copy has been sent to the state court ( City of Valparaiso v. Iron Workers Local Union No. 395, 118 F.R.D. 466, 468 (N.D. Ind. 1987) cites a wealth of case law and treatise discussion confirming that total loss of jurisdiction). Once that copy is sent, there literally is no case left in the federal court--and thus any order that the district judge might enter in the case, even an order seeking to vacate the remand order, must be a nullity. *fn3"

 It might be thought that same rule would apply to remand orders that do not rely on Section 1447(c)--after all, a case that's gone is gone, no matter what legal grounds the judge cites when showing it to the courthouse door--but our Court of Appeals has held otherwise. When a case is sought to be remanded on grounds not cited in Section 1447(c), so that appellate review is available to begin with, such appellate jurisdiction exists whether or not the certified copy has been sent to the state court because "the district court clearly intended its remand order to be a final disposition of the case" ( J.O. v. Alton Community Unit School Dist. 11, 909 F.2d 267, 271 (7th Cir. 1990)).

 So far as the potential for appellate consideration is concerned, then, a case purportedly remanded on grounds outside Section 1447(c) has not left the federal courthouse until the appellate process has run its course. Although the corollary proposition of retained district court jurisdiction does not necessarily follow, *fn4" it seems appropriate to hold that so long as the case thus remains in the courthouse and nothing has caused the District Court to be ousted of jurisdiction in favor of the Court of Appeals, *fn5" the district judge retains the power to reconsider his or her own order of remand--indeed, in the case of a timely motion for reconsideration, has the obligation to decide the issue ( In re Shell Oil Co., 631 F.2d 1156, 1158 (5th Cir. 1980) (per curiam)). Thus even if the clerk had sent a certified copy of Judge Bua's first order to the state court, his second order would have been proper. Jurisdiction exists here.

 Structure of the Complaint

 In March 1991 Albers filed a five-count Amended Complaint ("AC" or "Complaint," citations to which will take the form "P--") before Judge Bua, alleging that defendants had violated their rights under the United States Constitution, Illinois statutes and Illinois common law by twice removing Ron and Cameron from the Alber home without consent and then confining them in institutions that provided legally inadequate care instead. Albers have named 13 defendants in all, divided here for convenience into four groups:

 1. Illinois Department of Mental Health and Developmental Disabilities, its director William Murphy and its employees Glenn Grzonka, Reginald Richardson and Ralph Travis (collectively "Department Defendants" and individually "Department," "Murphy," "Grzonka," "Reginald Richardson" *fn6" and "Travis") are named in a variety of counts. Murphy is named in Counts III, IV and V in his official capacity only (P18). Grzonka is also named in those three counts, in both his individual and official capacities (P19). Reginald Richardson is named in Counts III and IV, in both his individual and official capacities (P20). Travis is named in Count IV, in his individual and official capacities (P21). Department Defendants have filed a joint Answer and an accompanying statement of affirmative defenses, but no motions to dismiss.

 2. Protection & Advocacy, Inc., its director Zena Naiditch and its employee Michael Richardson (collectively "P & A Defendants" and individually "P & A," "Naiditch" and "Michael Richardson") are named in Counts I through IV. P & A is sued in its official and corporate capacity (P22), while Naiditch and Michael Richardson are sued in their individual and official capacities (PP23-24). P & A and Michael Richardson have filed a joint Answer as well as a motion to dismiss Counts I through IV for failure to state a claim. Naiditch has filed only a motion to dismiss, also applicable to Counts I through IV.

 3. National Heritage, Inc. ("NHI"), its former chairman Charles A. Osborn, Jr. ("Osborn") and its alleged employee Herlinda Martinez Monaco ("Martinez Monaco") are named in Count II. NHI is sued in its corporate capacity (P25). Osborn is sued in his official and individual capacities (P26). Martinez Monaco is sued in her individual capacity (P27). NHI and Osborn have filed a motion to dismiss Count II, the only count in which they are named. Martinez Monaco has filed nothing at all.

 4. National Heritage Realty, Inc. ("NHRI") and its employee Mary Ann Guttmann ("Guttmann") were added to Count II by the Amended Complaint. *fn7" NHRI is sued in its corporate capacity (P27) and Guttmann in her individual capacity (P30). NHRI has filed a motion to dismiss Count II. Guttmann has filed nothing at all.

 Complaint Allegations8

 All six of the Albers live together on a family farm in Morrison, Illinois. Lynne and Herman are a married couple (PP4-5). Amy is their natural minor child (P6), and Joshua is an adult with cerebral palsy whom the Albers adopted in 1980 when he was about 11 years old (P14). Cameron and Ron are adults afflicted with Down's Syndrome (P7)--Lynne and Herman adopted them in 1989 (P11), after the events of this case had run their course. Ron and Cameron are not biologically related. *fn9"

 In the early 1970s Lynne and Herman became interested in taking disabled children into their home. Toward that end they visited the Dixon Developmental Center, a residential facility run by Department for children and adults with developmental disabilities (PP31-33). Dixon is about 25 miles from the Alber family farm (P4).

  After extensive interviews, medical tests and home inspections, Department approved Lynne and Herman as caregivers. *fn10" During 1974 and 1975 Department sent three children from the Dixon center to live with the Albers: seven-year-old Ron, seven-year-old Cameron and six-year-old Joshua. Department sent a fourth handicapped child, Tracy Zang ("Tracy"), to live with Lynne and Herman at some time not specified in the Complaint (PP31-46). *fn11"

 Ron and Cameron have been diagnosed as either profoundly or severely retarded (P53). "Profound" refers to an I.Q. level under 20, "severe" to a level between 20 and 34 (see In re Grady, 170 N.J. Super. 98, 405 A.2d 851, 855 (N.J. Super. 1979), describing degrees of retardation). Neither Ron nor Cameron has ever been able to make meaningful choices about his own care, treatment or custody (P54). Both are "developmentally disabled" under Illinois law: They suffer from retardation or comparable disabilities that originated before the age of 18, are expected to continue indefinitely and constitute a substantial handicap (Ill.Rev.Stat. ch. 91-1/2, P1-106).

 For over 13 years, until the events that triggered this lawsuit, Ron and Cameron lived with Lynne and Herman in apparent peace. Lynne and Herman provided them (as well as Joshua and Tracy) with food, clothing, shelter and personal care and arranged for appropriate medical care, dental care and education. Those expenses came at least partly out of Lynne's and Herman's own pockets--it is unknown whether Department or anybody else helped defray Albers' expenses (PP49-52).

 In 1980 Lynne and Herman adopted Joshua (P14). *fn12" In 1983 they became the legal guardians of Ron and Cameron (P48), though the Complaint does not specify the statutory basis of the guardianship. That guardianship lapsed as a matter of law when each of Ron and Cameron turned 18, in 1985 and 1986 respectively. Ron and Cameron continued to live with Lynne and Herman as though nothing had changed.

 This case has its genesis in the events of 1988. *fn13" At the time Ron was about 21 years old and Cameron about 20. Both were enrolled at Union Grove School, where they attended special education classes taught by Donna Addleman ("Addleman"). In January Lynne learned that Addleman made her students stand outside in subfreezing temperatures, claiming that the practice would improve the image of handicapped students with the rest of the school and would encourage the students to complete their work more effectively. Lynne complained to the school board. Addleman resigned before the board could consider the complaint formally, but the board permitted her to stay on until the end of the academic year. School authorities later ordered an end to the bizarre practice (PP55-60).

 Addleman therefore remained at Union Grove as a lame-duck teacher. On March 29 a teacher's aide assigned to Addleman telephoned P & A to report that Lynne and Herman were neglecting Ron and Tracy (apparently the allegation did not encompass Cameron). Illinois law provides that the governor may designate a nonprofit agency to protect and advocate the rights of the developmentally disabled (Ill. Rev. Stat. ch. 91-1/2, P1151), and P & A is the agency so designated.

 On April 14 P & A staff member Michael Richardson briefly visited the Alber home to investigate the complaint. *fn14" He spoke with Lynne, observed the young people and left. No further action by P & A followed until April 20, when the agency received a second allegation against Lynne and Herman from a staff person at Union Grove. On April 22 Michael Richardson met with Addleman at the school to discuss the allegations. From the school he went directly to the Alber home, where Herman refused to talk to him. Michael Richardson told Herman that the situation "looked very bad." Then he departed (PP66-71).

 That was the last contact between the family and P & A until April 28, when Michael Richardson returned to the school. There, with Addleman's assistance, he tried to communicate with Ron, Cameron and Tracy. Together Addleman and Michael Richardson prompted each of the three into making some sort of positive response to the suggestion that they move out of the Alber home. Cameron responded in sign language, while Ron and Tracy responded orally. Michael Richardson then went to the director of the special education program and demanded that the three students be released to his custody. When the director balked, Michael Richardson threatened to call the sheriff and to charge the school with "unlawful restraint." In response to that threat the director permitted him to take Ron, Cameron and Tracy (PP73-82).

 Michael Richardson took the three to Village Inn Nursing Home ("Village Inn"), a state-licensed privately-administered residential facility for the developmentally disabled. NHI Defendants or NHRI are responsible for the management of the home. *fn15" Village Inn's staff people admitted the three young people without benefit of any diagnostic evaluations. Each of the three signed a contract of admission with his or her "mark." On admission they were observed to be frightened, apprehensive and hungry, and during their first night they were restless and cried often. No staff member at Village Inn ever filed a petition for guardianship of any of the three, nor was any individual programming provided for them during their stay (PP87-95).

 Cameron's natural parents then filed a guardianship petition in the Circuit Court of Whiteside County. On June 28 that court named Cameron's natural parents as his legal guardians. Later that same day Cameron's natural parents removed him from Village Inn and returned him to Lynne and Herman. On July 15, in response to another guardianship petition, the same court appointed Lynne and Herman as Ron's legal guardians. Lynne and Herman brought Ron home from Village Inn the same day (PP97-102). Tracy remained at Village Inn and remains there today (P103).

 Michael Richardson promptly began to try to remove Ron and Cameron from the Alber home again. He filed three different complaints: one with the Illinois Department of Public Health ("DPH"), a second with the Whiteside County State's Attorney and a third with Department's Bureau of Certification and Licensure ("Bureau"). All three complaints alleged that Lynne and Herman were operating an unlicensed communal care facility (PP104-09).

 Two of those complaints died quickly. DPH investigators visited the Alber home and rejected Michael Richardson's complaint as invalid (P107). After a hearing the Circuit Court denied a motion by the State's Attorney seeking a temporary injunction against the Albers, and no permanent injunction was ever sought thereafter (PP110-14).

 Department did act against Lynne and Herman. Following a home visit by Bureau staff, on August 31 Bureau director Grzonka issued an order of closure directed against Lynne Alber. Two days later Department employee Reginald Richardson arrived at the Alber home and took custody of Ron and Cameron (P115-17). He brought them to Lincoln Developmental Center ("Lincoln"), a residential facility run by Department. They were admitted to Lincoln without benefit of any diagnostic evaluations, and the physician who examined them upon admission found them well-nourished (P119-21).

 Lincoln's director Travis wrote the Albers to advise them of the admissions. Lynne, along with Cameron's natural parents, demanded that Department release Ron and Cameron. Department eventually complied. Ron was released to Lynne after 46 days at Lincoln, and Cameron was released to his natural parents after 60 days. Cameron's parents then returned him to the Alber home, where he and Ron have lived ever since (P122-27, 129). Lynne and Herman became Cameron's legal guardians in March 1989 (P10). They have since adopted both Ron and Cameron (P128).

 Claims for Relief

 All the parties have now been identified and the facts have been laid out. To aid in the analysis that follows, a quick summary of the legal theories advanced in the Complaint is in order.

 Count I concerns the seizure of Ron and Cameron from Union Grove School by Michael Richardson; Count II, their confinement at Village Inn; Count III, their seizure from the Alber home by Reginald Richardson; and Count IV, their confinement at Lincoln. Though the facts differ, each count is cut on the same legal template:

 --Ron and Cameron assert violations of their Fourth Amendment rights to be free from unreasonable seizures. *fn16" They also claim violations of a common-law right to be free from unreasonable seizures, as well as violations of the state laws that govern the care of the developmentally disabled.

 --All six Albers complain of violations of their rights of association and family privacy as protected by the First and Fourteenth Amendments.

 --Relief sought by Albers includes monetary damages, declaratory judgments against the state agencies and their designees who allegedly violated state law, injunctions directing the agencies to develop policies and procedures that will guarantee compliance with the law in future cases, and injunctions directing the delivery of investigative records to Albers and the expungement of those records from the files of the relevant agencies.

 Count V concerns Department's order of closure, which labelled the Alber home an unlicensed group facility. Department Defendants have not moved to dismiss Count V, so this opinion will not discuss it further. Any issue-preclusive effect of this opinion on Count V or on the other claims against Department Defendants must be determined at a later date.

 Legal Sufficiency of Albers' Claims

 Each motion offers a grab bag of legal theories that supposedly command dismissal of the case, or at least the dismissal of certain parties or claims. Some of those theories go to the merits of Albers' constitutional claims, some go to the merits of the common-law and statutory claims, and still others address procedural or technical flaws in Albers' case. As a matter of sound jurisprudence this Court must take up the non-constitutional defenses first, so as to avoid unnecessary consideration of constitutional issues ( Jean v. Nelson, 472 U.S. 846, 854, 86 L. Ed. 2d 664, 105 S. Ct. 2992 (1985)). By analogy the procedural or technical defenses must also be considered before taking up the substantive, nonconstitutional defenses.

 1. P & A Defendants

 P & A and Michael Richardson have filed a joint motion to dismiss Counts I through IV pursuant to Rule 12(b)(6), and Naiditch has filed a separate but virtually identical motion. This section of the opinion discusses the issues common to both motions. Naiditch raises only one unique issue--whether she was timely served--which is taken up below under the heading "Naiditch." P & A Defendants argue that Joshua and Amy lack standing to bring their federal claims, that all the claims are time-barred, that proximate cause is lacking as to Counts III and IV and that neither the Constitution nor the common law recognizes the 1988-vintage Albers as a "family."

 Standing

 P & A Defendants concede that if Albers had a constitutional right to family association then Ron, Cameron, Lynne and Herman have standing to litigate such a right. But they argue that Joshua and Amy do not, because siblings have no enforceable rights of family association under Section 1983.

 Siblings are undoubtedly "family members" within the general protection of the Supreme Court's cases on family rights. Bell v. City of Milwaukee, 746 F.2d 1205, 1246-47 (7th Cir. 1984), citing Moore v. City of East Cleveland, 431 U.S. 494, 503-05, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977), has said that statutes that interfere with sibling relationships in an arbitrary and unreasonable way violate the Constitution and must be stricken Bell distinguishes rights from remedies, however, and that distinction is crucial to the present case. It is one thing to decide that state action violates the Constitution, but it may be another matter entirely to hold that action compensable by monetary damages under Section 1983.

 Bell, 746 F.2d at 1246-47 clearly holds that siblings may use Section 1983 as the vehicle for a facial constitutional challenge to any state action that interferes with their rights of family association. Bell, id. at 1247-48 (emphasis added) went on to make the following pronouncement on the availability of damages for siblings:

 Obviously many human relationships stem from the "emotional attachments that derive from the intimacy of daily association," but we are unwilling to attach constitutional significance to such attachments outside the closely guarded parent-child relationship. . . . We conclude that under present constitutional authorities the siblings cannot recover under Section 1983.

 It is not entirely clear whether Bell laid down an absolute bar to sibling recovery. *fn17" Four factors figured in the panel's conclusion, and it is worth going through them one by one to see whether they might play out differently in this or any other case.

 First Bell, id. at 1247, citing Smith v. Organization of Foster Families, 431 U.S. 816, 844, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977), suggested that courts should consult state law to define the significance of various family relationships where federal law has previously been silent or vague. Wisconsin does not allow siblings to recover for loss of society and companionship, so the Bell panel thought it imprudent to extend a comparable right of recovery under federal law. Conversely, it seems clear that if there were a damage remedy under state law, our Court of Appeals might permit damages under Section 1983.

 Reliance on state law seems odd in this context. After all, the absence of analogous state-law torts ordinarily does not preclude recovery under Section 1983 (see, e.g., Hutson by Hutson v. Bell, 702 F.Supp. 212, 213-14 (N.D. Ill. 1988)). And Smith, the Supreme Court case cited by Bell for the state-law-reliance proposition, suggests using such local law to determine whether some legally amorphous collection of people is actually a family--not to determine whether a sibling who obviously is a family member can recover damages under Section 1983. But if our Court of Appeals chooses to rely on state law, so must this Court. And Joshua and Amy have no right to recover for the loss of Ron's and Cameron's society under Illinois law. *fn18" Thus that aspect of the Bell analysis cuts against their claim of standing to recover damages under Section 1983.

 Next Bell relied on two factors that apply generally to all Section 1983 sibling cases. It pointed out that siblings, aunts, uncles, cousins and close friends might all feel so injured by the loss of a child that they would seek damages, but the Court of Appeals saw no principled means of determining whose injuries deserved compensation. So it drew the line at the parents and the child actually victimized by the state action (746 F.2d at 1247). Overdeterrence also troubled the Bell court: Even if the right to recover were extended only to siblings, then a single bad act by the defendants could generate separate damage awards for the victim or the victim's estate, the parents and the siblings.

 Finally, Bell relied on precedent. In a handful of cases the District of Colorado had denied damages recovery for siblings under Section 1983, and those cases provided the support for Bell's reliance on "present constitutional authorities" as grounds for denying sibling standing. But the Tenth Circuit has since rejected that position, so that the Colorado cases now lack any force within their own circuit. *fn19" Moreover, as n. 19 reflects, there appears to be no uniform rule nationally on this issue. To the extent that Bell relied on precedent to convert the panel's view of the particular case into a general rule, then, it may be viewed as undercut somewhat.

 Even if the force of precedent were to be discounted for that reason, however, three grounds for the Bell decision would still remain: state law, line-drawing and overdeterrence. State law theoretically might outweigh the other two factors: If the federal court could borrow a well-defined state rule that permitted sibling recovery, that could both solve the line-drawing problem that worried the Bell court and also lessen its concern about overdeterrence because that same concern had not been persuasive to the Illinois courts. But in this case Illinois state law lends Albers no such help. Taking all factors into account, this Court finds Bell compelling here.

 To distinguish Bell Albers rely entirely on Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-07 & n.6, 1009-10) (N.D. Ill. 1989). There this Court's colleague Honorable Ann Williams held that siblings have constitutional rights of family association originating in both the associational freedoms of the First Amendment and the substantive due process protections of the Fourteenth Amendment. Having so ruled, Judge Williams found siblings entitled to declaratory or injunctive relief under Section 1983 to enforce those rights. Aristotle P. did not authorize damage recovery for siblings, because none was sought. Thus the decision does not contradict Bell unless Section 1983 standing is a unitary all-or-nothing concept for siblings.

 Albers do want monetary damages for the Section 1983 violations. In Count I they ask for $ 500,000 each for Ron and Cameron to compensate them for the unlawful seizure and $ 50,000 for each plaintiff to compensate for the denial of their right to association and privacy; in Count II, $ 10,000 per day of wrongful confinement to compensate each of Ron and Cameron for their stay at Village Inn; in Count III, $ 500,000 each for Ron and Cameron to compensate them for the second seizure and $ 50,000 for each plaintiff to compensate for the denial of their right to association and privacy; and in Count IV, another $ 10,000 per day of wrongful confinement to compensate each of Ron and Cameron for their stay at Lincoln. Quite apart from the fact (of which we are periodically reminded by our Court of Appeals, see TMF Tool Co. v. Muller, 913 F.2d 1185, 1191 (7th Cir. 1990)) that District Court decisions do not have the force of precedent, this Court is not persuaded by Aristotle P. to part company with either the holding or the logic of Bell. Instead, because adhering to Bell serves to forbid any monetary award to Joshua and Amy, their requests for damages--that is, their actions at law under Section 1983--are dismissed for lack of standing.

 Nor is that conclusion altered by another facet of Aristotle P. --its suggestion that the First Amendment protects family relationships in ways distinct from the Fourteenth Amendment, so that broader remedies may be available to enforce First Amendment rights (721 F.Supp. at 1007 & n.6). For that point Judge Williams cites Roberts v. United States Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984), decided just before (but not discussed in) Bell, where the Supreme Court offered some guidance on what relationships may and may not fall within the constitutionally protected freedom of association. Albers have asserted claims under both the First and Fourteenth Amendments, presumably intending to advance both incorporation-by-reference rights (see n. 16) and substantive Due Process Clause rights. This Court will not indulge the tenuous notion that sibling damages are somehow available in spite of the Bell analysis for the portion of their claims that arises under the First Amendment. Not even Aristotle P. itself suggests that Joshua and Amy could recover damages just because they mentioned the First Amendment in their Complaint, and this Court sees nothing in the Roberts analysis to suggest that result.

 To turn from the damages remedy to the other forms of relief prayed in the Complaint, Albers also seek injunctive and declaratory relief for defendants' state-law violations. Such relief is apparently sought both under Section 1983 (on the theory that the state-law violations led to federal constitutional violations) and directly under state law. Specifically, Albers ask for declaratory judgments that P & A exceeded its statutory authority when Michael Richardson seized Ron and Cameron at Union Grove, when he placed them at Village Inn, when he filed the unlawful-facility complaints and when Ron and Cameron were confined at Lincoln; for an injunction barring P & A from seizing or confining Ron or Cameron again; for an injunction ordering Naiditch to adopt policies and procedures that would guard against future violations of the rights of developmentally disabled persons; and for injunctions ordering Naiditch to deliver relevant investigative records to Albers and expunge P & A's records of information about Albers. For the most part Albers lack standing to obtain those sorts of relief from P & A Defendants.

 Plaintiffs who seek equitable relief under Section 1983 must first climb the cliff erected by City of Los Angeles v. Lyons, 461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). There the Court held that a plaintiff who has standing to seek damages under Section 1983 does not necessarily have standing to seek injunctive relief. *fn20" To establish the latter kind of standing the plaintiff must show some "real or immediate threat that the plaintiff will be wronged again in a similar way. . . ." ( id. at 111). Mere conjecture of future injury will not do the trick. And Robinson v. City of Chicago, 868 F.2d 959, 965-66 (7th Cir. 1989) has since extended that doctrine to govern standing for declaratory relief as well.

 Absolutely nothing in Albers' Complaint supports the conclusion that the Alber family faces any recurring threat of harm from P & A Defendants. Ron and Cameron are living in the Alber home again, apparently in the peaceful conditions that prevailed before 1988. Lynne and Herman are now indisputably their legal parents by virtue of the adoptions. Presumably Lynne and Herman remain Ron's plenary guardians as well and could easily become Cameron's plenary guardians, if they have not done so already. There is no hint of ongoing action by P & A Defendants that is injurious to Albers personally, nor any hint that such action is likely to recur absent an injunction or declaratory judgment. Tracy Zang does remain confined at Village Inn, but she is a nonparty and Albers do not purport to represent her interests in this lawsuit. Nor is this a class action.

 Even indulging the most extreme pro-plaintiff perspective permitted by Rule 12(b)(6), it is simply unreasonable to say that Albers have alleged facts sufficient to merit the sort of declaratory relief they seek. Where no such facts are alleged, dismissal of the claims for relief is the proper step ( Kohn v. Mucia, 776 F.Supp. 348, 355 (N.D. Ill. 1991)). All Albers' claims for declaratory relief against P & A Defendants are dismissed for lack of standing.

 As for the injunctive claims, Albers certainly have not made allegations sufficient to merit the institutional-reform injunction they seek. Nor have they made allegations sufficient to support an injunction barring P & A from future seizures of Ron or Cameron. Both those requests are dismissed for lack of standing as well. What remains then is the limited request for delivery and expungement of investigative records. That plea for mandatory injunctive relief will be permitted to stand because it is a one-time (and not an ongoing) remedy so closely related to the actual past injury suffered by plaintiffs themselves.

 Just as Section 1983 is not a fount of non-compensatory relief, any claim for declaratory relief or for wide-ranging injunctive relief raised solely under state law must fail as well. To obtain declaratory relief under Illinois law, "there must be an actual controversy and the party seeking relief must possess a personal claim, status or right which is capable of being affected" ( Bach v. County of St. Clair, 217 Ill.App.3d 291, 296, 576 N.E.2d 1236, 1239, 160 Ill. Dec. 282 (5th Dist. 1991) (citation omitted)). This case presents an actual controversy in which Albers have the requisite personal stake, but that controversy is in the past and the stake is purely monetary--it is not "capable of being affected" by declaratory relief against P & A Defendants. Nothing in the Complaint supports the notion that Albers require any clarification of their rights going forward. All is well in the Alber home, and the adoptions and guardianships provide all the future protection that is needed on the facts of the Complaint.

 As for injunctive relief, Albers must allege ( Local 1894, AFSCME v. Holsapple, 201 Ill.App.3d 1040, 1045, 559 N.E.2d 577, 580, 147 Ill. Dec. 404 (4th Dist. 1990)):

 (a) possession of a certain and clearly ascertained right which requires protection; (b) irreparable injury if the injunctive relief is denied; and (c) lack of an adequate remedy at law.

 Again Albers fail the test. They have articulated no basis for a claim of irreparable injury. In that sense the same standing requirement applies to declaratory and injunctive relief: There must be some reasonable basis for fearing future harm if the relief is not granted. Here there is none. Again the request for delivery and expungement of records will be the only injunctive or declaratory request allowed to stand.

 To sum up the standing issues: All the Albers lack standing to obtain equitable or declaratory relief against P & A Defendants under either Section 1983 or state law, with the limited exception of the request for delivery and expungement of P & A's investigative records. Joshua and Amy lack standing to pursue their Section 1983 damages claims, which are dismissed. Joshua and Amy have no other federal claims--their other claims arise solely under state law. That raises the separate question of whether this Court may and should retain jurisdiction over Joshua and Amy as "pendent-party plaintiffs."

 Pendent-Party Jurisdiction I: Joshua and Amy21

 All the Albers have sued the same defendants, alleging the same sort of injuries arising from the same course of events. But Joshua and Amy have no standing to sue under Section 1983, so that there is no independent basis for federal jurisdiction over them. To remain here they must qualify in terms of what before Section 1367 was termed "pendent-party jurisdiction"--the doctrine under which federal courts have heard state-law claims by or against parties otherwise not subject to federal jurisdiction.

 At least until the decision in Finley v. United States, 490 U.S. 545, 104 L. Ed. 2d 593, 109 S. Ct. 2003 (1989), such pendent-party jurisdiction was potentially available if (1) the state-law claims were part of the same Article III case or controversy as the federal claims before the court and (2) "Congress had not limited the court's power to exercise such jurisdiction in the specific statutory provision conferring federal jurisdiction in the case" ( Huffman v. Hains, 865 F.2d 920, 922 (7th Cir. 1989) (citation omitted)). If those two conditions were met, a district judge has had the discretion to exercise pendent-party jurisdiction but has not been compelled to do so ( Huffman, 865 F.2d at 923)).

 Of course a putative pendent-party plaintiff must plead a valid state claim. There is a good deal of reason to doubt that Joshua and Amy in fact have any such valid claims. But a decision on pendent-party jurisdiction must precede, and may preclude, any discussion of state-law merits issues.

 This case thus presents the question whether pendent-party jurisdiction may be exercised in a Section 1983 case removed from state court, when the case has been brought after Finley and before the effective date of the Section 1367 supplemental jurisdiction statute. That statement of the issue requires a little explanatory background.

 Before Finley came down, Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1359-61 (7th Cir. 1985) (separate opinions of Judge Posner and Senior Judge Gibson) had explicitly upheld the exercise of jurisdiction over a pendent private-party defendant in a Section 1983 case. That sort of jurisdiction was thought to be consistent with the purposes of Section 1983 under the second, statutory step of the Huffman test. Pendent-plaintiff jurisdiction was generally frowned upon but not always forbidden ( Thomas v. Shelton, 740 F.2d 478, 487 (7th Cir. 1984)). It appears that our Court of Appeals never addressed the issue in a Section 1983 case.

 Finley rejected pendent-party jurisdiction under the Federal Tort Claims Act. Justice Scalia's opinion for the five-Justice majority was unmistakably hostile to such jurisdiction generally did not flatly eliminate it. Finley, 490 U.S. at 553 cited the absence of an "affirmative grant" of pendent-party jurisdiction in the FTCA as grounds for rejecting such jurisdiction in that context. Though our Court of Appeals has not since addressed the question in the Section 1983 matrix, other courts have.

 Some of those courts have found that Section 1983 contains no such "affirmative grant," so that pendent-party jurisdiction is forbidden (see, e.g., Sarmiento v. Texas Bd. of Veterinary Medical Examiners, 939 F.2d 1242, 1248 (5th Cir. 1991); Ortega v. Schramm, 922 F.2d 684, 691 (11th Cir. 1991) (per curiam); cf. Commonwealth Edison Co. v. Westinghouse Elec. Co., 759 F.Supp. 449 (N.D. Ill. 1991), adopting in a RICO case an expansive reading of Finley as barring all pendent-party jurisdiction absent an affirmative statutory grant of authority). But Finley has elsewhere been read to mean only that pendent-party jurisdiction must be broadly consistent with the underlying jurisdictional statute--in the case of Section 1983 actions, 28 U.S.C. § 1343. That reading leads to the conclusion that pendent-party jurisdiction remains available under Section 1983 despite Finley (see Rodriguez v. Comas, 888 F.2d 899, 905-06 (1st Cir. 1989) and Carter v. Dixon, 727 F.Supp. 478, 479 & n.1 (N.D. Ill. 1990), the latter of which upheld pendent-plaintiff jurisdiction in a Section 1983 case removed from state court). Carter, id. sees Finley as merely restating the second step of the Huffman test. On such a reading Moore would survive, and district judges would retain the discretion to assert pendent-party jurisdiction over a private-party defendant to a Section 1983 action.

 This is a knotty problem. *fn22" To begin with, it should be clear that Finley does not require an express statutory grant of pendent-party jurisdiction. It teaches (490 U.S. at 551) that a lower court may find pendent-party jurisdiction authorized by statute in the absence of an express grant, based on consideration of (1) the posture or context of the nonfederal claim and (2) the specific statute that authorizes jurisdiction. In light of Justice Scalia's regular insistence on clarity, it is fair to assume that if he (or more accurately the Court) meant to lay down a bright-line rule equating "affirmative grant" with "express grant" he would have said and done so. By the Finley opinion's willingness to explore the underlying purposes reflected by the statutory language of the FTCA, it signals lower courts that an "affirmative grant" may be found by implication even though not stated in plain and simple terms. So the fact that neither Section 1983 nor Section 1343 expressly provides for pendent-party jurisdiction does not end the inquiry.

 At the same time, with all due respect to the contrary conclusion reached by this Court's former colleague Honorable Nicholas Bua in Carter, Finley clearly replaces the second prong of the Huffman test with a more stringent inquiry. Under Huffman our Court of Appeals used to ask whether Congress had limited the courts' power to assert jurisdiction over pendent parties. If the answer in a particular case were no, the court had the discretion to exercise that sort of jurisdiction. Finley substitutes the opposite question, and with it substitutes a materially more restrictive attitude toward pendent-party jurisdiction. Now courts must ask if Congress has sent a clear signal permitting pendent-party jurisdiction. If the answer in the specific case is no, then the court lacks any discretion to assert such jurisdiction. Finley in effect substitutes a presumption against pendent-party jurisdiction for Huffman 's presumption in favor.

 To move on in the analysis, Finley requires consideration of the "posture or context" of the case. Just what that means is fuzzy. Finley, 490 U.S. at 551 said that the most important aspect of that case's "posture" or "context" was that there was no independent ground for federal jurisdiction over the putative pendent parties. That at least suggests that "posture" or "context" is irrelevant--for if the most prominent aspect of posture or context in a pendent-party situation is the lack of federal jurisdiction, then by definition posture or context can never cut in favor of pendent-party jurisdiction. To be sure Rodriguez, 888 F.2d at 906 held that to look at "context" meant looking at whether the claim by a pendent party "intersects with the objectives and concerns of section 1983." If that broader view of posture or context were the correct one, Albers would have a good case for pendent-party jurisdiction, for their false imprisonment and statutory claims against NHRI clearly further the broad remedial purposes of Section 1983. But Rodriguez seems to ignore Finley on that score.

 Finley also requires consideration of the jurisdictional statute or statutes. Here there are really two bases for jurisdiction, Section 1343(a)(3) and Section 1441, and this Court must consider both. Section 1343(a)(3) enables the federal courts to hear cases arising under Section 1983 by granting original jurisdiction over:

 any civil action authorized by law to be commenced by any person. . . . to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution[.]

 Rodriguez, 888 F.2d at 906 took the words "any civil action" and "any person" as evidence that Congress had made an "open-ended" jurisdictional grant applicable to pendent parties (at least plaintiffs). But Finley, 490 U.S. at 549 specifically mandates courts to construe jurisdictional statutes narrowly. In Section 1343(a)(3) the words "authorized by law" must be read as words of limitation, incorporating by reference the substantive "law" of Section 1983. That statute authorizes suits only to remedy actions taken by "persons" (a term of art--contrast, e.g., Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) with Will v. Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed. 2d ...


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