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FITTANTO v. KLEIN

March 17, 1992

JOHN FITTANTO and TERESA FITTANTO, individually and as parents of Sara Fittanto, a minor child; and TERESA FITTANTO, as mother and next friend of Marie Lodge, a minor child, Plaintiffs,
v.
PAMELA KLEIN, individually and in her official capacity as a staff person at the Children's Advocacy Center, et al., Defendants.


Hart


The opinion of the court was delivered by: WILLIAM T. HART

MEMORANDUM OPINION AND ORDER

I. FACTS

 Defendants bring this motion for dismissal pursuant to Rule 12(b)(6). Therefore, all allegations made by plaintiffs are taken as true and related accordingly. Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990). Plaintiff John Fittanto is the father of Sara Fittanto ("Sara"), born July 10, 1990, and the step-father of Marie Lodge ("Marie"), born September 2, 1984. Plaintiff Teresa Fittanto is the natural mother of both Sara and Marie. *fn1"

 On Sunday, October 15, 1989, Kristina Lopez ("Kristina"), who lived next door to the Fittantos and was then age five, was playing with Marie at the Fittanto home. John Fittanto was at a Chicago Bears football game. The next day, Monday, while at school, Kristina told her teachers that John Fittanto had sexually abused her in the bathroom of the Fittanto home. That evening, at approximately 6:10 p.m., Kristina was interviewed at defendant Children's Advocacy Center (the "Advocacy Center") by defendant Sandy Trumpinski, a social worker at the Advocacy Center, and defendant Jorge L. Martinez, a police officer for defendant Village of Hanover Park. At this interview, Kristina alleged that John Fittanto had "touched her private parts" over her panties in the Fittantos' bathroom while John Fittanto was fully clothed. Kristina also claimed that Marie told her that John Fittanto did the same thing to her.

 After this interview, on October 24, 1989, Klein called the Illinois Department of Children and Family Services' ("DCFS") Hotline and reported Kristina's allegations. Defendant Eunice Smith, a DCFS supervisor, assigned the case to defendant Al Ragland, a DCFS employee. *fn3" On October 27, 1989, three days later, Klein again interviewed Kristina. Defendants Trumpinski and Officer Martinez also monitored this interview. During this interview, Kristina's allegations included even more acts than alleged in the previous interview.

 Based solely upon Kristina's allegations, *fn4" on October 30, 1989, Officer Martinez of the Village of Hanover Park and Sergeant Fieroh of the Illinois State Police arrested John Fittanto at his place of employ. At that time, the Fittantos agreed to a consensual search of their home, during which no evidence was found.

 As a result of a decision by the DCFS defendants Ragland and Smith, Marie was taken from the Fittanto home and placed in the custody of Teresa Fittanto's ex-husband. Marie was not returned to the Fittantos until May of 1991. During the time that Marie was out of their custody, John Fittanto was not allowed to see Marie at all and Teresa Fittanto was allowed only limited supervised visits with Marie. Sara Fittanto was born during the pendency of the criminal proceedings against John Fittanto. Within 24 hours of her birth, the DCFS issued a seizure order to the hospital and John Fittanto was not allowed to see his newborn child. As a consequence of the seizure order, Teresa Fittanto moved into her mother's home to care for Sara.

 In April of 1991, a hearing was held concerning DCFS's custody of Sara and Marie. At the conclusion of the hearing, no grounds were found to prevent the return of Marie and Sara to the Fittantos. Subsequently, the criminal charges against John Fittanto were dismissed. Plaintiffs now bring suit pursuant to 42 U.S.C. ยง 1983 and the First, Fourth and Fourteenth Amendments against Klein, Officer Martinez, Sergeant Fieroh, and DCFS employees Ragland and Smith, in their individual capacities; Klein and Trumpinski in their official capacities; the Village of Hanover Park; the Advocacy Center; Hanover Township, which funds the Advocacy Center; and Hanover Park Mental Health Board, which directed and supervised the Advocacy Center.

 Defendants Pamela Klein in both her individual and official capacity; Village of Hanover Park; Al Ragland in his individual capacity; Eunice Smith in her individual capacity; and Sergeant Wayne Fieroh in his individual capacity now move to dismiss plaintiffs' complaint. Because Pamela Klein's employer, the Advocacy Center, is sued, the claim against Pamela Klein in her official capacity is dismissed. See Brandon v. Holt, 469 U.S. 464, 471-72, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985) (suing a government official in her official capacity is the same as suing the government entity itself). *fn5"

 II. MOTION TO DISMISS

 Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). When presented with a motion to dismiss, a court construes pleadings liberally, and mere vagueness or lack of detail does not constitute a sufficient ground for dismissal. Strauss, 760 F.2d at 767. Nonetheless, a complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Papapetropoulous v. Milwaukee Transp. Services, 795 F.2d 591, 594 (7th Cir. 1986). In deciding a motion to dismiss, factual allegations of the complaint, as well as any reasonable inferences drawn from them, are taken as true. Neumann v. John Hancock Mut. Life Ins., 736 F. Supp. 182, 183 (N.D. Ill. 1990).

 III. THE VILLAGE'S MOTION TO DISMISS: MUNICIPAL LIABILITY

 The Village argues that it has no constitutional duty to protect plaintiffs from Kristina Lopez's allegations of sexual abuse. This is true. The Village has no constitutional duty to protect "citizens against invasion by private actors." See DeShaney v. Winnebago County DSS, 489 U.S. 189, 195, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989); see also Archie v. City of Racine, 847 F.2d 1211 (7th Cir.), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338 (1988). The Village, however, misapprehends plaintiffs' allegations. Plaintiffs do not allege that the Village failed to protect them from private actors. Rather, plaintiffs allege that the Village failed to train its police officers concerning allegations of sexual abuse and relations with the Advocacy Center. Plaintiffs allege that Village officers acted without proper training and in accord with an express Village policy to rely on the investigation ...


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