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March 18, 1993

LYNNE ALBER, et al., Plaintiffs,

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

 This Court's March 3, 1992 memorandum opinion and order (the "Opinion," 786 F. Supp. 1340), *fn1" based on its holding that a married couple and its retarded adult children (collectively "Albers," while each is referred to here individually by his or her first name) could constitute a "family" within the constitutional meaning of that term, addressed claims by that non-biological family that defendants had sought to break them apart for purely vengeful reasons. In accordance with Fed. R. Civ. P. ("Rule") 12(b)(6) principles, the Opinion accepted Albers' factual allegations as true (a requirement that the Supreme Court itself has again reconfirmed two weeks ago in Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 1993 U.S. LEXIS 1941, 61 U.S.L.W. 4205, 4205, 113 S. Ct. 1160 (U.S. Mar. 3, 1993))--and on that basis, this Court's exhaustive (and exhausting) analysis allowed Albers' 42 U.S.C. § 1983 ("Section 1983") claims to survive a motion to dismiss their original Complaint that had been filed by Protection & Advocacy, Inc., its director Zena Naiditch and its employee Michael Richardson (collectively "P&A Defendants" and individually "P&A," "Naiditch" and "Richardson").

 Since then the parties have tendered another raft of contentious filings, including Albers' Second Amended Complaint ("SAC") and the full briefing of motions for summary judgment filed under Rule 56 by all of the present defendants: not only P&A Defendants but also Illinois Department of Mental Health and Developmental Disabilities, its director Jess McDonald and its employees Glenn Grzonka, Reginald Richardson and Ralph Travis (collectively "Department Defendants" and individually "Department," "McDonald," "Grzonka," "Reginald Richardson" and "Travis"). Although those motions also raise a number of other issues to a greater or lesser extent, they focus chiefly on defendants' claimed entitlement to qualified immunity on the Section 1983 claims--a shield that this Court had made clear would protect defendants unless Albers could provide specific evidence tending to show that defendants' allegations of child abuse and neglect were fabricated (see Opinion at 1363 n.30). Now Rule 12(b)(6)'s protective curtain has itself dropped away and the actual evidence has come into view instead. For the reasons stated in this memorandum opinion and order--not on qualified immunity grounds but on an even more basic principle--all defendants' motions for summary judgment are granted.


 This case presents in dramatic focus the sharp difference between the premises underlying a motion targeting plaintiffs' pleading under Rule 12(b)(6) and those underlying a motion under Rule 56, whose goal is to avoid trial because of the absence of any material factual dispute. In the former situation the need to take plaintiffs at their word also calls for drawing all reasonable inferences from their well-pleaded allegations in their favor ( Dawson v. General Motors Corp., 977 F.2d 369, 372 (7th Cir. 1992)). But once Rule 56 is called into play, the pleading allegations themselves fall away (Rule 56(e)) in favor of the parties' factual submissions.

 To be sure, the Rule 56 movant assumes the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)), but that does not render Rule 56 an ineffective means of disposing of factually infirm cases. As this Court, writing for our Court of Appeals in Wilcox v. Niagara of Wisconsin Paper Corp., 965 F.2d 355, 356 (7th Cir. 1992) (citations omitted), has pointed out:

It has taken a recent trilogy of Supreme Court decisions to give a major boost to the Rule's utility as a vehicle for the final disposition of lawsuits without the need for an evidentiary hearing.

 For Rule 56 purposes a "genuine" issue does not exist unless record evidence would permit a reasonable factfinder to adopt the nonmovant's view ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and only facts that would prove outcome-determinative under the substantive law are "material" ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)). In those respects this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" in the light most favorable to the nonmovant ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991)).

 Those principles, combined with Albers' total failure to dispute defendants' factual submissions, have painted Albers into a legal corner. This District Court's General Rule ("GR") 12(m) requires Rule 56 movants to submit a statement of assertedly uncontested facts, with citations to the record in support of each factual statement. Then GR 12(n) requires nonmovants to respond point by point, with citations to the record in support of (1) any claimed dispute concerning movants' version of the facts and (2) any additional facts that nonmovants choose to assert. Here Albers' numerous ad hominem attacks against defendants in Albers' Rule 56 briefing cannot substitute for their total failure to have filed a GR 12(n) statement. This Court therefore accepts defendants' GR 12(m) statements as uncontested ( Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 566-68 (7th Cir. 1992) and cases cited there). *fn2" And those statements have created a stark contrast with the earlier picture of heartless bureaucrats harassing the humanitarian efforts of surrogate parents--the picture that this Court had been required to accept as gospel in writing the Opinion.


 This opinion will not recount the full chronicle of events that led to this litigation--instead the Opinion will be relied on for that purpose. But that is done only for general reference purposes, for (as already stated) Albers' allegations in their SAC are not to be credited as evidence for Rule 56 purposes. Accordingly this opinion turns to the facts established by defendants' uncontroverted GR 12(m) statements and supporting evidentiary materials.

 What follows as to SAC Count I is a brief look at the 1988 *fn3" seizure of Ron, Cameron and Tracy *fn4" from the Union Grove School and the ensuing acts on which Albers seek to base defendants' liability. To begin with, in late March Richardson received a complaint from Renee Herridge ("Herridge"), a teacher's aide at Union Grove School, that Tracy, Ron and Cameron were being neglected. More specifically she reported that they were perpetually hungry and wore ill-fitting clothes. *fn5"

 Responding to that complaint, Richardson attempted to call but was unable to reach Lynne, whom he believed to be the guardian for Ron, Cameron and Tracy. Then on April 4 he made an unannounced visit to Albers' residence. Although he heard the television no one answered the door, so he left a P&A brochure and his business card to enable Albers to call him. Soon thereafter he did speak on the telephone with Lynne, who acknowledged having received the card. Lynne told him that she was the state-approved guardian for all three young people, and the two then discussed dates on which Richardson could visit with her and them.

 Lynne, Tracy, Ron and Cameron met with Richardson in Albers' living room on Thursday, April 14. During that visit Richardson was struck by Cameron's gaunt appearance, leading him to believe that Cameron might be suffering from malnutrition.

 Herridge called Richardson about a week later to tell him that each of the Albers children *fn6" had dried feces on his or her feet. So on Friday, April 22 Richardson visited the school to review the students' records and to interview the teacher, school nurse and principal. What he learned--even in a light favorable to Albers--is nothing short of shocking. School personnel reported that Cameron indeed had feces on his feet and that it had been there the previous day. Moreover, the nature of his condition was far from unique: All three students had histories of poor hygiene and of coming to school with dried feces on their bodies. Each school official stated to Richardson that Cameron was suffering from malnutrition and maintained that each of the children should be removed from the Alber home. *fn7"

 Richardson then trekked to the Whiteside County Courthouse, where he learned that contrary to what Lynne had said, Lynne and Herman were not the children's guardians. From the courthouse Richardson drove to the Sinnissippi Mental Health Center ("Sinnissippi") *fn8" to meet with Joyce Peterson ("Peterson"), its developmentally disabled case coordination supervisor. Peterson told him that a prior file existed on Tracy. She also offered to call Department for guidance on placement options.

 On returning to P&A's office Richardson called his managing attorney, P&A employee Carol Bell ("Bell"), to review the emerging facts of the Alber case. Bell, who said she would be out of town during the following week, suggested that Richardson work with Department to secure alternative placement should the three students desire to move. Richardson understood Bell as instructing him to use his best judgment and to take any steps ...

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