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LETISHA A. v. MORGAN

June 16, 1994

LETISHA A., RICKY F., RAMON F., LATOYA C., NANCY I., APRIL M., TENESHA M., TAWANA B., GEORGIA W., GREGORY S., and CHARLETTA M., minors, by their next friend and Guardian ad litem, PATRICK T. MURPHY, the COOK COUNTY PUBLIC GUARDIAN, Plaintiffs,
v.
GARY T. MORGAN, Guardianship, Administrator, Illinois Department of Children and Family Services, THOMAS FINNEGAN, Administrator of Cook County Operation, Illinois Department of Children and Family Services, CHRIS BENSON, Administrator of Licensing, Illinois Department of Children and Family Services, DIANE BRADY, Administrator of Direct Services, Illinois Department of Children and Family Services, CAROLYN REDD, Child Welfare Specialist, Illinois Department of Children and Family Services, MILTON POPE, Child Welfare Specialist, Illinois Department of Children and Family Services, LEONARD JOHNSON, Child Welfare Specialist, Illinois Department of Children and Family Services, TRESSIE HARRIS, Child Welfare Specialist, Illinois Department of Children and Family Services, JOHN MINARD, Child Welfare Specialist, Illinois Department of Children and Family Services, JULIA WOODS, Child Welfare Specialist, Illinois Department of Children and Family Services, LEON ROGERS, Child Welfare Specialist, Illinois Department of Children and Family Services, WARREN HENDON, Child Welfare Specialist, Illinois Department of Children and Family Services, HENDEZ FLYNN, Child Welfare Specialist, Illinois Department of Children and Family Services, ENGLEWOOD HEALTH SERVICES, INC., an Illinois corporation, HAROON ANSARI, Director, James Bank Memorial Home, TRAVIS BALDWIN, Past Director, James Banks Memorial Home, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendants Englewood Health Services ("EHS"), Haroon Ansari ("Ansari"), and Travis Baldwin ("Baldwin") (collectively "private defendants") to dismiss the first amended complaint to the extent it is directed against them. *fn1" For the following reasons, the motion is granted.

 FACTS2

 Plaintiffs Letisha A., Ricky F., Ramon F., Latoya C., Nancy I., April M., Tenesha M., Tawana B., Georgia W., Gregory S., and Charletta M. (collectively "minor plaintiffs") were removed *fn3" from the custody of their natural parents by order of the Circuit Court of Cook County, Juvenile Division, Illinois ("Juvenile Court"), after judicial findings of child abuse and neglect. The Juvenile Court placed minor plaintiffs in the custody of the Illinois Department of Children and Family Services ("DCFS"). Subsequently, DCFS placed them in James Bank Memorial Home ("Memorial Home"), located at 320 West 59th Street in Chicago, Illinois.

 Memorial Home is owned and operated by EHS, a private Illinois corporation. In exchange for monetary consideration from DCFS, Memorial Home contractually agreed to provide residential care, supervision, training, and other development services to minor plaintiffs. Minor plaintiffs resided at Memorial Home for at least nine months before they were removed from Memorial Home by a state court order on July 2, 1993. The amended complaint describes Memorial Home as an ill maintained cesspit, located in a high crime area, with inadequate security, supervision, and food to afford the necessary protection for minor plaintiffs. *fn4"

 Subsequent to their removal from Memorial Home, the instant action followed pursuant to 42 U.S.C. § 1983. Minor plaintiffs claim, inter alia, that private defendants acted under color of state law when they violated minor plaintiffs' constitutional rights and, thus, are liable under § 1983. In response to the amended complaint, private defendants filed the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

 DISCUSSION

 On a motion to dismiss, all well-pleaded factual allegations are presumed to be true. Land v. Chicago Truck Drivers, 25 F.3d 509, 1994 U.S. App. LEXIS 12443, 1994 WL 221801, at *1 (7th Cir. 1994); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991). The court must view those allegations in the light most favorable to the plaintiff, Gomez v. Illinois State Board of Education, 811 F.2d 1030, 1039 (7th Cir. 1987), and all reasonable inferences to be drawn from those allegations are also accepted as true. Meriwether v. Faulkner, 821 F.2d 408, 410 (7th Cir.), cert. denied, 484 U.S. 935, 98 L. Ed. 2d 269, 108 S. Ct. 311 (1987). The court is not, however, constrained by the legal characterizations placed on those allegations by plaintiff. Republic Steel Corp. v. Penn. Eng'ing Corp., 785 F.2d 174, 183 (7th Cir. 1986).

  Additionally, the court must construe the pleadings liberally, and mere vagueness or lack of detail alone will not constitute sufficient grounds to dismiss a complaint. Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985). Furthermore, the complaint need not specify the correct legal theory nor point to the right statute to survive a Rule 12(b) motion to dismiss. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1078 (1992). The complaint, however, will be dismissed if the plaintiff cannot prove the facts upon which the sought after legal relief is to be granted. Ross v. Creighton Univ., 957 F.2d 410, 413 (7th Cir. 1992). The complaint must state either direct or inferential allegations to establish the necessary elements for recovery under the chosen legal theory. Glatt v. Chicago Park District, 847 F. Supp. 101, 103 (N.D. Ill. 1994).

 Minor plaintiffs' claims against private defendants are asserted under 42 U.S.C. § 1983. To state a cause of action under § 1983, a plaintiff must allege sufficient facts to establish the following two elements: (1) that the defendants were acting under color of state law, and (2) that their conduct deprived the plaintiffs of rights secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Procopio v. Johnson, 994 F.2d 325, 328 (7th Cir. 1993); Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir. 1992), cert. denied, 124 L. Ed. 2d 639, 113 S. Ct. 2417 (1993). For purposes of this motion to dismiss, the adequacy of the second element is not contested by private defendants. Instead, they contend that the amended complaint fails to state sufficient allegations to demonstrate the required state action because EHS, Ansari, and Baldwin are all private actors, not state actors. State action *fn5" is an essential jurisdictional predicate under § 1983, and lack thereof warrants dismissal of the claim. Sampson v. Village Discount Outlet, Inc., 832 F. Supp. 1163, 1167 (N.D. Ill. 1993).

 Generally, the protections of § 1983 do not extend to private conduct violating individual rights no matter how abhorrent the conduct may be. National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988). A private individual, however, may be subject to § 1983 liability if such individual acted under color of state law by exercising power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941). Section 1983 "liability attaches only to those wrongdoers 'who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.'" National, 488 U.S. at 191 (quoting Monroe v. Pape, 365 U.S. 167, 172, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961)). Accordingly, in order to subject a private person to § 1983 liability, "the misconduct must have been directed by the State of Illinois." Tunca v. Lutheran General Hospital, 844 F.2d 411, 413 (7th Cir. 1988) (citing Monroe, 365 U.S. at 184-88).

 Examination of the amended complaint reveals that EHS, Ansari, and Baldwin are indeed private parties, not employees of DCFS or of any other state agencies. While one's private party status itself is not dispositive of whether one acted under color of law, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974), the facts of this case do not warrant a deviation from the general rule that a private actor is not subject to § 1983. Merely placing displaced children in a group facility does not convert the owner of the facility into a state actor, just as foster parents and relatives of the abusive parents who take physical custody of neglected and abused children do not become state actors.


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