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Gossmeyer v. McDonald

October 7, 1997

ROSE GOSSMEYER, PLAINTIFF-APPELLANT,

v.

JESS MCDONALD, INDIVIDUALLY AND AS DIRECTOR OF ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, CLEO TERRY, INDIVIDUALLY AND AS EXECUTIVE DEPUTY DIRECTOR OF ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, DENISE KANE, INDIVIDUALLY AND AS INSPECTOR GENERAL OF ILLINOIS DEPARTMENT OF CHILDREN AND FAMILY SERVICES, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 95 C 5296 -- George W. Lindberg, Judge.

Before BAUER, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

BAUER, Circuit Judge.

ARGUED FEBRUARY 10, 1997

DECIDED OCTOBER 7, 1997

Rose Gossmeyer, a Child Protective Investigator for the Illinois Department of Children and Family Services ("DCFS"), originally filed this action under 42 U.S.C. sec. 1983 in Will County Circuit Court. Her suit was later removed to the Northern District of Illinois. There, Gossmeyer filed a first amended complaint. In Count I, Gossmeyer alleged that her Fourth, Fifth, and Fourteenth Amendment rights were violated when personnel from the DCFS Office of the Inspector General ("OIG"), accompanied by several law-enforcement officials, searched her office, filing cabinet, two-door storage unit, and desk, pursuant to an anonymous tip that Gossmeyer kept child pornography in her file cabinet. In Count II, Gossmeyer alleged a conspiracy to violate her Fourth, Fifth, and Fourteenth Amendment rights. In Counts III and IV, Gossmeyer alleged that several officials violated and conspired to violate her rights under the Illinois Constitution, Article 1, Section 6. Finally, in Count V, Gossmeyer brought a state-law defamation claim against the not-so-anonymous tipster, her co-worker, Mary Dilworth. The district court, finding that the search was reasonable, dismissed Counts I and II as to all defendants with prejudice, dismissed Counts III and IV as to defendant the United States with prejudice, and, as to all other defendants, remanded Counts III, IV and V to the Will County Circuit Court. On appeal, Gossmeyer contends that the search was not a workplace search and that it was therefore subject to the probable cause and warrant standard of the Fourth Amendment. Alternatively, she argues that even if the search was a workplace search, it was unreasonable. We affirm.

Background

The district court accepted Gossmeyer's factual allegations as true for purposes of the defendants' motions to dismiss, and we do the same. Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992). Rose Gossmeyer worked (and still works) as a Child Protective Investigator for DCFS assigned to a DCFS field office in Joliet, Illinois. Gossmeyer's position required her to investigate instances of child neglect, abuse, and sexual abuse. Her position involved photographing evidence for use in court proceedings. Because the Joliet office had limited storage facilities, Gossmeyer bought, at her own expense, a four-drawer file cabinet and a two-door storage unit, each of which was equipped with a lock. She used the file cabinet to store evidentiary photographs, photographic equipment, files, and documents. She used the storage unit to store sundry items related to her work with children, coffee, and some personal items. Gossmeyer locked the cabinets when they were not in use or when she was not in her office. Gossmeyer had her own private key to the cabinets.

On August 8, 1994, Mary Dilworth, a DCFS Child Protective Lead Investigator in the Joliet office, anonymously informed Robert Farley, a detective in the Cook County Sheriff's Department, that she worked in the Joliet DCFS office and that Gossmeyer had pornographic pictures of children in her file cabinet at work. Farley called the DCFS OIG and relayed the message.

On August 9, 1994, at approximately 4:55 p.m., John Heath, an investigator from the OIG, called Carla Hay, a Child Protection Supervisor in the Joliet office. Heath told Hay to vacate all staff from the Joliet office. Heath informed Hay that she and Donna Walsh, another Child Protection Supervisor, were to remain in the office. At approximately 5:05, Walsh, who was in the middle of evacuating the Joliet office's staff, was notified that Heath was at the front door with six other people, who were later identified as the following Defendants-Appellees: Farley, Cook County Sheriff's officer Thomas Bohling, Illinois State Police officer Paula Barrows, Illinois State Police officer Art Sebak, U.S. postal inspector Robert Williams, and an unidentified DCFS employee known as "Jesse." *fn1 When the group entered, Gossmeyer was still present but was being escorted out of the office along with the other personnel, save Hay and Walsh.

Upon entering the office, no one in the group explained the reason for their visit except Heath and Jesse stated that they were acting on an anonymous tip. No one in the group produced a warrant. Heath displayed his badge to Hay, and Hay escorted Heath and Jesse to Gossmeyer's office. Heath and Jesse entered Gossmeyer's office and told Hay to unlock Gossmeyer's desk, filing cabinet, and storage unit. Hay had her own key to Gossmeyer's storage unit, and she unlocked the unit for the men. Hay indicated that she did not have a key to unlock Gossmeyer's file cabinet or desk. Heath and Jesse pried open the desk and file cabinet with their tools. Heath and Jesse ordered Farley and two of the unidentified police officers to detain Hay in her office and Barrows and one of the unidentified officers to detain Walsh in her office. Heath and Jesse also ordered that neither woman was to make any phone calls. Upon completing their search, Heath and Jesse put some items in a bag.

At approximately 7:00 p.m., Heath called Farley into Gossmeyer's office to look at some photographs taken from Gossmeyer's filing cabinet. Farley told Heath that the photographs were evidence, not pornography. Heath called an unknown person on his cell phone. Farley got on the phone and told the unknown person that "there was nothing here, I am out of here." Farley then went into Hay's office and told her that the visit was "ridiculous" and "a waste of [his] time." Farley, Barrows, Williams, Bohling, and Sebak all left the DCFS office soon afterwards.

At about 8:00 p.m., Heath told Hay that he and Jesse would remain to "guard the office." Hay told Heath to get a warrant, but Heath told her that he did not need one. Walsh asked Heath what they were supposed to tell their co-workers, to which Heath replied that they should tell their co-workers that there is an open investigation. Hay and Walsh were allowed to leave the office at approximately 8:15 p.m. After leaving the office, Hay stopped at Gossmeyer's home and informed Gossmeyer of the recent events. The news upset Gossmeyer.

On August 10, 1994, Gossmeyer and her then-lawyer, Joseph Polito, went to the DCFS Joliet office where Heath met with them. Heath asked Gossmeyer if she would consent to a search of her desk. She refused. Gossmeyer then did an inventory of her desk and noted that some personal items were missing. Gossmeyer sought medical treatment from her physician and psychiatrist for physical and emotional distress as well as depression. On August 10, 1994, Gossmeyer took a leave of absence from work.

Upon returning to work, Gossmeyer resumed her regular duties until September 20, 1994, when Defendant-Appellee Jess McDonald, Director of DCFS, placed her on desk duty and prohibited her from having any client contact. Some time in September, Gossmeyer discovered that the personal items which had been removed from her desk during the search on August 9 had been returned to her locked desk without her knowledge or consent. It was also some time in September when an officer from the OIG showed Will County State's Attorney James Glasglow some, and possibly all, of the photographs taken from Gossmeyer's files.

On December 9, 1994, Gossmeyer was told that she could return to her regular duties except that she was relieved of her responsibility for taking photographs for DCFS. Gossmeyer has never been informed by DCFS or the OIG that their investigation has ended nor has she been advised as to any findings made by DCFS or the OIG stemming from the August 9 search. Gossmeyer has never been charged or indicted for any crime in connection with that search.

Gossmeyer originally filed this sec. 1983 action on August 7, 1995, in the Will County Circuit Court, Joliet, Illinois. Gossmeyer named McDonald, Terry, Kane, Smith, Heath, Barrows, and Dilworth in their individual capacities. She named Farley in his official and individual capacities. Gossmeyer also named the Cook County Sheriff's Police Department. Finally, she named Four Unknown Officers, without specifying in what capacity she named them. On September 15, 1995, pursuant to 28 U.S.C. sec. 1441, Farley filed a Notice of Removal to have the case removed to United States District Court for the Northern District of Illinois.

On December 22, 1995, Gossmeyer filed a five-count first amended complaint, in which she named all of the defendants from her first complaint in their individual and official capacities, substituted the Cook County Sheriff's Police Department with Cook County Sheriff Michael F. Sheahan in his official capacity only, added Robert Williams in his individual capacity only, and replaced the Four Unknown Officers with Thomas Bohling of the Cook County Sheriff's Police Department and Art Sebak of the Illinois State Police, in both their individual and official capacities. In Counts I and II, pursuant to 42 U.S.C. sec. 1983, Gossmeyer alleged violations of her right to privacy under the Fourteenth Amendment and her right to be free from unreasonable searches and seizures under the Fourth Amendment and the Illinois Constitution, Art. I, sec. 6. She also alleged violations of her right to due process under the Fifth and Fourteenth Amendments. In Count II, Gossmeyer alleged a conspiracy under sec. 1983. In Counts III and IV, Gossmeyer alleged that several officials violated and conspired to violate her rights under Article I, Section 6 of the Illinois Constitution. Finally, in Count V, Gossmeyer brought a state-law defamation claim against Dilworth.

On February 8, 1996, Sheahan, Farley, and Bohling filed a joint motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). On April 19, 1996, a Certification pursuant to 28 U.S.C. sec. 2679(d)(1) was filed on behalf of Williams, along with Williams' motion to substitute the United States as a party defendant. The United States and Williams also jointly filed a motion to dismiss Counts I through IV (the counts pertaining to them), pursuant to Rule 12(b)(1) and 12(b)(6). On May 2, 1996, McDonald, Terry, Kane, Smith, Heath, Barrows, Sebak, and Dilworth filed a joint motion to dismiss, pursuant to Rule 12(b)(6).

On May 28, 1996, the district court granted Williams' motion to substitute the United States as a party, granted the United States' motion to dismiss Counts III and IV with prejudice, and granted Williams' motion to dismiss Counts I and II with prejudice, which the court treated as Bivens claims. The court also granted Farley, Bohling, and Sheahan's motion to dismiss Counts I and II with prejudice and granted McDonald, Terry, Kane, Smith, Heath, Barrows, Sebak, and Dilworth's motion to dismiss Counts I and II with prejudice. The court granted the motions to dismiss as to Counts I and II because it found that the search of Gossmeyer's office was reasonable and, therefore, legal. The court remanded Counts III, IV, and V, the remaining supplemental state-law claims. The district court later ordered that the remand be stayed pending disposition on appeal.

Gossmeyer appeals, arguing that the district court erred in dismissing Counts I and II because the search of her office was unreasonable. Gossmeyer argues that the reasonableness test from O'Connor v. Ortega, 480 U.S. 709 (1987), which governs workplace searches, was inapplicable because the search was not a workplace search but, rather, pursuant to a criminal investigation. She also argues that, even if Ortega applies, the district court erred in applying Ortega because the search was unreasonable at its inception and in its scope.

Analysis

A. Initial Removal Concerns

At oral argument, the panel asked the parties to submit supplemental authority regarding whether our decision in Frances J. v. Wright, 19 F.3d 337 (7th Cir.), cert. denied, 513 U.S. 876 (1994), barred Gossmeyer's suit from federal court because, in Gossmeyer's first amended complaint (the only complaint which we had before us at the ...


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