and live-in boyfriend, which Defendants knew was unacceptable given that
the state had just recently removed the minors from the mother's care.
Similar to K.H., Foster Parent appears to have been woefully
lacking in the training and ability needed to care for these children.
See 914 F.2d at 848. Moreover, given her emotional and
psychological challenges, it is seriously doubted that she was capable
of exercising the requisite degree of supervision over the minors and
ensuring their safety. Accordingly, the complaint sufficiently avers
that Defendants failed to exercise appropriate professional judgment in
placing the minors with Foster Parent. Thus, the first prong of the
qualified immunity test is satisfied.
The second prong of the Kernats qualified immunity test is likewise
satisfied because the right to suitable foster care placement was
"clearly established" in K.H. ex rel. Murphy v. Morgan in 1990, years
before Defendants in this case placed the minors with Foster Parent.
2. Right to Basic Medical Care
Plaintiffs claim Defendants violated the minors' substantive due
process right to receive basic medical care while in state custody from
June 27, 1995 through June 8, 1996. Plaintiffs assert that the minors
received no medical or dental care during this period. Defendants'
qualified immunity defense fails with respect to this claim from June
27, 1995 to November 17, 1995 because minor children in state custody do
have a substantive due process right to basic medical treatment, the
right having been clearly established by June 27, 1995.
First, under the Kernats qualified immunity analysis, Plaintiffs have
alleged a deprivation of a constitutional right. In Youngberg, the
Supreme Court held that the state must provide certain basic services to
individuals committed to its institutions. 457 U.S. at 324, 102 S.Ct. at
2462. "When a person is in state custody she is wholly dependent on the
State, and a duty to provide certain services and care does exist." Id.
Indeed, the State in Youngberg conceded that it had a duty to provide
adequate food, shelter, clothing, and medical care to those committed to
its care. 457 at 315, 102 S.Ct. at 2457. The Court observed: "these are
the essentials of the care that the State must provide." 457 P.S. at
324, 102 S.Ct. at 2462. Speaking of Youngberg, the Seventh Circuit in
K.H. noted that the Constitution requires the responsible state officials
to take steps to prevent children in state institutions from
deteriorating physically or psychologically. Moreover, in the court's
view, "Youngberg made the basic duty of the state to children in state
custody clear, and Doe added the obvious corollary that the duty could
not be avoided by substituting private for public custodians." K.H., 914
F.2d at 852; see also Doe v. New York City Dep't of Soc. Servs.,
649 F.2d 134, 144 (2d Cir. 1981) (noting that a placement agency may be
held liable under § "1983 for exhibiting deliberate indifference' to
a known injury or known risk to a foster child).
The complaint sets forth a claim that Defendants failed to ensure the
minors received proper medical care. One of the most basic constitutional
guarantees while in state custody is the right to adequate medical care.
See Youngberg, 457 U.S. at 324, 102 S.Ct. at 2462. Here, doctors reported
that the minors had been medically neglected while wards of and under the
protection of the State. Under Youngberg and K.H., child welfare workers
must prevent these children from "deteriorating physically and
psychologically." K.H., 914 F.2d at 851. Doe demonstrates that the basic
duty of the state to children in state custody is not diminished when
private custodians are used. 649 F.2d at 144. "No case held the contrary
and there was no reason to think that Doe would not be followed in this
circuit." K.H., 914 F.2d at 852. Thus, there exists a clearly established
constitutional right to receive reasonable medical care while in state
Turning to the second prong under Kernats, the right to reasonable
while in state custody was clearly established in June of 1995.
Youngberg, decided thirteen years before Defendants' inaction
here, leaves no, doubt that the state must provide certain basic services
to individuals held in state custody, among them: food, shelter, clothing
and medical care. Defendants' qualified immunity defense thus fails
during the period of June 27 through November 17, 1995 with respect to
this second claim.
Plaintiffs also purport to allege a claim for retaliation against
Defendants. "To state a cause of action for retaliatory treatment, a
complaint need only `allege a chronology of events from which retaliation
may be inferred.'" Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994).
This chronology of events must include an action which changed for the
worse the conditions experienced by the plaintiff. Benson v. Cady,
761 F.2d 335, 342 (7th Cir. 1985). Moreover, alleging merely the ultimate
fact of retaliation is insufficient. Id. The court in Benson concluded
that the plaintiff in that case had not experienced the worsened
condition required for a retaliation claim. Id. at 343. The plaintiff had
been transferred from one correctional institution to another. Id. He
claimed the evidence of retaliation was his transfer back to a double
cell at, the first institution. Id. However, the court noted that
plaintiff had not been assigned to a single cell in the first place. Id.
The court did go on to suggest at a move from a double to a single cell
would be a worsened condition for purposes of a retaliation claim. Id. In
Black the Seventh Circuit held that the plaintiff had stated a claim for
retaliation. Id. at 1400. "Reviewing the actions of the various
defendants . . . it is evident that Black has alleged continuous acts of
harassment and beatings since the time he filed an administrative
complaint with the Department of Justice." Id. at 1399. However,
Plaintiffs in this case fail to allege a chronology of events from which
retaliation can be inferred. In particular, the Plaintiff Johnson has
experienced no worsened condition. See Benson, 761 F.2d at 342. Plaintiff
Johnson alleged that DCFS employees conducted searches and inspections of
his home at inconvenient times. He also alleges that Defendants attempted
to make him complete counseling services he had already completed.
However, even if true, these allegations do not rise to the level of a
worsened condition as set forth in Benson and Black in order to maintain
a claim for retaliation. Thus, Plaintiffs fail the first prong of the
Kernats test in that they have failed to state a claim for retaliation
and, consequently have failed to allege a constitutional violation.
For the reasons stated above, the Court would have denied Defendants'
qualified immunity defenses with respect to Plaintiffs' two due process
claims for the period of June 27th through November 17, 1995, and granted
Defendants' qualified immunity defense with respect to Plaintiffs'
Because the Plaintiffs had a previous opportunity to raise the issues
before this Court in state court and because Plaintiffs' federal claims
are inextricably intertwined with the issues previously decided by the
juvenile court, federal jurisdiction is barred by the Rooker-Feldman
doctrine. Consequently, the Court grants Defendants' motion to dismiss
for lack of subject matter jurisdiction.