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LIPSCOMB v. STATE OF ILLINOIS

March 31, 2003

FRED LIPSCOMB, ET AL., PLAINTIFF,
v.
STATE OF ILLINOIS, ET AL., DEFENDANTS



The opinion of the court was delivered by: Susan B. Conlon, United States District Judge.

MEMORANDUM OPINION AND ORDER

Fred, Magnoli, and Chrissy Lipscomb (collectively, "plaintiffs") sue the State of Illinois, Illinois Department of Children and Family Services, Ivory Fluckas, Shirley Robinson, Jess McDonald, and other individuals presently unknown (collectively, "defendants"). Specifically, plaintiffs sue Fluckas for denial of substantive due process (Counts I and II), intentional infliction of emotional distress (Counts IV and V), battery (Count VIII), and false imprisonment (Count IX). Plaintiffs sue all defendants for a denial of substantive due process (Count III), and intentional infliction of emotional distress (Count VI and VII). Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6).

BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in favor of the nonmovant. Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). On July 24, 2001, Chrissy Lipscomb was a minor child living in the legal custody of her parents, Fred and Magnoli Lipscomb. Ivory Fluckas is a child abuse investigator with the Illinois Department of Children and Family Services ("DCFS"). Shirley Robinson is Fluckas' immediate supervisor. Jess McDonald is the director of DCFS.

On July 25, 2001, Markita Mackey, Chrissy's cousin, called the DCFS Child Abuse Hotline, alleging that Chrissy's parents abused her. Fluckas, assigned to the case, interviewed Mr. and Mrs. Lipscomb at their home. They discussed an eating disorder that Chrissy's parents believed she was experiencing, as well as a high protein diet that Fred administered to Chrissy. Chrissy's parents denied abusing Chrissy. Chrissy was not at home during the interview. Mr. and Mrs. Lipscomb filed a missing persons report with the Chicago Police Department for her on July 26, 2001.

After speaking with Chrissy's parents, Fluckas went to Mackey's house. There, he talked to Mackey and met Chrissy, who was staying at the house. Mackey told Fluckas that Mr. Lipscomb had beaten Chrissy. Fluckas told Chrissy to stay at Mackey's home overnight.

The next day, Fluckas returned to Mackey's house and met with Chrissy. Chrissy told him that her father hit her legs, back, and arms with belts, extension cords, and his hand. Fluckas told Chrissy that he had to look for bruises on her body that resulted from the alleged abuse. Fluckas allegedly ordered Chrissy to lift up her shirt despite Chrissy's protests that she wanted a female to conduct the body examination. Fluckas made no attempt to arrange for a woman to conduct the examination and insisted Chrissy expose her body to him.

During the examination, Fluckas allegedly touched Chrissy's body for extended periods and touched her breasts and thigh. Chrissy asked Fluckas to stop touching her, but he seemed angry. Fluckas told Chrissy that if she wanted to stay at Mackey's house, he had to do the examination. Allegedly, the only bruises and markings on Chrissy's body were from ice skating training accidents. But as part of his report, Fluckas falsely included abuse marks and bruises on his illustrated diagram of her body. After concluding the meeting, Fluckas told Chrissy she could not contact her parents or return to their house. He ordered Chrissy to stay inside Mackey's home, warning her that if she went outside, the police would pick her up.

Chrissy stayed at Mackey's house until August 6, 2001, when Mackey informed her that she (Chrissy) had a doctor's appointment. Chrissy went to the Rogers Park Health Clinic and was examined by Dr. Martin. Fluckas was at the clinic, and was present while Dr. Martin examined Chrissy's body for marks and bruises. Fluckas insisted Chrissy undress for the exam, but Dr. Martin said it was unnecessary. During Dr. Martin's exam, Fluckas touched Chrissy's body and held his hand in close proximity to her legs to point out what he thought were bruises. Chrissy told Dr. Martin that her bruises resulted from being hit by her father. Allegedly, Chrissy lied because Fluckas told her to do so. Dr. Martin disagreed that the bruises resulted from abuse.

After the appointment, Fluckas drove Chrissy home in his car. Fluckas allegedly put his hand on her thigh and told her to do whatever he said. Chrissy removed Fluckas' hand because it was too close to her genital area. Fluckas then brushed Chrissy's cheek with his hand and told her not to worry, he would take care of everything.

Despite numerous requests from Mr. and Mrs. Lipscomb between July 25 and August 6, 2001. Fluckas refused to tell them of Chrissy's whereabouts, merely informing them that she was in DCFS custody. The Lipscombs had their first contact with Chrissy while she was at the Rogers Park Health Clinic.

Fluckas submitted a request to file an abuse/neglect petition to the Cook County State's Attorney's office. Included in his request were purported notes from his interviews, diagrams that he and Dr. Martin created showing bruises on Chrissy's body, and safety determination forms that analyze risk assessment for a child living in a particular home.

The state's attorney's office filed two pleadings in the Circuit Court of Cook Count based on the information that Fluckas presented. The first sought temporary custody of Chrissy by DCFS pursuant to the Illinois Juvenile Court Act, 705 ILCS 405/2-10. The second petitioned for an adjudication of wardship over Chrissy, alleging neglect and abuse.

On August 8, 2001, a temporary custody hearing was conducted. Fluckas testified that Chrissy told him her father only let her eat one meal per day. Fluckas also testified that the diagram submitted in his report reflected his personal observations. He said Chrissy identified the bruises as the result of being hit by her father. Because Fluckas did not estimate the age of the bruising in his report or in his testimony, the judge found Fluckas was not persuasive about his ability to evaluate physical injury to a child. Nonetheless, the judge granted the state's motion for temporary custody and barred ...


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