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Brokaw v. Brokaw

March 10, 2006

AD BROKAW, PLAINTIFF,
v.
JAMES BROKAW, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Joe Billy McDADE United States District Judge

ORDER

Before the Court are Defendant Vicki Hansen's Motion to Dismiss Plaintiff's Amended Complaint [Doc. # 60], Defendant Bartelt's Motion to Dismiss [Doc. # 62], Defendant Judge Gende's Motion to Dismiss Amended Complaint [Doc. # 64], Defendant D. Jean Ortega-Piron's Motion to Dismiss Plaintiff's Amended Complaint [Doc. # 66], and Plaintiff's Request Pursuant to Federal Rules of Evidence § 201 for the Court to Take Judicial Notice of Evidence Below Supporting Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss Filed by Defendants [Doc. # 72].

Background

The following facts, alleged in Plaintiff's Amended Complaint will be accepted as true for the purposes of this motion. Late in the morning on July 6, 1983, Defendants James Brokaw (Plaintiff's paternal uncle who was also a Mercer County Deputy Sheriff), Weir Brokaw (Plaintiff's paternal grandfather), Karen Weaver (Plaintiff's paternal aunt), and Marvin Thirtyacre (Mercer County Sheriff) filed "false and malicious allegations of child abuse or neglect as to Plaintiff (3-years old at the time) and her brother for the purpose of having Plaintiff and her brother removed from their parents, in the hopes of causing the parents to divorce." (Amended Complaint, Doc. # 4 at ¶¶ 16(a-b).) At noon on the same day, Sheriff Thirtyacre phoned Defendant Department of Children and Family Services (DCFS) Caseworker Penny Ingersoll and relayed the abuse allegations "adding to those his own which were equally malicious, false, baseless, and scurrilous." (Id. at ¶ 16(g).) That afternoon Sheriff Thirtyacre, Weir Brokaw, Karen Weaver, and Deputy James Brokaw met briefly with Ingersoll outside a courthouse in Aledo, Illinois, and a few minutes later, Defendant Judge Susan Gende joined them. Judge Gende did not issue any order concerning the removal of Plaintiff from her home. (Id. at ¶ 16(j).) Nonetheless, that evening Plaintiff and her brother were removed from their parents home. (Id. at ¶¶ 16(k-l).) The following day, on July 7, Sheriff Thirtyacre filed a petition for the adjudication of wardship in state court. (Id. at ¶ 16(m).) A state court judge (Judge Berglund) ordered Plaintiff and her brother remain in foster care, where they had been placed after their removal the prior day. (Id. at ¶ 16(n).) Neither Plaintiff nor her brother were present at that hearing, nor were they represented by an attorney or a guardian ad litem. Plaintiff's parents, while present at the hearing, were also not represented by counsel, and they were not allowed to speak, call witnesses, or cross-examine witnesses. In fact, there wasn't even a court reporter present at the hearing. (Id. at ¶¶ 16(o-q).) On August 3, 1983, Judge Gende adjudicated Plaintiff and her brother wards of the state, but then on October 28, 1983, a state court ordered the children returned home, finding no continuing basis to hold the children. At that point, Plaintiff and her brother had been separated from their parents and home for approximately three months. (Id. at ¶¶ 16(z, aa, ee).)

In April 2000, after she reached the age of majority, Plaintiff filed a pro se complaint in this Court alleging various state law and federal constitutional claims against the various individuals involved in instigating, investigating, directing, or overseeing the removal of him and his sister from their parents. The Defendants included Mercer County, Mercer County Sheriff Marvin Thirtyacre, Mercer County Deputy Sheriff James Brokaw, Weir Brokaw, Karen Weaver, the State of Illinois, DCFS Caseworker Penny Ingersoll, DCFS Caseworker Steve Dickens, Judge Susan Gende, Director of the Mercer County Probation Department James Bartelt, Mercer County Deputy Sheriff Jonathon Weakley, Mercer County Probation Officer Vickie Hansen, and DCFS Guardianship Administrator D. Jean Ortega-Piron.

Legal Standard

When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must view the Complaint in the light most favorable to the Plaintiff and the Complaint's well-pleaded factual allegations must be accepted as true. Williams v. Ramos, 71 F.3d 1246, 1250 (7th Cir. 1995). Therefore, a complaint can only be dismissed if a plaintiff cannot prove any set of facts upon which relief can be granted. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th Cir. 1996). However, the Court is not bound by a plaintiff's legal conclusions. Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 730 (7th Cir. 1994).

Analysis

Initially, the Court notes that Plaintiff's Amended Complaint is virtually identical to one filed by her brother. In her brother's case, the Seventh Circuit found that Judge Gende had judicial immunity from suit, and that Probation Officer Vickie Hansen's "mere presence" at a conference during which Judge Gende questioned Plaintiff's brother was insufficient to create a reasonable inference that Hansen was involved in the alleged illegal conspiracy. On the other hand, the Seventh Circuit found that dismissal of Plaintiff's brother's claims against Mercer County Probation Department Director James Bartelt was not appropriate. See Brokaw v. Mercer County, 235 F.3d 1000 (7th Cir. 2000). DCFS Guardianship Administrator D. Jean Ortega-Piron was not a party in Plaintiff's brother's case. With this legal background, the Court will consider the pending motions.

A. Defendant Vicki Hansen's Motion to Dismiss Plaintiff's Amended Complaint

In this motion, Defendant Hansen argues that Plaintiff's claims against her in her official capacity are barred by the Eleventh Amendment, and that Plaintiff's allegations are insufficient to state a claim upon which relief could be granted. The Court agrees.

Plaintiff's only allegation which mentions Defendant Hansen states:

On July 13, 1983, Plaintiff and Plaintiff's brother were picked up from their foster home by Defendant Hansen and driven to a secret, ex parte, investigative meeting that was attended by Thirtyacre, Ingersoll, Bartelt, Hansen, and Gende, during which Plaintiff was forced to wait outside, alone and separated from her brother--while her brother, without legal counsel or a guardian-ad-litem present to represent him, was forced to attend the aforementioned meeting to answer questions, ...


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